
COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
 
NO. 2-03-261-CV
 
 
 
IN THE INTEREST OF
B.T., M.J.R.B., T.B., AND M.T., 
CHILDREN
 
 
 
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FROM THE 323RD DISTRICT COURT 
OF TARRANT COUNTY
 
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OPINION
 
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        Both 
Father and Mother challenge the trial court’s termination of their parental 
rights.  Both parents assert ineffective assistance of counsel claims and 
challenge the sufficiency of the evidence to support termination.  Father 
also claims that the trial court’s termination order is void.  We will 
affirm.
I. PROCEDURAL 
ISSUES
A. Background
        The 
Texas Department of Protective and Regulatory Services (“TDPRS”) filed its 
original petition for termination of appellants’ parental rights on June 28, 
2002, and that same date the trial court appointed TDPRS temporary managing 
conservator of appellants’ children.  The trial court scheduled a full 
adversarial hearing for July 11, 2002.  On July 10, the trial court reset 
the adversary hearing for July 30, 2002, and signed an order extending the 
temporary orders for the pendency of the suit or until further order of the 
court.  There is no other order in the clerk’s record concerning an 
adversarial hearing.
        On 
April 17, 2003, Father filed a motion for continuance from the trial court’s 
scheduled May 20, 2003 trial date.  On May 1, 2003, Father filed a motion 
for extension from the trial court’s scheduled June 16, 2003 trial date.  
There is no order granting either motion, but the case went to trial on July 21, 
2003.  Following a five-day trial to the jury, the trial court rendered 
judgment terminating Father’s and Mother’s parental rights on August 18, 
2003.
B. Ineffective 
Assistance of Counsel
1. General Principles
        The 
trial court appointed counsel for both Mother and Father, who were indigent.  
On appeal, Mother and Father claim for the first time that their court-appointed 
counsel provided ineffective assistance because counsel did not object to the 
trial starting after the one-year deadline expired or the court’s failure to 
conduct a fourteen-day adversarial hearing.
        The 
Texas Supreme Court has held that "the statutory right to counsel in 
parental-rights termination cases embodies the right to effective counsel."  
In re M.S., 115 S.W.3d 534, 544 (Tex. 2003); see Tex. Fam. Code Ann. § 107.013(a)(1) 
(Vernon Supp. 2004-05).  Thus, when the trial court decided to appoint 
counsel to represent appellants, counsel's obligation to provide effective 
assistance arose.  See M.S., 115 S.W.3d at 544; Tex. Fam. Code Ann. § 107.013(a)(1).
        In 
analyzing the effectiveness of counsel in the context of a termination of 
parental rights, we follow a two-pronged test that was set forth by the United 
States Supreme Court in Strickland v. Washington to determine whether an 
attorney's representation was so inadequate as to be in violation of the Sixth 
Amendment right to effective assistance of counsel.  Id. at 545 
(citing Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 
2062 (1984)). In order to show ineffectiveness of counsel in a 
termination-of-parental-rights case, the appellant must show that counsel's 
assistance fell below an objective standard of reasonableness and that counsel's 
deficient assistance, if any, prejudiced the defendant.  Id. (citing 
Strickland, 466 U.S. at 687, 104 S. Ct. at 2064).  We acknowledge that 
there is a "strong presumption that counsel's conduct falls within the wide 
range of reasonable professional assistance."  Id.  
(quoting Strickland, 466 U.S. at 689, 104 S. Ct. at 2065).
2. Preservation of Error
        TDPRS 
contends that Appellants did not preserve their ineffective assistance of 
counsel claims because they did not include this issue in either their 
statements of points or motions for new trial.
a. Statements of Points
        Family 
code section 263.405(b) provides that “[n]ot later than the 15th 
day after the date a final order is signed by the trial judge, a party intending 
to appeal the order must file with the trial court a statement of the point or 
points on which the party intends to appeal.”  Tex. Fam. Code Ann. § 263.405(b) 
(Vernon 2002).  Father and Mother each filed statements of points, but 
neither included the ineffective assistance of counsel claim.  TDPRS 
contends that Appellants waived the ineffective assistance of counsel claims 
because they did not include them in the statements of points.
        We 
addressed this very issue in In re W.J.H., in which we held that a 
party’s failure to include a particular point or points in the statement of 
points filed under section 263.405(b) does not waive his or her right to raise 
the excluded points on appeal and does not bar our consideration of the point on 
appeal when an appellee does not demonstrate prejudice.  111 S.W.3d 707, 
712-13 (Tex. App.—Fort Worth 2003, pet. denied).  For the reasons stated 
