                           COURT OF APPEALS
                            SECOND DISTRICT OF TEXAS
                                 FORT WORTH


                                  NO. 2-07-178-CV


IN THE INTEREST OF M.L.J., A CHILD




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

            FROM THE 211TH DISTRICT COURT OF DENTON COUNTY

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

                          MEMORANDUM OPINION 1

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

                                   I. INTRODUCTION

      Appellants W illiam J. and Monica J. appeal the termination of their

parental rights to their son, M.L.J.          In four issues, Monica argues that the

evidence is legally and factually insufficient to support the termination order and

that the trial court erred by entering a finding that she failed to comply with the

trial court’s orders. In two issues, William argues that the evidence is legally



      1
          … See T EX. R. A PP. P. 47.4.
and factually insufficient to support the jury’s affirmative termination findings

under subsections (N) and (O) of section 161.001(1) of the family code. We

will affirm.

                   II. F ACTUAL AND P ROCEDURAL B ACKGROUND

      M.L.J. is the biological son of William and Monica, who are married and

both mildly mentally retarded.     M.L.J. was born on July 14, 2006, and is

William’s and Monica’s fifth child. Monica’s mother has custody of their first

child; they voluntarily relinquished their parental rights to their other three

children.

      The hospital released M.L.J to William and Monica on or about July 18,

2006, and William and Monica took him home with them. Joel Nickerson, an

investigator for Child Protective Services (CPS) then, received a report the

following day that Monica had given birth to M.L.J., that there was a history

of involvement between Monica, William, and CPS, and that there were

concerns about Monica’s and W illiam’s ability to care for M.L.J. Nickerson

visited their home the next day and met only William there. Nickerson was

familiar with William’s and Monica’s CPS history, and he “was looking for

things that might have changed with the family, ways that they might have

improved,” in addition to “indicators that they still had problems caring for their

children.” Nickerson inspected the house and “wasn’t concerned about [its]

                                        2
condition . . . in particular,” although it had clutter and a number of cats, but

his conversation with William gave him concern because Nickerson could not

get William to tell him any particulars about what he and Monica were doing to

care for M.L.J.

      Nickerson learned shortly after his first visit to William’s and Monica’s

residence that Monica and M.L.J. were staying with Monica’s mother, which

CPS supported because it was CPS’s position that M.L.J. should either reside

with Monica’s mother or near her so that Monica and William would have

someone to provide assistance in caring for M.L.J. According to Nickerson,

      our hope was that - - that Monica would continue staying with [her
      mother]. I think it had been made clear to her in the past couple of
      [cases] that if she had let [her mother] have an active role in seeing
      her children, helping care for her children on a day-to-day basis,
      that was fine. So our hope was that she was going to stay with
      [her mother] for a while at least.

      A day or two thereafter, however, Nickerson learned that Monica had

returned to her home with M.L.J., so Nickerson visited their residence once

again on or about July 25, 2006. While Nickerson visited with Monica briefly,

he observed that she was not paying any attention to M.L.J as she held him

and that his head was “sort of rolling around.” Having “extreme concerns”

about risks to M.L.J.’s health, safety, or both and without a court order,

Nickerson took possession of M.L.J. and removed him from William’s and


                                        3
Monica’s residence. When Nickerson told Monica that he was removing M.L.J.,

Monica responded, “Take him. I don’t even want him.”

      Appellee Department of Family and Protective Services (DFPS) filed its

petition for protection of M.L.J., for conservatorship, and for termination in suit

affecting the parent-child relationship on July 26, 2006. DFPS alleged that the

trial court should terminate William’s and Monica’s parental rights to M.L.J. if

reunification could not be achieved.

      The trial court conducted a family code section 262.201 adversary

hearing on August 4, 2006, and entered a temporary order naming DFPS

temporary managing conservator of M.L.J. and William and Monica temporary

possessory conservators with two hours of supervised visitation every other

week. See T EX. F AM . C ODE A NN. § 262.201 (Vernon Supp. 2007). The trial

court ordered William and Monica to contact Denton County Mental Health

Mental Retardation (MHMR) for an intake evaluation and to follow all

recommendations made by MHMR, to participate in and successfully complete

parenting classes, and to apply for services with the Texas Rehabilitation

Commission (TRC), among other things. The order further specifically stated

as follows:

      The Court finds and hereby notifies the parents that each of the
      actions required of them below are necessary to obtain the return


                                        4
      of the subject child, and failure to fully comply with these orders
      may result in the restriction or termination of parental rights.

