       TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                            NO. 03-01-00503-CV



                           Lola Garcia and Willie Thompson, Jr., Appellants

                                                        v.

                Texas Department of Protective and Regulatory Services, Appellee




       FROM THE DISTRICT COURT OF CALDWELL COUNTY, 274TH JUDICIAL DISTRICT
           NO. 98-FL-271, HONORABLE J. CHARLES RAMSEY, JUDGE PRESIDING




                 The Texas Department of Protective and Regulatory Services (Athe Department@) sued to

terminate the parental rights of Lola Garcia and Willie Thompson, Jr.. The trial court issued a decree

terminating their rights based on a jury=s findings that (1) they knowingly placed or allowed their children to

be placed in conditions that endangered their physical or emotional well-being; (2) they engaged in conduct

or knowingly placed the children with persons who engaged in conduct that endangered the physical or

emotional well-being of the children; and (3) termination is in the best interest of the children. See Tex.

Fam. Code Ann. ' 161.001(1)(D) & (E), (2) (West Supp. 2002). Both Garcia and Thompson appeal the

termination of their rights. Garcia contends that (1) the evidence was factually insufficient to support the

jury=s findings and (2) the children=s attorney ad litem had a conflict of interest that interfered with his ability

to provide adequate representation. Thompson argues that the evidence adduced at trial was both legally
and factually insufficient to support the jury=s findings. We will affirm the trial court=s decree terminating the

parental rights of both appellants.


                         FACTUAL AND PROCEDURAL BACKGROUND

                 Lola Garcia is the mother of seven children, A.T., T.T., F.G., S.G, L.G., B.H., and B.G.,1

all minors2 who are the subject of her appeal. Willie Thompson is the biological father of Garcia=s two

oldest children, A.T. and T.T. Garcia and Thompson resided together for two brief periods, just before the

birth of A.T. and again before and immediately following the birth of T.T. Because of the significant time he

has been incarcerated after T.T.=s birth, Thompson has seen his children on only one occasion. He has

been charged with theft, forgery, burglary, and criminal mischief on five separate occasions since 1983 and

is currently serving a thirty-five year sentence in New Boston, Texas. Garcia currently resides with Santos

Raphael Gomez, the biological father of her youngest child, B.G. The four middle children, F.G., S.G.,

L.G., and B.H., were fathered by Luis Garcia, whose whereabouts were unknown at the time of trial. Lola

Garcia was still married to Luis Garcia at the time of trial.


        1
          In the record, Garcia=s two youngest children are listed at various times with different surnames
and the same surnames. We have assigned them initials that correspond with the court=s decree terminating
the parent-child relationship.
        2
         As of May 30, 2001, the date of the decree, A.T. was thirteen, T.T. was twelve, F.G. was ten,
S.G. was eight, L.G. was six, B.H. was four, and B.G. was two.




                                                        2
                 The Department first became involved with this family in July 1989, when they received a

referral alleging neglect and abandonment of A.T. Garcia testified that the report was simply untrue. In

February 1995, the Department received information that A.T. was being kept out of school to care for the

younger siblings. The Department conducted an investigation but, according to caseworker Elida Perez, the

claim was ruled out because there were family members who lived close by. The Department received

another referral in August 1996 alleging the physical abuse of A.T. and T.T. by their mother, Lola Garcia.

A.T. was found to have a black eye and scratches. In addition, the Department reported that all of the

children were filthy, infested with lice, and wearing the same clothes for many days at a time. Perez testified

that the case was closed after a brief investigation, but that the reason for its closure was the relocation of

the family. Had the family not moved to another area of the state, Perez stated, the case would have been

kept open and investigated further.

                 In October 1997, an anonymous call was made to the local police department alleging that

Garcia=s children had been left unsupervised at the family home and were playing in the street. Mary Beth

Miller, a volunteer with the Victim Services Assistance Team in Lockhart, arrived at Garcia=s home with

police shortly after midnight. As reported, the children were without adult supervision. Miller testified that

the home was in disrepair, the children were filthy, and there was no food in the home. Further, there was

only one bed in the home, and Miller assumed that the children slept on the floor or the single broken down

couch she observed.