in In re J.J.O., we decline to reconsider that holding. See In re 
J.J.O., 131 S.W.3d 618, 626-27 (Tex. App.—Fort Worth 2004, no pet.).#11  Accordingly, Appellants did not waive their 
ineffective assistance of counsel claims by failing to include them in their 
statements of points.
b. Motions for New Trial
        TDPRS 
also contends that Father and Mother waived their ineffective assistance of 
counsel claims because they did not raise them in their motions for new trial. 
TDPRS argues that rule of civil procedure 324(b)(1) requires the claims to be 
raised in the motions for new trial because they are complaints on which 
evidence must be heard. Tex. R. Civ. P. 
324(b)(1).  We disagree.  An ineffective assistance of counsel claim 
can be raised for the first time on appeal without being preserved in the trial 
court.  In re J.M.S., 43 S.W.3d 60, 64 (Tex. App.—Houston [1st 
Dist.] 2001, no pet.); see In re M.S., 115 S.W.3d at 546-50 (considering 
ineffectiveness of counsel even though no motion for new trial filed).  By 
not presenting the issue in a motion for new trial and developing a record of 
ineffective behavior, the proponent of the claim has a difficult burden to 
overcome because the challenged action might be considered sound trial strategy.  
In re J.M.S., 43 S.W.3d at 64.  But this does not preclude 
presentation of the issue on appeal.
3. One-Year Deadline
        Both 
Father and Mother contend that their appointed counsel were ineffective because 
they did not object to the trial starting more than one year after the trial 
court appointed TDPRS as temporary managing conservator of the children.  
They assert that had their counsel objected, the trial court would have had no 
discretion but to dismiss the case and return their children to them.
        Section 
263.401 of the family code provides that, unless the trial court has rendered a 
final order on the first Monday after the first anniversary of the date the 
court appointed TDPRS as temporary managing conservator in a suit affecting the 
parent-child relationship, the court "shall dismiss" a suit filed by 
TDPRS that seeks the termination of the parent-child relationship.  Tex. Fam. Code Ann. § 263.401(a).  
The trial court may extend this deadline for up to 180 days if, by the Monday 
after the first anniversary date, the court finds that continuing TDPRS's 
conservatorship of the child is in the child's best interest and renders an 
order that complies with section 263.401(b).  Id. § 263.401(b).  
If the trial court grants an extension, but does not render a final order within 
the 180-day period, it must dismiss the suit. Id. § 263.402(c).
        A 
party may, however, waive the right to object to the trial court's failure to 
comply with these statutory deadlines.  Under section 263.402(b), a party 
"who fails to make a timely motion to dismiss the suit or to make a motion 
requesting the court to render a final order before the deadline for dismissal . 
. . waives the right to object to the court's failure to dismiss the suit."  
Id. § 263.401(b).  To be timely, a motion to dismiss must be made 
before TDPRS has introduced all of its evidence, other than rebuttal evidence, 
at the trial on the merits.  Id.
        It 
is undisputed that the trial started more than one year after TDPRS was awarded 
conservatorship of the children and that neither Father’s nor Mother’s 
attorney objected to the trial starting after section 263.401(a)’s one-year 
deadline.  Father and Mother both contend that their attorneys’ waiver by 
failing to timely object to trial starting after the one-year deadline was 
ineffective assistance of counsel.  But they fail to meet their burden to 
show that their appointed attorneys’ assistance fell below an objective 
standard of reasonableness.
        Mother 
points out that no extension order is included in the clerk’s record. TDPRS 
responds by referring us to the order extending the temporary orders during 
pendency of the suit.  Furthermore, the reporter’s record contains two 
references to an extension, both made without objection by the other party.  
At one point TDPRS’s attorney asked a witness:  “Are you aware that 
TDPRS has extended the dismissal date and we’re actually in the extension 
period?”  At another, Father’s attorney asked a different witness: 
“You know this case had an extension to July?” and “Did you know that an 
extension was granted in May?”
        Section 
263.401(b) simply requires the court to “render” an extension order.  Tex. Fam. Code Ann. § 263.401(b).  
It does not require that the order be written.  In re D.D.M., 116 
S.W.3d 224, 230 (Tex. App.—Tyler 2003, no pet.); see also Phillips v. Tex. 
Dep’t of Protective & Regulatory Servs., No. 11-02-00181-CV, 2004 WL 
2244155, at *2 (Tex. App.—Eastland Sept. 30, 2004, no pet. h.).  Thus, an 
extension of time for the dismissal deadline announced in open court may 
properly be rendered according to the statute.  In re D.D.M., 116 
