




02-11-328-CV





















COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
 



 
 
NO. 02-11-00328-CV
 
 



In the Interest of J.D. and K.O., Children
 
 


 


 




 




 


 


 



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FROM THE 323rd
District Court OF Tarrant COUNTY
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MEMORANDUM
OPINION[1]
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I.  Brief Background
and Introduction
          After
hearing testimony about the physical abuse suffered by three-year-old J.D., allegedly
at the hands of Appellant Mother’s boyfriend C.O., and after hearing testimony
that Mother had refused to acknowledge C.O.’s role in the abuse and to
extricate herself from him, the trial court terminated Mother’s parental rights
to both her son J.D. and to her daughter K.O.[2]  Mother now appeals the
judgment terminating her parental rights to her two children, arguing that the
family code’s dismissal deadlines in termination cases are unconstitutional,[3]
that the trial court erred by denying her motion to extend the dismissal
deadline, that Texas Family Code section 263.405(i) violates the separation of
powers provision of the Texas constitution, that section 263.405(i) as applied
to Mother violates the Due Process Clause of the United States Constitution,
and that the evidence is legally and factually insufficient to support the termination
of her parental rights.  We will affirm.
II.  Third Issue
          In
her statement of points on appeal, Mother challenged only the legal and factual
sufficiency of the evidence to support the termination of her parental rights and
argued that subsections (b), (d), (g), and (i) of section 263.405 violate the separation
of powers doctrine.  Mother, recognizing that her first two issues (regarding
the section 263.401 dismissal deadlines) were not raised in her statement of
points, argues in her third issue that Texas Family Code section 263.405(i) is
not a bar to her first two complaints because section 263.405(i) violates the
separation of powers provision of the Texas constitution.
          Former
section 263.405(i) of the family code required an appellant to present to the
trial court any issue that she intended to appeal in a statement of points.  See
Act effective Sept. 1, 2005, 79th Leg., R.S., ch. 176, § 1, 2005 Tex. Gen. Laws
332, 332 (“The appellate court may not consider any issue that was not
specifically presented to the trial court in a timely
filed statement of points on which the party intends to appeal or in
a statement combined with a motion for new trial.”), repealed by Act
effective Sept. 1, 2011, 82nd Leg., R.S., ch. 75, §§ 5, 8, 2011 Tex. Gen. Laws
348, 349 (deleting subsection (i) but noting that former section 263.405
remains in effect for final orders rendered before September 1, 2011).[4] 
However, following our recent decision in In re A.J.M., No.
02-11-00137-CV, 2012 WL 2877457, at *1 (Tex. App.—Fort Worth July 16, 2012, no
pet. h.) (op. on reh’g) (en banc), we sustain Mother’s third issue.  See
generally Ross v. Union Carbide Corp., 296 S.W.3d 206, 221 (Tex.
App.—Houston [14th Dist.] 2009, pet. denied) (Frost, J., concurring on en banc
review) (stating that “‘absent (1) a decision from a higher court or this court
sitting en banc that is on point and contrary to the prior panel decision or
(2) an intervening and material change in the statutory law, this court is
bound by the prior holding of another panel of this court’”).  We therefore
review each of Mother’s issues.
III. 
Mother Failed
to Preserve
Her Separation
of Powers
Argument Regarding
Section 263.401’s Dismissal
Deadlines
          In
her first issue, Mother argues that the artificial deadlines of section 263.401
violate the separation of powers provision of the Texas constitution and are
void.  To preserve a complaint for our review, a party must have presented to
the trial court a timely request, objection, or motion that states the specific
grounds for the desired ruling, if they are not apparent from the context of
the request, objection, or motion.  Tex. R. App. P. 33.1(a); see also Tex.
R. Evid. 103(a)(1).  If a party fails to do this, error is not preserved, and
the complaint is waived.  Bushell v. Dean, 803 S.W.2d 711, 712 (Tex.
1991) (op. on reh’g);  see also In re B.L.D., 113 S.W.3d 340, 354–55
(Tex. 2003) (holding that court of appeals must not retreat from
error-preservation standards to review unpreserved error in parental rights
termination cases), cert. denied sub nom. Dossey v. Tex. Dep’t of Protective
& Regulatory Servs., 541 U.S. 945 (2004); In re D.T.M., 932
S.W.2d 647, 652 (Tex. App.—Fort Worth 1996, no writ) (holding that even
constitutional arguments are waived if not raised in the trial court).  Because
Mother was required to raise this constitutional challenge in the trial court
and did not, she waived her right to assert it on appeal.  See In re D.W.,
249 S.W.3d 625, 631 (Tex. App.—Fort Worth 2008), pet. denied, 260 S.W.3d
462 (Tex. 2008) (holding that mother’s complaint, challenging section 263.401’s
dismissal deadline as violative of the separation of powers clause of the Texas
constitution, was not the type of challenge of facial unconstitutionality of a
statute that could be asserted for the first time on appeal); In re K.A.S.,
131 S.W.3d 215, 231 (Tex. App.—Fort Worth 2004, pet. denied) (holding that
because constitutional attacks on section 263.401 were not raised in trial
court, parent had waived right to assert them on appeal); see also In re Doe
2, 19 S.W.3d 278, 284 (Tex. 2000) (holding that trial court lacked
authority to consider separation of powers issue that was not properly
presented to trial court).  But see Tex. Dep’t of Family & Protective
Servs. v. Dickensheets, 274 S.W.3d 150, 161 (Tex. App.—Houston [1st Dist.]
2008, no pet.) (stating that party could raise constitutional challenge to
facial validity of statute for first time on appeal and holding that section
263.401 does not violate separation of powers clause in Texas constitution); In
re L.L., 65 S.W.3d 194, 196–97 (Tex. App.—Amarillo 2001, pet. dism’d)
(holding that section 263.401 does not violate separation of powers clause in
Texas constitution).  We overrule Mother’s first issue.
IV. 
Trial Court
Did Not
Abuse Its
Discretion by
Denying
Motion
for Extension
          Before
the termination trial commenced, Mother asked for an extension,
stating that she had completed her service plan, had achieved independent
living from C.O., and needed “some time to demonstrate that [she] can maintain
a safe and stable home” so that the children could be returned.  The ad litem
responded, “I’m adamantly opposed to that motion.  [Mother] has had a year to
move out of the apartment from [C.O.] and decided to move out last week, if she
even has moved out.  There is no . . . extraordinary circumstance that would
say that we need to extend this case.”  The Department concurred with the ad
litem, requested that the motion for extension be denied, and reminded the
court that the dismissal date was that day.  The attorney for C.O. stated that
his client was in favor of granting the extension because Mother and C.O. had
been separated for a month.  The intervenors, Mr. and Mrs. W., who were
maternal great-grandparents of the children, did not object to the motion for
extension.  After hearing the arguments of both sides, the trial court denied
Mother’s request. 
          In
her second issue, Mother argues that assuming that the statutory dismissal
deadlines do not violate the separation of powers provision of the Texas
constitution, the trial court erred by denying her motion to extend the
dismissal deadline.
          A
trial court must dismiss a suit affecting the parent-child relationship if it
has not rendered a final order or granted an extension on the first Monday
after the first anniversary of the date the court rendered a temporary order
appointing the Department as temporary managing conservator.  Tex. Fam. Code
Ann. § 263.401(a) (West 2008). The trial court may grant an extension of
up to 180 days if it finds that “extraordinary circumstances necessitate the
child remaining in the temporary managing conservatorship of the department and
that continuing the appointment of the department as temporary managing
conservator is in the best interest of the child.”  Id. § 263.401(b).  Because
an extension of the dismissal date is similar to a continuance and because
section 263.401(b) does not specify the appellate standard of review, we apply
the abuse of discretion standard.  In re T.T.F., 331 S.W.3d 461, 476
(Tex. App.—Fort Worth 2010, no pet.); D.W., 249 S.W.3d at 647.
          Here,
Mother argues in her brief that she had completed her services and had moved
away from C.O. and that “these circumstances constituted extraordinary
circumstances that necessitated the children[’s] remaining in CPS’[s] temporary
managing conservatorship.”  [Emphasis added.]  Mother does not explain how
allegedly completing her services and how allegedly moving away from C.O.
constitute extraordinary circumstances, nor does she cite to any case law
showing that any other court has found this type of circumstances to constitute
extraordinary circumstances.  Given Mother’s delay in waiting a year to move
away from C.O., we cannot say that the trial court abused its discretion by
denying an extension of the statutory dismissal date so that Mother could have
more time to demonstrate that she had disassociated from her child’s abuser.  See
D.W., 249 S.W.3d at 648 (holding that because mother presented no evidence
when she presented her motion, she cannot show that the trial court abused its
discretion by denying her motion to extend the dismissal deadline); Shaw v.
Tex. Dep’t of Family & Protective Servs., No. 03-05-00682-CV, 2006 WL
2504460, at *8 (Tex. App.—Austin Aug. 31, 2006, pet. denied) (mem. op.)
(holding that mother did not show that needing more time after failing to make
progress on service plan for eight months amounted to extraordinary
circumstances).  We overrule Mother’s second issue.
V. 
Mother’s Due
Process Challenge
Is Moot
 