                 Garcia was located later that night by the police. Miller testified that Garcia was combative

and intoxicated when she was brought home. At trial, Garcia denied that she had been intoxicated that



                                                      3
night. After the incident, Garcia signed a safety plan stating that she would not leave the children

unsupervised again. Miller maintained a relationship with the children from October 1997 through August

1998. She testified that during her visits with the children, they were always dirty, lice infested, and had a

foul odor. She never saw conditions at the Garcia home improve.

                In August 1998, the Department investigated another call alleging neglectful supervision at

the Garcia home. The call was made at 11:19 p.m. The investigation revealed that Garcia had left the

children with her younger brother, James, who had recently been released from prison, while she and

Gomez went to Mexico. James left the children unsupervised at home. The police officer who arrived at

the scene, Angela Allred, reported that the home was filthy, infested with cockroaches, and had a bad smell.

Further, trash was scattered everywhere and there was no edible food in the house. The children were

removed from the home by the Department. Linda Juarez, the caseworker assigned to the case, testified

that upon arrival at the shelter, the children were very hungry and hoarded the food that was provided.

Further, they were dirty and lice infested. She stated that initially, the children were afraid to leave their

home because they said Garcia would beat them up if they went to stay with relatives. When Juarez

contacted nearby relatives, none of them would take the children because they feared retaliation from

Garcia. The children were kept in foster care for one year while Garcia completed a service plan assigned

to her by the Department. Among other tasks, Garcia attended parenting classes and attended therapy

sessions with psychologist Stan Harlan.

                Garcia gave birth to B.G. in December 1998. In December 1999, Garcia was arrested and

B.G. was found covered in urine and feces, with severe diaper rash. Those factors coupled with Garcia=s



                                                      4
history of neglect led the Department to conclude that B.G. was in immediate danger. B.G. was removed in

January 1999, but returned to Garcia in March 1999. The six other children were returned to her in August

1999, at the urging of Garcia=s therapist. At the same time, the children joined their mother in therapy with

Harlan. In November 1999, Garcia and her children concluded their therapy sessions with Harlan.

                 On the evening of December 7, 1999, Garcia drove her seven children, a friend named

Guadalupe Gutierrez, and Gutierrez=s two children to Austin. Garcia testified that none of the children wore

seatbelts. Upon their arrival in Austin, Garcia was approached by a police officer and arrested because of

an outstanding warrant. There is conflicting testimony as to whether Garcia or the police allowed the

children to be left with Gutierrez while she was in jail.

                 The following night, the Department received an anonymous referral alleging neglectful

supervision of Garcia=s children. Primarily, there was concern that Gutierrez was an inappropriate care

giver. Indeed, the Department was then working on a family safety service plan with Gutierrez, and there

were prior reports of neglectful supervision and sexual abuse of Gutierrez=s own children. There was also a

concern that Garcia had been driving while intoxicated on the night she was arrested. Although there is no

mention of Garcia=s intoxication in the police report, four of the children reported that their mother had been

drinking that evening. Additionally, the Department was informed that physical violence and inappropriate

disciplinary techniques were being used in Garcia=s home. All seven of Garcia=s children were removed

from Gutierrez=s care on December 9, 1999. Tara Hopkins, the lead investigator assigned to the Garcia

family in December 1999, testified that when she removed the children, they were dirty, lice infested, and

wearing soiled clothing. She testified that B.G.=s diaper was Aso full of feces and urine it was coming up and



                                                       5
getting on her shirt and clothing.@ Several of the children told Hopkins that there was no food in the house.

In addition, A.T. told Hopkins that her mother had hit her with a wire hard enough to leave bruises. The

other children confirmed her story. A.T. also voiced a fear that her mother was becoming more and more

violent. The children have not been returned home since the 1999 removal. At the time of trial, all seven

children had been in foster care for approximately one and one-half years.

                 The two oldest children, A.T. and T.T., stated that they wished to return home. They are

uncooperative with the Department and have run away on several occasions. They have made little

progress in therapy since their removal from Garcia=s home. The five younger children are doing well in the

care of the Department. Three of the five express a desire to remain with their foster families. The fourth,

who was four at the time of trial, has expressed a desire both to remain with her foster parents and to return

to Garcia.3 The five younger children have all progressed in therapy since their removal.


