                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH


                                NO. 2-09-215-CV

IN THE INTEREST OF A.B.
AND H.B., CHILDREN

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

           FROM THE 322ND DISTRICT COURT OF TARRANT COUNTY

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

                         MEMORANDUM OPINION 1

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

                                 I. INTRODUCTION

      In four issues, Appellant Father appeals the trial court’s order terminating

his parental rights to his children, A.B. and H.B. Father argues that legally and

factually insufficient evidence exists to support termination of his parental rights

under Texas Family Code sections 161.001(1)(D) and (E)2 and to support a

finding that termination of his parental rights is in the children’s best interest.

See Tex. Fam. Code Ann. § 161.001(1)(D), (E) (Vernon 2008). Father also


      1
          … See Tex. R. App. P. 47.4.
      2
       … For ease of reading, these subsections are hereinafter referred to
simply as “(D)” and “(E).”
contends that the trial court violated his due process rights by denying him

access to expert witness fees. Because the evidence is factually insufficient

to support termination of Father’s parental rights under either (D) or (E), we will

reverse the trial court’s termination judgment and remand this case for a new

trial.

                            II. F ACTUAL B ACKGROUND3

         A.   Mother and Father’s Marriage 4 and Domestic Violence in Missouri

         Mother and Father met on a telephone chat line and dated for

approximately one year before they married on February 18, 2005. Mother is

from Texas, and Father is from Missouri, so they bounced back and forth

between the two states for a while.




         3
       … We recognize that some of the witnesses’ testimony is conflicting and
inconsistent. This factual background section of our opinion, however, sets
forth the testimony given, even when it is inconsistent or even apparently
incorrect.
         4
       … At the time of the termination trial, although Mother was still married
to Father, a divorce action was pending, and Mother was pregnant with her
boyfriend’s child.

                                        2
            1.    Mother’s Testimony 5

      Mother said that when they lived in Missouri, Father hit her more than

once and pushed her. Mother said that the domestic violence consisted of both

arguing and physical confrontation and that she probably hit Father while

defending herself. Mother never called the police or made a report, she never

went to a battered women’s shelter, and Father never was arrested for

domestic violence in Missouri.

            2.    Father’s Testimony

      Father said that during his first year of marriage to Mother, the police

were never called out to their apartment for loud arguments or fighting because

there was no domestic violence. Father also testified that he did not strike

Mother but that she struck him.

      B.    A.B.’s Birth

            1.    Mother’s Testimony

      Mother testified that A.B. was born in Missouri in April 2005.



      5
       … Although Mother’s parental rights to A.B. and H.B. were terminated
at the same time as Father’s, she did not appeal the judgment. We include her
testimony as it pertains to the endangering conduct and endangering
environment findings that the trial court made when it terminated Father’s
parental rights to A.B. and H.B.; however, we omit testimony regarding
Mother’s compliance with her service plan and do not attempt to analyze
whether the termination of her parental rights was proper because that issue
is not before us.

                                       3
            2.    Father’s Testimony

      A.B. was born with the umbilical cord around his neck, but he was a

healthy baby. Father said that they took A.B. to the doctor regularly and that

his only hospital visit was the one at the center of this case, which is discussed

below.

      C.    Missouri CPS Investigation

            1.    Mother’s Testimony

      While Mother and Father lived in Missouri, CPS investigated them because

A.B. had cradle cap and a rash and because their house was dirty. Mother felt

that the allegations were false. She said that Father called CPS quite often

because he wanted them to close the case and that he was harassing the

caseworker with an inappropriate tone of voice. Mother said that the CPS

caseworker made a surprise visit to their home due to Father’s phone calls to

their office. Mother and Father thereafter moved to Texas.

            2.    Father’s Testimony

      CPS became involved with Mother and Father while they lived in Missouri,

but Father said that “[CPS] realized that the referrals that were made were

false. And so, after a two- to three-day period, they closed out the case. They

did not offer any services or remove the child.”




                                        4
      D.    The Move to Texas

      When Mother and Father moved to Texas, their first apartment was at the

Regents Cove Apartments near Westcreek Drive in Fort Worth. Mother worked,

and Father worked sometimes; however, they worked different shifts so that

they could take care of A.B.

      E.    H.B.’s Birth

      H.B. was born June 25, 2006, in Fort Worth and weighed six pounds,

twelve ounces. Father worked when H.B. was born until Mother could go back

to work.

      F.    Domestic Violence in Texas

            1.    Mother’s Testimony

      After they moved to Texas, Father continued to yell at Mother, and she

yelled back. While Mother was pregnant with H.B., Father hit her and pushed

her; she would not hit back or push back but would instead go to another room.

After Mother gave birth to H.B., she and Father continued to argue off and on.

      Mother said that she never instigated the physical altercations.    The

domestic violence occurred “once every several months” and did not always

involve physical violence. Mother said that the children were present but that

Father was never physically violent to them.




                                       5
            2.    Father’s Testimony

      Father said that there were no fights or violence prior to his separation

from Mother, and the police were never called to their apartment. Father said

that they “fussed over [money] a lot” but that it never came to the point where

he became violent with Mother. Father said that if they had arguments, they

did not have them in front of the children.

      G.    Separation

            1.    Mother’s Testimony

      Mother left Father in approximately July 2007 because he was abusive.

When she separated from Father, Mother moved in with her sister and brother-

in-law, Jennifer and Gary W., in Mansfield for a month. 6 Mother testified that

Jennifer W. did not take care of the children while Mother worked.7 Instead,

Mother took the children to Father’s apartment while she worked in Fort Worth

at Sprint from 3:00 p.m. to midnight because Father was not employed; he

received Social Security disability payments for ADHD.


      6
       … Jennifer W. testified that she had noticed bruises on Mother, and
Mother initially told her that she had bumped into a wall or had hit herself.
After Mother separated from Father, Mother said that Father had hit her and
caused the bruises. Mother told Jennifer W. that she had separated from
Father because he was being very abusive toward her.
      7
       … H.B.’s medical records revealed that Mother said that Jennifer W.
watched the children while Mother was at work and that Father watched the
children “sometimes.”

                                       6
      Mother rented her own apartment in Bedford in August 2007.            After

Mother moved into her own apartment, Mother and Father watched the

children.8

              2.   Father’s Testimony

      H.B. was two years old and A.B. was three when Mother and Father

separated. Father said that when Mother received an $800 check from Sprint,

she decided to leave him. She went to Mansfield to live with her sister. Father

said that Mother’s leaving “kind of hurt” but that he could not force her to stay.

      During the entire separation, Father watched the children a couple of

hours during the week but not on a consistent basis. Jennifer W. watched the

children while Mother worked.      Father did not keep the children overnight

because he was having maintenance issues with his apartment. Father said

that there was a hole in the bathroom ceiling through which bugs were coming

in, and the dishwasher was broken.

      After Mother had lived with her sister for about a month, she then moved

to Bedford.    Father said that after Mother moved to Bedford, he saw the




      8
       … Jennifer W. said that Mother never lived with her; Mother went
straight from Father’s apartment into her own apartment. Jennifer W. did not
provide babysitting services to Mother and Father’s children while they were
separated; Mother told Jennifer W. that Father watched the children while she
worked from 3:00 p.m. to midnight.

                                        7
children the same amount of time (a couple of hours a week on an inconsistent

basis); Jennifer W. continued to keep the children while Mother was at work.

Father said that he did not keep the children for a weekend because he did not

want them to be in his apartment that long due to the maintenance issues.

      H.    Father’s Mental Illness

            1.    Mother’s Testimony

      Father told Mother that he was bipolar. He was taking Welbutrin before

they got married, but then he stopped. Mother noted that Father was very

angry and more argumentative when he was not taking his medication. Mother

had also reported to the children’s doctors that Father had Tourette’s

Syndrome, insomnia, ADHD, and a history of seizures as an infant.

            2.    Father’s Testimony

      Father testified that he was diagnosed with ADHD as a child and spent

most of his childhood—from a very early age to adulthood—in CPS custody

where he was placed in sixteen or seventeen foster homes. Father admitted

having emotional problems the majority of his adult life “because things haven’t

been going the way I wanted them to go as far as education and stuff.” Father

said that he might be depressed one day and extremely happy the next day but

that it never led “to the level of complete anger.”




                                       8
      I.    No Domestic Violence After the Separation

      Mother said that Father’s mood when she saw him daily while dropping

off the children was the same as when he was not on his medication; he was

angry, but he did not strike her. Mother said that no physical violence occurred

during the times when she was dropping off the children and picking them up

from Father’s apartment. Mother trusted Father with the children despite the

domestic violence that had occurred prior to the separation because she “did

not see anything, as far as the kids.”       From A.B.’s birth in April 2005

throughout the time that Mother and Father were separated, Father never

harmed the children.

      J.    H.B.’s Growth Issues

            1.    Mother’s Testimony

      Mother took the children to Cook’s Clinic for well-baby check-ups.

Mother said that she and Father took H.B. to the doctor before they separated

and that she was the one who took H.B. to the doctor after they separated.

      Mother agreed that H.B. was pretty small and was not growing very fast

but said that H.B. was eating regularly during that time and did not appear to

have any problems health-wise. Mother said that she had talked to the doctors

about H.B.’s slow weight gain, and the doctors were under the impression that

H.B. took after Father, who had taken growth hormone shots in order to grow.

                                       9
The doctors did not ask Mother to change H.B.’s feedings. Mother said that

she did not have a conversation with Jennifer W., or anyone else, about taking

H.B. to the doctor for weight issues.9

            2.    Father’s Testimony

      Father did not go to the doctor visit in May 2007 when H.B. was

underweight and falling off the growth chart;10 Mother said that H.B. was fine,

so Father did not know that H.B. was underweight. Father said that H.B. was

born small, and he just thought that she was having a tough time growing and

that it took some children a little longer than others to develop.

      Father said that he and Mother were not purposely doing anything that

would have kept H.B. from thriving. H.B.’s appetite was fine; she was eating

Cheetos, crackers, and pizza. Father said that they were always able to keep




      9
       … Jennifer W. said that Mother and the children had visited her
frequently prior to H.B.’s hospitalization, so Jennifer W. had lots of
opportunities to see the children. Jennifer W. was very concerned about H.B.’s
appearance from July through September 2007 and told Mother that H.B. did
not look healthy. Mother told Jennifer W. that she had a doctor’s appointment
for H.B., but there was never an appointment. It was obvious to Jennifer W.
that H.B. was in distress. Jennifer W. told Mother that if she needed help with
formula or food that she would help her. Father was there during that time, so
he knew Jennifer W. was concerned.
      10
        … Father said that Mother did not let him go with her to the children’s
pediatrician appointments often.

                                         10
the refrigerator, the freezer, and the cabinets stocked, and they always made

sure that their children ate.

      Father agreed that H.B. was fifteen months old in September 2007 and

that she was not walking or crawling; she was trying to “scoot.” Father said

that H.B. could sit up when she was close enough to sit against the couch, but

she could only sit up by herself for a few seconds before falling over.

      K.    H.B.’s Seizure

            1.     Mother’s Testimony

      On September 29, 2007, Mother had been in Mansfield visiting with

Jennifer W., and H.B. had been outside most of the day.         Mother and the

children were at Mother’s apartment when H.B. had a seizure.           H.B. was

conscious during the seizure, but her eyes rolled back in her head, and she

twitched. Mother said that the EMS crew saw H.B. having a seizure and that

the seizures occurred repeatedly until H.B. was at the hospital. Mother said

that Father went to the hospital when H.B. was being treated.

      Mother said that as a result of H.B.’s hospital visit, the Texas Department

of Family and Protective Services (hereinafter “the Department” or “CPS”)

became involved. After H.B. was released from the hospital, the children went

to live with Jennifer W. for eight or nine months until they were returned to

Father.

                                      11
              2.   Paramedic’s Testimony

      Chris Conner, a paramedic with the Bedford Fire Department, testified

that on September 29, 2007, at 9:58 p.m., he responded to a call that a child

was having a seizure. When he arrived at Mother’s apartment, 11 he found H.B.

to be a little lethargic. Mother told him that H.B. was in her crib when Mother

heard some noises; H.B. started gasping for air and shaking her arms. Mother

said it looked like H.B. was having a seizure, but she had no history of seizures.

Conner could not tell whether H.B. had suffered a seizure, but he immediately

asked one of the firemen who came with him to grab H.B. from Mother’s arms

and to take her out to the ambulance so that they could assess her.

      H.B. did not have a seizure in Conner’s presence, and her vital signs were

all stable.   H.B. was acting fine physically, but she was dehydrated and

exhibited skin tartar, meaning that her skin felt “real elastic.” Conner said that

H.B. “looked a little underweight for her size” but was not emaciated, had an

abrasion on her forehead that was in a healing stage, and had “a lot of dirt on




      11
        … Conner said that he noticed that the home was dirty. He said that
there were a lot of dirty dishes in the sink, and pots and pans were still sitting
on the stove. Conner described Mother’s apartment as an unclean environment
that was below standards because its only contents were a bottle of Sprite, an
air mattress, and a car seat.

                                       12
her,” including dirt under her fingernails. Conner saw that there was a lot of

scabbing on her bottom and that there was some dried blood in her diaper.

      Mother told Conner that the abrasion on H.B.’s head was caused by A.B.

throwing a toy at her four days earlier and that H.B. had a diaper rash that she

had continued to scratch.

      Conner advised Cook Children’s Hospital of the situation and asked if they

would call CPS. His largest concern was H.B.’s head injury because it was

unknown how severe the abrasion was and because Mother had admitted that

she did not take H.B. to the hospital to have it checked. However, Conner

believed that Mother’s explanation for the injury—that A.B. threw a toy, which

hit H.B.’s head—was consistent with the injury.

            3.    Dr. Lazarus’s Testimony

      Dr. Peter Lazarus, a pediatrician at Cook Children’s Hospital, testified that

H.B. was treated in the pediatric intensive care unit (PICU) for seizures and was

treated in his ward for failure to thrive. The cause of H.B.’s seizures was a

chemical imbalance referred to as hypo low sodium.           It is not a chronic

condition. It would take hours to two or three days for the condition to appear

and be a danger. Dr. Lazarus said that he did not think that the condition could

be brought on by Mother’s giving the child a lot of water after a day of activity




                                       13
in the warm weather.     When H.B.’s sodium level normalized, her seizures

stopped.

      H.B. was diagnosed with “failure to thrive” because her weight when she

was admitted to the hospital, was fifteen pounds, and she was fifteen months

old at the time. H.B.’s weight put her well below the fifth percentile on the

growth chart. When asked if H.B.’s failure-to-thrive condition would have been

obvious two months before to relatives who saw the child every day, Dr.

Lazarus said that it would have been less obvious to people who saw the child

every day than it would have been to someone who had not seen the child for

three months. Dr. Lazarus said that the medical records showed that when

H.B. was born, she was in the twenty-fifth percentile. 12 Dr. Lazarus noted that

H.B. had her nine-month check-up on April 9, 2007, at a neighborhood clinic,

and her weight was in the tenth percentile. Dr. Lazarus said that falling from

the twenty-fifth percentile at birth to the tenth percentile nine months later is

within the realm of normal because some children “are born bigger than their

genetic potential.” He also said that sometimes it takes a while for children to




      12
       … The medical charts that Dr. Lazarus reviewed also noted that H.B.
had developmental delays; she did not crawl, pull up, walk, or sit up alone,
which would have been normal tasks for a fifteen-month-old child. There was
concern about H.B.’s brain growth because her head circumference was small
and was falling off the growth curve, but H.B.’s CT scan was normal.

                                       14
get into their normal growth channel, so falling one or two channels or growth

curves is not unusual. But he said that if the child was seen at twelve months

and at fifteen months and growth was starting to fall off, that would be

alarming. When asked if he was concerned about H.B.’s health because she

was down below the growth chart, Dr. Lazarus said, “Well, it certainly is not

optimum growth.”

      When asked what the triggers are that let a parent know that the child is

in danger of not thriving, Dr. Lazarus said that the parents should find out at

“wellcare” or routine baby care.    He did not know whether the doctors at

Cook’s Clinic saw the triggers at H.B.’s check-up five or six months before she

presented to the hospital. Dr. Lazarus said that if the child was seen at twelve

months, the problem should have been addressed.

