                         COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH


                              NO. 02-08-145-CV


IN THE INTEREST OF J.W. AND N.W., CHILDREN

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          FROM THE 323RD DISTRICT COURT OF TARRANT COUNTY

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                        MEMORANDUM OPINION 1

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                                I. Introduction

     In six points, Appellant Teresa contests the sufficiency of the evidence

to support the termination of her parental rights to J.W. and N.W. We affirm.

                       II. Factual and Procedural History

     Following a bench trial, Teresa’s parental rights to her two children, J.W.

and N.W., were terminated. The trial court found that Teresa knowingly placed

or knowingly allowed J.W. and N.W. to remain in conditions or surroundings



     1
         … See Tex. R. App. P. 47.4.
that endangered their physical or emotional well-being, that Teresa engaged in

conduct or knowingly placed J.W . and N.W. with persons who engaged in

conduct that endangered their physical or emotional well-being, and that

termination would be in the best interest of the children. See Tex. Fam. Code

Ann. § 161.001(1)(D), (E), (2) (Vernon Supp. 2008).

      The trial court reviewed the following events and circumstances when

deciding to terminate Teresa’s parental rights, including: (1) numerous referrals

to the Texas Department of Family and Protective Services (“TDFPS”) involving

K.M. (Teresa’s daughter by Ralph) and reports that Ron (J.W. and N.W.’s father

and a convicted felon) physically abused K.M.; (2) Teresa’s failure to take J.W.

to the doctor for a follow-up after he had a gastrostomy tube (“g-tube”)

surgically implanted to allow food to be put directly into his stomach, even

though she thought the procedure had failed; and (3) a November 8, 2006

incident involving a serious injury to N.W.

      Teresa and Ron lived together, despite Ron’s marriage to another woman.

K.M. lived with Teresa and Ron in 2006, although Teresa later agreed to an

order allowing K.M. to live with her father; K.M. is not the subject of this

appeal. Ron worked part-time and watched the children while Teresa worked.2


      2
       … Ron voluntarily relinquished his parental rights to J.W. and N.W. just
before the termination trial.

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One day in 2004, K.M. scratched another child at school. Ron attempted to

punish the child by scratching her on the arm.        Someone reported this to

TDFPS. After investigating the matter, TDFPS did not remove the child from

Teresa’s home; Teresa later acknowledged the inappropriateness of Ron’s

action.

      J.W. was born September 12, 2003. He was diagnosed with failure to

thrive and had digestive problems that caused him to projectile vomit. A g-tube

was surgically implanted on October 24, 2006, to allow food to be inserted

directly into his stomach. Teresa reported that the procedure did not work, but

she did not take J.W. back to the doctor for over a year despite understanding

that he was supposed to have returned for a follow-up after the surgery.

Teresa justified her inaction by pointing out that an Early Childhood Intervention

(“ECI”) dietician was seeing J.W. and that she had no insurance at the time.

      N.W. was born on September 30, 2006. Ron reported to his mother,

Karen, that N.W. also had digestive problems. On November 8, 2006, Ron

claimed that while he was carrying N.W. through his house at night in the dark,

he tripped and N.W. fell from his arms, and when he tried to catch N.W ., he

was only able to grab N.W.’s leg. He called Teresa, who was at work, and told

her that N.W. needed to go to the hospital. When she arrived home, she called

her mother, who lived forty-five miles away, instead of calling Ron’s mother

                                        3
who was closer, to come and watch the other children while she and Ron took

N.W. to the hospital. It took several hours after the alleged incident to get to

the hospital and to get treatment for N.W.     During the examination at the

hospital, the doctor discovered that N.W.’s femur had a spiral fracture and,

finding Ron’s story highly suspicious, contacted TDFPS. The TDFPS worker at

the hospital wrote in her report that Ron admitted:

      •     that he “did not know exactly what happened to the baby”;

      •     that the “baby’s head never hit his leg as he had reported”;

      •     that he “did not know where he grabbed the baby”;

      •     to “lying about some of the information provided to hospital
            staff”;

      •     that “he had been rough with the baby the week before and
            had the [sic] check his fingers to make sure they were
            alright”; and

      •     that they were lucky that he didn’t break the baby’s neck as
            the injuries could have been much worse.

