











In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana

______________________________

No. 06-03-00079-CV
______________________________


Â 
Â 
IN THE INTEREST OF A.B., R.B., T.B., C.R., AND D.M., CHILDREN
Â 
Â 


Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â 

On Appeal from the 307th Judicial District Court
Gregg County, Texas
Trial Court No. 2002-1282-DR


Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â 



Before Morriss, C.J., Ross and Carter, JJ.
Opinion by Chief Justice Morriss


O P I N I O N

Â Â Â Â Â Â Â Â Â Â Â Â According to Terri Kidd, a Child Protective Services (CPS) investigator, the living conditions
at the Gregg County residence of Lista Palmer and her five children, at the time Kidd visited in early
2002, were filthy and unsafe.  Kidd's visit was triggered by Palmer's report to CPS that her oldest
child, son A.B., held the youngest child, five-year-old son D.M., over a chair and threatened to "take
his booty."  From the children came reports that A.B. had previously sexually assaulted one or more
of them. 
Â Â Â Â Â Â Â Â Â Â Â Â Palmer appeals from the termination of her parental rights, asserting (1) the trial court's order
was not timely and therefore invalid; (2) we should apply a de novo standard of review, not met here;
(3) there is insufficient evidence of endangering conditions; (4) there is insufficient evidence of
endangering conduct; and (5) there is insufficient evidence that termination of Palmer's parental
rights is in the children's best interests.  We affirm.
Background
Â Â Â Â Â Â Â Â Â Â Â Â Palmer and her five children had moved from Houston to Longview and ultimately into a
rental home there.  They had lived there for approximately a year and a half when, in January 2002,
the children reported the A.B. incident to Palmer.  Kidd investigated.
Â Â Â Â Â Â Â Â Â Â Â Â As a result of her initial investigation, Kidd prepared a "Child Safety and Evaluation Plan." 
In this plan, Palmer was to keep the four younger children separated from A.B.  A.B. was taken to
the Gregg County Juvenile Detention Facility. 
Â Â Â Â Â Â Â Â Â Â Â Â One week later, on January 31, 2002, staff at the Child Advocacy Center interviewed the
children with Kidd present.  From this interview, the authorities discovered that C.R., the second
oldest child, was involved with A.B. in the incident threatening D.M., and may have engaged in
other incidents of sexual abuse of the younger siblings.  Kidd testified she discovered that A.B. and
C.R. would bribe T.B. and R.B. with gel pens so that they would not tell anyone what was happening
and that A.B. and C.R. taught T.B. and R.B. "how to molest one another and hurt each other
sexually."  As a result, a second Child Safety and Evaluation Plan was issued.  That Safety Plan
provided that Palmer was to live with the three youngest children in the residence of Edward and
Rosie Jarrells,
 A.B. was to remain in the detention facility, and C.R. was to live with Palmer's uncle,
Emory Gonerway, who lived immediately behind the Jarrellses.  Further, the plan instructed Palmer
to attend parenting training and counseling and to accept weekly visits from a homemaker.  CPS
recommended Palmer and the children enter counseling and complete a psychological assessment. 
Palmer and the children did not attend the recommended counseling, and she refused to complete
the evaluation.  Palmer says she attended counseling with the family's pastor. 
Â Â Â Â Â Â Â Â Â Â Â Â CPS concluded Palmer had not excluded C.R. from living with the younger children as
required by the Safety Plan.  Palmer testified C.R. had not returned to live with her and the younger
children claiming that, consistent with the Safety Plan, he lived at Gonerway's house behind the
Jarrellses' house and that C.R. might have been seen near the Jarrellses' house walking to Gonerway's
house from C.R.'s school bus stop.  Palmer says C.R. spent the night at the Jarrellses' house on only
one occasion and only after the children had been removed.  Kidd testified that Palmer's concern
regarding the alleged sexual abuse diminished and transformed into denial.  
Â Â Â Â Â Â Â Â Â Â Â Â Based on these circumstances, CPS decided to remove the children from Palmer's care.  The
trial court agreed and entered a temporary order on May 22, 2002, naming the State as temporary
managing conservator of the four younger children.  
Â Â Â Â Â Â Â Â Â Â Â Â Palmer admitted using crack cocaine both while the children were in the home and after their
removal.  In September 2002, after the children were removed but before termination of her parental
rights, Palmer was arrested for possession of crack cocaine.  She committed herself to Oak Haven
Recovery Center on December 24, 2002, and remained until January 27, 2003.   In early February,
she then went to Tyler to participate in a Salvation Army recovery program and remained in that
program until sometime in March when she left because she became romantically involved with one
of its staff members.  When she returned to Longview, she began attending Narcotics Anonymous
meetings and continued to attend those meetings to the time of trial.  Further, she testified she had
been drug-free since entering Oak Haven.  Results of a February drug screening at the Salvation
Army were negative.  
Â Â Â Â Â Â Â Â Â Â Â Â In February 2003, Palmer was interviewed by Tieraney Rockmore-Beall, who had taken over
as caseworker for Palmer and her children.  Palmer insisted she wanted visitation with the children. 
She visited the children once in February and once in March.   Thereafter, she had no further contact
with the children and made no further inquiry into the case's status. 
Â Â Â Â Â Â Â Â Â Â Â Â About one year after the children were removed from Palmer's care, on May 12, 2003, the
trial court ruled from the bench, terminating Palmer's parental rights to the four youngest children
and naming the State as permanent managing conservator.  On May 27, 2003, the trial court entered
a written order confirming the earlier oral order.  On June 19, 2003, the trial court entered findings
of fact and conclusions of law.
Was Order Timely?
Â Â Â Â Â Â Â Â Â Â Â Â Palmer contends the trial court lost jurisdiction when it failed to render a timely final order. 
The Texas Family Code provides that "unless the court has rendered a final order . . . on the first
Monday after the first anniversary of the date the court rendered a temporary order appointing the
department as temporary managing conservator, the court shall dismiss the suit."  Tex. Fam. Code
Ann. Â§ 263.401(a) (Vernon 2002).

