                            COURT OF APPEALS
                             SECOND DISTRICT OF TEXAS
                                  FORT WORTH


                                  NO. 2-07-077-CV

IN THE INTEREST OF M.W., A CHILD

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           FROM THE 323RD DISTRICT COURT OF TARRANT COUNTY

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                           MEMORANDUM OPINION 1

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      Appellant Sonja P. appeals from the trial court order terminating her

parental rights to M.W. In one issue, she challenges the factual sufficiency of

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

                                        Evidence

      M.W. was born in 2002 when Sonja was fifteen years old. At the time

of trial, M.W. was four and Sonja was nineteen. M.W.’s father, Daniel W., left

Sonja when M.W. was four months old.2

      1
          See T EX. R. A PP. P. 47.4.
      2
       Daniel was served with process in the trial court proceedings but did not
make an appearance. The trial court terminated Daniel’s parental rights, and
Daniel has not filed an appeal.
      In 2005, when M.W. was almost three, she contracted bacterial

meningitis, resulting in the amputation of both legs at the knees, all of the

fingers on her left hand, and multiple fingers on her right hand. She began to

receive physical therapy at Cook Children’s Medical Center in June 2005.

      Teresa Brumbaugh, a therapist at Cook Children’s, testified that M.W.’s

therapy initially included wound care because M.W. had open wounds and a

skin graft. Brumbaugh testified that without adequate wound care, the wounds

would take longer to heal and could lead to a life-threatening situation.

Brumbaugh intended to work with M.W. two to three times per week, but Sonja

took her to only about half of the scheduled appointments.          Brumbaugh

stressed the importance of attending the appointments to Sonja both by phone

and in person. Sonja’s explanation for the missed appointments was lack of

transportation.   When the hospital arranged transportation for her, Sonja

cancelled the arranged transportation, saying that she had transportation of her

own, but then something would fall through and M.W. would miss the

appointment. Brumbaugh testified, “There was always something, but typically

it revolved around transportation.”

      When Sonja did take M.W. to the hospital for therapy, M.W. was often

visibly dirty and smelled of urine. Brumbaugh was concerned about infection

control because M.W.’s bandages were dirty. She instructed Sonja on how to



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remove M.W.’s bandages and clean her wounds, but she did not “think that

that was probably getting done.” After the State removed M.W. from Sonja’s

home in September 2005 and placed her in foster care, M.W. attended all of

her appointments. Brumbaugh testified that M.W. made minimal progress while

she lived with Sonja and made better progress after the State placed her in

foster care.

      Brumbaugh testified that when Sonja attended M.W.’s appointments, she

appeared to be nurturing and bonded with M.W. and was very affectionate and

loving towards M.W. during wound care sessions, which were very painful.

      Carrie Carney, another Cook Children’s therapist who worked with M.W.

from June 2005 through April 2006, testified that M.W. missed six of thirty-

seven scheduled therapy appointments early in her treatment, and another nine

appointments were cancelled. Carney said she was concerned that the missed

appointments would delay M.W .’s wound healing, which would in turn delay

the start of range of motion therapy and prosthetics fitting. Like Brumbaugh,

Carney testified that when Sonja did bring M.W. to appointments, M.W. was

dirty and smelled of urine, which made Carney worry about M.W.’s wounds

becoming infected. Carney said that M.W. made better progress after she was

placed in foster care.




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      Stacie Hall is an investigator for the Department of Family and Protective

Services (“the Department”). She testified that she received a referral regarding

M.W. in June 2005 because M.W. had missed several therapy appointments.

Hall explained to Sonja that Medicare-funded transportation was available to her

and told her that lack of transportation was no longer an excuse for missing

therapy appointments. But Sonja continued to miss appointments anyway, and

Hall received another referral regarding M.W. in September 2005. When Hall

visited Sonja’s home as part of her investigation, she found that M.W. and her

one-year-old sister, M.M., were healthy and clean and that M.W. had on clean

bandages. Hall nevertheless made a finding of “reason to believe for medical

neglect,” and removed M.W. from Sonja’s home. M.M. was not removed.

      Christine Petrone, a Department caseworker, testified that she received

M.W.’s case in October 2005 and developed a service plan for Sonja. Sonja

submitted to a psychological assessment but failed to attend counseling

sessions, again citing lack of transportation as the cause. Petrone told Sonja

that she needed to attend M.W.’s medical appointments as part of her service

plan, but Sonja continued to miss the majority of appointments.