                                              DISCUSSION

Standard of Review

                 A parent-child relationship may be terminated if the court finds by clear and convincing

evidence that (1) the parent has engaged in any of the specific conduct enumerated in the family code as

grounds for termination and (2) termination is in the best interest of the child. See Tex. Fam. Code Ann. '

161.001(1), (2); Texas Dep=t of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987); Holley v.

Adams, 544 S.W.2d 367, 370 (Tex. 1976). Clear and convincing means the measure or degree of proof



        3
            The youngest was nonverbal at the time of trial.


                                                      6
that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegation

sought to be established. In re G.M., 596 S.W.2d 846, 847 (Tex. 1980); Leal v. Texas Dep=t of

Protective & Regulatory Servs., 25 S.W.3d 315, 319 (Tex. App.CAustin 2000, no pet.), disapproved

on other grounds, In re C.H., 45 Tex. Sup. Ct. J. 1000, 1005, 2002 Tex. LEXIS 113, at *1, 25 (July 3,

2002).

                 In this case, the termination of the parental rights of both appellants is based on sections

161.001(1)(D) and (E) and (2) of the family code. See Tex. Fam. Code Ann. ' 161.001(1)(D) & (E), (2).

These sections provide:


         The court may order termination of the parent-child relationship if the court finds by
         clear and convincing evidence:

         (1) that the parent has:

              (D) knowingly placed or knowingly allowed the child to remain in conditions or
                  surroundings which endanger the physical or emotional well-being of the child;

              (E) engaged in conduct or knowingly placed the child with persons who engaged in
                  conduct which endangers the physical or emotional well-being of the child . . .
                  and

                                                     ***

         (2) that termination is in the best interest of the child.


Id. In an involuntary termination proceeding, Aendanger@ means conduct that is more than a threat of

metaphysical injury or the possible ill effects of a less-than-ideal family environment. See Boyd, 727

S.W.2d at 533. However, the child need not suffer actual physical injury for a finding of endangerment to



                                                       7
be made. Id. ARather, >endangerment= means to expose to loss or injury; to jeopardize.@ Id.; see also In

re M.C., 917 S.W.2d 268, 269 (Tex. 1996) (per curiam); Leal, 25 S.W.3d at 320. Endangerment can

occur through both the acts and omissions of the parent. Phillips v. Texas Dep=t of Protective &

Regulatory Servs., 25 S.W.3d 348, 354 (Tex. App.CAustin 2000, no pet.). Moreover, neglect can be

just as dangerous to the well-being of a child as direct abuse. M.C., 917 S.W.2d at 270; Phillips, 25

S.W.3d at 354. Further, a parent=s endangering conduct toward one sibling is sufficient to support

termination of a parent=s rights to all of her children. Lucas v. Texas Dep=t of Protective & Regulatory

Servs., 949 S.W.2d 500, 503 (Tex. App.CWaco 1997, writ denied); see also Director of Dallas County

Child Protective Servs. Unit v. Bowling, 833 S.W.2d 730, 733 (Tex. App.CDallas 1992, no writ).

                 The Texas Supreme Court has recognized the following factors that may be considered in

determining whether termination of parental rights is in a child=s best interest: (1) desires of the children; (2)

emotional and physical needs of the children now and in the future; (3) emotional and physical danger to the

children now and in the future; (4) parental abilities of the individuals seeking custody; (5) programs

available to assist these individuals to promote the best interest of the children; (6) plans for the children by

these individuals; (7) stability of the home or proposed placement; (8) acts or omissions of the parent; and

(9) any excuse for the acts or omissions of the parent. Holley, 544 S.W.2d at 372. This list of factors is

not exhaustive; other factors may be considered when appropriate. Leal, 25 S.W.3d at 321. Additionally,

a fact finder is not required to consider all of the listed factors and may reasonably form a strong belief or

conviction regarding the interest of the child in the absence of evidence about some of these factors. See

C.H., 2002 Tex. LEXIS 113, at *27-28.



