      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-09-00596-CV



                     Laura Annie Cathey and Paul C. Cathey, Appellants

                                                  v.

                Texas Department of Family and Protective Services, Appellee


      FROM THE DISTRICT COURT OF BELL COUNTY, 146TH JUDICIAL DISTRICT
           NO. 217,860-B, HONORABLE RICK MORRIS, JUDGE PRESIDING



                             MEMORANDUM OPINION


               Laura Annie Cathey and Paul C. Cathey appeal the judgment terminating their

parental rights to their sons, M.C. and J.C. After a bench trial, the trial court found that clear

and convincing evidence supported finding that both parents knowingly placed and knowingly

allowed the children to remain in conditions and surroundings that endangered the children’s

physical and emotional well-being. The trial court also found that clear and convincing evidence

supported finding that termination of parental rights was in the children’s best interest. On appeal,

the parents contend that these findings are not supported by legally or factually sufficient evidence.

We affirm.

               The family had been the subject of investigation almost annually since 2002,

including two previous instances in which the children were removed from the house. The family

includes four children—the two boys who are the subject of the judgment appealed here, M.C.
and J.C., and two older girls, B.C. and C.C., who were originally part of this suit, but were dismissed

as subjects several months before the bench trial. At the time of the final hearing, the boys were,

respectively, eleven and six years old and the girls were ages seventeen and fifteen. The previous

case was dismissed on December 7, 2006.

               According to the affidavit attached to the petition, this case was prompted by

a February 2008 report that M.C. had missed over twenty days of school, had failing grades, had

two lice infestations, had lost weight, and had gaps between refills of his medications. He arrived

late to school regularly, was quiet and withdrawn, and had serious trouble keeping focused. Laura

had been alerted to some of these issues and appeared to show concern, but no change had occurred.

The investigator, Shantara Harris, noted that the children had been removed from the house the

previous year because of unhealthy living conditions and the poor health of the children. She visited

the Cathey home the day after receiving the report and found that the conditions were hazardous

and unsanitary. She reported trash, old food, clothing, and other items scattered throughout the

home. She opined that it appeared the home was being used as a trash can, with refuse seemingly

poured on the floor. The parents stated that the house had gotten into that condition only in the

last couple of days and that they were in the process of cleaning it up. Harris noted that excessive

amounts of medication were easily accessible to the children. She described the bathroom as filthy

with dirty clothes and used maxipads on the floor. Floor fans throughout the home had trash and

papers stuck in them because, Paul stated, the children liked to cause the fans to make a loud noise.

Harris described the children as physically neglected and odorous, as if they had not bathed regularly.

J.C. told her that his parents fought over money and that sometimes Paul hit Laura. M.C. responded



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to her questions that he forgot what his mother told him to say. Harris also stated that C.C. was not

on medication despite having been diagnosed with mental health issues. All of the children had

missed extensive amounts of school and had been infested with lice. All four children were removed

from the home. B.C. and C.C. went back home later that spring under a monitored return. By order

signed October 1, 2008, this case was dismissed regarding the girls.

               The parents were ordered to participate in therapy individually and with their family.

In June 2008, the caseworker reported inconsistent attendance at therapy sessions, and in-

home therapy began. Their family therapist, Terri Schroder, reported that the Catheys were low-

functioning, but cooperative and participated in therapy. Schroder stated that the house was not

filthy or disgusting when she visited, but was messy. She also opined that the Catheys did not

recognize cluttered floors as a problem. Schroder reported that Laura let the children have their way

because she did not want them to be angry with her. Schroder reported that the family seemed

genuinely happy to see each other when reunited for therapy. The caseworker reported that the

front door was broken and could not be opened and that the back door had two broken hinges

and was hanging on by the third. She told the parents they needed to fix the door because it was

dangerous to the younger children. The state of the doors was not dangerous for the girls because

they were older. She reported that M.C. and J.C.’s foster placement was safe and appropriate.