      Apart from a short stint as an employee at a retail store, Sonja was

unemployed. Petrone testified that Sonja did not have stable housing; at times

she lived in an apartment, and at other times she lived with friends. When



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Petrone transferred the case to another caseworker in April 2006, Sonja was

living in an apartment paid for by her boyfriend, John M. The Department’s

permanency plan was still reunification at that time, though Petrone had

concerns about Sonja’s ability to maintain stable employment and housing and

her willingness to take M.W. to her therapy appointments.

      The Department placed M.W. with John M.’s stepmother, Tonie S., for

nine months. Tonie testified that she took M.W. to all of her appointments but

that Sonja attended only half of the appointments.     Sonja went to Tonie’s

house to visit M.W . on weekends, and she called M.W. every night. Tonie

thought Sonja was making good progress in the service classes. Eventually,

Tonie returned M.W. to Department care because her husband developed health

problems and he and Tonie did not like the way the Department treated them.

      Janice Barker works for the “protective homemakers department” of

Volunteers of America. She began working with Sonja on her homemaking

skills in August 2006. Barker testified that Sonja’s home “started off clean,

then we went through a period where it was not clean, and then after her baby

was born, it seemed to get back on track.” The “period where [the home] was

not clean” was when several people moved in with Sonja, which made Barker

concerned because “it was very crowded. It seemed to get out of control.”

Barker observed Sonja visit with M.W. at a Department office, and she testified



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that the visit went very well, Sonja was nurturing and loving with M.W., and

Sonja and M.W. were bonded.

      Emma Lopez, a “social service tech” with the Department, assisted

Department caseworkers with parent-child visitations. She observed visitations

between Sonja and M.W. beginning in March 2006. Sonja brought her other

two children to the visitations.   One came to the visitations twice without

shoes, and other times her clothes were dirty. The other child appeared clean,

but his blanket had a bad smell, and Sonja propped his baby bottle up to allow

him to feed himself, even after Lopez advised Sonja that doing so could lead to

infections.   Sonja had a difficult time paying attention to all three children

during the visitations.   But Lopez also testified that M.W. required close

watching to make sure she didn’t injure herself, and she was never injured

during one of the visitations.

      Sandy Balderas, another Department caseworker, testified that, in

December 2006, she investigated a report that Sonja’s other two children were

physically neglected. When Balderas visited Sonja’s home, she saw a marijuana

cigarette in an ashtray, and the smell of marijuana was very evident as soon as

she entered the home. Sonja admitted that she had smoked marijuana about

two hours before Balderas’s arrival and said she smoked marijuana twice a day.

Sonja’s middle child was naked; Sonja said she was toilet training her. The



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kitchen was “crawling with roaches.”         Balderas opened the door to the

apartment’s balcony, but could not walk onto the balcony because it was full

of trash and pizza boxes. Balderas saw fist-sized holes in the walls throughout

the apartment; Sonja told her they resulted from furniture being moved around.

The mattress in the bedroom was on the floor and had no linens on it. Balderas

found several dirty diapers on the bathroom floor. Based on these findings,

Balderas removed the children from Sonja’s home and placed them with Tonie

S.

      Judy Olson is a child advocate who visited M.W. several times while she

lived with Tonie S. and again while M.W. lived with the foster parents with

whom she lived at the time of trial. Olson described M.W. as “very happy, very

settled . . . and pleasant.” M.W. was doing very well in school and making

progress with the use of her prosthetics. M.W. was scheduled for surgery to

have part of one leg bone removed soon after trial to make one of her

prosthetics fit more comfortably. Her foster parents at the time of trial were

not interested in adopting her.

      Olson also visited Sonja at Sonja’s apartment. The apartment was fairly

tidy, but the carpet was very dirty. Olson said she had talked to Sonja about

how difficult it would be for her to care for three small children, especially when

one needed to attend numerous medical appointments and another one was a



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baby. Olson was concerned that Sonja would tell her what Olson wanted to

hear and not tell her the whole story. Sonja told Olson that she had a job at a

retail store but could not show her a pay stub, and the manager of the store

had no record of Sonja ever working there.

         Olson recommended that Sonja’s rights be terminated and said that

termination was in M.W.’s best interest. She testified that M.W. needed to live

with a family who can care for her, provide a clean, safe, loving environment

for her, and allow her to continue with her medical therapy and education.