                                                        8
                 In determining the legal sufficiency of the evidence, we consider only the evidence and

inferences tending to support the finding and disregard all evidence to the contrary. Garza v. Alviar, 395

S.W.2d 821, 823 (Tex. 1965); In re S.H.A., 728 S.W.2d 73, 90 (Tex. App.CDallas 1987, writ ref=d

n.r.e.).

                 The supreme court recently clarified the appellate standard of review for reviewing factual

sufficiency of the evidence in parental termination cases. See C.H., 2002 Tex. LEXIS 113, at *23-24. In

deciding whether the evidence is factually sufficient, this Court reviews the record to determine if the

evidence is such that Aa fact finder could reasonably form a firm belief or conviction about the truth of the

State=s allegations.@ Id. at *23. In doing so, we retain the deference that an appellate court must have for

the jury=s fact-finding mission. Id. at *26. In conducting our review, we must be mindful of the fact that a

firm belief or conviction is a standard short of that of beyond a reasonable doubt. Id. The interests of the

child must not be sacrificed to maintain the rights of the parent. Id. at *27.

                 We will first address Garcia=s claim of factual insufficiency, then Thompson=s legal and

factual sufficiency challenges. Finally, we will address Garcia=s claim concerning the attorney ad litem=s

alleged conflict of interest.


Lola Garcia

                 Garcia=s factual sufficiency challenge raises two issues: (1) whether the evidence adduced at

trial was sufficient to support a finding of endangerment, and (2) whether the evidence was sufficient to

support a finding that termination of her parental rights was in the best interest of her children.




                                                      9
                 The Department presented testimony from four of the family=s therapists, three

caseworkers, two police officers, two of the children, one of the current foster parents, a medical specialist,

a volunteer with the Victim Services Assistance Team, one of the children=s school counselors, an expert

witness on domestic violence and abuse, and a CASA4 volunteer, Rosa Hernandez, who was also guardian

ad litem for the children. The testimony of Garcia=s psychologists, Dr. Elizabeth Cortez and Dr. Michael

McNeil, revealed that Garcia uses denial and avoids blame by not accepting responsibility for her actions.

Dr. Tom Kubiszyn performed a complete diagnostic on L.G., and testified that L.G. is afflicted with both

post-traumatic stress disorder and generalized anxiety disorder. The child was six years old at the time the

diagnosis was made. Claudia Shroyer has counseled all of the children except B.G, who is nonverbal. She

stated that the children reported physical abuse to her and that three of them stated that they would prefer to

stay with their foster families than to return home. All of these professionals testified that it would be in the

best interest of the children to remain in foster care. Two of them stated that Garcia had endangered her

children through her acts and omissions.

                 Three caseworkers confirmed the Department=s reports that Garcia=s home was filthy and

laden with cockroaches. They stated that when they encountered the children at Garcia=s home, they were

filthy, lice-infested, hungry, wearing soiled clothing, and frequently unsupervised. The testimony of

volunteers Mary Beth Miller and Rosa Hernandez and police officer Angela Allred corroborated that of the




        4
            CASA stands for Acourt appointed special advocate.@



                                                      10
caseworkers. All three of these witnesses testified that Garcia endangered the children and that they

believed remaining in the care of the Department would be in the best interest of the children.

                 A school counselor who worked with the two oldest children testified that A.T. and T.T.

told her that they had been kept home from school to care for their younger siblings and that all of the

children were Awhipped@ by their mother. The videotaped testimony of two of the middle children, F.G.

and S.G., revealed physical abuse and violence in the home, and suggested excessive partying by Garcia

and Gomez, including the use of alcohol and illicit drugs. The children reported that Garcia beat them with

her hand, a shoe, and tree branches, and that Gomez whipped them with a board, a stick, or a belt. Both

children stated that they wish to remain in foster care. Dr. Debra Freedenberg, the medical director for the

Genetics Institute of Austin, testified that the youngest child, B.G., has Afetal alcohol affects,@ a condition

caused from the mother consuming alcohol during pregnancy. As a result, the child suffers sensory

deprivation and developmental delays. She requires specialized attention to attain optimal functioning. The

Department has placed the child with foster parents who are trained in the specialized skills B.G. needs.

