                                   NUMBER 13-11-00305-CV

                                      COURT OF APPEALS

                            THIRTEENTH DISTRICT OF TEXAS

                               CORPUS CHRISTI - EDINBURG


  IN THE INTEREST OF T.N.C., C.M.C., AND J.P.C., MINOR CHILDREN


                        On appeal from the 156th District Court
                             of Live Oak County, Texas.


                                   MEMORANDUM OPINION

      Before Chief Justice Valdez and Justices Garza and Benavides
              Memorandum Opinion by Chief Justice Valdez

        Appellant, F.A.C., appeals the termination of her parental rights to her three

children, T.N.C., C.M.C. and J.P.C.1 By five issues, F.A.C. contends that: (1) the

evidence is legally and factually insufficient to support the trial court‘s finding that she

violated four statutory grounds for termination; and (2) the evidence is legally and




        1
           See TEX. R. APP. P. 9.8(b)(2) (providing that in a parental-rights termination case, ―the court
must, in its opinion, use an alias to refer to a minor, and if necessary to protect the minor‘s identity, to the
minor‘s parent or other family member‖).
factually insufficient to support a finding that termination was in the best interest of the

children. We affirm.2

                                             I.         BACKGROUND

        After receiving a report alleging that F.A.C. had physically neglected T.N.C., the

Texas Department of Family and Protective Services (the ―Department‖) filed an original

petition for protection of a child, for conservatorship, and for termination in a suit

affecting the parent-child relationship regarding T.N.C. and J.P.C.

        On March 11, 2010, the trial court entered an order for protection of a child in an

emergency and notice of hearing naming the Department as the temporary sole

managing conservator of the children, T.N.C. and J.P.C., and setting a hearing pursuant

to section 262.201 of the Texas Family Code. On March 24, 2010, the trial court, in its

temporary order following adversary hearing, ordered F.A.C. to: (1) provide child

support, medical support, her medical history, and contact information of family

members with whom the children may be placed; (2) attend and cooperate fully in

counseling sessions, parenting classes, and appear for drug and alcohol dependency

assessment; (3) comply with each requirement set out in the Department‘s service plan;

and (4) provide, within thirty days, ―information sufficient to accurately‖ identify her net

resources and ability to pay child support, establish the parentage and immigration

status of the children, to ensure that the Department has the children‘s medical history,

the parents‘ current address and contact information, and required notification within

five days of a change of address or phone number.3

        2
            The father is not a party to this appeal.
        3
          The trial court documented that F.A.C. had failed to appear at the hearing after being ―duly and
properly notified.‖


                                                          2
       On April 20, 2010, the Department filed an amended petition for protection of a

child for conservatorship, and for termination in a suit affecting the parent-child

relationship, requesting that F.A.C.‘s parental rights to C.M.C. be terminated. On that

same day, the trial court appointed the Department temporary sole managing

conservator of C.M.C. The trial court made similar orders as in its March 24 order for

F.A.C. to follow with respect to C.M.C.

       On February 28 and March 1, 2011, a jury trial to determine whether F.A.C.‘s

parental rights should be terminated was held. Upon the jury‘s finding that F.A.C. had

violated section 161.001 subsections (D), (E), (N), and (O) and that termination was in

the children‘s best interest, the trial court entered an order terminating F.A.C.‘s parental

rights as to T.N.C., J.P.C., and C.M.C. See TEX. FAM. CODE ANN. § 161.001(1)(A-T)

(West Supp. 2010). This appeal followed.

                                   II.    THE EVIDENCE

       F.A.C. testified that she currently resides in McAllen, Texas with a friend who has

four children and is working part time as a maid. F.A.C. stated that she has lived at this

residence for one month; previously, she lived in the residence next door to this

residence for approximately ―a couple of months.‖ Before moving to McAllen, F.A.C.

lived in Edinburg on Rayburn Street ―from June until 4th of July, and then [she] went

back July 11th, and then [she went] back to George West [on July] 20-something.‖

F.A.C. stated she ―went back August 13th until close to Thanksgiving‖; however, it is

unclear where F.A.C. meant.         F.A.C. testified that during the pendency of the

proceedings, she has lived in six different locations and that she did not consider those

living conditions to be stable.



                                             3
      F.A.C. worked at the Dairy Queen in George West when the Department‘s

investigation began. She stated that she quit her job at Dairy Queen on approximately

May 23, 2010 and she started working again in July until August 13, 2010. F.A.C.

claimed that she worked at Whataburger from ―the beginning of December until

December 28th, and then in Edinburg at a grapefruit warehouse was [sic] December

28th to February 1st[, 2011].‖ According to F.A.C., she has been hired to work at the

Whataburger in Elsa, Texas and will begin in a few weeks; she also has been accepted

to train as a medical assistant at South Texas Vocational Institute.

      F.A.C. stated that she lived in George West on Highway 281 when the

Department began its investigation of neglect in January, 2010. At that time, T.N.C. and

C.M.C. were attending school—T.N.C. was in kindergarten and C.M.C. was in Head

Start. According to F.A.C., T.N.C. had failed kindergarten because of her truancy, and

F.A.C. ―went to court for it.‖ F.A.C. claimed that T.N.C. did not want to go to school and

that T.N.C. had trouble waking up and would miss the bus. F.A.C. did not have a car to

drive T.N.C. to school. F.A.C. agreed that it was her responsibility to get T.N.C. to the

bus on time, but she claimed that she was not home the majority of the time T.N.C.

missed the bus and blamed the father. F.A.C. acknowledged that in order to ―go to

court for truancy there would have to be a lot of absences.‖

      F.A.C. testified that she received calls from T.N.C.‘s school regarding her

hygiene and clothing. F.A.C. stated, ―[T.N.C.] would urinate herself, she had a kidney

and bladder infection. I would take her to the hospital, she would get treated for it. She

had lice, and I would clean it, but she would get reinfested.‖ F.A.C. agreed that when

the Department began its investigation of the allegations of neglect and abuse, she



                                            4
voluntarily placed her children outside the home with a family friend, Marta Garcia.

F.A.C. stated that she thought the children were with Garcia for approximately one

month; she did not recall exactly how long. F.A.C. claimed that the electricity in her

home was ―cut off‖ the same day the Department removed the children from her home.

F.A.C. admitted that the Department‘s investigator asked her to make several

improvements to the home, including, ―fixing some windows and a hole in the restroom

floor.‖ F.A.C. claimed she never made these improvements because she had ―a month

to do it . . . [and] the kids got removed before the 30 days.‖ F.A.C. also claimed that the

father was in charge of making the improvements and that she does not know how to fix

a window. F.A.C. did not believe that the Department was unreasonable for asking her

to make the improvements within thirty days.

       F.A.C. could not recall being ordered by the trial court to be present at an

adversary hearing regarding her children. However, when asked if she remembered

telling a caseworker that she was in Edinburg the day before the hearing, F.A.C. replied,

―I had went, because we were buying a trailer house in Three Rivers, and they went to

check the house. The floors needed to be fixed. I had gone to Edinburg to get some

supplies, I ended up going to jail because I had a warrant for my arrest. I wasn‘t able to

come to court.‖ F.A.C. agreed that it would have been important for her to be present at

the hearing.

       F.A.C. identified petitioner‘s exhibit number 1 as a family service plan regarding

her children. The trial court admitted the service plan into evidence. It states that the

Department became involved in F.A.C.‘s case because:

             [T.N.C.] was missing alot [sic] of school, had lice, was unkempt,
       smelled of urine. Parents did not send spare clothing to school as

                                            5
       requested. [T.N.C.] had recurring kidney infections. [T.N.C.] would arrive
       at school with no underwear or socks. [T.N.C.] and siblings were dressed
       inappropriately for weather. [T.N.C. was required to repeat kindergarten]
       due to [a] significant amount of missed school. The children were not
       receiving proper medical attention or having their medication properly
       administered. Allegations of domestic violence and substance abuse
       contributed to the Department seeking legal custody of the children.