          In
her fourth issue, Mother argues that section 263.405(i) as applied to her
violates the Due Process Clause of the United States Constitution.  Because we
have sustained Mother’s third issue challenging section 263.405(i) on
separation of powers grounds and have addressed all of the issues that Mother
has properly preserved for appeal, including those that were not raised in her
statement of points, Mother has received all the process that she is due.  We therefore
overrule Mother’s fourth issue as moot.
VI.  Evidence Is Sufficient to Support Best Interest Finding
          In
her fifth issue, Mother argues that the evidence is legally and factually
insufficient to support the termination of her parental rights.  After setting
forth the law for terminating parental rights under section 161.001(1)(D) and
(E), Mother then narrows her issue as follows:
          In this
case there are two primary issues for the Court to consider:
 
1)          
Was
the evidence factually and legally sufficient to find that it was in the
children’s best interest not to return to [Mother]?
 
2)          
Was
the evidence factually and legally sufficient to find that it was in the
children’s best interest to terminate all familial connections? 
Mother’s brief, however, does
not mention the Holley best interest factors or the section 263.307(b)
best interest factors and contains no argument explaining how the evidence is
legally or factually insufficient to support a best interest finding under the Holley
best interest factors or the section 263.307(b) best interest factors.  See
Tex. Fam. Code Ann. § 263.307(b) (West 2008); Holley v. Adams,
544 S.W.2d 367, 371–72 (Tex. 1976).  Because a parent’s rights to “the
companionship, care, custody, and management” of her children are
constitutional interests “far more precious than any property right,” Santosky
v. Kramer, 455 U.S. 745, 758–59, 102 S. Ct. 1388, 1397 (1982); In re
M.S., 115 S.W.3d 534, 547 (Tex. 2003), we nonetheless proceed to analyze
the best interest arguments raised by Mother.  We begin by reviewing the
evidence from the trial.
A. 
The Evidence at Trial[5]
1. 
History of Abuse
          J.D.
was born May 1, 2007.  Mother and J.D. lived with Mr. and Mrs. W.,
who were J.D.’s great-grandparents, off and on until Mother started dating C.O.
After Mother and J.D. moved in with C.O., J.D. frequently spent the night at his
great-grandparents’ house.  During that time, Mrs. W. said that
J.D. came in the front door at her home and said, “[C.O.] hurts me, mamaw,” and
then he showed her bruises.  If J.D. accidentally wet his pants while at her
home, he would say, “[Y]ou’re not going to hurt me,” and “Don’t hurt me.”  J.D.
also asked if Mrs. W. was going to hurt him when she put him in the bathtub.  Mrs.
W. thought that J.D.’s comments were odd.
          Mrs.
W. said that around July 2009, right after Mother got pregnant with K.O., Mrs.
W. saw a black eye on J.D. and asked what had happened; she was told that he
had run into a table.  Several weeks passed, and
then J.D. came over with another black eye.  J.D. said, “[C.O.] hurts me.”  Mrs.
W. called Mother, and she said that J.D. had run into the door at the laundromat.
 Mrs. W. did not think that was a plausible explanation in light of what J.D. had
said. 
          Mrs.
W. testified that two weeks prior to K.O.’s birth,[6]
Mother arrived at her baby shower with two black eyes.  Mother said that J.D.
had kicked her.  Mrs. W. noticed that Mother had bruises on her chest.  Mrs. W.
had previously seen bruises on Mother’s legs and arms, and Mother said that she
had run into a door or had bumped into a chair.  Mrs. W. believed instead that
Mother was being beaten by C.O. 
          When
Mrs. W. kept J.D. for a week when K.O. was born, J.D. did not have any marks other
than a fading bruise on his knee.  However, when Mrs. W. picked up J.D. from
Mother approximately a month later on Easter (April 4, 2010), the whole side of
his face was black; Mrs. W. rated the injury to J.D.’s face on Easter as a
seven or eight.  J.D. said that one of C.O.’s friends had hit him, but Mother
told Mrs. W. that J.D. was clumsy and had fallen out of the closet. 
          From
April 4, 2010, until April 26, 2010, Mother and C.O. stopped allowing Mrs. W. to
see J.D. as frequently.[7]  Mrs. W. was told that J.D.
was fishing with C.O.[8] 
          On
April 27, when Mrs. W. and Mrs. S., Mother’s mother, arrived at Mother’s house,
C.O. had J.D. in the car and was trying to leave with him because he knew that
Mrs. W. and Mrs. S. were coming.  The car stalled, and Mrs. W. saw J.D.’s face.
 She then went and shook her finger in C.O.’s face, told him that she was tired
of this, uttered a cuss word, and said that she was going to do something.  C.O.
said nothing.  Ultimately, C.O. removed J.D. from the car, and Mother and C.O.
allowed Mrs. W. and Mrs. S. to take J.D. with them.  Mrs. W. said that she
picked up J.D. after C.O. removed him from his car seat and that he was walking
stiff-legged.  Mrs. W. said that J.D. “looked so horrible, I couldn’t stand
it.”  J.D.’s lip was swollen, his right ear was all black, he “had skinned
places up his head,” he had bruises on his chest, and he had bruises on his
arms and back.  Mrs. W. testified that J.D.’s injuries were all over his body
and that when they touched him, “he would holler ‘oh, oh[.]”  Mrs. W. thought
that he had broken ribs.  Mrs. W. rated the injuries as past a ten.  Mrs. W.
said, “They told us it was rug burn,” but she did not believe that explanation.
 Mrs. W. took pictures of J.D. because she believed that he had been beaten.
          When
they arrived at Mr. and Mrs. S.’s house, Mr. S. started screaming when he saw
J.D.  Mrs. W. left and returned later that evening with her husband so that he
could see J.D.’s injuries; Mr. W. was upset by them.  J.D. spent the night with
Mr. and Mrs. S. 
          Mrs.
W. stayed up all night, and the next morning on April 28, she went to the
police station in Sansom Park, where she lived.  She inquired about how to
report child abuse and was told that it would need to be reported in Fort Worth
if it had taken place there.  The police gave her CPS’s phone number, and she
went home and called them.  She asked the CPS worker whether she should take
J.D. to the hospital, and the CPS worker told her that she could not tell her
what to do.
2. 
The Emergency Room Visit
          Mrs.
W. decided to take J.D. to the hospital, so she drove to Mr. and Mrs. S.’s home
and picked up Mrs. S. and J.D. and went to Cook Children’s
Medical Center at 8 a.m.[9]  The
nursing notes state that “upon entering room pt [patient] reports ‘I hurt’
[and] when asked who hurt him he states ‘kiss[.]’”[10]
          Dr.
Jayme Coffman, the medical director of the CARE Team[11] at
Cook’s, testified that J.D. had arrived at the emergency room with numerous
bruises and abrasions over his whole body, including in his mouth; abdominal
tenderness; elevated liver enzymes; and “a compression fracture of his T-6
vertebral body.”
          Because
the photographs that were admitted into evidence did not depict the injuries as
severely as they had appeared first-hand, Dr. Coffman described J.D.’s
injuries:  a large, blue-gray bruise on his right cheek; a smaller,
one-centimeter bruise closer to the nose; two linear scabbed abrasions on his
right cheek; a one-centimeter green bruise on his left cheek; an “abraded”
upper lip; a torn frenulum (the little piece of skin that connects the upper
lip to the gum); cracked and bleeding lips; bruising on the right side of his
tongue and on the anterior tip of his tongue; abrasions on both sides of his
soft palate; a three-by-two-centimeter red bruise with several linear abrasions
on his chin; a one-centimeter bruise on his jaw line; a one-centimeter blue
bruise on the bridge of his nose; small purple bruising on the inner part of
his right ear; red bruising on the part of the ear that sticks out and
extending to the hairline; purple bruising on the right side of the tip of his
penis; a scabbed abrasion that was five-by-three centimeters on his left
mid-thigh; a three-by-three-centimeter abrasion on his right lower back with
four-by-four-centimeter redness adjacent to that; an abrasion that was starting
to scab that was one-by-one-and-a-half centimeters on his lower back; a
three-by-one-centimeter “over-scabbed” abrasion along his vertebral area on his
mid-back; an abrasion that was almost resolved on his right upper back near the
scapula; several one-centimeter red bruises on his right knee; a
four-centimeter, linear scabbed abrasion and two linear scars on his right