                 Garcia offered her own testimony along with that of her local pastor, Benjamin Smith, and

one of her therapists, Stan Harlan. Garcia testified that this lawsuit, and the prior action taken by the

Department, was the result of a conspiracy against her. According to her, she feeds the children three meals

each day, she and Gomez are not physically abusive toward each other or the children, and she has never

kept the older children home from school to babysit the younger children. She stated that she believes

receiving a good education is important and that the only reason the children were kept home from school

was physical illness. Further, according to Garcia, the only reason she left her children with Gutierrez when



                                                      11
she was arrested in 1999 was because the police told her to. Finally, Garcia testified that she and Gomez

do not drink or use drugs. At trial, when confronted with evidence that her youngest child suffers from fetal

alcohol affects, she repeatedly asserted that she did not drink any alcohol during that pregnancy.

                 The pastor of Garcia=s church, Benjamin Smith, testified that he knows Garcia and her two

oldest children well. He testified that because his visits to the Garcia home were unannounced, he saw the

true state of the household on numerous occasions. He said Garcia=s housekeeping was Areasonably well

done@ and that the children did not seem to be malnourished. Additionally, Pastor Smith testified that he

had no reason to believe that Garcia=s children were being abused.

                 Stan Harlan testified that Garcia was very responsive to therapy and displayed substantial

concern for her children. Further, Harlan stated that the children never reported to him that they were

disciplined inappropriately. On his visits to their home, he said that neither the home nor the children were

filthy. Finally, Harlan testified, contrary to Garcia=s own testimony, that Garcia admitted to him that she

drank alcohol while she was pregnant with her youngest child.

                 After careful review of the entire record, we are persuaded that the evidence is such that a

fact finder could reasonably form a firm belief or conviction that the State=s allegation were true, and thus

factually sufficient to support the jury=s findings that Garcia: (1) engaged in conduct or knowingly placed the

children with persons who engaged in conduct which endangered their physical or emotional well-being and

(2) engaged in conduct or knowingly placed the children with persons who engaged in conduct that

endangered their physical or emotional well-being. A finding of either ground would support termination.

Additionally, we hold that the evidence was factually sufficient to support the jury=s finding that termination



                                                      12
of Garcia=s parental rights was in the best interest of all the children. We overrule Garcia=s first point of

error.


Willie Thompson

                 Thompson challenges both the legal and factual sufficiency of the evidence presented in

support of termination of his parental rights. Specifically, he asserts that mere incarceration is not enough to

support a finding of termination. The Department suggests that it used Thompson=s incarceration as proof of

but one element of a course of conduct exhibited by Thompson which endangered his children.

                 Termination must be based on more than a single act or omission; a voluntary, deliberate,

and conscious Acourse of conduct@ by the parent is required. In re D.T., 34 S.W.3d 625, 634 (Tex.

App.CFort Worth 2000, pet. denied); In re K.M.M., 993 S.W.2d 225, 228 (Tex. App.CEastland 1999,

no pet.); In re J.N.R., 982 S.W.2d 137, 142 (Tex. App.CHouston [1st Dist.] 1998, no pet.), disapproved

on other grounds, C.H., 2002 Tex. LEXIS 113, at *25. Imprisonment, standing alone, does not

constitute Aengaging in conduct which endangers the emotional or physical well-being of the child.@ Boyd,

727 S.W.2d at 533-34; see also Tex. Fam. Code Ann. ' 161.001(1)(E). However, it is a fact properly

considered on the issue of endangerment. Boyd, 727 S.W.2d at 534; D.T., 34 S.W.3d at 636. The State

need not show incarceration was a result of a course of conduct endangering the child; it need only show

incarceration was part of a course of conduct endangering the child. See J.N.R., 982 S.W.2d at 142-43.

Thus, if the evidence, including imprisonment, proves a course of conduct that has the effect of endangering

the child, the requirement of section 161.001(1)(E) is met. Boyd, 727 S.W.2d at 533-34.




                                                      13
                 The Department presented evidence that Thompson was convicted of theft, forgery,

burglary, and criminal mischief in 1983, 1986, and 1995, and charged with burglary in 1988 and 1994. At

the time of trial, he had served four years of a thirty-five year sentence for criminal mischief. Due to his

lengthy incarcerations and admitted problems with drugs and alcohol, Thompson visited with his children

just once since their infancy. He testified that during this visit, he noticed that the children were wearing dirty

clothes and smelled of urine. He admitted to being concerned about his children=s well-being at the time, yet

failed to act until 1999 when he voiced his concerns in a letter to one of the Department=s caseworkers.