S.W.3d at 230.  Father and Mother have failed to provide an adequate record 
on appeal to show that the dismissal deadline was not orally rendered.2
        Furthermore, 
Father filed both a motion for continuance and a motion for extension.  The 
motions, which were filed in April and May 2003, sought extension of trial 
settings for May 20, 2003 and June 16, 2003, respectively.  In both 
motions, Father asserted that he needed more time to complete his service plan.  
There is no order on either motion in the clerk’s record.  Nevertheless, 
a party who requests the trial court to reset the trial date beyond the original 
one-year deadline set out in 263.401(a) has agreed to an extension under section 
263.401(b). In re B.W., 99 S.W.3d 757, 758 (Tex. App.—Houston [1st 
Dist.] 2003, no pet.).  Because Father sought an extension only weeks 
before the one-year deadline expired, Father’s attorney could have reasonably 
concluded that Father agreed to an extension beyond the one-year deadline.
        Father 
and Mother failed to show that their appointed counsel acted unreasonably by 
failing to object to trial starting after the one-year deadline.  
Accordingly, we need not address their arguments that counsel’s allegedly 
deficient performance prejudiced their defense.
4. Fourteen-Day Adversary Hearing
        Father 
also argues that his counsel was ineffective for another reason.  Father 
asserts that the trial court failed to have an adversary hearing within fourteen 
days after TDPRS was appointed as temporary managing conservator of the 
children.  Tex. Fam. Code Ann. 
§ 262.201(a) (Vernon 2002).  As a result, Father contends that the trial 
court had no discretion but to return the children; therefore, he claims his 
counsel was ineffective because had his counsel but asked, the trial court would 
have been compelled to return the children.  We disagree.
        The 
trial court does not lose jurisdiction if it fails to timely conduct the 
hearing.  Instead, the remedy for the parents and TDPRS is to compel the 
trial court by mandamus to conduct the adversary hearing promptly.  In 
re J.M.C., 109 S.W.3d 591, 595 (Tex. App.—Fort Worth 2003, no pet.); In 
re E.D.L., 105 S.W.3d 679, 687 (Tex. App.—Fort Worth 2003, pet. denied).  
Without addressing whether counsel acted competently, we hold that Father failed 
to show he was prejudiced by counsel’s failure to seek return of the children 
on the basis that there was no adversary hearing within the fourteen-day window.
C. Jurisdiction
        In 
his second issue on appeal, Father raises a confusing issue seeming to argue 
that the final judgment is void because the trial court failed to hold the full 
adversary hearing and enter a temporary order extending the TDPRS’s status as 
temporary managing conservator within fourteen days after the children were 
taken into possession as required by section 261.201(a).  Father concedes 
that this court has held that both sections 262.201 and 262.401 are procedural 
rather than jurisdictional.  See In re S.J.G., 124 S.W.3d at 243-44; 
In re J.M.C., 109 S.W.3d at 594; In re E.D.L., 105 S.W.3d at 688.  
But Father argues that the failure of the trial court to comply with those 
statutes nevertheless has “jurisdictional implications.”
        Specifically, 
as we understand his argument, Father analogizes the June 28, 2002 order 
appointing the TDPRS as temporary managing conservator to a temporary 
restraining order, and the July 11, 2002 order extending the date for the 
adversary hearing to July 30, 2002 to an order extending the time for a hearing 
on a temporary injunction. Tex. R. Civ. P. 
680.  The problem, he says, is that there was no full adversarial hearing 
conducted on the extended date of July 30, 2002.  Because the TDPRS did not 
proceed with an adversary hearing, he argues, both the June 28, 2002 order and 
the July 11, 2002 order expired and the trial court had no alternative but to 
order the children returned to the parents. Tex. Fam. Code Ann. § 262.201(a) (full 
adversary hearing required unless TDPRS returns children), § 262.201(b) 
(“court shall order the return of the child to the parent”), § 262.201(c) 
(unless court issues appropriate temporary order).
        We 
rejected the jurisdictional argument invoking Rule 680 in In re J.M.C., 
in which the parent likewise asserted that, when the original ex parte temporary 
possession order expired without a full adversary hearing, the trial court was 
required to dissolve the order and render a final judgment returning the child 
to the parent.  We pointed out that expiration of a temporary restraining 
order under Rule 680 does not deprive the trial court of jurisdiction over the 
subject matter of a civil suit, and nothing in that rule or in section 262.201 
deprives the trial court of jurisdiction over a termination proceeding simply 
because a temporary possession order expired without a full adversary hearing.  
109 S.W.3d at 595.
        Conceding 
that expiration of a temporary restraining order or temporary injunction 