anterior thigh; multiple linear scabbed abrasions on his left lateral or side
of his ankle; several small pustules[12]
on his left big toe; a two-by-two-centimeter bruise on the left lower leg on
the inner aspect; scattered petechiae[13] in
both armpits; multiple one-centimeter bruises varying in color on the anterior
of the chest; red petechiae were on top of a three-to-four-centimeter blue
bruise on his left chest; four one-by-one-centimeter red bruises were on his
left lateral forearm; two-by-three-centimeter red bruising with swelling or
edema of his right elbow; and numerous scattered bruises on his legs.
          Dr.
Coffman testified that there was no way to identify the size of the hand that
had caused the bruises and that she could not precisely date bruises because so
many factors affect the resolution, especially when there is bruising on top of
bruising.  Dr. Coffman said that the bruises that were blue and purple would
have been caused in the “last few days,” but that was as precise as she could
be.  She said that the bruising could have occurred the day before, the week
before, or at both times.  And the abrasions that had scabbed would have taken
a few days to reach that level.  Dr. Coffman concluded that the bruises
appeared to be at various ages but were less than a week old; all of the
bruises were gone when the doctor repeated a skeletal exam a couple of weeks
later.
          Dr.
Coffman explained how J.D.’s injuries could have occurred.  She said that a
torn frenulum in a child J.D.’s age could be caused by a hit in the mouth or by
something being jammed into his mouth; that a bruise on the tip of the penis is
usually caused by pinching; and that the petechiae can be caused if a shirt
bunches up and squeezes the skin or by someone squeezing the person under the
armpits.
          Dr.
Coffman testified that J.D.’s elevated liver enzymes could have been the result
of blunt trauma or certain viral illnesses.  But Dr. Coffman testified that J.D.’s
abdominal CT did not reveal any liver injury, and there was no indication of any
other kind of illness.
          Dr.
Coffman explained that J.D.’s symmetric “compression fracture of the T-6
vertebral body” meant that the round part of the backbone “was squished down, so
it was flattened somewhat.”  Dr. Coffman said that such an injury requires a
force going up the backbone, like slamming J.D.’s bottom down on something hard
such that forces are transmitted up his back.  Dr. Coffman said that the
compression fracture would have caused J.D. to be fussy because it would have
caused him pain.  Dr. Coffman testified that an injury of this nature cannot be
caused accidentally. 
          Dr.
Coffman said that the injuries on J.D.’s back could have been caused by carpet
burns or any number of things; there was no pattern to the injuries.  Dr.
Coffman said that a fall from a chair would not have caused all of J.D.’s
injuries but could have caused some.
          Dr.
Coffman said that in the days preceding the trip to the emergency room, the
bruising on J.D. would have been noticeable to a layperson.  In Dr. Coffman’s
opinion, a reasonable person would have noted that J.D. needed medical
treatment.  Dr. Coffman had no doubt that someone or multiple people had beaten
J.D., who was just a couple days shy of his third birthday when he was seen in
the emergency room.  Dr. Coffman believed that J.D. had suffered Battered Child
Syndrome, meaning that he had been beaten over time.  Dr. Coffman testified
that whoever had knowledge that this was going on did not protect this child,
and therefore, it was not safe to return the child to his caregivers.
3. 
CPS Investigation
          Kriste
Moron, an investigator with Child Protective Services (CPS), testified that she
was assigned the case involving J.D. and K.O. after CPS had received multiple
referrals stating that J.D. had numerous injuries; there were concerns that he
was being abused and that there was domestic violence in the home.  When Moron
arrived at Cook’s, she tried to speak with J.D. while he was being treated for
his injuries, but he could not communicate clearly enough to be interviewed.  Moron
interviewed Mrs. S. and Mrs. W., who gave information consistent with the facts
set forth above.
          Moron
met with Mother and C.O., who both initially denied that J.D. had any injuries
prior to being picked up by his grandparents.  Later, Mother told Moron that
J.D. had fallen from the table and had hit his face on the table and had busted
his lip.  Mother also said that J.D. had chapped lips.  Mother said J.D. had a
cut on his face from falling while retrieving a kite out of the closet.  At
first, Mother said that she saw the incident but later said that she was only
told about the incident by C.O.  Mother said that the injuries on J.D.’s back
were caused when he received carpet burns while he was playing with C.O.  Mother
did not know what had caused the injuries to J.D.’s chest, but she said that
C.O. had previously left bruises on J.D.’s chest when he had played too rough
with him and had punched him in the chest.  Mother said that the current
bruises on J.D.’s chest were not the same bruises that she had observed after
C.O. had punched him in the chest while playing with him.  Mother had no
explanation for any of J.D.’s other injuries.  In Moron’s opinion, Mother did
not seem to be too concerned about J.D.’s injuries and did not seem to be
protective of J.D.
          Moron
asked Mother and C.O. about domestic violence, and Mother said that there was
one incident a month or two prior to her giving birth to K.O. during which C.O.
had punched her in the face, causing a bruise on her face.  C.O. said that he
had never been involved with domestic violence.[14] 
          C.O.
told Moron that he saw J.D. fall from the table and hit his forehead on the
table.  C.O. also talked about J.D.’s falling while trying to get a kite but
said that he did not actually see J.D. fall.  C.O. said that Mother had told
him that he played too rough with J.D., but C.O. denied having caused any of
J.D.’s injuries or knowing how they were caused.
          Neither
Mother nor C.O. had an explanation for how J.D.’s compression fracture had occurred.
 Both Mother and C.O. reported that J.D. was clumsy and that he ran into walls
and fell down a lot.  Both denied that J.D. had been crying or fussy or had acted
hurt before he was taken to Cook’s.
          Moron
testified that because Dr. Coffman could not date J.D.’s injuries, Moron
decided not to place the children[15]
with the grandparents or great-grandparents in case J.D. had sustained his
injuries while he was with them. During the interviews, Moron did not know who
had injured J.D., but she was concerned about the inconsistencies in the
explanations that she had received from Mother and C.O. regarding J.D.’s
injuries.  Moron ultimately concluded that Mother and/or C.O. had caused J.D.’s
injuries because they were J.D.’s only caregivers, but Moron could not
establish that any specific injury on J.D. was caused by Mother.
4. 
Mother’s Service Plan
          Tyra
Sasita, the conservatorship worker assigned to the case in late April or early
May 2010, testified that she had developed service plans for Mother and C.O.  Sasita
testified that Mother’s service plan required her to complete random drug
testing, which she did;[16] to
attend her weekly visitation, which she did;[17] to
participate in a domestic violence group, which she did; to undergo a drug and
alcohol assessment, which she completed; to participate in individual
counseling, which she did until she was discharged;[18] to
provide safe and stable housing, including food, and employment for six
consecutive months in order to achieve reunification, which is set forth in
more detail separately below; to participate in the Shaken Baby Alliance, which
she did not complete because of scheduling problems;[19] to
participate in parenting classes, which she did; to complete a psychological
evaluation, which she did; to follow all of the recommendations on her
psychological evaluation, which she had not done; to cooperate with the
detective who was working her criminal case,[20]
which she had not done; and to participate in anger management classes, which
she did.  Sasita also testified that Mother had failed to remove herself from
the person that the detective said had probably caused the injuries to J.D., but
this was not part of her service plan.  
          Sasita
testified that given the serious injuries that J.D. presented with, the
Department would not consider returning the children to Mother and C.O. if they
