                           COURT OF APPEALS
                            SECOND DISTRICT OF TEXAS
                                 FORT WORTH


                                  NO. 2-07-454-CV


IN THE INTEREST OF S.R.,
J.R., AND B.R.,
CHILDREN


                                          ------------

             FROM THE 271ST DISTRICT COURT OF WISE COUNTY

                                          ------------

                          MEMORANDUM OPINION 1

                                          ------------

                                     Introduction

      Appellant Heather R. appeals the trial court’s order terminating her

parental rights to her children, S.R. (Sarah), J.R. (Josh), and B.R.(Becca). 2 In

two points, appellant argues that the evidence is legally and factually

insufficient to support the trial court’s best interest finding. We affirm.

      1
          … See T EX. R. A PP. P. 47.4.
      2
        … We are using fictitious names in accordance with proposed T EX. R.
A PP. P. 9.8, 71 T EX. B.J. 287–88 (Tex. 2008, scheduled to take effect Sept.
1, 2008).
                               Background Facts

      On March 17, 2006, Kevin Campbell, an investigator with the Texas

Department of Family and Protective Services (TDFPS) in Wise County, received

an allegation of neglectful supervision, physical abuse, and sexual abuse of

appellant’s children, ten-year-old Sarah, six-year-old Josh, and five-year-old

Becca. 3 Campbell also received information that the house was roach-infested

and that the children were living in deplorable conditions. Campbell visited

appellant’s home, which was a trailer located on Lot A in Newark, Texas, and

observed roaches crawling on the floor, inside containers in the kitchen, in the

frying pan, in the refrigerator’s egg tray, in the bedding, and on the walls.

Campbell also noticed that an extension cord ran from the trailer house to

another trailer house to provide electricity and that there was only enough

electricity for the television. The trailer was lit by candles in the living room.

Additionally, the water pressure was nonexistent, and the hot water heater was

not functioning. The toilets were unsanitary and could not be flushed because

of the lack of water.    Unwashed dishes were stacked in the kitchen, and

Campbell could tell that they had been sitting for a long time. He also observed




      3
       … Appellant had another child, twelve-year-old T.J., who lived with his
father, Thomas R., and then with appellant’s sister, Crystal Mendoza.
Appellant had previously signed over guardianship of T.J. to Mendoza.

                                        2
trash piled up in the kitchen. The floor contained numerous holes, which were

covered with large road signs.

      TDFPS removed Sarah, Josh, and Becca and told appellant that she

needed to clean her home so that it would be a safe environment for her

children. Appellant complied, and TDFPS returned her children around August

2006. However, a few weeks later in September 2006, TDFPS removed the

children for a second time after appellant left them with relatives, Tiffany Taylor

and Amber Spivey, because TDFPS believed that appellant had abandoned them

and because they were living in similar, unsafe conditions as before. While in

Taylor and Spivey’s care, the children lived in a ten-by-ten shed with one

couch, no running water, and a nonfunctional toilet; there was also a strong

urine smell. Taylor and Spivey told TDFPS caseworker Stephanie Flavin that

appellant was not helping them financially.

      Flavin, who received appellant’s case in mid-September 2006, testified

that the children were placed in foster care until November and then went to

live with appellant’s brother and sister-in-law, Heath and Sheila. Sheila testified

that appellant steadily visited the children for a while but then her visits became

more sporadic.    She stated that the interaction between appellant and her

children was always positive, and the kids were happy to see her.           Sheila

thought that the visits were appropriate and that appellant seemed attentive

                                        3
and affectionate. In fact, appellant called almost every night. The children

were with Heath and Sheila until April 2007 when Sheila had to return the

children to TDFPS because they could not financially take care of them. Sheila

testified that she was willing to let the children live with her and be their

guardian, but she could not accept full financial responsibility for them. Sheila

also testified that she and her husband could not afford medical and child care

for their own four children plus three more. Sheila stated that appellant did not

financially assist Heath and Sheila although she did provide things such as

clothing and toiletries as needed. Sheila testified that she did not believe it was

in the children’s best interest to have appellant’s parental rights terminated.

After Sheila returned the children, TDFPS placed them in foster care.

