




02-10-199-CV
























COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
 



 
NO. 02-10-00199-CV
 
 



In the Interest of O.E.W.-K., 
A Child


 


 



 
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FROM THE 323rd
District Court OF Tarrant COUNTY
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MEMORANDUM
OPINION[1]
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I.  Introduction
          Appellant
Mother appeals the trial court’s order terminating her parental rights to her
son, O.E.W.-K.  In eight issues, Mother challenges the legal and factual
sufficiency of the evidence regarding the trial court’s endangerment and best
interest findings.  We will affirm.
II.  Factual and Procedural Background[2]
The
trial court made 120 Afindings of fact.@ 
They are primarily recitations and summations of testimony presented during
trial.  Because Mother challenges the legal and factual sufficiency of the
evidence to support the grounds argued for termination and the best interest
finding, we incorporate the trial court’s findings of fact into our detailed
recitation of the evidence presented in this case.  We attempt to present the
evidence in chronological order.
          A.      Mother’s
Background
While
living in Washington, Mother gave birth to O.E.W.-K. on June 12, 2003, and they
later moved to Texas.  As set out in more detail below, Mother had a difficult
childhood that included alleged sexual abuse by her grandmother’s husband; she
also struggled with suicidal and homicidal thoughts; engaged in
self-mutilation; participated in a gang prior to O.E.W.-K.’s birth; used drugs
before and after O.E.W.-K.’s birth; spent time in jail for drug-related
charges; refused to address her mental health issues; yelled at, threatened,
and hit other adults, including her grandmother; bruised O.E.W.-K.; and
demonstrated poor parenting skills. 
          B.      Mother’s
Actions at O.E.W.-K.’s School
                   1.       Threatening
and Hitting O.E.W.-K.’s Teacher
Ferrell
Yeokum, O.E.W.-K.’s elementary school principal, testified that during the
first few weeks of school in September 2008, Mother had grabbed O.E.W.-K.’s kindergarten
teacher’s wrist on at least three occasions and had made other threatening
moves toward her.  Mother also threatened to slit the throat of anyone who
touched O.E.W.-K.  Yeokum was present when Mother said that she was “waiting to
kick [O.E.W.-K.’s teacher’s] ass.”  The police came and interviewed the
teacher, but no ticket was issued to Mother.
Because
of ongoing problems and continuing concerns with the way that Mother was
handling O.E.W.-K.’s original kindergarten teacher, Yeokum handed Mother a
letter two weeks after school started.  The letter stated, among other things:
          We regret
to inform you that we’re taking the following safety precautions in response to
your recent behavior on campus, which includes physical contact with a staff
member, use of profanity, and disruption of the school environment.
 
          Effective
immediately, you must follow these procedures when visiting our campus.  Enter
the campus only through the front doors.  Drop off and pick up your student at
the front office only.  You are restricted from entering the cafeteria at
drop-off or pick-up times.  You are required to have an administrator escort
you while in the building.  A call in advance is preferable to be sure we have
an administrator on duty.  You are not permitted to contact your son’s teacher
directly.  Please send any communication directly to administrative staff.  We
will forward them to the teacher.
 
          These
safety precautions will remain in effect indefinitely, and if you choose not to
follow each of them, we will immediately involve law enforcement. 
 
Three
Fort Worth police officers were present at the meeting when Yeokum handed
Mother the letter.  
As a
result of Mother’s actions toward O.E.W.-K.’s original kindergarten teacher,
Yeokum moved O.E.W.-K. to a different teacher’s room in an attempt to preclude
future incidents and to make sure that everyone was safe.  The situation
improved for a time, but then it became evident that Mother seemed to have a
romantic interest in the assistant principal because she was sending gifts to
her in O.E.W.-K.’s name.  Mother brought a knife to school and exhibited it to
the assistant principal and admitted to Yeokum that she had brought the knife
and had opened it at the school.  Based on the school administrators’ concern
over these situations, they decided to issue a criminal trespass warning to
Mother and had O.E.W.-K. removed from the school. 
Yeokum
felt that Mother cared for her son, and Yeokum wanted to help her “navigate the
waters” because she seemed to have some difficulties knowing what the rules and
procedures were.  They had a good working relationship from September 8, 2008
through the end of January or early February 2009.  During that time, Mother
told Yeokum that she had been in a gang for a number of years, that O.E.W.-K.’s
father was the leader of the gang, and that they were raising O.E.W.-K. to
become a member of the gang.  Mother said that she had been in jail on drug
charges.  When Yeokum told Mother that O.E.W.-K. was a very smart young man,
Mother responded that she was surprised to learn that “because when she found
out that she was pregnant, she had been taking drugs, and she wondered if that
was going to affect his intelligence.” 
          2.       Smoking
Marihuana in the Car with O.E.W.-K.
David
Piercefield, a physical education aide, testified that he walked O.E.W.-K. to
Mother’s car one day and saw her smoking a joint.  Piercefield testified that
he was concerned for O.E.W.-K.’s safety and for the safety of other students
because the middle school was letting out its students and because Mother was
“known to not be the safest driver.”  Piercefield stayed at the car with Mother
and O.E.W.-K. for forty-five minutes to “make sure there was a little wear-off
time.”  During that time, Mother told him that she smoked marihuana every day. 
          C.      CPS
Involvement
                   1.       Jaime
Jaco
Jaime
Jaco, an investigator for CPS, testified that she was assigned to O.E.W.-K.’s
case in February 2009 after receiving a report that Mother had gone to
O.E.W.-K.’s elementary school and had taken a knife into the assistant
principal’s office.  Jaco said that during her first contact with Mother, she
was very argumentative and combative; Mother made appointments, missed them,
and then refused to reschedule.  Jaco warned Mother that if she did not come to
her appointments, Jaco would go to Mother’s house and would bring law
enforcement with her; Mother told Jaco that Jaco would be sorry and that she
should go ahead and bring the police and see what happened. 
Jaco
spoke with Ms. Johnson, O.E.W.-K.’s maternal great grandmother, on March 5,
2009.  Ms. Johnson said that she had witnessed Mother hit O.E.W.-K. on the head
and that she had seen Mother cause bruises on O.E.W.-K.  Ms. Johnson said that
Mother had slapped her in the shoulder after Ms. Johnson had undergone shoulder
surgery; the pain caused Ms. Johnson to go to the doctor, and the doctor told
Mother not to hit Ms. Johnson any more.  Ms. Johnson said that Mother was
violent, that she got loud and crazy, and that she had a dual personality.  Ms.
Johnson said that ever since Mother and O.E.W.-K. moved in with her, she (Ms.
Johnson) became the primary caretaker of O.E.W.-K.; she has fed him, bathed
him, and helped him with his schoolwork. 
On
March 11, 2009, O.E.W.-K.’s teacher reported seeing bruises on him.  Jaco
thereafter went to Mother’s home to make contact with her on March 12, 17, and
24, 2009.  No one answered the door on the first two dates, but Jaco was able
to meet with Mother and O.E.W.-K. on March 24, 2009.  Jaco received a tour of
the house from Mother and was informed that in addition to Mother and
O.E.W.-K., Ms. Johnson and Mr. Johnson lived there.[3]  
While
Jaco was there, O.E.W.-K. came in and asked Mother to get something out of the
refrigerator, and Mother followed him into the hallway, slapped him on the top
of his head, and said, “[W]hat are you, a little girl?” O.E.W.-K. did not fall
down but whimpered a little.  
During
Jaco’s visit, she saw a red crescent bruise about one inch from O.E.W.-K.’s
eye.  The area inside the crescent-shaped bruise was yellow and blue.  O.E.W.-K.
said that Mother had hit him with a belt.  Jaco also saw two, two-inch-long,
red, rectangular bruises on O.E.W.-K.’s right arm; a bruise on his hands; and a
two-inch-long, blue, rectangular bruise on his right leg.  When Jaco asked
Mother about the bruises on O.E.W.-K., she initially said that O.E.W.-K. had
gotten into trouble but denied that she had physically disciplined him.  When
Jaco told Mother what O.E.W.-K. had said, Mother went and asked O.E.W.-K. how
he had gotten the bruises, and he said that she had hit him.  Mother laughed
and asked O.E.W.-K. again.  When O.E.W.-K. responded with the same story,
Mother admitted that she had spanked him with a belt.  She said that while she
was spanking him, he moved around, and she accidentally hit him in the face.  Mother
initially said that she had hit O.E.W.-K. because he had been disrespectful to
her, but then she said that he had gotten in trouble because he had not been
doing his homework.
Mother
told Jaco that she had been diagnosed with bipolar disorder,
oppositional/defiant disorder,[4] ADHD, and multiple personality
disorder.  She said that she refused to take medication and to go to a
counselor. 
Jaco
put a safety plan in place at the Johnson home on March 24, 2009.[5]
 The terms of the safety plan required Mother to not physically discipline
O.E.W.-K., to cooperate with CPS, and to follow all of CPS’s recommendations.  Mother
signed the plan but said that she was only signing it so that Jaco and Gary
Hill, the CPS investigator, would leave her house.  Mother said that she would
not work any services, such as attending parenting classes or counseling
sessions. 
On
April 10, 2009, Ms. Johnson reported to Jaco that Mother had hit O.E.W.-K. with
a belt.  Ms. Johnson also heard Mother tell O.E.W.-K. not to tell anyone about
the bruises and to tell his teachers that if they checked him for bruises, she
would kill them.  Ms. Johnson also told Jaco on April 10 that Mother had used marihuana
and had a history of using crack cocaine, including while she was pregnant with
O.E.W.-K.  Ms. Johnson said that Mother continued to use crack cocaine after
O.E.W.-K. was born.[6]  While Mother was using
drugs, she left O.E.W.-K. alone, and he was removed by CPS in Washington State
and placed with Jamie Johnson, who was his great uncle.  Ms. Johnson said that
Mother’s current routine included sitting at home and watching television all
day; she refused to go to the store or do anything else. 
On
April 15, 2009, Ms. Johnson called Jaco and said that there had been an
incident that morning when Mother had acted violently toward O.E.W.-K.  After
he told Mother that he was sick and did not want to go to school, Mother got
upset, grabbed him, and pulled him.  Ms. Johnson said that she was fearful that
Mother was “really going to hurt him.”  Jaco heard Mother yelling in the
background:  “No one is going to tell me I can’t hit my son.  If I want to beat
him, I’ll beat him, and there is nothing you can do about it.” 
On
May 20, 2009, the Texas Department of Family and Protective Services (hereinafter
TDFPS or the Department) removed O.E.W.-K. from Mother’s care.  After TDFPS
removed O.E.W.-K., Ms. Johnson said that she realized that he had caused the
bruising himself.  Ms. Johnson said that O.E.W.-K. would not be in foster care
for long because she was going to tell the judge that O.E.W.-K. had caused the
bruising himself and that his teachers had been lying about Mother.  Ms.
Johnson told Jaco that she wanted to be considered as a placement for
O.E.W.-K., but she did not want Mother to move out of her house. 
          2.       Gary
Hill
As
mentioned above, Gary Hill, the CPS investigator, worked with Jaco on
O.E.W.-K.’s case.  Hill met Mother on March 24, 2009, and she told him that
O.E.W.-K.’s father was Jean K. and that he did not pay child support. 
Mother
said that she had been incarcerated in Purdy, which is the State of
Washington’s Women’s Correctional Facility, after being arrested at age fifteen
for possession of a controlled substance and then tried as an adult for the
crime.  Mother said that she served five years. 
Mother
told Hill that she had used marihuana while she was pregnant with O.E.W.-K. but
had stopped using during her third trimester.  Mother said that she lived with
Ms. Johnson and that Ms. Johnson helped take care of O.E.W.-K. 
O.E.W.-K.
was present during Hill’s visit with Mother, and they talked about O.E.W.-K.’s
current injury to his face.  O.E.W.-K. said that Mother had caused it. 
          3.       Joanna
Letz
Joanna
Letz, the first CPS caseworker who was assigned to O.E.W.-K.’s case in May
2009, testified that when she met with Mother on June 2, 2009, Mother told her
that she had been accused of attacking O.E.W.-K.’s teacher in February 2009.  Mother
said, 
I’ll tell you exactly
what happened was the teacher had put a mark on his hand and that constitutes,
to me, that’s a deterrent to me that it is the mark of the beast from the
Bible, and it made me very angry, so I went in and I grabbed the teacher by the
neck, shoved her up against the wall, and told her don’t you ever touch my son
again. 
 