Nevertheless, Teresa stated that she believed that the injury was accidental and

refused to consider the alternative. In the same report, the TDFPS worker

described an interview with K.M., “who expressed great fear,” began to cry,

and asked if her parents were going to be able to see the videotape as she was

scared. K.M. reported to the TDFPS worker that her parents had told her to lie

and say only nice things about them when asked, “otherwise they were going

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to be taken away from their mother.” TDFPS placed all three of the children in

foster care. Later, N.W. and J.W. were placed in the care of Ron’s mother,

Karen, and K.M. was placed in the care of her biological father.

      Despite the doctor’s concern that N.W.’s injury was not accidental,

Teresa continued to live with Ron and unquestioningly accepted his version of

events. Teresa and Ron visited N.W. and J.W., but the visits did not go well.

Teresa and Ron paid attention to N.W. during the visits, but mostly ignored

J.W., with Teresa exhibiting no emotion and little affection during the visits.

While the two boys lived with Karen, Teresa and Ron provided little support for

the two boys.

      After removing Teresa’s children, TDFPS developed a service plan, and

later a revised plan, which Teresa completed in part. Pursuant to the plan,

Teresa completed parenting classes, individual counseling, and a psychological

evaluation. In addition, she attended an additional parenting course that was

not listed on the service plan, and completed, on her own, a certification

program that provided her job skills for a better paying job. On August 29,

2007, the caseworker presented Teresa with a revised service plan that

included two additional tasks: couples counseling (with Ron) and a psychiatric

evaluation. However, neither Teresa nor TDFPS was able to arrange for Teresa

to complete these new tasks at times that would not conflict with her work

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schedule. Teresa acquired suitable housing, beds, clothes, toys for her sons,

stable employment, and through her employer, health insurance coverage for

the children, who did not have any ongoing medical needs.

      Meanwhile, N.W. and J.W. were doing well in Karen’s care. Both had

become healthy eaters, with J.W. having his g-tube removed. Karen arranged

for K.M. to come to visit N.W. and J.W. regularly, so that they could maintain

their sibling relationship and planned to adopt both boys if Teresa and Ron’s

parental rights were terminated.          The trial court subsequently terminated

Teresa’s parental rights after Ron voluntarily relinquished his.

                              III. Standard 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 end them permanently—to

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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 Supp. 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 E.M.N., 221 S.W.3d 815, 820 (Tex. App.—Fort

Worth 2007, 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 subdivision (1) of the statute and must also prove that termination

is in the best interest of the child. Tex. Fam. Code Ann. § 161.001; 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 of parental rights is a drastic remedy and is of such weight

and gravity that due process requires the petitioner to justify termination by

clear and convincing evidence. Tex. Fam. Code Ann. §§ 161.001, 161.206(a);

In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002). This intermediate standard falls

between the preponderance standard of ordinary civil proceedings and the

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reasonable doubt standard of criminal proceedings. In re G.M., 596 S.W.2d

846, 847 (Tex. 1980); In re C.S., 208 S.W.3d 77, 83 (Tex. App.—Fort Worth

2006, pet. denied). It is defined as the “measure or degree of proof that 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.” Tex. Fam. Code Ann. § 101.007

(Vernon 2002).

      In reviewing the evidence for legal sufficiency in parental termination

cases, we must determine whether the evidence is such that a fact-finder 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 must

review all the evidence in the light most favorable to the finding and judgment.

Id. This means that we must assume that the fact-finder resolved any disputed

facts in favor of its finding if a reasonable fact-finder could have done so. Id.

We must also disregard all evidence that a reasonable fact-finder could have

disbelieved. Id. We must consider, however, undisputed evidence even if it is

contrary to the finding. Id. That is, we must consider evidence favorable to

termination if a reasonable fact-finder could, and disregard contrary evidence

unless a reasonable fact-finder could not. Id.

      We must therefore consider all of the evidence, not just that which favors

the verdict. Id. But we cannot weigh witness credibility issues that depend on

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the appearance and demeanor of the witnesses, for that is the fact-finder’s

province. Id. at 573, 574. And even when credibility issues appear in the

appellate record, we must defer to the fact-finder’s determinations as long as

they are not unreasonable. Id. at 573.

      In reviewing the evidence for factual sufficiency, we must give due

deference to the fact-finder’s findings and not supplant the judgment with our

own. In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). We must determine

whether, on the entire record, a fact-finder could reasonably form a firm

conviction or belief that Teresa knowingly placed or knowingly allowed J.W.

and N.W. to remain in conditions or surroundings that endangered their physical

or emotional well-being or that Teresa engaged in conduct or knowingly placed

J.W. and N.W. with persons who engaged in conduct that endangered their

physical or emotional well-being, and that the termination of her parental rights

would be in the best interest of the children. C.H., 89 S.W.3d at 28. If, in

light of the entire record, the 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 in the truth of its

finding, then the evidence is factually insufficient. H.R.M., 209 S.W.3d at 108.

