                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH


                               NO. 2-08-407-CV


IN THE INTEREST OF A.C., JR., A CHILD




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

            FROM THE 89TH DISTRICT COURT OF WICHITA COUNTY

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

                         MEMORANDUM OPINION 1

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

      Appellant Carol2 appeals from the trial court’s order terminating her

parental rights to her son, Abraham. In three points, she complains about the

trial court’s sua sponte severing the petition in intervention filed by one of

Abraham’s former foster parents, and in a fourth point, she claims that the trial




      1
          … See Tex. R. App. P. 47.4.
      2
       … For purposes of maintaining confidentiality, we will refer to all parties
by fictitious names. See Tex. R. App. P. 9.8; Tex. Fam. Code Ann. §
109.002(d) (Vernon 2008).
court’s finding that termination was in Abraham’s best interest is factually

insufficient. We affirm.

                              I. Background Facts

      The Department of Family and Protective Services (DFPS) removed two-

year-old Abraham from his mother’s care because it was concerned that she

was not properly treating an MRSA 3 infection in his leg bone for which he had

been prescribed at-home intravenous antibiotics. A nurse at Cook Children’s

Hospital in Fort Worth had called DFPS after Carol failed to take Abraham to

two follow-up appointments regarding his leg and after a home health care

service that had been assisting Carol with Abraham reported that Abraham had

developed an infection in his IV’s central line.

      When the DFPS investigator arrived at Carol’s then-current residence,

Abraham was not able to support any weight on the leg, could only walk by

dragging the side of his foot on the injured leg, and was not wearing any

protective covering on the leg. Carol told the investigator that she had missed

the appointments at Cook Children’s because her transportation fell through.4


      3
       … MRSA stands for methicillin resistant staphylococcus aureus, or
antibiotic resistant staph.
      4
       … Carol and Abraham lived in Wichita Falls. At the time of trial, Carol
had never owned a car and did not have a driver’s license. Although Carol had
received money for transportation from Medicaid, she said she missed at least
one appointment because the woman who was supposed to take them had

                                        2
      The investigator took Carol and Abraham to the emergency room at

United Regional Hospital in Wichita Falls; the hospital sent Abraham to Cook

Children’s in Fort Worth the next day via CareFlite. According to the DFPS

investigator, Abraham had a severe infection in his leg bone and was on the

verge of losing his leg and becoming septic.       Abraham’s medical records

indicate that Carol had failed to give Abraham twelve doses of his IV antibiotics

at home.5

      Abraham stayed at Cook Children’s for approximately three months.

Carol stayed with him during that time. Medical records from the beginning of

Abraham’s stay indicate that Carol suffered from migraines; that she slept in

late with Abraham, sat on a chair in his room, and did not play with him; and

that she did not supervise him adequately, allowing him to walk on his leg

without his “boot” and climb on a wheelchair in the room, and failing to put him

in his crib when she left the room so that he would follow her. However, later

medical record entries show that after Carol received pain medication and

medical treatment, she became more engaged with Abraham.




been jailed and she could not secure other transportation.
      5
      … The DFPS investigator had asked Carol for all the medication when she
took Abraham and Carol to United; Carol gave her several unopened boxes and
an opened box of IV bags.

                                       3
      Before Cook Children’s discharged Abraham, DFPS filed a removal petition

in Wichita County.6    It alleged that Abraham would require long-term oral

antibiotic therapy, have to wear a cast and boot, and need continued follow-up

visits to Cook Children’s.7 Because of Carol’s past problems with caring for

Abraham’s condition 8 and her inability to obtain transportation to Fort Worth,

DFPS alleged that Carol could not adequately care for Abraham’s medical needs

upon his discharge from the hospital. The trial court signed an order naming

DFPS Abraham’s temporary sole managing conservator.9 DFPS placed Abraham

with Dorothy, a foster parent who was licensed to care for children with special

medical needs.10 It also developed a service plan for Carol, which the trial court

incorporated into temporary orders.




      6
        … The petition states that reunification was DFPS’s goal but also pled
in the alternative for termination of both Carol’s and Abraham’s alleged father’s
parental rights.
      7
      … The infection had gotten so severe that it caused several fractures in
Abraham’s leg bone.
      8
       … DFPS also alleged that it had received prior referrals for Carol
regarding medical neglect of two of her other children and that Abraham had
been born with marijuana in his system.
      9
       … Carol was not married to Abraham’s alleged father, and it is not clear
from the record whether he and Carol lived together on a consistent basis.
      10
       … Abraham had bone graft surgery on April 24, 2008. He also had to
wear a bone stimulator.

                                        4
      The trial court initially set a termination hearing for March 31, 2008,

almost one year after Abraham’s removal on April 5, 2007. See Tex. Fam.

Code Ann. § 263.306(a)(12) (Vernon 2008). But after the State moved to

extend the dismissal deadline, the trial court extended the dismissal date to

October 4, 2008, one year and one hundred eighty days after Abraham’s

removal. See id. § 263.401(a).