On
June 11, 2009, Mother called and asked Letz questions about a family group
conference because her attorney had advised her that she should have one.  Letz
told Mother that a family group conference can be helpful but is not mandatory,
and Mother said that she did not want to have one because she thought it would just
be a “b[---]h-fest” and because she did not want to have to see Jaco. 
On
June 16, 2009, Letz gave Mother a family service plan and went over it with
her. 
On
June 30, 2009, Letz and her supervisor met with Ms. Johnson to explain why she
would not be undergoing a home study for placement of O.E.W.-K. in her home.[7]  They explained to
Ms. Johnson that there were fifty-eight cases of CPS allegations in the home
while the family lived in Washington.  Ms. Johnson indicated that all of those
allegations were Mother’s fault and that she had “bad blood” because she was
always in trouble, was very defiant, and was disrespectful. 
Letz
questioned Ms. Johnson about whether she had ever thrown a computer at Mother
because that is what Mother had told Letz, but Ms. Johnson said that although
she had gotten very mad because Mother had hurt her feelings, she had dropped
only a keyboard over the top of the stairs. 
Letz
also questioned Ms. Johnson about Mother’s allegations that Mr. Johnson had
sexually abused her, and Ms. Johnson said that she had asked Mr. Johnson about
the allegations and that he said that he did not do anything.  Ms. Johnson
believed him.  
Ms.
Johnson said that her daughter Rosalyn (Mother’s mother) had also made
allegations about sexual abuse by Mr. Johnson and had made an outcry at school;
Mr. Johnson admitted to touching her breasts.  When Letz questioned why it
would be hard for Ms. Johnson to believe that Mr. Johnson had sexually abused
Mother if he had sexually abused Mother’s mother, Ms. Johnson said that she did
not know what was the truth, but she did know that Mr. Johnson had sexually
abused Rosalyn because he admitted to it. 
Also
on June 30, 2009, Ms. Johnson stated that she suffered from fibromyalgia,
diabetes, osteoarthritis, and mixed connective tissue disease.  She said that
seventeen years before, she had been a drug user. 
On
July 1, 2009, Mother visited the CPS office.  During the appointment, Mother
said that if she were tested for drugs right then, the test would be positive
because she had been smoking pot.  Mother admitted that it “was really stupid
on [her] part” to be smoking pot when she had a CPS case pending.  Mother also
gave an update on her progress with the service plan and said that she had been
attending parenting classes and had learned different ways to deal with O.E.W.-K.
other than spanking him. 
On
August 12, 2009, Mother came in to the CPS office and said that she had a
pretty bad weekend and had been cutting again; she showed Letz her
self-mutilation marks.  After that episode, Letz frequently asked Mother about
self-mutilation and did not see evidence of any additional cutting episodes. 
Mother’s
service plan required her to attend anger management classes, parenting
classes, and individual counseling and to obtain a psychosocial assessment, a
drug assessment, a psychological evaluation, and a psychiatric evaluation.  Mother
completed a psychological evaluation, parenting classes, and anger management.  At
trial, Letz was not aware of whether Mother had completed individual counseling
because the case was transferred to Ruth Groomer on September 30, 2009, while
Mother was still working her service plan; Mother did not like the counselor
she saw for individual counseling, so Letz had set up counseling for Mother
with Connie Burdick.  Mother had also not completed the psychiatric evaluation
at the time the case was transferred.  Mother tested positive for drugs one of
the two times that Letz drug tested her.
          4.       Ruth
Groomer
Groomer,
who became O.E.W.-K.’s caseworker after Letz, did not believe it would be in
O.E.W.-K.’s best interest to testify in the courtroom.  She said that it would
cause him stress because he had a lot of fear of Mother and Ms. Johnson.
At
the time of trial, O.E.W.-K. was repeating kindergarten.  Groomer knew that
there were some issues with O.E.W.-K.’s grades, that he was struggling, and
that he had required special attention.  When O.E.W.-K. first came into care,
he took speech therapy and no longer had a problem being understood; Groomer
said that O.E.W.-K. did not have any physical problems, but he had some
behavior problems at school and at times other than Tuesday afternoons after
his visits with Mother and Ms. Johnson.  Groomer was aware that O.E.W.-K.
“tried to slit some kid’s throat,” and she was sure that he did not hear about
behavior like that in the foster home.  Groomer believed that O.E.W.-K.’s
previous environment was a direct reflection of his current behavior.
Groomer
testified regarding Mother’s compliance with her service plan.  Mother was
required to and did undergo a psychological evaluation.  Mother completed a
drug assessment, anger management classes, and parenting classes.  Mother did
not complete her counseling or MHMR.  And Mother never gave Groomer a report
from Merit Family Services, which is where Mother was supposed to go for a
psychosocial assessment. 
Groomer
said that Mother was asked to provide a urinalysis (UA) in March 2009, August
2009, and in December 2009.  On March 10, 2009, Mother admitted to smoking marihuana
and taking cough medicine, and Groomer did a drug swab that month.  Groomer
said that Mother did not take a UA on December 8, 2009, and so she confronted
Mother about it; Mother said that she had forgotten, which counted as testing
positive.
Mother
told Groomer that she had a psychiatric evaluation done but that her second
appointment was not scheduled until April 10.  Groomer advised Mother to
reschedule the appointment because the case would be over by then, but to
Groomer’s knowledge, Mother did not reschedule.  Although Mother told Groomer
that she had visited MHMR for a psychiatric evaluation, Groomer did not know of
Mother’s participating in any of MHMR’s services, including medical treatment. 
Groomer
said that although Mother had completed parenting classes, Mother’s parenting
skills were “very lacking”; she did not know how to interact with O.E.W.-K.; and
she interrogated him more than interacted with him.[8]  Groomer suggested that Mother
should color or read a book with O.E.W.-K., and Mother said, “[W]e don’t
color.”  The next week, Mother laid on the floor and colored a picture while
O.E.W.-K. sat beside her.  Additionally, Mother did not appear to know how to
play with O.E.W.-K.  She would stand in the hall and throw a ball as hard as
she could at O.E.W.-K. while he was sitting on the couch but did not understand
why Groomer had a problem with her throwing the ball at O.E.W.-K.  When
O.E.W.-K. told Mother that he had gotten in trouble at school or at the foster
home, Mother laughed, gave Ms. Johnson a high five, and said she would have
liked to have been there and seen that.  When O.E.W.-K. talked about “his dog,”
Mother advised him that it was the dog at the foster home and gave O.E.W.-K.
six dollars when he corrected himself.  When O.E.W.-K. told Mother that he had
a girlfriend, she said, “That’s my pimp.  Pimp ‘em high.”  Moreover, Mother
frequently used curse words during the visits, brought weapons to the office
after being repeatedly asked not to bring them to the office, and texted and
talked on the phone during the visits. 
During
this case, Mother said that she was living with her girlfriend,[9] but when Groomer called, the
lady said that Mother did not live there.  Groomer said that at the time of the
trial, Mother was living in a motel or boarding house that was paid for by
other people because Mother had no job, no home, and limited income. 
Groomer
said that Mother had made few positive changes.  She remained defiant; she
continued to bring her knife to the CPS office even after being asked not to.  Mother
seemed to take pleasure in seeing if people were afraid of her.  She never gave
direct answers.  She would not do anything Groomer asked her to do until
Groomer “put her between a rock and a hard place.” 
Groomer
did not believe, based on the parts of the service plan that Mother had
completed, that Mother would be able to provide a stable, nurturing home for
O.E.W.-K.  Groomer also did not believe that Mother could meet O.E.W.-K.’s
emotional and physical needs because she had showed no indication that she
could meet his needs.  Ms. Johnson, not Mother, paid for whatever was brought
to the office for him.  Before Ms. Johnson had moved to Texas, she had set up a
place in Washington for Mother and O.E.W.-K. to live, but Mother had failed to
take care of O.E.W.-K., and the police found him home alone.  Then, Mother
bruised O.E.W.-K. once she moved to Texas with him. 
Although
Ms. Johnson made it abundantly clear that she did not want CPS to take her
great-grandson from her,[10]
Groomer did not believe Ms. Johnson could protect O.E.W.-K. from emotional and
physical danger due to the interaction Groomer had witnessed between Ms.
Johnson and Mother.  Ms. Johnson knew that Mother had been abusive toward
O.E.W.-K., but she left him in Mother’s care anyway.  Groomer also had concerns
about Ms. Johnson’s ability to parent and to provide a stable home for
O.E.W.-K. based on the fact that Ms. Johnson believed that Mr. Johnson may have
inappropriately touched her daughter Rosalyn, yet continued to live with Mr. Johnson,
and Groomer had concerns about Ms. Johnson’s age and health conditions. 
Further,
Mother and Ms. Johnson were often disruptive to each other, to O.E.W.-K., to
the staff, to Groomer, and to others in the office during the visits, and Ms.
Johnson interrogated O.E.W.-K. during the visits.  Other times, they were very appropriate
during the visits.  Groomer testified that Ms. Johnson was also defiant, and the
day before the trial, Ms. Johnson was openly defiant toward Groomer while
O.E.W.-K. was present, and the security guard had to ask Ms. Johnson and Mother
to leave. 
Groomer
believed that it was in O.E.W.-K.’s best interest to have Mother’s parental
rights terminated due to the physical abuse, the physical neglect, and her
inability to care for his emotional, educational, and physical needs.  Groomer
said that Mother’s drug use and criminal history also played into her
recommendation that Mother’s parental rights should be terminated. 
Groomer
said that CPS’s permanency plan for O.E.W.-K. was adoption by his foster
parents, who had decided to adopt him.  Groomer said that O.E.W.-K.’s foster
parents were “very appropriate” with him; they set boundaries, they helped him
understand right and wrong choices, and they had appropriate consequences for
him.  They encouraged him in his music ability and provided outside activities.
 His foster dad took O.E.W.-K. fishing, and O.E.W.-K. was excited that he had
caught the biggest fish.  O.E.W.-K. had his own room at their house.  They
provided adequate nutrition for O.E.W.-K.  The foster parents’ home was very
stable; both parents had college degrees and stable employment, and they were
in the process of purchasing their home.  Their home was a safe place for
O.E.W.-K.; it was in a safe neighborhood and was extremely clean.  They were
very observant and knew what he was doing at all times. 
D.      Visits
Mother’s
visits were scheduled every Tuesday from 10:00 to 11:00 a.m.  Mother and Ms.
Johnson came to the visits regularly, but there were some visits that Ms.
Johnson did not attend.  The following are summaries of several visits as
observed by an investigator, the two caseworkers, case aides, an intern, and
the CASA volunteer.
          1.       After
the Removal on May 20, 2009
After
the removal, Jaco noted that when O.E.W.-K. saw Ms. Johnson and Mother at a
visit, he was really nervous and scared.  Once he was in the room with them, he
calmed down after a few minutes and hugged Mother, and they played and talked
for some time. 
          2.       May
22, 2009
Carolyn
Demmerritte, a case aide with CPS, testified that she supervised a visit with
O.E.W.-K., Ms. Johnson, and Mother on May 22, 2009.  O.E.W.-K. was nervous the
entire visit, twiddling his hand as he sat in the rocking chair.  Every five
minutes, he went to Demmerrite’s side, said he was ready to go, and asked her
to give him a hug.  Demmerritte hugged him and asked if he wanted to try to go
back and spend more time with Mother and Ms. Johnson, and he went back over. 
During
that visit, Ms. Johnson and Mother asked O.E.W.-K. about his bruises and then
asked if he remembered that he had fallen off the piano.  Mother tried to get
O.E.W.-K. to say that his foster father had been inappropriately touching him. 
Also
during the visit, Ms. Johnson told O.E.W.-K. that CPS and his foster parents
were brainwashing him.  Ms. Johnson also kept saying that the foster parents
were telling O.E.W.-K. that he could not come home. 
Mother
wanted to end the visit because O.E.W.-K. kept talking about his foster
parents.  Although the visit was scheduled to last an hour, it lasted only half
an hour. 
          3.       October
6, 2009
Sandy
Boatner, a CPS case aide, testified that she supervised a visit on October 6,
2009 with Mother, Ms. Johnson, and O.E.W.-K.  During that visit, Mother played
dodge ball with O.E.W.-K.  Boatner observed that Mother threw the ball fairly
hard and hit O.E.W.-K. such that he would say, “Ouch.  That hurts.”  Also
during the visit, Mother talked about “rolling her smokes.”  Mother used
profanity several times, and Boatner interrupted the visit twice to warn her to
watch her language. 
          4.       October
13, 2009
Amber
Thompson, who was formerly an intern in the conservatorship unit at CPS,
testified that she observed a visit between O.E.W.-K. and Mother on October 13,
2009.  During the visit, Mother and O.E.W.-K. talked about spelling and
numbers, and O.E.W.-K. apologized for not knowing his numbers.  Mother told him
that the reason CPS took him into custody was because he did not know his
numbers; but Mother said that it was “okay, not to worry about it [i.e., not
knowing his numbers]” because she had learned patience.  Mother also told
O.E.W.-K. that he was “brought up halfway good.” 
O.E.W.-K.
appeared to be scared of Mother and did not want to stay close to her.  Mother
asked him to stay close to her, and he did for a little while before wandering
away. 
During
the visit, Mother read a text message out loud and said, “Get off my nuts.” 
O.E.W.-K. moved away from her, and she said, “No, son.  I wasn’t talking to
you.  I don’t speak roughly to kids any more.”  However, Mother used profanity
twice during the visit. 
          5.       October
20, 2009
During
the visit on October 20, 2009, O.E.W.-K. told Mother and Ms. Johnson about
upcoming Halloween festivities, and Ms. Johnson “said in a loud, authoritative
voice that he should get down on his knees and ask God to forgive him because
he had worshipped Satan, and when [O.E.W.-K.] hesitated, she said, I mean it,
[O.E.W.-K.] Now.  Get down on your knees and ask God to forgive you.”  Groomer
interrupted the visit, put O.E.W.-K. in a room with the case aide, and told Ms.
Johnson and Mother that O.E.W.-K. had done nothing for which he needed to ask
forgiveness.  Groomer brought O.E.W.-K. back in the room, and Ms. Johnson asked
him if he was afraid of her; he held out his left hand and made a fist with his
right hand and hit his left palm and said he was when she did that to him.[11]  Ms. Johnson
asked to speak to Groomer’s supervisor, questioned Groomer’s credentials, and
shook her finger in Groomer’s face.  When Groomer asked Ms. Johnson not to
shake her finger in her face, Ms. Johnson held out her hand to Groomer’s face
and said, “I rebuke you, Satan.”
          6.       December
8, 2009
Boatner
also supervised a visit on December 8, 2009.  When Mother arrived, she gave
O.E.W.-K. a small hug.  Mother asked him to sit in her lap, but he would not;
he stood in front of her wringing his hands.  During the visit, Mother kept
closing her eyes and smiling a lot, which she normally did not do.  Boatner
asked the caseworker to come and observe Mother’s behavior, and the caseworker
asked Mother to take a drug test after the visit. 
          7.       December
15, 2009
Boatner
supervised a visit on December 15, 2009, at which Mother picked up O.E.W.-K.,
swung him around, and tried to put him on her lap, but he would not sit on her
lap and ignored her. 
          8.       December
29, 2009
During
the visit that Boatner supervised on December 29, 2009, Mother and Ms. Johnson
both asked O.E.W.-K. where a certain necklace was, and he got very upset and
started crying and wringing his hands.  O.E.W.-K. knocked on the observation
window, and Boatner came out, picked him up, and held him. 
          9.       January
12, 2010
Boatner
supervised a visit on January 12, 2010, during which O.E.W.-K. mentioned that
he had a girlfriend, and Mother said, “That’s my pimp.  Pimp ‘em high.  You go,
man.”  Also during that visit, O.E.W.-K. ate everything in his lunch except his
sandwich.  When Boatner pointed out to Mother that O.E.W.-K. needed to eat his
sandwich because lunch would be over when he returned to school, Mother responded
by saying, “[L]et him eat what he wants.” 
          10.     January
26, 2010
Boatner
observed a visit on January 26, 2010, during which O.E.W.-K. would not sit next
to Mother or Ms. Johnson for any length of time because he was afraid for them
to check his nose and “different things.”  Throughout the visit, O.E.W.-K. was constantly
wringing his hands.  Mother noticed O.E.W.-K.’s behavior and said that he had a
right to be afraid but that she did not hit anymore.  During the visit, Mother
sang “Penitentiary Bound” over and over and asked her son if he knew what it
meant; she told him, “[D]on’t worry about it, because you won’t have to worry
about it.”  Also during that visit, Mother flipped off Boatner and called
another caseworker a maggot.  Mother said, “[D---] it to hell,” “shit,”
and d[---].”  When Boatner interrupted the visit and told her not to say
those words, O.E.W.-K. cringed, and Mother responded, “That’s not cussing, . .
. would you like me to really cuss?” 
          11.     February
2, 2010
During
the February 2, 2010 visit, Mother mentioned that O.E.W.-K.’s grandfather was
coming and that they were going to the shooting range; O.E.W.-K. started
backing up, exhibiting that he did not like that Mother was talking about guns.

