
COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
 
NO. 2-02-402-CV

 
 
IN THE INTEREST OF K.A.S., 
J.G.S.,
AND W.S., II

 
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FROM THE 211TH DISTRICT COURT 
OF DENTON COUNTY
 
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OPINION
 
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I. Introduction
        W.S. 
(“Father”) and D.S. (“Mother”) appeal from the trial court’s order 
terminating their parental rights to their three children. Both Father and 
Mother complain that the evidence is legally and factually insufficient to 
support any of the three statutory grounds for termination pleaded by the Texas 
Department of Protective and Regulatory Services (“TDPRS”) and found by the 
trial court and that the evidence was legally and factually insufficient to 
support the trial court’s findings that termination was in the best interest 
of the children. See Tex. Fam. 
Code Ann. § 161.001(1)(D), (E), (O); (2) (Vernon 2002). Father and 
Mother also raise constitutional challenges to the family code’s one-year 
deadline to render a final order in a termination case. See id. § 
263.401. We will affirm.
II. Factual and 
Procedural Background
        Father 
and Mother married in 1992; since that time their relationship has been plagued 
by domestic violence and abuse. They are the biological parents of K.A.S., born 
December 15, 1993; J.G.S., born February 24, 1995; and W.S., II, born October 
10, 1998.
        On 
October 18, 2001, K.A.S. told Mother that she had tried to kill herself by 
choking herself in the bathroom. On October 24, Mother took K.A.S. to see Amy 
Teel, a Friends of the Family counselor. After speaking with K.A.S. about the 
suicide attempt, in which K.A.S. claimed that the reason for her suicide attempt 
was the domestic violence in her home, Ms. Teel arranged for K.A.S. to be 
admitted to Cooks Children’s Hospital. K.A.S. was released from the hospital 
on October 31.
        On 
October 31, Mother took the children with her to an appointment she had with 
Teresa Morrow, a family services coordinator with Friends of the Family. Ms. 
Morrow watched Mother and the children from her window after they arrived in the 
parking lot. She saw W.S. lying in the parking lot and screaming as Mother 
yelled at him to get up and clean a mess he had made in the back seat of the 
car. When W.S. got up and began to walk toward the car, Mother pulled him by his 
arm to the car in a manner that caused Ms. Morrow concern. After Mother and the 
children entered Ms. Morrow’s office, Ms. Morrow noticed that W.S. had a mark 
on his face and a mark over his eye that could have been a black eye. When she 
asked Mother what had happened to W.S., K.A.S. replied that W.S. had fallen off 
the bed and then down the stairs. Mother also indicated that W.S. had fallen.
        TDPRS 
became involved with Father and Mother on November 1, 2001 after receiving three 
separate reports concerning the family. The first report concerned emotional 
abuse and domestic violence in the home, as well as Mother’s history of 
noncompliance in taking her medications for her bipolar condition. The second 
report concerned K.A.S.’s suicidal tendencies and her diagnosis of 
post-traumatic stress disorder because of the situation in her home. The third 
report concerned physical abuse of W.S.
        Kimberly 
Sheppard, a TDPRS investigator, interviewed the family in their home. When she 
asked about W.S.’s injuries, Mother told her that W.S. was injured when he 
fell from the toilet and hit the toilet or the bathtub. W.S. told Ms. Sheppard 
that “mommy” hurt his eye. Mother told Ms. Sheppard that she and Father 
fought and had arguments in front of the children and that she yelled at, cussed 
at, and called the children names. Father minimized the couple’s fighting, but 
did say that Mother may have slapped the children. Mother claimed to have been 
compliant with her medications for the past two months, but admitted that she 
was missing two of her prescriptions and was currently not compliant. Father 
told Ms. Sheppard that he was not taking medication for any mental health 
conditions because he did not believe in taking medication. Mother signed a 
safety plan, but Father did not.
        After 
determining that there were no services TDPRS could provide the family that 
would ensure the children’s safety, TDPRS removed the children from the home. 
In November 2001, K.A.S., who is bipolar, was placed in a therapeutic foster 
home with Mr. and Ms. Quillin, and J.G.S. and W.S. were placed with Ms. Buford.
        On 
January 14, 2002, K.A.S. told Ms. Quillin that Father had bruised her privates a 
lot in the past. The next day K.A.S. told Mr. Quillin, in Ms. Quillin’s 
presence, that Father had put his fingers in her several times and his penis in 
her just once. Later that day, K.A.S. corrected this statement by saying that 
Father put his penis in her several times. When Mr. Quillin asked K.A.S. if she 
had told anyone, K.A.S. said that she had told Mother. Ms. Quillin informed 
K.A.S.’s counselor of the alleged sexual abuse.