The plan states that once the children are returned to the parents, the parents will

―provide a learning and educational environment‖ by reading to the children and

engaging the children in educational activities and by ensuring that the children attend

school and complete any assigned homework. The Department‘s concerns as of April

20, 2010, related to risk and safety of the children were documented in the plan as

follows:

               All three children are under the age of 5 and are unable to verbalize
       and protect themselves from harm. The ages of the children are 5, 4, and
       2 years old. The 4 year old [C.M.C.] has a speech problem, she could not
       verbalize her full name or answer introductory questions. [F.A.C.] and
       [the] father informed the Department of her problem, and she is going to
       begin speech therapy at Headstart. [T.N.C.] is aggressive. She talks
       back and was noted to kick her caregiver. She will also resist her parent‘s
       directives. She was physically pushing her mom away when her mom
       was trying to put her seat belt on after [T.N.C.] verbally refused. She was
       also sticking the finger at her parents.

              Parents lack control over the children. The children hit their parents
       and talk back. Parents cannot make children get up for school. Parents
       can‘t potty train. Mom admitted drug use after kids removed.

              Children play outside inappropriately dressed for weather without
       supervision. Children are not given medication for pink eye, have had lice
       for months, need immunizations, children are dirty. Mom has left kids to
       go out of town, at least twice during investigation, to go with friends.

              The issues, concerns, and conditions initially bringing the children
       into CPS have worsen[ed] since the Department[‘]s involvement. The
       children‘s lack of medical attention and parent[‘]s inability to administer
       their medication; drug use; education; and physical care and condition of
       the children are concerns.



                                            6
             The home does need to be significantly organized and cleaned. A
      window in the house is broken and there is a hole in the bathroom floor as
      one enters. The child [T.N.C.] voluntarily expressed that father has hit
      [F.A.C.] in the mouth, more than once, and it makes [T.N.C.] feel angry
      and sad. The home‘s interior and exterior was filthy. It was impossible to
      determine junk or trash from items kept. The home smelled like animal
      urine, clothes were scattered, and the home had several hazards, such as
      broken windows, and holes in the floor.

             [F.A.C.] does not realize the extent of neglect or minimizes the
      concerns. [F.A.C.] seems unmotivated because of the overwhelming
      socioeconomic stress.       [F.A.C. and the father] have lied to [the
      Department]. They changed [their] story [regarding an] incident when [the]
      father left with kids, [F.A.C.] changed date of drug use, [and they] lied
      about [their] income tax return.

              [F.A.C.‘s and the father‘s] work schedules have caused them to
      need a babysitter. Their landlord will be babysitting. This appears to be
      the only person who can help this family. Most relatives live out of town.
      Friends and family members mentioned in town are males who can not
      care for the children. Parents had trouble finding placements. They claim
      to stick to themselves. Father reported that [F.A.C.] threatened to leave
      with the children.

            [F.A.C.] disclosed that she wanted to go away and start over with or
      without the children.

      The family plan also set out the goals for F.A.C. and the father as follows: (1)

parents shall attend individual therapy and demonstrate an ability to support and protect

their children; (2) parents will sign a release of information for all physicians,

psychologists, therapists, and drug treatment centers; (3) parents shall become

employed full time by May 30, 2010 in order to support themselves and the children; (4)

parents shall provide verification of employment; (5) parents shall provide original birth

certificates, social security cards, and immunization schedules for T.N.C., J.P.C., and

C.M.C.; (6) parents shall notify the Department within five days of a change of address

and phone number; (7) parents ―shall actively participate in services provided by the

Department as well as services obtained through referrals‖; (8) parents shall complete a

                                            7
drug assessment; (9) ―Parents shall participate in supervised visitations by the

Department and demonstrate learned parenting skills as arranged through the

Department‖; (10) ―Parents shall provide and maintain appropriate housing that is free

of health and safety hazards‖ with working utilities, access to a telephone for emergency

purposes, adequate food, medical care, and clothing for the children; (11) parents shall

provide the Department with proof of appropriate housing and working utilities by May

30, 2010; (12) parents shall pay child support; (13) parents shall participate in random

drug testing with negative results; (14) parents shall attend and complete parenting

classes; (15) parents shall make an appointment with ―MHMR‖ and attend

recommended services; (16) parents shall provide complete medical history of

themselves and the children; and (17) parents shall undergo psychological testing. The

Department‘s task/service included monitoring and supporting the parents with

completing designated tasks to facilitate family reunification. F.A.C. signed the plan on

May 11, 2010 acknowledging that she understood that the family plan ―is a very

important document‖ and that if she was unable or unwilling to provide her children with

a safe environment, her parental rights may be terminated, and that a court hearing

would be held to review the family service plan.4

        F.A.C. stated that she was supposed to follow the service plan and that it

documented the services she was ordered to complete.                         F.A.C. claimed that she

attended individual therapy in Edinburg; however, she stated that she did not have any




        4
           In a May 12, 2010 status hearing order, admitted as petitioner‘s exhibit number 2, the trial court
ordered that ―the permanency plans and recommendations for the children, set out in the service plans
filed with the Court, are approved and adopted by the Court as if set out verbatim in this order.‖


                                                     8
documentation proving that she did so.5                     F.A.C. testified that she attended three

counseling sessions; then she stated that she could not remember. When asked if she

complied with the requirement that she notify the Department of any address or

telephone changes within five days, F.A.C. replied, ―Yes, sir, but not within five days.‖

When asked if the Department was able to contact her by phone when necessary,

F.A.C. responded, ―Sometimes.‖ When asked if she complied with the requirement that

she participate in supervised visitations with the children, F.A.C. said, ―At first, yes, and

then after I moved, not that often. I went—after I moved I got to see them in June

around [T.N.C.‘s] birthday. . . .‖ F.A.C. stated that she visited the children three or four

times between July and December 2010 and that she had visited the children twice

between December 2010 and February 28, 2011. According to F.A.C., her visitation

with the children was ―[s]upposed to be every Tuesday, but [she] cancelled for every

other Tuesday, but because of [her] job, because [she] was working at the time, [she]

couldn‘t come.‖          Regarding whether she had provided and maintained appropriate

housing, F.A.C. stated she had because for the past month, she has lived with a ―lady‖

and that they were renting a house together and splitting the bills since February 14,

2011.6 F.A.C. claimed that she had paid child support when she started working at

Whataburger in December 2010. F.A.C. testified that although she was behind in the

payments by three months in December, she had caught up on her child support

payments.7 However, F.A.C. then stated that she had not paid child support from ―when


         5
        We note that the service plan required F.A.C. to complete individual therapy at Spoudazo
Resources of South Texas.
         6
             At the time of the trial on February 28, 2011, F.A.C. had been living in this home for less than a
month.
         7
             The trial court admitted defense exhibit 1 showing that child support payments had been

                                                        9
[she] recently got unemployed until now it hasn‘t been paid.‖ F.A.C. admitted that she

had only participated in the random drug testing twice since April 2010 and claimed that

she had completed parenting class. When asked if she had demonstrated knowledge

of appropriate parenting skills, F.A.C. replied, ―I feel I‘m ready to demonstrate the skill

for my children.‖ F.A.C. admitted that she had failed to complete psychological testing

and that she had not completed all the requirements of the service plan.