Paul’s therapist reported in August 2008 that Paul had problems with rage and intrusive thoughts

arising from killing a boy in Afghanistan who had shot a member of his party and leveled his rifle

at Paul. Paul was disturbed by the memory of removing the shooter’s scarf and discovering he was

a boy, which made him think it was like shooting his own child.



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               In August 2008, the caseworker reported that one therapist said that the parents

did best with outside pressure, although they tended to “fall apart” when they got stressed or did not

have outside pressure. Unannounced visits revealed a clean home, but there were reports that the

grandmother who had been cleaning the home had to stop doing so because the work was causing

her health problems. Friends and family reported that the Catheys were not paying utility bills.1 The

utilities were being shut off intermittently due to failure to make timely payments. The boys’

foster mother reported that J.C. had a hard time following directions and was damaging her home

(e.g. by jumping off the top bunk and grabbing the ceiling fan) despite being corrected.

               In October 2008, the caseworker reported more progress in some areas. The Catheys

were working on a budget and had paid utility bills. They still had trouble setting boundaries for J.C.

They had begun weekend visits with the boys.

               In January 2009, the caseworker reported that, despite increases in their pay

and budgeting help, the Catheys were having problems paying their bills. She stated that Paul was

getting counseling for his anger management issues. She reported that Laura was very motivated to

get her boys returned, but did not think that her children’s experience was tough compared to her

experience of childhood. Schroder reported that the Catheys felt their standards of cleanliness were

adequate and that the Department was just hassling them. The caseworker reported that the Catheys

were ignoring the importance of school attendance and did “not appear to have their children’s

best interest in mind.” The Catheys insisted that the girls were attending school. Schroder had




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         The utilities were in the grandmother’s name. However, the grandmother relied on the
Catheys to pay the bills.

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spoken to the Catheys regarding alternative school placements for B.C., but they had done nothing

to move B.C. The caseworker reported continued budgeting issues that she had suggested could

be resolved by less eating out, but that the problems continued. She reported continued boundary-

setting issues regarding J.C. The caseworker reported that, after having unsupervised home visits,

J.C. began smearing feces on the walls of his foster home. She stated that J.C.’s problems were not

improving and that his behavior seemed worse after weekend home visits. The boys were making

and having trouble at school.

               In March 2009, Schroder noted small improvements in family functioning, but was

uncertain how many of the changes were internalized and how many were temporary changes

in order to placate her. She said that the parents verbalized their desire to change and create a more

appropriate household, but their follow-through was inconsistent.

               In May 2009, the caseworker reported some regression. The Catheys were not

meeting with their budgeting case manager. Paul’s course of therapy was canceled because he

stopped attending. Laura had not scheduled a medication evaluation for depressed mood even

though they had discussed completing it by the end of March. The girls were still not attending

school as they should. Although the therapist reported that the condition of the home was marginally

acceptable, the caseworker reported that unannounced visits revealed an unclean home with old food

on the countertops and stove and trash, papers, and clothes lying on floors and furniture. The

caseworker explained to the Catheys that they could not keep the home free of bugs and rodents

under such conditions. She said that the parents continued to offer excuses for the condition of the

home instead of correcting the condition. The caseworker reported that the Catheys were attending



                                                  5
their parenting classes, giving examples of how they were implementing the lessons, and said that

Laura reported that she was being firmer with the girls about school attendance. Paul completed his

anger management course, and encouraged the children to express their anger so they could learn

how to control it. The caseworker concluded that the Catheys were genuinely concerned about their

children, but continued to give excuses for their actions and showed little change. They still had

trouble setting boundaries for J.C. The caseworker also stated that the boys’ foster mother reported

that the boys seemed to be regressing as well. J.C. had resumed defecating in his pants daily, and

M.C., despite doing very well in school, was beginning to have difficulty paying attention in class.

J.C. was taking Ritalin, but was getting additional medical attention because of his lack of progress

with the drug and his violent outbursts at school.