        Father 
and Mother were generally allowed one hour each week to visit with their 
children. Those visits were usually chaotic and loud, with no consequences for 
the children when they engaged in inappropriate behavior. At the visitation 
following K.A.S.’s outcry, K.A.S. confronted Father and Mother about the 
alleged sexual abuse. Father said nothing, and Mother denied that it had 
happened.
        In 
April 2002, approximately five months after the children were removed from the 
home, Father physically assaulted Mother. Mother left home and spent several 
days at a Friends of the Family shelter. Mother did not pursue any charges 
against Father at that time because she feared it would negatively impact her 
ability to be reunited with her children.
        In 
June 2002, Father moved out of the house and stayed with his mother. Father 
later told Mother that he had an inspiration from God that if he and Mother 
moved back in together, they would get their children back. In September 2002, 
Father moved back in with Mother.
        Less 
than a month later, the case was tried to the court, and after several days of 
testimony, the trial court determined that both Father’s and Mother’s 
parental rights should be terminated. On October 31, 2002, the trial court 
entered a termination order. This appeal followed.
III. Burden of 
Proof in Termination Proceedings
        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); accord Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985). 
The United States Supreme Court, in discussing the constitutional stature of 
parental rights, states, “[T]he interest of parents in the care, custody, and 
control of their children—is perhaps the oldest of the fundamental liberty 
interests recognized by this Court.” Troxel v. Granville, 530 U.S. 57, 
65, 120 S. Ct. 2054, 2060 (2000). Nonetheless, while parental rights are of 
constitutional magnitude, they are not absolute. In re C.H., 89 S.W.3d 
17, 26 (Tex. 2002). 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. Id.
        In 
proceedings to terminate the parent-child relationship brought under section 
161.001 of the Texas Family Code, TDPRS must establish one or more of the acts 
or omissions enumerated under subsection (1) of the statute and must also prove 
that termination is in the best interest of the child. Tex. Fam. Code Ann. § 161.001; Swate 
v. Swate, 72 S.W.3d 763, 766 (Tex. App.—Waco 2002, pet. denied). 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). Because of the 
elevated status of parental rights, the quantum of proof required in a 
termination proceeding is elevated from the preponderance of the evidence to 
clear and convincing evidence. Santosky, 455 U.S. at 746, 102 S. Ct. at 
1391; see also Tex. Fam. Code Ann. 
§ 161.001.
        Clear 
and convincing evidence is “the measure or degree of proof that will produce 
in the mind of the trier of fact a firm belief or conviction as to the truth of 
the allegations sought to be established.” Tex. Fam. Code Ann. § 101.007; In re 
J.F.C., 96 S.W.3d 256, 264 (Tex. 2002); C.H., 89 S.W.3d at 25. This 
intermediate standard falls between the preponderance standard of ordinary civil 
proceedings and the reasonable doubt standard in criminal proceedings. State 
v. Addington, 588 S.W.2d 569, 570 (Tex. 1979); In re D.T., 34 S.W.3d 
625, 630 (Tex. App.—Fort Worth 2001, pet. denied) (op. on reh’g). While the 
proof must be more than merely the greater weight of the credible evidence, 
there is no requirement that the evidence be unequivocal or undisputed. Addington, 
588 S.W.2d at 570. Termination proceedings should be strictly scrutinized, and 
involuntary termination statutes are strictly construed in favor of the parent. Holick, 
685 S.W.2d at 20-21; In re A.V., 849 S.W.2d 393, 400 (Tex. App.—Fort 
Worth 1993, no writ).
IV. Legal and 
Factual Sufficiency of the Evidence
        Father 
and Mother both contend that the evidence is legally and factually insufficient 
to support the trial court’s findings that they: (1) knowingly placed or 
knowingly allowed the children to remain in conditions or surroundings that 
endangered their emotional or physical well-being; (2) engaged in conduct or 
knowingly placed the children with persons who engaged in conduct that 
endangered their emotional and physical well-being; and (3) failed to comply 
with the provisions of a court order that specifically established the actions 
necessary for the children’s return. See Tex. Fam. Code Ann. § 161.001(1)(D), 
(E), (O). Father and Mother also contend that the evidence is legally and 
factually insufficient to support the trial court’s finding that termination 
is in the best interest of the children. See id. § 161.001(2).
        A. 
Standard of Review
        The 
Texas Supreme Court recently clarified the appellate standards of review to be 
applied to legal and factual sufficiency of the evidence challenges in light of 
the clear and convincing evidence burden of proof in termination proceedings. J.F.C., 
96 S.W.3d at 264-68 (discussing legal sufficiency review); C.H., 89 
S.W.3d at 25 (discussing factual sufficiency review). Because termination 
findings must be based upon clear and convincing evidence, not simply a 
preponderance of the evidence, the supreme court has held that the traditional 
legal and factual standards of review are inadequate. J.F.C., 96 S.W.3d 
at 264-65; C.H., 89 S.W.3d at 25. Instead, both legal and factual 
sufficiency reviews in termination cases must take into consideration whether 
the evidence is such that a fact finder could reasonably form a firm belief or 
conviction about the truth of the matter on which the State bears the burden of 
proof. J.F.C., 96 S.W.3d at 265-66; C.H., 89 S.W.3d at 25. With 
respect to a legal sufficiency point, we “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.” 