       F.A.C. testified that her plans for the children included sending them to school,

and ―bettering [herself] to provide a better life for them. . . .‖ F.A.C.‘s residence has two

bedrooms and a ―big living room‖ that can be converted into a bedroom. F.A.C. has a

roommate and the children will either sleep in one of the bedrooms or in the living room,

once it‘s converted into a bedroom.            F.A.C. testified that her roommate has four

children—two boys and two girls ages, 14, 13, 12, and 10. F.A.C. believed that she

would be able to get the children to school on time because the school is only one block

away from her residence.

       On cross-examination by the children‘s attorney ad litem, F.A.C. stated that

personnel from T.N.C.‘s school had complained about T.N.C. going to school without

socks, but denied any knowledge of T.N.C. attending school without underwear. F.A.C.

blamed the sock incident on the father and claimed she was not present and that he

could not find any clean clothes for T.N.C. to wear. F.A.C. acknowledged that the

school had been complaining about the head lice since the beginning of the school

year. F.A.C. testified that she was aware of the date of the adversarial hearing but still



deducted from F.A.C.‘s salary on December 27, 2010 in the amount of $56.81, on January 3, 2011 in the
amount of $64.85, on January 10, 2011 in the amount of $64.85, on January 14, 2011 in the amount of
$85.38, on January 28, 2011 in the amount of $68.82, and on February 4, 2011 in the amount of $82.77.


                                                 10
chose to go to Edinburg the day before the hearing. F.A.C. agreed that she told her

caseworker about using cocaine because the caseworker was about to perform a drug

test on her. F.A.C. did not remember if she had a cell phone showing missed calls from

her caseworker. F.A.C. stated that she has had four or five phone numbers since the

children‘s removal. F.A.C. testified that although she had attended three counseling

sessions, she was unable to complete the program because she ―kept calling to

reschedule and he never answered my call.‖ F.A.C. acknowledged that her counselor

had not released her from the program. F.A.C. stated that she knew that her children

were in foster care ―in this area‖ when she moved to Edinburg on May 23, 2010 and still

made the decision to move.        F.A.C. agreed that she had not appeared at two

subsequent hearings, claiming that she ―didn‘t have a vehicle, and no employment for

[sic] to get money to come on the bus.‖ F.A.C. acknowledged that she understood the

terms and the tasks she was required to perform under the service plan.

      On direct examination by her trial counsel, F.A.C. claimed that she took care of

T.N.C.‘s lice problem and that the school nurse told her she was doing a good job at

controlling the problem. F.A.C. blamed T.N.C.‘s urinary tract infection on the fact that

T.N.C. would wait to the last moment to urinate and stated that ―Until this day she still

does that.‖ F.A.C. testified that her visitation was scheduled to occur in Beeville, Texas

and that it takes approximately three hours to travel to Beeville from Edinburg. F.A.C.

claimed that the trip was very difficult for her to make because she was working at a

warehouse and she would have been terminated if she asked for time off. When asked

if she had attempted to meet with the psychologist, F.A.C. responded, ―Once, yes.‖

F.A.C. stated that she was unable to ―go all the way to Corpus‖ for the appointment and



                                           11
―they couldn‘t make arrangements for it to be done in Edinburg.‖ F.A.C. testified that

the service plan was inaccurate because it stated that she had not completed any of the

tasks and that she had completed some.

       On redirect examination, F.A.C. stated that she ―sometimes‖ thought it might

have been better for her to have stayed in George West to be closer to her children and

that it would have made it easier to visit her children. F.A.C. did not believe that it would

have been easier to complete her service plan, however, because her former employer

would not have given her time off. F.A.C. stated that she thought that moving to the Rio

Grande Valley was good for her children because she had ―better opportunities‖ in the

Valley. F.A.C. denied that domestic violence occurred when she was living with the

father and that she never told any investigators that domestic violence had occurred.

F.A.C. acknowledged that she called the police when she found the words ―I love you‖

written in blood in her living room and that her children were missing.

       Pam Johnson, T.N.C.‘s kindergarten teacher, testified that when T.N.C. started

class, her level of education was ―below what a normal kindergarten student comes to

school with. She didn‘t know her colors, her numbers, she didn‘t know T was the first

letter in her name. . . .‖ Johnson stated that typically, a child in kindergarten knows the

letters of their first name, knows how to write their first name, knows their first and last

name, and knows how old they are. Johnson claimed that when they asked T.N.C. how

old she was, T.N.C. did not state the correct age and that T.N.C. did not know her first

and last name. T.N.C. also did not know her siblings‘ names. Johnson stated that

T.N.C. had very poor attendance and that on one occasion when T.N.C. missed the

bus, a ―Mr. James‖ picked T.N.C. up and brought her to school. Johnson said, ―In the



                                             12
20 years I‘ve been teaching, [T.N.C.] came to school as the lowest student I‘ve ever

seen.‖

         Regarding T.N.C.‘s hygiene, Johnson explained:

                 Her hygiene was lacking. Her hair was normally dirty with bugs,
         she had an odor about her from what we discovered was urinary tract
         infections. On a cold day she‘d come in sleeveless shirt, no jacket.
         Sometimes when she did come with a jacket the jacket was very filthy. So
         we had issues with that.

Johnson testified that T.N.C. ―smelled pretty strong‖ with the scent of urine on some

mornings, and Johnson sent her to the school nurse on those occasions.

         Johnson testified that T.N.C. had twenty-eight absences and was present sixty-

one days. Johnson stated that T.N.C. did not have any major behavior problems, but

she recalled that T.N.C. may have been ―off task.‖ Johnson attributed this issue to

T.N.C.‘s home environment.

         Debbie Riddle, the nurse at T.N.C.‘s school, testified that she had contact with

T.N.C. quite often due to the bugs in her hair. Riddle stated that T.N.C. had ―lots of

bugs.‖ According to Riddle, F.A.C. was the primary caregiver and she assisted F.A.C.

with the treatment of the lice. When asked if the lice were ever completely treated,

Riddle replied, ―At times. It was like when I would tell them to clean it up they would for

maybe a day or two, and then here we go again. She‘d have it again three or four days,

and here we go again, next week it was the same old thing. They just wouldn‘t stay on

top of it.‖ Riddle did not believe it was ―normal‖ for the lice to reoccur and blamed the

parents. On cross-examination by the children‘s attorney ad litem, Riddle stated that

the recurring lice problem was a result of ―the parents [not] properly clean[ing] the child,




                                            13
they don‘t get all the eggs out that are left in there that will hatch and start all over again.

They just need to stay on top of it.‖

       Riddle stated that T.N.C. had ―an odor about her‖ that Riddle believed to be due

to a urinary tract infection. Riddle discussed the issue with F.A.C. and thought that it

had been addressed; however, the infection kept reoccurring. Riddle stated that it was

not normal for a child T.N.C.‘s age to have such an infection and that the parents would

need to take the child to the doctor.

       Veronica Molina testified that she is an investigator with the Department and that

she conducted an investigation involving F.A.C. based on allegations of physical neglect

of T.N.C. and concern for unknown siblings. Molina visited the children on January 24,

2010 at F.A.C.‘s home in George West. Molina said:

              Initially it was a very cold day and the children were running around
       outside with sundresses, like spaghetti-strapped dresses, and they had no
       shoes on. [T.N.C.] was running around with a blanket and was shivering.
       The three-year-old [J.P.C.] was just in a diaper, no shirt, no shoes, no
       pants outside. All three of the children had dried snot on their nose and
       under their eyes; and [T.N.C.] and [C.M.C.] had pink eye.

