                                   NUMBER 13-10-00100-CV

                                   COURT OF APPEALS

                       THIRTEENTH DISTRICT OF TEXAS

                          CORPUS CHRISTI - EDINBURG
____________________________________________________________

         IN THE INTEREST OF E.S. AND A.G., CHILDREN
____________________________________________________________

          On appeal from the County Court at Law No. 5
                   of Nueces County, Texas.
____________________________________________________________

                                MEMORANDUM OPINION
      Before Chief Justice Valdez and Justices Yañez and Rodriguez
                 Memorandum Opinion by Justice Yañez
        Appellant, V.S., appeals the termination of her parental rights to her two children,

E.S. and A.G.1 By three issues, V.S. contends that: (1) the evidence is legally and

factually insufficient to support the trial court's finding that she violated two statutory




        1
           See TEX. R. APP. P. 9.8(b)(2) (providing that in a parental-rights termination case, ―the court
must, in its opinion, use an alias to refer to a minor, and if necessary to protect the minor's identity, to the
minor's parent or other family member‖).
grounds for termination; and (2) the evidence is legally insufficient to support a finding

that termination was in the best interest of the children. We affirm.2

                                            I.      BACKGROUND

        V.S. took E.S., a thirteen-month-old child, to the emergency room with second-

degree burns to her head and face on January 1, 2009. That day, V.S. also gave birth

to A.G. On January 13, 2009, the trial court entered an emergency order naming the

Texas Department of Family and Protective Services (the ―Department‖) temporary sole

managing conservator of the children. E.S. and A.G. were removed and placed in

foster care.

        On February 12, 2009, pursuant to section 263.106 of the family code, the trial

court ordered V.S. to comply with each requirement as set out in the Department‘s

service plan.3 Under the provisions of the plan, V.S was required to complete the

following tasks: (1) attend anger management class; (2) attend all of her visitations with

her children; (3) attend parenting class; (4) obtain stable and safe housing; (5) not to

participate in any criminal activity; (6) obtain an individual psychological evaluation; (7)

obtain employment;4 and (8) demonstrate that she was capable of providing a safe and

stable home environment for the children.

        On January 20, 2010, Jessica Rombs, Nancy Sanders Harper, M.D., Porfirio

Gutierrez, V.S., the children‘s foster father,5 and Rosalinda Torres testified at a bench


        2
         The trial court also terminated the children‘s father‘s parental rights; however, the father, A.U.G.
does not appeal the trial court‘s order terminating his parental rights to E.S. and A.G.
        3
            See TEX. FAM. CODE ANN. § 263.106 (Vernon 2008).
        4
            Specifically, the service plan required that either A.U.G., V.S., or both obtain employment.
        5
            The children‘s foster father.


                                                       2
trial. After hearing the evidence, the trial court found by clear and convincing evidence

that V.S. had violated sections 161.001(1)(N) and (O) of the family code and that

termination of the parent-child relationship was in the children‘s best interest.6 The trial

court ordered the termination of V.S.‘s parental rights to E.S. and A.G. This appeal

ensued.

                                       II.     STANDARD OF REVIEW

        Before terminating the parent-child relationship, the trial court must find that the

parent committed an act prohibited by section 161.001(1) of the Texas Family Code and

that termination is in the child's best interest.7 Involuntary termination of parental rights

involves fundamental constitutional rights and divests the parent and child of all legal

rights, privileges, duties, and powers normally existing between them, except for the

child's right to inherit from the parent.8              Therefore, termination of the parent-child

relationship must be supported by clear and convincing evidence.9 This intermediate

standard falls between the preponderance of the evidence standard of civil proceedings

and the reasonable doubt standard of criminal proceedings.10                    It is defined as the




        6
            See TEX. FAM. CODE ANN. § 161.001(1)(N), (O) (Vernon Supp. 2010).
        7
         TEX. FAM. CODE ANN. § 161.001; id. § 153.002 (Vernon 2008); In re J.L., 163 S.W.3d 79, 84
(Tex. 2005).
        8
        Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985); see In re D.S.P., 210 S.W.3d 776, 778 (Tex.
App.–Corpus Christi 2006, no pet.).
        9
            In re J.L., 163 S.W.3d at 84; In re D.S.P., 210 S.W.3d at 778.
        10
         In re G.M., 596 S.W.2d 846, 847 (Tex. 1980); In re C.S., 208 S.W.3d 77, 83 (Tex. App.–Fort
Worth 2006 pet. denied); Porter v. Tex. Dep't of Protective & Regulatory Servs., 105 S.W.3d 52, 57 (Tex.
App.–Corpus Christi 2003, no pet.).


                                                       3
"measure or degree of proof that will produce in the mind of the trier of fact a firm belief

or conviction as to the truth of the allegations sought to be established."11

       In reviewing the legal sufficiency of the evidence supporting parental termination,

we must "‘look at all the evidence in the light most favorable to the finding to determine

whether a reasonable trier of fact could have formed a firm belief or conviction that its

finding was true.‘"12 We must assume that the trier of fact, the trial court in this case,

resolved disputed facts in favor of its finding if it was reasonable to do so.13 ―A corollary

to this requirement is that a court should disregard all evidence that a reasonable fact[-

]finder could have disbelieved or found to have been incredible.‖ 14                               However,

―[d]isregarding undisputed facts that do not support the finding could skew the analysis

of whether there is clear and convincing evidence.‖15

       In a factual sufficiency review, "[w]e must determine whether, on the entire

record, a fact-finder could reasonably form a firm conviction or belief that the parent

violated a provision of section 161.001(1) and that the termination of the parent's

parental rights would be in the best interest of the child."16 Under this standard, we

consider whether the

       disputed evidence is such that a reasonable fact[-]finder could not have
       resolved the disputed evidence in favor of its finding. If, in light of the
       entire record, the disputed evidence that a reasonable fact[-]finder could
       11
            TEX. FAM. CODE ANN. § 101.007 (Vernon 2008); see In re C.H., 89 S.W.3d 17, 25 (Tex. 2002).
       12
            In re J.L., 163 S.W.3d at 85 (quoting In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002)).
       13
            Id.
       14
            Id.
       15
            Id.
       16
          In re M.C.T., 250 S.W.3d 161, 168 (Tex. App.–Fort Worth 2008, no pet.) (citing In re C.H., 89
S.W.3d at 28).