J.F.C., 96 S.W.3d at 266. In determining a factual sufficiency point, we 
must give due consideration to evidence that the fact finder could reasonably 
have found to be clear and convincing and then determine whether, based on the 
entire record, a fact finder could reasonably form a firm conviction or belief 
that the parent violated one of the provisions of section 161.001 and that the 
termination of his or her parental rights would be in the child’s best 
interest. Tex. Fam. Code Ann. § 
161.001; C.H., 89 S.W.3d at 25.
        B. 
Evidence Regarding Endangering Environment and Course of Conduct
        We 
first review the evidence supporting the trial court’s findings that Father 
and Mother knowingly placed or knowingly allowed the children to remain in 
conditions or surroundings that endangered their physical or emotional 
well-being and that they engaged in conduct or knowingly placed the children 
with persons who engaged in conduct that endangered the children's physical or 
emotional well-being. See Tex. Fam. 
Code Ann. § 161.001(1)(D), (E).
        Endangerment 
means to expose to loss or injury, to jeopardize. Boyd, 727 S.W.2d at 
533; see also In re M.C., 917 S.W.2d 268, 269 (Tex. 1996). Under 
subsection (D), it is necessary to examine evidence related to the environment 
of the children to determine if the environment was the source of endangerment 
to the children’s physical or emotional well-being. D.T., 34 S.W.3d at 
632. Conduct of a parent in the home can create an environment that endangers 
the physical and emotional well-being of a child. In re W.S., 899 S.W.2d 
772, 776 (Tex. App.—Fort Worth 1995, no writ). For example, abusive or violent 
conduct by a parent or other resident of a child's home may produce an 
environment that endangers the physical or emotional well-being of a child. See 
id.; Ziegler v. Tarrant County Child Welfare Unit, 680 S.W.2d 674, 
678 (Tex. App.—Fort Worth 1984, writ ref’d n.r.e.).
        Under 
subsection (E), the relevant inquiry is whether evidence exists that the 
endangerment of the child’s physical well-being was the direct result of the 
parent’s conduct, including acts, omissions, or failures to act. In re R.D., 
955 S.W.2d 364, 368 (Tex. App.—San Antonio 1997, pet. denied); Dupree v. 
Tex. Dep’t of Protective & Regulatory Servs., 907 S.W.2d 81, 83-84 
(Tex. App.—Dallas 1995, no writ). Additionally, termination under section 
161.001(1)(E) must be based on more than a single act or omission; a voluntary, 
deliberate, and conscious course of conduct by the parent is required. Tex. Fam. Code Ann. § 161.001(1)(E); D.T., 
34 S.W.3d at 634; In re K.M.M., 993 S.W.2d 225, 228 (Tex. 
App.—Eastland 1999, no pet.).
        However, 
it is not necessary that the parent’s conduct be directed at the child or that 
the child actually suffer injury. Boyd, 727 S.W.2d at 533. To determine 
whether termination is necessary, courts look to parental conduct both before 
and after the child's birth. In re D.M., 58 S.W.3d 801, 812 (Tex. 
App.—Fort Worth 2001, no pet.).
        Because 
the evidence is interrelated concerning these two statutory grounds for 
termination, we consolidate our examination of the evidence as to both grounds. In 
re S.D., 980 S.W.2d 758, 762 (Tex. App.—San Antonio 1998, pet. denied); In 
re B.R., 822 S.W.2d 103, 106 (Tex. App.—Tyler 1991, writ denied) 
(recognizing the link between a parent’s conduct and a child's conditions and 
surroundings). There was uncontroverted evidence that Father began physically 
abusing Mother shortly after they married. Father hit Mother, kicked her, beat 
her with his fists, choked her, held a knife to her side as she held a child, 
picked her up and threw her to the ground, held her against her will, threatened 
her, and hit her once when she was pregnant. Mother also struck Father, yelled 
at him, called him names, and once threw knives at him. Father received 
probation in 1995 for assaulting Mother as she was holding J.G.S., and Mother 
sought a protective order against Father in November 1996. In early 1997, Mother 
voluntarily committed herself to a mental hospital because of her desire to hurt 
Father.
        Five 
months after the children had been removed from the home, Father physically 
assaulted Mother in April 2002, and Mother sought refuge in a shelter. Father 
and Mother fought and argued in front of the children, which scared the children 
and made them very sad. Father testified that the domestic violence in the home 
hurt the children “really bad” and was the cause of some of the children’s 
behaviors. Father also acknowledged that the fighting and assaultive behavior in 
the home was emotional abuse of the children. Mother admitted that K.A.S. 
attempted suicide because of the domestic violence in the home. Mother also 
acknowledged that the life she and Father lived created some long-term problems 
for their children.