                 In 1996, a court order establishing the paternity of Thompson was issued. The order

requires Thompson to pay child support to Garcia. Thompson testified that he failed to make any payments

because he was unaware of the order. Although eligible for parole in 2002, Thompson and the State both

estimated that he will be incarcerated until at least 2011.5 By that time, his children, A.T. and T.T., will be

23 and 22 years old, respectively. Despite this, Thompson suggests that once he is released, he will obtain

gainful employment and support his children appropriately. In the interim, he considers it to be in the

children=s best interest to return home to live with Garcia. However, as we have already established, the

evidence is factually sufficient to support the jury=s determination that the best interest of the children will not

be served by their return to Garcia.




        5
          On redirect examination, Thompson testified that it would be a Amiracle@ if he got out of prison
soon and agreed that he would not get out while A.T. and T.T. were still under the age of eighteen.




                                                        14
                 The evidence adduced at trial reveals the following: (1) Thompson has a history of drug and

alcohol abuse; (2) Thompson failed to act promptly on his own concerns for his children=s well-being; (3)

Thompson has failed to participate in his children=s lives in any significant way since their infancy; (4)

Thompson repeatedly committed crimes after the birth of his children despite his knowledge that if

convicted, he would be incarcerated and therefore unable to provide for his children; (5) Thompson will be

unable to financially support his children throughout the remainder of their childhood; and (6) Thompson=s

ideal future placement of his children would be in Garcia=s home. We hold that this evidence is both legally

and factually sufficient under the new standard announced in C.H. to support the jury=s finding that

Thompson participated in a course of conduct that had the effect of endangering his children. Thompson=s

first point of error is overruled.

                 Thompson relies on the testimony of his two children that they wish to return to Garcia to

support his argument that termination of his parental rights is not in their best interest. The Department

presented Rosa Hernandez and Elida Perez, both of whom testified that it would be in the best interest of

the children for Thompson=s parental rights to be terminated.

                 When determining whether termination is in the best interest of a child, the trial court may

consider not only the wishes of the children, but emotional and physical needs of the children now and in the

future, emotional and physical danger to the children now and in the future, acts or omissions of the parent,

and any excuse for the acts of omissions of the parent. See Holley, 544 S.W.2d 367. In light of these

considerations, we hold that the evidence adduced at trial regarding the plight of Thompson=s children was

both legally sufficient and factually sufficient under the new standard announced in C.H. to support a finding



                                                     15
that termination of his parental rights was in A.T. and T.T.=s best interest. Thompson=s second point of

error is overruled.


Attorney ad Litem=s Conflict of Interest

                Garcia contends that the attorney ad litem appointed to represent her children had a

conflict of interest in representing all seven children. Because two of the children, A.T. and T.T., wanted to

be returned to Garcia, and the other five did not, Garcia asserts that it was impossible for the attorney ad

litem to effectively discharge his legal obligation to all the children. In presenting her argument, Garcia

provides no authority to support her claim. See Tex. R. App. 38.1(h). Points of error must be supported

by argument and authority, and if not so supported, are waived. Trenholm v. Ratcliff, 646 S.W.2d 927,

934 (Tex. 1983). Furthermore, our review of the record reveals that the attorney ad litem was an effective

advocate for each child. Garcia=s final point of error is overruled.


                                             CONCLUSION

                We hold that the evidence was such that the fact finder could reasonably form a firm belief

or conviction as to the truth of the State=s allegations, and thus factually sufficient to support the jury=s

findings that both Garcia and Thompson engaged in endangering conduct under section 161.001 of the

family code and that termination of the rights of both parents was in the best interest of the children. In

addition, we hold that the evidence was legally sufficient to support the same findings with regard to

Thompson. We therefore affirm the decree of termination of the trial court.




                                                     16
                                              David Puryear, Justice

Before Chief Justice Aboussie, Justices Yeakel and Puryear

Affirmed

Filed: August 30, 2002

Do Not Publish




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