F.A.C. was not present, but when she arrived, Molina discussed her concerns about the

children‘s attire with her; however, F.A.C. did not change the children‘s clothes. Molina

testified that the children were sent to school with pink eye and that F.A.C. told her she

did not have money to buy any medicine or take them to the doctor. Therefore, the

children‘s pink eye was not being treated.

       Molina stated that T.N.C. made an outcry of domestic violence by telling her that

when her parents are mad, ―Dad hits Mommy, Dad has hit Mommy in the face‖ and that

had occurred on more than one occasion. T.N.C. told Molina that she felt angry when

her father hit F.A.C. According to Molina, T.N.C. claimed that when she is punished,

                                              14
she gets ―an ass whipping.‖     Molina explained that she then asked the parents to

provide the following safety measures:     (1) appropriately dress the children for the

weather; (2) provide proper medical attention for the children‘s pink eye, address the

lice, and the urinary tract infection; and (3) refrain from any domestic violence in the

home.

        Four days after Molina‘s meeting with the parents, F.A.C. called Molina and

informed her that the father had taken the children out of the home to Buda, Texas after

writing ―I love you‖ in blood on the living room wall. F.A.C. reported the incident to the

police department; Molina stated that she confirmed the report with the police

department. On that day, Molina asked F.A.C. to voluntarily place the children out of

the home because Molina discovered that the home was cold and did not have

electricity, cats were ―left unkempt‖ in the home and seemed ―to be living in the home

without being cleaned up after,‖ and the home ―smelled like animals.‖

        Molina confirmed that the children were with the father and when the father and

the children returned to George West, the children were removed from F.A.C.‘s home

and placed with Garcia on January 28, 2010. While the children stayed with Garcia,

Molina asked the parents to do the following: (1) turn on the electricity; (2) clean the

home; and (3) fix the safety hazards including the broken windows in the home and the

―big hole‖ in the bathroom floor. On February 19, 2010, the Department received notice

that Garcia ―had been disciplining [T.N.C.] at school in front of others, and [Garcia]

made a threat of violence to the school saying she was going to get her gun and go

shoot up the school and shoot up the parents and C.P.S. people because she was




                                           15
frustrated that she was unable to go to work because she was having to take the

children to the doctor.‖

        The children were removed from Garcia‘s home on March 10, 2010, and the

parents were asked to provide another placement for them. T.N.C. and J.P.C. were

placed in the father‘s aunt‘s home in Buda and C.M.C. was placed with F.A.C.‘s

grandmother.        Molina testified that the placement for T.N.C. and J.P.C. was not

appropriate due to the conditions of the home—―it was not a good fit for them because

the environment was not very clean and [Molina] noticed hazards.‖ 8 Molina stated that

the Department‘s intent at this point was to work with the family, and the Department

gave F.A.C. more time to find alternative placement for T.N.C. and J.P.C.; however, the

placement ―broke down anyway‖ and the Department had to remove the children.

C.M.C stayed in her placement; however, that placement also eventually ―broke down.‖

        Molina testified that when the children were removed, she was unable to contact

F.A.C. and the parents for other possible placements because F.A.C. no longer lived at

the address in the Department‘s records and ―no one knew where she was.‖ Molina

said, ―I made all efforts to try to contact the mother and father to try to get placement.

Unfortunately that could not be done on time until after we removed.‖ According to

Molina, she became aware that F.A.C. spent time out of town in February or March and

that when she made contact with F.A.C. during that time period, F.A.C. was either in

Houston, Edinburg, or Buda. Molina stated, ―She was around, not locally where I could

keep in contact with her to work with her.‖                   Molina testified that, based on her

        8
          On cross-examination, Molina explained, ―Some of the rooms in the home didn‘t have electricity,
so it was nighttime, so we really couldn‘t get a good look at the house on how it looked in the daytime.
The outside had a lot of debris like I would say material just scattered throughout the property. . . . At the
time we didn‘t feel it was good for permanent placement throughout this working with mom.‖


                                                     16
conversations with F.A.C., it appeared to her that F.A.C. was aware of the tasks in the

service plan.

       Sara Bridge, a conservatorship supervisor with the Department, testified that she

supervises caseworkers and administrative staff and that her ―stage of service deals

with families once the children have actually been removed . . . .‖ She ―handle[s] the

court hearing, the services to the family‖ and monitors the foster or relative placements,

and ―basically, keep[s] tabs on the entire case for approximately a year.‖ Bridge had

been working on F.A.C.‘s case since March 24, 2010.

       Bridge stated that F.A.C. had not completed her service plan and was lacking the

following: (1) completion of individual counseling; (2) providing the children‘s original

birth certificates, social security cards, and immunization records; (3) failing to provide

―up-to-date‖ phone numbers and addresses throughout the pendency of the case; and

(4) failing to attend supervised visitation with the children. Bridge also testified that

F.A.C. had made six child support payments since December 17, 2010 but that prior to

that, F.A.C. had not made any child support payments and had a balance of $1,978.18.

Regarding visitation, Bridge said, ―The visitation is sporadic. She attended the first five

to six visits starting April 1st [2010], and then she didn‘t visit again until I believe August

[2010], and then the next visit wasn‘t until December 8th, [2010], and then the next

wasn‘t until January 25th, 2011. August 5th and August 12th.‖ According to Bridge,

F.A.C. attended ten visitations with her children and missed thirty-four. Bridge testified

that F.A.C. was admonished by the trial court that failure to cooperate with the service

plan could be a ground for termination of her parental rights.              Bridge identified




                                              17
petitioner‘s exhibit number 2 as the trial court‘s status hearing order wherein ―the family

service plan was adopted and became a court order.‖

        Bridge acknowledged that F.A.C. completed the drug assessment but stated that

F.A.C had not completed the psychological evaluation.                     Bridge testified that two

appointments were made for F.A.C.‘s psychological examination but that F.A.C. failed to

report to either because she was in the Valley at the time. Bridge said, ―Two letters that

were mailed out were mailed to I guess a previous address right before she moved to a

new address. They were being returned to the Department and the doctor‘s office.‖

Bridge agreed that F.A.C. did not have a stable home environment and stated,

               I can count at least nine addresses that we are aware of, living with
        the father, the grandfather of the children, to living with a boyfriend; that‘s
        coming out of counselor‘s notes. She‘s actually living with a boyfriend and
        she moves from that home to a friend‘s home. So there has been multiple
        addresses that I‘m not even aware of the actual physical address. I just
        am told she was living there.

Bridge did not believe that was a proper living environment for the children.

        According to Bridge, the children are now ―completely caught up on all their

medicals and dentals.‖ Bridge testified that when T.N.C. was removed from F.A.C.‘s

care, T.N.C. had a urinary tract infection that has been treated and ―within a month her

head lice, her urinary tract infection and the pink eye had been completely cleared up.‖9

Bridge stated that those problems have not reoccurred.                   Bridge said, ―Since being

placed in a foster home she‘s not had any accidents at school, urinations, she hasn‘t

had any problems with wetting herself.‖                 Regarding T.N.C.‘s development, Bridge

stated:

        9
           On cross-examination, Bridge stated that F.A.C. had reported that she saw lice on T.N.C. at a
visitation on August 12, 2010. However, according to Bridge there is no evidence that T.N.C. actually had
lice and the foster parents took T.N.C. to the doctor and nothing was found.

                                                   18
              She was extremely delayed when she came into care. She actually
       had to be retained in kindergarten, she had to repeat kindergarten this
       year because she was so behind. She is doing well. She knows her
       colors, her numbers, she can write her name, she‘s helping with writing—
       each year they write books, and she writes her paragraph for the book.
       She‘s doing very well. She had some patches where she wasn‘t retaining
       information, but the repetitiveness of the school being put into after school
       programs has really helped her. She‘s really improved.