        Mother, 
who had been diagnosed with bipolar disorder, suffered from uncontrollable rages 
and delusional thoughts. Whenever Mother went into an uncontrollable rage, she 
did not later remember what had happened. For example, Mother spent ten days at 
a mental hospital in the spring of 2001 after K.A.S. burned herself while 
helping prepare dinner. Mother told the mental healthcare workers that she had 
punched K.A.S. like a punching bag, but later she did not remember either the 
incident or making the statement. Mother later returned to the mental hospital 
for four days because she was afraid for the others in her household if she went 
home. Mother trained the children to go into their rooms and lock the door or to 
go to a neighbor’s house when she raged because she did not want to hurt them. 
Mother testified that the children needed to be safe from her when she raged, 
and she told her Friends of the Family counselor that she was a danger to her 
children.
        Mother 
was the children’s primary caregiver. She yelled and cursed at the children 
and called them names. She told her Friends of the Family counselor that she 
could not handle the children, especially K.A.S., and that she had slapped K.A.S. 
in the face. Mother stated at trial that ninety per cent of K.A.S.’s problems 
were because of her.
        Father 
saw the children only on Sundays because he worked six days a week, leaving 
before the children woke up and coming home after they had gone to bed. Father 
questioned Mother’s stability and parental abilities because she was not 
compliant in taking her medications, and he characterized Mother as a 
“different person” when she was not on her medication. Father continued, 
however, to leave the children with her. Father testified that Mother was prone 
to rages and that the family tiptoed around her in an effort not to make her 
mad. Father told the TDPRS investigator that Mother may have slapped the 
children.
        When 
Father was with the children, he spanked them with a belt and a wooden spoon, 
leaving bruises on K.A.S. and J.G.S., and punished J.G.S. by making her stand on 
her “tippy toes” for about a minute. Father called the children names, 
accused them of things, and hit the children during rough play. The CASA child 
advocate testified that during Father’s visits with the children, Father 
inappropriately grabbed his daughters in their crotch area during play. A Child 
Protective Services (“CPS”) caseworker also expressed concern about the way 
Father touched his daughters during the visits. When questioned about this 
touching, Father replied that he touched his children all over their bodies and 
that he enjoyed his “whole” child.
        From 
the time she was taken from her parents, K.A.S. told first the CASA child 
advocate, and then her foster parents, that she had a secret and that Father had 
done something to her. K.A.S. eventually told her secret to her foster parents: 
Father had sexually assaulted her by putting his fingers and penis in her. K.A.S. 
subsequently role-played the sexual abuse for her foster care therapist. When 
K.A.S. confronted her parents about the sexual abuse, Father said nothing, and 
Mother denied that it had happened. Mother later told K.A.S. that K.A.S. was 
confused and must have dreamed about the sexual abuse when she was a baby or 
that K.A.S.’s foster mother was just putting things into K.A.S.’s head. One 
CPS caseworker testified that Mother went back and forth about whether she 
believed the sexual abuse had occurred. After being confronted about the sexual 
abuse, and even though he had been instructed not to mention the sexual abuse 
allegations during the visits, Father ended the visits with a prayer, asking God 
to forgive K.A.S. for lying and praying that K.A.S. would tell the truth.
        At 
trial, Father stated that K.A.S. lied in general and that she lied about the 
sexual abuse. K.A.S.’s foster father testified that K.A.S. lied on occasion, 
but her foster mother testified that K.A.S. only had a problem with lying since 
July 2002, which was approximately six months after K.A.S. first made the sexual 
abuse allegation.
        Although 
K.A.S. recanted her allegations of sexual abuse, she later asserted that her 
allegations were true. A CPS caseworker testified that it is very common for 
children to recant. The doctor who examined K.A.S. testified that a physical 
examination showed no scarring from sexual abuse, but explained that there was 
often no such scarring. A clinical psychologist who performed psychological 
evaluations on both Father and Mother stated that he did not “have any 
sense” that there was any sexual abuse or drug abuse, but he was concerned 
about the “volatility in the home.”
        Amy 
Teel, who had counseled K.A.S. and J.G.S. for the eleven months before they were 
removed from the home, testified that the children’s emotional well-being 
worsened throughout the time she saw them. Both children expressed sadness and 
fear about the fighting at home. K.A.S. also seemed overly mature for her age.
        In 
November 2001, the month the children were removed from the home, K.A.S. was 
diagnosed by Dr. Chua, a psychiatrist, with bipolar disorder and post-traumatic 
stress disorder. In December 2001, Dr. Polakoff, a clinical psychologist, 
conducted a psychological assessment of K.A.S. during which K.A.S. told Dr. 