                                                      4
       not have credited in favor of the finding is so significant that a fact[-]finder
       could not reasonably have formed a firm belief or conviction, then the
       evidence is factually insufficient.[17]

                                            III.    THE EVIDENCE

       Rombs, a social worker with Driscoll Children‘s Hospital, testified that due to

E.S.‘s severe burns, she completed a psychological assessment of V.S. on January 1,

2009.18 The purpose of the psychological assessment was to rule out or to determine if

there were any ―concerns‖ of abuse or neglect. V.S. told Rombs that E.S. was in her

care when she was injured and that A.U.G. wished to remain anonymous.19

       According to Rombs, V.S. claimed that E.S. was standing in the bathtub when

E.S. turned on the hot water and burned herself. Rombs was concerned that V.S.‘s

explanation of what happened was inconsistent with E.S.‘s injuries because all of the

injuries were to the ―upper extremities;‖ and based on V.S.‘s story, ―there should have

been burns to the feet, splashes to the leg or splashes to the bottom part of her torso,

which there were not any injuries of that sort.‖ Rombs was also concerned that V.S. did

not have the ability to keep E.S. safe because E.S. ―lacked‖ medical care. According to

Rombs, V.S. told her that the incident happened between 2:00 and 3:00 a.m. on

December 31, 2008—twenty hours before V.S. brought E.S. to the emergency room.

V.S. informed Rombs that she did not seek immediate medical attention because she

did not notice any redness or injury to E.S.20

       17
            In re J.F.C., 96 S.W.3d at 266.
       18
           On cross-examination, Rombs stated that V.S. brought E.S. to the emergency room after
midnight, and she interviewed V.S. at approximately 2:00 a.m. V.S. then gave birth to A.G.
       19
          On cross-examination, Rombs stated that V.S. said that she and E.S.‘s father ―were no longer
together but they still talked.‖ Rombs acquired A.U.G.‘s information from the police department.
       20
            We note that V.S. is not a nurse, physician, or trained to treat E.S.‘s injuries.


                                                        5
      Although Rombs did not examine E.S., she did review photographs of E.S.‘s

injuries. Rombs stated that E.S. had severe burns to her face and scalp, E.S.‘s hair

was matted to her scalp, and her eyes were swollen shut. Rombs testified that she

believed a reasonable person would have known that E.S. was in severe need of

medical attention. After conducting her assessment, and because of her concerns that

V.S.‘s story was inconsistent with E.S.‘s injuries, Rombs contacted the Department and

the Corpus Christi Police Department.21

      On cross-examination, Rombs stated that she conferred with Dr. Harper, Sandra

Prado, the ―State nurse,‖ Dr. O‘Daniel, and Julie, the emergency room nurse.22 Rombs

believed that the consensus opinion was that E.S. had been submerged in hot water.

Rombs testified that in addition to the burns, E.S. had a bite mark on her ―bottom.‖

      Dr. Harper is a child abuse pediatrician and the director of the ―CARE Team‖ at

Driscoll Children‘s Hospital; her duties include managing the CARE Team and providing

consultations to patients when there are concerns of neglect, failure to thrive, and

physical abuse such as fractures, burns, brain injuries, sexual abuse, sexual assault,

and medical child abuse.           Dr. Harper explained that consultations are detailed and

involve reviewing the patient‘s history, physical examination, medical history, medical

records, tests that have been performed, and the child‘s developmental abilities;

speaking with physicians that have cared for the child; and compiling a comprehensive

evaluation.




      21
           On cross-examination, Rombs testified that E.S. was transferred to a burn unit in San Antonio.
      22
           The record does not contain Julie‘s last name or Dr. O‘Daniel‘s first name.


                                                     6
       Dr. Harper stated that she was asked to consult on E.S.‘s case. Dr. Harper

testified that E.S. had extensive second-degree burns that covered eighteen percent of

her body, including her entire face, the back of her head, and the back of her neck onto

her shoulder. E.S. also had some ―minimal first-degree appearing burn‖ going down her

back. E.S. also had an adult human bite mark on her ―butt.‖ According to Dr. Harper,

E.S. was immediately transferred to the burn unit in San Antonio because when a child

suffers burns of over ten percent of his or her body, the general rule is the child is

transferred to a burn unit.

       Dr. Harper testified that she was concerned about a few things after she

reviewed the hospital records. Dr. Harper stated that she was concerned that E.S.

sustained the injury twenty-one to twenty-two hours before V.S. brought E.S. to the

hospital.   Dr. Harper was also concerned that E.S‘s heart rate was 208 when she

arrived at the hospital. Dr. Harper explained that a heart rate of 208 is abnormal and

that such a heart rate indicates that the child needs a quick assessment and is

potentially dehydrated, or going into shock. Dr. Harper was also concerned because:

       . . . when you looked at the exam on her body she had very significant
       second-degree burns that covered, you know, her entire face, sparing the
       chin, the lower lip, sparing just probably a little bit of the bottom of her
       earlobes. It extended all the way through her scalp, the back of her head.
       It was very clearly demarcated, meaning she had very clear marks where
       the second-degree burn ended, along her jaw, and along the back of the
       hairline.

              ....

       She also had, of course, some areas of second-degree burn on the back
       of her neck if I can remember. The first-degree area, though, was
       interesting it was on her back but was kind of diffused. It wasn‘t what we
       expected with water flowing across a body. So, when water flows across
       the body that‘s hot enough to burn, it makes these sort of flow pyramids
       and flow triangles, and that was not present.


                                            7
       So just even looking at her injuries I was very concerned this was not sort
       of an accidental injury as had been reported to the ER staff.

       The trial court then admitted photographs taken at the hospital on January 1,

2009, at the hospital of E.S.‘s injuries. Dr. Harper described the injuries as follows:

       First, of course, it‘s important to point out that she was just given morphine
       in case people are wondering, so she‘s sleeping after she had been given
       some pain medication.

       Her eyes, however, were swollen shut to the degree that the doctors
       actually couldn‘t open them and examine them in the emergency room.
       And they actually had some difficulties when the ophthalmologist
       examined them in San Antonio.

       If you look at her face here you can see what I was referencing earlier.
       These are second-degree burns. And the way that you can tell the
       difference is a first-degree burn appears like a sunburn so the skin
       appears pink.

       When you start developing a second-degree burn you get blistering and
       you get the sloughing or peeling off of that superficial layer of skin. So a
       second-degree burn burns the skin and starts going down into the sort of
       the fatty layer. Depending on how deep it is, it damages things like sweat
       glands and hair follicles along the way.

              ....

       This is a second-degree burn. It spares her lower lip, meaning, it‘s not
       involving her lower lip and her chin but it covers the rest of her face, her
       eyelids, eyebrows, forehead, up into her hairline. You can see her right
       ear here. It extends across her right ear, sparing her earlobe at the
       bottom and sparing her neck.

       Dr. Harper stated that E.S. did not have any burns on her arms, chest, legs, and

fingers, which concerned her because ―in general when children accidently turn on hot

water and burn themselves accidentally, generally, there are things such as splash

marks or areas involving arms and legs from either the water coming out of the faucet or

their hands turning faucets on. . . .‖     Dr. Harper also observed that E.S.‘s injuries



                                             8
showed that she attempted to protect herself by bringing her left ear down to her

shoulder.