If we reverse on factual sufficiency grounds, then we must detail in our opinion




                                         9
why we have concluded that a reasonable fact-finder could not have credited

disputed evidence in favor of its finding. J.F.C., 96 S.W.3d at 266–67.

                               IV. Endangerment

      In her first and second points, Teresa asserts that the evidence is legally

and factually insufficient to support the finding that Teresa engaged in conduct

or knowingly placed the children with persons who engaged in conduct which

endangered the physical or emotional well-being of the children. See Tex. Fam.

Code Ann. § 161.001(1)(E). In her third and fourth points, Teresa asserts that

the evidence is legally and factually insufficient to support the finding that

Teresa knowingly placed or knowingly allowed the children to remain in

conditions or surroundings which endangered the physical or emotional well-

being of the children. See id. § 161.001(1)(D).

             Under section 161.001(1)(E) of the Texas Family Code, the
      term “endanger” means to expose to loss or injury, to jeopardize.
      Accordingly, when analyzing a jury’s findings pursuant to
      subsection (E), we must determine whether sufficient evidence
      exists that the endangerment of the child’s physical well-being was
      the direct result of the parent’s conduct, including acts, omissions,
      or failures to act. Termination under section 161.001(1)(E) must
      be based on more than a single act or omission; a voluntary,
      deliberate, and conscious course of conduct by the parent is
      required. However, it is not necessary that the parent’s conduct
      be directed at the child or that the child actually suffer injury. The
      specific danger to the child’s well-being may be inferred from
      parental misconduct standing alone.




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            To determine whether termination is necessary, courts may
      look to parental conduct both before and after the child’s birth. . . .
      [S]cienter is only required under subsection (E) when a parent
      places the child with others who engage in an endangering course
      of conduct.

            As a general rule, conduct that subjects a child to a life of
      uncertainty and instability endangers the physical and emotional
      well-being of a child.

In re R.W., 129 S.W.3d 732, 738–39 (Tex. App.—Fort Worth 2004, pet.

denied) (citations omitted). Inappropriate or abusive conduct by persons who

live in the child’s home or with whom the child is compelled to associate on a

regular basis in his home is a part of the “conditions or surroundings” of the

child’s home under section 161.001(1)(D). See Castorena v. Tex. Dep’t of

Protective & Regulatory Servs., No. 03-02-00653-CV, 2004 WL 903906, at *8

(Tex. App.—Austin Apr. 29, 2004, no pet.) (mem. op.); In re B.R., 822 S.W.2d

103, 106 (Tex. App.—Tyler 1992, writ denied) (op. on reh’g); see also In re

W.S., 899 S.W.2d 772, 776 (Tex. App.—Fort Worth 1995, no writ) (stating

that “environment” refers not only to the acceptability of living conditions, but

also to the conduct in the home).            Because the evidence pertaining to

subsections 161.001(1)(D) and (E) is interrelated, we may conduct a

consolidated review. In re M.C.T., 250 S.W.3d 161, 169 (Tex. App.—Fort

Worth 2008, no pet.)




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The court had before it the following evidence:

•    Teresa knew that Ron was a convicted felon but had not
     asked about the details of his criminal past.

•    Ron was described as having a temper and had some
     psychiatric issues.

•    Ron had not wanted children.

•    Ron had scratched K.M. as punishment and had been
     suspected other times of physically abusing her.

•    Teresa failed to take J.W. for his follow-up treatment
     following his g-tube surgery even though she believed that
     the surgery was not successful and even though J.W. still
     had “severe diarrhea.”

•    Teresa believed this inaction was justified because an ECI
     dietician was seeing J.W. and she did not have insurance for
     J.W. However, a dietician cannot act as a substitute for a
     doctor.

•    More than a year passed from the time of the g-tube surgery
     until the time of the children’s removal with no physician
     follow-up.

•    N.W. was barely a month old when he was injured while in
     Ron’s care.

•    It took almost five hours before Teresa took him to the
     hospital and he was seen by a doctor who determined that
     N.W.’s femur had a spiral fracture.

•    The doctor suspected intentional injury and contacted
     TDFPS.




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•   Teresa scheduled her supervised visits during her limited
    lunch hour and did not follow-up on an offer to reschedule
    some of the visits when she could have extra time.