      William’s and Monica’s trial began on May 14, 2007. Both testified that

they visited M.L.J. only twice since his removal—once at the beginning of the

case (on or about August 14, 2006) and once at some point during the week

before trial. William and Monica also testified that they did not contact MHMR,

attend parenting classes, or apply for services with the TRC as ordered by the

trial court; Monica opined that she “just didn’t think that [the services] would

do any good” even though the trial court had told her and William that they had

to perform the services because they were court ordered. Monica testified she

was aware that the purpose of the services to be completed was to have

M.L.J. returned to her, and William agreed that he had been advised at all of the

hearings concerning M.L.J.’s case about what he had to do to regain custody

of M.L.J.

      Nichelle Wiggins, a licensed clinical psychologist, testified about the

psychological evaluations that she had conducted of W illiam and Monica for

CPS. Wiggins concluded that there would be a very high probability of risk to

a small child in the care of William and Monica without appropriate support and

assistance.




                                       5
      CASA worker Lori Powell testified that she discussed with William and

Monica at the adversary hearing the services that the trial court had ordered

them to perform and that Monica told her that “she was not going to do the

services that CPS was going to ask her to do.” Powell testified that she had

asked Monica “many times” throughout the pendency of the case for names

and phone numbers of individuals who were willing to provide assistance if

M.L.J. was returned to William and Monica, but Monica refused to give her any

names. Due to concerns about M.L.J.’s safety and considering William’s and

Monica’s ability to care for M.L.J. and provide a safe environment, Powell

testified that it is in M.L.J.’s best interest that William’s and Monica’s parental

rights to him be terminated.

      CPS caseworker Shelby Johnson worked on M.L.J.’s case and testified

that, having attended the adversary hearing, it was her understanding that

William and Monica would not be performing any services.           To Johnson’s

knowledge, they also never obtained any support in caring for M.L.J.; William

and Monica refused any type of help from the very beginning of M.L.J.’s case.

Johnson opined that it is in M.L.J.’s best interest to terminate William’s and

Monica’s parental rights to him.

      The jury found by clear and convincing evidence that William and Monica

had constructively abandoned M.L.J., who had been in the temporary managing

                                        6
conservatorship of DFPS or an authorized agency for not less than six months,

and DFPS or an authorized agency made reasonable efforts to return M.L.J. to

William and Monica, William and Monica had not regularly visited or maintained

significant contact with M.L.J., and William and Monica had demonstrated an

inability to provide M.L.J. with a safe environment; that William and Monica

failed to comply with the provisions of a court order that specifically established

the actions necessary for them to obtain the return of M.L.J., who had been in

the permanent or temporary managing conservatorship of DFPS for not less

than nine months as a result of his removal from William and Monica for the

abuse or neglect of M.L.J.; and that termination of the parent-child relationship

between William and Monica and M.L.J. is in M.L.J.’s best interest. See T EX.

F AM. C ODE A NN. §§ 161.001(1)(N), (O), 161.001(2) (Vernon Supp. 2007). The

trial court signed an order consistent with the jury’s affirmative findings

terminating the parental rights of William and Monica to M.L.J. The trial court

later denied William’s and Monica’s motions for new trial and determined that

their appeals are frivolous. This appeal followed.




                                        7
                          III. F RIVOLOUS D ETERMINATION

      DFPS initially argues that we may not address William’s and Monica’s

arguments because neither William nor Monica have specifically challenged the

trial court’s post-trial determination that their appeals are frivolous. See T EX.

F AM. C ODE A NN. § 263.405(d)(3). Both William and Monica filed appellate briefs

raising numerous issues, however.       We will therefore treat William’s and

Monica’s briefs as challenging not only the termination order but also the trial

court’s finding that the appeals are frivolous.