               In the final hearing report dated July 28, 2009, the caseworker reported continued

regression except for Laura’s improved functioning on Prozac. Laura’s therapist reported that Laura

appeared to have increased energy, clearer thinking, better functioning, and increased initiative. The

caseworker, however, had not been able to see the home since May. Twice, on unannounced

home visits, she heard movement in the home, but no one came to the door. Telephone contact

failed because the Catheys’ telephone was out of service. The caseworker reiterated that Paul’s

outbursts regarding court proceedings and the Department’s stance on the condition of the home

made her question whether he internalized much of the training. Similarly, she was not certain how

much of the parenting skills the Catheys had internalized because they continued to have issues

parenting the boys. The Catheys still had not contacted their budget manager. Despite Laura’s

improved functioning, the caseworker had been unable to arrange a home visit in the three months



                                                  6
since the previous report. For the first time, the caseworker recommended termination of the

Catheys’ parental rights to M.C. and J.C.

               At trial, psychologist Timothy Daiheim also recommended termination. He had

treated the boys for over a year and had been the family’s therapist for four or five months. He

testified that the Catheys had made progress, but also tended to regress and revert to unacceptable

behaviors. Laura had made the most progress. Laura and the girls had excellent participation but

Paul had not attended due to work conflicts or possibly a lack of commitment. Daiheim described

the parents as apathetic, and noted that apathy was unworkable when dealing with J.C. and, to

a lesser extent, M.C. Both boys needed attention, and J.C.’s condition was so extreme that

medications were not effective and experts could barely keep him focused. The apathy had also led

to delays in Laura getting prescribed helpful medication, failure to keep the house in repair, and the

children not getting medications consistently. Apathy also caused the parents not to consistently

require the girls to attend school, with the result that B.C. missed 103 days and C.C. missed the

equivalent of 49 full days in a school year. Daiheim testified that consistent medication was very

important for J.C. so that he was not a danger to himself. Daiheim also testified that an uncluttered

physical environment was important not just for the boys’ general well-being, but because J.C.

was likely to pick up and throw just about anything. While in foster care, for example, he had hurled

a book and hit M.C., inflicting a black eye. Daiheim also testified that the cycle of removal and

return was particularly damaging to children who, like M.C. and J.C., needed a stable environment.

He testified that, if this were not the parents’ third time having their children removed, he




                                                  7
might believe they could turn it around. With their history and tendency to regress, however, he

recommended termination.

                Barbara Sanford, the boys’ foster mother, testified that the boys were wonderful,

but had a lot of behavior issues. J.C. broke something nearly every day. He urinated in bed and

defecated on the floor—stating that he was allowed to do so at home. She testified that the boys had

nightmares soon after arriving at her house that rats and roaches were walking on them. They told

her that the toilet was not working at home, as it was full of feces, and that feces were also on the

floor. They could not put clothes in drawers because rats would defecate on them. Their father put

sticky traps down for rats, but left rats in the sticky traps. They told her that everybody did what they

wanted, which led to trash and uneaten food just sitting around the house. J.C. told her he liked that,

but she said M.C. preferred being clean and safe. Sanford testified that the boys loved their mother

and wanted to be with her. Sanford testified that M.C. was improving, but J.C. was the same.

                Conservatorship worker Leslie Campbell testified that the December 2008

lice incident exemplified the parents’ apathy and inability to sustain change. The girls’ continued

school attendance woes also spoke to those qualities, as did the unrepaired front door. She opined

that the door could fall and hurt J.C. There was no kitchen garbage can, the toilet leaked, the sewer

line emptied onto the ground, and medication remained out in the open, among other issues.

                Campbell and Dr. Daiheim both testified that both boys were adoptable. Schroder,

however, testified that M.C. would not agree to adoption and J.C. had such severe behavior

problems, he would not be easily adoptable. She said that, as of April 2009 when she last saw

the family, the boys were very attached to their parents and wanted to go home. She said that the



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family’s only real progress during her therapy term was getting the boys on medication to treat their

ADHD condition. She said that the Catheys did not make much progress because they did not accept

the Department’s standards of behavior. Schroder testified that returning the boys to the home would

probably lead to further involvement by the Department. Campbell recommended termination based

on the parents’ chronic neglect and the hope that an adoptive home could provide safety, stability,

and individualized attention that the parents had consistently shown themselves unable to provide.