•   J.W. was ignored during the visits.

•   Teresa did not provide support for the boys.

•   Teresa failed to give N.W. a birthday present.

•   Teresa brought J.W.’s present late.

•   Karen offered to take J.W. and N.W. to Hawaii; Teresa
    refused to give her permission.

•   Teresa failed to definitively state that she was going to leave
    Ron although she knew this would increase her chances of
    keeping her children, and Ron voluntarily relinquished his
    parental rights and invoked his Fifth Amendment right against
    self-incrimination.

•   Teresa stated that she believed that Ron presented no danger
    to her children even though Ron had told the TDFPS
    investigator that:

    •     that he “did not know exactly what happened to
          the baby”;

    •     that the “baby’s head never hit his leg as he had
          reported”;

    •     that he “did not know where he grabbed the
          baby”;

    •     that he lied “about some of the information
          provided to hospital staff”;




                              13
            •      that “he had been rough with the baby the week
                   before and had the [sic] check his fingers to
                   make sure they were alright”; and

            •      that they were lucky that he didn’t break the
                   baby’s neck as the injuries could have been
                   much worse.

      Based on the foregoing evidence before the court and under the

appropriate standard of review, we hold that the evidence is legally and

factually sufficient to sustain the court’s findings that Teresa knowingly placed

or knowingly allowed J.W . and N.W . to remain in conditions or surroundings

that endangered their physical or emotional well-being and that Teresa engaged

in conduct or knowingly placed J.W. and N.W. with persons who engaged in

conduct that endangered their physical or emotional well-being. We overrule

Teresa’s first four points.

                                V. Best Interests

      In her fifth and sixth points, Teresa asserts that the evidence is legally

and factually insufficient to support the finding that termination of Teresa’s

parental rights is in the best interest of the children.

      Prompt and permanent placement of the child in a safe environment is

presumed to be in the child’s best interest. Tex. Fam. Code Ann. § 263.307(a)

(Vernon 2002). There is also 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.

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2006). Nonexclusive factors that the trier of fact in a termination case may use

in determining the best interest of the child include:

      (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 which may indicate
            that 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)

      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

                                        15
presence of scant evidence relevant to each factor will not support such a

finding. Id.

      The trial court had before it the following additional evidence:

      •        Teresa showed a lack of bonding to the boys and usually
               displayed a “flat affect.”

      •        Teresa failed to help support the boys after their removal.

      •        Teresa continually put her own interests above those of J.W.
               and N.W. by remaining with Ron.

      •        Teresa failed to promptly and completely do the services
               requested by TDFPS; however, she did complete parenting
               classes, individual counseling, and a psychological evaluation,
               and she attended an additional parenting course that was not
               listed on the service plan and completed, on her own, a
               certification program that provided her with job skills for a
               better paying job.

      •        Teresa has found suitable housing and has acquired beds,
               clothes, and toys for her sons, but her home has previously
               been unstable, as she moved three or four times in the year
               after the boys were removed from her care.

      •        Teresa obtained stable employment and began a full-time job
               in September 2007 and, through her employer, is able to
               provide health insurance coverage for the children.

      •        Teresa’s plans for the boys are vague as she seems to
               understand that she cannot support them alone in her current
               apartment based on her current wages.

      •        The boys are well-bonded to and happy living with their
               foster mom and paternal grandmother, Karen.




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      •     The boys have become healthier in Karen’s home, and Karen
            has made arrangements so that they can spend time with
            their half-sister, K.M.

      •     N.W . and J.W.’s emotional and physical needs have been
            best met by Karen.

      •     Karen plans to adopt the boys.

      •     Karen is currently providing for them without financial help
            from Teresa.

      •     Karen’s home is stable and provides a “nurturing and loving
            environment for the boys.”

      •     The children’s CASA volunteer strongly recommended
            termination of the parents’ rights and adoption by Karen.

      Based on the foregoing evidence before the court and under the

appropriate standard of review, we hold that the evidence is legally and

factually sufficient to sustain the court’s finding that termination was in the

best interest of the children. We overrule Teresa’s fifth and sixth points.

                               VI. Conclusion

      Having overruled all of Teresa’s points, we affirm the trial court’s

judgment terminating Teresa’s parental rights to J.W. and N.W.




                                           BOB MCCOY
                                           JUSTICE

PANEL: DAUPHINOT, WALKER, and MCCOY, JJ.

DELIVERED: November 26, 2008


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