only completed their services; the Department wanted to know what had caused
J.D.’s injuries so that the Department could come up with a plan.  Mother told
Sasita that she had not seen bruising on J.D.’s body when she bathed him.  Sasita
said that it was not possible for Mother and C.O. not to know about any of
J.D.’s injuries because the medical reports noted that some of the injuries
were old.
          Sasita
had not learned at any point that Mother had laid hands in anger on J.D.  Mother
told Sasita that C.O. did not cause J.D.’s injuries.  Mother would not
entertain the idea that C.O. had caused J.D.’s injuries and would say only that
they played rough together. 
          Instead,
Mother gave Sasita several explanations for J.D.’s injuries; she blamed Mr. and
Mrs. S. and Mr. and Mrs. W., though Mother had never made a police report
stating that any of these people had caused J.D.’s injuries.  Mother also
blamed J.D.’s falling from a chair, but that explanation did not line up with
J.D.’s injuries.
5. 
Mother’s Housing
          Sasita
described Mother’s housing situation during the pendency of this case as “very
unstable.”  At the time of the removal, Mother and C.O. had an apartment
together on Avril Court and reported that address in October 2010.  In December
2010, Mother provided an address on Isbell Road for her and C.O.  On April 29,
2011, the Friday preceding the termination trial, Mother told Sasita that she
was living on Avril Court with Debbie Thompson.  When Sasita visited Mother’s
home, she noted that it would need another bedroom in order to accommodate
Mother and the children.  Mother told Sasita that she had been living on Avril
Court for a month and that she had moved out from C.O. because she wanted her
children back.  Sasita, however, believed that Mother was still in a
relationship with C.O. and was living with him on Isbell Road at the time of
the trial.[21]
6. 
Mother’s Testimony
a. 
J.D.’s Injuries
          Mother
testified consistently with what she had told Moron regarding the injury to
J.D.’s face from hitting the closet door while retrieving a kite and the injury
to his lip and forehead from hitting the table.  Mother said that she was
present when Mrs. W. and Mrs. S. showed up to pick up J.D.  Before J.D. left
with them, Mother 
noticed his lip.  He
had on his forehead the cut on his face or a scratch, and then his ear, it
only, like, in the day, it would be fine, but I guess when he was asleep at
night he would pull on it and he would wake up with his ear all bruised, and
then he had some scratches on his legs and stuff from him falling and
everything, and he had a bruise underneath his eye.  My son used to demonstrate
how he liked to hit himself, and I would stop him from doing that, and then he
had some, the carpet burn on his back from him playing, from them playing and
everything, and [J.D.] didn’t like to wear a T-shirt, and then I never noticed
anything else.
Mother
summarized that J.D. had sustained six injuries while in her care:  a scrape on
his face from falling in a closet while trying to get a kite, a little bruise
underneath his eye, carpet burns on his back from playing around, scrapes and
bruises on his knees from playing, a bruise on his back from falling on a toy,
and a busted lip from falling and hitting the table.  Mother said that none of
J.D.’s injuries were of concern to her.
          Mother
did not know how J.D. had received a bruise on his penis.  She said that he
“used to grab himself pretty hard right there.”  She and Mr. and Mrs. W. had
potty-trained J.D., but he had “kind of back-slid” whenever she gave birth to
K.O.  Mother did not pinch him to get him back on track.
          Mother
testified that she never laid hands on J.D. in anger and that she never saw
C.O. lay hands on J.D. in anger.  Mother testified that she had spanked J.D. a
few times on his bottom with her hand.  Mother started doing that when he was
about two and a half whenever he would not listen or wanted to do things that
he was not supposed to, like climbing on things.  Mother had not seen C.O.
spank J.D.  Mother had observed C.O. playing roughly with J.D. and had told him
that he had to “stop that” and to calm down.  Mother admitted that she had intervened
on occasion to stop C.O. from playing too rough with J.D.  Mother thought that
C.O. may have caused some of J.D.’s injuries when he played rough with him.  But
Mother did not think that C.O. could have been the perpetrator of any of J.D.’s
nonaccidental injuries; Mother said that it had never entered her mind that
possibly C.O. could have caused J.D.’s injuries.  Mother was aware that J.D.
had told a Department employee that C.O. had hurt him, and she believed that
J.D. was “replaying back to when [C.O. and J.D. were] playing . . . rough and
everything.”  Mother had never seen J.D. scared of C.O., and J.D. had never told
her that C.O. had hurt him. 
          Mother
believed that someone had severely beaten J.D., but she was not sure who.  Mother
testified that the pictures she saw of J.D.’s condition while in the hospital
revealed more bruises than he had when he left her house.  Mother explained
that she believed that Mrs. S. had injured J.D. because he was “just fine”
whenever he left Mother’s care; afterwards, he was taken to the hospital, was
found to have “new injuries,” including that he could not eat and that his back
was hurt.  Mother said that J.D. was eating “just fine” when he left her house,
was not complaining about his back, and was cheerful and playful.  Mother
believed that Mrs. S. had caused some of J.D.’s bruises, including the ones on
his arms and his penis; had caused his back injury; and had caused his eating
problems.  Later in her testimony, Mother would not say that Mrs. S. had beaten
J.D.; Mother would say only that she believed that J.D. had received some of
his injuries while he was at Mrs. S.’s home. 
          Mother
testified that she had allowed J.D. to leave with Mrs. S. on April 27, 2010,
because she believed family could be trusted and because J.D. had previously
spent the night with Mrs. S. without incident.  Mother said that C.O. did not
want J.D. to go to Mrs. S.’s house because he knew of her drug habit,[22] so
he called Mother first to see if it was okay.  She admitted that it was her
fault for letting J.D. go with Mrs. S.[23]  Mother
took responsibility for J.D.’s injuries, stating, “I’m his mom and I should
have been there for him.”
b. 
C.O.’s Gang Affiliation
          Mother
said that C.O. had been in a gang before he met her.  Mother said that C.O. had
told her that the scar on his head was from a gunshot that he had received
while he was in a gang.  Mother had not asked C.O. what gang he was in or when
he was shot.  She agreed that she did not know a whole lot about C.O. and that
she should have known more about him before she moved in with him and had a
baby (K.O.) with him.  Mother said that she would like to know more about
C.O.’s past, but she did not feel like she had placed her children in danger by
not knowing his past.  Mother had asked C.O. if he was still associated with
the gang, and he said he was not; Mother took him at his word.
c.  Domestic
Violence
          At
the beginning of the termination trial, Mother agreed that C.O. is her
boyfriend and that he had been her boyfriend for about two years at that time. Mother
said that she felt safe around C.O. but admitted that there was one incident
when he had hit her.  Mother said that when she was seven or seven and a half
months’ pregnant, C.O. had slapped her during an argument over finances and
that it was a one-time event.  Mother said that the slap did not make her eye
black or leave a mark or a bruise.  Mother testified that she took a walk after
the incident and that then they came back and talked about the fight; Mother did
not call the police.  Mother said that C.O. did not give her a black eye when
she was pregnant with K.O., and Mother had no concerns about C.O.’s being
physically violent.
d. 
C.O.’s Parenting
          Mother
testified that J.D. was four years old at the time of the termination trial and
that C.O. had been caring for J.D. for the two years that she had been with
C.O.  J.D. liked to play with his toys, go fishing, go outside and play, and
watch television.  J.D. watched wrestling and liked to wrestle with C.O.  Mother
believed that her children would be safe around C.O. without supervision.  Mother
testified that in her mind, C.O. was a possible placement for both of her
children.  Mother had no concerns about C.O.’s parenting her two children
because she had never seen him as a bad parent.  Mother, however, was concerned