normally has no jurisdictional implications, Father argues it is what the trial 
court must then do after the orders expire that deprives the trial court of 
jurisdiction. He points to the mandatory nature of the requirement that the 
trial court “shall order the return of the child to the parent,” citing 
sections 262.201(b) and (c), arguing that such an order is a final judgment and, 
therefore, that jurisdiction is lost upon the expiration of the trial court’s 
plenary power under Texas Rule of Civil Procedure 324b(d).  Father urges 
that the signing of a mandatory order under the statute is merely a ministerial 
duty, the right to which exists before the trial court signs the order. 
Notwithstanding the fact that the trial court did not sign an order returning 
the children to Father, he argues that such an order must be deemed to have been 
rendered by operation of law.  Thus, he says, the trial court’s plenary 
power expired before the case proceeded to trial, and everything done after that 
time was void.
        In 
In re E.D.L., we rejected a virtually identical argument that, because 
the court did not conduct an adversary hearing within fourteen days after the 
TDPRS took possession, and because the language of the statute is mandatory, the 
trial court lost jurisdiction and the case was therefore dismissed by operation 
of law.  105 S.W.3d at 686.  As we pointed out in that case, the issue 
is not whether the statutory language is mandatory but what consequences follow 
a failure to comply.  Id.  We noted that, despite the language 
in section 262.201 mandating a hearing, the statute contained no corresponding 
provision dictating dismissal for noncompliance.  Id. at 687.
        If 
the legislature had intended to require a dismissal as the result of a failure 
to hold an adversary hearing, it could have so provided.  See Helena 
Chem. Co. v. Wilkins, 47 S.W.3d 486, 495 (Tex. 2001) (“If the Legislature 
had intended dismissal to be the consequence of a failure to hear a forfeiture 
case within the prescribed period, it could easily have said so.”).  
“Just because a statutory requirement is mandatory does not mean that 
compliance with it is jurisdictional.”  In re E.D.L., 105 S.W.3d 
at 687 (quoting Albertson’s, Inc. v. Sinclair, 984 S.W.2d 958, 961 
(Tex. 1999)). Mindful of all of the same policy arguments made in both cases, we 
decline to reconsider our decision that the failure to hold a fourteen-day 
adversary hearing does not deprive the trial court of jurisdiction over the 
termination proceeding.  Id. at 688.  We overrule Father’s 
second issue.
II. SUFFICIENCY OF THE EVIDENCE
A. Background
        Mother 
has five children: two daughters, B.T. and M.T., and three sons, M.J.R.B. (R.B.), 
T.B., and A.S.  Her son A.S. was the subject of another proceeding, and 
parental rights as to A.S. were not addressed in this case.  Father is the 
father of R.B., T.B., and A.S. B.T.’s father’s parental rights had been 
terminated prior to this case.  M.T.’s alleged biological father was 
served, but he did not participate in this case.  His parental rights to 
M.T. were terminated, and he does not appeal the termination.
        Mother 
was fourteen years old when B.T. was born on April 19, 1994.  After B.T. 
was born, Mother dropped out of the ninth grade. In 1995 or 1996, she moved to 
an apartment complex where she routinely allowed B.T. to wander alone while she 
slept until midafternoon.  CPS was notified.  When the apartment 
manager, who would later become Mother’s mother-in-law, expressed concern for 
B.T., Mother told her to mind her own business.  Mother began dating Father 
in 1995.  Mother was sixteen and Father was twenty years old when R.B. was 
born on April 18, 1996.  Mother and Father married on June 17, 1996.
        Father 
went to jail in July 1996, and Mother and her two children moved in with 
Father’s father, his stepmother Merrie Lee Vieman, and Vieman’s two 
children.  In August 1996, they all moved into a one-room motel where they 
lived for about one year.  Vieman took ten-month-old R.B. to get his 
two-month shots.  Mother later moved with the children to their own 
apartment.  A TDPRS caseworker noticed a dark brown substance that he 
believed to be excrement on the stroller where R.B. also ate.  He demanded 
that Mother clean the apartment, but she refused.
        The 
record is unclear as to when Father was released from jail or reunited with 
Mother, but Mother and Father lived in Brownwood from August to December 1997, 
and T.B. was born on October 22, 1997.  Shortly before T.B.’s birth, they 
contacted Father’s father and Vieman because they were homeless.  They 
were also being investigated by TDPRS over the children’s severe diaper rashes 
that were being left untreated.
        Mother 
and Father moved to Arlington in December 1997.  The three children, 
including six week old T.B., moved in with Vieman. Vieman returned the children 
to Mother and Father in January 1998.  Mother and Father moved with the 