      In determining whether an appeal is frivolous, “a judge may consider

whether the appellant has presented a substantial question for appellate

review.” T EX. C IV. P RAC. & R EM. C ODE A NN. § 13.003(b) (Vernon 2002); T EX.

F AM. C ODE A NN. § 263.405(d)(3).    “It is well established, however, that a

proceeding is ‘frivolous’ when it ‘lacks an arguable basis either in law or in

fact.’” De La Vega v. Taco Cabana, Inc., 974 S.W.2d 152, 154 (Tex.

App.—San Antonio 1998, no pet.).            We review a trial court’s finding of

frivolousness under an abuse of discretion standard.        Id.; In re K.D., 202

S.W.3d 860, 866 (Tex. App.—Fort Worth 2006, no pet.).

      We have reviewed the entire record on appeal and thoroughly considered

William’s and Monica’s arguments. The record shows an arguable basis in law

or fact for William’s and Monica’s challenges to the trial court’s termination

                                        8
order. William and Monica have accordingly presented a substantial question

for appellate review. See T EX. C IV. P RAC. & R EM. C ODE A NN. § 13.003(b); T EX.

F AM. C ODE A NN. § 263.405(d)(3); De La Vega, 974 S.W.2d at 154. We hold

that William’s and Monica’s appeal from the termination order is not frivolous

and that the trial court abused its discretion in so finding.

                         IV. T ERMINATION O RDER E RROR

      In Monica’s first issue, she argues that the trial court erred by finding that

she failed to comply with the trial court’s orders requiring her to participate in

certain services because the termination order provides that she failed to

comply with the provisions of a court order that specifically established the

actions necessary for the “father,” not her (the mother), to obtain the return of

M.L.J.2 Although Monica did not assert this argument in her motion for new


      2
         … DFPS argues that Monica failed to preserve for appellate review her
first issue that termination under section 161.001(1)(O) was erroneous, part of
her third issue challenging the sufficiency of the evidence to support the jury’s
affirmative section 161.001(1)(N) termination ground finding, and her fourth
issue that termination is not in M.L.J.’s best interest because she did not
specifically include these arguments in a timely filed statement of points or in
a statement combined with a motion for new trial. See T EX. F AM. C ODE A NN.
§ 263.405(i) (stating that an appellate court may not consider any issue that
was not specifically presented to the trial court in a timely filed statement of
the points on which the party intends to appeal or in a statement combined
with a motion for new trial). In a recent en banc decision, this court held that
family code section 263.405(i) is void as a violation of the separation of powers
provision of the Texas constitution. See In re D.W., No. 02-06-00191-CV,
2008 WL 467328, at *12 (Tex. App.—Fort Worth Feb. 19, 2008, pet. filed)

                                         9
trial, we have the power to reform a judgment when we have the necessary

information to do so.     See T EX. R. A PP. P. 43.2(b); Asberry v. State, 813

S.W.2d 526, 529 (Tex. App.—Dallas 1991, pet. ref’d); In re M.D., No. 05-06-

00779-CV, 2007 WL 1310966, at *1–2 (Tex. App.—Dallas May 7, 2007, no

pet.). It is apparent that this is a clerical error in the drafting of the termination

order; the error is located within the trial court’s finding that termination of

Monica’s parent-child relationship with M.L.J. is appropriate under family code

section 161.001(1)(O) and under the heading, “Termination of Respondent

Mother [Monica’s] Parental Rights,” which is consistent with the jury’s

affirmative section 161.001(1)(O) termination ground finding. And as DFPS

points out, the record reflects that Monica knew and understood that the trial

court had ordered her near the beginning of the case to participate in a number

of services necessary for her to obtain the return of M.L.J. Accordingly, we

reform the fourth paragraph of number “6“ in the trial court’s May 24, 2007

termination order as indicated by the following italicized word: “failed to comply

with the provisions of a court order that specifically established the actions




(en banc). We are bound to follow our own precedent, so we will consider the
merits of Monica’s first, third, and fourth issues to the extent they are
necessary to the resolution of her appeal. See T EX. R. A PP. P. 47.4.