about whether C.O. could take care of the children financially.  Mother did not
know why she had initially picked her grandparents over C.O. to take care of
her children.  She ultimately concluded that she would like K.O. to be with
C.O. over her grandparents.
e. 
Mother’s Services, Residence, and Employment
          Mother
testified that she had complied with all of CPS’s requests.  Mother thought
that she had done “pretty good” in her individual counseling sessions with
Bartholomew but that she did not really ask much because she had already been
through counseling before.  Mother was not aware that she had been discharged
from counseling because she was not making progress; Bartholomew told her that
she had been discharged because she did not need counseling any more.  Mother
said that she had learned things during the parenting course and that she would
call the police if her children were ever placed in danger or injured by C.O.  Mother
said that if she was given the opportunity to continue parenting her son, she
would be much more observant and protective as a result of what she had learned
in her parenting classes.
          Mother
testified that she had moved in with “a good friend” named Debbie before the
termination trial started because Mother had realized that she needed “to do
[her] own thing” in order to have her children returned.  Mother testified that
her current address was on Avril Court South and that she had provided Sasita
with the current address on Wednesday or Thursday of the week before the
termination trial had started.  Mother testified that there were two bedrooms
in the apartment and that Debbie’s three children were there on the weekends. Mother
did not know anything about Debbie’s background but said that she had known her
since ninth or tenth grade.  Mother agreed that there would be seven people
living in a two-bedroom apartment if the trial court returned her children to
her.  Mother said that C.O. would help her out financially if she was kicked
out by her roommate.
          Mother
testified on the first day of trial that she had worked at Sprouts Farmers
Market since January 10, 2011; that she made $8.91 an hour; and that she worked
twenty-six or twenty-eight hours per week.  Approximately five weeks later, on
the second day of trial, Mother testified that she had left Sprouts because
they were not giving her enough hours.  After Mother left Sprouts, she was
unemployed for two weeks; she did not know why she had left a job that gave her
at least ten hours for no job.  Mother had $200 saved up when she left Sprouts.
 On the second day of trial, she testified that she was working full-time at Green
Monster, a solar company.  She had been working there for about a week.  Mother
said that she made about $400 per week.  Mother’s rent was $550 per month, but
Debbie paid it; Mother helped out with the bills by paying $300.  Mother had
about $100 saved up.  Mother had received a tax refund of $2,360 in January
2010, but she could not recall what she had done with the money.  In January
2011, Mother received a tax refund of $3,050 and bought a car, which she returned
in April 2011 because she could not make the payments.  Mother testified that
she did not have health insurance for her children. 
f. 
Mother’s Plans
          At
the start of the termination trial, Mother said that if her children were
returned to her, she would not continue a romantic relationship with C.O. and
that she had sat down and talked about that with him.  Mother said that if she
did not get her children back, she was not sure whether she was going to
continue her relationship with C.O.; she said, “We haven’t figured that one
out.  Probably not.”  Mother said that she and C.O. had been talking “for a
while” about having to end their relationship so that she could keep her
children.  Mother admitted that her preference was for the children to be returned
to her to be cared for jointly by Mother and C.O.  On the second day of the
termination trial, Mother said that she and C.O. were no longer together and
that she did not talk to C.O. at all.  The last time that she had spoken with
him was when she moved out.
          Mother
testified that the biggest mistake that she had ever made was not protecting
her children enough.  Mother believed that she had done everything she could do
to get her son back, including separating her residence from C.O.’s.  Mother asked
the trial court to return her children to her and she said that she could prevent
C.O. from being around J.D.  Mother said that Mr. and Mrs. W. could watch her
children while she worked.
If
the children were placed with relatives, Mother agreed that she would pay child
support.  Mother had indicated to Sasita that if the children were placed with Mr.
and Mrs. W., she would go get the children, despite the great-grandparents’ efforts
to protect the children.  Sasita told Mother that she would not have permission
to take her children, and Mother agreed that was not an option.
7. 
C.O.’s Testimony
          C.O.
was in a gang from age twelve through age eighteen or nineteen when he was
shot.  C.O. testified that after he was shot in the head by a rival gang, he
had not been affiliated with any gangs.[24]
 C.O. testified that he had not been in trouble with the law since the injury.  Prior
to disassociating from the gang, C.O. pleaded guilty to the following offenses:
escape, which occurred August 7, 2002; driving while intoxicated, which
occurred August 29, 2002; assault/bodily injury to a family member, which
occurred on October 1, 2005;[25] and
possession of marijuana under two ounces, which occurred on November 22, 2008.[26]  The
judgments from the four offenses were entered into evidence.
          C.O.
underwent a psychological evaluation and was diagnosed with adjustment disorder
with depressed mood and psychotic disorder.  One of the recommendations was
that he be treated for hallucinations.
          C.O.
said that Mother was nurturing and was a good parent.  He never saw Mother
injure J.D.  C.O. pleaded the Fifth Amendment when asked whether he had injured
J.D.[27] 
          C.O.
testified that J.D. had told him, “Grandma beat me,” meaning that Mrs. W. beat
him.  C.O. however never saw Mr. or Mrs. W. mistreat the children or physically
abuse Mother.  And C.O. never took J.D. to the doctor for injuries that he had allegedly
received at Mr. and Mrs. W.’s house.
          C.O.
testified that he lived on Isbell Road at the time of the termination trial and
that Mother had lived with him until two months before the June termination
trial.  C.O. testified that he and Mother were not a couple and no longer spent
time together.  C.O. later admitted that since the May 2 court date, Mother had
come over to his apartment on court days.
8. 
Support System
          The
intervenors were ages sixty-nine and seventy-two.  When Sasita visited Mrs. W.
at her home, she showed Sasita pictures of past injuries to J.D. and talked
about how J.D. would act out the abuse that was going on in his home.  The Department
ultimately decided not to place the children with the intervenors because of
their motivation to protect the children, their ability to protect the
children, their lack of a viable backup caregiver, their awareness of past injuries,
their ages, and their present belief that they should not have contacted CPS.
          Mrs.
W. testified that she had raised Mother since she was fourteen or fifteen and that
Mother had lived with her off and on through nearly all of J.D.’s life.  Mrs. W.
babysat J.D. while Mother was in school or at work.  She said that he was a handful
but that she enjoyed it.  Mrs. W. testified that she was willing to give J.D.
the extra attention or help that he required as a result of his behavioral
issues. 
          Mrs.
W. said that Mrs. S. had separated from her husband during the week of trial
because he had tried to choke and kill her and that there were previous
incidents of domestic violence in Mr. and Mrs. S.’s home.  Mrs. W. had talked
to Mother while the children were in care, and Mother had kept saying that Mrs.
S. had inflicted the injuries on J.D. 
          Mrs.
W. testified that she did not take action when J.D. had the first black eye or
the second black eye because she did not know what to do; Mother kept giving
her excuses.  However, in Mrs. W.’s mind, she had no doubt that C.O. had caused
J.D.’s injuries because J.D. had told people, “[C.O.] hurt me.”  Mrs. W.
admitted that she wished that, instead of calling CPS, she would have taken the
children to a lake lot that she and her husband own.  However, Mrs. W. agreed