Polakoff that she felt sick inside when her parents fought, that she thought 
about killing herself when Father became angry, that she wanted to kill herself, 
and that she had been thinking about killing herself since she was three years 
old. Dr. Polakoff diagnosed K.A.S. with bipolar disorder and anxiety disorder.
        Dr. 
Polakoff conducted an assessment of J.G.S. in February 2002. J.G.S. said that 
her parents called the children names, such as “dumb” and “stupid,” and 
that made her feel “not good.” Dr. Polakoff diagnosed J.G.S. with depressive 
disorder, which stemmed from a history of abuse and separation from primary 
attachment figures and her sister.
        Dr. 
Polakoff assessed W.S. in April 2002. W.S. showed no breadth of emotion, and his 
adaptive behavior was severely delayed by approximately one year. Dr. Polakoff 
diagnosed W.S. with depressive disorder related to chaotic family of origin, 
lack of stability in the home, and separation from primary attachment figures 
and from his older sister.
        We 
have carefully reviewed the entire record. Looking at all the evidence in the 
light most favorable to the trial court’s findings, giving due consideration 
to evidence that the fact finder could reasonably have found to be clear and 
convincing, we hold that a reasonable trier of fact could have formed a firm 
belief or conviction that both Father and Mother knowingly placed or knowingly 
allowed the children to remain in conditions or surroundings that endangered 
their physical or emotional well-being and that they also engaged in conduct or 
knowingly placed the children with persons who engaged in conduct that 
endangered the children’s physical or emotional well-being.
        Although 
Father and Mother challenge the legal and factual sufficiency of all three of 
the statutory grounds for termination pleaded by TDPRS, only one finding under 
section 161.001(1) is necessary to support a judgment of termination. Tex. Fam. Code Ann. § 161.001(1); D.M., 
58 S.W.3d at 813; In re S.F., 32 S.W.3d 318, 320 (Tex. App.—San Antonio 
2000, no pet.); see also Tex. Dep't of Human Servs. v. E.B., 802 S.W.2d 
647, 649 (Tex. 1990) (op. on reh’g). Because we conclude there is both legally 
and factually sufficient evidence to support the trial court’s findings under 
family code section 161.001(1)(D) and (E), we need not address Father’s and 
Mother’s remaining points with respect to the trial court’s finding under 
section 161.001(1)(O). Tex. Fam. Code 
Ann. § 161.001(1)(D), (E), (O); see Tex. R. App. P. 47.1.
        C. Evidence Regarding Best Interest of the Children
        Judicial 
inquiry as to the best interest of the children is deferred pending 
determination that the petitioner has sufficiently established one or more of 
the acts or omissions enumerated in subdivision one of the statute. See D.T., 
34 S.W.3d at 640-41. 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, and other factors not on the list may 
also be considered when appropriate. C.H., 89 S.W.3d at 27. Furthermore, 
undisputed evidence of just one factor may be sufficient in a particular case to 
support a finding that termination is in the best interest of the children. Id. 
On the other hand, the presence of scant evidence relevant to each Holley 
factor will not support such a finding. Id.
                1. Children’s desires
        K.A.S. 
told her foster care mother “I want to go home, but I know that it wouldn’t 
be the best thing for me. I don’t want to hurt my family.” After making the 
sexual abuse allegation, K.A.S. did not want to go to the family visits; they 
were traumatic and disturbing for her. At one visit, K.A.S. told Father that she 
would never forgive him for all the things he had done to her.
        J.G.S. 
told her counselor that if she had fifty dollars, she would give it to the judge 
so she could go home. J.G.S. also said that if she did go home, she did not want 
her parents to be “rude,” such as when Father spanked her and made her stand 
in the corner on her tippy toes. The CASA child advocate testified that J.G.S. 
just wanted to know what was going to happen to her. W.S. was too young at the 
time of trial to determine his desires. He did not pay attention to either of 
his parents during the visits.
        At 
first, the children were excited when they saw their parents at the parental 
visits. After the first month, however, the children were not sad when the 
visits ended. The children were ready to leave, sometimes looking at the clock 
and asking if it was time to go yet. They would run out of the room and have to 
be told to hug their parents.
                2. Emotional and physical needs
        Several 
health care professionals testified about the children’s emotional and 
physical needs. The record contains expert testimony that K.A.S. would need a 
safe, stable, consistent, nurturing, and highly-structured environment because 
of her bipolar and post traumatic stress disorders. Living in a chaotic home or 
with domestic violence would be bad for K.A.S. J.G.S. needed to be in a stable 
and structured home where her feelings are validated and allowed to be 
verbalized. W.S. needed stability and structure in his household and ongoing 
play therapy to overcome obstacles and deal with his mental health issues.