12.     February 9, 2010
Mother
was ten minutes late to the visit on February 9, 2010, which was scheduled to
last an hour.  Forty minutes into the visit, O.E.W.-K. knocked on the window
and was shaking all over; he put his arms around Boatner and wanted to go into
the observation room. 
          13.     March
23, 2010
During
the March 23, 2010 visit, Ms. Johnson told O.E.W.-K. a story about ants.  Ms.
Johnson said that a little ant was removed from his family and that he was
afraid.  The family missed him very much.  But there was a bad ant who hit and
smoked weed, and O.E.W.-K. acknowledged that Mother did that.  The mean ant
hurt the little boy, and O.E.W.-K. said that Mother did that to him.  Ms.
Johnson was shaking during the visit because she is a diabetic and needed to
eat, and Mother said that she was going to talk to her uncle Jamie about Ms.
Johnson’s not taking care of herself. 
          14.     Other
Visits Observed by Boatner
Boatner
recalled a visit during which Mother told O.E.W.-K that she was not going to
drink any more, but she subsequently went to a club on New Year’s Eve.  There
was also a discussion about O.E.W.-K.’s consumption of alcohol, and Mother said
that he needed to get his story straight: “I didn’t let you drink.  It was your
dad.”  On another occasion, inappropriate music was playing on Mother’s phone,
and a case aide from another case went in and asked Mother to turn it off; she
complied.
Boatner
said that Ms. Johnson ate candy during the visits and that Mother told her that
she needed to quit eating it because she was diabetic.
During
the visits that Boatner observed, she saw some tender moments between Mother
and O.E.W.-K.  Boatner said that O.E.W.-K. was very stiff around Mother but
that there were times when he kissed her.  They also had a routine where Mother
would sing a little song before they left.  O.E.W.-K. kissed and hugged Ms.
Johnson sometimes.  Boatner did not observe a difference in O.E.W.-K.’s
behavior when he was visiting with Mother as opposed to Mother and Ms. Johnson.
Boatner
also observed visits between O.E.W.-K. and Jamie Johnson.  Jamie came to two
visits and mostly observed; one visit was by himself and was “very appropriate”
in Boatner’s opinion.  O.E.W.-K. remembered Jamie and did not cringe or wring
his hands during the visit.
15.     Visits Observed by Letz
Letz
observed quite a few of the visits and saw that Mother brought school supplies
and school clothes for O.E.W.-K. 
          16.     Other
Visits Observed by Groomer
Ms.
Johnson, at other visits, was much softer-spoken when she spoke to O.E.W.-K.  She
urged O.E.W.-K. to follow the rules in his foster home to earn back his toys
that had been taken away, and this showed appropriate parenting.  However, she
laughed when he got in trouble.  Ms. Johnson made snide comments about
O.E.W.-K.’s haircut and made comments about his clothing being inappropriate—Goodwill
clothing, dirty clothing—to the point that it was obsessive.  There was rarely
positive reinforcement.
Ms.
Johnson asked O.E.W.-K. if he had been telling people that he wanted to go home
and told him that he needed to say it out loud.  She told him that she had
bought a new bedroom suite for him to have when he came home.  Groomer did not
think that conversation was appropriate because it was not a certainty that he
would be going home; plus, it confused him, caused him to be more homesick, and
resulted in behavior problems at school.  Groomer missed only two or three
visits from October through the time of trial, and during that time, O.E.W.-K.
did not say that he wanted to go home until the day before trial when he was
encouraged by others to talk about it.
Ms.
Johnson told Groomer that she and Mother would be bringing O.E.W.-K.’s lunches
to the visits, but after about three weeks, Ms. Johnson called and asked CPS to
have the foster mom provide O.E.W.-K.’s lunches because it was inconvenient for
Ms. Johnson to provide them.  However, during Groomer’s time as O.E.W.-K.’s
caseworker, she saw that Mother and Ms. Johnson brought Christmas gifts, socks,
and underwear.
Ms.
Johnson often fell asleep during visits.  Groomer saw Ms. Johnson eat four
glazed donuts and drink a non-diet soda during a visit, despite her diabetes.
O.E.W.-K.
was excited to see his great uncle Jamie during his visits.  O.E.W.-K. told him
that he knew he wanted him to come home.  Groomer noted that there appeared to
be a bond between O.E.W.-K. and Jamie.
          17.     Visits
Observed by CASA Volunteer
Marla
Bratton, a CASA volunteer, testified that during the twenty visits that she had
observed, she saw Mother at all but one visit, Ms. Johnson at about eight or
ten visits, and Jamie at two visits.[12]
 Bratton said that Mother’s mood fluctuated and that she sometimes talked about
things that were beyond O.E.W.-K.’s understanding, but Bratton could see that
Mother loved O.E.W.-K. even if she was not always appropriate with him.  Bratton
noted that when O.E.W.-K. and Mother were alone, he shared his lunch with
Mother, and sometimes he stood in front of her and moved his hands in circles
like he was nervous.  When Mother and Ms. Johnson were present, O.E.W.-K.
wanted to hug more, sat down rather than stood, and tried to sit in Ms.
Johnson’s lap.  Ms. Johnson was warm and friendly with O.E.W.-K., telling him
stories, hugging him, and telling him that she loved him.  Ms. Johnson acted as
a buffer between O.E.W.-K. and Mother.
          E.      Mother’s
Psychological Evaluation
Dr.
Nichelle Wiggins, a licensed clinical psychologist, testified that she
conducted a psychological evaluation on Mother on September 17, 2009.  Mother
called the morning of the evaluation and was very upset because she could not
find the office; she was short tempered and sharp in her tone of voice toward
Wiggins.  An older gentleman who drove Mother to the evaluation got on the
phone and eventually brought Mother to the office.  Mother said that she did
not know the man that had brought her to the evaluation and had just met him
that morning.  He sat down in the waiting room, while Dr. Wiggins dealt with
Mother, who was agitated.  In the process, Mother asked if she could take the
man home and then come back.  Dr. Wiggins asked Mother if she was comfortable
with that because Dr. Wiggins had planned to ask the man to leave.  Dr. Wiggins
was concerned that Mother had picked up a strange man, but Mother was not
concerned “in the least” because she said that she had Jesus, “And what me and
Jesus can’t handle, then me and my Smith & Wesson can.”[13]
 Mother left and returned without the man thirty minutes later.  Dr. Wiggins’s
initial impression of Mother was that she was in a manic state.  Mother’s moods
went up and down, so Dr. Wiggins knew that she was dealing with a person who
was emotionally fragile, who was hurting, who had been traumatized, and who was
scared.
Mother
had a very chaotic childhood.  She was physically abused by Ms. Johnson and her
mother and had lived with Ms. Johnson off and on throughout her life.  CPS
became involved when Mother’s little brother died.  CPS re-entered Mother’s
life when she was twelve because her caregivers––Ms. Johnson, her mother, and
her uncle––used drugs and alcohol.  Mother said that Ms. Johnson had used crack
cocaine but had been clean for about ten years.
Mother
completed the tenth grade and then quit because she “had better shi[-] to do.”  She
said that she regretted her decision to quit school and was going to try to
obtain a GED. 
Mother
said that she started smoking marihuana when she was twelve and would have continued
to smoke if not for CPS.  Mother said that marihuana helped calm her down.  Mother
did not believe that there was anything wrong with smoking marihuana.  Mother
said that she had tried to limit her smoking of marihuana to outside while
O.E.W.-K. was riding his bicycle, but she admitted that there were times when
she had smoked it inside the house while he was in bed in the room next to
hers.  She said that she did not smoke marihuana in front of him.[14]  Mother said that
O.E.W.-K. knew that she smoked marihuana and that he knew that it helped her
stay calm.  Mother said that O.E.W.-K. would say, “[A]t least my mommy doesn’t
smoke crack.”  She told Dr. Wiggins that she had last used marihuana in June
2009.
Mother
started using crack cocaine when she was nineteen and continued using until she
was about twenty-four (when O.E.W.-K. was four).  She still had some “crack
dreams” but claimed that she was no longer using.  Mother was arrested for
selling crack cocaine to an undercover officer in Washington in 1999.[15]  Mother said that
selling crack cocaine was part of her lifestyle back then and was one of the
ways that she had supported her habit.  Mother said that she had left Washington
and had moved to Texas so that she could get away from “that environment and
the temptations.”  Mother said that she knew that she could not take care of
O.E.W.-K. when she was using crack cocaine, so she asked Ms. Johnson to watch
OE.W.K. when she was active in her crack cocaine addiction.  Mother left
O.E.W.-K. with Jamie for nine months while she was using crack cocaine.  Mother
indicated that she had not used crack cocaine for about three years.
Dr.
Wiggins testified that in her opinion, Mother was experiencing crack dreams
because she was missing O.E.W.-K. and wanted to get away from the pain like she
had when she smoked crack cocaine.  Dr. Wiggins asked Mother if she had ever
gone to a Narcotics Anonymous meeting, and her answer was, “No.  For what?”
Mother
went to jail for trespassing in 2006 and had spent time in a residential
treatment center after running away from home as a juvenile.
Mother
said that she had been a member of the Hoova Crips gang.  But after she gave
birth to O.E.W.-K., she put aside her gang lifestyle and no longer associated
with the gang.
At
the time of the evaluation, Mother said that she was living with Ms. Johnson
and her grandfather who was not her biological grandfather.[16]
 Mother testified that Ms. Johnson had fibromyalgia, diabetes, and mixed tissue
disease and was on a number of different pain medications.  Mother moved from
Washington to Texas to help take care of Ms. Johnson, who was not in good
health, and to get away from the environment where she had been using drugs.  Mother
said that she has a great deal of love for Ms. Johnson, but that she prayed
every week that Ms. Johnson would die because she got on her nerves and
irritated her, but that she could not imagine life without her.  Mother believed
that Ms. Johnson was dying because of her medical issues.
Mother
described Mr. Johnson as the “baby raper” and said that he raped her and her
mother.  Mother said that Mr. Johnson began abusing her when she was about nine
years old and stopped two days shy of her sixteenth birthday after she put a
knife to his private area and told him that if he wanted to keep it, he had to
keep his hands off her.  When Mother was nine, she told Ms. Johnson about the
abuse, but Ms. Johnson did not take any action because she was on crack cocaine
and Mr. Johnson was her supplier.  Mother said that Mr. Johnson had admitted to
abusing her mother.
Mother
also said that the payee on her disability checks is the “baby raper.”[17]
 Dr. Wiggins asked Mother if having Mr. Johnson as the payee on her disability
checks put him in a position of control over her; Mother said that she spoke to
him only once a month when she needed money and that even though he had done
bad things to her, he had some redeeming qualities like teaching her to read
and not taking advantage of her financially.
Mother
said that her support system consisted of “God, me, myself, and I.”  The only
people that Mother trusted 100% were herself and God. 
Mother
said that Jean K. is O.E.W.-K.’s father.  She said that they fought with each other;
they cursed at each other and slapped one another.[18]
Mother
referred to her son as “Daddy” nine out of ten times.  Dr. Wiggins said that it
sends a “very confusing message” to a child who does not have a daddy in his
life to call him that.  Dr. Wiggins said that with Mother having gone through
her own abuse, she could be projecting some of her own issues onto O.E.W.-K.
Mother
wanted O.E.W.-K. to sleep with her when she had a bad dream and would go and
get him “to make sure she could protect him.”  Mother said that she had limits
on when O.E.W.-K. could not sleep with her, such as when she was on her
menstrual cycle and when she wanted to watch television and felt that the show
was inappropriate for him.  Mother said that O.E.W.-K. slept with her nine out
of every ten nights and that once he turned eight, he would be too old to sleep
with her.  Dr. Wiggins testified that it could be harmful for Mother to sleep
in the same bed every night with her six-year-old son because it does not teach
the child boundaries.[19]  Dr. Wiggins said that
O.E.W.-K. might pick up Mother’s fears and anxieties and start to develop an
enmeshed relationship with Mother because there was no boundary of where the
child started and ended and where the parent started and ended.  For example,
O.E.W.-K. tried to defend Mother when the monitor interrupted a visit due to
Mother’s behavior.[20]
Mother
told Dr. Wiggins that people thought she was crazy and that was probably why
she was receiving her disability check.  Mother also told Dr. Wiggins that she
had been diagnosed with bipolar disorder and had been prescribed Depakote at
ages thirteen, fifteen, and seventeen but that she had refused to take the
medication because she believed that it could poison her body.  She had seen television
commercials with attorneys telling people to call a phone number if they had
taken certain medications that had been found to be harmful; Mother was afraid
that would be the case with Depakote.  Mother said that if the doctors were
going to put medications in her that poisoned her body, she might as well use
illegal drugs.
Mother
admitted that she had cut a girl in the face with a knife because “the girl
kept yapping her mouth.”  Mother also admitted that she had thoughts of harming
Ms. Johnson and Mr. Johnson.  Mother had thought about putting bleach in Ms.
Johnson’s insulin to harm her approximately one year prior to the trial.  When
Mother was sixteen, she had planned to kill Ms. Johnson by lighting the house
on fire because Ms. Johnson was getting on her “motherf[---]ing nerves”; Mother
poured lighter fluid around the house and tried to light it, but it would not
burn.  Mother told Dr. Wiggins that every time she sees the “baby raper,” she
thinks of killing him[21] but does not act on
those thoughts because she does not want to go prison and because she thinks of
O.E.W.-K. 
Mother
admitted to having had suicidal thoughts and to having engaged in
self-mutilation.[22]
 Mother said that she had attempted suicide by overdosing approximately ten
years prior to the trial.  Mother had experienced homicidal thoughts since the
attempted homicide when she was sixteen, but she had not acted on them since
then.[23]
 Mother said that she used razor blades to self-mutilate, that she
self-mutilated to relieve the stress that was inside her body, and that the
last time she had engaged in that behavior was mid-August 2009. Mother told Dr.
Wiggins that she did not want O.E.W.-K. to self-mutilate. 
Mother
told Dr. Wiggins that her gun is her “wife,” that she keeps her gun in the
closet, and that O.E.W.-K. saw her unloading it once.  She told O.E.W.-K. that
she would “break his neck” if he ever touched it.  Mother also stated that she
would not hurt her son and that she had realized that she had inflicted verbal
abuse on O.E.W.-K. 
Mother
told Dr. Wiggins that she felt that one of O.E.W.-K.’s teachers did not respect
her because she had asked the teacher not to touch her child, but O.E.W.-K. came
home with a star drawn on his hand by the teacher.  Mother said that the
pentagram went against her religion, and so she went to the school and
confronted the teacher in the school auditorium.  Mother called the teacher
several names and then choked her.  Mother admitted that choking the teacher
was wrong but said that she would do it again “[i]n a hot second, a New York
minute” if the teacher touched O.E.W.-K. again.  Mother admitted that she
smothered O.E.W.-K. and was overly protective of him to the point where she did
not want people to touch him, to help wipe his nose, or to hug him unless they
first received her consent. Mother said that she was “strange about [her] child,”
that she feared that somebody would hurt him, that she was afraid of what her
reaction would be, and that she would “catch a case” if someone touched him
inappropriately.[24]
 Dr. Wiggins was concerned that Mother was so overprotective that she became
violent at the slightest thing regarding O.E.W.-K.  Dr. Wiggins gave Mother
some alternatives for handling a situation in which a teacher might put a
sticker on O.E.W.-K., but Dr. Wiggins said that Mother had her own ideas of
what she needed to do to protect her child and that in the moment, she would
act based on what she believed and thought was correct. 
Mother
said that CPS was involved in her life as a result of false allegations that
she had physically abused O.E.W.-K.  Mother admitted that she had spanked him
with a belt because he had been watching television instead of practicing his
numbers.  Mother said that she left marks on his legs, that they were noticed
at school, and that CPS was contacted.
Mother
was very concerned that O.E.W.-K. was not being well taken care of in foster
care and admitted that she had used profanity in front of O.E.W.-K. at a visit
after a monitor came in and told her not to question O.E.W.-K. about his
clothing.  Mother told the monitor, “You maggot-mouthed b[----].”  Mother used
profanity throughout the day and told O.E.W.-K. that his clothes looked “like
shit.”  Dr. Wiggins was not sure if O.E.W.-K. was reacting to the language or
more to the fact that he felt Mother was being attacked; he responded, “Look. 
That’s my momma.  She can say what she wants to say to me.” 
Dr.
Wiggins conducted personality testing on Mother and, based on the results of that
testing, had concerns about Mother’s mental health and personality traits.  Dr.
Wiggins said that what stood out most was that Mother had experienced chronic
mental health issues since she was a teenager and had not been willing to take
the necessary steps to bring stability to her emotional functioning.  Dr.
Wiggins testified that Mother was “very illogical, irrational, and really did
not understand the impact of her decision and behaviors on other people.”  Dr.
Wiggins said that Mother had major frustration issues and could become very
aggressive, so it was important to have very strong boundaries with her.  Dr.
Wiggins also testified that Mother had exhibited violent mood swings, had engaged
in self-mutilation, and had abused drugs, which Dr. Wiggins equated to “a
chronic pattern of mental instability.”  Dr. Wiggins believed that Mother
needed treatment for her bipolar disorder and for post-traumatic stress
disorder.  Dr. Wiggins stated that the chances of Mother’s relapsing into drug
use was high if she did not receive treatment for her mental health issues and
that relapse chances remained high regardless because Mother had been abusing
substances for a large part of her life. 
Dr.
Wiggins recommended to CPS that Mother obtain a psychiatric consultation for
medication.  Dr. Wiggins believed that there was a possibility that Mother’s
mood swings and emotions could be controlled by medication and that she would
benefit from participating in MHMR and individual counseling, anger management,
outpatient drug treatment program, Narcotics Anonymous, random drug testing,
parenting classes, and family counseling with her son and by obtaining her GED.
 Dr. Wiggins was concerned that Mother had expressed a strong unwillingness to
even consider, much less act upon, the recommendations that were made.[25]
 Mother was willing to talk about things in counseling as long as it was on her
terms because she had a strong need for control, which was not unusual for
someone who had been abused. 
          Mother
told Dr. Wiggins that she was abused by her mother and Ms. Johnson, and Mother’s
responses indicated that she knew the difference between a spanking and abuse.  Mother
had already started taking parenting classes when she met with Dr. Wiggins and
said that she no longer saw a need to spank O.E.W.-K. because she had learned
other ways of effectively intervening.  However, Dr. Wiggins testified that
Mother did not have effective parenting tools in place to take care of
O.E.W.-K. emotionally, physically, and financially.  Mother told Dr. Wiggins
that she depended heavily on her grandparents because everything that she and
O.E.W.-K. needed was “right there.”  Mother seemed conflicted because she
needed her grandparents, but she did not want to need them.  Emotionally,
Mother was not in a place to be able to make good decisions for herself or
O.E.W.-K.  Dr. Wiggins was concerned that Mother was using O.E.W.-K. as a
comfort, that he was her reason for living, and that she was losing herself in
him, which was not effective parenting.  Dr. Wiggins said this could create
issues in a parent-child relationship.
With
regard to whether Mother could be an active participant in O.E.W.-K.’s life,
Dr. Wiggins said that she could if certain conditions were met.  Dr. Wiggins
testified that she had “put those recommendations in there” to help Mother
establish stability and the ability to parent effectively while unsupervised.  Dr.
Wiggins said that if Mother was not able to meet “those conditions,” then she
would be very concerned.  Dr. Wiggins said that Mother could participate in
O.E.W.-K.’s life with supervision if someone set boundaries with her.  Dr.
Wiggins admitted that she knew when she wrote her recommendations that the
prognosis was poor that Mother would follow through completely because people
like Mother “don’t see people as trying to help them.”  When asked whether she
thought someone who did everything that CPS asked and then CPS still went
forward with suit to terminate her parental rights would be distrustful of the
system, Dr. Wiggins said that it is a judgment call, but she recommended looking
at whether the person was demonstrating emotional stability, good
decision-making, the ability to live independently, and the ability to participate
in services on her own. 
It
concerned Dr. Wiggins that a request had been made for O.E.W.-K. to go back and
live in the house with Mother and his grandparents because Mother believed she
needed to have her gun and her knife to be able to protect her son and because
there was a sexual abuse perpetrator in the home.  Dr. Wiggins said that Ms.
Johnson had failed to protect Mother in this setting.  Dr. Wiggins was also
concerned about what would happen if CPS was out of the picture because the
threat of a urinalysis was the only thing keeping Mother from using marihuana.[26]
 Dr. Wiggins opined that it would be too difficult for Mother to maintain
stability in an environment where she had to constantly see the man whom she
calls the “baby raper” and Ms. Johnson, whom she loved but at times wished was
dead.  Dr. Wiggins described the environment as “a constant state of conflict
and tension and problems.”  Dr. Wiggins had a great deal of concern about a
child being in an environment that was as closed off from the outside and as
dysfunctional as Mother had described. 
Dr.
Wiggins said that her interaction with Mother on the day of trial was much like
how Mother had presented on the day of the evaluation:  she was crying one
minute, angry the next, and then gave Dr. Wiggins a hug.  Mother made a couple
of inappropriate comments to people in the courtroom and acted socially
deficient with her comments.
F.       O.E.W.-K.’s
Therapy
Dr.
Mark DeYoung, a licensed marriage and family therapist, testified that as of
the time of the trial, he had conducted thirty-five therapy sessions with
O.E.W.-K.  O.E.W.-K. met with Dr. DeYoung weekly for forty-five minutes to an
hour.  Dr. DeYoung also worked with the foster family to help with O.E.W.-K.’s
behavior at school and at home.  Dr. DeYoung testified that he was not asked by
TDFPS to work with the biological family. 
Early
on during the therapy sessions, O.E.W.-K. mentioned that Mr. Johnson had hurt
Mother and Ms. Johnson, but O.E.W.-K. did not elaborate on this.
Dr.
DeYoung understood that O.E.W.-K. had lived with Mother’s uncle Jamie in Seattle
for two and a half years.  O.E.W.-K. did not indicate anything negative in his
relationship with Jamie; O.E.W.-K. was positive in discussing his great uncle.
On
numerous occasions, O.E.W.-K. mentioned that Mother and Ms. Johnson had yelled
and screamed at each other, both when he was at home and during the visits.  Dr.
DeYoung said that he was not sure whether Ms. Johnson would be able to manage
situations involving Mother because she had been present at the home when
Mother mistreated O.E.W.-K. and was present at the visits when yelling and
screaming had occurred.  Additionally, Dr. DeYoung said that it can be bad for
a child to be in a household where adults argue and raise their voices.
O.E.W.-K.
told Dr. DeYoung about an incident in which he struggled with his math
homework, and Mother spanked him with a belt.  However, O.E.W.-K. said that
Mother told him to misbehave in the classroom and to disobey his teachers. 
During
several of the therapy sessions, O.E.W.-K. shared that Mother had talked to him
about having a gun and about the fact that she would not hesitate to use it to
threaten others; O.E.W.-K. said that was very frightening to him. O.E.W.-K.
also talked about Mother’s showing him a gun and asking him to touch it and
hold it and said that was also very frightening to him.  O.E.W.-K. told Dr.
DeYoung that Mother carried weapons on her at all times.
On
November 4, 2009, O.E.W.-K. told Dr. DeYoung that Ms. Johnson told him that he
would be coming home soon and that he was not to tell anyone. Around the time
of the December 3, 2009 session, Mother took O.E.W.-K. to the bathroom and told
him this again.  Around the time of the January 6, 2010 session, O.E.W.-K. told
Dr. DeYoung that he had lived with an uncle (his great uncle Jamie) in Seattle
and also that Ms. Johnson told him that he was moving to Seattle to live with
his great uncle.  O.E.W.-K. said that when Mother and Ms. Johnson told him
where he was going to live, it made him feel like he had jellybeans in his
brain and that he felt all jumbled up.  Dr. DeYoung sensed that O.E.W.-K. was
confused.  Dr. DeYoung thought that Mother’s and Ms. Johnson’s remarks
contributed to O.E.W.-K.’s overall sense of uncertainty.
During
the February 10, 2010 therapy session, O.E.W.-K. drew a picture of his
biological family and said that in the picture, Mother and Ms. Johnson were
screaming and yelling at each other.  Also during that session, O.E.W.-K. drew
a picture of his foster family at a restaurant, and he talked about the fun
that they had while they were there. 
During
the March 10, 2010 therapy session, O.E.W.-K. said that Mother had smoked a
pipe and had blown smoke into his nostrils. 
Dr.
DeYoung saw O.E.W.-K. after visits with Mother and Ms. Johnson, and he was
nervous and anxious, his speech was difficult, he had a hard time expressing
himself, and he visibly shook when he discussed the visits.
Dr.
DeYoung’s primary concern was that all children need a safe place to be, and
O.E.W.-K. “doesn’t seem to feel as if being with his mother or his [great-]
grandmother feels safe to him, because he feels nervous when they argue or
fight.  He’s afraid of what might happen.  He’s afraid of being hit again,
which is a phrase he’s used.”  Dr. DeYoung did not believe that O.E.W.-K. would
benefit by having family therapy with his biological family because, in Dr. DeYoung’s
opinion, O.E.W.-K. was traumatized by the simplest of visits at the CPS office.
Dr. DeYoung testified that family therapy sessions have the potential to be
contentious and are more complex than a visit at the CPS office; because the
family was struggling to manage in the CPS office, his concern was that they
would struggle more with managing a family therapy session.
Although
Dr. DeYoung testified that O.E.W.-K. could articulate the distinction between
what was truth and what was not and could tell stories and events in a
consistent manner, Dr. DeYoung said that it would be emotionally traumatic for
six-year-old O.E.W.-K. to testify in front of his family about his feelings.
G.      Family
Testimony at Trial
          1.       Ms.
Johnson’s Testimony
Ms.
Johnson testified that she had been married three times.  She admitted that she
had used cocaine when she was younger but that she was sixty-four years old at
the time of trial and did not use drugs nor think about them.  She said that
she had no idea when she had last used cocaine; she said that Mother had said
it had been seventeen years and that others had said that it had been ten
years.  She said that she remembered writing a letter on July 10, 2009 to the
court, the lawyers, Channel Four News, and Dr. Phil, but she did not recall
that she had stated in the letter that she had used drugs in 1994.  She said
that she had talked to O.E.W.-K., and he knew that drugs were bad.[27]
 She denied that Mr. Johnson had supplied her with crack cocaine. 
Ms.
Johnson said that Mother had told her that Mr. Johnson did something inappropriate
to her and then that he did not.  Ms. Johnson said that Mother had done the
same thing regarding a young man that had lived in their neighborhood when they
lived in California.  Ms. Johnson took the young man to court, he spent time in
jail, and then Mother said that he did not molest her.  Thus, Ms. Johnson did
not believe that Mother’s allegations about Mr. Johnson were true.[28]