                                         10
necessary for the mother to obtain the return of the child.” Having reformed

the termination order, we overrule Monica’s first issue.

                            V. S UFFICIENCY A RGUMENTS

      William argues in his first issue and Monica argues in her second issue

that the evidence is legally and factually insufficient to support the trial court’s

termination finding under family code section 161.001(1)(O) because DFPS

failed to prove by clear and convincing evidence that it removed M.L.J. from

William and Monica for abuse or neglect. Monica further argues in her fourth

issue that the evidence is legally and factually insufficient to support the trial

court’s finding that termination of her parental rights is in M.L.J.’s best interest.

DFPS responds that the evidence is legally and factually sufficient to support

the section 161.001(1)(O) termination finding and best interest finding.

      A.     Standard of Review

      Termination of parental rights is a drastic remedy and is of such weight

and gravity that due process requires the petitioner to justify termination by

clear and convincing evidence. T EX. F AM. C ODE A NN. §§ 161.001, 161.206(a);

In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002). Clear and convincing evidence

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.” T EX. F AM. C ODE A NN. § 101.007 (Vernon 2002).

                                         11
      In reviewing the evidence for legal sufficiency in parental termination

cases, we must determine whether the evidence is such that a fact-finder could

reasonably form a firm belief or conviction that the grounds for termination

were proven. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005). In reviewing

the evidence for factual sufficiency, we must give due deference to the fact-

finder’s findings and not supplant the verdict 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

parent violated the relevant conduct provision of section 161.001(1) and 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.

      B.    Section 161.001(1)(O) Evidentiary Sufficiency Challenge

      The court may order termination of the parent-child relationship if the

court finds by clear and convincing evidence that the parent has failed to

comply with the provisions of a court order that specifically established the

actions necessary for the parent to obtain the return of the child who has been

                                      12
in the permanent or temporary managing conservatorship of DFPS for not less

than nine months as a result of the child’s removal from the parent under family

code chapter 262 for the abuse or neglect of the child. See T EX. F AM. C ODE

A NN. § 161.001(1)(O). Under section 262.104, if there is no time to obtain a

temporary restraining order or attachment before taking possession of a child

consistent with the health and safety of that child, an authorized representative

of DFPS may take possession of a child without a court order on personal

knowledge of facts or on information furnished by another that has been

corroborated by personal knowledge of facts that “would lead a person of

ordinary prudence and caution to believe that there is an immediate danger to

the physical health or safety of the child.” Id. § 262.104(a)(1), (2) (Vernon

Supp. 2007).

      Here, the primary thrust of William’s and Monica’s arguments is that

M.L.J. was not removed for any actual abuse or neglect but rather because of

a risk or fear of abuse or neglect. The evidence showed that CPS had strong

concerns about William’s and Monica’s ability to safely care for M.L.J. CPS

had removed their previous four children, and William and Monica relinquished

their parental rights to three of the children. Nickerson opined that William and

Monica did not have the skills necessary to care for M.L.J. on a day-to-day

basis, and he testified that there are “extreme concerns” about risks to M.L.J.,

                                       13
including a concern that William and Monica would flee the county as they had

when they moved away from Dallas County to avoid Dallas CPS.                   At

Nickerson’s first visit to their residence, with the exception of how often M.L.J.

had been eating and sleeping, Nickerson was unable to get William to tell him

any particulars about what he and Monica were doing to care for M.L.J. And

during his second visit to their residence, M.L.J.’s head was “rolling around” as

Monica held him and spoke to Nickerson.         Although Nickerson sought to

observe any “indicators of change” demonstrating that his concerns for

M.L.J.’s care and safety had been resolved during his visits to their residence,

he was unpersuaded that William and Monica had made any significant

progress.

      Nickerson testified that he removed M.L.J. from William’s and Monica’s

residence not only because of their “lack of skills,” which was due in large part

to their mental retardation, but also because they had no desire to seek help

with caring for M.L.J.      According to Nickerson, CPS had told Monica

“numerous times” that she needed assistance (someone other than William)

raising her children, including M.L.J. Monica told CPS that she would have

someone help her care for her children, “and she didn’t follow through. And so

in this particular case, she had also said she would have [her mother] help her,

and then all of [a] sudden she showed up in Denton again on her own.”