children to Lubbock in January or February of 1998.
        Mother 
and Father split up in April 1998.  On April 6, 1998, Father was sent to 
the penitentiary after he violated his probation.  Mother sent the two 
boys, R.B. and T.B., to live with Father’s father and Vieman.  At the 
time, TDPRS was investigating diaper rash so bad that R.B.’s bottom was 
bleeding.  From April to August 1998, Mother failed to maintain contact 
with the boys or their caretakers.  She had her next contact with R.B. and 
T.B. in November 1998, but she left her daughter B.T. alone in the car for 
thirty minutes while she visited with the boys.  Mother did not see the 
boys again until June 2001, and she provided no support for them.
        Mother, 
her mother Susan Taylor, her half-brother Jeff Walton, and B.T. moved in with 
Donna Kessler in September or October 1998.   A.S. was born on 
December 29, 1998. Kessler observed bad parenting on Mother’s part. B.T. had 
bruising where Mother had grabbed B.T.’s arm and twisted it.  Mother also 
screamed at the baby A.S.
        Mother 
left Kessler’s home and moved back to Lubbock with B.T. and A.S. in February 
or March 1999.  In April 1999, TDPRS investigated a bruise in the shape of 
a slap mark on three-and-a-half-month old A.S.’s face.  Taylor was 
babysitting A.S. when the slap mark appeared on A.S.’s face, and Mother told 
hospital workers that she thought Taylor caused the bruise.  Taylor had a 
history with TDPRS, and Mother had been repeatedly warned not to allow Taylor to 
supervise the children.  Nevertheless, Mother continued to leave A.S. alone 
with Taylor until Taylor left the area to avoid the physical abuse 
investigation.
        The 
police were summoned to Mother’s home in April or May 1999 where they found 
B.T. and A.S. unsupervised.  B.T. was found wandering alone around the 
trailer park.  The house had broken windows and locks, a stopped-up sink, 
and raw sewage.  Mother sent B.T. and A.S. to live with Kessler in May 1999 
because she did not want TDPRS to put them into foster care.  In June 1999, 
Mother began the psychological counseling and parenting classes provided to her 
by TDPRS, but dropped the sessions due to lack of interest.
        B.T. 
and A.S. came to live with Mother in July or August 1999.  In August 1999, 
Mother moved into rent-free housing provided by TDPRS, but she violated her 
lease by having friends and relatives stay with her.
        On 
October 13, 1999, Father was released from prison and moved in with his father 
and Vieman, who were still taking care of R.B. and T.B.  The boys 
frequently smeared feces on the walls, but Father did not consider it his 
responsibility to clean up the messes made by his children.  Vieman 
eventually asked Father to move out and to take R.B. with him because R.B. had 
major psychological problems that required attention.  R.B. exhibited 
jealousy toward his nine-month-old brother T.B., stabbed T.B.’s port-o-crib 
with a knife, and put pillows over T.B.  Father later left R.B. with Vieman 
for what was supposed to be a twenty-four-hour visit, but Father failed to check 
in with Vieman for three days.
        In 
January 2000, Lubbock TDPRS was concerned about a “very bad” rash on the 
back of A.S.’s legs and took A.S. to the hospital.  TDPRS prepared to 
remove the children from Mother’s care in January 2000, so Mother sent B.T. 
and A.S. to live with Kessler.  Both of the children had lice. B.T. had 
open sores and lice an inch deep and had missed two weeks of school because of 
lice.
        Mother 
lived with Taylor in Rockwall from summer 2000 until July 10, 2001.  In 
July 2000, B.T. made a sexual molestation outcry against Mother’s 
half-brother.  Mother pressed charges against her half-brother, and he was 
convicted for sexually assaulting B.T. and was in prison at the time of trial.
        M.T. 
was born on May 5, 2001.  In June 2001, Father and Mother reunited after a 
three year separation and moved to Hurst. B.T. returned to live with Mother and 
Father in June 2001, and A.S. returned six months later.  In August 2001, 
Mother surrendered managing conservatorship of A.S. to Kessler.  Neither 
Mother nor Father complied with a court order to pay Kessler child support. In 
October 2001, Vieman returned T.B. to Mother and Father.  T.B. had just 
turned four and had lived with Vieman since he was six weeks old.  Kessler 
returned A.S. to live with Mother and Father in November 2001.
        TDPRS 
investigated the family in January 2002 because of bruises and scratches on the 
children. Mother explained that she wouldn’t have scratched the children if 
she had sculptured nails, and Father acknowledged the bruises, but was not 
concerned about them.  B.T. told a TDPRS investigator that Mother 
instructed her not to disclose that Mother “smacks” her. B.T. also told the 
investigator that Mother “hates me” and that Mother was not a good mommy. 
B.T. had ringworm, bruises, and a fabric burn on her arm.  During this time 