that had CPS not gotten involved in the case, J.D. would more than likely still
be stuck in a home with a “stepfather” who was beating him.
          When
Mrs. W. asked Mother about the black eyes that she had received, Mother told
her to stay out of it.  Mrs. W. believed that C.O. had caused Mother’s black
eyes while she was pregnant and the bruises on her chest when she delivered,
but Mrs. W. did not call the police to report that domestic violence was
occurring around J.D.  Mrs. W. said that she did not know what to do and could
not prove anything.
          Mrs.
W. did not think that C.O. would beat K.O. because she was his biological child,
but Mrs. W. believed that C.O. would beat up J.D.  It bothered Mrs. W. that
Mother had never admitted that C.O. was beating J.D.  Mrs. W. could not figure
out if Mother and C.O. were still a couple; she did not trust that they had broken
off their relationship.  Mrs. W. believed that Mother was choosing C.O. over
her children.  Mrs. W. testified that Mother had received a lot of chances over
the year to get her life together, but she had not done so.[28]  Mrs.
W. testified that as long as Mother is with C.O., the trial court should not return
the children to Mother.  Mrs. W. did not want to see the children adopted; she
wanted them to come home with her and her husband.[29] 
          Mr.
W. testified that he had observed injuries on J.D.  He said that every time he
touched J.D. he said, “[D]on’t hurt me, don’t hurt me.”  Mr. W. testified that
he did not see C.O. inflict J.D.’s injuries, but he believed that C.O. had
caused them.  He believed that Mother had failed to protect J.D.  Mr. W.
believed that C.O. had also beaten Mother and had caused her black eyes and
bruises; Mother had told him to stay out of it.  Mr. W. did not call the police
because he was not thinking back then; he was mad at C.O.  He regretted not doing
something to protect J.D.  Mr. W. asked the court to place the children with
him and his wife and testified that was in the children’s best interest. 
          The
intervenors’ adult son Jeffery lived with them and testified that he had not
called the police when Mother moved in with C.O. and came back to visit with bruises
on her arms and black eyes although he believed that C.O. had hit her.  He also
did not call the police when he saw J.D. with black eyes.  Jeffery said that
Mother and C.O. were in a dating relationship and were living together. 
9.  Children’s
Status
          At
the time of the termination trial, the children were living in a dual-licensed
foster home.  Sasita said that K.O. was doing very well, was on target, was
growing, and was thriving; there were no issues or concerns with her.  J.D. was
not on any medications but was receiving “a lot of therapies,” including speech
therapy, physical therapy, occupational therapy, and play therapy.  Sasita said
that J.D. was delayed and thus did not have the cognitive ability of others his
age.  According to Sasita, J.D. “continues to struggle with violence and
violent behaviors.  He acts out behaviors, he has a real problem with women and
how he treats women, being disrespectful to them.”  He acted out violently,
including hitting and tripping his sister.  During his play therapy sessions,
J.D. also acted out the abuse that Mother had gone through and the abuse that
he had endured.  Sasita said that “the current placement has definitely gotten
the services, but it has been very challenging to deal with [J.D.’s] behavioral
issues.” 
10. 
Department’s Plan
          Sasita
asked the trial court to terminate Mother’s parental rights to J.D. and K.O.
and stated that it was in the best interest of the children.  The Department’s
plan was not for the current foster family to adopt the children; instead, the
Department planned to pursue another placement for the children.
11. 
CASA Volunteer’s Report
          Alicia
Miller, the Court-Appointed Special Advocate, was appointed on the case in July
2010.  Miller testified that the children were “doing great” in foster care and
that they were in “a very good placement.”  Miller said that J.D. is a very
active little boy and is “all boy all the time.”  Miller said that J.D. is not
one to sit still, likes to be moving and playing with things, and is very
physical.  The foster mother had to keep an eye on J.D. at all times.  Miller
testified that J.D. was making “tremendous progress” in speech and that K.O.
was on-target for motor skills and language.  Miller was concerned that Mrs. W.
had failed to involve law enforcement when she saw injuries on J.D.  Miller
recommended that the children be placed for adoption and testified that was in
their best interest. 
B. 
Standard of Review
There
is a strong presumption that keeping a child with a parent is in the child’s
best interest.  In re R.R., 209 S.W.3d 112, 116 (Tex. 2006).  Prompt and
permanent placement of the child in a safe environment is also presumed to be
in the child’s best interest.  Tex. Fam. Code Ann. § 263.307(a) (West
2008).  The following factors should be considered in evaluating the parent’s
willingness and ability to provide the child with a safe environment:
(1) the child’s age and physical and mental
vulnerabilities;
(2) the frequency and nature of out-of-home placements;
(3) the magnitude, frequency, and circumstances of the
harm to the child;
(4) whether the child has been the victim of repeated
harm after the initial report and intervention by the department or other
agency;
(5) whether the child is fearful of living in or
returning to the child’s home;
(6) the results of psychiatric, psychological, or
developmental evaluations of the child, the child’s parents, other family
members, or others who have access to the child’s home;
(7) whether there is a history of abusive or assaultive
conduct by the child’s family or others who have access to the child’s home;
(8) whether there is a history of substance abuse by the
child’s family or others who have access to the child’s home;
(9) whether the perpetrator of the harm to the child is
identified;
(10) the willingness and ability of the child’s family to
seek out, accept, and complete counseling services and to cooperate with and
facilitate an appropriate agency’s close supervision;
(11) the willingness and ability of the child’s family to
effect positive environmental and personal changes within a reasonable period
of time;
(12) whether the child’s family demonstrates adequate
parenting skills, including providing the child and other children under the
family’s care with:
(A) minimally adequate health and nutritional care;
(B) care, nurturance, and appropriate discipline consistent
with the child’s physical and psychological development;
(C) guidance and supervision consistent with the child’s
safety;
(D) a safe physical home environment;
(E) protection from repeated exposure to violence even
though the violence may not be directed at the child;  and
(F) an understanding of the child’s needs and
capabilities;  and
(13) whether an adequate social support system consisting
of an extended family and friends is available to the child.
Id. § 263.307(b);
R.R., 209 S.W.3d at 116. 
Other,
nonexclusive factors that the trier of fact in a termination case may use in
determining the best interest of the child include:
(A)     the desires of the child;
(B)     the emotional and physical
needs of the child now and in the future;
(C)     the emotional and physical
danger to the child now and in the future;
(D)     the parental abilities of the
individuals seeking custody; 
(E)     the programs available to
assist these individuals to promote the best interest of the child;
(F)     the plans for the child by
these individuals or by the agency seeking custody;
(G)     the stability of the home or
proposed placement;
(H)     the acts or omissions of the
parent which may indicate that the existing parent-child relationship is not a
proper one; and
(I)      any excuse for the acts or omissions
of the parent.
Holley,
544 S.W.2d at 371–72 (citations omitted).
These
factors are not exhaustive; some listed factors may be inapplicable to some
cases; other factors not on the list may also be considered when appropriate.  In
re C.H., 89 S.W.3d 17, 27 (Tex. 2002). 
Furthermore, undisputed evidence of just one factor may be sufficient in a
particular case to support a finding that termination is in the best interest
of the child.  Id.  On the other hand, the presence of scant evidence
relevant to each factor will not support such a finding.  Id.
C.  Sufficient
Evidence Exists That Termination of Mother’s Parental Rights Is In Children’s
Best Interest
 