      After she was hospitalized, H.B. began thriving. Because all of H.B.’s

metabolic screenings were normal, all the medical personnel did at the hospital

was properly feed her, which is what caused her to gain weight.           From

September 29 to October 8, 2007, while she was in the hospital, H.B. gained

one pound, eleven ounces, which Dr. Lazarus said was an “extraordinary

weight gain in the hospital.” During the nine months from the date that H.B.

was hospitalized (September 29) until her second birthday (June 25), she went

from well below the third percentile in weight to the seventy-fifth percentile,

                                      15
her length went from well below the fifth percentile to the twenty-fifth

percentile, and her head circumference went from the third percentile to the

fiftieth percentile.   Dr. Lazarus said that H.B.’s weight gain was “really

substantial” and told him that she was thriving. These improvements ruled out

a hereditary cause for H.B.’s failure to gain weight. Dr. Lazarus had a more

solid medical opinion at trial than he had while H.B. was in the hospital because

he had received the results from her two-year checkup, so he opined that H.B.

was inadequately nourished when she presented on September 29, 2007.

             4.    CPS Investigator’s Testimony

      Stacie Hall, an investigator with CPS who worked in the night response

or emergency response unit, testified that she had received a referral on

September 30, 2007, stating that H.B. had been brought to the hospital by

EMS at 10:00 p.m. on September 29 for seizures. Hall went to the hospital

about noon on September 30 to see H.B. and noted that she appeared pale and

very small for her age. H.B. had a diaper rash and had an abrasion on the right

side of her forehead, which Mother said occurred when A.B. threw a Buzz

Lightyear toy at her head.13 Hall said that the medical personnel told her that



      13
        … Father called the CPS office on September 30, 2007, and talked to
Hall. He also said that H.B.’s injury was caused by A.B.’s throwing a Buzz
Lightyear toy at her. Hall said that the injury looked consistent with the
explanation that Mother and Father had given.

                                       16
H.B. was admitted to the hospital because they had concerns about her weight

and the seizures that she was having.

      Mother told Hall that on the day H.B. was taken to the emergency room,

she had fed H.B. half of a peanut butter and jelly sandwich around 10:00 a.m.,

along with water and Sprite.     Between going to the lake and then to her

relatives’ house, Mother fed H.B. some crackers. Mother and Jennifer W. left

the children in the care of Jennifer W.’s mother-in-law, whom Mother assumed

had fed H.B. something while they were gone. Mother told Hall that she and

the children had arrived home at around 7:00 p.m. 14 While Mother was getting

dinner ready, she heard H.B. make “a really strange noise.” Mother looked and

saw that H.B. was gasping for air, that she was “drooling really bad,” and that

her left arm was twitching. Mother contacted her neighbor, and the neighbor

told Mother to call EMS.

      Hall also obtained some additional background on H.B. and her family

from Mother. Mother said that H.B. weighed six pounds, twelve ounces when

she was born and that H.B.’s last doctor visit was her thirteen-month well

check-up.




      14
        … Hall said that there were some discrepancies about what Mother did
throughout the day; Mother said that they were at the lake all day and then said
that they were there for only fifteen minutes.

                                      17
      Mother told Hall that she had been separated from Father for about two

months, but Mother did not mention who she had been living with while she

was separated. Mother told Hall that during the time that Mother and Father

were separated, Father was still involved in the children’s lives. Mother said

that Jennifer W. and another lady helped watch the children while she worked;

Mother never told Hall that Father watched the children while she worked.

      Mother initially denied any domestic violence but then said that Father

had been physically violent in the last six months of marriage, which is why she

had left him. Mother told Hall that they had a CPS referral for neglect when

they lived in Missouri.

      When Hall interviewed Father, he said that H.B. ate baby food out of a

jar and drank whole milk. Father said that every now and then he would give

her some light potatoes or “light solvent,” but he did not explain what he meant

by “light solvent.”

      Father said that he and Mother had been separated about two or three

weeks but denied that there was domestic violence in his relationship with

Mother. Father later said that Mother had assaulted him once. When Hall

asked Father why Mother would have said that he was hitting her, he told Hall




                                      18
that he was going to court to file for child support because he kept the children

most of the time 15 (i.e., whenever Mother was at work).

      Hall said that the case was found “reason to believe for physical neglect”

due to the fact that H.B. was underweight for her age, had poor gross motor

skills, was developmentally delayed, and had not been seen by a doctor since

May; because all of H.B.’s tests came back normal, the Department determined

that H.B.’s condition was due to neglect.16

            5.    Father’s Testimony

      Father said that he became aware of the medical crisis with H.B. when

Mother called him from the hospital and told him that CPS was involved.

Mother told him, “[P]lease, please don’t get upset with them.” Father asked if

he could speak with the social worker, and that was when Hall had her

conversation with Father.

      Father did not go to the hospital until Monday because he did not have

transportation until that time. H.B. was still in the PICU when Father arrived.

Father said that H.B. stayed there for three or four days and then was


      15
       … Father told Hall that he was unemployed and received Social Security
Income (SSI), but he did not explain to her why he was receiving SSI.
      16
        … La’Morra Cornelius, a caseworker for the family, averred in her
affidavit that the reasons for the voluntary placement included H.B.’s health and
severe developmental delays, as well as the home environment in which she
lived.

                                       19
transferred to a room. Father stayed at the hospital continuously while H.B.

was there.

      Father said that he had a problem with the formula that the doctor was

giving H.B. because it was causing her stomach to become bloated and making

it hard for her to have a bowel movement. Father spoke to the nurses, they

ultimately changed the formula, and those problems went away. Father also

had a problem with the doctor’s not informing him what was going on and not

asking for Father’s permission to treat H.B.

      L.     Voluntary Placement

             1.   Hall’s Testimony

      Hall recommended that the children be voluntarily placed with Jennifer W.

and that a case be opened with CPS to provide services to Mother and Father.

Mother signed an agreement stating that she would let her children stay with

her sister. Hall said that the voluntary placement kept the children from going

into foster care. A.B. was already staying with Jennifer W., 17 and H.B. was

taken to Jennifer W.’s house after she was discharged from the hospital.




      17
       … Hall saw A.B. and noted that he was in good health; he was clean
and appeared to be of normal height and weight.

                                      20
            2.    Father’s Testimony

      Father also signed the papers to allow his children to live with Jennifer

W.; he thought that if he did not allow his children to stay with her, he would

lose his parental rights because that is what the investigator told him. CPS left

it up to Jennifer W. to determine when Father could visit, so Father was

allowed to see his children only about once a month. Father admitted that he

did “enough complaining” about not getting to see his children that eventually,

three or four months later, the caseworker set up supervised visits at the CPS

office instead of at Jennifer W.’s residence. After the visits were moved to the

CPS office, Father was allowed to visit with the children on a weekly basis.

            3.    Jennifer W.’s Testimony

      Jennifer W. testified that she kept the children from when H.B. was

released from the hospital through June 2008.        Jennifer W. said that the

children gained weight and that Early Childhood Intervention services were

offered to the children while they were in her home.

      M.    Father Worked Family-Based Safety Services (FBSS)

            1.    Father’s Testimony

      Father said that he immediately wanted to get started on his service plan

and that he “jumped right on it” and “got [his] stuff done” as soon as CPS

issued the necessary forms. Father said that it took about two months after

                                       21
the voluntary placement to start the plan. Father said that during the time he

was working his FBSS, CPS made an unannounced visit to check on the

condition of his apartment, the sleeping arrangements, and the food that he had

on hand.

      Father took parenting classes with Janice Barker, who was with

Volunteers of America (VOA); he completed a psychological consultation with

Dr. Parnell; and he underwent a psychiatric evaluation with Dr. Yackulic at John

Peter Smith Hospital. Father participated in individual counseling with Norma

Bartholomew and was supposed to have ten sessions, but they mutually agreed

to stop at the seventh session because there was not a bond between them

and because she was siding with CPS. Father said that Judy Gaither was his

anger management instructor. Father got along well with Gaither because she

took the time to listen and understand the situation that he was in and

“basically didn’t just throw [him] out the door.” After Father completed his list

of services, CPS gradually increased the time that he was allowed to spend

with his children.

            2.       Barker’s Testimony

      Barker testified that in January 2008, she received a referral to provide

services to Father. Barker went over parenting skills and worked on budgeting




                                          22
and homemaking skills with Father. Additionally, Barker provided transportation

to Father once a week so that he could visit with his children at CPS.

      Barker said that Father was very hostile toward the services until she

explained them; at that point, he worked with the VOA but remained hostile to

CPS during the entire time that she worked with him. Barker said that Father

talked about his CPS case “quite a bit,” but he never talked about going and

getting his children to remove them. When the trial court asked Barker if she

ever felt anxious while in Father’s presence, she said that she had a good

working relationship with Father and that she did not feel like he was hostile

toward her, only CPS, but she would not have wanted to agitate him, especially

while the children were there because she could not have physically removed

the children.

      The issues that Barker identified in her first visit to Father’s apartment

were that there was very little food, there were no sheets on the bed, and there

were stains on the carpet;18 other than those issues, the apartment was clean.

The only food that Father had in the refrigerator was a small package of lunch

meat and bread; the fact that he had no fruits or vegetables was a concern.




      18
        … Barker admitted that it was an older apartment and that the stains on
the carpet were something that the landlord would have to take care of. Barker
said that Father did not have any pets.

                                      23
Father told Barker that he did not have food stamps for the children but had

only his own food stamp money. Father was very resistant to getting sheets

and food because he did not understand why CPS was pushing the issues since

the children were not living with him. Barker explained to Father that he had

to put healthy food in his home to show CPS that he could provide food in case

the children were placed with him on any given day.

      From February to March 2008, Father made progress by putting the

sheets that the VOA gave him on the bed and purchasing food. During later

visits, Barker saw that the same food was there and had not been touched. But

Barker agreed that it was reasonable for Father to keep the food for when the

children were returned to him and that it was not unusual that the food was not

eaten.

      Although Father told Barker that he had never been diagnosed with

anything, Barker noted that Father paced around his apartment and talked about

how his rights as a father were being “very violated” and that was why he had

made an appointment at West Texas Legal Services. Father did not understand

why the children were not placed with him after the problem occurred with H.B.

while she was in Mother’s possession because he had been taking care of the

children every day. When Barker asked him why the children were not placed

with him, Father admitted that his apartment was not as clean as it could have

                                      24
been. Father was relatively appropriate from January through March 2008,

except for the agitation, the pacing around, and the nervousness, which usually

occurred when he spoke of CPS.

      Father appeared willing to learn the parenting materials and participated

in the parenting classes. Father did quite well on his final parenting quiz and

completed all his parenting classes. When Father had completed his parenting

classes, Barker talked with the CPS caseworker and discussed closing the VOA

services “so that [Father] would not become too dependent upon [their]

transportation to and from the children’s visits.”

      N.    Children Returned to Father

            1.    Mother’s Testimony

      Ms. Cornelius, the CPS caseworker, told Mother that CPS was going to

allow Father to have the children back in his home because he had completed

his services, and the children went to his apartment from Jennifer W.’s home.

Mother had some concerns about the children being placed back with Father.

She wondered whether he could take care of the children financially and

thought that she had “mentioned to someone that is not a good idea,” but she

did not remember whether she pressed it any further. Mother admitted that she

was instructed not to have contact with Father until she completed her

services.

                                      25
               2.    Father’s Testimony

         Father testified that the children were returned to him on June 10, 2008.

Father said that CPS did not have reservations about him or they would not

have returned the children to him. While Father had the children, Mother was

allowed to see them only at the CPS office with supervision.

         Father said that the children’s schedule when they were with him

included waking up around eight or nine; eating pancakes or biscuits for

breakfast; playing in the living room with toys; playing outside on the

playground; eating pizza, hamburgers, hot dogs, or bologna sandwiches for

lunch; playing and watching television; eating dinner that Father fixed; 19 and

giving them a bath before bed.

         Father said that both children were in diapers. He had twice attempted

to potty train A.B., but A.B. had issues with not wanting to sit on the toilet.

Father said that he wanted to slowly progress A.B. into potty training instead

of traumatizing him. Father said that there was no argument or forcing the

issue.



         19
        … Father said that his cooking skills were “[n]ot the best in the world”
but that he could cook microwave food and some on the stove. When A.B.
was three, he was eating “table scraps”: green beans, vegetables, and normal
food that Mother and Father ate. Father said that they mostly had weaned H.B.
from her bottle at one year and that she ate small “table scraps.” She was
“eating as much table food as she could take in.”

                                          26
      O.    Mother’s Domestic Violence Incident

            1.    Mother’s Testimony

      Mother said that on June 16, 2008, she went over to Father’s apartment

because he had called her; she did not make a scene, she did not punch Father

in the face, and no citation was issued. When Father’s attorney produced a

citation dated June 16, 2008 for assault by contact, Mother said that was the

first time that she had seen the citation and that she had not been told that she

had been issued a citation. Mother said that she went to Father’s apartment

to see the children only once; she denied that there was an incident in which

she went to Father’s apartment, she was unwilling to leave, and she was

escorted to the door by Father.

            2.    Father’s Testimony

      When Mother came to Father’s apartment on June 16, 2008, she

knocked on the door and said that she wanted to see the children. Father told

her that he could not let her see the children because Ms. Cornelius had said

that Mother was required to have supervised visits. Father said that he told

Mother, “I’m going to have to ask you to leave ‘cause I don’t want to lose [the

children] again.” Father had opened the door slightly, and Mother pushed her

way in and went to the bedroom where the children were watching television.

Father told Mother that she had to leave, put her arm behind her back, and tried

                                       27
to escort her out of the apartment. On the way out of the bedroom, Mother

tried to break out of Father’s arm and hit her eye on the door frame; 20 Mother

left, went to the apartment manager, and said that Father had attempted to

beat her. The police thereafter came to Father’s apartment.

      Mother came over “one other time” 21 when the children were with Father,

and Father told her that she needed to leave. Mother punched Father in the eye

and then took off running down the stairs. Father said that this was the assault

by contact episode that resulted in a citation being issued to Mother.

      P.    Barker’s July 1 Visit to Father’s Apartment

      On July 1, 2008, Barker reopened the file on Father because the VOA had

received a new referral that his children had been placed back in his care.

Barker said that she had concerns when she learned that the children had been

returned to Father because he was very agitated during many of her previous

visits and spoke in a very hostile manner about Mother and about CPS. Barker

said that Father seemed to have a lot of anger issues, so she was concerned

with whether those had been addressed. Barker felt like Father’s agitation was


      20
       … Father said that the children were watching television and could have
seen Mother hit her face on the bedroom door, but he could not guarantee that
they saw it.
      21
       … Although Father described the previous event as taking place on June
16, 2008, it appears that the following event is the one that took place on June
16, 2008, because it matches the description in the police citation.

                                      28
“probably at a higher level” than what she considered to be normal for people

in his situation.

      When Barker went to Father’s apartment on July 1, 22 she was concerned

because Father had very little furniture and very little food. He had a bed in his

bedroom, a toddler bed in the living room, a high chair, and an older television

console. Barker talked with Father about the fact that he needed to get some

food, told him about utilizing food banks, and said that she would try to get a

food card for him. The lack of food also concerned Barker because it was

almost the Fourth of July, and the stores would be closed for the holiday.

During that visit, Barker noted, however, that Father’s bed and the toddler bed

had sheets on them.

      Q.     A.B.’s Injuries

             1.     Barker’s Observation

      On July 8, Barker went back to visit Father, brought food, and noticed

that there was not any new food. Father and the children appeared to have just

awakened when she arrived around 9:00 or 9:30 a.m., and both children had




      22
      … At that time, Father had moved into the Woodhaven apartment
complex in east Fort Worth.

                                       29
dirty diapers.23 Barker pointed out the dirty diapers and told Father to change

them; he complied.

      Barker noticed that A.B. had bruises on his face and ear.24 Barker asked

A.B. what had happened, and he said that he had fallen.25 When Barker asked

how he fell, A.B. looked down at the ground and did not say anything else.

Before Barker could ask Father what had happened, Father said, “[Y]ou heard

him, he said he fell.” Barker asked Father how A.B. had fallen, and he said that

he had no idea how A.B. had received the bruising on his face and ear and

denied that he had struck the child. Barker told Father that he needed to call

his CPS caseworker and inform her of the fall. Father seemed very hesitant and

told Barker that CPS was not going to believe him.

      Barker found the bruising on A.B. to be “very upsetting.” She stated that

the children had just been placed back with Father, that it was a very stressful

time, and that now there was bruising on A.B.’s face. Barker said that it looked



      23
       … Barker said that the fact that both children had dirty diapers when
they awakened would not in and of itself be surprising, but “they were very wet
and very full, which tends to make you feel like that they were on for quite
sometime.”
      24
        … Barker testified that she did not see any bruising on the children
during her July 1 visit.
      25
      … Barker testified that A.B. had limited verbal skills and was saying
“maybe three-word sentences.”