Â Â Â Â Â Â Â Â Â Â Â Â A trial court renders judgment by oral pronouncement of its decision in open court or by a
signed, written memorandum filed with the clerk.  In re Ruiz, 16 S.W.3d 921, 923â24 (Tex.
App.âWaco 2000, no pet.).  To constitute rendition of judgment, the trial court's oral
pronouncement "must clearly indicate the intent to render judgment at the time the words are
expressed."  Id. at 924.  Section 263.401(d) further defines what is necessary to constitute a final
order for purposes of application of that provision.  Tex. Fam. Code Ann. Â§ 263.401(d) (Vernon
2002).  The pertinent portion of that provision defines a "final order" as one which "terminates the
parent-child relationship and appoints a relative of the child, another suitable person, or the
department as managing conservator."  Id.
Â Â Â Â Â Â Â Â Â Â Â Â When deciding Ruiz, the Waco Court of Appeals was without a record of the trial court's oral
pronouncement and, therefore, was limited to the trial court's notation on the docket sheet to
determine whether that constituted rendition of a final order.  Ruiz, 16 S.W.3d at 924.  In concluding
that the notation failed to satisfy the requirements of Section 263.401(d), the Waco court emphasized
that the notation failed to specifically "grant" the Texas Department of Protective and Regulatory
Services' petition or "order" or "decree" that parental rights be terminated.  Tex. Fam. Code Ann.
Â§ 263.401(d).  Further, the notation did not appoint a managing conservator.  Ruiz, 16 S.W.3d at 924. 
A final order was not rendered in that case, then, until the trial court signed the order terminating
parental rights on May 2, after the expiration of one year following the court's temporary order
naming TDPRS as temporary managing conservator.  Therefore, there was no final order rendered
in the matter before the expiration of the time period outlined in Section 263.401(a), and the case
should have been dismissed.  Id. at 927â28.  
Â Â Â Â Â Â Â Â Â Â Â Â In this case, however, we have a record of the trial court's oral pronouncement of its
judgment.  On May 12, 2003, at the conclusion of the hearing on the matter, the trial court stated as
follows:
As to Lista Palmer, as to the children [C.R., R.B., T.B., and D.M.], I find that
grounds exist as alleged by the State that she has knowingly placed or allowed the
children to remain in conditions or surroundings which endanger their physical and
emotional well-being; that she engaged in conduct or knowingly placed the children
with persons who engaged in conduct which endangered the physical or emotional
well-being of the children; and I find that as to those children, it would be in their
best interests to terminate the parent-child relationship.  I do not find as to [A.B.] that
she has not [sic]
 committed those grounds, and therefore, will deny the request of
the State to terminate the parent-child relationship, although [A.B.] will remain in the
conservatorship of the Department in anticipation that he will remain and complete
the program in Pegasus.  I do not find that Ms. Palmer at this time is able to take
[A.B.] back or to provide a home for him, and it will be necessary for him to remain
in their conservatorship until such time as she does.
Â 
As to the other four children, the Department will remain as the Managing
Conservator of those children.