Ms.
Johnson said that Mother “has her issues,” which Ms. Johnson explained as
Mother’s tendency to teach O.E.W.-K. “nonsense stuff.”  Ms. Johnson said that
Mother listened to inappropriate music and that O.E.W.-K. learned the lyrics,
that she did not dress O.E.W.-K. appropriately, and that she forgot to buy
diapers when he was an infant.  Because Ms. Johnson loved O.E.W.-K. with all of
her heart and wanted to protect him from mental and physical abuse, she kept
O.E.W.-K. with her while she lived in Washington.  Mother did what she wanted
to do, and if she wanted to see O.E.W.-K., she came by Ms. Johnson’s house to
visit him. 
Before
Ms. Johnson left Seattle to move to Texas, she set up Mother with an apartment
and gave “her every single thing that she would need to be a mother.”  Ms.
Johnson knew that Mother would not be able to take proper care of O.E.W.-K.,
but Ms. Johnson still left him with Mother, hoping that she would do the right
thing.  Because Mother had custody of O.E.W.-K., Ms. Johnson could not bring
him to Texas.  Plus, Ms. Johnson rationalized that Jamie was still in
Washington and that she could call him to check on Mother and O.E.W.-K.  In
late June 2006, the police in Washington called Ms. Johnson in Texas and asked
whether there was anyone in Seattle who could take care of O.E.W.-K., and Ms.
Johnson told them Jamie was there.  Ms. Johnson learned that law enforcement
had found two-year-old O.E.W.-K. alone in the home that she had set up for him
and Mother.  Although Ms. Johnson had never seen Mother use crack cocaine, Ms.
Johnson believed that Mother was using crack cocaine in June 2006.
Ms.
Johnson did not believe that Mother should hit people.  Ms. Johnson said that
Mother could have involved her in the situation at the school and that she
would have assisted Mother with talking to the teachers in an appropriate
manner.  Ms. Johnson believed that Mother would obey her; even though she might
“start talking crazy,” she still did what Ms. Johnson asked of her.
Ms.
Johnson said that the visits took place every other Tuesday and that she
insisted on seeing O.E.W.-K. because he is her heart.  Ms. Johnson said that
O.E.W.-K. was able to communicate his thoughts to her and that she then
directed him in the way that he should go.  Ms. Johnson said that during one of
the visits, they did not have much to do because Mother had walked out.  Ms.
Johnson asked O.E.W.-K. what he wanted to do, and he requested to hear a story
about ants.  Ms. Johnson told O.E.W.-K. a story about a little ant, and the
moral of the story was that he needed to learn forgiveness so that he could
forgive Mother. 
During
the visit on December 22, 2009, O.E.W.-K. told everyone that he wanted to come
home.  Ms. Johnson told him that he needed to tell his foster parents that.  Ms.
Johnson said that during her visit with O.E.W.-K. the day before the trial, he
told Mother that he was going home and would be living with Ms. Johnson.  Ms.
Johnson said that O.E.W.-K. told her and his guardian ad litem that he wanted
to go home, and Ms. Johnson told him to pray.  Ms. Johnson said that she had
seen CPS lie and that she had seen them stop O.E.W.-K. from saying that he wanted
to go home. 
At
the time of trial, Mother was living in a motel, and Ms. Johnson was assisting
her with her incidental expenses, which totaled fifty or sixty dollars a month.
 Ms. Johnson said that Mr. Johnson’s money pays for Mother’s motel room.[29]
Ms.
Johnson said that she gave Mother an opportunity to take care of O.E.W.-K. on
her own and that Mother promised that she would care for O.E.W.-K., but did
not.  In Ms. Johnson’s opinion, Mother “is not a suitable parent, and she’s
done all the things that I’ve seen, including that picture [showing a bruise on
O.E.W.-K.’s face] . . . . [I]t broke my heart, because [O.E.W.-K.] doesn’t need
to be hit.”[30]  Ms. Johnson said that
she would no longer allow Mother and O.E.W.-K. to live with her at the same
time, that she had to choose between them, and that she chose O.E.W.-K.  Ms.
Johnson believed that O.E.W.-K. should be with her and Jamie.[31]