                                      30
like a definite handprint on A.B.’s cheek and that his ear was very black and

blue.    Barker assumed that A.B.’s ear had been pinched and said that the

bruising on A.B.’s ear was “definitely not a sleeping print.” If A.B. had fallen,

Barker would have expected him to have had other injuries, not just bruising on

his face and ear.    Barker believed that the children were in a dangerous

environment, so she left to make a call to CPS to report the bruising on A.B.26

Barker called both the national CPS hotline and the local CPS office because she

thought the local caseworker could get out to the apartment faster than

someone from the national office.

        Barker testified that Father called her a few times after the July 8

incident, and Barker told him that she had made a referral to CPS. Barker said

that the calls that Father made to her were appropriate for the most part; he

wanted to verify that she had relayed to CPS that A.B. had stated that he had

fallen. Barker said that Father continued to call her after that, but she screened

her calls and did not answer his calls. When asked if Father continued to call

and harass her over the last year, Barker said, “No. He did come by the VOA

office,” but she was not there. Barker stated that after Father came to the




        26
       … Barker testified that this was only the second time in her twelve years
with the VOA that she had to report abuse.

                                       31
VOA office twice, they started keeping the doors locked because his visits

alarmed the ladies in the building.

             2.    Tammy Brooks’s Testimony

      Tammy Brooks, who works for CPS, was assigned to investigate the

referral that was received on July 8, regarding physical injuries to A.B. She and

Officer Steven Osborne went to Father’s home to make sure that the children

were safe.

      Brooks knocked on the door, and Father opened it. Father asked why she

had come to his home “with those pigs,” referring to the police. Father called

Brooks a “whore” even though they had never met before. 27 Brooks said that

Father seemed annoyed that they were at his home and wanted them to leave.

      Brooks told Father that she needed to see the children because a referral

had been phoned in, but Father would not let her in. He asked if they had a

warrant and said that they needed to leave his property if they did not have

one. Brooks explained that they did not need a warrant to see his children, but

Father still would not let her in.



      27
        … Brooks testified that Father never talked to her in a calm manner
while she was at his apartment; he was loud, verbally abusive, constantly
aggressive, and constantly on the attack. And although he never struck
anyone, she was glad that she had police officers with her. Brooks explained
that she was not Father’s caseworker and that Father wanted his caseworker,
Ms. Cornelius.

                                       32
      When Brian Knox of FBSS arrived, Father let him inside his apartment.

Knox came out and reported the condition of the children to Brooks. After that,

Brooks told Father that she needed to see the children and take pictures of

them because Knox had reported that they had injuries. Father picked up each

child, held him/her out the door, and said, “[S]ee they’re fine.” Brooks told

Father that if he did not allow her to see his children so that she could make

sure that they were safe, then she would go to court, and there might be a

removal.

      When Father finally let Brooks inside the apartment, Brooks noted that the

apartment was sparsely furnished. She saw a red toddler bed in the bedroom,

a mattress box spring on the floor, and dishes in the sink; she did not recall

seeing anything that was a danger to the children. When asked whether the

children were in a neglected environment, Brooks said that she did not spend

that much time in the home and could not get a sense of it.28 Brooks also said

that she could not tell whether Father’s apartment was a dangerous

environment.

      Brooks said that A.B. was wearing some mismatched shorts and a shirt;

H.B. had on only a diaper. Brooks said that the whole family had an odor from



      28
       … Brooks said that she was outside Father’s home for about three or
four hours and that she was inside for only five or ten minutes.

                                      33
not bathing. Brooks noted that A.B.’s ear was dark purple and that he had

some linear bruises on his face. Brooks said that A.B. was really dirty and that

she could not see any other bruises in the short amount of time that Father

allowed her in the apartment, but she did observe dark marks under A.B.’s

eyes.

        Father told Brooks that A.B. had fallen off the toddler bed. Later, Father

said that A.B. fell off Father’s bed. Then, Father gave a more detailed version;

he said that he had been asleep and had awakened when he heard A.B.’s

crying, and A.B. told him that he had fallen and that it hurt. Father said that

A.B. had marks on his eyes because he was not getting enough sleep and that

A.B. had marks on his cheeks because he was rubbing his face on the carpet.

        Brooks told Father that A.B. needed to be seen by a doctor to make sure

that he did not have additional injuries. Father refused to take A.B. to the

hospital, stating that he was “not going to fall for it again” because CPS had

previously taken his children from him at the hospital. Brooks told Father that

if he would not take the children to the hospital, CPS would remove them.

        Ultimately, Knox transported the children to Cook Children’s Hospital, and

Brooks followed him. Brooks said that they had a problem when they first

arrived at the hospital and tried to get the children seen by a doctor; Father was

very angry and would not give any information to the hospital staff to allow

                                        34
them to register the children.    Both children were eventually seen in the

emergency room.

      After they had been at the hospital for an hour or more, Brooks took

pictures of the children and tried to clean H.B. with baby wipes because she

had dirt on her.   Brooks said that H.B. did not look like she was failing to

thrive 29 but that both children stared and looked blank, so Brooks thought that

they might be hungry. Brooks and Ms. Cornelius bought food for the children

and tried to blow on the food to cool it, but A.B. kept putting it in his mouth

and eating it while it was still hot. After the children were fed, they began

moving, talking to each other, and hugging each other.

      Brooks tried to establish rapport with the children by asking their names

and ages, but A.B. was unresponsive. When Brooks pointed to his bruise and

asked him what had happened, A.B. blurted out, “I fell,” and “[i]t hurt.” After

A.B. said that he had fallen, Brooks heard A.B. tell Ms. Cornelius about a fight

between Father and Mother. A.B. moved his hand and body and said Father

pushed Mother, and he demonstrated how she fell down and how she was




      29
        … Father had asked Brooks to “check out” the doctors that he saw
when he was young so that she would realize that H.B. did not have a failure-
to-thrive problem but rather that she had a growth hormone problem just like
he had when he was growing up.

                                      35
pushed. As he was telling the story, A.B.’s voice became loud, like he was

acting out the scene that he had witnessed.

      Based on information that Brooks received from the emergency room

doctor, who did not believe that A.B.’s injuries were accidental, Brooks decided

to remove A.B. and H.B. from Father and to place them in foster care.          In

addition to her concern over A.B.’s injuries, Brooks said that the open FBSS

case, the history,30 and Father’s behavior31 factored into her decision to remove

the children.

      Corporal Blanchard, who had arrived at the hospital while the group was

in the exam room waiting for the doctor to see A.B., escorted Father out of the

hospital to try to serve him with papers. Ms. Cornelius attempted to serve

Father with the notice of emergency removal, but Father refused to sign it. He

also refused to sign a medical release information form and to provide



      30
        … When Brooks went to investigate the referral, she did not know that
there was a prior CPS case in Missouri; she found that out later in her
investigation. Father had mentioned that he was from Missouri, so Brooks
called the state and requested that they check to see if Father had any CPS
history. Missouri responded to Brooks’s inquiry and sent CPS records.
      31
        … Brooks described Father as “so aggressive and so loud and in your
face” and said that several times, “people had to come in and tell him to be
quiet or they were going to have him taken out of the hospital.” Brooks said
that Father quieted down for a little bit, but then he became angry when he
found out that the doctors had examined H.B.’s private parts; he said that she
had been violated.

                                       36
placement information, and he had an altercation with Corporal Blanchard. 32

The doctor ultimately released the children to Brooks, and Ms. Cornelius placed

them in a foster home, where Jennifer H. became their foster mother.

      After the removal, Brooks received phone calls and e-mails from Father.

Brooks said that somehow Father had obtained her State e-mail address and

had sent her multiple e-mails per day. At the time of trial, which was almost

a year after the removal, Father had continued to e-mail her with the last e-mail

dated ten days before the termination trial commenced.          Brooks said that

Father’s e-mails 33 repeatedly stated that Brooks had violated his rights, that she

had taken his children, that she had been wrong about his son, and that Father

had not injured his child. Father did not ask Brooks to further investigate the

case but instead blamed her for taking his children, saying that she had handled

the case incorrectly.     Brooks said that Father kept repeating the same

information “in massive amounts, massive emails” and that he “would call back

to back to back to back. He would just keep calling.” Brooks did not respond

to Father’s e-mails because they were not providing new information; it was the

same thing that he had said on the phone, and she had already told him over


      32
       … Brooks read from her investigation report that Father “told Corporal
Blanchard to suck his dick and he grabbed his crotch and thrust it toward him.”
      33
        … The e-mails were not admitted into evidence; Brooks testified that her
e-mails were ultimately deleted because her part of the case was closed.

                                        37
the phone that his case had “moved on.” Brooks described Father as “unique”

because he kept calling and e-mailing her, and she had never been contacted

by a client before via e-mail.

            3.     Nurse Wright’s Testimony

      Donna Wright is a pediatric nurse practitioner and a sexual assault nurse

examiner at Cook Children’s Hospital. She is also on the CARE Team, which

is the child advocacy resource and evaluation team that sees children who have

been possible victims of physical abuse, sexual abuse, or neglect. She testified

that she saw both A.B. and H.B. on July 9, 2008, after they had been referred

to the CARE Team.

      Nurse Wright said that in the emergency room, A.B. underwent a CAT

scan of his brain to check for injuries and had x-rays taken of his entire body

due to the bruises that had been found. All of the tests came back within the

normal range.

      Nurse Wright performed a thorough head-to-toe assessment on A.B.

because he was too young to give her a history. She saw multiple soft tissue

injuries on A.B.   Specifically, she noted that A.B. had purple-red bruising

approximately two millimeters on his left eyelid and had petechia—small

pinpoint-type bruising—on his left cheek and also on the temporal area right

next to his eye. Nurse Wright said that A.B. had red lines of bruising on the left

                                       38
side of his face and purple-red bruising on his left ear.        A.B. had a five-

millimeter brown bruise on his lower left abdomen, a five-millimeter brown

bruise on his right lower buttocks, and some line and configuration abrasions

on his upper thigh. Photographs of the bruises on A.B. were admitted into

evidence.

      Nurse Wright provided her opinion regarding A.B.’s injuries. She testified

that all of the injuries to A.B.’s face were of equal severity because of the

amount of force that would have been necessary to cause those injuries. She

said that the injuries would have been painful to A.B.

      With regard to the injuries to A.B.’s ear, Nurse Wright said, “[T]hat is an

injury where something has to hit only the ear . . . . [S]omething struck the

child in the ear[,] or he only fell on one thing on his ear.” Nurse Wright said

that A.B.’s ear injuries could have been from pinching, slapping, or twisting and

pinching. She agreed that the injury to the ear could have been caused by a

parent’s grabbing the child by the ear with the thumb inside the ear and the

first finger outside the ear and pulling or jerking. Nurse Wright testified that the

injury to the ear would have required a significant amount of force and agreed

that whatever trauma caused the injury to the outside of A.B.’s ear had

sufficient force to bruise through the ear to the back. When the trial court

asked whether there would be enough strength in the fingertips to make the

                                        39
bruise inside the ear while the rest of the hand was making the print on the

face, Nurse Wright answered that it would require really long fingers to wrap

that far around and that it would be difficult to have that much force in the

fingertips to cause bruising. The ear had a darker bruise, and Nurse Wright

opined that the bruise on the face and the bruise on the ear were approximately

the same age based on their color and the fact that they were in the same area

of the body. Nurse Wright opined that A.B.’s face and ear injuries could have

been caused at the same time, but the bruise near his eye was caused at a

different time. She said that all of the injuries to A.B.’s ear and face had the

potential to be severe because they were on his head and could cause brain

trauma.

      Nurse Wright testified that she believed that the injuries on the left side

of A.B.’s face,34 which included the linear configuration, were slap marks. She

opined that the slap print was caused by an adult because the length between

each of the linear marks was inconsistent with a child’s hand, that the person

who had slapped A.B. had used his/her right hand, and that the bruise from the

alleged hand slap was approximately less than three or four days old. Nurse

Wright agreed that there was one slap to A.B.’s face and that was all they had



      34
       … All of A.B.’s injuries were on the left side of his face, with the
exception of one bruise that was fading on his right cheek.

                                      40
pinned down and that the injury could not have been caused by a carpet burn

because there were no abrasions, just bruises.

      With regard to the injuries to A.B.’s eye, Nurse Wright said that if

someone fell forward on an object or onto the floor, his cheeks or forehead

would be injured, not the inside of his eye. To cause injuries inside the eye, a

toy or another object would have to go straight into the eye. Nurse Wright did

not know what caused the injury to A.B.’s eye socket. She said that there was

a possibility that the thumb from the hand that made the slap mark might have

reached A.B.’s eye socket, but it was on a different plane. Nurse Wright did

not dispute that A.B. could have fallen, but she did not believe that A.B.’s

injuries occurred from a single fall because the injuries were on two different

planes of the head.

      She said that the bruise on A.B.’s buttock was of concern because it was

in an area protected by a diaper and was a different color than his other bruises,

which indicated that it had occurred at a different time than the other bruises.

Nurse Wright said that it would take a lot of force to get a bruise in a spot

covered by a diaper, but A.B. could have sustained a bruise on his bottom if he

was running around without a diaper on. Nurse Wright could not say that the

bruises on A.B.’s abdomen and buttocks happened at the same time; she could




                                       41
only say that they were about the same age and were older than the bruises on

A.B.’s face.

      Nurse Wright was “extremely concerned” about the bruise on A.B.’s

abdomen because it is very difficult for the abdomen to bruise from a fall. She

said that there is always a concern about internal injuries—to the liver and

pancreas—when there is a bruise on the abdomen.

      Nurse Wright said that common accidental bruises in children usually

occur on the front side of their bodies on boney prominences—their knees,

hands, or forehead—when they fall. However, A.B. did not have bruises on his

boney prominences when Nurse Wright saw him in July 2008. The fact that

A.B. did not have any bruises on his boney prominences was a red flag, but it

was the compilation of where all the bruises were located that resulted in Nurse

Wright’s diagnosis of “not an accident.” Nurse Wright said that if A.B. had told

her that he had fallen, that would not have changed the diagnosis that he had

non-accidental injuries because all of his injuries were not from a single fall. If

A.B. had fallen from a toddler bed, Nurse Wright said that it would have been

more likely that he would have had injuries to a boney prominence in addition

to the injuries that he had presented with.       Nurse Wright said that in her

opinion, the linear marks were probably from a slap and that the ear injuries

could have been caused by a fall.      Nurse Wright said that it would not be

                                        42
inconsistent for A.B. to have said that he had fallen, had hurt his ear, and was

slapped; however, she did not think that scenario would explain all the injuries

that he had. Nurse Wright said that the probability of A.B.’s injuries being

caused by an accident was less than five percent.

      Nurse Wright performed the same head-to-toe examination on H.B. H.B.

had a pale brown bruise on her left thigh that was approximately three by four

centimeters.   This bruise was not of concern because there were no other

bruises and no other injuries.

      Nurse Wright saw in the hospital records that H.B. had been hospitalized

nine months before for failure to thrive. Nurse Wright was extremely surprised

that H.B. had been previously diagnosed as “failure to thrive” because “she was

so chunky, she was playful, active” and because she was in the seventy-fifth

percentile for weight, the tenth percentile for length, and the fiftieth percentile

for head circumference.     Nurse Wright said that if she had been in private

practice and had seen a child who had gone from the twenty-fifth percentile to

the tenth percentile within about four or five months, she would have been

extremely concerned and would have required the family to come back to the

office to have the child’s length and weight checked periodically to monitor the

situation. If the child had come in to a clinic with those falling stats, Nurse

Wright said that she would have a significant follow-up appointment and would

                                        43
want to see all past growth to know whether the decrease had occurred

gradually or had immediately dropped off. Nurse Wright said that it would be

difficult for a child’s care giver to know that the child was falling off the growth

chart unless he or she had gone for a visit with the child’s pediatrician and had

been told of the problem.

            4.     Caseworker’s Testimony

      Father volunteered to Ruth Groomer, who became the family’s

caseworker in July 2008, an explanation about the cause of A.B.’s bruising:

he said that A.B. had fallen. Father told Groomer that he and the children had

been walking down the street and that A.B. had fallen on a gate rail. 35 Father

told Groomer that he never slapped A.B.

            5.     Father’s Testimony

      Father testified that on July 7 at about 7:00 p.m., A.B. was walking next

to the stroller that H.B. was sitting in when he tripped and fell over a gate at

the apartment complex and hit his ear and his cheek on the ground. Father said

that there was no swelling when he checked A.B. before they went to bed.




      35
         … Dorene Branum, the manager of the apartment complex where Father
lived, testified that there was a large gate railing in the front of the apartment
complex.