                                       14
Powell’s and Johnson’s testimony that Monica had indicated an intent not to

participate in the court-ordered programs is consistent with Monica’s

noncompliance with CPS’s plan that she and William accept help with caring for

M.L.J.   The significance of CPS’s desire that William and Monica have

assistance in caring for M.L.J. is apparent because Nickerson testified that he

would not have removed M.L.J. if Monica and William sought help with M.L.J.

He testified as follows:

      [DFPS attorney]: If Monica had decided to stay with a family
      member, what was the Department’s position on that? What
      would have been that option?

      [Nickerson]: It would have been my . . . decision to leave her alone
      as long as she was willing to stay with [her mother]. That was a
      good situation as far as we were concerned, and I would have - -
      I would have left the case there.

      Wiggins’s testimony corroborated Nickerson’s (and CPS’s) concern about

the danger to M.L.J.’s health or safety.       She testified that Monica had

previously told her that William once struck her in the stomach while she was

pregnant in 2003, that William once shook one of their children because he was

angry, and that she did not feel like the children would be safe around him.

Wiggins explained that William and Monica are both mildly mentally retarded,

that Monica’s emotional evaluation demonstrated that she has difficulty

accepting that she needs assistance with children, and that there “would be a


                                      15
very high probability of risk” to a child in William’s and Monica’s care without

support and assistance.

      The evidence demonstrated that Nickerson had personal knowledge of

facts or information furnished by another that had been corroborated by

personal knowledge of facts that “would lead a person of ordinary prudence

and caution to believe that there is an immediate danger to the physical health

or safety of” M.L.J. See id. Considering the appropriate standards of review,

we hold that the evidence is legally and factually sufficient to support the trial

court’s section 161.001(1)(O) termination finding. We overrule William’s first

issue and Monica’s second issue.

      C.    Best Interest

      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;


                                        16
      (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.

      Here, Monica argues that the evidence was insufficient to support the trial

court’s best interest finding because DFPS presented no evidence of M.L.J.’s

desires and physical or emotional needs and because she was taking advantage

of programs “to assist her with her caring for” M.L.J., which included Social

Security Disability benefits, Medicaid, WIC, and public transportation.

However, in light of the evidence that William and Monica refused to cooperate


                                       17
with CPS’s plan that they have assistance with caring for M.L.J., that multiple

individuals considered there to be a high risk to M.L.J. or any child in their care,

and that their ability to appropriately care for a child is significantly affected by

their mental retardation, the factors including the emotional and physical needs

of M.L.J. now and in the future, the emotional and physical danger to M.L.J.

now and in the future, and the programs available to assist William and Monica

in promoting the best interest of M.L.J. all weigh heavily in favor of the finding

that termination is in M.L.J.’s best interest.       Considering the appropriate

standards of review, we hold that the evidence is legally and factually sufficient

to support the trial court’s finding that termination of Monica’s parental rights

to M.L.J. is in M.L.J.’s best interest. Accordingly, we overrule Monica’s fourth

issue.

         Because we have held that the evidence is legally and factually sufficient

to support the trial court’s section 161.001(1)(O) finding, we need not

determine whether the evidence is legally and factually sufficient to support the

trial court’s section 161.001(1)(N) finding, which William and Monica also

challenge.     See In re J.L., 163 S.W.3d 79, 84 (Tex. 2005) (stating that

Petitioner must establish only one ground listed under subsection 161.001(1)).




                                         18
                               VI. C ONCLUSION

      Having overruled W illiam’s first issue and Monica’s first, second, and

fourth issues and determined that we need not consider William’s second issue

and Monica’s third issue, we affirm the trial court’s judgment.




                                          DIXON W. HOLMAN
                                          JUSTICE

PANEL M: DAUPHINOT, HOLMAN, and WALKER, JJ.

DELIVERED: May 1, 2008




                                     19