She testified that, when she spoke with the boys about adoption, they did not express sadness but

discussed what they would like to see in an adoptive home. She conceded, however, that she did not

speak to them directly about termination.

                Laura testified that the boys wanted to come home. She testified that she is trying

to raise the children “right” and has learned from her mistakes. She said she was willing to do

whatever she had to do to bring them home. She acknowledged to the trial court that, in the

spring semester, B.C. missed fourteen days of school with a doctor’s note, sixteen days with a

note from her mother saying she was sick, and twelve days with a note that they had car trouble.

Paul did not testify.

                The trial court noted on the record that the termination hearing marked the

eighteenth time the parents had appeared before him since July 2006. He commented that the

full ashtrays in the photographs—coupled with the price of cigarettes—demonstrated to him that the

parents’ failure to make important changes in their home was not purely economic hardship, but a

product of misplaced priorities. He determined that the boys would have to remain in Department

conservatorship, so his choice was whether it was with or without termination. He concluded that



                                                 9
the Department had tried for seven years to get the family on track and that their problems

were apparently unresolvable. Consequently, the trial court found by clear and convincing evidence

that the parents had knowingly placed and knowingly allowed the boys to remain in conditions

and surroundings that endanger their physical and emotional well-being, and that termination of

parental rights was in the boys’ best interest. Based on these findings, the trial court terminated

the Catheys’ parental rights to the boys. On appeal, the Catheys challenge the legal and factual

sufficiency of the evidence to support both of these findings.

                A court may order involuntary termination only if the court finds that: (1) a parent

has committed a predicate act or omission harmful to the child, and (2) termination is in the

best interest of the child. Tex. Fam. Code Ann. § 161.001 (West Supp. 2009). The court must

ensure that these findings are supported by clear and convincing evidence—a standard of proof

specifically intended, in view of the constitutional interests at stake, to reduce the risk of erroneous

terminations. Id.; see Santosky v. Kramer, 455 U.S. 745, 764-65 (1982); In re G.M., 596 S.W.2d

846, 847 (Tex. 1980). This Court, too, must apply a heightened standard of appellate review to

complaints that the evidence is legally or factually insufficient to support the findings necessary for

termination. In reviewing a legal sufficiency claim, we look at all the evidence in the light

most favorable to the finding to determine whether a reasonable fact-finder could form a firm belief

or conviction that the matter that must be proven is true. In re J.F.C., 96 S.W.3d 256, 265-66

(Tex. 2002). We assume the fact-finder resolved disputed facts in favor of its finding if a reasonable

fact-finder could do so, and we disregard all contrary evidence unless a reasonable fact-finder could

not. Id.; see also City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). When reviewing



                                                  10
factual sufficiency, we must give due consideration to evidence that the fact-finder could reasonably

have found to be clear and convincing and then determine whether, based on the entire record,

disputed evidence that a reasonable fact-finder could not have credited in favor of the finding is so

significant that a fact-finder could not reasonably have formed a firm belief or conviction that

the allegations in the petition were true. In re J.F.C., 96 S.W.3d at 266.

               The evidence is legally and factually sufficient to support the finding of

endangerment. The testimony about the physical condition of the home upon the children’s removal

was disturbing. Piles of trash, food waste, and human waste sitting in a broken toilet lend credence

to the boys’ reports of human waste on the floor and their reports of their living conditions. After

eighteen months of Department scrutiny and involvement, the living conditions in the house

had failed to improve to an acceptable level. There were no working smoke detectors and no kitchen

garbage can. The toilet leaked on the inside of the house and a sewer line just emptied into the yard.