         Dr. Harper stated that a hot tub is usually set to 104 to 108 degrees and infant

bathtubs are usually set to 99-100 degrees. According to Dr. Harper, a person senses

pain from heat at around 108-112 degrees; therefore, if a water heater is set at 120

degrees, a child would be feeling the pain and would be crying and screaming. Dr.

Harper opined that for a child to sustain the type of burns E.S. suffered, it would have

taken ten minutes of continuous exposure to water heated to 120 degrees. However,

―[a]s the temperature goes up, the burn severity increases, so you can more likely get a

worse burn and the time that it takes for it to occur shortens.‖ Dr. Harper stated that in

water heated to 130 degrees, it would take only a minute for someone to sustain

second-degree burns at 140 degrees, it would take approximately half a minute or

seconds to get a second degree burn, and in 150-degree water, a third-degree burn

would be almost instantaneous. Dr. Harper testified that she would not expect burns

such as those suffered by E.S. to have been caused by water heated to 120 degrees

because V.S. stated she heard E.S. scream and she had enough time to then rescue

E.S. from the hot water.23 In that case, Dr. Harper would have expected first-degree

burns.

         When asked what conclusions she drew from the fact that the burns to E.S.‘s

back were not as severe as those to her head, Dr. Harper replied:

         Generally, we look for—when children have an accidental, you know,
         burns, from water we look for flow patterns, you know, going across the


         23
          This is the same explanation given by A.U.G. after he admitted that E.S. was in his care when
she was injured.


                                                  9
      body. And you might expect to see flow down the back or flow on the
      chest.

      But then you would usually see where if it [sic] hot enough to leave such a
      clear line on the back of her neck, that second-degree burn should
      continue down her back if it was flowing from the water flowing across her
      head. So it ended at the back of her neck and then there was no flow
      triangle.

      So generally when we look at burns, we look at the pattern and generally
      we have an accidental flow burn across the back, kind of gives you sort of
      a very sort of discrete outline. It‘s symmetric, it‘s—the depth of it is the
      same and it shows you where the burn kind of just sort of flowed down the
      back.

      In this case . . . it‘s just more diffused. My concern was, was there
      clothing, was there a towel, did hot water drip down into a towel where
      there would have been some protection from the heat and give you more
      of a diffused pattern on the back.

      Dr. Harper stated that E.S. suffered from pain and the development of

dehydration and shock, which were life-threatening and could have been easily

reversed. According to Dr. Harper, medication such as Children‘s Tylenol probably

would not have effectively treated E.S.‘s pain.

      According to Dr. Harper, V.S. reported that while E.S. was in her care, she left

E.S. in an empty bath tub to get a towel; she then heard E.S. scream, came back into

the room, and found E.S. standing up while the water was running. Dr. Harper stated

that the explanation given by V.S. did not explain the injuries sustained by E.S. Dr.

Harper opined that if E.S. had been sitting down or standing up in water that was hot

enough to cause the types of burns she sustained, there would have been splash marks

on the hands, feet, and other areas of the body. Therefore, because there were no

splash marks on E.S. or burns to her feet and hands, ―the pattern didn‘t fit her getting a




                                            10
flow burn that she caused herself.‖ Dr. Harper stated that she would not expect injuries

to be limited to the face, neck, and back if E.S. had turned the faucet on herself.

       When asked if she had an opinion on the manner in which a child would receive

burns such as those sustained by E.S., Dr. Harper responded:

       My biggest concern looking at the pattern and how there was the sparing
       just on her chin and how her ear was tucked against her shoulder, this is
       what we see in those rare cases when a child is actually immersed head
       first into scalding water. With her arms being spared, perhaps there was a
       towel wrapped around her upper body that had prevented an arm or hand
       from having contact, but it looks as though her head and her face were
       just dipped into scalding water.

On cross-examination, Dr. Harper stated:

       My concern is that the head was immersed. Whether it was immersed
       with the running water, with the assistance of a caregiver, adult, or
       immersed into standing—whether, sink, bucket, I don‘t know. But this was
       what we see when somebody‘s had their head immersed, not from just
       turning on the water and accidently getting underneath it.

When asked, ―Would it be like somebody grabbing the child and physically putting the

child‘s head into water,‖ Dr. Harper replied, ―That is my concern, yes, sir.‖

       E.S. also had superficial burns across her corneas and underneath her eyelids,

meaning that her eyes were either open or not completely sealed shut when she was in

the scalding water. Dr. Harper concluded that E.S.‘s injuries were non-accidental. On

cross-examination, Dr. Harper stated that in the medical records from San Antonio, it

was documented that E.S.‘s injuries were ―‗suspicious of NAT,‘ which stands for non

accidental trauma.‖ Dr. Harper stated that she was extremely concerned that ―whoever

caused these injuries [to E.S.] is a real risk to her.‖ On cross-examination, Dr. Harper

testified that the type of injuries E.S. suffered were ―graphic and disturbing‖ and were

not the type ―that a parent would have said, oh, this is okay, I can just watch it.‖



                                             11
        Gutierrez, a special investigator with the Department, testified that he was

assigned to the case because of ―the seriousness of the injuries that were inflicted on

[E.S.].‖ According to Gutierrez, the Department removed E.S. and A.G. because there

were inconsistencies in V.S‘s and A.U.G.‘s stories to the Department regarding how

E.S. was injured. Gutierrez stated that the Department determined that E.S. and A.U.G.

were lying and that the parents were not capable of protecting the children because the

injuries were so severe. Gutierrez testified that A.U.G. had initially said that the child

had been injured while in V.S.‘s care; however, once the police department became

involved, ―the stories changed‖ and it was determined that E.S. was with A.U.G. when

she was injured. A.U.G. stated that he left E.S. in the bath tub to get a towel and that

E.S. turned on the hot water and that she scalded herself.                  On cross-examination,

Gutierrez clarified that V.S. also claimed that E.S. was in her care when she was injured

but later admitted that E.S. had been in A.U.G.‘s care.

      Gutierrez was assigned to go to A.U.G.‘s home to take pictures of the bathroom

for the investigation. Those pictures were given to Dr. Harper. Gutierrez stated that he

did not ―feel safe‖ at A.U.G.‘s house because people that Gutierrez recognized as being

gang members arrived at the house.24 According to Gutierrez, A.U.G. had a lengthy

criminal history, including convictions for possession of marihuana, possession or use of

an unlawful criminal instrument, burglary of a vehicle, assault causing bodily injury,




      24
           Before working for the Department, Gutierrez worked in law enforcement.


                                                  12
evading arrest, and resisting arrest.25 Gutierrez stated that A.U.G. had been indicted by

a grand jury for the offense of injury to a child.26

       On cross-examination, Gutierrez read his summary of A.U.G.‘s version of how

E.S. was injured. Gutierrez stated:

       [A.U.G.] said that on December 31 he took [E.S.] a bath around 3:00 or
       4:00 in the morning but—and this is in quotes, did not really know, end
       quote, the time. He said that after the bath he left [E.S.] in the tub but said
       that there was no water in the tub and said that he turned the water off.