         Tomika Hardin was M.W.’s caseworker at the time of trial.        Hardin

testified that when she first received the case in December 2006, she visited

Sonja’s home. Sonja’s middle child was naked, the home was a mess, and the

baby was on the floor on a mattress with a bottle propped in his mouth. She

found trash all over the floors, roaches crawling around, holes in the walls, and

trash on the patio.    Hardin was concerned about returning M.W. to that

environment because M.W needed a clean and sterile home environment. At

the time of trial, Sonja was living with her sister and her sister’s husband—who

had a criminal history—in Mineral Wells. She told Hardin she planned to move

to Mesa, but she had not told Hardin what the living arrangements would be

there.




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      Hardin had read about Sonja’s marijuana use, but she saw no evidence

of marijuana in the home. Sonja had attended twenty-seven of twenty-eight

drug counseling sessions, with the twenty-eighth scheduled for the week of

trial, but her last few drug tests were positive for marijuana.

      Hardin testified that her major concern with Sonja was lack of stability

because she did not have a job and her boyfriend was paying her bills. She said

termination was in M.W.’s best interest because she needs a stable, loving

environment with some sense of security.       Hardin testified that M.W. was

adoptable and very loving, very affectionate, and very friendly. She also said

that M.W. had a loving relationship with Sonja.

      Sonja testified that she had moved several times while the case was

pending, but denied that she ever lived with friends.             She said her

boyfriend—the father of her other two children—gave her money for rent, food,

diapers, baby formula, clothing, and household supplies. She testified that she

and her boyfriend had rented a trailer home and expected to move in shortly

after trial. She acknowledged that her boyfriend had not participated in any of

the services in the service plan and that he had refused to take a drug test for

the Department.

      Sonja explained that she missed many of M.W.’s therapy appointments

because she did not have stable transportation; her truck was always breaking



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down, and the Medicaid transport arranged by Cook Children’s was always late.

      Sonja testified that she completed all of the parenting classes that were

part of her service plan and took three additional classes on her own initiative.

She said that her final drug counseling session was scheduled for the day after

trial and that she had been clean since December 9, 2006.

      Sonja said she was looking for work and had submitted an application for

a job cleaning houses, which she expected to pay $125 per week. She had

been admitted to Everest College and intended to earn her high school degree.

                                   Discussion

A.    Preservation

      Before turning to Sonja’s factual sufficiency issue, we must address the

State’s argument that Sonja failed to preserve her issue for our review because

she failed to request a hearing in the trial court on her statement of points filed

under family code section 263.405(b).             See T EX. F AMILY C ODE A NN.

§ 263.405(b) (Vernon Supp. 2007). Relying on the Dallas court of appeals’s

opinion in In re R.J.S., the State contends that a parent appealing a termination

in a case brought by the Department must “present” a section 263.405(b)

statement of points by both timely filing the statement and requesting a

hearing. 219 S.W.3d 623, 626 (Tex. App.—Dallas 2007, pet. denied).




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      This court recently rejected the identical argument and declined to follow

our sister court’s precedent.    In re J.A.B., No. 02-06-00404-CV, 2007 WL

3037720, at *2 (Tex. App.—Fort Worth Oct. 18, 2007, no pet. h.). For the

same reasons articulated in our opinion in that case, we reject the State’s

preservation argument. See id.

B.    Factual sufficiency of best-interest finding

      In her sole issue, Sonja argues that the evidence is factually insufficient

to support the trial court’s finding that termination of her parental rights is in

M.W.’s best interest.

      When reviewing the evidence for factual sufficiency, we must give due

deference to the fact-finder’s findings and not supplant the judgment with our

own. In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). We must determine

whether, on the entire record, a fact-finder could reasonably form a firm

conviction or belief that the termination of the parent’s parental rights would

be in the best interest of the child. In re C.H., 89 S.W.3d 17, 28 (Tex. 2002).

If, in light of the entire record, the disputed evidence that a reasonable fact-

finder could not have credited in favor of the finding is so significant that a fact-

finder could not reasonably have formed a firm belief or conviction in the truth

of its finding, then the evidence is factually insufficient. H.R.M., 209 S.W.3d

at 108.



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

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

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

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

2006). Nonexclusive factors that the trier of fact in a termination case may use

in determining the best interest of the child include:

      (1)   the desires of the child;

      (2)   the emotional and physical needs of the child now and
            in the future;

      (3)   the emotional and physical danger to the child now and
            in the future;

      (4)   the parental abilities of the individuals seeking custody;

      (5)   the programs available to assist these individuals to
            promote the best interest of the child;

      (6)   the plans for the child by these individuals or by the
            agency seeking custody;

      (7)   the stability of the home or proposed placement;

      (8)   the acts or omissions of the parent which may indicate
            that the existing parent-child relationship is not a
            proper one; and

      (9)   any excuse for the acts or omissions of the parent.

Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976).




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      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 child. Id.   On the other hand, the

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

finding. Id.

      We will consider the Holley factors applicable to this case.

      1.       Present and future physical needs and physical dangers

      Of all the Holley factors, M.W .’s current and future physical needs are

paramount.      The evidence showed that, because of her physical disability,

M.W. will need extraordinary medical and therapeutic care now and in the

future.    The record shows that Sonja was unable to provide reliable

transportation for M.W. during the critical wound-care phase of M.W.’s therapy,

even when free transportation was arranged for her. Moreover, the record

shows that Sonja was unable to keep her home clean when M.W. needed a

clean environment to minimize the risk of infection. While the immediate and

serious risk of wound infection had apparently abated by the time of trial

because M.W.’s wounds had healed, she was scheduled to undergo surgery to

remove part of a bone in her leg shortly after trial, and Carney testified that



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M.W.’s prosthetics could cause new wounds, either of which would renew the

risk of infection. These factors weigh heavily in favor of termination.

      2.    Present and future emotional needs

      The record shows that M.W. is bonded to Sonja and has an appropriate

and loving relationship with her. This weighs against termination. The record

also shows that M.W. is very happy with her foster parents, is very outgoing,

easily adapts to new people in her life, and is adoptable. Thus, while M.W. is

bonded to Sonja, an adoptive family should be able to meet her emotional needs

in the future.

      3.    Sonja’s parental abilities

      The record shows that Sonja’s parental abilities are less than optimal.

She was unable to provide a clean, stable home for any of her children. She

admitted to smoking marijuana while caring for her two younger children. Sonja

had difficulty managing all three children during visitations with M.W. Even

after warnings about allowing her youngest child to feed from a propped-up

bottle, Sonja continued that practice.

      4.    Programs available to assist Sonja to promote M.W .’s best
            interest

      Sonja completed the parenting classes required by her service plan, plus

another three she completed on her own initiative. But the record also shows

that she failed or refused to use the transportation program available to help her

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take M.W. to her therapy appointments.        Thus, the evidence shows that

programs are available to assist Sonja, but she is not always willing to use them

for M.W.’s benefit.

      5.    Any excuse for Sonja’s acts and omissions

      Sonja’s relatively young age was one excuse for her acts and omissions,

but not one that weighs against termination.        She made excuses for her

behavior, but various witnesses expressed frustration with her explanations.

Brumbaugh said, “There was always something” to prevent Sonja from taking

M.W. to therapy. Petrone said, “[I]t was one excuse after another.” Hardin

said Sonja was a lot of talk and no action.

      6.    Other considerations

      Sonja argues that the trial court was forced to make a premature

termination decision by family code section 263.401’s eighteen-month deadline

to commence trial or dismiss a termination suit. See T EX. F AM. C ODE A NN .

§ 263.401 (Vernon Supp. 2007). She also suggests that the trial court should

have denied the Department’s petition for termination and ordered M.W. to

remain in foster care until Sonja could prove that she was drug free, find

employment, establish a stable home, and show that she was capable and

willing to act in the best interest of a child with M.W.’s exceptional needs. But

as the State responds, Sonja already had eighteen months from the time the



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Department filed suit to accomplish these tasks, and she had accomplished

none of them. Sonja does not explain how further delay and perhaps another

trial are consistent with the presumption that prompt and permanent placement

is in M.W.’s best interest. See id. § 263.307(a).

                                   Conclusion

      This is not a simple case. The evidence does not weigh entirely in favor

of termination. All witnesses agreed the M.W. was bonded to Sonja and that

they had a loving relationship, but the evidence also shows that Sonja is unable

to meet M.W.’s physical needs. Mindful that we must give due deference to

the fact-finder’s findings and not supplant them with our own, and considering

the entire record in this case, we hold that a reasonable fact-finder could form

a firm belief or conviction that termination is in M.W.’s best interest. See In re

C.H., 89 S.W.3d at 28. We therefore overrule Sonja’s sole issue and affirm the

trial court’s termination order.

                                            PER CURIAM

PANEL F:    GARDNER, WALKER, and MCCOY, JJ.

DELIVERED: March 6, 2008




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