period, A.S. told Kessler that Mother hit him on the top of his head.  He 
had a faint bruise and a headache. Mother and Father’s home continued to get 
dirtier.
        Catholic 
Family Services attempted to work with Mother and Father from February 8, 2002 
to July 14, 2002 because Mother and Father chose to work with Catholic Family 
Services instead of TDPRS.  Mother and Father failed to take advantage of 
the classes and counseling offered by Catholic Family Services and offered poor 
excuses for their failures to do so.  The conditions of the home during 
this time were poor, and the children had lice.
        In 
June 2002, TDPRS became concerned about a bruise on A.S.’s face.  Mother 
admitted that she caused the bruise.  She told Kessler that she “freaked 
out” and hit A.S.  Mother later claimed that she hit 
three-and-a-half-year old A.S. in the face to force him to spit out what she 
thought was a poisonous mushroom.  B.T. said that she told Mother that A.S. 
had a cracker in his mouth, not a mushroom, but Mother would not stop hitting 
A.S.  Father and Kessler both testified that the bruise was a bad bruise.  
Father admitted that the bruise was caused by substantial force.  He gave 
contradictory statements about whether he was present when Mother hit A.S., 
causing the bruise.
        TDPRS 
removed the children on June 27, 2002.  Mother was subsequently arrested on 
outstanding warrants.  The house was filthy and unsafe.  The children 
were unclean and wearing dirty clothes, had lice, and were hungry.  A.S. 
was placed with Kessler, with whom he had lived most of his life, and the other 
four children were placed with a foster mother.  The foster mother 
testified that when the children came into her care, they were unaccustomed to 
eating utensils, bathing, brushing their teeth, or toilet paper.
        R.B. 
was hospitalized for psychiatric care three times while he was in foster care.  
Mother and Father did not respond to any of the notifications that he had been 
hospitalized.  Instead, they screamed at TDPRS workers about it at a child 
visitation, aware that the children could hear them.  B.T. was moved to 
tears by the tantrum.  Father and Mother sporadically attended the classes 
and counseling sessions provided by TDPRS, and they quit attending the few they 
started.  They claimed that they had transportation problems, but there was 
evidence that they were able to get to visitations and fast food restaurants at 
the time they claimed they could not get to classes.  They were evicted 
from the Hurst trailer park in November 2002.  They refused TDPRS’s offer 
to help them obtain subsidized housing and subleased an Irving apartment.
        On 
December 4, 2002, Mother and Father were told that TDPRS planned to recommend 
termination.  They did not attend the Permanency Planning Team meeting 
where the proposed termination was discussed, despite having been given a map 
and directions to the meeting place.  At the Christmas 2002 visitation, the 
children gave Mother and Father presents.  Mother and Father had no gifts 
for the children and told them that their Christmas presents would come in July 
after the parents won the court case.  In July 2003, Mother and Father told 
B.T. that she would be given to an aunt after they won the court case because 
Mother and Father could give her to whomever they wanted.
        After 
a five-day trial, the jury found that both Mother and Father engaged in conduct 
or knowingly placed B.T., R.B., T.B., and M.T. with persons who engaged in 
conduct that endangered the physical or emotional well-being of the children, 
and that termination of Mother’s and Father’s parental rights to B.T., R.B., 
T.B., and M.T. would be in the children’s best interest. Mothers parental 
rights in B.T., R.B., T.B., and M.T. and Father’s parental rights in R.B., T.B., 
and M.T. were terminated on August 18, 2003.  On appeal, Father asserts 
that the evidence is factually insufficient to support the endangerment findings 
as to him, and both parents assert that the evidence is factually insufficient 
to support the finding that termination of their parental rights is in the best 
interest of the children.
B. Standards 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).  “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.  TEX. FAM. CODE ANN. § 
161.206(b) (Vernon Supp. 2004-05); 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 D.T., 34 S.W.3d 625, 630 (Tex. App.—Fort 
Worth 2000, pet. denied) (op. on reh’g).
        In 
proceedings to terminate the parent-child relationship brought under section 
161.001 of the family code, the petitioner must establish one or more of the 
acts or omissions enumerated under subdivision (1) of the statute and must also 
prove that termination is in the best interest of the child.  TEX. FAM. CODE ANN. § 
161.001 (Vernon 2002); Richardson v. Green, 677 S.W.2d 497, 499 (Tex. 
1984); 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).
        Termination 