       [A.U.G.] said that he went to a closet to get [E.S.] a shirt to dry her off
       because there were no towels. He said that he heard [E.S.] scream and
       went to the tub to find [E.S.] standing in the tub crying.

       [A.U.G.] said that the hot water was running and he—and this is in quotes,
       he knew that she got burned, end quote. He said he got her out of the tub
       and said she was shaking—and that‘s in quotes, when he dried her off but
       said that she was not crying anymore.

       [A.U.G.] said that he turned off the hot water and did not get burned but
       he, quote, saw the steam, end quote coming from the faucet . . . .

                  ....

       [A.U.G.] said he saw that [E.S.] was red—and that‘s in quotes . . . .

       According to Gutierrez, A.U.G. stated that he then gave E.S. some Children‘s

Tylenol, and the redness went away; E.S. felt better because she was ―running around.‖

A.U.G. stated that he put E.S. to sleep, and when he woke up at around 4:00 p.m., he

noticed that E.S.‘s face was swollen. At approximately 11:00 p.m., A.U.G. and his

grandmother picked up V.S. and took E.S. to the emergency room.                        After A.U.G.

allegedly told V.S. that he ―had warrants,‖ V.S. told A.U.G. that she would say that E.S.


       25
             A.U.G.‘s criminal record was admitted into evidence. The record shows that A.U.G. pleaded
―guilty‖ or ―nolo contendere‖ to each offense.
       26
            The trial court admitted a copy of the indictment into evidence.


                                                      13
was with her when she was burned. Gutierrez stated that A.U.G. said that he left the

hospital at approximately 4:00 a.m. and went home and got high because he was upset.

A.U.G. claimed that E.S. was burned accidently and that he did not cause the injury.

When shown pictures of E.S.‘s injuries, A.U.G. said that she did not have any blisters

the previous night. However, A.U.G. did admit that E.S.‘s injuries ―got bad‖ because he

waited to get her medical attention. A.U.G. stated that he had not noticed the bruise on

E.S.‘s bottom and that it was probably caused by a young child who visits his home.

        V.S. testified that she is E.S.‘s and A.G.‘s biological mother. V.S. stated that she

did not feel safe at A.U.G.‘s house, unless A.U.G. was present. However, V.S. admitted

that on December 20, 2009, she moved out of A.U.G.‘s house and left E.S. to live alone

with A.U.G. until the day she was burned. V.S. explained that A.U.G. was her ―only

babysitter.‖ V.S. acknowledged that A.U.G. was ―still on drugs‖ when she left E.S. in his

care.   On cross-examination, V.S. stated that when A.U.G. called her about E.S.‘s

injuries, she had not seen E.S. since Christmas Day—approximately ten days earlier.

        V.S. stated that A.U.G. told her that he left E.S. in the bath tub with the water off,

then he heard E.S. scream. When A.U.G. returned, the hot water was on and E.S. had

been burned. V.S. testified that after seeing the pictures and hearing A.U.G.‘s story

several times, she no longer believed A.U.G.‘s story about how E.S. was burned. V.S.

claimed that A.U.G. told her that he waited to take E.S. to the hospital because ―he was

scared and . . . he didn‘t know what to do.‖ On cross-examination, V.S. testified that

she was in labor with A.G. when A.U.G. called her about E.S.‘s injuries.

        According to V.S., on January 2, 2009, prior to the children‘s removal and

placement in foster care, she agreed to place E.S. and A.G. with her aunt and her



                                              14
uncle.    The children‘s aunt and uncle cared for the children for approximately two

weeks. V.S. admitted that during those two weeks, she did not visit A.G., who was a

newborn, or E.S., who was severely injured.         V.S. stated that she did not have

transportation to make the visitation with her children and that she did not understand

the bus schedules. V.S. stated that the children‘s aunt and uncle volunteered to give

her a ride, but claimed that they refused to go to A.U.G.‘s house, where V.S. was living,

because ―CPS said that [A.U.G.] wasn‘t allowed—that [the children‘s aunt and uncle]

weren‘t allowed over there.‖

         V.S. admitted that she lied when she told Rombs that when E.S. was injured,

E.S. was in her care. When asked why she had lied, V.S. replied:

         Because I didn‘t think CPS was going to get involved and I thought it was
         just take her to the hospital and see what they could do for her, if they
         could make her better, you know give her medicine to make it go away,
         and that was it. I didn‘t think CPS was going to come in, the cops, all of
         this. I didn‘t think it was going to happen.

The Department then asked V.S. why CPS‘s involvement made a difference; V.S. said,

―I don‘t know, ma‘am.‖ V.S. insisted that she did tell hospital staff what had happened

to E.S., but that she had simply changed one detail—who was caring for E.S. when she

was injured. The Department asked why she did not say that the incident occurred at

A.U.G.‘s house; V.S. replied, ―I don‘t know, ma‘am.‖

         V.S. admitted that when she was interviewed by CPS on January 2, 2009, she

continued to claim that E.S. was in her care when she was injured. V.S. stated that she

did not know why she continued to lie to CPS but claimed that she was not ―covering

up‖ for A.U.G. or protecting him. V.S. agreed that she was willing to take responsibility

for what happened to E.S. rather than to ―implicate‖ A.U.G. V.S. agreed that she told a



                                            15
detective that she lied about who was caring for E.S. because she ―felt bad‖ and she

wanted to ―take the blame.‖         V.S. testified that on January 5, 2009, she told the

detective that E.S. was in ―Ms. Jonas Garcia[‘s]‖ care when she was burned.

       After giving birth to A.G., V.S. moved back into A.U.G.‘s house, and according to

V.S., A.U.G. physically abused her. On one occasion, A.U.G. hit V.S. with his fist on the

side of her face, causing V.S. to sustain a black, swollen eye. V.S. claimed that she

moved in with A.U.G. because there was nowhere else for her to go.                   V.S.

acknowledged that at the time of the trial, she was four months pregnant with A.U.G.‘s

child—their third child together.

       V.S. testified that she pleaded ―guilty‖ to ―hindering apprehension‖ of A.U.G. on

November 30, 2009, and confirmed that she was on probation for that offense at the

time of trial. On cross-examination, V.S. explained that on August 12, 2009, the police

attempted to arrest A.U.G. for injuring E.S., and although V.S. knew that A.U.G. was in

the house, she told the police that she did not know A.U.G.‘s whereabouts and that she

had not seen him. The police found A.U.G. ―hiding inside the couch.‖ V.S. admitted

that she was protecting A.U.G. from being arrested that day.