Â Â Â Â Â Â Â Â Â Â Â Â The trial court's oral pronouncement meets the requirements of a final judgment in
accordance with Section 263.201(d) of the Texas Family Code.  Tex. Fam. Code Ann. Â§ 263.401(d). 
First, we note it expressly confirms the State's allegations and specifically finds that termination of
Palmer's parental rights would be in the best interests of the children.  Second, the pronouncement
declares that TDPRS "will remain" the conservator of the children.  Therefore, the trial court's oral
pronouncement constituted rendition of a final judgment on May 12, 2003, before the first
anniversary of the date the court first named TDHS temporary managing conservator for the children. 
Dismissal under Section 263.401(a), therefore, was not required, and the trial court's denial of the
motion to dismiss on those grounds was not error.
Apply a Higher Standard of Review?
Â Â Â Â Â Â Â Â Â Â Â Â A court may order involuntary termination only if the court finds that:  (1) a parent has
committed a predicate act or omission harmful to the child, and (2) termination is in the best interest
of the child.  Tex. Fam. Code Ann. Â§ 161.001 (Vernon 2002).  Any complaint that the evidence is
legally or factually insufficient to support the findings necessary for termination is analyzed by a
heightened standard of appellate review.  See In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002); In re
C.H., 89 S.W.3d 17, 25 (Tex. 2002).
Â Â Â Â Â Â Â Â Â Â Â Â Palmer contends federal constitutional due process principles require us to review de novo
the trial court's decision to terminate parental rights.  We decline this invitation to depart from
established law setting forth the heightened standards of review applicable to termination of parental
rights.
  In reviewing the legal sufficiency of the evidence, we view all the evidence in a 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.  Tex. Fam. Code Ann. Â§ 101.007 (Vernon 2002);
J.F.C., 96 S.W.3d at 266; C.H., 89 S.W.3d at 25.  If, in light of the entire record, the disputed
evidence that could not reasonably have been credited in favor of the finding is so significant that
a trier of fact could not reasonably have formed a firm belief or conviction favoring the ruling, then
the evidence is factually insufficient.  Id.  The court reasoned this provides a standard that "focuses
on whether a reasonable jury could form a firm conviction or belief [yet] retains the deference an
appellate court must have for the factfinder's role."  C.H., 89 S.W.3d at 26.  We will apply these
established standards to the facts of Palmer's case as we address her remaining points of error
challenging the sufficiency of the evidence to sustain several of the trial court's findings.
Did Conditions or Surroundings Endanger the Children?
Â Â Â Â Â Â Â Â Â Â Â Â Palmer contends the evidence is insufficient to establish by clear and convincing evidence
that she "knowingly placed or knowingly allowed children to remain in conditions or surroundings
which endanger the physical or emotional well-being of the child."  Tex. Fam. Code Ann.
Â§Â 161.001(1)(D).  Under this section, we look to see if the environment itself poses a danger to the
child's physical or emotional well-being.  In re S.H.A., 728 S.W.2d 73, 84 (Tex. App.âDallas 1987,
writ ref'd n.r.e.).  
Â Â Â Â Â Â Â Â Â Â Â Â It is beyond question that sexual abuse is conduct that endangers a child's physical or
emotional well-being.  See In re R.G., 61 S.W.3d 661, 667 (Tex. App.âWaco 2001, no pet.); In re
King, 15 S.W.3d 272, 276 (Tex. App.âTexarkana 2000, pet. denied).  Parental knowledge that an
actual offense has occurred is not necessary; it is sufficient that the parent was aware of the potential
for danger and disregarded that risk.  R.G., 61 S.W.3d at 667â68; see In re Tidwell, 35 S.W.3d 115,
118 (Tex. App.âTexarkana 2000, no pet.). 
Â Â Â Â Â Â Â Â Â Â Â Â The record reveals ample evidence that Palmer, at a minimum, knew of a risk for sexual
abuse and disregarded that risk.  Although Palmer's account of what happened varied over time, she
admits believing "something" happened.  By not following the required steps and using the State's
recommendations for dealing with the psychological impact of the behavior, Palmer indicates she
began to deny the allegations that A.B. and C.R. sexually abused their younger siblings.  While she
did take the initiative to report the matter and have A.B. placed in detention, she then ceased taking
any steps toward ensuring the emotional well-being of the children, leaving unresolved any
psychological issues concerning sexual abuse.  Palmer's denial and her attendant lack of support
could contribute to an environment in which the children could continue to be exposed to sexual
abuse and in which they could be hesitant to report the conduct.  See R.G., 61 S.W.3d at 671. 
Additionally, the record contains evidence that Palmer did not keep C.R. away from the younger
children.  Such a case would most certainly make for an environment which poses a danger to the
younger children's well-being.   
Â Â Â Â Â Â Â Â Â Â Â Â The record demonstrates endangering conditions other than those relating to sexual abuse. 
Kidd testified that the Palmer house was "extremely messy," that there was no electricity in the
house, that the kitchen was "very dirty," and that there was "food laying [sic] around."  Palmer's
history of drug and alcohol abuse lends itself to an unstable home environment and weighs in favor
of termination of her parental rights.  See In re S.D., 980 S.W.2d 758, 763 (Tex. App.âSan Antonio
1998, pet. denied).  The record also reveals that on several occasions Palmer left the children in the
care of Edward Jarrells, who had, to her knowledge, recent convictions for possessing a controlled
substance and making terroristic threats. 
Â Â Â Â Â Â Â Â Â Â Â Â Based on the foregoing evidence, we conclude the evidence was sufficiently clear and
convincing to support the trial court's finding.  Looking at the evidence in a light most favorable to
the finding of the trial court, we conclude a reasonable trier of fact could have formed a firm
conviction that Palmer knowingly placed or allowed her children to remain in conditions or