      TDFPS gave appellant a service plan, which included two types of

parenting classes, individual counseling, a psychological evaluation, and drug

testing. TDFPS required appellant to attend a parenting class on nutrition and

cleanliness and a parenting class at the Family Guidance Center; appellant

attended only the parenting class at the Family Guidance Center. She claimed

she could not attend the nutrition and cleanliness class because of her work

schedule. Additionally, appellant did not complete counseling because of her

work schedule although Flavin set up counseling services for appellant in Fort

Worth.   Flavin made appointments with appellant to visit her residence in

                                        4
Newark, which was a different trailer on the same property located on Lot B,

but appellant usually canceled because of her work schedule. Each time Flavin

visited the residence, appellant was not there. In November 2006, appellant

informed Flavin that she was not living on Lot B at the Newark address but

instead was living with various friends. The last time Flavin visited appellant’s

residence, the trash pile which TDFPS requested that appellant remove had

gained in height; there were abandoned vehicles, car parts, an engine, a boat,

an old mattress, and other items such as tin in the yard that could injure or cut

the children.

      TDFPS also required appellant to turn in documentation regarding her

employment; however, Flavin testified that appellant never provided any pay

stubs or paperwork. Additionally, TDFPS also required appellant to be randomly

drug tested, and appellant submitted to two tests, which were negative.

However, appellant did not show up for any more drug tests. In addition to

completing one of the required parenting classes, appellant completed a

psychological evaluation in January 2007. TDFPS set up visitation for appellant

on Sundays, but she would often show up late or leave early. Flavin testified

that appellant’s interaction with the children during visitation was minimal.

      Mary Graves, a therapist with Catholic Charities, had been seeing the

children since April 2007 when they were referred for adjustment issues.

                                       5
Graves testified that all of the children said their home was not in good shape.

Sarah was left alone with the little ones, which scared her, and she was

terrified of returning to that environment. Graves testified that Sarah had self-

esteem issues because she was in a lower grade as a result of missing so much

school. Graves also said Sarah had a habit of parenting the little ones. Sarah

craved structure and security, and she did not want the responsibility of caring

for her younger siblings. However, Sarah was progressing well and happier

with herself.

      Graves testified that when she first saw Josh, he was very shy, rarely

smiled, and sad. He had serious sleep problems and was anxious and scared

a lot. He was also abrasive towards his sister Becca. Additionally, Josh would

have meltdowns and become “unglued” by kicking, hitting, and biting; he would

also hold and smear feces. Graves had talked to him about his anger and how

to manage it so that he did not get in trouble or hurt himself or others. She

testified that his meltdowns could sometimes be avoided.

      Graves testified that Becca was a “cutie” and wonderful to talk to;

however, Becca whined and tried to get her own way. Graves also said that

Becca tried to get Josh in trouble. Graves stated that Becca was oppositional

and defiant; she did not want to obey and threw things while kicking and

screaming. Becca also held and smeared feces. Additionally, Becca did not like

                                       6
to sleep. Becca had also acted out sexually; for example, she exposed herself

to her brothers and other boys. Graves testified that Becca had learned to

accept “no” and worked on understanding boundaries. Graves had also talked

with Becca about body safety.         Graves testified that the type of living

conditions the children experienced amounted to abusive and neglectful

conduct, and she believed that it was not in their best interest to return to

appellant.

      At trial, appellant testified that she did not abandon her children but that

she worked late and left them with her family because she did not want to

disrupt their sleeping routine and school schedule. Appellant testified that she

left her children with her family during the week but would pick them up on the

weekends. She never intended her children to stay there on a permanent basis.

She also testified that she provided for her children by giving Taylor and Spivey

diapers, wipes, food, clothing, gas money, or whatever they needed. After

TDFPS removed her children for the second time, appellant stated that she

attended visits although she missed a couple of times because of work.

Appellant testified that she was bonded with her children.

      Additionally, appellant testified that she participated in drug tests and that

she never tested positive. Appellant stated that she had not complied with the

counseling requirement because of paperwork issues. She testified that she

                                         7
completed parenting classes.      Appellant also testified that she worked at

Popeye’s, but she did not provide Flavin with any check stubs.

      Appellant testified that she was willing to leave her current residence if

her children could live with her sister Crystal Mendoza. She and Mendoza lived

on the same property, but in different trailers. She and Mendoza switched

trailers after appellant’s children were removed so that, at the time of trial,

Mendoza lived in the trailer that TDFPS determined was an unsafe environment

at the time of removal. Appellant testified that if she got her children back,

they would stay with Mendoza, who had a clean home with ample room. The

trailer had been painted, had new carpet installed, and had been sprayed for

bugs, and the holes in the floor had been repaired.

      Mendoza also testified that she and her husband had renovated the trailer.

The trailer had electricity and running water with working toilets. She also

testified that she was willing to let appellant and her children live with them for

as long as was necessary. Although there would be seven children and three

adults, she also stated that there was adequate space.