Bridge testified that there were ―no problems‖ with C.M.C. and J.P.C.; however, C.M.C.

does have a speech impediment, and she is receiving speech therapy. Both children

are also receiving individual counseling due to problems with aggression.

       Bridge stated that the permanency plan for the children is termination of the

parental rights and non-relative adoption. The Department contacted the father‘s fifteen

siblings and none are able to care for the children. Bridge did not believe that F.A.C.

has shown that she is capable of caring for the children and that the Department has

made every reasonable effort to return the children to her.            In Bridge‘s opinion,

termination of F.A.C.‘s parental rights was in the children‘s best interest.

                    III.   APPLICABLE LAW AND STANDARD OF REVIEW

       Involuntary termination of parental rights involves fundamental constitutional

rights and divests the parent and child of all legal rights, privileges, duties, and powers

normally existing between them, except for the child‘s right to inherit from the parent.

Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985); see In re D.S.P., 210 S.W.3d 776, 778

(Tex. App.—Corpus Christi 2006, no pet.). Therefore, termination of the parent-child

relationship must be supported by clear and convincing evidence.               In re J.L., 163

S.W.3d 79, 84 (Tex. 2005); In re D.S.P., 210 S.W.3d at 778. This intermediate standard

falls between the preponderance of the evidence standard of civil proceedings and the

reasonable doubt standard of criminal proceedings. In re G.M., 596 S.W.2d 846, 847

                                             19
(Tex. 1980); In re C.S., 208 S.W.3d 77, 83 (Tex. App.—Fort Worth 2006, pet. denied);

Porter v. Tex. Dep’t of Protective & Regulatory Servs., 105 S.W.3d 52, 57 (Tex. App.—

Corpus Christi 2003, no pet.).

       Before terminating the parent-child relationship, the trial court must find that the

parent committed one of the acts prohibited by section 161.001(1)(A-T) of the Texas

Family Code and that termination is in the child‘s best interest. TEX. FAM. CODE ANN. §

161.001(1)(A-T); id. § 153.002 (West 2008); In re J.L., 163 S.W.3d at 84. A parent

violates section 161.001(1) if she does, among other things, the following:               (1)

―knowingly place[s] or knowingly allow[s] the child[ren] to remain in conditions or

surroundings which endanger the physical or emotional well-being of the child[ren],‖

TEX. FAM. CODE ANN. § 161.001(1)(D); (2) ―engage[s] in conduct or knowingly place[s]

the child[ren] with persons who engaged in conduct which endangers the physical or

emotional well-being of the child[ren],‖ id. at § 161.001(1)(E); (3) fails to ―comply with

the provisions of a court order that specifically established the actions necessary for the

parent to obtain the return of the child[ren] who [have] been in the permanent or

temporary managing conservatorship of the [Department] for not less than nine months

as a result of the child[ren]‘s removal from the parent under Chapter 262 for the abuse

or neglect of the child[ren],‖ id. § 161.001(1)(O); or (4) ―constructively abandon[s] the

child[ren] who [have] been in the permanent or temporary managing conservatorship of

the [Department] for not less than six months,‖ the Department ―has made reasonable

efforts to return the child[ren] to the parent,‖ who ―has not regularly visited or maintained

significant contact with the child[ren],‖ and who ―has demonstrated an inability to provide

the child[ren] with a safe environment,‖ id. § 161.001(1)(N).



                                             20
       In reviewing the legal sufficiency of the evidence supporting parental termination,

we must ―look at all the evidence in the light most favorable to the finding to determine

whether a reasonable trier of fact could have formed a firm belief or conviction that its

finding was true.‖ In re J.L., 163 S.W.3d at 85 (quoting In re J.F.C., 96 S.W.3d 256, 266

(Tex. 2002)); In re D.S.P., 210 S.W.3d at 778. We must assume that the trier of fact

resolved disputed facts in favor of its finding if it was reasonable to do so. In re J.L.,

163 S.W.3d at 85. We must also disregard all evidence that a reasonable fact-finder

could have disbelieved or found to be incredible. City of Keller v. Wilson, 168 S.W.3d

802, 827 (Tex. 2005); In re D.S.P., 210 S.W.3d at 778.              ―If [an appellate court]

determines that no reasonable fact-finders could form a firm belief or conviction that the

matter that must be proven is true, then that court must conclude that the evidence is

legally insufficient.‖ In re J.F.C., 96 S.W.3d at 266.

       In a factual sufficiency review, ―[w]e must determine whether, on the entire

record, a fact-finder could reasonably form a firm conviction or belief that the parent

violated a provision of section 161.001(1) and that the termination of the parent‘s

parental rights would be in the best interest of the child.‖ In re M.C.T., 250 S.W.3d 161,

168 (Tex. App.—Fort Worth 2008, no pet.) (citing In re C.H., 89 S.W.3d 17, 28 (Tex.

2002)). Under this standard, we consider whether the ―disputed evidence is such that a

reasonable fact[-]finder could not have resolved the disputed evidence in favor of its

finding. 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, then the evidence is

factually insufficient.‖ In re J.F.C., 96 S.W.3d at 266.



                                             21
                                    IV.      DISCUSSION

       By her first four issues, F.A.C. contends that the evidence is legally and factually

insufficient to prove by clear and convincing evidence that she violated section

161.001(1) of the family code by:         (1) knowingly placing or knowingly allowing the

children to remain in conditions or surroundings which endangered their physical or

emotional well-being; (2) engaging in conduct or knowingly placing the children with

persons who engaged in conduct which endangered the physical or emotional well-

being of the children; (3) constructively abandoning her children as set out in section

161.001(1)(N); and (4) failing to comply with the provisions of a court order that

specifically established the actions necessary for her to obtain the return of the children

who were in the permanent or temporary managing conservatorship of the Department

for not less than nine months as a result of the children‘s removal from her under

chapter 262 for abuse or neglect of the children.          See TEX. FAM. CODE ANN. §

161.001(1)(D), (E), (N), (O).

       As a preliminary matter, the Department argues that F.A.C. has failed to preserve

her factual sufficiency challenge to the jury‘s findings because she did not file a motion

for new trial with the trial court as required by rule of civil procedure 324(b)(2). TEX. R.

CIV. P. 324(b)(2). We agree with the Department.

       A motion for new trial is required in order to preserve a complaint that the

evidence is factually insufficient to support a jury finding.     Id.; Cecil v. Smith, 804

S.W.2d 509, 511–12 (Tex. 1991); In re I.V., 61 S.W.3d 789, 794 (Tex. App.—Corpus

Christi 2001, no pet.), disapproved on other grounds, In re J.F.C., 96 S.W.3d at 267

n.39 (holding that the appellant waived her factual insufficiency complaint by not filing a



                                              22
motion for new trial); see In re M.S., 115 S.W.3d 534, 546 (Tex. 2003) (acknowledging

that the appellant‘s factual sufficiency complaint had been waived because of trial

counsel‘s failure to file a motion for new trial). Accordingly, we conclude that F.A.C. has

not preserved her factual sufficiency complaints, and we will not address those issues.10

See TEX. R. CIV. P. 324; Cecil, 804 S.W.2d at 510; In re I.V., 61 S.W.3d at 794; see also

In re M.S., 115 S.W.3d at 546.

A.      Violation of Section 161.001(1)(O)

        By her fourth issue, F.A.C. contends that the evidence was legally and factually

insufficient to support the jury‘s finding that she violated section 161.001(1)(O). The

record shows that after a hearing, the trial court appointed the Department as the

children‘s temporary managing conservator and ordered both parents to comply with

each provision of the court order, which set out the actions necessary for the parents to

avoid the restriction or termination of their parental rights.                  At the time of trial on

February 28 and March 1, 2011, the children had been in the managing conservatorship

of the Department for nearly one year.