                                        44
      They went to sleep about 8:00 or 9:00 p.m., and Father awoke an hour

or two later to A.B.’s crying, “My ear. My ear,” and he was slapping his hand

against the metal headboard of his bed. When Father asked A.B. what had

happened, he said, “My ear. My ear. My ear.” Father thought that A.B. had

been jumping on the bed and had fallen down and had hit his ear on the

headboard because he was standing on the carpet slapping the headboard when

Father woke up. Father did not see any bruising on A.B. at that time. Father

said that it is possible that A.B. sustained his injuries from both the fall over the

gate and the incident with the headboard. Father said that he was concerned

about A.B.’s injury but that he knew that it was not life-threatening.

      Father testified that he and the children were sleeping when Barker

arrived the next morning. Barker thought there was dirt on A.B.’s ear and tried

to rub it off; she then pointed out the bruising on A.B.’s ear while Father was

changing his diaper. Barker asked A.B. what had happened, and he said that

he had fallen.36 Barker did not press A.B. for further details.

      Father said that he told Barker the whole story about A.B.’s slapping the

headboard with his hand but that she must have left that out of her testimony.

Father believed that there was an injury to only one side of A.B.’s ear and that



      36
       … Father said that A.B. was “pretty verbal,” but he did not speak in full
sentences.

                                         45
Barker’s rubbing A.B.’s ear may have caused bruising to the other side of his

ear to show up at the hospital. Father said that he never slapped A.B. and

never pulled or tugged on his ear.

      Around 3:00 p.m. on the same day that Barker had visited Father, Brooks

came to Father’s apartment, along with the police and others. The children

were in the living room, and Brooks was outside the door when Father called

her a “whore.”    Father said that he was very sorry for his actions. Father

described his attitude when the police arrived as “iffy.” He said that he was

not cursing at, screaming at, hollering at, threatening, or assaulting anyone; he

was just trying to get his point across that A.B. did not need to go to the

hospital because he had simply fallen.      Father said that he did not have

anything to hide but was scared that CPS was not going to believe anything

that he said about where the injury came from. He said that he had finally

gotten his children back and felt like his life was where it needed to be, so he

was afraid of losing his children again.

      Father said that he went to Cook Children’s Hospital when Brooks

threatened to remove the children if he did not take A.B. to the hospital to be

examined. He explained that when he refused to sign forms at the hospital, he

did so because he thought that CPS should pay for the visit because they had

requested it.

                                       46
            6.      Mother’s Testimony

      A.B. told Mother numerous times, “[D]addy tried to break my ear.” 37

Mother said that A.B. did not provide additional details after he said that Father

had tried to break his ear, but he was persistent in his story. Mother believed

A.B. and said that Father engaged in similar behavior with her, but Mother later

said that in all her years with Father, A.B.’s statement regarding his ear was the

only incident that she is aware of in which her son complained that Father may

have injured him.

      R.    Father Charged with Injury to a Child

      Father talked to a detective on July 9, was charged with injury to a child,

and spent seventy-five days in jail from July 16 to September 29, 2008.

Father’s bond was initially set at $10,000.        Father asked for a personal

recognizance bond, and “the judge, I guess, got mad, and he doubled my bond

at arraignment from 10 grand to 20 grand and was making it impossible for me

to bond out.”

      Father’s understanding was that if he did not plead guilty, he would

spend two years in jail pending trial. So Father signed a judicial confession that



      37
        … Mother was in the midst of potty training A.B. when she voluntarily
placed him with Jennifer W ., and Mother had talked to Father about having
trouble potty training A.B. However, she never saw Father take A.B. by the ear
to the bathroom.

                                       47
he had injured A.B. and entered a guilty plea because he missed his children and

knew that the only way he would have any hope of getting his children back

would be to plead guilty and to start working on his service plan.

      S.    Father’s Second Round of Services 38

            1.    Service Plan Requirements

      As noted above, Groomer became the caseworker on this case in July

2008 while Father was incarcerated in the Tarrant County Jail.          Groomer

developed a service plan for Father that required him to attend counseling,

parenting classes, anger management classes, and a batterers intervention

program.39 Father’s service plan also required him to undergo a psychiatric




      38
        … Although the Department did not move for termination of Father’s
parental rights based on any failure to complete his service plan, see Tex. Fam.
Code Ann. § 161.001(1)(O), we include a discussion of the services that he
worked because it is relevant to the endangering conduct and endangering
environment grounds that the Department pleaded in its petition to terminate
Father’s parental rights.
      39
        … Groomer determined that Father needed to participate in batterer’s
intervention based on the previous case file, which included in the investigation
that A.B. had told CPS that Father had knocked down Mother, had hit her, and
had made her cry. Groomer was not aware that Mother had been charged with
domestic violence.

                                       48
evaluation, a psychological consultation by Dr. Parnell Ryan,40 and a drug and

alcohol assessment.41

      After Groomer developed a service plan for Father, she went to visit him

at the jail on August 26, 2008; gave him the service plan; and went over it with

him. During that meeting, Father called Groomer a “bitch” and told her that he

had already done services with FBSS, that he would not participate in services,

that he did not need services, that the charges against him were going to be

dropped,42 that he would be getting his children back, and that he would move

to Missouri to live with his mother as soon as his children were returned to him.

Father said that he would not sign the service plan until he had talked to his

attorney.




      40
        … Groomer requested that Father complete another psychological
consultation, even though Father had completed one the year before, because
Father had attended parenting classes and had completed other services for the
Department, which could have made the outcome of the psychological
consultation different from the previous one.
      41
         … Groomer testified that the inclusion of the drug-free education in a
service plan does not necessarily indicate that the parent has a drug problem.
In this case, Groomer testified that she had no evidence that Father used drugs,
though there was evidence of “very erratic behaviors.”
      42
       … Father said that he was appealing his conviction for injury to a child
and that it would be overturned.

                                       49
            2.     Service Plan Delay

                   a.    Groomer’s Testimony

      The trial court held a status hearing on September 30, 2008, at which

Groomer reported that Father had been released from jail the previous day but

was not in attendance at the hearing and had not contacted Groomer despite

the fact that her phone number was on his service plan.                Groomer

acknowledged that Father had lost two and half months of time on his service

plan while he was in jail.43

      In November, Father said that he had lost his service plan. Groomer said

that she provided Father with several copies of his service plan; she mailed two

copies to him and hand-delivered one in December when she went over the

services with him again. Father continued stating through December 2008 that

he would not work his services.

                   b.    Father’s Testimony

      Father said that Groomer’s statement that he did not contact her until

December was incorrect; Father said that within a week of being released from

jail, he had contacted Groomer about getting his services in place.      Father

testified that he had called Groomer fifteen to twenty times in October 2008



      43
        … Groomer said that the services on Father’s plan were actually offered
back in August 2008.

                                        50
and had left voice mails but received no response. At a hearing in January

2009, Father’s attorney demanded that Father’s services be initiated and

pushed, and CPS moved a little faster after that hearing by scheduling parenting

classes and anger management classes.

            3.     Parenting Classes

      Father said that as part of his parenting classes, he learned about

nutrition; discipline; holding, comforting, and cuddling the children; playing with

the children; showing the children that he cared; watching television with the

children; the timing for feeding and bathing children; and dealing with the stress

of being a parent. Father said that the parenting classes taught him not to

spank his children but to put them in the corner and talk to them to see if they

knew why they were in the corner; once they said that they were sorry for

what they had done wrong, Father could let them out of the corner.

      Father admitted that he initially did not want to take the parenting

classes, but he later realized that they were beneficial and said that they helped

him a lot. He said that the parenting instructor listened to the parents, gave

them a chance to talk, and “was just all around a great lady.” He did not have

any personality conflicts with her. Father made a good grade on his test and

received a certificate of completion.




                                        51
            4.    Anger Management and Individual Counseling Classes

                  a.    Burdick’s Testimony

      Constance Burdick, a clinical social worker with Catholic Charities

Diocese of Fort Worth, testified that Father came to her for anger management

classes and individual therapy.      Father was punctual to all ten anger

management sessions. In the first class, Father blurted out, “Are you qualified

to write a letter saying I don’t have an anger problem and get me out of this

class?” Father said that he did not want to be there, that he did not have an

anger problem, and that he wanted out of the class.            Father thereafter

frequently asked Burdick to write letters saying that he did not have an anger

problem. During the classes, Father talked about what had happened with

A.B., and Burdick told him that he needed to wait until individual counseling to

discuss that topic. Father also announced in the anger management class that

he had ADHD and bipolar disorder.44 However, Father was never asked to leave

a class, and his behavior in the class was not so inappropriate that he was

unable to complete the class.

      Burdick stated that Father has impulse control issues—when he wants to

talk about something, he does not stop talking about it and will interrupt others



      44
       … Father gave Burdick some paperwork showing that he had been
diagnosed with a personality disorder.

                                       52
when they are talking. Burdick believed that Father needed to be in the anger

management classes because he was agitated and intrusive, interrupting other

people. Father’s affect was angry, and he was very tense. Father’s anger

stemmed from his feeling that the police, the physician at Cook Children’s

Hospital, CPS, and the courts all had a vendetta against him. In Burdick’s

opinion, Father did not have any behavioral changes and was not able to

articulate what he had learned in the anger management class.

      When Burdick conducted individual counseling with Father, she did not

see him use the skills that he had learned in the anger management class. He

was angry during most of the individual counseling sessions; he was loud, was

focused on what he wanted to talk about (i.e., about what had happened to

A.B.),45 and would not accept redirection. Father was not cooperative during

the individual counseling sessions; his total focus was on getting Burdick to

write letters stating that he did not have an anger problem, that he did not harm

his child, that he did not need to be in counseling, and that his children should

be returned to him. When Burdick told Father that she could not write a letter

about an event that she did not witness, Father became agitated and said that



      45
         … Father said that he had taken the two children to the store and that
on the way back into the apartment complex, A.B. had tripped and fallen over
something and had hit the side of his head. Father told her that he had pleaded
guilty to injury to A.B. because he was coerced by his attorney and the courts.

                                       53
he was going to prove that he did not hurt A.B. Burdick took Father at his

word that he had not hit A.B.

      Father told Burdick that he and Mother did not get along and that there

had been domestic violence between them. 46 He described one incident that

occurred when he twisted Mother’s arm behind her back, and the other

happened when Mother injured Father on June 16, 2008.47 The children were

with them when this incident of domestic violence occurred. Father repeatedly

asked Burdick to obtain the police reports from the domestic violence incidents,

but she did not. Burdick believed that Father should have called 911 instead

of trying to remove Mother from the premises. Burdick said that Father never

acknowledged that he was an abuser of Mother or A.B.

      Father told Burdick that he was actively involved in all the CPS programs

and that he was doing everything that CPS wanted him to do, including getting

on medication. Burdick, however, could not say whether Father was taking his

medication, only that he repeatedly told her that he wanted to get off his

medication.    Burdick recommended that Father have a full battery of



      46
        … In Burdick’s counseling with Mother, Mother said that Father was
verbally and physically violent toward her.
      47
        … Although Burdick testified that Father told her that he received a
ticket as a result of the June 16 incident, the record does not bear this out. As
set forth above, Mother received a citation for the June 16, 2008 incident.

                                       54
psychological testing to rule out schizoaffective disorder, but he said that he

would not undergo further testing.

      Burdick believed that Father’s involvement with CPS when he was a child

had a bearing on his current frustrations with CPS in trying to get his children

back. Burdick agreed that Father was driven to get his children back and said

that was not a vice. Burdick felt that Father had anger control problems based

on the behavior he exhibited and felt that he had been involved in domestic

violence.

      Father complained to Catholic Charities that he and Burdick were not able

to work together, and ultimately, Burdick was removed from the case.

                  b.    Father’s Testimony

      Father said that he initially did not think that he needed the anger

management class but that he did learn a lot, such as how to control his

temper, how to deal well with others, how to communicate positively, and how

to not get aggressive with other people. When Father was asked to explain

why he still had a tendency to be confrontational after taking the anger

management class, he said, “[T]hey’re making me look out to be a little bit

more worse than it actually is.” He said that he gets agitated every now and

then because he is doing everything he can to show CPS that he deserves to

have his children returned to him, but CPS is not willing to give him a chance.

                                      55
Father complained about CPS’s failure to return his phone calls and their

unwillingness to sit down and have a discussion with him. He said that he

became agitated when he was told that the plan was family reunification and

then it was changed to termination.

         Father said that he got along with Burdick for the most part. He said that

there were no major confrontations, just “a little discussion at the beginning.”

Father ultimately earned a certificate for completing the anger management

class.

         However, Father began having problems with Burdick in the individual

counseling sessions. In counseling, Father was confronted about his alleged

abuse of A.B., and there was a presumption that he had done “these things.”

Father believed that Burdick had already decided that he was a child abuser and

a batterer, and he felt like that put up a wall between them and did not give him

a chance to bond with the counselor.48         So Father asked CPS for another

counselor, and they said he had to remain with Burdick. Ultimately, Ms. Hart

with Catholic Charities allowed him to switch.




         48
       … Father said that one thing he could have done better under his service
plan was to have better interaction with Burdick in counseling, but he felt like
he had gotten everything that he could out of the services.

                                         56
            5.    Drug Testing

      Father said that he has never touched drugs and has never had a positive

drug test. He explained that one time he walked past some neighbors who

were smoking marijuana and that someone told the apartment manager that he

was smoking marijuana; the apartment manager then called Ms. Cornelius, who

sent Father to take a drug test. Father passed the drug test and said that was

the only allegation of drug use.

            6.    Visitations

                  a.    Groomer’s Testimony

      Father’s first visitation with the children after he was released from jail

occurred on October 10, 2008. Typically during the visits, Father picked up the

children individually and gave them a very short ride on his shoulders—maybe

one trip around the room for each child—and then he sat down because he said

that he was tired. Father then read a book aloud, but he did not gather his

children to him. The foster mom sent lunch for the children, and Father brought

them a snack because he did “not always have the money to provide

[every]thing for his children.” Groomer said that the visits “went okay.”

      Val Trammel was the case aid who observed most of Father’s visits, and

Groomer observed all but approximately five.        Groomer said that it was

extremely rare to have two people observe a parent’s visits and agreed that

                                      57
supervised visitation is not the optimum type of visitation, but the judge had

ordered two people to observe Father’s visits. Additionally, the visits were

ordered to take place at the Ben Street location so that there would be a

security guard. Groomer believed that condition was “absolutely appropriate”

because several times they had needed the guard to intervene.

      For instance, in April, Father came to a visit while he was very agitated,

walked straight toward Groomer, started ranting and raving and shaking his

finger in her face, waved his arms, and screamed at her.       Father said that

Groomer and the program director had lied to him about CPS’s plan for

reunification.49 Groomer said that Father stood over her screaming, would not

sit down, and would not calm himself even after she and the security guard had



      49
        … It is difficult to determine when the plan changed from family
reunification to termination because Groomer could not recall when she, her
supervisor, and the program director made the decision to seek termination of
Father’s parental rights. Groomer said that on September 30, 2008, at the
status hearing, they decided to make the change from family reunification to
termination. Later, Groomer read an e-mail that she had sent on January 29,
2009, in which she said that “[t]he current permanency goal is family
reunification, but Nora and I have discussed this and we feel it should be
changed to alternative family unrelated adoption.” At the end of the February
24, 2009 permanency conference, the district supervisor announced that the
goal was to work a dual plan—family reunification would be worked side by
side with termination. When Groomer was asked whether her decision to
terminate happened in April after the incident in the CPS lobby, she said, “Yes,
on that date due to his behaviors.” However, Groomer also testified that CPS
had talked about terminating Father’s parental rights prior to the April 30
episode at the Ben Street office.

                                      58
requested that he calm down. The children retreated to a corner because they

appeared to be afraid of him. Groomer became fearful for the children to be

returned to Father and decided that CPS should terminate Father’s parental

rights. Groomer canceled Father’s visitation for that day, and CPS did not give

a make-up visit. Groomer testified that in her seven and a half years with CPS,

she had never seen anyone as upset as Father was. He was so upset that it

made her fearful or anxious.

      Groomer testified that the photos that were introduced at trial of Father

cuddling with the children at the visits were posed at Father’s request.