Medication was left out accessible to children. Ceiling fan blades were broken by J.C. The boys got

lice while at home while they were in foster care, although they were lice-free in 2009. C.C. injured

J.C. during a visit, and did not consistently take her medications. There was evidence that the

children did not consistently have their medication prescriptions filled or administered while in their

parents’ home despite their demonstrated need for it and the dangers of abruptly stopping these

medications. The boys’ ADHD condition required structure and discipline, and both were regularly

absent from school. B.C.’s continued absences from school during the spring semester and

summer school indicated that the lack of discipline and structure persisted despite parenting classes

and counseling. Although Laura testified that she had learned from her mistakes and others



                                                  11
testified that conditions had improved, problems repeatedly cited by the Department had not been

corrected. There was testimony that J.C. said Paul had hit Laura when angry, and evidence that

Paul had anger-management issues. The parents’ inability or unwillingness to correct issues raised

by the Department predated this 18-month case. The record provides legally and factually sufficient

evidence to support the finding by clear and convincing evidence that the parents knowingly placed

and knowingly allowed the boys to remain in a home that presented physical and emotional dangers

to the boys when they were removed that had not been adequately mitigated by the time of trial.

                The evidence is also legally and factually sufficient to support the court’s finding

that termination was in the children’s best interest. The non-exclusive list of factors that have been

considered when determining a child’s best interest includes: (1) the desires of the child; (2) the

emotional and physical needs of the child now and in the future; (3) the emotional and physical

danger to the child now and in the future; (4) the parental abilities of the individuals seeking custody;

(5) the programs available to assist these individuals to promote the best interest of the child; (6) the

plans for the child by these individuals or by the agency seeking custody; (7) the stability of the home

or proposed placement; (8) the acts or omissions of the parent that may indicate the existing

parent-child relationship is not a proper one; and (9) any excuse for the acts or omissions of the

parent. Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976).

                The evidence supports a finding that the Holley factors support termination. Although

there was testimony that the boys loved their mother especially and that both—particularly

M.C.—wanted to return home, there was also testimony that M.C. asked a potential adoptive parent

to adopt him. The evidence was unequivocal that the boys needed a great deal of close attention.



                                                   12
M.C. was diagnosed with ADHD and some mild depression. He had trouble staying focused on

tasks, but had made great academic strides while in foster care. J.C. was so severely ADHD that

medication had not enabled him to gain control. He lived in the moment and was not making

progress despite increased and more focused attention. His impulsiveness caused him to be a risk

to damage property and others, including his brother. Both boys needed consistent administration

of medications so that the medications would have the best chance of taking effect. Abrupt

withdrawal of the medications would blunt their effect, could cause unpleasant reactions, and had

a “50-50 chance” of making them ineffective when readministered. The Catheys had not shown

themselves capable of consistent administration of medications for anyone, including their

older daughter. Although the physical condition of the house improved, there were significant

problems remaining, such as the front door not being fully hinged and the leaking toilet and

open sewer pipe. There was repeatedly expressed concern about whether the Catheys could maintain

the gains in cleanliness if they were not under scrutiny. Despite therapy and classes, the Catheys

were not consistently setting and maintaining boundaries and discipline for the children—especially

J.C. during his visits. Although Laura and the girls participated in therapy sessions regularly, the

Catheys’ occasionally sporadic contact with caseworkers and other support professionals left a

question regarding whether any available programs would be useful. Evidence showed that Laura

and Paul had problems of their own, which interfered with their ability to parent and to absorb and

implement other parenting strategies. Although Laura was improving while on Prozac, the history

of sporadic distribution of medications to the children made this improvement appear tenuous.

There was no post-termination permanent placement set, but the boys’ foster mother said she



                                                13
would keep them until a permanent placement was found. The boys were described by some

witnesses as adoptable, although M.C.’s age and J.C.’s habits might reduce their chances. Although

there was evidence that the parents wanted good things for their children, there was ample evidence

to support a belief that the parents could not consistently provide minimally adequate and

safe surroundings and circumstances for their younger children. We find the evidence legally and

factually sufficient to support the trial court’s finding that termination of the Catheys’ parental rights

is in the children’s best interest.

                Affirmed.




                                                G. Alan Waldrop, Justice



Before Justices Patterson, Waldrop and Henson

Affirmed

Filed: August 31, 2010




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