          2.       Jamie’s
Testimony
Jamie
Johnson, Mother’s uncle, testified that he had raised O.E.W.-K. from the time
he was about two years old until he was about five and a half.  Jamie did not
see Mother using drugs during that time but said that Mother was “going through
some issues” and was unable to care for O.E.W.-K. emotionally and financially.  Jamie
potty-trained O.E.W.-K. and enrolled him in private school, and he did well in
school while he lived with Jamie.  Jamie said that no referrals were made when
O.E.W.-K. lived with him in Washington.  During that time, Jamie developed a significant
bond with O.E.W.-K. 
Jamie
let Mother move O.E.W.-K. from Washington to Texas because she was coming to
live with Ms. Johnson and because he thought she would be able to help Mother
with O.E.W.-K.  Jamie testified that he had realized that he should have kept
O.E.W.-K. himself.
Jamie
said that he had moved to Texas to help Ms. Johnson and to help with
O.E.W.-K.’s situation.  At the time of trial, he was living with Ms. Johnson.  He
said that O.E.W.-K. had his own room at Ms. Johnson’s house before he was
removed and that even with Jamie, his wife, and his child, there was still
plenty of room for O.E.W.-K.  Jamie agreed with the home assessment’s statement
that the family had demonstrated its ability to meet all of O.E.W.-K.’s
financial needs.
Jamie
admitted that he had a past criminal record but said that none of the charges
were drug related.  Jamie was convicted in 2000 in Washington for the misdemeanor
of domestic violence.  Jamie said that he pleaded no contest to the charge, but
he said that he merely took his old girlfriend’s car.  Jamie was convicted of
two counts of felony burglary of a habitation for going into the house of his
mother’s previous boyfriend or fiancé.  He was charged with driving without a
license in 2001.  Jamie was not aware whether his wife had been convicted of
the misdemeanor of drug paraphernalia in March 2008 or whether she had been
found guilty of a Class C felony in 2005 for controlled substance
manufacturing, delivery, or possession.  When asked whether his wife had any
problems with drug use, he said that he did not know of any.
Jamie
testified that if O.E.W.-K. was placed back in Ms. Johnson’s home where Jamie
lived, he would use all of his financial abilities to help support O.E.W.-K.
and would also protect him in any way possible, including protecting him from
Mother.
          3.       Mother’s
Testimony
Mother
was incarcerated only once and that was when she was eighteen.  Mother
explained that her two convictions that contained the initials “VUCSA” stood
for “Violation of the Uniform Controlled Substance Act.”  One of the
convictions was for cocaine, and the other one was “VUCSA Burn.”  Mother said
that she was not sure what “Burn” stood for but that it could mean that the
drugs were tested and did not contain enough to test.  Mother was found guilty
of that charge.
Mother
did not remember the last time that she had used crack cocaine; she had not used
it since she moved to Texas.  Mother no longer smoked marihuana.  She admitted
that she used to smoke marihuana but said that O.E.W.-K. never saw her smoke marihuana
and that she never blew smoke in his mouth or nose.  When Mother was asked
whether she had ever seen anyone blow smoke in O.E.W.-K.’s mouth or nose, she
said, “I haven’t seen anybody get that close to my child without having to deal
with me.”  Mother said that Dr. Wiggins’s report was not accurate if it stated
that she told her that she used to get high in her room at Ms. Johnson’s house.
 Mother said that the only thing she has done in her room is drink beer and
that she is twenty-eight years old, which is old enough to drink.  Mother also said
that she did not smoke a marihuana cigarette while O.E.W.-K. was in the car
parked outside the school.  Mother said,
First off, when I did
smoke marihuana, I never roll[ed] joints.  That’s point number one.  I roll my
own cigarettes, and they’re special blend, so that’s probably the smell he [the
physical education aide] smelled.  Second of all, I’m not allowed to smoke
marihuana in my grandmother’s car, I wouldn’t have the keys right now.  I don’t
do drugs in my grandmother’s car.
 