      Adrienne Shabazz, a licensed social worker who did kinship studies for

TDFPS, testified that the property on which appellant lived contained two or

three trailers.   Shabazz completed a home study on Mendoza because she

offered to take Sarah, Josh, and Becca.       Shabazz testified that Mendoza’s

                                        8
trailer, which was the trailer the children had been living in when they were

removed, was very small and sparsely furnished.        The trailer had three

bedrooms for seven children and three adults. Shabazz was concerned because

appellant lived on the property, and thus she was in close proximity to the

children. Shabazz was also concerned because while she was there, one of

Mendoza’s children was out of control; Mendoza also told Shabazz that she had

never taken one of her children to the doctor. Although the home was tidy,

Shabazz saw roaches crawling around, but she did not see any holes in the

floor or trash piled up.   Although nothing about the home was “glaringly

dangerous,” Shabazz believed the trailer was not an appropriate home for the

children because it was too small, appellant resided too close by, and Mendoza

could not control her own children.

      In addition, appellant testified that her mistakes had traumatized her

children but that she wanted to make up for her wrong decisions. Appellant

said that she regretted her mistakes and that she had changed her way of

thinking. Appellant stated that she attended church and had the support of

family and friends. Appellant also testified that she had not used drugs, had

never been convicted of a crime, and had never abused her children.

      After a bench trial on December 6, 2007, the trial court determined that

appellant (1) knowingly placed or knowingly allowed her children to remain in

                                      9
conditions which endangered their physical and emotional well-being, (2) that

she failed to comply with the provisions of the court order which were

necessary for her to obtain the return of her children, and (3) that termination

was in their best interest. 4 [CR 19] See T EX. F AM. C ODE A NN. §§ 161.001(1)(D),

(O), (2) (Vernon Supp. 2007). Appellant timely filed this appeal.

                               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 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. T EX. F AM. C ODE A NN. § 161.206(b)


      4
        … At trial, Thomas executed an affidavit of relinquishment of his parental
rights to Sarah, Josh, and Becca. He did not appeal the trial court’s order.

                                          10
(Vernon Supp. 2007); 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. T EX. F AM. C ODE A NN. § 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. T EX. F AM. C ODE A NN. §§ 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

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

                                        11
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.” T EX. F AM. C ODE A NN. § 101.007

(Vernon 2002).

A. Legal Sufficiency

      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

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

                                        12
appellate record, we must defer to the fact-finder’s determinations as long as

they are not unreasonable. Id. at 573.

B. Factual Sufficiency

      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 the termination of the parent’s parental rights would

be in the best interest of the child. 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 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.

                                Applicable Law

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

presumed to be in the child’s best interest. T EX. F AM. C ODE A NN. § 263.307(a)

(Vernon 2002). There is also a strong presumption that keeping a child with

                                       13
a parent is in the child’s best interest. In re R.R., 209 S.W.3d 112, 116 (Tex.

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

                                        14
termination is in the best interest of the child. Id. On the other hand, the

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

finding. Id.

                                     Analysis

A.      Desires of the children

        At the time of trial, Sarah was ten years old, Josh was six years old, and

Becca was five years old. Therapist Graves testified that Sarah had taken on

the parenting role to her younger brother and sister because she had been left

alone with them. Graves also testified that Sarah was terrified that if they went

back with appellant, she would be left alone with her siblings again. Sarah’s

aunt Sheila, however, testified that Sarah wanted things back the way they

were—back to normal. Sheila also stated that Sarah wanted her mother and

father. Becca would also tell Sheila, “I want to go home . . . [w]hen do I get

to go home?” Sheila testified that the children loved appellant and that they

were bonded.

B.    The emotional and physical needs of the children now and in the future,
and the emotional and physical danger to the children now and in the future

        The evidence shows that appellant’s home was an unsafe, unhealthy

environment and that appellant had frequent changes of residences and multiple

jobs.    Appellant admitted that her home on Lot A in Newark was unsafe


                                        15
because it was infested with cockroaches and dirty; she stated that her

children, at that time, were living in an endangering situation. Appellant also

admitted that leaving her children with Taylor and Spivey was inappropriate

because the space was too small. Appellant testified that, at the time of trial,

she did not have stable housing, but she also testified that she lived on Lot B

after switching trailers with her sister. Appellant stated that she had been

living there about a month, but had not unpacked and that she often slept at

friends’ homes. Flavin testified that the exterior of appellant’s current residence

on Lot B, which Flavin was never able to inspect because appellant did not keep

any of her appointments, had worsened in condition with many objects

scattered in the yard that would be dangerous to the children.