                3. Emotional and physical dangers
        K.A.S. 
alleged that Father had sexually assaulted her and that she attempted suicide 
because of the domestic violence in her home. The CASA child advocate testified 
that she feared for the children’s safety if they were returned to their 
parents and worried that the children would “pay for” K.A.S.’s sexual 
abuse allegations. Father denied the allegations and tried to portray K.A.S. as 
a liar. Mother also denied the allegations and did nothing to protect K.A.S. 
from Father.
        Father 
left the children with Mother, even though he knew that Mother was not compliant 
in taking the medications for her bipolar disorder and that when she was not 
taking her medication, she had rages and struck the children. Both parents 
verbally abused the children. Furthermore, the fighting and physical abuse 
between Father and Mother was extreme and ongoing, often witnessed by the 
children, and resulted in emotional problems for all three children.
                4. Parental abilities and inappropriate 
parent-child relationship
        Father 
did not have a close relationship with any of his children and saw them only one 
day a week before they were removed from the home. When he did see them, he 
called them names, accused them of things, and spanked them with a belt or 
wooden spoon. K.A.S. alleged that Father had sexually assaulted her.
        At 
the family visits, when Mother would try to correct the children, Father would 
indicate the opposite to them. For example, when Mother would tell one of the 
children to do something, Father would counter by telling the child she did not 
have to do what Mother said. Father also told the children that they did not 
have to obey the social workers and told K.A.S. that she did not have to obey 
her foster parents. When K.A.S. tried to tell her parents she was angry, her 
parents told her that it was okay to be angry but that it was not their fault. 
Father continued to raise the sexual assault allegations during the parental 
visits, despite having been instructed not to do so. Father also made the 
children cry during the parental visits by speaking harshly to them, and the 
children were often injured during rough play with Father. Father also touched 
the girls’ crotches while playing with them during the parental visits.
        Father 
admitted being addicted to pornography, especially lesbian pornography, since 
the age of ten. He and Mother often fought over his viewing pornography on the 
Internet. Father claimed that he stopped viewing pornography eight months before 
trial and that it was more difficult for him to break the addiction to 
pornography than when he quit marijuana, cocaine, and some of the “most 
hardest drugs you have ever done.”
        Father 
made only three of his ten court-ordered $150 monthly child support payments and 
offered no explanation for his failure to pay. Father earned $9,000 in the three 
months before trial and, in the month before trial, bought a $300 camcorder, 
spent $100 for a computer, and began paying $100 per month for DSL cable, but 
made no child support payment.
        Dr. 
Foster testified that Mother had a high level of self-centeredness, and there 
were indications that she was the type of person who tended to consider her own 
needs first and foremost. Dr. McCreary, a clinical psychologist, testified that 
Mother’s historical and current mental health difficulties would make it hard 
for her to be an effective parent, even with the services that were being 
provided to her. Furthermore, he questioned whether Mother could handle K.A.S. 
because an eight-year-old child with bipolar disorder and post-traumatic stress 
disorder would contribute to whatever problems were in the home.
        Mother 
experienced uncontrollable rages during which she was unaware of her actions or 
words, and there was testimony that during some of these rages she physically 
assaulted K.A.S. Mother trained the children to seek shelter from her when she 
was in a rage. Even when not in a rage, Mother yelled and cursed at the 
children, called them names, and accused them of things. J.G.S. was Mother’s 
favorite child, and at the time the children were removed from the home, Mother 
did not have a normal connection with or feeling toward K.A.S. or W.S.
        After 
the children were removed from the home, Mother obtained and kept a job and was 
able to pay for all of her living expenses except for her car payment, which 
Father made for her. She separated from Father after he physically assaulted her 
several months after the removal. However, she reconciled with him shortly 
before trial.
                5. Available programs
        After 
the children were removed, Father completed parenting classes and attended a 
batterer’s intervention program and counseling. He missed two counseling 
sessions, which resulted in that program being cancelled. Father and Mother both 
testified that Father benefitted from these services. Nevertheless, during 
visits with the children, Father did not use the skills taught him in the 
parenting classes and he did not comply with requests to stop referring to 
K.A.S.’s sexual abuse allegations during the visits. The CASA child advocate 
testified that Father was always angry during the visits, he snapped at the 
children and said things to make them cry, and the children were afraid of him. 
Father was frequently confrontational with others, including K.A.S.’s foster 
mother. Father also continued to batter Mother, and she spent several days in a 
shelter after he assaulted her in April 2002. According to the CASA child 
advocate, Father never got anything out of the services that were provided to 
him.
        After 
the children were removed, Mother attended court-ordered programs and 
voluntarily attended other programs, some of which she did not complete. There 
was testimony that Mother did not get anything from these services until they 
were almost finished, that Mother did not implement the strategies she learned 
in counseling and parenting classes during the visits with the children, and 
that Mother had not demonstrated an ability to change the behavior that resulted 
in the loss of her children. A CPS case worker determined that there were no 
available services that would ensure the children’s safety.