Mother
stopped socializing with her gang associates when she became a mother.
Mother
said that she left O.E.W.-K. alone when he was two and a half years old and
went next door to her girlfriend’s house.  Mother said that she now knows that
was not appropriate.  Mother said that she was not using crack or ecstasy
during those days but that she was smoking marihuana.  Mother said that she
gave O.E.W.-K. to her uncle (Jamie) because she knew that she was not being the
best parent that she could be.  Mother said that it is not true that Jamie had
O.E.W.-K. for two and a half years.  Mother said that O.E.W.-K. lived with her
until he was three; that she and Ms. Johnson paid for his fourth birthday, which
he celebrated with Jamie; and that by age five, he was back with her because
she and Ms. Johnson paid for his fifth and sixth birthday parties.
Mother
testified that O.E.W.-K. was removed from her care on May 20, 2009, because she
had spanked him with a belt.  Since then, Mother had learned in her parenting
class that all physical contact with a child is inappropriate. Mother said that
she had learned that she could take a child’s toys, put a six-year-old child in
a six-minute timeout, explain why the child was being put there, and “then you
go on from there.”  Mother said that she would never again spank O.E.W.-K. with
a belt and that she regretted spanking O.E.W.-K. with a belt, now that she
knows that it is wrong. 
Mother
agreed that the June 16, 2009 service plan that she had signed required her to
take a psychological evaluation and a psychosocial assessment, to participate
in individual counseling[32] and parenting classes,
to pass the psychiatric evaluation, to complete random drug testing, to refrain
from physical discipline, to refrain from bringing any type of weapons to the
CPS office, to maintain safe and stable housing, and to complete a drug
assessment.  Mother said that she had completed a psychosocial assessment, a
psychological evaluation, parenting classes, and anger management, as well as
ten of twelve individual counseling sessions.[33]  Mother also said that
she took five drug tests.
Mother
agreed that in a very short time frame she can go from being angry to being sad
to being happy; Mother said that it depends on how she is provoked. Mother said
that at her MHMR appointment, she had been diagnosed as bipolar and was
prescribed medication but had not taken it.  Mother said that she could
understand why her not taking medication might cause “you people” concern.  Mother
said that she had a follow-up appointment coming up with MHMR on April 10, 2010
(after the trial).  Mother said that her initial appointment was in November
and that they scheduled her follow-up for a Tuesday, so she had to reschedule because
that was the day that she visited O.E.W.-K.  Mother said that she would still
go to the appointment even if the court decided to terminate her parental
rights and that if MHMR recommended medication, she would give it a try.  However,
Mother said that she feared medication because over the years, she had put
enough poison in her body “to get everybody in this [court]room high” and
feared that medication would continue to poison her body.
Mother
said that she could not remember when she had last self-mutilated, but the last
time she had thought about doing it was when Letz was her case worker.  Mother
said that it had been ten years, if not longer, since she had attempted
suicide.
With
regard to the assault on O.E.W.-K.’s teacher, Mother said that the teacher
refused to press charges.  On the first day of school, Mother and Ms. Johnson
told O.E.W.-K.’s teacher “how apprehensive and protective and somewhat
smothering” Mother was about O.E.W.-K. and that she did not want the teacher to
touch him.  Mother told the teacher, “[Y]our job is to teach him his ABC’s and
1-2-3’s, and the way I give him to you is please, that’s how I want him back.”[34]
 Mother said that the teacher nodded that she understood.  One day the teacher
put a star on O.E.W.-K.’s hand, and Mother said that it was against her
religion to put anything on the hand or forehead.  Mother admitted that she
choked O.E.W.-K.’s teacher and that it was “wrong to put your hands on people.”
Mother
said that Mr. Johnson is the payee for her Social Security disability checks
because that was the way Ms. Johnson set it up when Mother was a child.  Mother
received $664 per month in disability benefits. 
When
Mother lived with Ms. Johnson, she paid $300 per month for rent, utilities, and
cable.  Mother did some non-excruciating chores like emptying the dishwasher,
vacuuming the floor, and occasionally O.E.W.-K.’s laundry.  Mother testified
that as of the time of trial, she was not living with Ms. Johnson.  When Mother
was asked about her tendency to move back in with Ms. Johnson after having
moved out, Mother said, “Oh, I’m going home,” indicating that she would move
back in with Ms. Johnson at some point in the future.
Mother
said that it was not necessarily true that O.E.W.-K. was traumatized by her visits
at CPS.  Mother said that she had never told O.E.W.-K. that his father was
worthless or “a piece of shit,” but she had called him a “sorry-ass” in front
of O.E.W.-K.  Mother knew that others probably thought that was not appropriate
to tell O.E.W.-K. that, but she said that she would never lie to O.E.W.-K. if
he asked her about his father. 
          Mother
said that she could see why there were concerns about her parenting O.E.W.-K.  She
said that there were problems before and that she was sure that there would be
problems in the future because there were always problems but that she loved
O.E.W.-K. more than she ever thought she could and that she had left her home
so that he could come home.  
          H.      Recommendations
Letz,
the first caseworker, did not feel that returning O.E.W.-K. to his home would
have been safe for him. 
Bratton,
the CASA volunteer, testified that she knew that the family loved O.E.W.-K.
very much, but she was concerned about his safety and was not sure that they
would be able to protect him. 
Groomer
believed that it was in O.E.W.-K.’s best interest to have Mother’s parental
rights terminated.  
Ms.
Johnson believed that O.E.W.-K. should be with her and Jamie. 
Mother
believed that it was not in O.E.W.-K.’s best interest to be placed outside of
their family because they would teach him his identity and values.  Mother
therefore wanted O.E.W.-K. to live with Ms. Johnson if the trial court terminated
Mother’s parental rights. 
I.        Trial
Court=s Disposition
After
hearing the above evidence, the trial court signed a judgment terminating Mother=s
parental rights to O.E.W.-K.  The trial court found by clear and convincing
evidence that Mother had knowingly placed or knowingly allowed the child to
remain in conditions or surroundings which endangered the physical or emotional
well-being of the child; that Mother had engaged in conduct or knowingly placed
the child with persons who engaged in conduct which endangered the physical or
emotional well-being of the child; and that termination of the parent-child
relationship with Mother was in the child’s best interest.  This appeal followed.
III.  Legally and Factually Sufficient Evidence of
Conduct and Environmental Endangerment
to Support Termination Order
 
In
her first through fourth issues, Mother argues that there is legally and
factually insufficient evidence to establish the termination grounds under
section 161.001(1)(D) and (E).[35]  Specifically, Mother
argues that there was insufficient evidence to establish physical abuse, that
Mother worked her service plan, and that she reformed her life out of love for
her son.
A.      Burden
of Proof and Standards of Review
          A
parent’s rights to “the companionship, care, custody, and management” of his or
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).  “While parental
rights are of constitutional magnitude, they are not absolute.  Just as it is
imperative for courts to recognize the constitutional underpinnings of the
parent-child relationship, it is also essential that emotional and physical
interests of the child not be sacrificed merely to preserve that right.”  In
re C.H., 89 S.W.3d 17, 26 (Tex. 2002).  In a termination case, the State
seeks not just to limit parental rights but to erase them permanently—to divest
the parent and child of all legal rights, privileges, duties, and powers
normally existing between them, except for the child’s right to inherit.  Tex.
Fam. Code Ann. § 161.206(b) (Vernon 2008); Holick v. Smith, 685
S.W.2d 18, 20 (Tex. 1985).  We strictly scrutinize termination proceedings and
strictly construe involuntary termination statutes in favor of the parent.  Holick,
685 S.W.2d at 20–21; In re R.R., 294 S.W.3d 213, 233 (Tex. App.—Fort
Worth 2009, no pet.).
          In
proceedings to terminate the parent-child relationship brought under section
161.001 of the family code, the petitioner must establish one ground listed
under subsection (1) of the statute and must also prove that termination is in
the best interest of the child.  Tex. Fam. Code Ann. § 161.001 (Vernon
Supp. 2010); In re J.L., 163 S.W.3d 79, 84 (Tex. 2005).  Both elements
must be established; termination may not be based solely on the best interest
of the child as determined by the trier of fact.  Tex. Dep’t of Human Servs.
v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987).
          Termination
decisions must be supported by clear and convincing evidence.  Tex. Fam. Code
Ann. §§ 161.001, 161.206(a) (Vernon 2008).  Evidence is clear and
convincing if it “will produce in the mind of the trier of fact a firm belief
or conviction as to the truth of the allegations sought to be established.”  Id.
§ 101.007 (Vernon 2008).  Due process demands this heightened standard because
termination results in permanent, irrevocable changes for the parent and child. 
In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002); see In re J.A.J.,
243 S.W.3d 611, 616 (Tex. 2007) (contrasting standards for termination and
modification).
          In
evaluating the evidence for legal sufficiency in parental termination cases, we
determine whether the evidence is such that a factfinder could reasonably form
a firm belief or conviction that the grounds for termination were proven.  In
re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005).  We review all the evidence in
the light most favorable to the finding and judgment.  Id.  We resolve
any disputed facts in favor of the finding if a reasonable factfinder could
have done so.  Id.  We disregard all evidence that a reasonable
factfinder could have disbelieved.  Id.  We consider undisputed evidence
even if it is contrary to the finding.  Id.  That is, we consider
evidence favorable to termination if a reasonable factfinder could, and we
disregard contrary evidence unless a reasonable factfinder could not.  Id.
          We
cannot weigh witness credibility issues that depend on the appearance and
demeanor of the witnesses, for that is the factfinder’s province.  Id. at
573, 574.  And even when credibility issues appear in the appellate record, we
defer to the factfinder’s determinations as long as they are not
unreasonable.  Id. at 573.
            In
reviewing the evidence for factual sufficiency, we give due deference to the
factfinder’s findings and do not supplant the judgment with our own.  In
re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006).  We determine whether, on the
entire record, a factfinder could reasonably form a firm conviction or belief
that Mother violated section 161.001(1)(D) or (E) and that the termination of
the parent-child relationship would be in the best interest of the child.  Tex.
Fam. Code Ann. § 161.001; C.H., 89 S.W.3d at 28.  If, in light of
the entire record, the disputed evidence that a reasonable factfinder could not
have credited in favor of the finding is so significant that a factfinder could
not reasonably have formed a firm belief or conviction in the truth of its
finding, then the evidence is factually insufficient.  H.R.M., 209
S.W.3d at 108. 
          B.      Law
on Endangerment
          Endangerment
means to expose to loss or injury, to jeopardize.  Boyd, 727 S.W.2d at
533; In re J.T.G., 121 S.W.3d 117, 125 (Tex. App.—Fort Worth 2003, no
pet.); see also In re M.C., 917 S.W.2d 268, 269 (Tex. 1996).  To prove
endangerment under subsection (D), TDFPS had to prove that Mother knowingly
placed or allowed O.E.W.-K. to remain in conditions or surroundings that
endangered his physical or emotional well-being.  See Tex. Fam. Code
Ann. § 161.001(1)(D); In re J.A.J., 225 S.W.3d 621, 625 (Tex.
App.—Houston [14th Dist.] 2006) (op. on reh’g), judgm’t aff’d in part, rev’d
in part by 243 S.W.3d 611 (Tex. 2007).  It focuses on the suitability of
the child’s living conditions.  J.A.J., 225 S.W.3d at 624.  Thus, under
(D), it must be the environment itself that causes the child’s physical or
emotional well-being to be endangered, not the parent’s conduct.  Id.
          Under
(E), the relevant inquiry is whether evidence exists that the endangerment of
the child’s physical well-being was the direct result of Mother’s conduct,
including acts, omissions, or failures to act.  See J.T.G., 121 S.W.3d
at 125; see also Tex. Fam. Code Ann. § 161.001(1)(E).  Additionally,
termination under (E) must be based on more than a single act or omission; the
statute requires a voluntary, deliberate, and conscious course of conduct by
the parent.  J.T.G., 121 S.W.3d at 125; see Tex. Fam. Code Ann.
§ 161.001(1)(E).  It is not necessary, however, that the parent’s conduct
be directed at the child or that the child actually suffer injury.  Boyd,
727 S.W.2d at 533; J.T.G., 121 S.W.3d at 125.  The specific danger to
the child’s well-being may be inferred from parental misconduct standing
alone.  Boyd, 727 S.W.2d at 533; In re R.W., 129 S.W.3d 732, 738
(Tex. App.—Fort Worth 2004, pet. denied).  A parent’s mental state may be
considered in determining whether a child is endangered if that mental state
allows the parent to engage in conduct that jeopardizes the physical or
emotional well-being of the child.  In re J.I.T.P., 99 S.W.3d 841, 845
(Tex. App.—Houston [14th Dist.] 2003, no pet.).  A parent’s mental instability
and attempt to commit suicide may contribute to a finding that the parent
engaged in a course of conduct that endangered a child’s physical or emotional
well-being.  J.T.G., 121 S.W.3d at 126; see In re C.D., 664
S.W.2d 851, 853 (Tex. App.—Fort Worth 1984, no writ) (mental conditions and
suicide attempts of parent were factors in considering whether parent engaged
in conduct that endangered emotional well-being of child).  To determine
whether termination is necessary, courts may look to parental conduct occurring
both before and after the child’s birth.  In re D.M., 58 S.W.3d 801, 812
(Tex. App.—Fort Worth 2001, no pet.).
C.      Evidence
Is Legally and Factually Sufficient to Support Termination Order
 