          Here,
Mother argues that it was not in the children’s best interest to terminate her
parental rights because she had completed her service plan and had moved out
from C.O.  These two arguments, however, do not outweigh the Holley
factors and section 263.307(b) factors, which we analyze below.
          The
record does not disclose the desires of the children, but it does reflect that
J.D.’s aggression increased after visits with Mother.  Due to their young ages,
the emotional and physical needs of the children included the need for
protection from physical abuse, and J.D. needed therapy for the abuse that he had
endured and the abuse of Mother that he had witnessed.  Mother had demonstrated
that she was incapable of protecting herself and J.D. and that she had
difficulty controlling and redirecting him when he misbehaved at visits. Mother
had taken advantage of the services that she was offered but reached a
stalemate in counseling when she would not consider that C.O. had abused J.D. 
Mother admitted that she had failed to protect J.D., but her failure to
acknowledge the danger that C.O. and his friends posed to J.D.—even after
admitting that C.O. had left bruises on J.D. while roughhousing and that she
had repeatedly asked him to stop playing so rough with him—indicated an ongoing
danger to J.D.  Mother wanted the children returned to her or to C.O. or to her
grandparents and contended that right before the termination trial started, she
had separated from C.O. and had established a residence of her own, though CPS
and Mother’s relatives did not believe that she had cut ties with C.O.  CPS,
however, planned for the children to be adopted but not by the family that was
fostering the children; thus, CPS’s proposed placement was unknown at the time
of trial.  Overall, the Holley factors do not weigh in favor of Mother.
          The
evidence also does not weigh in favor of Mother with regard to the section
263.307(b) factors.  The children were ages four and one at the time of the
termination trial.  J.D. received speech therapy, physical therapy,
occupational therapy, and play therapy; he was developmentally delayed and did not
have the cognitive ability of others his age; and he struggled with violent
behaviors, including hitting and tripping.  The record, as set forth above,
reveals that J.D. had witnessed C.O. beating Mother because he had acted it out
in play therapy.  K.O. was on target, was growing, was thriving, and therefore
did not receive any therapy.
The
record reveals a history of abuse directed at J.D., presumably by C.O., who
kept J.D. while Mother worked or went to school and whom J.D. mentioned as the
perpetrator.  Mrs. W. testified that after Mother moved in with C.O., J.D. came
to her house with bruises and said that C.O. had hurt him.  This is some
evidence that J.D. could be fearful of returning to the home, though Mother
testified that J.D. had never acted scared of C.O.  Mrs. W. also testified that
J.D. came over with a black eye on two occasions, that he came over with the
whole side of his face black on one occasion, and that he appeared with
numerous injuries on April 27, 2010.  The page-long list of injuries set forth
above, detailing J.D.’s condition when he appeared in the emergency room on
April 28, 2010, were not all explained by the instances that Mother and C.O. had
described.  No new injuries were mentioned after J.D. was taken into foster
care by CPS.
          The
record also details a history of abuse of Mother by C.O.  C.O. admitted
slapping Mother once because she would not move out of the way; Mother
described an event in which C.O. slapped her while she was seven and a half
months’ pregnant because they were arguing over finances.  Mrs. W. testified
that Mother appeared at her baby shower for K.O. with two black eyes; Mother
denied this.  Mrs. W. testified that she had previously seen bruises on
Mother’s chest, legs, and arms.  Mrs. W., Mr. W., and Jeffery believed that
Mother was being beaten by C.O., though Mother blamed her injuries on J.D.’s
kicking her or her running into a door or a chair.  The record also disclosed
that C.O. had pleaded guilty to assault/bodily injury to a family member in
2005; he testified that he had assaulted his ex-girlfriend by slamming her head
against the trunk of an automobile and slapping her because she would not get
out of his way.
          With
regard to a history of substance abuse, C.O. had previously been convicted for
possession of marijuana, and he pleaded the Fifth Amendment when asked when he
had last used marijuana.  The results of Mother’s psychological evaluation were
not presented, but C.O.’s psychological evaluation revealed that he had been
diagnosed with adjustment disorder with depressed mood and psychotic disorder.  One
of the recommendations was that he be treated for hallucinations.
          The
record demonstrated that Mother had completed the bulk of the services on her
service plan.  Mother said that she had learned during the parenting course and
that she would call the police if her children were ever placed in danger or
injured by C.O.  But, as mentioned in the Holley factor analysis above,
after completing two rounds of counseling, Mother would not entertain the idea
that C.O. had caused J.D.’s injuries and instead blamed them on her mother, her
mother’s husband, and her grandparents, though she had never made a police
report stating that any of these people had injured J.D.
          The
record also did not demonstrate that Mother had effected positive environmental
and personal changes or that she had adequate parenting skills.  Although
Mother said that she had moved into an apartment with her friend Debbie, neither
CPS nor Mother’s extended family was convinced that Mother had fully separated
from C.O.  By failing to achieve six months of separation from C.O., Mother could
not demonstrate that the children would no longer witness domestic violence if
they were returned to her.  Even assuming that Mother had moved from her home
with C.O. in April, she had been living on her own for only two months at the
time the termination trial concluded, and the two-bedroom apartment that she
was sharing with Debbie would need another bedroom to accommodate Mother and
her two children in addition to Debbie and her three children.
          With
regard to Mother’s parenting skills, she had failed to protect K.O. by continuing
to live with C.O., who had hit Mother while she was seven and a half months’
pregnant with K.O.; she had failed to protect J.D. from C.O. and from C.O.’s
friend; she denied seeing any bruises when she had bathed J.D., even though
some of his bruises had been inflicted up to a week before the trip to the
emergency room and were so numerous that his condition was ruled Battered Child
Syndrome; she hid J.D. from Mr. and Mrs. W. for a three-week period; she did
not appear concerned when J.D. appeared in the emergency room for treatment of
his numerous injuries; and she was unable to control J.D. and redirect him when
he misbehaved during visits.  And though Mother’s support system included her
grandparents, they were rejected as a possible placement because they had seen
bruises on J.D. on multiple occasions and had not reported the abuse. 
          Considering
the relevant Holley factors and the relevant statutory factors in
evaluating Mother’s willingness and ability to provide the children with a safe
environment, we hold that the evidence is both legally and factually sufficient
to support the trial court’s finding that termination of the parent-child
relationship between Mother and the children is in the children’s best
interest.  See K.A.S., 131 S.W.3d at 226–30 (holding evidence legally
and factually sufficient to support trial court’s best interest finding
because, among other things, mother had failed to protect children from father
and had not shown ability to stay away from him; there was a history of
domestic violence issues; father had sexually abused child; and abused child
needed safe, stable environment because of mental and emotional issues).  We
overrule the first portion of Mother’s fifth issue.
D. 
Failure To Place Children With Relatives Is Not A Ground For Reversal
          In
the latter portion of Mother’s fifth issue, she challenges the Department’s
placement of her children outside the family.  This is not a ground for
reversal on appeal.[30]  See In re H.S.B.,
No. 02-10-00324-CV, 2011 WL 1434948, at *1 (Tex. App.—Fort Worth Apr. 14, 2011,
no pet.) (mem. op.) (citing C.H., 89 S.W.3d at 28, and explaining that
TDFPS has no duty to make placement with relative before parent’s rights can be
terminated; the fact that placement plans are not final or that placement will
be with nonrelatives does not bar termination); In re C.C., No.
02-04-00206-CV, 2005 WL1244672, at *6–7 (Tex. App.—Fort Worth May 26, 2005, no
pet.) (mem. op.) (same).  We therefore overrule the remainder of Mother’s fifth
issue.
VII.  Conclusion
          Having
sustained Mother’s third issue, thereby permitting review of Mother’s first,
second, and fourth issues, and having overruled those issues and Mother’s fifth
issue, we affirm the trial court’s judgment terminating her parental rights to
J.D. and K.O.
 