Groomer said that Father prompted the children to smile at him and then took

their picture during the visitation. Groomer could not say that all the “happy

pictures” were prompted because the children had a wonderful time when they

were playing on little cars, but Groomer said that they were not interacting with

their Father when they were playing on the little cars.

                   b.    Father’s Testimony

      Father said that he usually arrived about a half hour early for his visits and

that the children would run up to him and grab his leg and hug him. Father said

that he would read to them, play with toys with them, and toss papers like

Frisbees to them. Father said that his children hugged and kissed him and

would ride on his shoulders. Father said that he changed diapers and fed his

                                        59
children at every visit, though sometimes he fed them food that the foster

parents had packed because he is on food stamps. Father said that he did

whatever he could to show his children that he loved them and that he wanted

them back, including telling them that he was trying his hardest to get them

back.

        Father asked Groomer if he would be allowed to take the children out to

the playground during his visits instead of having them stay in the office.

Father asked Groomer throughout the majority of the visits and finally had to

go to Groomer’s supervisor to get the approval to take his children to the

playground. Father was able to take the children outside two or three times

until A.B. was bitten by a bug at the foster home, and then CPS refused to

allow Father to take the children outside.

        Father said that Groomer’s description that the children were lifeless and

flat during his visits was “not true at all.” Father said that the pictures showing

his children with smiles on their faces accurately depicted their demeanor during

his visits. Father said that his visits went very well and that his children cried

and wanted to go home with him.

        Father said that the visits when Trammel supervised solo went much

better than those when Groomer was also present because Trammel quietly

observed. Father said that Groomer wrote on a notepad continuously during

                                        60
the visits that she supervised and would verbalize things during the visit, such

as, “[H]e’s not kissing them enough.” Father had a problem with Groomer’s

standing over him during his visits, making him feel like he was a criminal and

a bad father.    Father said that if there was verbal friction between he and

Groomer it was started by her and would only last a few seconds because he

would “chill out ‘cause [he] didn’t want [his] kids to see that.” Father testified

that he attempted but was not successful in establishing a working relationship

with Groomer.

            7.     Home Visits

      Groomer said that before attempting a home visit on Friday, March 20,

2009, at 4:00 p.m., she called Father’s attorney because she wanted to

request permission to go into Father’s home to see if he had adequate

accommodations for his children. Groomer denied wanting to get incriminating

information on Father and said that she did not have a camera with her.

      When Groomer went to Father’s home to perform the unannounced home

visit to check on his environment, she took two caseworkers along with her.

Groomer knocked on the door, and Father opened the door a small crack and

said that he would have to call his attorney. Father was very angry when he

opened the door, and his hands were shaking extremely hard. After Father

spoke with his attorney, Father said that his attorney had refused to let them

                                       61
come in, and so Father did not let Groomer in that day. While the door was

cracked, Groomer noted an extremely heavy smell of smoke and a kind of a

musky smell; she said that Father smokes “some kind of a little cigar.”

            8.    Service Plan Compliance

                  a.    Groomer’s Testimony

      Groomer said that Father’s services were set up immediately on January

6, 2009, when he agreed to do his services. Father completed the parenting

classes and received a certificate, underwent a psychological consultation as

ordered by the trial court, took part in an anger management program and

received a certificate, attended counseling, made every visitation with his

children, and maintained the same residence throughout the pendency of the

case. Although Groomer had no indication that Father had drug or alcohol

issues, she included a drug and alcohol assessment in his plan. Father did not

participate in the drug and alcohol assessment. Father also did not go for a

psychiatric evaluation, even though Groomer had given Father the number for

MHMR so that he could undergo the evaluation at no charge. At the time of

trial, Groomer had not received any information stating that Father had

completed a batterers intervention class, but during the weeks prior to trial,

Father told Groomer that he was attending a batterers intervention class or was

going to attend. When asked whether she wanted to leave the trial court with

                                      62
the impression that Father was not active in getting all of his services taken

care of, Groomer said that it was not an impression; it was a fact. Groomer

later agreed that Father took all the services that were offered, but in this case,

it was not enough.        Groomer did not see any behavioral changes or

improvement in Father’s “character” after the completion of the programs, and

Groomer did not believe that Father had demonstrated any benefit from the

services that CPS provided to him. In Groomer’s opinion, Father did not make

a positive change within a reasonable time period, and he did not have adequate

parenting skills to care for his two young children.

                   b.    Father’s Testimony

      Father testified that he had completed the parenting class, the

psychological consult, the anger management class, the counseling sessions,

and had made all his visits except for when he was in jail.

      T.    Father’s Probation

            1.     Oldham’s Testimony

      Samuel Oldham, Father’s probation officer, testified that he was assigned

to work on cases for people with mental illnesses. He met with Father on

December 31, 2008, and noted that Father had previously been diagnosed as

bipolar and that his diagnosis had been sustained by two separate psychological

evaluations performed by Dr. Parnell Ryan.

                                        63
      Father, who was serving a two-year probation, was required to perform

160 hours of community service, 50 to report to his probation officer at least

once a month or as directed by the trial court or by Oldham, and to pay a $25

monthly probation fee.     Oldham testified that Father’s probation had five

additional mental health conditions: (1) submit to a psychiatric and/or a

psychological evaluation, which Father did; (2) attend and participate fully in

counseling or classes as directed by the trial court or Oldham, including Project

Safe Neighborhood, which he completed, and a substance abuse evaluation; (3)

take all medication as prescribed by the treatment provider;51 (4) abstain from

the use, possession, or consumption of alcoholic beverages and submit to

testing for alcohol use, which Father complied with by submitting to four

urinalyses that were all negative; and (5) be assigned to a mental health officer,

which was completed. There was a supplemental condition that there be no




      50
        … Father’s hours of community service were initially deferred because
of the stressful nature of the CPS proceedings and the effect that they were
having on Father.
      51
       … Father was prescribed ten milligrams of Abilify, a psychotropic
medication, on February 12, 2009. Father told Groomer that he was taking
three milligrams of Abilify.

                                       64
harmful/injurious contact with children and that he have only adult-supervised

contact with children.52

      Early on during Father’s probation, he violated the terms by failing to

submit to a substance abuse assessment, but that violation was later cleared

up as a misunderstanding based on scheduling. Father violated his probation

on April 3, 2009, when he failed to report for his scheduled monthly

appointment. Father claimed that his appointment was at a different time, but

Oldham said that Father had been issued written instructions that contained the

correct time. Father was contacted on April 4, and he reported as scheduled

later in the month.

      On May 6, Father received a citation for failing to take his medication as

prescribed. During a home visit, Oldham saw that Father had not been taking

his medicine, and Father explained that he had been taking his medicine every

other day because he did not like the side effects.53 Father admitted that he did


      52
        … Father wanted unsupervised visitation with the children, and Oldham
told him to have his attorney file a motion for modification. Oldham said that
he had no reason to agree to the recommendation for Father to have
unsupervised contact with the children based on the behavior that he had
observed. Oldham noticed that Father frequently became angry and had what
appeared to be mood swings.
      53
        … Father said that he did not skip any pills. He said that the
psychotropic medication causes a hand tick and a “very strong aversion to
medication.” He did not want to take the medicine, but he took it because he
loves his children and wants them back.

                                       65
not consult with a physician prior to altering his medication schedule and has

since reported taking his medicine as prescribed. Oldham, however, admitted

that the probation department does not have the resources to test whether

Father is taking the medicine or throwing away the pills.    After the May 6

citation was issued, Oldham noticed mood swings in Father.        On May 21,

Father called and spoke to acting supervisor Kelly Pierce and expressed various

frustrations to her; he sounded very agitated and angry. Five days later when

Father called and asked what would happen to his community service once his

CPS case was taken care of, Oldham thought that Father sounded depressed

because he was brief in his answers and used a subdued voice.

      Oldham made four unannounced visits to Father’s home. On the two

visits when he went inside, 54 on February 25 and May 6, 2009, Father’s

apartment was very messy and cluttered.         Oldham noted that Father’s

apartment smelled very strongly of tobacco smoke, that there were a large

number of dirty dishes in the kitchen, that the refrigerator did not have much

food in it, that the child’s bed and the baby bed both appeared to be in very

poor repair, that the baby bed did not have a padded bottom so the metal




      54
       … Oldham said that he was not denied access the other two times; one
time Father was not home, and the other time, Oldham had accompanied the
transportation officer who picked up Father and took him to the Department.

                                      66
support bar was clearly visible as a hump in the bottom lining, that the bedroom

was very messy with clothes on the floor, that the bed did not have a frame

and did not have sheets on it, and that a gate was stretched across the entry

to the kitchen. Oldham stated that he found Father’s apartment in a similar

condition the second time that he went in. In his lay opinion, Oldham said that

the home environment was not suitable for small children.

      Oldham said that Father “acts as someone who does not want to be on

probation, and he works very hard at taking care of his case” and can be

described as “very proactive.” Oldham said that there was a fifty-page printout

of all his contacts with Father, and Oldham guessed that approximately

seventy-five percent of the contacts were phone calls in which Father had

asked about his community service and about whether Oldham had received

any communication from CPS. Father talked at length to Oldham about his CPS

case, including his fears and his poor relationship with the CPS workers.

      Oldham testified that Groomer had contacted him approximately three

times a month. The initial contact was made by telephone, but subsequent

contacts were required to be made in writing so that the trial court could

approve or disapprove of her requests for information. On March 10, 2009,

Groomer requested information concerning the condition of Father’s home

during home visits, Father’s attitude and behavior during the home visits, any

                                      67
children observed in the home, the results of the psychiatric evaluation, any

medications prescribed to Father, anyone who had been fearful of Father, and

Father’s feelings about CPS staff. On March 25, 2009, Father signed a release,

giving Groomer access to information held by Oldham. Oldham believed that

Groomer’s questions were appropriate for her safety and the safety of others.

      On April 9, Groomer called to inform Oldham that a CPS director had sent

Father an e-mail telling him that he was to cease calling a doctor who had

examined his child earlier in the month for a diaper rash. Groomer said that

Father repeatedly called the doctor’s office and that the doctor’s personnel felt

threatened. Groomer said that the doctor had called the police and reported to

her that Father would be arrested for trespassing if he came to the doctor’s

office. Father sent an e-mail to Groomer’s supervisor stating, “I’m sorry that

you’ve been misinformed regarding calls to the doctor’s office.       I have not

called their office at any time.”   Oldham was not able to verify Groomer’s

concerns.

      On May 6, Groomer e-mailed Oldham with news that Father had been

confronted over identity theft but that the charge could not be prosecuted

because of the manner in which the victim of the identity theft handled the

situation.




                                       68
      On May 20, there were e-mails and letters received by Oldham from CPS

alleging that Father had contacted the children’s foster parents.

      Oldham said that if Father finished all of his community servics,

maintained his fee payments, and maintained general compliance with his

probation conditions, he would be eligible for mandatory early dismissal review

in September 2009. 55 If Father finished his community service before then, he

could obtain an early hearing through an attorney.

      Oldham expressed some concerns about Father’s mental stability if he did

not become more proactive with his psychiatric treatment. Oldham specifically

noticed high levels of aggression during Father’s phone calls and office visits;

most of his aggression was directed toward agencies, but some was directed

toward individuals. Father never threatened Oldham, but Father had become

agitated with Oldham and had accused him of unethical behavior. Based on

Oldham’s training, experience, and interaction with Father, Oldham believed

that Father could be a physical danger to others.

            2.    Groomer’s Testimony

      While this case was pending, Groomer asked the trial court for permission

to have Father sign a release so that she could talk to his probation officer.



      55
       … Oldham later reiterated in his testimony that Father was up for a
review, not a mandatory release, in September 2009.

                                      69
Groomer called Father’s probation officer five times to find out about drug tests

and whether Father was in compliance with his probation terms. Groomer read

on the record the unredacted portions of Respondent’s Exhibit 13, an e-mail

from her to Oldham, in which she had requested information on Father.

      Groomer admitted that she had provided information to Oldham, telling

him that Father had a girlfriend in Springtown and that he was traveling out of

the county to visit her.    Groomer agreed that she did not have personal

knowledge of any of these purported facts. Groomer also contacted Oldham

to tell him that Father had improperly e-mailed the foster parents. Groomer

admitted that she had also called Oldham to talk about Father’s claiming his

children on his income tax return and to inform Oldham that she had been told

that Father was involved in some kind of fraud. When asked how many times

she had called Oldham in an effort to provide information on Father that would

result in the revocation of his probation and that would “cause him to go to jail

for ten years,” Groomer said that she never knew that it could cause Father to

go to jail for ten years.

      U.     Children’s Lives with Foster Parents

             1.    The Initial Foster Parents

      Jennifer H. testified that A.B. and H.B. were brought to her by CPS near

midnight on July 8, 2008, and remained in her home until February 15, 2009.

                                       70
When the children arrived, they had on pajamas, their hair was matted and had

not been washed, they were dirty and very much in need of a bath, their

fingernails were long and dirty, and they had no additional clothes; it took two

baths the next morning to get them clean. While Jennifer H. was bathing A.B.,

he told her that “his daddy tried to rip his ear off,” and Jennifer H. noted that

the inside of A.B.’s ear was black and blue, he had finger-sized bruises on both

sides of his cheeks, and one of his eyes was bruised. Jennifer H. said that A.B.

spoke to her very clearly 56 and that she reported his statement to CPS.

      Jennifer H. said that H.B.’s language was inappropriate for a two-year-old

child. She would yell at Jennifer H., “[W]ould somebody go get me a damn

bottle,” and if someone bumped her, she would say, “[G]--damn you.” Jennifer

H. said that they told H.B. that her language was inappropriate, and she

gradually stopped using profanity.

      Jennifer H. observed that the children were very fearful of not being fed,

and H.B. grossly overate when she first arrived in their house, while A.B. would

hide food and stand in the corner and eat. Additionally, Jennifer H. recollected

an incident involving H.B. and International House of Pancakes (IHOP). Around




      56
       … Although A.B. was three and a half when he came to Jennifer H.’s
house and was not fully verbal, he was able let her know what his needs were
and when he was unhappy.

                                       71
Thanksgiving, the children saw a commercial for pancakes at IHOP, and

Jennifer H. told the children that she would take them there.          When they

arrived at the restaurant, it was packed, so Jennifer H.’s husband made the

decision that they would go to another IHOP location. A.B. became hysterical,

and Jennifer H. had to physically put him in his car seat. A.B. tried to open the

window and get out and was crying uncontrollably. Jennifer H. kept reassuring

A.B. that they were just going to another IHOP. When they pulled into the

second IHOP, Jennifer H.’s husband assured A.B. that he was going to be able

to eat pancakes, and he “kind of calmed down and . . . went in and . . . ate.”

A.B. ate all of his food and all of Jennifer H.’s food and was very embarrassed

by the way he had acted.

      Before the children’s visits with Father started,57 Jennifer H. said that the

children “were great. They were happy. They played with the other children.

They were kids. You know, they ate well; they loved to go shopping; they

loved to look good. You know, we -- -- bought them a lot of nice clothes. And

they were -- they were just happy.” Jennifer H. said that the children were




      57
        … From July 8 through the end of September 2008, Father did not have
visits with the children because he was in jail. Father’s visits began when he
was released from jail.

                                       72
very comfortable in her home, they slept through the night in twin beds, and

they used sippy cups.

      After the visits with Father started, Jennifer H. noticed “a real rapid

decline in their behavior.” Jennifer H. said that the children would come home

from the visits “wired,” and at other times, they wanted to sleep in the crib or

play pen. For instance, after some visits, A.B. went immediately to the play

pen or the crib or grabbed a bottle and asked Jennifer H. to fill it up and then

asked to be put in the crib. A.B. laid in the crib and watched SpongeBob on the

television for as long as she would let him. Jennifer H. said that A.B. did not

act like that on other days of the week.

      A.B. also experienced nightmares and would cry out, “[N]o, daddy, no.”

Jennifer H. would go in to his room, wake him up, hold him, calm him down,

and put him back to bed. A.B.’s nightmares happened on the night of the visit

and sometimes the night after the visit and continued for several months. A

couple of times during his nightmares, A.B. fell out of his bed until Jennifer H.

remedied that by placing body pillows around his bed.

      After A.B.’s initial telling of the story about his ear during his first bath

at Jennifer H.’s house, every so often, A.B. would repeat his statement. One

morning when Jennifer H. and A.B. were waiting for the school bus, A.B.




                                       73
started to cry and said that his ear hurt. When Jennifer H. asked if A.B. had

fallen or if he had bumped it, A.B. said that his dad had tried to rip it off.

      Jennifer H. said that around that time, she and her husband made the

decision to “let go” of A.B. and H.B. Jennifer H. had initially wanted to adopt

A.B. and H.B., but Father had started making accusations against her. 58

Jennifer H. said that her home was investigated three times for sexual abuse

and physical abuse. The first allegation that Father made was in regard to bad

diaper rashes on H.B. During that time, H.B. had the flu and was having a lot

of bowel movements, so the diaper rash was hard to control. The second

allegation was that something may have happened sexually to the children.