        The testimony at trial showed that F.A.C. had failed to comply with the provisions

of the trial court‘s order. F.A.C. concedes that the children were in the custody of the

Department for the nine-month period preceding trial and that she did not comply with

all the requirements of the service plan as ordered by the trial court. However, F.A.C.

generally asserts that there was no evidence that the children were removed for abuse

or neglect. F.A.C. then maintains that it was impossible for her to comply with all of the

        10
            F.A.C. does not contend that her trial counsel was ineffective by failing to file a motion for new
trial. Furthermore, in the context of ineffective assistance of counsel analysis, ―when a motion for new
trial is not filed in a case, the rebuttable presumption is that it was considered by the appellant and
rejected.‖ In re M.S., 115 S.W.3d 534, 549 (Tex. 2003).


                                                     23
requirements of the service plan for various reasons, including that she moved to the

Valley and the distance was too great for her to comply, the appointments for her

psychological evaluation were not in the Valley, and the Department knew that F.A.C.

lived in the Valley and they failed to transfer any of the services to the Valley or to help

her make travel arrangements to comply with the service plan. Finally, F.A.C. argues

that she did complete some of the requirements of the service plan.

       Evidence was presented that the Department became involved in this case after

a report that T.N.C. was missing school, had lice, was unkempt, and smelled of urine.

F.A.C. and the father failed to send clothes to school when requested. T.N.C. suffered

from a recurring urinary and kidney infection. T.N.C. and C.M.C. were suffering from

pink eye that had not been treated because F.A.C. claimed she could not afford to take

them to the doctor‘s office or buy them medicine. There was evidence that the children

were not receiving proper medical attention or having their medication properly

administered. There was also evidence that domestic violence occurred in the home.

There was evidence that F.A.C. and the father were unable to wake the children up for

school and unable to potty train the children.

       When Molina went to F.A.C.‘s home, she found the children outside,

unsupervised, and dressed inappropriately for the cold weather.         J.P.C. was in his

underwear and was not wearing shoes in the cold weather. The evidence showed that

the home where the children lived with F.A.C. was filthy and needed to be significantly

organized and cleaned. There were broken windows in the home that F.A.C. stated she

was unable to fix and a huge hole in the floor in the bathroom. The home did not have

any electricity and smelled like animal urine. F.A.C. disclosed that she intended to ―go



                                            24
away and start over‖ with or without her children; and, on May 23, 2010, after the

children were removed from her home, she quit her job and moved three hours away to

Edinburg without her children, who stayed in foster care. Finally, while the children

were in the Department‘s custody, F.A.C. failed to provide her address and phone

number to the Department and only visited the children ten times while missing thirty-

four visits.

        Molina testified that she attempted to contact F.A.C. and the father by phone to

discuss other relative placements on March 10, 2010, but Molina was unable to reach

them.    Molina attempted to contact F.A.C. at the Dairy Queen where F.A.C. was

employed; but no one there knew F.A.C.‘s whereabouts. The Department was unable

to locate or contact F.A.C. and, based on the evidence presented, the jury may have

inferred that the Department was unsuccessful in contacting F.A.C. only because she

failed to inform the Department of her whereabouts.

        Molina stated that she had a cell phone number for F.A.C. and that she left

numerous messages on the voice mail, but she did not ―hear from‖ F.A.C. before the

first adversarial hearing. F.A.C. did not attend the adversarial hearing. F.A.C. admitted

that she also missed two subsequent hearings regarding her children. Although she

claimed she did notify the Department of her change of addresses and phone numbers,

F.A.C. admitted that she did not notify the Department within five days as ordered.

F.A.C. testified that she has lived at six different locations and had four or five phone

numbers since the children had been removed.          Bridge stated that she heard from

others that F.A.C. had been living in at least nine different locations; however, F.A.C.

did not inform the Department of those locations.



                                           25
       Viewing the evidence in the light most favorable to an affirmative finding under

section 161.001(1)(O), we conclude that there was sufficiently clear and convincing

evidence presented to allow a reasonable fact-finder to form a firm belief or conviction

that the children were removed from F.A.C. due to neglect.          See In the Interest of

A.A.A., 265 S.W.3d 507, 516 (Tex. App.—Houston [1st Dist.] 2008, pet. denied) (finding

that the evidence was legally and factually sufficient to support the finding that the child

had been removed for abuse or neglect due to the mother‘s ―lack of effort to locate her

child following her release from [police] custody‖ and failure to provide her contact

information with the Department); see also In re K.H., No. 12-05-00077-CV, 2006 Tex.

App. LEXIS 9661, at *14 (Tex. App.—Tyler Nov. 8, 2006, no pet.) (mem. op.) (stating

that evidence was sufficient to show children were removed due to neglect because an

investigator with the Department testified that the case was ―initiated because of

domestic violence in the home and physical neglect of both children‖); In re A.C., No.

12-04-00264-CV, 2005 Tex. App. LEXIS 8137, at *12 (Tex. App.—Tyler Sept. 30, 2005,

no pet.) (mem. op.) (concluding that evidence was sufficient that child was removed due

to neglect where the Department stated ―that there was ‗reason to believe‘ a report

alleging neglectful supervision and physical neglect of both children by the parents‖ and

the Department‘s specialist testified at trial that she ―believed the children were

endangered or at risk because of alleged drug use and the lack of appropriate

housing‖); In the Interest of M.B., No. 07-04-0334-CV, 2004 Tex. App. LEXIS 11209, at

**7–8 (Tex. App.—Amarillo Dec. 14, 2004, no pet.) (mem. op.) (finding that evidence

was sufficient where parents failed to notify hospital of their whereabouts and after

removal of the child failed to visit the child).



                                               26
       Next, F.A.C. argues she completed some of the requirements and that it was

impossible for her to comply with all of the requirements of the service plan. Section

161.001(1)(O) states that termination may be based on a parent‘s failure to comply with

the provisions of a court order that specifically established the actions necessary for her

to obtain the return of the children.     However, section 161.001 does not have a

provision that allows a parent to provide excuses for failing to complete the court-

ordered services. In re T.N.F., 205 S.W.3d 625, 631 (Tex. App.—Waco 2006, pet.

denied). In addition, substantial compliance is not enough to avoid a termination finding

under section 161.001(1)(O). In re T.T., 228 S.W.3d 312, 319 (Tex. App.—Houston

[14th Dist.] 2007, pet. denied) (noting that courts in Texas have refused to find that

substantial compliance with provisions of court order are adequate to avoid termination

finding under subsection (O)); see also In re D.L.H., No. 04-04-00876-CV, 2005 Tex.

App. LEXIS 9288, at *2 (Tex. App.—San Antonio Nov. 9, 2005, no pet.) (mem. op.)

(rejecting   the   parents‘   arguments   that   substantial   compliance   with   section

161.001(1)(O) excused their non-compliance).