surroundings that endangered their physical or emotional well-being.  Also, the disputed evidence
on the matter is not so significant that the trial court could not have formed a firm conviction or
belief that its finding was true.  We overrule Palmer's first and second points of error. 
Did Conduct Endanger the Children?
Â Â Â Â Â Â Â Â Â Â Â Â Palmer also challenges the sufficiency of the evidence to support the trial court's finding that 
she engaged in conduct, or knowingly placed the children with persons who engaged in conduct,
which endangered the physical or emotional well-being of the children.
 Tex. Fam. Code Ann.
Â§Â 161.001(E); Tex. Dep't of Human Servs. v. Boyd, 727 S.W.2d 531, 534 (Tex. 1987).
Â Â Â Â Â Â Â Â Â Â Â Â Here, our inquiry, unlike that under Section 161.001(1)(D), focuses on conduct of either the
parent or the persons with whom the parent has placed the children.  See In re P.S., 766 S.W.2d 833,
836 (Tex. App.âHouston [1st Dist.] 1989, no writ).  Subsection (D) permits termination based on
a single act or omission, while subsection (E) requires a "course of conduct."  R.G., 61 S.W.3d at
667.  While the term "endanger" means more than a threat of metaphysical injury or the possible ill
effects of a less than ideal family environment, it is not necessary that the conduct be directed at the
child or that the child actually suffer injury.  Boyd, 727 S.W.2d at 533.  In our review, we look not
only at evidence regarding the parent's active conduct, but also evidence showing the parent's
omissions or failures to act.  P.S., 766 S.W.2d at 835.
Â Â Â Â Â Â Â Â Â Â Â Â Palmer's failure to participate in counseling shows her unwillingness or inability to ensure
the emotional well-being of the children following their experience with sexual abuse.  This is but
one instance of conduct in her pattern of behavior which endangered the well-being of her children. 
Palmer's failure to follow through to seek help after the A.B. incident and her history with crack
cocaine and alcohol represent conduct that subjects the children to a life of uncertainty and
instability, thereby endangering their physical and emotional well-being.  See S.D., 980 S.W.2d at
763.  The evidence is legally and factually sufficient to support the finding that Palmer engaged in
conduct or knowingly placed the children with persons who engaged in conduct which endangered
the physical or emotional well-being of the children.  We overrule Palmer's third and fourth points
of error.
Is Termination in the Children's Best Interests?
Â Â Â Â Â Â Â Â Â Â Â Â Palmer argues that the evidence was legally and factually insufficient to support the trial
court's conclusion that termination of the parent-child relationship is in the best interests of the
children.  The State, in addition to proving a predicate act or omission harmful to the child, must also
prove by clear and convincing evidence that termination is in the child's best interest.  C.H., 89
S.W.3d at 23. 
Â Â Â Â Â Â Â Â Â Â Â Â A number of factors have been considered by the courts in ascertaining the best interest of
the child.  Included among these are 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)Â 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, 371â72 (Tex. 1976).
Â Â Â Â Â Â Â Â Â Â Â Â The record contains no evidence that the children desire to live with their mother.  To the
contrary, C.R. appeared detached and showed no interest in even talking to Palmer.  In an interview
at Longview Youth Shelter, C.R. even expressed to his psychologist his desire to stay at the shelter. 
C.R. has shown significant improvement in the more structured environment of a residential
treatment center.  There is, however, evidence that the three youngest children are bonded to their
mother and have expressed affection for her. 
Â Â Â Â Â Â Â Â Â Â Â Â The record also shows that Palmer has been unable to provide for the physical needs of the
children as demonstrated by the "extremely messy" house, the "very dirty" kitchen, the "food laying
[sic] around," and lack of electricity.
  Palmer's denial that sexual abuse occurred in her home and
her unexplained failure to undergo family counseling demonstrates a failure to care for the emotional
needs of the youngest children.  Further, the State maintains that there are several good programs for
the children and that the children are good candidates for adoption into a stable home. 
Â Â Â Â Â Â Â Â Â Â Â Â Palmer's failure to protect the emotional well-being of the children following the allegations
of sexual abuse, her failure to maintain a healthy, safe, and stable living environment, and her history
of drug and alcohol abuse indicate her relationship with her children is not good.
Â Â Â Â Â Â Â Â Â Â Â Â Viewing the evidence in a light most favorable to the finding, we conclude there was
sufficient evidence to enable the trial court to form a firm belief that termination of Palmer's parental
rights was in the best interests of the four youngest children.  While there is some evidence that
could be said to dispute that finding, that evidence is not so significant that the trial court could not
have maintained a firm belief favoring the ruling.  The record contains clear and convincing evidence
of Holley factors
 supporting the conclusion that termination of Palmer's parental rights is in the best
interests of the children.  We overrule Palmer's contentions to the contrary.
Conclusion
Â Â Â Â Â Â Â Â Â Â Â Â Since the trial court rendered judgment within the time frame allowed by Section 263.401(a),
the trial court properly denied Palmer's motion to dismiss the cause.  Rejecting Palmer's argument
that we should employ a de novo standard of review and adhering to the established standards
applicable to cases involving termination of parental rights, we hold clear and convincing evidence
supports the trial court's findings that Palmer allowed the children to remain in conditions which
endangered their physical and emotional well-being, that Palmer engaged in conduct, and placed the
children with persons who engaged in conduct, endangering the well-being of the children, and that
termination of Palmer's parental rights as to the four youngest children is in their best interests.  