       According to V.S., A.U.G. began beating her again, and she wanted to remove

herself from that situation. Therefore, V.S. testified that two months prior to the trial,

after she was released from jail, she moved out of A.U.G.‘s house and into A.U.G.‘s

mother‘s house. V.S. stated, ―And from his mom‘s I went to go visit [A.U.G.‘s] Aunt

Ruby and I ended up staying the night there. [A.U.G.] went there . . . early Monday

morning to go pick me up whether I wanted to leave or not, and beat me and kept me

there for like a week, you know. . . .‖ V.S. left A.U.G.‘s house again on approximately



                                             16
November 17, 2009.27 V.S. stated that she had not contacted or spoken with A.U.G.

since that day.

        V.S. acknowledged that the Department‘s caseworker had clearly explained to

her the service plan and the steps she needed to take in order to get the children back

and that she had been present for all of the court hearings except on one occasion.

V.S. stated that she had heard the trial court and her caseworkers discuss the

requirements of the service plan and what she needed to accomplish before regaining

custody of the children. V.S. testified that after a year, she had not completed the

parenting and anger management classes. V.S. claimed, however, that she had almost

completed the classes.28 V.S. stated that she had not completed the psychological

examination but claimed she was unable to get an appointment with the doctor because

her paperwork was never forwarded to him. V.S. did not recall when she attempted to

set up an appointment with the doctor but believed that she had contacted his office

approximately one month before the trial.

        V.S. acknowledged that she had missed approximately half of her visits with E.S.

and A.G. during the past year.29 V.S. admitted that she did not visit the children at all

during the months of June 2009 through August 2009. V.S.‘s visitation was cancelled in

July because she was not attending, and the visitation had to be reinstated in August.

V.S. stated that she was not consistent with her visitation. V.S. explained that she

        27
          The trial was held on January 20, 2010. Therefore, at the time of the trial, V.S. had not lived
with A.U.G. for approximately two months.
        28
          On cross-examination, V.S. said that she started attending parenting and anger management
classes one month before the trial. V.S. stated that she attended six parenting classes and five anger
management classes.
        29
           On cross-examination, V.S. stated that she did not send any cards or letters to the children and
that she did not get them any Christmas presents because she did not have any money.


                                                    17
missed her visits because she had overslept.30 V.S. stated that she understood that her

children had waited for her and that she had failed to attend those visits. On cross-

examination, V.S. testified that since November 2009, she had attended the visitations

with her children.31

        V.S. acknowledged that she did not have a job and that she had not been

seeking employment until she left A.U.G.‘s house in November 2009—two months prior

to the trial. V.S. admitted that she had known for twelve months that she was required

to get a job so that the children would be returned to her. On cross-examination, V.S.

stated that A.U.G. did not have a job and that to her knowledge, the only job that he had

was when he was sixteen years old.32

        V.S. claimed that she is on a waiting list for housing and that she would be

getting an apartment in approximately twelve to eighteen months.                             On cross-

examination, V.S. stated that if the children were returned to her, she planned on going

back to school.33 When asked what her plans were if the children were returned, V.S.

said:

        Doing anything I can. I‘d get a job to support them. Again, with my
        apartment that I‘d get, I‘d get anything, you know to keep them safe. You
        know the little plastic things that go in the plugs, those gates that you put
        in the stairs so, you know, they don‘t climb up or down or so they don‘t
        hurt themselves, tub stoppers. I‘d do anything and everything to better
        myself for them. I‘d go back to school, settle on what I want to do with my
        life as career-wise. . . .

        30
          On cross-examination, V.S. clarified that the visits were scheduled for 5:00 or 6:00 p.m. V.S.
explained that she took naps during the day and that is why she overslept.
        31
           V.S. stated that she missed two visits due to illness; however, V.S. admitted that on one
occasion, she did not notify the caseworker that she was going to miss the visit.
        32
             At the time of the trial, A.U.G. was twenty-one.
        33
             V.S. testified that she quit school when she was eighteen and in ninth grade.


                                                       18
V.S. stated that she would request supervised visits if A.U.G. wanted to see the

children.

       V.S. stated that during the past year, she had resided with A.U.G. and denied

telling her caseworker that she was living with her mother. V.S. claimed that she told

her caseworker, Torres, that she was living with a friend, Connie Gallardo.         The

Department then asked, ―But you never told [Torres] that you were residing in your

mother‘s home,‖ and V.S. replied, ―Staying with my mom, but not in my mom‘s home.

My mom doesn‘t have a home of her own.‖ The following exchange then occurred:

       [The Department]: So [your mother] also lives with this Connie?

       [V.S.]:            No, she doesn‘t, not anymore.

       [The Department]: Where were you living, [V.S.], when you were in the
                         same home with your mother. Whose home was
                         that?

       [V.S.]:            That was when I was living in the same home as my
                          mother I lived there a few times. The first time when I
                          left him, when all of this happened with [E.S.], was in
                          my mom‘s own home.

       [The Department]: But you just said your mom doesn‘t have a home?

       [V.S.]:            That was before she got kicked out. She—recently
                          she got arrested for some stuff that had happened
                          and then she gotten [sic] kicked out and now she
                          doesn‘t have her own home. The second time that I
                          had left [A.U.G.] I had I moved in to—I had learned
                          that my mom didn‘t have her place and moved in with
                          her across the street from that home, which was
                          [Gallardo‘s] home. And that only lasted for about two
                          weeks.




                                          19
On cross-examination, V.S. stated that she was not sure who paid the rent for the

house where she was living and believed that either Gallardo or Gallardo‘s son, Luis,

who received disability checks, paid the rent.

        Torres, a caseworker with the Department, testified that in June 2009, she was

assigned to this case. Torres verified that the Department had been the temporary

managing conservator of E.S. and A.G. for more than nine months. Torres stated that

the trial court had ordered V.S. and A.U.G. to complete the tasks set out in the family

service plan to regain custody of the children. Torres said that the service plan had

been explained to V.S. on ―numerous occasions‖ and that V.S. indicated that she

understood the service plan.34            Torres read a portion of the ―Family Service Plan

Evaluation,‖ which stated that as of May 30, 2009,

        [V.S.] and [A.U.G.] ha[d] not demonstrated any progress in caregiver
        capability. They continue[d] to miss half of their visitation, have not started
        any services or been in any contact with the Department. . . . [V.S. and
        A.U.G.] have not complied with any services for their children. They have
        shown no attempt to improve the quality of care that they can provide for
        [E.S. and A.G.].

        Torres stated that V.S. had not complied with the trial court‘s order to complete

the tasks in the family service plan, including the parenting classes, the anger

management classes, and the psychological evaluation.35                         On cross-examination,

Torres explained that the Department‘s goal is for the parent to complete the services in

twelve months, and that V.S. has had twelve months to complete the service plan.