When Father attempted to change A.B.’s diaper 59 at a visit and he resisted,

Father made the accusation that A.B.’s reaction proved that Jennifer H. was

molesting him. A CPS caseworker examined A.B. and determined that he was

fine. The third allegation involved a bite. H.B. was bitten by Jennifer H.’s

daughter while H.B. was in her home. Father wanted a doctor to look at the

bite marks on H.B.’s face, but Groomer told Jennifer H. that was not necessary.

Thus, CPS ruled out all of the allegations.


      58
      … Jennifer H. said that the investigators told her that Father made the
anonymous referrals.
      59
      … Jennifer H. said that A.B. had a fear of bathrooms; he would resist
when she put him on the toilet, so she just let him wear pull-ups.

                                       74
               2.   Father’s Allegations Against Jennifer H.

      Father testified at trial regarding his version of the allegations that he

made against Jennifer H. He said that the first referral was for an allegation of

sexual abuse based on a visit when he went to change A.B.’s diaper, and A.B.

pushed him away; Father said that A.B. had never done that before, and it

alarmed Father.      Father asked Groomer to look into the sexual abuse

allegations.

      The next referral involved a purple, golf-ball sized bruise on H.B.’s face

below her left eye. Father asked Groomer to have a physician look at it, and

Groomer said that she believed the foster parents’ story—that their daughter

had bitten H.B.—and that there was no need to have a physician look at it.

      The third referral was for redness in A.B.’s private area. Father said that

he felt like the referrals that he made were made in confidence under state law.

               3.   The Current Foster Parents

      Greg, A.B. and H.B.’s current foster parent, testified at trial that the

children had been in his home for approximately four months. During the first

couple of days that A.B. was in their home, he made the statement, “Daddy

tried to break my ear,” and another statement, “Daddy tried to pull my ear off.”

      Greg said that A.B. would “hit a wall emotionally, physically” about mid-

afternoon and would become very easily agitated at the smallest thing and

                                       75
would throw a tantrum.         Greg said that A.B. would regress and that the

episodes would usually involve self-injury or an injury to his wife Julie. A.B.

struck Julie, H.B., and Greg, with the last time that he hit Julie occurring in

April 2009. A.B. also attempted to bite Greg’s arm, but he stopped himself

before he actually bit Greg.

          Greg said that the children are now doing very well in his home. A.B. has

a lot of superhero toys that he likes, H.B. likes to play with food and cooking-

type toys, and both children like to play with blocks. Greg said that they have

transitioned the children from SpongeBob to more educational shows on

television and that seems to have had a positive effect on their developmental

skills.

          Greg testified that he had concerns about giving his address and the name

of his employer because there was a pattern in this case where information

reached Father, and then Father used the information to harass Greg or the

children’s caregivers. Father had contacted the pediatrician that Greg took the

children to and had also e-mailed Greg. In the e-mail, Greg received Father’s

phone number and his Metro account, which Greg used to see if Father had

anything posted on the internet. Greg performed a Google search and found

websites that Father had set up on the internet. Based on what he found, Greg




                                          76
said that he has concerns about the children’s safety if they are returned to

Father.

            4.     Father’s Allegations Regarding the Current Foster Parents and
                   His Responses to Greg’s Testimony

      While the children were with Greg, Father noticed during a visit that H.B.

had three fingertip contusions above her buttocks.              Father asked the

investigator to look at the injuries and see if they were accidental or intentional.

      Father admitted that he took Greg’s e-mail address from the discovery in

this suit and responded to his accusations that the children were returned to

him after the visits with dirty diapers and diaper rashes; Father said that it was

not his fault because Mother’s visits followed his. Father said that he did not

contact the pediatrician that Greg took the children to.

      Father admitted that he had posted family pictures of his children on an

internet website that he used for finding friends and dating. Father was not

aware of who looked at the websites, but he hoped that it was adults. Father

also admitted that he had posted nude photos of himself on a different internet

website and that it was not at all appropriate for him to do that. He posted the

pictures right after he was released from jail because he “was trying to have a

little bit of fun.” He said that the children were never exposed to the website

because they were in foster care.



                                        77
      V.       Father’s Environment

               1.    Mother’s Testimony

      Mother said that Father’s apartment smelled like dogs 60 and that it was

unclean.      Mother therefore did not believe that Father’s apartment was

appropriate for the children. However, Mother said that Father had beds for the

children and that she did not have any concerns about the children being taken

care of at Father’s home.

               2.    Father’s Testimony

      Father testified at trial that he was living in a one-bedroom apartment at

the Cherry Hill Apartments, where he had lived since June 10, 2008. Father

said that his apartment was clean and well kept and that there was always food

in the refrigerator.    When the children lived with Father, H.B. slept in her

playpen in the living room, 61 A.B. slept in his bed in the living room, and Father

slept in the master bedroom. Father said that if the children were returned to

him, he would attempt to obtain a part-time job to increase his income and then

upgrade to a two-bedroom apartment. He said that he would let the children

have the two bedrooms and that he would sleep in the living room.



      60
           … Mother said that Father had dogs that lived inside the apartment.
      61
       … Father said that he was waiting to buy a bed for H.B. until he was
sure he was getting his children back.

                                          78
      W.    Father’s Finances

      Throughout the case, Father has received SSI. He receives a monthly

disability check for $692 and a monthly SSI check for $2. If the children were

returned to him, he would receive a $46 check for A.B. from his Social

Security. Father said that he currently receives $200 in food stamps and that

he would receive $360 to $400 per month if the children were returned to him.

      Father said that if he had the children, his monthly expenses would

include $345 for rent, $61 for electricity, $60 for cell phone service (to keep

in contact with his probation officer), $36 to $42 for water, $20 to $30 for

diapers and clothing for the children, and $25 for bus transportation.62 All of

the groceries, except his cigarettes, would be bought using food stamps. When

asked about other expenses, such as entertainment, Father said that he was

trying to save money so that if his children were returned to him, he could buy

them the things that they needed.

      Father said that the reason he was not currently working was because the

CPS case had taken up so much of his time that there was no time to go and

get a full-time job. Father said that he can earn $900 per month without losing




      62
       … Father stated that he no longer had credit cards but admitted that he
had credit card debt that had accrued during his marriage. His monthly budget,
however, did not include the amount that he would be paying toward that debt.

                                      79
his SSI and that he is going to work full-time after he completes technical

school; he is going to be a freelance computer technician and expects to make

fifteen to twenty dollars an hour, or possibly more.

      X.    Character Testimony

            1.    Friend’s Testimony

      Diana Michelle Gordon testified that she has known Mother and Father

since the early years of their marriage. Gordon saw them two or three times

per month at their house. Gordon said that H.B. has always been small and

that she saw her eating; she did not see anything that concerned her. Gordon

said that the children were fed, clothed, and clean and that Mother and Father

took very good care of their children.

      Gordon said that during Mother and Father’s separation, Gordon had

contact with Mother about three or four times a month. Mother called Gordon

and asked for Father’s phone number so that she could talk to him about this

case, and Gordon said that she could not give it to her. Gordon called Father

and told him about Mother’s call.

      Gordon said that she knew of about five times when Father watched the

children, but he did not keep them while Mother worked; Mother’s sister or a

friend name Allison watched the children.




                                         80
            2.    Apartment Complex Manager’s Testimony

      Dorene Branum, the manager from the Cherry Hill Apartments, testified

that she knew Father because he came in to the office “all the time” with his

children and visited with the office staff. Branum said that she saw Father with

the children two or three times a week and that the ladies in the apartment

complex’s office would watch the children while he would run upstairs to put

away groceries. Branum said that Father was protective of his children and

would not leave them with just anyone. Father was always good with his

children; he played with them and talked to them, and they seemed very happy.

Branum said that the children looked healthy and taken care of and that she

never saw bumps and bruises on them.

      Branum said that Father was always pleasant. She did not have any

problems with Father; he was very quiet, did not associate with many people

at the apartment complex, and was current on his payments.

            3.    Groomer’s Testimony

      Mother had provided Groomer with reports of her observations of Father’s

behavior—including his irritability, anger, instability, temper, and fits—and

Groomer also had the opportunity to observe Father’s behaviors for herself.

Father rarely talked to Groomer in a nice, polite, professional manner. Groomer

said that apart from the confrontation in the lobby at the Ben Street CPS

                                      81
location, she had another confrontation with Father, but it was not that

extreme. She said that one time earlier in the case, they had “some words”

when Father demanded that she do things the way he wanted them done.

When asked whether it was fair to say that Father and Groomer did not get

along well, Groomer said that she could not meet Father’s demands, including

his demand that she immediately return his children. Groomer said that she did

not have a personal conflict with Father, but she thought that he was a difficult

person to deal with. Groomer, however, said that her personal feelings did not

affect her professionalism in handling this case.

      Y.    Recommendations and Requests

            1.    Mother’s Recommendation

      In Mother’s opinion, Father would not make a good parent for the

children. She said that she would have concerns for the safety of the children

if they were returned to Father because of what A.B. has told her and because

of the pictures that she saw of A.B.’s ear and cheek; Mother believes that if the

children were placed with Father, they would be in danger physically. Mother

said that she had signed a relinquishment of her parental rights 63 because she



      63
       … If Father’s parental rights were not terminated, everyone agreed that
it would not be in the children’s best interest for the trial court to accept
Mother’s relinquishment.     However, Mother did not perfect an appeal.
Additionally, Gordon testified that Mother told her that Mother had made a

                                       82
wanted her children to be safe, and she personally could not achieve that.

When asked whether the children would have been safe in her care, she said

that they would have been safe but that she “wanted to make sure they’ll be

safe from their father too.” Mother agreed that she was trying to tell the court

that she did not feel that she could protect her children from Father:

      I feel if I had the kids, they would be safe in my home. I’m not
      saying they wouldn’t. But as far as me solely protecting them
      away from him so that he cannot reach them or come in contact
      with them, no I can’t. I don’t believe that I can, so that is why I
      said that to the court.

Mother ultimately testified that one slap makes a person unfit to be a parent

and that a person should lose his parental rights for such a slap.

            2.    Burdick’s Recommendation

      Burdick told Father that she would not recommend that his children be

returned to him because her concern was for the welfare of the children. When

asked her opinion on whether Father has the skills to raise a four-year-old child

and a three-year-old child, Burdick said that she had concerns because Father

did not take good care of himself; she saw him only twice when he was clean

and did not have an extreme odor.       She was also concerned that he was

incapable of living on the amount of money he had, that he would need more



“deal” with CPS concerning her unborn child. The details of any such “deal”
were not made part of the record.

                                       83
money to raise his children, and that he had an unrealistic view of what it was

going to take to raise his children.    Further, Burdick said that Father gets

focused on something and cannot be distracted, which was a concern since he

would be in charge of small children, and Father possessed an inability to be

flexible or to change to accommodate small children.

            3.    Groomer’s Recommendation

      Groomer testified that the children were neglected when they were in

Father’s care and that she did not believe that Father could provide a safe,

stable environment for his children. Groomer testified regarding her concerns

about returning the children to Father:      (1) she did not see that he had

benefitted from any of the programs, even though he had completed them

twice; (2) his behaviors were of extreme concern; (3) Father did not know how

to handle the children when they were acting out because he told her, “[Y]ou

won’t let me spank them”; (4) he had not accepted responsibility for any of his

actions; (5) he could go to jail if his probation was revoked; and (6) she was not

sure that he could take care of them financially.64       Additionally, A.B. had

nightmares when he first came into care, the children had eating disorders, and




      64
       … Groomer admitted that she had no specific knowledge of Father’s
income because he would not talk to her about it; Groomer’s understanding
was that he received SSI payments.

                                       84
there was a lack of bonding shown during the visits. Moreover, the children,

who were almost three and four at the time of the trial, were “more vulnerable”

than children who are much older.

      Thus, Groomer’s recommendation to the court was to terminate Father’s

parental rights because she believed it was in A.B.’s and H.B.’s best interest.

Groomer believed that the failure to thrive incident alone was sufficient to

terminate Father’s parental rights and that a single slap was sufficient to

terminate a parent’s rights. However, Groomer said that her recommendation

to terminate Father’s parental rights was based on everything that had

happened, including the CPS history in Missouri, 65 H.B.’s failure to thrive, A.B.’s

injury, and Father’s failure to show progress after completing his services.

             4.    Ad Litem’s Recommendation

      The ad litem testified that he had relied on the testimony of several

witnesses:   Oldham, who had testified that he was very concerned about

Father’s mental capacity; Conner, who had testified that he did not see any

seizures in H.B. but transported her because of the bruises on her; Barker, who

had testified that she had concerns about the amount of food in the house, the




      65
       … However, Groomer agreed that she did not “have any knowledge on
what the Court did in Missouri,” and the record before us does not contain the
Missouri CPS records.

                                        85
injuries that she saw on A.B., and A.B.’s explanation that he had fallen; Wright,

who had testified that A.B.’s injuries were on two different planes and were not

an accident; and Dr. Lazarus, who had testified that H.B. was not gaining

weight because she was not being fed. The ad litem recommended that the

children not be returned to Father because he did not believe that the children

would be safe.

            5.      Father’s Requests

      Father asked the trial court to give him an opportunity to get back in his

children’s lives.   He said that he would not have any problem with being

monitored by another CPS worker if the trial court gave him another chance.

Father said that he was still bonding with the children because of his weekly

visits and that his children loved him.

      Father admitted that he had told someone that if his children were

returned to him, he would move to Missouri. He clarified that he would only do

that if he was given “the green light” by the trial court; otherwise, he would

“be glad to stay in Texas.”

      Z.    Trial Court’s Disposition

      After hearing the above evidence, the trial court signed a judgment

terminating Father’s parental rights.          The trial court found by clear and

convincing evidence that Father had knowingly placed or knowingly allowed the

                                          86
children to remain in conditions or surroundings which endangered the physical

or emotional well-being of the children; that Father had 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 that

termination of the parent-child relationship with Father was in the children’s

best interest. Following the termination trial, the trial court held a prove-up

hearing and granted Father’s petition for divorce.        This appeal from the

judgment terminating Father’s parental rights followed.

                 III. C ONDUCT AND E NVIRONMENTAL E NDANGERMENT

      In his second and third issues, Father argues that there is no evidence or

factually insufficient to establish (D) and (E) termination grounds. Specifically,

Father argues that “the cumulative findings by the trial court would hardly

justify a modification in a custody suit, much less the termination of [his]

parental rights.” 66




      66
         … The trial court made 145 “findings of fact.” They are primarily
recitations and summations of testimony presented during trial. Some of the
findings of fact are inconsistent with other findings of fact; some are favorable
to Father, while others are favorable to the Department.             The factual
background of our opinion incorporates the trial court’s various findings of fact,
and we incorporate them in our legal and factual sufficiency analysis.


                                       87
      A.     Burden of Proof and Standards of Review

      A    parent’s   rights   to   “the   companionship,   care,   custody,   and

management” of his or her children are constitutional interests “far more

precious than any property right.”          Santosky v. Kramer, 455 U.S. 745,

758–59, 102 S. Ct. 1388, 1397 (1982); In re M.S., 115 S.W.3d 534, 547

(Tex. 2003). “While parental rights are of constitutional magnitude, they are

not absolute. Just as it is imperative for courts to recognize the constitutional

underpinnings of the parent-child relationship, it is also essential that emotional

and physical interests of the child not be sacrificed merely to preserve that

right.” In re C.H., 89 S.W.3d 17, 26 (Tex. 2002). In a termination case, the

Department seeks not just to limit parental rights but to erase them

permanently—to divest the parent and child of all legal rights, privileges, duties,

and powers normally existing between them, except for the child’s right to

inherit. Tex. Fam. Code Ann. § 161.206(b) (Vernon 2008); Holick v. Smith,

685 S.W.2d 18, 20 (Tex. 1985). We strictly scrutinize termination proceedings

and strictly construe involuntary termination statutes in favor of the parent.

Holick, 685 S.W.2d at 20–21; In re M.C.T., 250 S.W.3d 161, 167 (Tex.

App.—Fort Worth 2008, no pet.).

      In proceedings to terminate the parent-child relationship brought under

section 161.001 of the family code, the petitioner must establish one ground

                                           88
listed under subdivision (1) of the statute and must also prove that termination

is in the best interest of the child. Tex. Fam. Code Ann. § 161.001 (Vernon

2008); In re J.L., 163 S.W.3d 79, 84 (Tex. 2005). Both elements must be

established; termination may not be based solely on the best interest of the

child as determined by the trier of fact. Tex. Dep’t of Human Servs. v. Boyd,

727 S.W.2d 531, 533 (Tex. 1987).

      Termination decisions must be supported by clear and convincing

evidence. Tex. Fam. Code Ann. §§ 161.001, 161.206(a). Evidence is clear

and convincing if it “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.” Id.