Â Â Â Â Â Â Â Â Â Â Â Â Accordingly, we affirm the trial court's judgment terminating Palmer's parental rights to these
four children.
Â 
Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Josh R. Morriss, III
Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Chief Justice

Date Submitted:  Â Â Â Â Â Â Â Â October 20, 2003
Date Decided:Â Â Â Â Â Â Â Â Â Â Â Â Â December 31, 2003


s=MsoNormal style='text-align:justify;text-justify:inter-ideograph;
mso-pagination:widow-orphan'>Do Not Publish
Â 
Â 



[1]Tex. Penal Code Ann. § 22.02 (Vernon
Supp. 2010).
Â 


[2]Originally
appealed to the Twelfth Court of Appeals, this case was transferred to this
Court by the Texas Supreme Court pursuant to its docket equalization
efforts.Â  See Tex. GovÂt Code Ann.
Â§ 73.001 (Vernon 2005).Â  We are unaware
of any conflict between precedent of the Twelfth Court of Appeals and that of
this Court on any relevant issue.Â  See Tex.
R. App. P. 41.3.
Â 


[3]Paragraph
one of the application alleged that Campbell entered a plea of guilty to the
offense of aggravated assault with a deadly weapon on May 13, 2010, and was
thereafter placed on community supervision for a period of eight years.Â  Paragraph three of the application alleged
that Campbell violated the conditions of community supervision in that he had
contact with law enforcement on June 8, 2010, and failed to inform the
supervision officer of said contact within forty-eight hours, in direct
violation of the conditions of community supervision.Â  Paragraph four of the application alleged
that Campbell had contact with a person convicted of a felony offense on June
8, 2010, in direct violation of the conditions of community supervision.Â  