        34
          On cross-examination, Torres stated, ―Initially when I first got the case and I first met with her,
and I thoroughly explained everything to her and explained how easy it could be to just participate and
attend services just to get her children. I reminded her that they were her children and I did that on
numerous occasions. Of course, I wanted to reunify.‖
        35
          On cross-examination, Torres clarified that since November 2009, V.S. had attended six of
twelve parenting and anger management classes.


                                                    20
Torres stated that V.S. was incorrect when she testified that the psychological

evaluation had not been performed because the doctor had not received the paperwork.

Torres explained that the doctor had written a letter documenting that two appointments

had been made, but that V.S. had missed both appointments.36

       When asked if the Department made reasonable efforts to assist V.S., Torres

replied, ―We have—we have arranged services; we have assisted in transportation; we

have transported the children; and we have time and time again, especially with [V.S.]

explained the services; gone over the service plan; talked to the service providers.‖

Torres stated that because V.S. had missed so many visits with the children, the visits

were moved to the Department‘s office so that the Department could transport the

children to and from the visits.37 According to Torres, V.S. attended thirty out of sixty-

four scheduled visits with the children.              On cross-examination, Torres stated that

because V.S. had missed so many visits, V.S. was required to call and confirm the

visits; if V.S. failed to call to confirm the visit, it was cancelled.

       Torres testified that V.S. had not demonstrated an ability to provide a safe

environment for the children because she has not had a stable home, gained

employment, or been able to provide for them financially. Torres believed that V.S. had

not demonstrated that she is able to protect the children from A.U.G. because V.S.

attempted to protect A.U.G. by lying that E.S. had been in her care when she was




       36
            The dates of those appointments were October 22, 2009 and December 1, 2009.
       37
            Torres stated that the arrangement relieved the foster parents from making unnecessary trips.


                                                    21
injured, ―tried to cover up for him when they were about to arrest him,‖ and when V.S.

would reunite with A.U.G., she would stop her visitation and services.38

       Torres testified that it would be in the children‘s best interest to terminate V.S.‘s

parental rights. Torres explained:

       [E.S. and A.G.] are still very young. If the children were maybe eight, ten,
       12, you know, maybe even five, they‘d be verbal. They‘re not verbal at
       this point so that, yet, they would be vulnerable to not be able to verbalize
       if there was any harm being done to them or if they were in any fear.
       [V.S.] has back and forth or gone time and time again, gone back to
       [A.U.G.] and has then neglected or avoided to do any services or to visit
       with the children at the time.

       So if there‘s no guarantee that she wouldn‘t go back to him and now she‘s
       expecting a third child, so yeah—yes, I do believe it would be in the
       children‘s best interest that we terminate their rights.

       Torres testified that V.S. had not informed her that she was living with a friend,

but that she was ―made aware‖ of V.S.‘s address when she gave her a ride on the

previous day. Torres stated that V.S. told her that she was living with her mother. On

re-direct examination, Torres testified that she was not familiar with the people that

apparently resided with V.S. and that the Department would not place the children in a

home without conducting a home study and criminal background check.

       On cross-examination, Torres testified that even if the injuries to E.S. were ruled

accidental, she would still recommend termination of V.S.‘s parental rights.                Torres

stated:

       Well, I still feel that she is not able to be protective. She‘s still even if, you
       know, it was accidental and she‘s still tried to—she changed the story and
       tried to protect him. She did hide him. And she still on occasion
       continued to go back with him even after the violence and it wasn‘t just the


       38
            According to Torres, when V.S. separated from A.U.G., she would start her services and
visitation again.


                                               22
       black eye, she had bruises all over her arms and so I still feel she wouldn‘t
       be protective.

Torres also stated that the Department was concerned that if A.U.G.‘s parental rights

were terminated without terminating V.S.‘s rights, she would return to him and continue

to allow the children to see A.U.G. Torres believed that based on V.S.‘s past history

with A.U.G., V.S. would return to him.

       According to Torres, the Department‘s goal for the children is permanency and

for the children to be adopted. Torres stated that when the visits with V.S. are over, the

children do not cry. On cross-examination, when asked if in her personal experience,

most children the same ages as E.S. and A.G. become very upset when the parent

leaves the visitation, Torres responded, ―Yes. I‘m not going to say all the time, but a lot

of the time they do cry and reach out for their mom and dad or their parents.‖

                                          IV.    DISCUSSION

       By her first and second issues, V.S. contends that the evidence is legally and

factually insufficient to support the two grounds for termination.39 By her third issue,

V.S. contends that the evidence is legally insufficient to support the trial court‘s finding

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

A.     Section 161.001(1)(O)

       In this case, the trial court found that V.S. had

       failed to comply with the provisions of a court order that specifically
       established the actions necessary for the parent to obtain the return of the
       child[ren] who [have] been in the permanent or temporary managing
       conservatorship of the Department of Family and Protective Services for




       39
            See TEX. FAM. CODE ANN. § 161.001(1)(N), (O).


                                                  23
        not less than nine months as a result of the child[ren‘s] removal from the
        parent under Chapter 262 for the abuse or neglect of the child[ren].[40]

V.S. only challenges that she failed to comply with the provisions of the court‘s order

requiring her to comply with the family service plan. V.S. alleges that ―although she

initially was not completely compliant with her service plan, for the months leading up to

trial she was more than compliant and well on her way to completing them.‖41 However,

at trial, it was undisputed that V.S. had not complied with the trial court‘s order that she

complete the tasks listed in the family service plan.

        The Department developed a family service plan for V.S. to follow in order to

regain custody of her children, and the trial court ordered V.S. to comply with that plan.

Under the provisions of the plan, V.S. was required to obtain an individual psychological

evaluation, which V.S. admitted she had not completed.42 V.S was required to complete

anger management and parenting classes, which she admitted that she had failed to

complete. The family service plan required V.S. to attend all of her visitation with her

children. However, V.S. stated that she had missed many of her visits with her children,

and Torres testified that V.S. had only attended 30 out of 64 scheduled visits with the

children. V.S. was ordered to obtain stable and safe housing. However, at trial, V.S.

was unable to adequately describe her living arrangements and indicated that she had

moved from residence to residence because she did not have any place to go.

        40
           See id. § 161.001(1)(O) (providing that a trial court may terminate a person‘s parental rights
under section 161.001(1)(O), if it finds by clear and convincing evidence that the parent "failed to comply
with the provisions of a court order that specifically established the actions necessary for the parent to
obtain the return of the child who has been in the permanent or temporary managing conservatorship of
the Department of Family and Protective Services for not less than nine months as a result of the child's
removal from the parent under Chapter 262 for the abuse or neglect of the child").
        41
             We note that V.S. does not challenge the other elements of section 161.001(1)(O) in her brief.
        42
             In her brief, V.S. concedes that she did not complete the psychological examination.