          In
determining whether the evidence is legally and factually sufficient to support
termination of Mother’s parental rights pursuant to (D) or (E), we look at
whether Mother (1) knowingly placed or knowingly allowed O.E.W.-K. to remain in
conditions or surroundings that endangered his physical or emotional well-being
or (2) engaged in conduct or knowingly placed O.E.W.-K. with persons who
engaged in conduct that endangered his physical or emotional well-being.  See
Tex. Fam. Code Ann. § 161.001(1)(D), (E).  The Department’s brief contains a
combined legal and factual sufficiency analysis focusing on five acts or
omissions by Mother that it contends support termination of Mother’s rights
under (D) and (E):  that Mother’s physical violence against O.E.W.-K. was
endangering; that the violent environment created by Mother was endangering to
O.E.W.-K.; that Mother’s drug use was endangering; that Mother endangered
O.E.W.-K. by her refusal to accept treatment for her mental illnesses; and that
Mother endangered O.E.W.-K. by exposing him to Mr. Johnson and Ms. Johnson.  We
will examine all of the evidence in the record, focusing on these allegations. 
          Jaco
witnessed Mother slap O.E.W.-K. on the head after he asked her to get something
out of the refrigerator; the slap was enough to make O.E.W.-K. whimper a
little.  Jaco also saw bruises on O.E.W.-K.’s face, right arm, hands, and his
right leg, which Mother admitted causing by striking O.E.W.-K. with a belt.  Approximately
two weeks later, Jaco received a call from Ms. Johnson that Mother had become
upset when O.E.W.-K. claimed to be sick, so Mother had grabbed him and pulled
him.  Ms. Johnson was fearful that Mother was “really going to hurt him.”  Jaco
heard Mother yelling in the background:  “No one is going to tell me I can’t
hit my son.  If I want to beat him, I’ll beat him, and there is nothing you can
do about it.”  Ms. Johnson later tried to say that O.E.W.-K. had caused all of
the bruises on his body; Ms. Johnson said that she would tell that story to get
O.E.W.-K. back.  But at trial, Ms. Johnson testified that Mother caused the
bruises that she had seen in a picture of O.E.W.-K.  During one of the visits
after O.E.W.-K. was removed from Mother’s care, Mother stood in the hall and
threw a ball as hard as she could at O.E.W.-K. while he was sitting on the
couch.  Thus, evidence exists supporting an inference that Mother committed
physical violence against O.E.W.-K. on multiple occasions and that her conduct
physically endangered O.E.W.-K.  Cf. In re J.C., 151 S.W.3d 284, 288
(Tex. App.—Texarkana 2004, no pet.) (stating that father was indicted for
injury to a child after beating child with a belt and leaving bruises on child
from his head to his toes).
          Moreover,
the record reflects that while Mother and O.E.W.-K. lived with Ms. Johnson and
Mr. Johnson, Mother and Ms. Johnson screamed at each other, and O.E.W.-K. drew
a picture of this while he was in therapy.  Mother hit Ms. Johnson in the
shoulder after she had undergone shoulder surgery.  Mother and O.E.W.-K.’s
father had engaged in domestic violence.  Mother threatened and assaulted
O.E.W.-K.’s teacher and carried weapons to his school.  Mother had shown her
gun to O.E.W.-K., made him hold it, and later told him that she would “break
his neck” if he touched it.  Mother also admitted that it did not take much for
her to curse and that she cursed frequently.  This evidence is some evidence
that Mother’s conduct directed at others, both within the family and outside
the family, created an environment that endangered O.E.W.-K.’s emotional or
physical well-being.  See In re C.J., Nos. 14-07-00838-CV,
14-07-00839-CV, 2008 WL 4447687, at *4 (Tex. App.—Houston [14th Dist.] July 10,
2008, no pet.) (mem. op.) (holding that sufficient evidence existed to support
endangering conduct finding based on appellant’s history of domestic violence,
verbal altercations and threats, and physically aggressive behavior that
required her to be supervised at all times while in the presence of children). 
          Mother
also had a long history of drug use and had two drug-related charges on her
record.  Mother told several people that she had used drugs while she was
pregnant with O.E.W.-K.  Mother’s drug addiction required her to have others
watch her son or to leave him alone.  A physical education aide observed Mother
smoking marihuana in her car while O.E.W.-K. was with her.  The record contains
other evidence that Mother smoked marihuana in her room, which was next door to
O.E.W.-K.’s room, although Mother denied this.  Mother tested positive for
drugs while she was working her plan and admitted to using in July 2009.  O.E.W.-K.
knew that Mother smoked marihuana and took up for her, stating that he was glad
that she did not smoke crack.  Mother did not believe that marihuana was bad
for her and intimated that she would still be using if she was not working her CPS
service plan because on a scale of one to ten, she missed marihuana a twelve.  This
is some evidence that Mother’s conduct created an environment that endangered
O.E.W.-K.’s emotional or physical well-being.  See In re J.M., No.
02-08-00259-CV, 2009 WL 112679, at *4–5 (Tex. App.—Fort Worth Jan. 15, 2009, no
pet.) (mem. op.) (holding that mother’s
drug use during pregnancy and drug use six to eight months before
the termination trial constituted evidence of endangerment under section
161.001(1)(E)).
          Additionally,
Mother was diagnosed with bipolar disorder as a teenager and was prescribed
Depakote, but she refused to take any medication for her mental illness because
she feared the medication would poison her.  During her service plan, Mother’s
bipolar disorder diagnosis was confirmed, along with oppositional/defiant
disorder, ADHD, and multiple personality disorder, but she still was not taking
medication at the time of trial.  Her mental illness caused her to experience
violent mood fluctuations, and she admitted having thoughts of suicide and
engaging in self-mutilation.  Mother said that she often considered killing Ms.
Johnson and Mr. Johnson.  This is some evidence that Mother’s conduct created
an environment that endangered O.E.W.-K.’s emotional or physical well-being.  See
Sawyer v. Tex. Dep’t of Protective & Regulatory Servs., No. 03-02-00286-CV,
2003 WL 549216, at *8 (Tex. App.—Austin Feb. 27, 2003, no pet.) (mem. op.)
(stating that fact that appellant had refused treatment for her mental illness
endangered her children).
 Furthermore,
Mother testified that she had been sexually assaulted for numerous years by Mr.
Johnson and referred to him as the “baby raper.”  After Mother told Ms. Johnson
about the sexual abuse, Ms. Johnson did nothing because she believed Mr.
Johnson when he said that he had not touched Mother, even though he had
admitted to molesting Mother’s mother.  Yet, Mother had moved to Texas and had
brought O.E.W.-K. with her to live in a home with Mr. Johnson and Ms. Johnson. 
Ms. Johnson had numerous health conditions but was forced to care for O.E.W.-K.
most of the time because of Mother’s drug use and laziness.  Mother’s living
situation fluctuated, and she admitted that she could not go for very long
without living with Ms. Johnson.  Mother and Ms. Johnson told O.E.W.-K. that he
would be coming home to live in the Johnson household, and it caused him
stress.  O.E.W.-K. was afraid of Ms. Johnson because she had previously hit
him.  This is some evidence that Mother exposed O.E.W.-K. to an environment
that endangered O.E.W.-K.’s physical or emotional well-being.  Cf. In re
C.L.C., 119 S.W.3d 382, 393 (Tex. App.—Tyler 2003, no pet.) (stating that
“it is illogical to reason that inappropriate, debauching, unlawful, or
unnatural conduct of persons who live in the home of a child . . . are not
inherently a part of the ‘conditions and surroundings’ of that place or home”
and that this statute—section 161.001(1)(D)—is designed to protect a child from
“precisely such an environment”).
          Viewing
all the evidence in the light most favorable to the termination judgment and
disregarding all contrary evidence that a reasonable factfinder could
disregard, we hold that some evidence exists that will support a factfinder’s
firm conviction or belief that Mother violated subsections (D) and (E).  We
thus hold that the evidence is legally sufficient to support termination of
Mother’s parental rights to O.E.W.-K. under subsections (D) and (E).  See
Tex. Fam. Code Ann. § 161.001(1)(D), (E); Jordan v. Dossey, 325 S.W.3d
700, 721–26 (Tex. App.—Houston [1st Dist.] 2010, pet. denied) (holding that
evidence was legally sufficient to support termination under (D) and (E)
because mother allowed child to remain in the care of a person known to be
violent, abusive, and a convicted sex offender; endangered child as a fetus;
lived an unstable, transient lifestyle; and was currently diagnosed with
bipolar and other disorders and was not taking her medication); R.W.,
129 S.W.3d at 739–44 (holding that evidence was legally sufficient to support
termination under (E) because father had a history of substance abuse, mental
instability, and criminal history); Sawyer, 2003 WL 549216, at *9
(holding that evidence was legally sufficient to support termination under (D)
and (E) because mother had a history of mental illness, housing and financial
instability, relationships with violent men, and drug use).  We overrule
Mother’s first and third issues.
Viewing
all of the evidence in a neutral light, the volume of evidence—set forth
extensively above—that a reasonable factfinder could have credited in favor of
subsections (D) and (E) findings is so significant that a factfinder could
reasonably have formed a firm conviction or belief of the truth of the
allegations that Mother had violated subsections (D) and (E).  See H.R.M.,
209 S.W.3d at 108; C.H., 89 S.W.3d at 28.  We therefore hold that the
evidence is factually sufficient to support termination of Mother’s parental
rights to O.E.W.-K. under subsections (D) and (E).  See Tex. Fam. Code
Ann. § 161.001(1)(D), (E); Jordan, 325 S.W.3d at 721–26 (holding that
evidence was factually sufficient to support termination under (D) and (E)
because mother allowed child to remain in the care of a person known to be
violent, abusive, and a convicted sex offender; endangered child as a fetus;
lived an unstable, transient lifestyle; and was currently diagnosed with
bipolar and other disorders and was not taking her medication); R.W.,
129 S.W.3d at 739–44 (holding that evidence was factually sufficient to support
termination under (E) because father had a history of substance abuse, mental
instability, and criminal history); In re S.A., No. 02-06-00253-CV, 2007
WL 1441014, at *10–11 (Tex. App.—Fort Worth May 17, 2007, no pet.) (mem. op.)
(holding evidence factually sufficient to support termination under (D) and (E)
because mother suffered from bipolar disorder; had a history of drug use,
including during a pregnancy; had a pattern of uncontrolled anger; showed instability
in her living arrangements; and had a criminal history); Sawyer, 2003
WL 549216, at *9 (holding that evidence was factually sufficient to support
termination under (D) and (E) because mother had a history of mental illness,
housing and financial instability, relationships with violent men, and drug
use).  We overrule Mother’s second and fourth issues.
IV.  Termination Was in O.E.W.-K.’s Best Interest
            In
her fifth and sixth issues, Mother argues that the evidence is legally and
factually insufficient to support the trial court’s finding that termination of
the parent-child relationship was in O.E.W.-K.’s best interest.  Specifically, Mother
argues that it was not in O.E.W.-K.’s best interest to terminate her parental
rights to him because she had completed “the array of assistance programs
suggested by TDFPS,” had shown her ability to be free of drugs, and had shown
her desire and ability to reform herself.  The record, however, reveals
otherwise.
            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) (Vernon
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 v. Adams, 544 S.W.2d 367, 371–72
(Tex. 1976).
          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.  C.H.,
89 S.W.3d at 27.  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.
          In
analyzing the section 263.307(b) factors, the record reveals that O.E.W.-K. was
six and a half at the time of trial, was repeating kindergarten, had no
physical issues, but did exhibit some behavioral problems.  There were
fifty-eight CPS allegations against Mother in Washington, and O.E.W.-K. was
living with foster parents at the time of the trial.  The frequency and
circumstances surrounding the harm caused to O.E.W.-K. are detailed thoroughly
above, including additional harm imposed on him by Mother and Ms. Johnson
during their visits.  Although O.E.W.-K. mentioned during a few of the visits
that he wanted to go home, the behavior that he exhibited around Mother and Ms.
Johnson reflected that he was afraid of them and did not feel comfortable when
they told him that he would be going home to live with them.  The results of
Mother’s psychological evaluation with Dr. Wiggins is set forth in detail
above, as is the history of abusive and assaultive conduct by Mother and others
in the home, Mother’s drug use, and the perpetrators of the harm to O.E.W.-K. 
The record demonstrates that Mother was initially adamant that she would not
work any services but eventually completed some of them, though she was
uncooperative unless her caseworker “put her between a rock and a hard place.” 
O.E.W.-K.’s family failed to effect positive environmental and personal changes
while the suit was pending as demonstrated during the visits when Mother and
Ms. Johnson were “disruptive to each other” and others and when they interrogated
O.E.W.-K. to the point that he wanted to end the visits early.  Mother failed
to demonstrate adequate parenting skills before and after O.E.W.-K. was removed
as shown by her willingness to choose drugs over him, calling him “Daddy,”
getting him to sleep with her after she had a bad dream, and not knowing how to
appropriately interact with or discipline him.  Mother said that her support system
consisted of “God, me, myself, and I.”
          With
regard to the Holley factors, the record reveals that it would have been
too stressful on O.E.W.-K. to testify in front of Mother, but his wishes were
relayed by others and are set forth above.  O.E.W.-K. had overcome his speech
difficulties with speech therapy and did not have any other special physical
needs.  O.E.W.-K.’s main emotional need was for a safe environment, which was
lacking when Mother was present.  O.E.W.-K. tended to wring his hands and run
to the caseworker to be rescued from Mother and Ms. Johnson during visits. 
Mother refused to take medicine to control her mental illnesses and therefore
posed both an emotional and physical danger to O.E.W.-K. due to her violent
mood swings.  Despite completing parenting classes, Mother testified that she
could see why there were concerns about her parenting O.E.W.-K. because there
were problems in the past and because she was sure that there would be problems
in the future.  The record did not reveal specific programs that were available
to assist Mother and to promote O.E.W.-K.’s best interest, other than the
services that were offered to Mother, in which she did not fully participate. 
CPS planned to seek adoption of O.E.W.-K. by his current foster family, while
Mother wanted him to live with her or her family.  The record demonstrated the
stability of the foster family’s home environment.  If O.E.W.-K. went to live
with Mother, however, the stability of the home would be questionable because
Mother’s motel room had not been evaluated and because Mother planned to move
back in with Ms. Johnson at some point, which would likely create the same volatile
environment as when O.E.W.-K. was removed.  Mother regularly attended the
visits, but it was at those visits where it was most obvious that the existing
parent-child relationship was not a proper one.  Furthermore, Mother provided
excuses, which were set forth above, for her failure to complete her services.
          Considering
the relevant statutory factors in evaluating Mother’s willingness and ability
to provide O.E.W.-K. with a safe environment and the Holley factors, we
hold that the evidence is both legally and factually sufficient to support the
trial court’s finding that termination of Mother’s parental rights to O.E.W.-K.
is in his best interest.  See Tex. Fam. Code Ann. § 161.001(2); Jordan,
325 S.W.3d at 733 (holding evidence legally and factually sufficient to support
the trial court’s finding that termination of mother’s parental rights was in
child’s best interest when most of the best interest factors weighed in favor
of termination); Sawyer, 2003 WL 549216, at *10–11 (holding that
evidence was factually sufficient to support best interest finding because
mother’s history of homelessness, unemployment, drug use, relationships with
violent men, and refusal to get help for her mental illness did not provide
assurance of stability and permanence).  We therefore overrule Mother’s fifth
and sixth issues.[36]
V.  Award of Permanent Managing Conservatorship to
the Department
          In
her seventh and eighth issues, Mother argues that the award of permanent
managing conservatorship to the Department should be reversed if we reverse the
trial court’s termination order.  Because we held above that the trial court
did not abuse its discretion by terminating Mother’s parental rights to
O.E.W.-K. and because we therefore did not reverse the trial court’s
termination order, we need not reach Mother’s seventh and eighth issues.  See
Tex. R. App. P. 47.1 (stating that appellate court need only address every
issue necessary to final disposition of the appeal).
VI.  Conclusion
          Having
overruled every issue necessary to the final disposition of this appeal, we
affirm the trial court’s judgment terminating Mother’s parental rights to
O.E.W.-K.4
 