 
SUE WALKER
JUSTICE
 
PANEL: 
WALKER,
MEIER, and GABRIEL, JJ.
 
DELIVERED:  August 2, 2012 




[1]See Tex. R. App. P. 47.4.


[2]The reporter’s record
spells K.O.’s first name with a “C.”  In this opinion, we use the spelling
found in the final judgment, which is also reflected in the style of this
appeal.


[3]On January 17, 2012,
notice was given to the Office of the Attorney General (OAG) in accordance with
Texas Government Code section 402.010(b).  Tex. Gov’t Code Ann. § 402.010(b)
(West Supp. 2011).  A copy of Mother’s brief was also sent to the OAG.  No
response was filed by the OAG.


[4]The final order of
termination was signed on August 2, 2011.  Because the order was signed before
September 1, 2011, former section 263.405(i) controls this case.  See id. 
Due to the repeal of former section 263.405(i), our holding in this appeal is
limited to cases in which a final termination order was signed before September
1, 2011, and in which an appellate court opinion has not been handed down.


[5]The record, totaling
approximately 500 pages, reveals that the termination trial was held on three
dates:  May 2, 2011; June 13, 2011; and June 16, 2011.  Due to the six-week gap
in the dates, the date the testimony was given will be provided when necessary
to provide clarification.


[6]K.O. was born on March 8,
2010.


[7]Mother said that she was
not getting along with Mr. and Mrs. W. and that was why they had not seen J.D.
in two weeks.


[8]Mrs. W. believed that J.D.
was fishing because she had taken him fishing, and he loved it.


[9]Mrs. W. testified that J.D.
did not have any new injuries when she picked him up from Mrs. S.’s house.  Mrs.
W. did not know why Mother testified that J.D. had fewer injuries when he left
her house than when he appeared at the hospital.


[10]“Kiss” closely resembles
C.O.’s first name.  Mother testified that J.D. clearly pronounced C.O.’s first
name and had never heard J.D. use a different pronunciation for C.O.’s first name.


[11]Dr. Coffman explained
that the CARE Team is the child abuse program at Cook’s.


[12]Dr. Coffman testified
that these small pustules could “just be an infectious process, not necessarily
injury.”


[13]Petechiae, which are
little red dots, are little broken blood vessels.


[14]C.O., however, reported
to Moron that he had previously been involved with other types of criminal
activity; he had been involved with a gang, had been shot during a gang
shooting, and had previously used marijuana but had stopped.


[15]K.O. was removed because
there was a risk of physical abuse, but there was no evidence of her having
been abused.


[16]Sasita gave Mother random
drug tests, and she tested negative.  Sasita testified that drug use was not an
issue in this case.


[17]Although Sasita had not
had an opportunity to observe the visits, she had received notes from the case
aide, and nothing had occurred during the visits that would cause Sasita to
request that the visits be canceled or suspended. Sasita had received reports
from the visits that Mother had brought things for the children to the visits. 
During the visits, however, she was unable to control J.D.  He stood on chairs
and called her a “poopoo-head,” and she was unable to redirect him.  Sasita
testified that J.D.’s aggression increased after visits.


[18]Sasita explained that
after receiving notes from Mother’s counseling session with the Parenting
Center, Sasita did not feel that they were addressing the issues that would be
helpful in this case, including the domestic violence issue, the issues of what
happened to J.D., the issues with her relationship with C.O., and the issues of
resolving the CPS situation.  After Mother had completed twelve sessions, Sasita
asked that Mother complete another round of sessions with another counselor
named Norma Bartholomew.  Mother attended the sessions but made “very limited”
progress with Bartholomew.  After going through two rounds of counseling,
Mother continued to state that J.D.’s injuries were the result of his falling off
a chair and clumsiness and that she believed that her mother had caused J.D.’s
injuries.  Mother was ultimately discharged from counseling due to “lacking
insight.”  Sasita testified that Mother had to be able to demonstrate that she
could protect her children, and she could not do that because she would not
process in counseling that C.O. could have caused J.D.’s injuries.


[19]Sasita was not able to
reach the instructor for the Shaken Baby class, and she did not hold Mother
accountable for completing that requirement on her service plan.


[20]The particular criminal
case was not specified.


[21]C.O. told Sasita that
Mother had moved out a week prior to the trial at the direction of her attorney
to show that she was no longer with C.O. so that she could get her children
back.


[22]Mother said that Mrs. S.
had been a drug user all of Mother’s life and that Mother was raised by Mrs. W.


[23]Mother said that K.O. did
not go with J.D. to Mrs. S.’s house because she was “just a baby,” and so they
kept her at home.  C.O. had reservations—due to Mrs. S.’s drug use and
drinking—about K.O.’s going to Mrs. S.’s house, so he kept her home.


[24]Sasita verified that C.O.
received food stamps and disability for being shot in the head by a rival gang.


[25]C.O. testified that he
had assaulted his ex-girlfriend by slamming her head against the trunk of an
automobile.  C.O. said that he slapped his ex-girlfriend because she would not
get out of his way.  He said, “Really, I didn’t do nothing.  I slapped her.”  C.O.
also testified that he had slapped Mother once because she would not move out
of the way and was blocking the door.


[26]C.O. pleaded the Fifth
Amendment regarding when he had last used marijuana.


[27]Sasita testified that
there was no ongoing criminal investigation regarding C.O. as the perpetrator
of J.D.’s injuries.


[28]However, Mrs. W. believed
that some of Mother’s services may have helped her.


[29]Mrs. W. admitted that she
and her husband might have engaged in domestic violence when they were young.  She
said that she would “[m]ore than likely” call the police if he hit her again.


[30]The intervenors did not
appeal.