                                                      24
Furthermore, the plan required that V.S. not participate in any criminal activity.

However, V.S. pleaded guilty to the criminal offense of hindering apprehension after

choosing to protect A.U.G. from being arrested for allegedly injuring E.S. Under the

terms of the family service plan, either A.U.G., V.S., or both were required to obtain

employment. V.S. testified that neither she nor A.U.G. had a job.

       Finally, V.S. was required to demonstrate that she was capable of providing a

safe and stable home environment for the children. Rombs testified that she did not

believe that V.S. had the ability to keep E.S. safe because of the lack of medical care

provided to E.S. According to Torres, V.S. had not demonstrated an ability to provide a

safe environment for the children because she had not provided a stable home, gained

employment, or been able to provide for the children financially. Furthermore, V.S. has

repeatedly returned to A.U.G. even though he has abused her and has been indicted for

abusing E.S., and V.S. testified that she would request that A.U.G. be granted visitation,

although supervised, with the children.

       After viewing all of the evidence in the light most favorable to the finding, we

conclude that there was legally sufficient evidence for a reasonable trier of fact to form a

firm belief or conviction that V.S. failed to comply with the provisions of a court order

that specifically established the actions necessary for the parent to obtain the return of

the children.43 Furthermore, after examining the entire record, we conclude that the

evidence was factually sufficient to support the trial court's finding that J.C. violated

section 161.001(1)(O) of the family code.44 We overrule V.S.‘s second issue.45


       43
            See In re J.L., 163 S.W.3d at 85.
       44
            See In re M.C.T., 250 S.W.3d at 168.


                                                   25
B.      Best Interest

        By her third issue, V.S. generally asserts that there is ―no evidence to support the

[trial court‘s] finding that termination of the parent-child relationship‖ is in the children‘s

best interest. V.S. argues that she ―tried to comply [with the service plan],‖ she ―was

attending parenting and anger management classes,‖ and she has a good relationship

with her children.

        When considering whether parental termination is in the child's best interest, the

following non-exhaustive list of factors should be considered: (1) the desires of the

child; (2) the emotional and physical needs of the child now and in the future; (3) the

emotional and physical danger to the child now and in the future; (4) the parenting

abilities of the parties seeking custody; (5) the programs available to assist the parties

seeking custody; (6) the plans for the child by the parties seeking custody; (7) the

stability of the home or proposed placement; (8) the acts or omissions committed by the

parent which may indicate that the existing parent-child relationship is not proper; and

(9) any excuse for the acts or omissions committed by the parent. 46 The party seeking




        45
            If, as here, the trial court terminated the parent-child relationship on multiple grounds under
section 161.001(1), we may affirm on any one ground because, in addition to a finding that termination is
in the child's best interest, only one predicate violation under section 161.001(1) is necessary to support
the trial court‘s termination order. See In re A.V., 113 S.W.3d 355, 362 (Tex. 2003) ("Only one predicate
finding under section 161.001(1) is necessary to support a judgment of termination when there is also a
finding that termination is in the child's best interest."); In re E.A.K., 192 S.W.3d 133, 151 (Tex. App.–
Houston [14th Dist.] 2006, pet. denied) ("Because we find that there was legally sufficient evidence to
support one of the predicate findings for termination of [A.U.G.'s] parental rights, we need not address the
sufficiency of the evidence relating to other predicate findings."). Therefore, because we have concluded
that the evidence is legally and factually sufficient to support the trial court's finding that V.S. violated
section 161.001(1)(O), we need not consider V.S‘s first issue contending that the trial court‘s finding that
she violated section 161.001(1)(N) is legally and factually insufficient. See In re A.V., 113 S.W.3d at 362;
In re E.A.K., 192 S.W.3d at 151; see also TEX. FAM. CODE ANN. § 161.001(1)(N),(O).
        46
             Holley v. Adams, 544 S.W.2d 367, 372 (Tex. 1976).


                                                    26
parental termination is not required to prove all nine factors.47 Furthermore, when the

Department or another government agency is the petitioner, subsection 263.307(a) of

the family code provides that "the prompt and permanent placement of the child in a

safe environment is presumed to be in the child's best interest."48 Subsection (b) then

lists thirteen factors the court, the department, or other authorized agencies should

consider in determining whether a parent is "willing and able to provide the child with a

safe environment."49 In our review of the trial court's termination order, we will likewise


        47
            See In re C.H., 89 S.W.3d at 27 (providing that these considerations are not exhaustive "or that
all such considerations must be proved as a condition precedent to parental termination") (emphasis in
original); In re J.R.S., 232 S.W.3d 278, 284 (Tex. App.–Fort Worth 2007, no pet.) ("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.").
        48
             TEX. FAM. CODE ANN. § 263.307(a) (Vernon 2008).
        49
             Id. § 263.307(b). Those factors enumerated in section 263.307(b) include, among others, the
following:

        (1) the child's age 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 child;

                  ....

        (6) the results of psychiatric, psychological, or developmental evaluations of the child, parents,
        other family members, or others who have access to the child's home;

        (7) whether there is a history of abusive or assaultive conduct by the child's family or others who
        have access to the child's home;

        (8) whether there is a history of substance abuse by the child's family or others who have access
        to the child's home;

                  ....

        (10) the willingness and ability of the child's family to seek out and accept, and complete
        counseling services and to cooperate with and facilitate an appropriate agency's close
        supervision;

        (11) the willingness and ability of the child's family to effect positive environmental and personal
        changes within a reasonable period of time. . . .


                                                    27
give consideration to these factors to the extent applicable.50

       Although there is a strong presumption that it is in the child‘s best interest to

allow the natural parent to retain custody, when confronted with evidence to the

contrary, that presumption disappears.51 Evidence proving one or more of the statutory

grounds for termination may be probative in determining that termination is in the best

interest of the child.52        A best-interest analysis may be based on direct evidence,

circumstantial evidence, subjective factors, and the totality of the evidence as a whole. 53

―A parent's unstable lifestyle, lack of income, and lack of a home may also be

considered in a determination of a parent's ability to provide for a child's emotional and

physical needs and may also threaten the physical well being of the child.‖ 54

       Here, A.G. was too young to express her desire about the matter, and E.S. had

limited communication abilities due to a speech impediment. However, the children‘s

foster father testified that although E.S. had the ability to communicate verbally ―to get

her thoughts across,‖ she had never asked to see V.S. and had never indicated that she

missed V.S.        He also stated that although he and his wife encouraged their foster

children to address them by their first names; E.S. called his wife ―Mommy.‖ Finally,



Id.
       50
          See In re R.R., 209 S.W.3d 112, 116 (Tex. 2006) (per curiam); In re S.N., 272 S.W.3d 45, 50-
51 (Tex. App.–Waco 2008, no pet.); In re T.N.F., 205 S.W.3d 625, 632-33 n.3 (Tex. App.–Waco 2006,
pet. denied).
       51
            In re A.I.G., 135 S.W.3d 687, 692 (Tex. App.–San Antonio 2003, no pet.).
       52
            In re A.A.A., 265 S.W.3d 507, 516 (Tex. App.–Houston [1st Dist.] 2008, pet. denied).
       53
         In re T.N., 180 S.W.3d 376, 384 (Tex. App.–Amarillo 2005, no pet.) (citing In re C.A.J., 122
S.W.3d 888, 894 (Tex. App.–Fort Worth 2003, no pet.)).
       54
            Id.