§ 101.007 (Vernon 2008). Due process demands this heightened standard

because termination results in permanent, irrevocable changes for the parent

and child. In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002); see In re J.A.J., 243

S.W.3d 611, 616 (Tex. 2007) (contrasting standards for termination and

modification).

      The heightened clear-and-convincing burden of proof in termination cases

alters the legal sufficiency standard of review that we apply. In reviewing the

evidence for legal sufficiency in parental termination cases, we must determine

whether the evidence is such that a factfinder could reasonably form a firm

belief or conviction that the grounds for termination were proven. In re J.P.B.,

                                        89
180 S.W.3d 570, 573 (Tex. 2005). We must review all the evidence in the

light most favorable to the finding and judgment. Id. This means that we must

assume that the factfinder resolved any disputed facts in favor of its finding if

a reasonable factfinder could have done so. Id. We must also disregard all

evidence that a reasonable factfinder could have disbelieved. Id. We must

consider, however, undisputed evidence even if it is contrary to the finding. Id.

That is, we must consider evidence favorable to termination if a reasonable

factfinder could and disregard contrary evidence unless a reasonable factfinder

could not. Id.

      We must therefore consider all of the evidence, not just that which favors

the termination judgment. Id. But we cannot weigh witness credibility issues

that depend on the appearance and demeanor of the witnesses, for that is the

factfinder’s province. Id. at 573–74. When credibility issues appear in the

appellate record, we must defer to the factfinder’s determinations as long as

they are not unreasonable. Id. at 573.

      The heightened clear-and-convincing burden of proof in termination cases

also alters the factual sufficiency standard of review that we apply.          In

reviewing the evidence following a termination judgment for factual sufficiency,

we must give due deference to the factfinder’s findings and not supplant the

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

                                       90
must determine whether, on the entire record, a factfinder could reasonably

form a firm conviction or belief about the truth of the allegations that Father

violated (D) or (E) and that the termination of his parental rights would be in the

best interest of his children. See C.H., 89 S.W.3d at 28. If, in light of the

entire record, the disputed evidence that a reasonable factfinder could not have

credited in favor of the finding is so significant that a factfinder could not

reasonably have formed such a firm conviction or belief, then the evidence is

factually insufficient. H.R.M., 209 S.W.3d at 108. When reversing on factual

sufficiency grounds, we detail in our opinion why we have concluded that a

reasonable factfinder could not have credited disputed evidence in favor of its

finding. J.F.C., 96 S.W.3d at 266–67.

      B.      Law on Endangerment

      Endangerment means to expose to loss or injury, to jeopardize. Boyd,

727 S.W.2d at 533; In re J.T.G., 121 S.W.3d 117, 125 (Tex. App.—Fort

Worth 2003, no pet.); see also In re M.C., 917 S.W.2d 268, 269 (Tex. 1996).

To prove endangerment under subsection (D), the Department had to prove that

Father (1) knowingly (2) placed or allowed his children to remain (3) in

conditions or surroundings that endangered their physical or emotional

well-being.    See Tex. Fam. Code Ann. § 161.001(1)(D).           Subsection (D)

focuses on dangerous conditions or surroundings that endanger the physical or

                                        91
emotional well-being of the children. In re J.A.J., 225 S.W.3d 621, 625 (Tex.

App.—Houston [14th Dist.] 2006) (op. on reh’g), judgm’t aff’d in part, rev’d in

part by 243 S.W.3d 611 (Tex. 2007).        It focuses on the suitability of the

children’s living conditions. Id. Thus, under (D), it must be the environment

itself that causes the children’s physical or emotional well-being to be

endangered, not the parent’s conduct. Id.

      Under (E), the relevant inquiry is whether evidence exists that the

endangerment of the children’s physical well-being was the direct result of

Father’s conduct, including acts, omissions, or failures to act. See J.T.G., 121

S.W.3d at 125; see also Tex. Fam. Code Ann. § 161.001(1)(E). Additionally,

termination under (E) must be based on more than a single act or omission; the

statute requires a voluntary, deliberate, and conscious course of conduct by the

parent.    J.T.G.,   121   S.W.3d    at   125;   see   Tex.   Fam.   Code   Ann.

§ 161.001(1)(E). It is not necessary, however, that the parent’s conduct be

directed at the children or that the children actually suffer injury. Boyd, 727

S.W.2d at 533; J.T.G., 121 S.W.3d at 125.          The specific danger to the

children’s well-being may be inferred from parental misconduct standing alone.

Boyd, 727 S.W.2d at 533; In re R.W., 129 S.W.3d 732, 738 (Tex. App.—Fort

Worth 2004, pet. denied). To determine whether termination is necessary,

courts may look to parental conduct occurring both before and after the

                                      92
children’s birth.   In re D.M., 58 S.W.3d 801, 812 (Tex. App.—Fort Worth

2001, no pet.).

      C.    Evidence Is Legally Sufficient to Support Termination

      We first address whether the evidence is legally sufficient to support

termination of Father’s parental rights pursuant to (D) or (E)—that is, whether

Father (1) knowingly placed or knowingly allowed A.B. and H.B. to remain in

conditions or surroundings that endangered their physical or emotional well-

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

who engaged in conduct that endangered their physical or emotional well-being.

See Tex. Fam. Code Ann. § 161.001(1)(D), (E).         The Department’s brief

contains a combined legal and factual sufficiency analysis in which it focuses

on five acts or omissions by Father that it contends support termination of

Father’s rights under (D) and (E): the allegations that Father bruised A.B. by

slapping him in July 2008; that Father knew that H.B. was failing to thrive in

September 2007; that the children witnessed domestic violence; that Father

had emotional difficulties; and that Father did not provide a safe environment

for his children.67 We will examine all of the evidence in the record, focusing

on these allegations.



      67
       … During oral argument, the State focused mostly on Father’s slap to
A.B., H.B.’s failure to thrive, and the domestic violence allegations.

                                      93
      After Father and Mother separated, a doctor diagnosed H.B. as failing to

thrive. Contradictory evidence exists concerning how frequently H.B. was in

Father’s care during this time, but viewing the evidence in the light most

favorable to the termination judgment, evidence exists that Father cared for

H.B. to some extent around the time of the failure-to-thrive diagnosis when

H.B.’s growth was so stunted that she was “falling off the growth chart.”

Thus, evidence exists supporting an inference that Father knew of and

contributed to H.B.’s failure to thrive and that consequently Father’s conduct,

including omissions, created an endangering environment for H.B. by

underfeeding her. 68

      A.B. received bruises while in Father’s care. CPS and medical personnel

at the hospital documented several bruises of varying ages on A.B., including

what appeared to be a slap mark on his face and a bruise on both sides of

A.B.’s ear.   Concerning the bruise to his ear, A.B. told several people that

Father had tried to pull his ear off. Viewing this evidence in the light most

favorable to the termination judgment, evidence exists that Father slapped

A.B.’s face and/or pinched his ear, causing significant bruising.       Although

medical tests ruled out any additional injuries to A.B. from the slap and/or pinch



      68
       … The underfeeding is also supported by the children’s eating habits
that were witnessed by the foster parents.

                                       94
by Father, a medical expert testified that all injuries to a child’s head are

potentially severe. Thus, evidence exists that, on at least one occasion, Father

inflicted a potentially severe injury to A.B.’s head. Concerning A.B.’s other

bruises, medical personnel opined that these other bruises were not consistent

with accidental falls because of their locations. This evidence is some evidence

that Father’s conduct physically endangered A.B.

      A.B. reenacted a fight between Mother and Father that involved Father’s

pushing Mother and Mother’s falling.       This evidence is some evidence that

Father’s conduct directed toward Mother created an environment that

endangered A.B.’s emotional or physical well-being.

      Some evidence exists that CPS caseworkers found that Father failed to

maintain a living environment suitable for the children because of clutter,

smoke, and odors that filled his apartment. Father resolved the other alleged

deficiencies in the physical home that he provided for A.B. and H.B. Likewise,

evidence exists in the record of Father’s history of mental and emotional

instability; Father admitted that he had been diagnosed with bipolar disorder,

and he exhibited mood swings and was belligerent toward CPS workers and the

police. But no witness testified and no evidence exists that Father’s mental and

emotional problems caused consequences to A.B. or H.B. We are not aware

of any case law, and none has been cited to us, holding that these acts or

                                      95
omissions by Father—clutter and odors in the home and having been diagnosed

with mental and emotional problems—constitute endangering the children,

absent evidence that these acts or omissions actually did result in some

physical or emotional danger to A.B. or H.B.       Absent such testimony, this

evidence is no evidence in support of termination under (D) or (E).

       Viewing all the evidence in the light most favorable to the termination

judgment and disregarding all contrary evidence that a reasonable factfinder

could disregard, we hold that some evidence exists that will support a

factfinder’s firm conviction or belief that Father violated subsection (D) and (E),

and we overrule the part of Father’s second and third issues challenging the

legal sufficiency of the evidence to support the termination of his parental rights

to A.B. and H.B. See In re J.P., No. 02-07-00026-CV, 2008 WL 283295, at

*11 (Tex. App.—Fort Worth Feb. 4, 2008, no pet.) (mem. op.) (holding that

evidence was legally sufficient to support termination when record revealed

some evidence that appellant had history of mental instability, failed to maintain

a clean living environment, and did not demonstrate appropriate parenting

skills).

       D.   Evidence is Factually Insufficient to Support Termination

       We next address whether the evidence is factually sufficient to support

termination of Father’s parental rights pursuant to (D) or (E); that is whether

                                        96
Father (1) knowingly placed or knowingly allowed A.B. and H.B. to remain in

conditions or surroundings that 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.

See Tex. Fam. Code Ann. § 161.001(1)(D), (E). We review all of the evidence

in a neutral light, including the evidence concerning the five allegations set forth

above and relied upon by the Department as establishing (D) and (E) grounds

for termination—that Father bruised A.B. by slapping him in July 2008, that

Father knew that H.B. was failing to thrive in September 2007, that the

children witnessed domestic violence, that Father had emotional difficulties, and

that Father did not provide a safe home for his children.

            1.     Injuries to A.B.—Factually Insufficient (E) Ground

      Medical tests established that A.B. had no underlying injuries beyond his

bruising. His bruising injuries included red marks underneath and on one side

of his eye, an old bruise on his left eyebrow, red scattered dot-type marks on

his left cheek, purple bruising in and around his left ear, linear marks or a “slap

mark” on the left side of his face, and a small bruise on his abdomen and on his

buttock. Concerning the bruise to A.B.’s left ear and the linear marks on the

left side of his face, A.B. and Father both said that A.B. had fallen. Later, A.B.

said that Father had “tried to pull his ear off,” but A.B. never told anyone that

                                        97
Father had slapped him. Although medical personnel testified that because the

bruises on A.B.’s abdomen and buttocks were not on boney prominences, they

were likely not the result of an accidental fall; medical personnel did not rule out

other causes of accidental bruising to a three-year-old toddler like A.B. from

bumping into things, sitting on things, or from accidents other than falling.

Medical personnel testified that A.B.’s bruises—other bruises to A.B.’s face and

ear—were of varying ages, but no one testified whether they were less than or

more than a month old. In other words, whether they occurred before or after

Father regained possession of A.B. 69

      Father testified that he had pleaded guilty to injury to A.B. in order to

obtain probation so that he could work his service plan, but he was adamant

that he did not slap A.B., even going so far as to take a polygraph examination

in an attempt to prove his innocence. Mother testified that in all her years with

Father, A.B.’s statement regarding his ear is the only incident that she was

aware of in which her son complained that Father may have injured him. The

record contains no evidence of physical injuries to the children prior to Barker’s

second visit to Father’s apartment one month after he regained possession of




      69
        … The Department had returned the children to Father approximately
one month before Barker visited them at Father’s apartment and reported A.B.’s
bruising.

                                        98
the children; likewise, the CPS referral in Missouri was not based on any injuries

to A.B. (H.B. had not been born).

      Termination under subsection (E) may not ordinarily be based on a single

transaction, but rather “a showing of a course of conduct is required.” In re

D.P., 96 S.W.3d 333, 338 (Tex. App.—Amarillo 2001, no pet.); see also In re

D.T., 34 S.W.3d 625, 634 (Tex. App.—Fort Worth 2000, pet. denied) (“[A]

voluntary, deliberate, and conscious ‘course of conduct’ by the parent is

required.”). Conduct similar to Father’s may be insufficient even under the

preponderance of the evidence standard to modify conservatorship of a child.

See Stucki v. Stucki, 222 S.W.3d 116, 123–24 (Tex. App.—Tyler 2006, no

pet.) (upholding joint managing conservatorship even though father had hit child

on the head with a book hard enough to give her a headache); see also In re

B.R.P.,   No.   11-07-00255-CV,      2009    WL    1349954,     at   *2–3   (Tex.

App.—Eastland May 14, 2009, no pet.) (mem. op.) (holding that father’s slap

that left a red mark on child’s face for two days did not cause substantial harm

to require change of conservatorship). Thus, viewing all of the evidence in a

neutral light, the evidence that Father pinched A.B.’s ear and/or slapped A.B.’s

face and that A.B. had other small bruises on his body is factually insufficient

to establish a firm conviction or belief that Father engaged in an endangering

course of conduct from June 10, 2008 to July 8, 2008.

                                       99
            2.    H.B.’s Failure to Thrive—Factually Insufficient (D) or (E)
                  Grounds

      The record before us is likewise factually insufficient to establish that

Father knew of H.B.’s failure to thrive. Father testified that Mother took H.B.

to the doctor for her check-ups. He said that he did not attend H.B.’s doctor

visits with Mother that often because she did not allow him to go; no contrary

evidence exists in the record. Father testified that he was a small child and

eventually took growth hormones and that he believed H.B. was small because

she took after him. Mother testified that the doctors thought H.B. was small

like Father and that the doctors did not tell Mother to alter H.B.’s feedings.

      The paramedic who responded when H.B. suffered seizures testified that

H.B. “looked a little underweight for her size” but was not emaciated and that

the main reason he took her to the hospital was due to the abrasion on her head

from being hit by a toy, not her weight.70 Medical personnel from the hospital

testified that H.B.’s failure to thrive would be less obvious to those who saw

H.B. frequently, that it would be difficult for a parent to know of the problem

unless he had been told by a doctor, and that the parents should have been told

of H.B.’s growth issues at a well-baby exam. Mother testified that she was




      70
        … H.B.’s failure-to-thrive diagnosis occurred when she was taken to the
hospital by the paramedic.

                                      100
never told of any growth issues with H.B. before H.B. was taken to the hospital

for seizures. Father testified that H.B. ate baby food and “table scraps” and

that she drank whole milk. Moreover, Father, Mother,71 and Gordon testified

that after Father and Mother separated, Jennifer W. kept the children from 3:00

p.m. to midnight while Mother worked; Jennifer W. and Hall testified that

Father kept the children while Mother worked. Assuming that Jennifer W. and

Hall are correct, Father would only have had the children during one meal time.

And the record reflects that, according to Ms. Cornelius’s affidavit, Mother’s

apartment was barren of food other than Sprite.

      Termination under (D) requires that Father “knowingly” placed or allowed

his children to remain in conditions or surroundings that endangered their

physical or emotional well-being. See Tex. Fam. Code Ann. § 161.001(1)(D).

Viewing all of the evidence in the record in a neutral light, the evidence is

factually insufficient for a reasonable finder of fact to form a firm conviction or

belief that Father knowingly allowed H.B. to be underfed. See, e.g., In re J.R.,

171 S.W.3d 558, 571 (Tex. App.—Houston [14th Dist.] 2005, no pet.)

(holding evidence legally insufficient to show Mother knowingly allowed



      71
       … As mentioned earlier, H.B.’s medical records conflict with Mother’s
testimony at trial; the records reflect that Mother told medical personnel that
Jennifer W . watched the children while Mother was at work and that Father
watched the children “sometimes.”

                                       101
children to remain in endangering environment when she moved in with sex

offender and record failed to show she knew of conviction for sex offense).