                6. Plans for the children
        Father 
planned to find a job that took up less of his time when his children were 
returned. He did not know what type of job that might be. He opined that he 
might be able to make $35,000 working at McDonald’s, but he had not applied 
there or for other jobs.
        Father 
also planned to go to counseling as a family, and he and Mother planned to get 
the children involved in some programs at the University of North Texas. Father 
did not know any details about those programs, however.
        Father 
testified that his mother, grandfather, and three unnamed friends were available 
to help the family when needed. Father’s grandfather testified that he had 
seen his great-grandchildren each Christmas, he was planning to sell his house 
in Ohio in the spring and move near Father, and he was willing to help with the 
children. Father’s mother, who lived nearby, also testified that she was 
willing to help with the children. CPS conducted a home study, but denied 
placement of the children with the grandmother. The CASA child advocate 
testified that J.G.S. was afraid of her grandmother and did not want to go near 
her during the visits and that the grandmother did not like J.G.S. The CASA 
child advocate also opined that the grandmother was trying to put on a front at 
trial that she was a good person, but she had lived near the family for the 
entirety of the marriage and had not attempted to stop the family violence in 
the household.
        Father 
and Mother planned for the children to attend Bible study and to attend church 
up to four times each week. Both the pastor and assistant pastor testified that 
Father and Mother attended church frequently and that they would provide 
spiritual guidance.
        Mother 
understood that the children needed long-term counseling, and she planned to see 
to it that the children would get the counseling they needed. She also planned 
to set aside time for each of the children and had prepared a rules list, 
consequence list, and chore list for the children. She planned to provide 
medical insurance for the children, either through Medicaid, a check’s 
program, or Father’s employer. Mother also had arranged her work schedule so 
that she could be at home when the children were home, and she testified that 
there was a day care facility across the street from the home. Mother also 
planned to continue her individual and marriage counseling.
        Mother 
had no family in the area, but claimed to have four friends who would help her 
with the children. Mother had not known any of those friends for very long, and 
the friends characterized Mother’s and Father’s relationship as good, which 
was contradicted by Mother and Father’s own testimony.
        TDPRS 
planned for the children to be adopted if Father’s and Mother’s parental 
rights were terminated, but K.A.S. was a poor adoption candidate.
                7. Stability of home or proposed placement
        Father 
and Mother’s home had a history of instability and domestic violence. The 
clinical director who performed psychological assessments of the three children 
testified that, because the children are unstable, it would be devastating for 
them to be returned to a chaotic family. K.A.S.’s psychiatrist also testified 
that it would be a bad thing for K.A.S. to be sent to a chaotic home or one with 
domestic violence. The clinical psychologist who evaluated Father expressed 
concern for the safety and security of the children in the home if Father and 
Mother continued to fight, be erratic, and ignore the children’s needs.
        Father 
and Mother were separated three times before the children were removed from the 
home, and once afterward. In June 2002, Father moved out of the house and stayed 
with his mother. He later told Mother that he had an inspiration from God that 
if he and Mother moved back in together, they would get their children back. In 
September 2002, less than a month before trial, Father moved back in with 
Mother.
        The 
children were secure in their temporary placements in foster care. The CASA 
child advocate testified that W.S. was happy in his foster home and he was just 
starting to talk. She also testified that J.G.S. was so happy in her foster home 
that she was no longer stressed. The foster mother testified that both W.S.’s 
and J.G.S.’s behavior had improved since they had been in her home. J.G.S.’s 
counselor testified that J.G.S. was happy and that since being in foster care, 
her crying and sadness had diminished and she had improved emotionally.
        K.A.S.’s 
therapist, who had seen K.A.S. weekly since December 2001, testified that there 
had been an extreme decrease in K.A.S.’s anxiety, an increase in her feelings 
of security, and she believed that K.A.S. was in a safe and supportive 
environment with the foster parents. K.A.S.’s therapeutic foster mother 
testified that she had no concerns about K.A.S. continuing to reside in her 
home, even though K.A.S. became aggressive and willfully disobedient in June 
2002 and had some problems with lying and stealing since July 2002.
        All 
three children behaved significantly better with their foster parents than they 
did with their parents, and they showed affection for and loved both their 
parents and their foster parents.
       8. Excuse for 
acts or omissions
        Father 
and Mother both testified that Father had become a new person, but Mother 
admitted that Father had only been that way for about one month before trial. In 
a bench trial, the trial court is the judge of the credibility of the witnesses 
and the weight to be accorded to their testimony. Davis v. Travis County 
Child Welfare Unit, 564 S.W.2d 415, 420-21 (Tex. Civ. App.—Austin 1978, no 
writ). A trial court can measure the future conduct of parents by their recent 
past conduct, but is not required to believe that there has been a lasting 
change in a parent’s attitude since his children were taken. Id. at 
421.