       Here, the court order specifically established the actions necessary for F.A.C. to

obtain the return of the children. Furthermore, at trial, evidence was presented that

although ordered to do so, F.A.C. failed to (1) attend individual therapy, (2) submit to a

psychological evaluation, (3) become fully employed in order to support the children, (4)

provide the children‘s original birth certificates, social security cards, and immunization

records to the Department, (5) notify the Department of her numerous address and

phone number changes, (6) participate in supervised visitations with the children, (7)




                                            27
provide and maintain appropriate housing free of health and safety hazards,11 and (8)

pay child support. F.A.C., herself, admitted at trial that she had not: (1) completed the

individual counseling and had only attended three sessions even though she had not

been released by the therapist; (2) provided the children‘s birth certificates to the

Department; (3) attended her scheduled visitations with the children; and (4) completed

her psychological evaluation. Finally, there was evidence that F.A.C. did not obtain full-

time gainful employment as ordered by the trial court. F.A.C. stated that at the time of

trial, she was not employed full time and was only cleaning houses part time. Thus,

viewing the evidence in the light most favorable to an affirmative finding under section

161.001(1)(O), we conclude that there was sufficiently clear and convincing evidence

presented allowing a reasonable fact-finder to form a firm belief or conviction that F.A.C.

failed to comply with the provisions of a court order that specifically established the

actions necessary for her to obtain the return of her children. Accordingly, the evidence

is legally sufficient to support the jury‘s finding under section 161.001(1)(O).12 We

overrule F.A.C.‘s fourth issue.

B.      Violation of Section 161.001(1)(N)

        Although the Department only had to prove that F.A.C. committed one violation

of section 161.001, there was also sufficient evidence that F.A.C. also violated section

161.001(1)(N) as explained below. Section 161.001(1)(N) sets out that constructive

abandonment of the children occurs if: (1) the children had been in the permanent or

        11
           We note that although F.A.C. claimed that she was living in what she considered appropriate
housing, the jury was free to disbelieve her bald assertions.
        12
            In light of our disposition of F.A.C.‘s fourth issue, we need not address her first, second, and
third issues. See TEX. R. APP. P. 47.1; see also In re E.M.N., 221 S.W.3d 815, 821 (Tex. App.—Fort
Worth 2007, no pet.) (stating that a finding of only one ground alleged under section 161.001(1) is
sufficient to support a judgment of termination).


                                                    28
temporary managing conservatorship of the State for not less than six months; (2) the

State has made reasonable efforts to return the children to the parent; (3) the parent

has not regularly visited or maintained significant contact with the children; and (4) the

parent has demonstrated an inability to provide the children with a safe environment.

See TEX. FAM. CODE ANN. § 161.001(1)(N). By her third issue, F.A.C. only argues that

the evidence was insufficient to prove that the Department made reasonable efforts to

return the children to her and that she did not regularly visit or maintain significant

contact with the children. See id. F.A.C. does not challenge the first and fourth prongs

of section 161.001(1)(N). See id.

       Here, the Department created and administered a service plan for F.A.C. to

follow with the specific goal of reunification.        The service plan stated that the

Department‘s task/service included monitoring and supporting the parents with

completing designated tasks to facilitate family reunification. The evidence showed that

the Department made numerous attempts to assist F.A.C. with completing her service

plan, but that F.A.C. chose to move three hours away from her children and not inform

the Department of her address.

       In order to be reunited with her children, F.A.C. was required to follow and

complete the tasks in the service plan. F.A.C. testified that she understood the terms of

the service plan. Molina testified that the Department‘s goal was to work with the family

and that she made ―all efforts to try and contact‖ F.A.C. regarding the children.

Moreover, Bridge testified that she informed F.A.C. that failure to complete the service

plan could result in termination of her parental rights.




                                             29
      Regarding visitation, Bridge testified that F.A.C.‘s visitation with the children was

―sporadic.‖ F.A.C. admitted that she did not attend the scheduled visitations with her

children. The jury heard evidence that F.A.C. only attended ten scheduled visitations

with her children and missed thirty-four of those visits. See In re D.S.A., 113 S.W.3d

567, 573–74 (Tex. App.—Amarillo 2003, no pet.) (concluding that the evidence was

legally and factually sufficient to support a finding that the Department made reasonable

efforts to return the child to his incarcerated father but that father failed to attend

visitation and made minimal efforts to complete his service plan); In re K.M.B., 91

S.W.3d 18, 25 (Tex. App.—Fort Worth 2002, no pet.) (finding that the State made

reasonable efforts to return the child to the parent by preparing several service plans

designed to ―help‖ the mother, but that the mother failed to complete any of the

services); see also In re D.A., No. 02-09-00460-CV, 2010 Tex. App. LEXIS 7676, at *8

(Tex. App.—Fort Worth Sept. 16, 2010, no pet.) (mem. op.) (―Returning a child to a

parent under section 161.001(1)(N) does not necessarily mean that the child has to be

physically delivered to the individual. ‗[R]easonable efforts‘ to reunite parent and child

can be satisfied through the preparation and administration of a service plan.‖) (internal

citations omitted). Finally, Bridge testified that ―every reasonable effort was made to

return the children to‖ F.A.C. Thus, viewing the evidence in the light most favorable to

an affirmative finding under section 161.001(1)(N), we conclude that there was

sufficiently clear and convincing evidence presented to allow a reasonable fact-finder to

form a firm belief or conviction that the Department made reasonable efforts to return

the children to F.A.C. and that F.A.C. did not regularly visit or maintain significant

contact with the children. Accordingly, the evidence was legally sufficient to support the



                                           30
jury‘s finding that F.A.C. violated section 161.001(1)(N). We overrule F.A.C.‘s third

issue.

C.       Best Interest

         By her final issue, F.A.C. contends that the evidence was legally insufficient to

support the jury‘s finding that termination was in the children‘s best interest. F.A.C.

argues that Molina‘s testimony that termination was in the children‘s best interest was

not sufficient because Molina failed to articulate any facts or reasons to substantiate her

belief. F.A.C. also complains that the Department did not offer evidence establishing

the wishes or desires of the children, the emotional and physical needs of the children

now and in the future, the physical or emotional danger to the children now and in the

future, her parenting skills, or her acts or omissions that may indicate that the existing

parent-child relationship is not a proper one.

         When considering whether parental termination is in the child‘s best interest, the

following non-exhaustive list of factors should be considered: (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 parenting

abilities of the parties seeking custody; (5) the programs available to assist the parties

seeking custody; (6) the plans for the child by the parties seeking custody; (7) the

stability of the home or proposed placement; (8) the acts or omissions committed by the

parent which may indicate that the existing parent-child relationship is not proper; and

(9) any excuse for the acts or omissions committed by the parent. Holley v. Adams, 544

S.W.2d 367, 372 (Tex. 1976). The party seeking parental termination is not required to

prove all nine factors. In re C.H., 89 S.W.3d at 27 (providing that these considerations



                                             31
are not exhaustive, ―or that all such considerations must be proved as a condition

precedent to parental termination‖) (emphasis in original); In re J.R.S., 232 S.W.3d 278,

284 (Tex. App—Fort Worth 2007, no pet.) (―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.‖).

       Although there is a strong presumption that it is in the child‘s best interest to

allow the natural parent to retain custody, when confronted with evidence to the

contrary, that presumption disappears. In re A.I.G., 135 S.W.3d 687, 692 (Tex. App.—

San Antonio 2003, no pet.). Evidence proving one or more of the statutory grounds for

termination may be probative in determining that termination is in the best interest of the

child. In re A.A.A., 265 S.W.3d 507, 516 (Tex. App.–Houston [1st Dist.] 2008, pet.

denied).   A best-interest analysis may be based on direct evidence, circumstantial

evidence, subjective factors, and the totality of the evidence as a whole. In the Interest

of T.N., 180 S.W.3d 376, 384 (Tex. App.—Amarillo 2005, no pet.) (citing In re C.A.J.,

122 S.W.3d 888, 894 (Tex. App.—Fort Worth 2003, no pet.)). ―A parent‘s unstable

lifestyle, lack of income, and lack of a home may also be considered in a determination

of a parent‘s ability to provide for a child‘s emotional and physical needs and may also

threaten the physical well being of the child.‖ Id.