      Appellant testified that, at the time of trial, she had been working at

Popeye’s for three to four months. Before that she was employed at Ryder,

D&B Entertainment, and Michael’s.        However, the only verification Flavin

received regarding appellant’s employment was from Michael’s. The evidence

also shows that appellant never provided financial support for her children while

they were in foster care or living with relatives. However, appellant did provide

clothing or other supplies that the children needed.

      The record reflects that appellant’s sister, Mendoza, who lived in

appellant’s old home on Lot A, had renovated the trailer and offered to allow

                                        16
appellant and the children to live with her family. However, TDFPS believed

that Mendoza’s home, although not “glaringly dangerous,” would not be

suitable for an additional three children and another adult.      TDFPS did not

believe that seven children and three adults could adequately live in a three

bedroom trailer.

      The evidence also demonstrates that Sarah, Josh, and Becca had

emotional problems. Sarah had self-esteem issues and feared returning to the

same living conditions where she would have to parent her siblings. Josh had

meltdowns, which included kicking, hitting, biting, and smearing feces. Becca

also had tantrums and smeared feces. Becca told Graves that she wanted to

provoke an adult into biting her because that would make her feel better.

Becca had also sexually acted out, and therapy reports indicated that the

children had made outcry statements to family members although TDFPS had

been unable to pinpoint a specific person that may have been abusive. Graves

also testified that Sarah had witnessed a lot of sexual behavior.

C.    The parental abilities of the individuals seeking custody, and the programs
available to assist these individuals to promote the best interest of the children

      The evidence demonstrates that appellant did not sufficiently work her

service plan. Appellant attended one of the two required parenting classes,

completed the psychological evaluation, and submitted to two drug tests.


                                       17
However, appellant did not attend the parenting class on nutrition and

cleanliness, did not complete counseling, did not meet with Flavin for a home

inspection, did not provide employment documentation, and did not show up

for additional drug tests.   Appellant      told Flavin that she was unable to

participate in or complete many of her services because of her work schedule.

However, appellant never provided Flavin with documentation to verify her

reasons for not participating in many of her services.

      Flavin testified that appellant sporadically visited the children, and when

she did visit, interaction with her children was minimal. For example, appellant

would ask Sarah to take the younger children to the restroom, and appellant did

not bring food during visitation as requested by TDFPS. CASA worker Michele

Duncan testified that appellant did not play with the children although she did

ask how they were doing.

      Although appellant completed some of her services, Flavin and Duncan

recommended that appellant’s parental rights be terminated because of

appellant’s lack of progress, missed opportunities to visit with her children,

minimal interaction with her children at visitations, and her failure to complete

all of the requested services. Furthermore, the children needed a permanent

home with stability and security.




                                       18
D.   The plans for the children by these individuals or by the agency seeking
custody, and the stability of the home or proposed placement

      TDFPS offered no evidence regarding future plans for the children.

      Appellant sought to have the children placed with her sister Mendoza,

who lived in appellant’s old trailer, which had been renovated. TDFPS had

concern over appellant’s close proximity to the children because she lived in

another trailer on the property. However, appellant testified that she would

move off the property if that allowed the children to be placed with Mendoza.

E.    The acts or omissions of the parent which may indicate that the existing
parent-child relationship is not a proper one, and any excuse for the acts or
omissions of appellant

      As for the parent-child relationship, there is evidence that Sarah had taken

on the parenting role to her two younger siblings.

      In sum, the record demonstrates that although appellant participated in

some of her services, appellant’s failure to complete her services and maintain

appropriate housing, and her sporadic visits with her children, all demonstrate

that it was in Sarah’s, Josh’s, and Becca’s best interests that appellant’s

parental rights be terminated. See T EX. F AM. C ODE A NN. § 161.001(2).

      Viewing all the evidence in the light most favorable to the judgment, we

hold that the evidence is legally sufficient to support the trial court’s finding

that termination of appellant’s parental rights was in the children’s best interest.


                                        19
See id. Viewing the same evidence in a neutral light, we hold that it is also

factually sufficient to support the trial court’s findings that termination of

appellant’s parental rights was in the children’s best interest. See id.   We

overrule appellant’s two points.

                                   Conclusion

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

judgment terminating appellant’s parental rights.




                                                TERRIE LIVINGSTON
                                                JUSTICE

PANEL F:    CAYCE, C.J.; LIVINGSTON, and DAUPHINOT, JJ.

DELIVERED: June 5, 2008




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