of parental rights is a drastic remedy and is of such weight and gravity that 
due process requires the petitioner to justify termination by “clear and 
convincing evidence.”  TEX. FAM. CODE ANN. §§ 161.001, 161.206(a); In re G.M., 
596 S.W.2d 846, 847 (Tex. 1980).  This intermediate standard falls between 
the preponderance standard of ordinary civil proceedings and the reasonable 
doubt standard of criminal proceedings. G.M., 596 S.W.2d at 847; D.T., 
34 S.W.3d at 630.  It is defined as the “measure or degree of proof that 
will produce in the mind of the trier of fact a firm belief or conviction as to 
the truth of the allegations sought to be established.”  Tex. Fam. Code Ann. § 101.007 (Vernon 
2002).
        The 
higher burden of proof in termination cases alters the appellate standard of 
factual sufficiency review.  In re C.H., 89 S.W.3d at 25. “[A] 
finding that must be based on clear and convincing evidence cannot be viewed on 
appeal the same as one that may be sustained on a mere preponderance.”  Id.  
In considering whether the evidence of termination rises to the level of being 
clear and convincing, we must determine “whether the evidence is such that a 
factfinder could reasonably form a firm belief or conviction” that the grounds 
for termination were proven.  Id.  Our inquiry here is whether, 
on the entire record, a factfinder could reasonably form a firm conviction or 
belief that the parent violated one of the conduct provisions of section 
161.001(1) and that the termination of the parent’s parental rights would be 
in the best interest of the child.  Id. at 28.
C. Discussion
1. Endangerment
        Father 
challenges the trial court’s findings that he knowingly placed or knowingly 
allowed his children to remain in conditions or surroundings that endangered 
their physical or emotional well-being, and that he engaged in conduct or 
knowingly placed the children with persons who engaged in conduct that 
endangered their physical or emotional well-being.  Tex. Fam. Code Ann. §§ 161.001(1)(D),(E).  
In an involuntary termination proceeding, endangerment means to expose a child 
to loss or injury or to jeopardize a child’s emotional or physical health. Boyd, 
727 S.W.2d at 533. Father raises only two arguments as to why he believes 
the evidence is insufficient to support the endangerment findings.
        First, 
Father argues that the evidence is factually insufficient because there is no 
evidence that he ever struck any child hard enough to leave a mark.  That 
is not the test, however.  Furthermore, a child need not suffer actual 
physical injury for a finding of endangerment to be made.  Id. Nevertheless, 
there was evidence that Father struck the children with a metal studded belt.  
All of the children talked about being “smacked” by Father and Mother, they 
were frequently observed with bruises, and they expressed concern that they 
would be “smacked” if they were returned to their parents.  
Furthermore, Father left the children with Mother, who frequently struck them.  
Placement of a child with an abusive parent or relative is endangerment.  In 
re J.M.M., 80 S.W.3d 232, 242 (Tex. App.—Fort Worth 2002, pet. denied), disapproved 
on other grounds, In re J.F.C., 96 S.W.3d 256 (Tex. 2002).  And Mother 
does not challenge the court’s findings that she endangered the children.
        Second, 
Father claims that TDPRS based its decision to remove the children upon the 
isolated incident of Mother striking A.S. when she thought A.S. had a poisonous 
mushroom in his mouth, and asserts that this incident does not provide 
sufficient evidence to support termination of his parental rights.  The 
TDPRS case worker testified that this striking incident was “the straw that 
broke the camel’s back.”  However, there was overwhelming other 
evidence to support removal, such as the continually filthy home conditions, 
physical abuse, neglect, lack of supervision, and failure to address the 
children’s health concerns.  Endangerment can occur through both the acts 
and omissions of a parent, and parental neglect can be as dangerous to a 
child’s well-being as direct abuse.  In re M.C., 917 S.W.2d 268, 
270 (Tex. 1996).  The record is replete with evidence of endangerment 
beyond the mushroom-slapping incident.
        We 
have reviewed the record extensively, and under the applicable standard of 
review, we hold that the evidence is factually sufficient to constitute clear 
and convincing evidence to support the trial court’s finding that Father 
engaged in conduct that endangered the children’s physical or emotional 
well-being.
2. Best Interest
        Both 
Mother and Father challenge the factual sufficiency of the evidence to support 
the jury’s findings that termination of their parental rights was in the best 
interest of the children.  Tex. Fam. 
Code Ann. § 161.001(2).  Nonexclusive factors that the trier of 
fact in a termination case may use in determining the best interest of the child 
include the following:
        (1)    the 
desires of the child;
 