            3.    Domestic Violence—Factually Insufficient (D) Ground

      A.B. reenacted a fight between Father and Mother during which Father

pushed Mother and Mother fell. No evidence exists, however, that domestic

violence between Father and Mother resulted in physical injury to the children,

and Mother never testified that she had to seek medical treatment as a result

of such domestic violence. In fact, Mother testified that Father was never

physically violent to the children and that she trusted Father with the children,

despite the domestic violence that had occurred between her and Father,

because he had never harmed the children; Mother said that in all her years

with Father, A.B.’s statement regarding his ear was the only incident that she

is aware of in which her son complained that Father may have injured him.

Additionally, Father could not be certain that the children saw Mother punch

him in the face at his apartment after the separation because the children were

in the bedroom.    Moreover, Father divorced Mother, so domestic violence

between them will not be a continuing issue. Viewing all of the evidence in the

record in a neutral light, factually insufficient evidence exists for a reasonable

finder of fact to form a firm conviction or belief that the children had been

placed in a dangerous environment because of the domestic violence between

                                      102
Father and Mother.       See In re A.S., 261 S.W.3d 76, 84–85 (Tex.

App.—Houston [14th Dist.] 2008, pet. denied) (holding that evidence was

legally and factually insufficient to support termination of mother’s parental

rights under (D) when, even assuming father’s behavior was abusive and had

occurred in front of the children, mother had taken responsive action to protect

the children by taking them out of the environment); see also Lewelling v.

Lewelling, 796 S.W.2d 164, 167 (Tex. 1990) (holding in conservatorship case

“that a parent is a victim of spousal abuse, by itself, is no evidence that

awarding custody to that parent would significantly impair the child”).

            4.    Father’s Mental and Emotional           Difficulties—Factually
                  Insufficient (D) or (E) Grounds

      While the evidence establishes that Father suffered from bipolar disorder

and anger issues, no evidence links these mental and emotional problems to

endangering conduct by Father.      Father testified that he was aware of his

bipolar disorder and of how his moods fluctuated, and the record reveals that

he took medication for his bipolar disorder, even though he did not want to,

because he wanted his children back. The evidence in the record concerning

Father’s mental and emotional difficulties is not in this case evidence of (D) or

(E) grounds; the Department did not seek termination under section 161.003.

See Tex. Fam. Code Ann. § 161.003 (Vernon 2008) (authorizing termination



                                      103
of parent-child relationship under certain circumstances based on mental or

emotional illness of parent); see also, generally, In re A.L.M., 300 S.W.3d 914,

919–20 (Tex. App.—Texarkana 2009, no pet.).

             5.   Father’s Apartment—Factually Insufficient (D) or (E) Grounds

      The record reflects that the Department returned the children to Father

to live with him at his apartment one month before their involuntary removal.

Father complied with the Department’s requests concerning his apartment. He

used the sheets that the VOA gave him and purchased food to keep on hand

even when the children were not living with him. Although Oldham gave his

lay opinion that Father’s apartment was not suitable for small children because

it was messy and cluttered when he viewed it approximately one month before

trial, he did not explain how the children would be harmed by the mess or

clutter that he noted. Father’s apartment was obviously clean enough for the

children to be returned to him in June 2008, so the record demonstrates that

Father had the capability to provide a clean living space for the children when

necessary.    See J.A.J., 225 S.W.3d at 625–26 (holding evidence legally

insufficient to support termination under (D) when appellant worked to improve

her living situation after son was taken into State custody); J.R., 171 S.W.3d

at 577 (holding evidence factually insufficient to establish by clear and

convincing evidence that (D) or (E) grounds existed based on alleged unsanitary

                                     104
living environment); accord M.C., 917 S.W.2d at 269–70 (upholding

termination under prior standard of review based on “extraordinarily unsanitary

conditions” when children’s home was roach infested; children ate food off of

floor and out of garbage; floor and furniture were littered with food, garbage,

dirty clothes, and feces; one child had dead cockroaches matted in her hair;

infant had dead cockroaches in her bottle; and one summer, mother moved

children into house that lacked plumbing or drinking water).

              6.   Other Evidence

      Father worked two service plans—under the FBSS plan, he attended

parenting classes, completed a psychological consultation and a psychiatric

evaluation, attended seven sessions of individual counseling, and completed an

anger management course; under the CPS plan, he completed individual

counseling,    parenting   classes,   an   anger   management   course,   and   a

psychological consultation; had no positive drug tests; and maintained the same

residence—all while never missing a visit with his children.

      Father contended throughout trial that various caseworkers had a

vendetta against him; these contentions are somewhat supported by evidence

in the record that one of Father’s caseworkers, Groomer, of her own accord,

contacted Father’s probation officer to make allegations against Father that

were not relevant to his children.

                                       105
      Various witnesses urged the trial court to terminate Father’s parental

rights based on evidence that is not evidence of endangerment under (D) or (E).

Burdick urged termination of Father’s parental rights, saying she was concerned

for the children because Father had an extreme odor and needed more money

to raise the children. Groomer urged termination of Father’s parental rights

because she did not think that Father had benefitted from the services or that

Father could provide a safe environment.       Groomer also testified on one

occasion that the family plan moved from reunification to termination based on

Father’s conduct toward her.

      Although Father was apparently not congenial in his dealings with

caseworkers, had “an extreme odor,” was not well off financially, had a

cluttered and messy apartment, was persistent to the point of being annoying

and somewhat belligerent to caseworkers with his calls and e-mails concerning

his children, and did not—in one person’s opinion—exhibit “any behavioral

changes or improvement in [his] character after completing programs,” this

evidence is not evidence of endangerment under (D) or (E).

      Likewise, evidence exists that the children demonstrated physical and

mental improvement while they were in foster care. Their language skills, social

skills, and physical health improved. While these facts, as well as the various




                                     106
witnesses’ opinions on Father’s parenting abilities,72 are evidence of the best

interests of the children, they are not evidence that Father violated subsections

(D) or (E).

      7.      A Reasonable Factfinder Could Not Reasonably Have Formed A
              Firm Conviction or Belief That Father Violated Subsection (D) or (E)

      Viewing all of the evidence in a neutral light, the volume of disputed

evidence—set forth extensively above—that a reasonable factfinder could not

have credited in favor of subsection (D) and (E) findings is so significant that a

factfinder could not reasonably have formed a firm conviction or belief of the

truth of the allegations that Father violated subsections (D) or (E). See C.H.,

89 S.W.3d at 28; H.R.M., 209 S.W.3d at 108. Because the evidence viewed

in a neutral light cannot 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 under

subsections (D) and (E), factually insufficient exists to support termination of

Father’s parental rights under subsections (D) and (E). See Tex. Fam. Code

Ann. § 161.001(1)(D), (E); J.P., 2008 WL 283295, at *12 (holding that

appellant’s mental health issues, her living conditions, and her parenting skills

did not rise to the level of endangerment when considered in context with the



      72
       … See Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976) (listing
the parenting abilities of the individual seeking custody as a factor to be
considered in making a best interest determination).

                                       107
other evidence in the record). We sustain the part of Father’s second and third

issues challenging the factual sufficiency of the evidence to support the

termination of his parental rights to A.B. and H.B. See Santosky, 455 U.S. at

758–59, 102 S. Ct. at 1397; M.S., 115 S.W.3d at 547; Holick, 685 S.W.2d

at 20–21; M.C.T., 250 S.W.3d at 167.

   IV. L EGALLY S UFFICIENT E VIDENCE E XISTS S UPPORTING B EST INTEREST F INDING

        In his fourth issue, Father challenges the legal and factual sufficiency of

the evidence to support the trial court’s finding that it was in his children’s best

interest for his parental rights to A.B. and H.B. to be terminated. Because we

have concluded that the evidence is factually insufficient to support termination

under (D) or (E), we need not address whether there was factually sufficient

evidence to support the trial court’s best interest finding. See Tex. R. App. P.

47.1.     However, because we have held that there was legally sufficient

evidence to support the trial court’s findings under (D) or (E), and because a

holding of legally insufficient evidence to support the trial court’s best interest

finding would entitle Father to greater relief than what he is afforded under a

factual insufficiency holding, we will analyze whether legally sufficient evidence

exists to support the trial court’s best interest finding.




                                        108
      A.    Standard of Review

      There is a strong presumption that keeping children with a parent is in the

children’s best interest. In re R.R., 209 S.W.3d 112, 116 (Tex. 2006). Prompt

and permanent placement of the children in a safe environment is also

presumed to be in the children’s best interest.           Tex. Fam. Code Ann.

§ 263.307(a) (Vernon 2008). The following factors should be considered in

evaluating the parent’s willingness and ability to provide the children with a

safe environment:

            (1) the children’s ages and physical and mental vulnerabilities;

            (2) the frequency and nature of out-of-home placements;

            (3) the magnitude, frequency, and circumstances of the harm
      to the children;

            (4) whether the children has been the victim of repeated
      harm after the initial report and intervention by the department or
      other agency;

            (5) whether the children are fearful of living in or returning to
      the child’s home;

            (6) the results of psychiatric, psychological, or developmental
      evaluations of the children, the children’s parents, other family
      members, or others who have access to the children’s home;

            (7) whether there is a history of abusive or assaultive
      conduct by the children’s family or others who have access to the
      children’s home;




                                       109
      (8) whether there is a history of substance abuse by the
children’s family or others who have access to the children’s home;

       (9) whether the perpetrator of the harm to the children is
identified;

     (10) the willingness and ability of the children’s family to
seek out, accept, and complete counseling services and to
cooperate with and facilitate an appropriate agency’s close
supervision;

      (11) the willingness and ability of the children’s family to
effect positive environmental and personal changes within a
reasonable period of time;

      (12) whether the children’s family demonstrates adequate
parenting skills, including providing the children under the family’s
care with:

            (A) minimally adequate health and nutritional care;

            (B) care, nurturance, and appropriate discipline
      consistent with the children’s physical and psychological
      development;

            (C) guidance and supervision consistent with the
      children’s safety;

            (D) a safe physical home environment;

           (E) protection from repeated exposure to violence even
      though the violence may not be directed at the children; and

           (F) an understanding of the children’s needs and
      capabilities; and

      (13) whether an adequate social support system consisting
of an extended family and friends is available to the children.



                                110
Id. § 263.307(b); R.R., 209 S.W.3d at 116.

      Other, nonexclusive factors that the trier of fact in a termination case

may use in determining the best interest of the children include (A) the desires

of the children, (B) the emotional and physical needs of the children now and

in the future, (C) the emotional and physical danger to the children now and in

the future, (D) the parental abilities of the individuals seeking custody, (E) the

programs available to assist these individuals to promote the best interest of the

children, (F) the plans for the children by these individuals or by the agency

seeking custody, (G) the stability of the home or proposed placement, (H) the

acts or omissions of the parent which may indicate that the existing

parent-child relationship is not a proper one, and (I) any excuse for the acts or

omissions of the parent. Holley, 544 S.W.2d at 371–72.

      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.




                                      111
      B.       Evidence Supporting Best Interest Finding

      In addition to the facts detailed above, the record contains other facts

supporting the factors listed above, with the exception of the children’s wishes

because they did not testify. The children were three and four at the time of

the trial and were vulnerable, according to Groomer. They had been placed

outside Father’s home twice. The foster parents reported that after visits with

Father, the children had nightmares, and their behavior reverted to being more

infant-like.   The children also exhibited developmental delays.       Father had

trouble being flexible and expressed that he did not know how to discipline the

children without spanking them. Father’s ability to provide nutritious meals for

the children was questioned, and Father had no other family in the area to help

him raise his children. As mentioned above, evidence exists that the children

demonstrated physical and mental improvement while they were in foster care;

their language skills, social skills, and physical health improved. Thus, the plan,

as stated in the record, was for Greg’s family to adopt the children.

      Viewing the evidence in the light most favorable to the termination

judgment, we hold that the evidence is legally sufficient to support the trial

court’s best interest finding.    See Horvatich v. Tex. Dep’t of Protective &

Regulatory Servs., 78 S.W.3d 594, 601, 604 (Tex. App.—Austin 2002, no

pet.) (holding evidence legally sufficient to support best interest finding but

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factually insufficient to support best interest finding); see also In re S.G.S., 130

S.W.3d 223, 240–41 (Tex. App.—Beaumont 2004, no pet.) (holding evidence

legally sufficient to support trial court’s best interest finding). We therefore

overrule the portion of Father’s fourth issue challenging the legal sufficiency of

the evidence.

V. D UE P ROCESS R IGHTS W ERE N OT V IOLATED B Y D ENIAL OF E XPERT W ITNESS F EES

      As mentioned above, in an attempt to prove his innocence regarding

slapping A.B., Father took a polygraph exam on March 26, 2009. After making

some pre-test statements, the polygraph examiner asked Father whether he had

put any bruises on A.B.’s face, whether he had hit A.B. putting a bruise on his

face, and whether Father had caused A.B.’s face to hit anything bruising him;

Father answered “no” to each of the three questions. The evaluation of the

polygraph results failed to reveal criteria indicative of deception to the relevant

questions. Father attempted to introduce the polygraph results at trial, and the

trial court excluded the polygraph results and any discussion regarding the

polygraph exam. 73



      73
        … We note, however, that the trial court did not require Burdick’s final
report that was admitted into evidence to be redacted, and it contains the
following with regard to the polygraph exam that Father took:

      In March, [Father] spent $500 to have a polygraph exam by
      Richard Wood. I encouraged [Father] to spend that money more

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      In his first issue, Father argues that the trial court violated his due process

rights by denying him access to expert witness fees.           Specifically, Father

argues that the trial court erred by denying his request for expert witness fees

so that he could pay an expert to lay the predicate for introducing polygraph

exam results into evidence. Father acknowledges that this court has previously

ruled that due process is not denied by the refusal to provide expert witness

fees in termination cases, see J.T.G., 121 S.W.3d at 130, and that he has

found no Texas case applying the criminal due process right to an expert to

parental rights termination cases. Because we also find no case law applying

the criminal due process right to parental rights termination cases, we overrule

this portion of Father’s first issue.

      Father also argues in his first issue in his brief and in his oral argument

that he should have been allowed broad discretion (i.e., introducing results from




      wisely for the betterment of his children. He stated he was going
      to prove that he did not hit his son. I also told him that the
      polygraph was inadmissible in court. He has spent time assuring
      this counselor that he pl[ed] guilty to Injury to a Child because he
      was told he had no choice. He sees this as another form of
      victimization by the courts and CPS. His intent is to take the
      poly[graph] results back to the Judge that gave him probation and
      prove he did not injure his son [in an attempt to] get the conviction
      overturned.

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the polygraph exam that he took) in challenging the State’s caseworkers’ biases

and prejudices.

      Generally, the admission and exclusion of evidence is committed to the

sound discretion of the trial court. See Owens-Corning Fiberglass Corp. v.

Malone, 972 S.W.2d 35, 43 (Tex. 1998). To determine whether a trial court

abused its discretion, we must decide whether the trial court acted without

reference to any guiding rules or principles; in other words, we must decide

whether the act was arbitrary or unreasonable. Low v. Henry, 221 S.W.3d

609, 614 (Tex. 2007); Cire v. Cummings, 134 S.W.3d 835, 838–39 (Tex.

2004).

      Although Father argues that he should have been able to ask whether the

CPS caseworkers considered the polygraph exam in deciding to recommend the

termination of his parental rights, the record reveals that he did not attempt to

do this at trial.   Instead, he attempted to discuss the results during his

testimony, and the trial court excluded the polygraph results and the discussion

regarding the polygraph exam. The trial court did not have the opportunity to

rule on the specific issue that Father raises here because this issue was not

before it. See Banda v. Garcia, 955 S.W.2d 270, 272 (Tex. 1997) (stating that

the complaint on appeal must be the same as that presented in the trial court).

Therefore, on the record before us, we cannot say that the trial court abused

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its discretion by not allowing Father to cross-examine the CPS caseworkers on

whether they considered the polygraph examination results in making their

decision to recommend terminating his parental rights because Father never

attempted to question the caseworkers on that issue at trial. See id. (holding

that appellate court cannot reverse based on a complaint not raised in the trial

court); see generally Tennard v. State, 802 S.W.2d 678, 683 (Tex. Crim. App.

1990) (holding that the existence and results of polygraph examinations are

inadmissible for all purposes on proper objection), cert. denied, 501 U.S. 1259

(1991). We overrule the remainder of Father’s first issue.

                                VI. C ONCLUSION

      Having determined that the evidence is factually insufficient to support

the trial court’s findings under family code section 161.001(1)(D) and (E), we

reverse the trial court’s judgment and remand for a new trial.




                                           SUE WALKER
                                           JUSTICE

PANEL: WALKER and MCCOY, JJ.; and DIXON W. HOLMAN (Senior Justice,
Retired, Sitting by Assignment).

DELIVERED: July 29, 2010




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