                                                    28
Torres testified that although most children cry when a visitation with a parent ends,

neither E.S. nor A.G. cried when visitation with V.S. ended.

      V.S. started living with A.U.G. when E.S. was six or seven months old. When

E.S. was thirteen months old, V.S. moved out of A.U.G.‘s home because V.S. claimed

that abused her. V.S. admitted that when she left A.U.G.‘s home, she left E.S. with

A.U.G., even though she was afraid to be at A.U.G.‘s home alone and she knew that

A.U.G. was ―still on drugs.‖ V.S. stayed with her mother; however, V.S. did not explain

why she could not take E.S. with her. V.S. acknowledged that before she left E.S. alone

with A.U.G., he had not provided any care for E.S. V.S. did not see E.S. while E.S.

lived with A.U.G. until the night that E.S. was injured—approximately two weeks later.

      Dr. Harper was concerned about how E.S. had been injured and opined that the

burns were consistent with a person immersing E.S.‘s head into water. Dr. Harper

stated that the burn going all the way from the face up into the entire scalp and hairline

meant that E.S.‘s ―head would have to [have been] fully immersed in hot water. . . . It

looks as though her head and face were just dipped into scalding hot water.‖ Dr. Harper

agreed that based on reasonable medical certainty, E.S.‘s injuries were non-accidental.

Therefore, the explanation V.S. and A.U.G. gave the hospital and the Department is not

consistent with the injuries sustained by E.S.

      After E.S. and A.G. were removed, V.S. moved back to A.U.G.‘s home despite

the fact that he had abused her and it was suspected that he had caused the injuries to

E.S. According to V.S., A.U.G. continued abusing her when she returned to his home,

including an incident when A.U.G. punched V.S. in the face for no apparent reason.

V.S. admitted that while living with A.U.G., she committed the crime of hindering



                                            29
apprehension by lying to the police to protect A.U.G. from being arrested for allegedly

causing the injury to E.S. V.S. lived with A.U.G. ―during the pendency of this case‖ until

November 2009. At the time of the trial, V.S. was four months pregnant with her third

child with A.U.G.

      Torres testified that V.S. has not demonstrated an ability to provide a safe

environment for E.S. and A.G. because V.S. has not acquired her own stable home, she

has not been able to provide for them financially, and she does not have a job.

According to Torres, V.S. is not able to protect the children from A.U.G. because of her

history of lying to protect him and because when she lived with him, she would stop her

visitations with the children and her services with the Department. Torres stated:

      [V.S.] would be doing her services, attending visitation, and then she
      would stop. And when we would come back I would meet with her to
      reinstate, it would be that she had gotten back with him.

             ....

      When she‘s away from [A.U.G.] she is cooperative with the Department
      and with me. She does participate, but it‘s when she goes back and that‘s
      what my concern [sic], that she continues to go back [to A.U.G.]

             ....

      Based on her history, based on her lying in the beginning, her hiding him,
      and her going back to him a number of times, I think that even if the
      Department were to, you know, reunify with her and terminated on the
      dad, there would be some chance of her still allowing—or going back to
      him. . . . The Department is concerned about the well-being of the
      children and that‘s why we‘re asking for termination.




                                           30
Torres said that that based on V.S.‘s past history of leaving A.U.G. and then returning to

him repeatedly, she believed V.S. would return to A.U.G. in the future ―because it

seems to be a pattern.‖55

        According to Torres, termination of V.S.‘s parental rights is in the best interest of

the children. Dr. Harper testified that she has concerns about E.S. returning to the

home where she received the injuries because being burned so severely is ―a fairly

lethal way to injure a child because a lot of these kids don‘t survive the shock [and]

whoever caused these injuries is a real risk to her.‖ Although V.S. stated, ―I know I can

protect [the children],‖ she admitted that she had done ―nothing‖ to show the trial court

that she had that ability.

        Even after approximately twelve months, V.S. had not completed the

requirements of the family service plan including the parenting classes. Torres testified

that V.S. had twelve months to complete twelve classes, but she had not done so.

From the evidence presented, the trial court may have determined that V.S. had poor

parenting skills and had not been motivated to learn how to improve her skills. Also,

Torres testified, and V.S. admitted, that she had not completed her psychological

evaluation.

        V.S. testified that if the children were returned to her, she would get a job and

return to school to acquire her GED. V.S. stated that although she was living with a

friend, she was on a list to acquire housing of her own. However, V.S. explained that it

could take approximately twelve to eighteen months for her to actually get an

apartment.       V.S. did not state where she intended to live with the children in the

        55
           See In re M.R.J.M., 280 S.W.3d 494, 502 (Tex. App.–Fort Worth 2009, no pet.) (op. on reh'g)
(explaining that a trier of fact may rely on past conduct to infer that similar conduct will occur in the future).


                                                       31
meantime. The Department planned for the children to be placed for adoption. The

children were residing with foster parents who had ten years‘ experience. The foster

father testified that the children were adoptable and that he knew of a family that was

interested in adopting them.

      The evidence showed that V.S. had not been employed for the past year that her

children were in the Department‘s custody. For the majority of the previous year, V.S.

lived with A.U.G., who had been arrested for causing E.S.‘s injuries. And, V.S. stated

that while living with A.U.G., he abused her. V.S. finally left A.U.G. and moved in with a

friend two months before the trial. According to V.S., she did not have any other place

to go. V.S. testified that she has left A.U.G. in the past; however, for unexplained

reasons, she has gone back to him on numerous occasions. Therefore, the trial court

may have concluded that V.S. is unable to provide for the children‘s emotional and

physical needs because she has not secured a stable home in which they could live.

      Examining all of the evidence in the light most favorable to the trial court‘s

finding, we conclude that the trial court could have reasonably formed a firm belief or

conviction that terminating V.S. parental rights was in the best interest of E.S. and

A.G.56 Accordingly, we overrule V.S.‘s third issue.

                                          V.   CONCLUSION

      We affirm the trial court‘s judgment.

                                                            Linda Reyna Yañez
                                                            JUSTICE


Delivered and filed the
21st day of December, 2010.

      56
           See In re J.L., 163 S.W.3d at 85.


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