        (2)    the 
emotional and physical needs of the child now and in the future;
 
        (3)    the 
emotional and physical danger to the child now and in the future;
 
        (4)    the 
parental abilities of the individuals seeking custody;
 
        (5)    the 
programs available to assist these individuals to promote the best interest of 
the child;
 
        (6)    the 
plans for the child by these individuals or by the agency seeking custody;
 
        (7)    the 
stability of the home or proposed placement;
 
        (8)    the 
acts or omissions of the parent which may indicate that the existing 
parent-child relationship is not a proper one; and
 
        (9)    any 
excuse for the acts or omissions of the parent.
  
Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976).  These factors are 
not exhaustive; some listed factors may be inapplicable to some cases; other 
factors not on the list may also be considered when appropriate.  C.H., 
89 S.W.3d at 27.  Furthermore, undisputed evidence of just one factor may 
be sufficient in a particular case to support a finding that termination is in 
the best interest of the children.  Id.  On the other hand, the 
presence of scant evidence relevant to each Holley factor will not 
support such a finding.  Id.
        B.T., 
R.B., and initially T.B., were bonded to their parents.  M.T. was only two 
years old at the time of trial.  All of the children did well in foster 
care, and they expressed fear and anger when the parents told them that they 
were returning home because they thought Mother and Father would continue to 
“smack” them.
        B.T. 
had been required to assume a parental role in the home.  Mother expected 
B.T. to wake her in the mornings, to prepare breakfast and lunch for her younger 
siblings, and to wash the dishes.  She would be “smacked” if she did 
not do it exactly right.  She had difficulty giving up her parental role 
while in foster care.  She was sexually assaulted by Mother’s 
half-brother, and while Mother’s half-brother was convicted, Mother failed to 
follow through with getting B.T. the counseling she needed, especially when she 
had flashbacks of the attack.
        R.B. 
was violent toward his siblings, especially his younger brother T.B., and could 
not be controlled by his foster parent.  He attempted to injure T.B. 
several times and threatened to cut off his siblings‘ heads.  He was 
admitted to a mental hospital three times while in foster care and eventually 
removed from the foster home where B.T., T.B., and M.T. were placed and placed 
in a therapeutic foster home.  R.B. also inflicted injury on himself, 
primarily by head banging, but Mother and Father trivialized his problems and 
thought he simply sought attention.  B.T., R.B., and T.B. were prescribed 
medication for ADHD after being removed from the home.
        Mother 
and Father had failed to provide the children with the medical attention they 
needed in the past.  Mother unsuccessfully attempted to treat repeated 
bouts of diaper rash and lice infestations.  Mother failed to get baby T.B. 
his immunizations. Mother and Father physically abused the children.  They 
also locked the children in their bedroom. R.B. and T.B. were so afraid to come 
out that they urinated in the vents.  Father made the children drink hot 
sauce before they could have popsicles.  Throughout Mother’s and 
Father’s long history with TDPRS, they maintained filthy, unsanitary house 
conditions and refused to clean up the various homes they lived in.  They 
failed to supervise the children, letting toddlers roam alone or failing to 
inform caretakers of Mother’s or Father’s whereabouts.
        Mother 
was bonded to and affectionate with B.T.  She enlisted help when she felt 
she was not able to care or provide for her children, as when she sent the 
children to live with Father’s father and stepmother or with Kessler.  
Mother also claimed that she slapped A.S. because she was in a panic trying to 
protect him from a poisonous mushroom, not because she was trying to harm 
him.  She occasionally made attempts to clean the home and completed 
parenting and anger management classes.
        Father 
was not employed after the children were removed from the home because he had 
injured his right wrist in an on-the-job injury and was on workers’ 
compensation.  He participated in a bowling league from June 2002 to 
February 2003 and testified that his doctor told him he could bowl left-handed, 
but could not work.  Mother sporadically worked as a bartender or a 
nurse’s aid at various nursing homes.
        Mother 
and Father were offered many programs to assist them, but they failed to take 
advantage of those programs in the past, and there was no indication they would 
do so in the future.  Mother and Father had no plans for the children if 
they were returned.  They had recently purchased a trailer home in Lubbock, 
but there was no indication that they would be any more stable in that location 
than they had been in the past.  Mother told B.T. that when the children 
were returned to her, she would send B.T. to live with Mother’s sister.  
In contrast, TDPRS planned for the children to be adopted and believed that all 
four children could be adopted by the same family, even though the foster mother 
with whom they were placed was not in a position to adopt the children.
        Mother 
offered no excuses for her acts or omissions as a parent.  The only excuse 
offered by Father for not cooperating with TDPRS’s service plan was that he 
did not think he needed any improvement.
        We 
have reviewed the record extensively, and under the applicable standard of 
review, we hold that the evidence is factually sufficient to constitute clear 
and convincing evidence to support the trial court’s finding that termination 
of Mother’s and Father’s parental rights was in the best interest of B.T., 
R.B., T.B., and M.T.  We overrule Mother’s and Father’s 
sufficiency-of-the-evidence points.
III. CONCLUSION
        Having 
overruled all of Father’s and Mother’s points on appeal, we affirm the trial 
court’s judgment terminating their parental rights.


                                                                  ANNE 
GARDNER
                                                                  JUSTICE
 
 
PANEL B:   HOLMAN, 
GARDNER, and WALKER, JJ.
 
DELIVERED: December 16, 2004


NOTES
1.  TDPRS 
also urges us, for the second time, to reconsider our opinion in In re S.J.G., 
124 S.W.3d 237, 240 (Tex. App.—Fort Worth 2003, pet. denied) (holding that 
failure to file statement of points is not jurisdictional defect that prevents 
appellate court from addressing issues on appeal).  We again decline to do 
so.  See In re J.J.O., 131 S.W.3d at 626-27.
2.  An 
allegation of ineffective assistance of counsel must be firmly founded in the 
record, and the record must affirmatively demonstrate the alleged 
ineffectiveness.  Thompson v. State, 9 S.W.3d 808, 814 (Tex. Crim. 
App. 1999).