        Dr. 
Richard McCreary, a clinical psychologist who evaluated Father, diagnosed Father 
with adjustment disorder with anxiety and depressed mood and with a parent-child 
relational problem. Dr. McCreary noted that Father had some characteristics of 
an isolated or schizoid individual and opined that Father might resist full 
compliance at times.
        Mother 
contends that four months before trial she finally found a medication that 
controls her bipolar disorder, and when she is on the proper medication, she can 
be a good mother to her children. Mother claimed that she had been compliant in 
taking this medication, with the exception of one week-end when she forgot to 
take it. Since Mother began taking this medication, she has obtained and kept a 
job and her demeanor has improved. However, there was extensive testimony that 
she had a history of noncompliance in taking her bipolar medications.
        Mother 
began taking medication for her bipolar disorder on December 31, 1996. Dr. 
Sujatha Ramkumar, Mother’s MHMR psychiatrist, testified that he had changed 
Mother’s medications a number of times since he began treating her in November 
2001, generally at her insistence. Dr. Ramkumar testified that none of 
Mother’s requests were unreasonable, but she never gave the medications time 
to work. Dr. Ramkumar testified that Mother, like most persons with bipolar 
disorder, liked to change, and the reason Mother had been responsive to him was 
that he always agreed to her requested medication changes. Dr. Mark Foster, a 
psychologist who evaluated Mother in August 2002, testified that because of 
Mother’s personality type, she would be a considerable risk for not being 
medication compliant. Teresa Morrow, a Friends of the Family services 
coordinator, testified that Mother was a danger to her children if not on her 
medication.
        Mother 
also argues that, even if Father’s parental rights are terminated, hers should 
not be because Father was the source of the domestic violence and abuse. Father 
agreed that if ordered to do so, he would stay away from the children, and 
Mother testified that if it was necessary, to keep her children, she would leave 
Father and keep the children away from him. However, Mother and Father had 
separated several times before the children were removed and once afterward, but 
always reconciled. Mother exhibited a pattern of dependence on Father and failed 
to protect the children from him.
        Having 
carefully reviewed the entire record, we conclude that there is both legally and 
factually sufficient evidence to support the trial court’s finding under 
family code section 161.001(2) that termination of both Father’s and 
Mother’s parental rights is in the best interest of the children.
 
V. 
Constitutionality of One-Year Deadline
        Father 
challenges the constitutionality of family code section 263.401, which requires 
the court to dismiss a termination-of-parental-rights case if it has not 
rendered a final order within one year after the suit was filed. Tex. Fam. Code Ann. § 263.401(a). 
According to Father, the trial court erroneously denied his request for 
continuance and forced him to trial without adequate discovery or trial 
preparation in order to comply with the one-year deadline. Father contends that 
section 263.401 is unconstitutional as applied to him; thus, it violates his due 
process and due course of law rights because it imposes an arbitrary time 
limitation. U.S. Const. amend. 
XIV; Tex. Const. art. I, § 19.
        Mother 
argues that section 263.401 is unconstitutional as applied to her, a mentally 
ill person, because one year is not enough time for a mentally ill person to 
demonstrate that she can recover and meet the needs of her children. Mother also 
contends that section 263.401 violates her equal protection and due process 
rights because it imposes an arbitrary time limitation. U.S. Const. amend. XIV.
        Neither 
Father nor Mother raised these constitutional challenges in the trial court and 
thus have waived their rights to assert them on appeal. To preserve a complaint 
for our review, a party must have presented to the trial court a timely request, 
objection, or motion that states the specific grounds for the desired ruling, if 
they are not apparent from the context of the request, objection, or motion. Tex. R. App. P. 33.1(a); see also
Tex. R. Evid. 103(a)(1). If a 
party fails to do this, error is not preserved, and the complaint is waived. Bushell 
v. Dean, 803 S.W.2d 711, 712 (Tex. 1991) (op. on reh’g); see also In re 
B.L.D., 113 S.W.3d 340, 354-55 (Tex. 2003), petition for cert. filed, 
(Nov. 19, 2003) (No. 03-8432) (holding that court of appeals must not retreat 
from error-preservation standards to review unpreserved error in parental rights 
termination cases); In re D.T.M., 932 S.W.2d 647, 652 (Tex. App.—Fort 
Worth 1996, no writ) (holding that even constitutional arguments are waived if 
not raised in the trial court).
VI. Conclusion
        We 
overrule all of Father’s and Mother’s points on appeal and affirm the trial 
court’s order terminating their parental rights.


                                                          ANNE 
GARDNER
                                                          JUSTICE

 
PANEL A: CAYCE, C.J.; GARDNER, 
J. and SAM J. DAY, J. (Retired, Sitting by Assignment)

DELIVERED: February 5, 2004