       Here, the children were too young to express their wishes or desires. However,

the evidence showed that while living with F.A.C., the children lacked proper hygiene

and were not provided medical care; in the Department‘s care, the children were

healthy, clean, and up-to-date on all of their medical needs. T.N.C.‘s lice and urinary

tract infection, which were chronic while she lived with F.A.C., were taken care of and



                                             32
did not reoccur while in the Department‘s care. Also, T.N.C. was academically behind

other children her age; however, once in the Department‘s care, T.N.C. was ―doing well‖

academically.

      Concerning the physical and emotional needs of the children now and in the

future, the evidence established that while in F.A.C.‘s care, the children were not

provided with appropriate medical care. F.A.C. told the Department that she could not

afford to buy medicine for the children or take them to the doctor‘s office. Once the

children were removed from F.A.C.‘s care, the evidence showed that T.N.C.‘s recurring

urinary tract infection ceased, she no longer suffered from lice, and the children

received appropriate medical and dental care.         Therefore, the jury could have

reasonably inferred that the children‘s physical needs now and in the future were better

served by the Department rather than by F.A.C. Moreover, there was evidence that

F.A.C. failed to complete many of the requirements of the service plan, including failing

to visit the children as scheduled. This allowed the jury to infer that F.A.C. did not

provide for the children‘s emotional needs while they were in the Department‘s care.

      Regarding the emotional and physical danger to the children now and in the

future, the jury found that F.A.C. constructively abandoned her children, and that F.A.C.

did not provide proper care for the children before they were removed. See In re C.A.J.,

122 S.W.3d 888, 893 (Tex. App.—Fort Worth 2003, no pet.) (―[A] parent's inability to

provide adequate care for the child, lack of parenting skills, poor judgment, and

repeated instances of immoral conduct may also be considered when looking at best

interest.‖) (citing Garza v. Tex. Dep’t of Human Servs., 794 S.W.2d 521, 525 (Tex.

App.—Corpus Christi 1990, no writ); Sanchez v. Tex. Dep’t of Human Res., 581 S.W.2d



                                           33
260, 265–66 (Tex. Civ. App.—Corpus Christi 1979, no writ); Coleman v. Tex. Dep’t of

Pub. Welfare, 562 S.W.2d 554, 557 (Tex. Civ. App.—Tyler 1978, writ ref'd n.r.e.); D.F.

v. State, 525 S.W.2d 933, 940 (Tex. Civ. App.—Houston [1st Dist.] 1975, writ ref'd

n.r.e.) (op. on reh‘g); Magallon v. State, 523 S.W.2d 477, 479 (Tex. Civ. App.—Houston

[1st Dist.] 1975, no writ)). F.A.C. allowed the children to go to school with inadequate

clothing, and to play outside in the cold weather in inappropriate attire. F.A.C. did not

treat the children‘s medical conditions, including T.N.C.‘s and C.M.C.‘s pink eye and

T.N.C.‘s urinary tract infection and lice. F.A.C. claimed she could not provide proper

medical treatment for the children. There was evidence that F.A.C. allowed the children

to live in unsanitary and unsafe housing before they were removed, and F.A.C. failed to

make the necessary repairs to the home after the children were removed.           F.A.C.

allowed T.N.C. to be truant from school, and F.A.C. went to court for her behavior.

Based on the evidence, the jury was permitted to infer that F.A.C.‘s future conduct

would comport with her prior conduct. Jordan v. Dossey, 325 S.W.3d 700, 732 (Tex.

App.—Houston [1st Dist.] 2010, pet. denied); see May v. May, 829 S.W.2d 373, 377

(Tex. App.—Corpus Christi 1992, writ denied).

      The only evidence presented of F.A.C.‘s parenting ability was provided by the

Department. This evidence included that F.A.C. failed to provide an appropriate living

environment for the children and neglected to provide the children with proper medical

care when they were sick. Evidence was also provided that F.A.C. was unwilling or

unable to get T.N.C. to attend school and went to court due to T.N.C.‘s truancy. The

Department also provided evidence that there was physical abuse in the home; T.N.C.

told Molina that her father hit her mother and that she was given an ―ass whipping‖



                                           34
when she did something wrong. F.A.C. stated that she does not spank the children and

only disciplines them by making them take a time-out. Evidence was presented that

F.A.C. quit her job locally and moved three hours away from the children after the

children were removed. After F.A.C. moved away, the Department was no longer able

to contact F.A.C. regarding the children. The evidence showed that F.A.C. failed to

inform the Department of her whereabouts and how to contact her and that F.A.C. made

frequent address and phone number changes while her children were in the

Department‘s care.

       The evidence showed that the Department provided F.A.C. with several

programs to assist her; however, F.A.C. did not avail herself of many of those programs.

Although F.A.C. claimed that she completed parenting classes, Bridge testified that she

did not believe that F.A.C. had shown that she is capable of caring for the children and

that termination was in the children‘s best interest.

       F.A.C. testified that her plans for the children are to better herself and to send the

children to school. F.A.C. claimed that the children would live with her and a roommate

in a two bedroom apartment. However, there was no evidence that F.A.C. had notified

the Department of her new address or that the home was free from health and safety

hazards as required by the service plan. The jury was free to infer that, because F.A.C.

failed to notify the Department of her current address, it was impossible for the

Department to determine whether the home was appropriate for the children.

       The Department‘s permanency goal is non-relative adoption.            The evidence

showed that the Department had contacted fifteen of the father‘s siblings and that none

were able to care for the children. Evidence was also presented that the temporary



                                             35
placement of the children with relatives and a friend recommended by the parents

―broke down‖ for various reasons and were inappropriate.

       While in the custody of the Department, the children have been receiving proper

and appropriate medical care.       T.N.C.‘s recurrent urinary tract infections and lice

infestations had stopped and she was attending school.           T.N.C. was academically

―delayed‖ when the Department became involved; however, while in foster care, T.N.C.

has improved and has learned her colors, numbers, how to write her name, and is able

to write a paragraph. C.M.C. and J.P.C. are in bimonthly therapy and according to their

counselor are ―doing well.‖ C.M.C. is also receiving speech therapy.

       Bridge testified that F.A.C.‘s home environment was not stable because F.A.C.

lived in ―at least nine addresses‖ during the pendency of the case. Again, Bridge was

unable to determine where these addresses were located because F.A.C. failed to

inform the Department of her change of address when she moved. Bridge did not

believe that moving from home to home was a stable environment for the children.

F.A.C. admitted that she has lived at six different addresses since her children were

removed, and she agreed that such a living situation was not a stable environment for

the children.

       The jury heard ample evidence, much of which is set out above, of F.A.C.‘s acts

and omissions indicating that the parent-child relationship was not proper. F.A.C. did

provide an excuse for her behavior—she moved three hours away from the children.

However, the jury was free to find that making a choice to move three hours away from

her children is not a proper excuse for F.A.C.‘s behavior and failure to visit her children.




                                             36
      Viewing the evidence in the light most favorable to the jury‘s finding, we conclude

a reasonable trier of fact could have formed a firm belief or conviction that termination

was in the children‘s best interest. See TEX. FAM. CODE ANN. § 153.002; In re J.L., 163

S.W.3d at 85; In re D.S.P., 210 S.W.3d at 778. We overrule F.A.C.‘s final issue.

                                  V.     CONCLUSION

      We affirm the trial court‘s judgment.



                                                      ___________________
                                                      ROGELIO VALDEZ
                                                      Chief Justice

Delivered and filed the
3rd day of November, 2011.




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