 
SUE WALKER
JUSTICE
 
PANEL: 
DAUPHINOT, WALKER, and MCCOY, JJ.
 
DELIVERED:  March 31, 2011




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


[2]We recognize that some of
the testimony is conflicting and inconsistent.  This factual background section
of our opinion, however, sets forth the testimony given, even when it is
inconsistent.


[3]Ms. Johnson was not there
at the time because she was in Washington having surgery.  Ms. Johnson wrote in
a letter, which was admitted into evidence, that Mother had whipped O.E.W.-K.
inappropriately during Ms. Johnson’s absence. 


[4]Ms. Johnson wrote in a
letter that was admitted into evidence, “[Mother’s] Oppositional Defiant
Disorder is really not easy for me.  Especially, because she won’t shut up.  It
is almost torture watching her rant and rave with little control in areas of
reasoning, impulse control, and judgment.”  Ms. Johnson’s letter also states
that after she put a stop to Mother’s reading books on Jeffrey Dahmer and
others, Mother “became aggressive, exhibiting rage toward me for years.  She
went crazy.  Stole my money.  Refused to go to school.  . . . She was mad at me
days, weeks, and years, . . . .” 


[5]Jaco also spoke to Mr.
Johnson, who said that he was Ms. Johnson’s former husband but that they still
lived together and were buying the house that they were living in together.


[6]Ms. Johnson later
clarified that she was not saying that Mother was using crack cocaine at that
time (on April 10, 2009).  Jaco did not administer a drug test to Mother, so
she was not aware of whether Mother was using at that time. 


[7]The record reveals that a
home assessment was ultimately conducted on Ms. Johnson’s home.  Letz testified
that although O.E.W.-K. had stayed with his great uncle Jamie for one or two
years while Mother was incarcerated in Washington, Letz did not conduct a home
study on Jamie because paperwork that she had received showed that his wife had
a criminal history involving drugs.  Letz learned that Jamie had spent time in
prison for a conviction for breaking into a home. 


[8]Groomer did not think it
would be appropriate for O.E.W.-K. to have therapy sessions with Mother due to
the behaviors that Mother had exhibited toward him. 


[9]Groomer was not sure when
Mother had moved out of Ms. Johnson’s house. 


[10]According to the home assessment,
Ms. Johnson lived beyond her means and was socially isolated.  The home assessment
said that the home was clean, that O.E.W.-K. had his own room, and that Ms. Johnson
was purchasing the home.  Ms. Johnson’s home, as far as the appropriateness of
the house and furnishings, was on equal footing with the foster parents’ home.  There
were no allegations that O.E.W.-K. was malnourished while Ms. Johnson was
caring for him.


[11]Groomer said that
O.E.W.-K.’s statement that he was afraid of Ms. Johnson was an indication of
abuse. 


[12]Bratton testified that in
addition to observing visits, she had visited with O.E.W.-K. in his foster
home, had talked to O.E.W.-K.’s teachers, and had talked to Dr. DeYoung.
O.E.W.-K.’s therapist.


[13]Mother said that her
Smith & Wesson was in her car.  Dr. Wiggins’s recommendations stated that
Mother would not comment on whether the gun was registered and that “this
should be followed up.  Due to her aggressive nature, a gun or any type of
weapon is not advisable for [Mother] to maintain in her possession.” 


[14]Mother said that she had
never blown marihuana smoke in O.E.W.-K.’s face but that she had seen someone
blow marihuana smoke in a baby’s face.


[15]The trial court admitted
into evidence a copy of a judgment from the State of Washington in which Mother
was found guilty of the crime of conspiracy to deliver cocaine on October 3,
2000.


[16]Mother said that Ms.
Johnson had been married nine times.


[17]Mother said that she was
unemployed and had received Social Security benefits since she was five years
old. 


[18]Mother admitted that it
did “not take much for her to curse people.”


[19]However, Dr. Wiggins also
said that it was not unusual for a five-year-old to sleep with his parents.  Dr.
Wiggins clarified that she was not as concerned that O.E.W.-K. was sleeping in
the same bed as Mother as why he was sleeping with her––because Mother would go
get him when she had a nightmare.


[20]Yet, Mother thought that
O.E.W.-K. was too soft at times and needed to be toughened up with karate
classes.


[21]Mother purchased a gun
the day that she arrived in Texas because she knew that she was going to be
around the “baby raper.”


[22]Dr. Wiggins testified
that it is common for someone with a background of physical and sexual abuse to
self-mutilate.


[23]But, Dr. Wiggins also
testified that Mother had not had suicidal thoughts since she felt like she
could keep her grandfather from hurting her.


[24]Dr. Wiggins said that it
is not unusual for a parent who has had a chaotic childhood to want to protect
her own child from having a chaotic childhood.


[25]Mother was very
argumentative; her first response was to say, “No.” 


[26]Mother had said that on a
scale from one to ten, the level that she missed marihuana was a twelve.


[27]Ms. Johnson said that she
never told O.E.W.-K. about marihuana, unless Mother had it, and then she told
him that it was not a good thing. 


[28]Jamie also testified that
he did not believe Mother’s story that Mr. Johnson had sexually assaulted her. 


[29]Ms. Johnson testified
that Mother received approximately $650 per month in disability.


[30]Prior to that statement, Ms.
Johnson had testified that she had not seen bruises on O.E.W.-K. from Mother
and that she had never seen Mother hit O.E.W.-K. on the head.


[31]Ms. Johnson admitted that
to control her medical conditions, she took ten pills a day, including
propranolol, hydrochlorothiazide, glucophage, insulin, and medicine to quit
smoking.  However, Ms. Johnson believed that she could take better care of
O.E.W.-K. now that she was in Texas because her osteoarthritis had improved from
being in the warmer climate.


[32]Mother said that she was
never offered family counseling with O.E.W.-K. even though she brought it up
with Letz.


[33]Mother said that she had
completed her psychological evaluation on September 24, 2009, and had completed
the rest of her service plan tasks prior to September 21, 2009.  Mother said
that she started working her service plan as soon as she received it in June
2009 and that she did not complete the psychiatric evaluation until November
because that is the date that she was given when she called to schedule it in
June.


[34]Mother said that she had helped
O.E.W.-K. with his homework and that he had received a “plus” or an “excellent”
in all his classes.  


[35]In her briefing
challenging the legal and factual sufficiency of the evidence to support the
trial court’s (D) and (E) endangerment findings, Mother also argues that the
trial court erroneously admitted testimony from Hill—that O.E.W.-K. told Hill that
Mother had made the bruise on him—without making the proper prerequisite
findings and that the trial court erroneously admitted testimony from Hill
(although such testimony actually came from Dr. DeYoung) regarding O.E.W.-K.’s
seeing weapons in his home.  Because Mother did not raise these “issues” in her
statement of points, we are prohibited from addressing them in this appeal.  See
In re J.H.G., 302 S.W.3d 304, 306 (Tex. 2010); In re K.B., No.
02-09-00441-CV, 2010 WL 4028107, at *15 (Tex. App.—Fort Worth Oct. 14, 2010, no
pet.) (mem. op.); see also Cravens v. City of Amarillo, 309
S.W.2d 903, 906–07 (Tex. Civ. App.––Amarillo, writ dism’d) (overruling
complaints and charges that were not presented in a separate point of error and
that were also not supported by the record), cert. denied, 358 U.S. 882
(1958).


[36]This was not, as Mother
contends, a case in which TDFPS simply preferred another family to care for
O.E.W.-K. over Mother and her family; this is a case in which the evidence supported
the termination.