      Dorothy 11 filed a petition in intervention on July 17, 2008. She alleged

that her interests were aligned with DFPS, and she sought termination of both

parents’ rights, and, in the alternative, that she be named Abraham’s permanent

managing conservator.     The trial court set a hearing on the petition in

intervention for September 30, 2008 but also ordered the parties, including

Dorothy, to mediate before the hearing. It is unclear from the record whether

the mediation actually occurred.

      The trial court then transferred the case to the appointed associate judge

for the newly-created “Child Welfare Court” for Wichita County.          At the

scheduled September 30 hearing on the petition in intervention, the associate

judge allowed the intervention and proceeded to hear the termination case.




      11
        … Dorothy is the first foster parent with whom Abraham was placed.
DFPS removed Abraham from her home after she left Abraham with a
babysitter who failed to properly supervise him.

                                       5
However, during the DFPS caseworker’s testimony, the associate judge realized

that the attorney general’s office in Wichita Falls, for whom she had previously

worked, had participated in the case with respect to the alleged father’s child

support obligations. Accordingly, the presiding judge of the 89th District Court,

in which the case had originally been filed, rescinded the transfer order and

continued the termination trial until October 3, a Friday, the next-to-last day

before the one-year deadline. 12

      Before beginning the proceedings on October 3, 2008, the trial court

announced,

            I’ve reviewed the file. I’ve reviewed the medical records. I
      reviewed a good portion of the [DFPS] records. I’ve come to the
      conclusion that we can try the termination part of this lawsuit
      without prejudice to the intervenor in this matter. And, in fact,
      there’s a possibility we can even pick up – if the notice is okay on
      it – with continuation of getting into the intervention as early as
      next week, if our trial docket falls through.

             I fail to see where any party would be prejudiced by doing
      this, and I think that in the interest of justice in getting to the
      bottom of this with [DFPS’s] claims and those of the other parties,
      and in the absolute best interest of [Abraham], that I am severing
      out [sua] sponte the intervention of [Dorothy] . . . .




      12
      … An email in the clerk’s record notes, “BECAUSE OF THE DROP DEAD
DATE OF 10-04-08 WE HAVE CANCELED EVERYTHING FOR 10.03.08 AND
THE CASE HAS BEEN RESET TO FRIDAY 10-03-08 TO BEGIN AT 8:30 AM.”

                                       6
      Carol’s counsel objected on due process grounds, claiming a lack of

notice and the opportunity to be heard and further arguing that the court could

not sever the case so close to trial. Counsel additionally claimed that Dorothy

was a necessary party because the court could decide to name Carol a joint

managing conservator or possessory conservator along with her. See Tex. R.

Civ. P. 41. Dorothy objected on the ground that she was a necessary party;

in other words, both Carol and Dorothy claimed that the trial court could not

decide to terminate Carol’s parental rights or allow Carol some kind of

visitation, possession, or conservatorship without Dorothy being a party to the

case. The trial court overruled the objections and trial began.

      After hearing all the evidence—including Dorothy’s testimony that if she

were named Abraham’s managing conservator, she would allow Carol and

Abraham’s siblings to have supervised visitation—the trial court terminated both

parents’ rights to Abraham and named DFPS Abraham’s permanent managing

conservator.    But it also ordered that Carol be allowed twice monthly

supervised visits with Abraham for up to two hours each visit.        The court

noted,

            [A]ll of this is without any kind of prejudice to any further rulings
      or any further parties, specifically, the intervention, and the question as
      to the possible adoptive parents. . . . I did not intend to deal with that
      issue today. The evidence [that] was offered and proffered into
      evidence, I’m certain will be offered at the time the intervention portion

                                       7
      is tried. And that can come about at any time that you-all can get time
      with the Court, and notice to the parties.

      Carol filed a motion for new trial, which the trial court denied. Only Carol

appealed from the trial court’s order.

             II. Propriety of Severance of Petition in Intervention

      Carol’s first three points challenge the propriety of the intervention on

three grounds: (1) that the severance violated her Fourteenth Amendment due

process rights because of a lack of notice and opportunity to be heard; (2) that

the severance violated her Fourteenth Amendment due process rights because

her and Dorothy’s positions were “interwoven, consistent and supportive of

each other”; and (3) that the trial court abused its discretion by severing

because Dorothy was a necessary and indispensable party to the litigation.

A. Applicable Law

      Rule of civil procedure 41 reads, in pertinent part:

            Parties may be dropped or added, or suits filed separately
      may be consolidated, or actions which have been improperly joined
      may be severed and each ground of recovery improperly joined may
      be docketed as a separate suit between the same parties, by order
      of the court on motion of any party or on its own initiative at any
      stage of the action, before the time of submission to the jury or to
      the court if trial is without a jury, on such terms as are just. Any
      claim against a party may be severed and proceeded with
      separately.

Tex. R. Civ. P. 41 (emphasis added).



                                         8
      A severance splits a single suit into two or more independent actions,

each action resulting in an appealable final judgment. Van Dyke v. Boswell,

O'Toole, Davis & Pickering, 697 S.W.2d 381, 383 (Tex. 1985); Aviation

Composite Techs., Inc. v. CLB Corp., 131 S.W.3d 181, 188 (Tex. App.—Fort

Worth 2004, no pet.). Severance of claims under the Texas Rules of Civil

Procedure rests within the sound discretion of the trial court. Liberty Nat’l Fire

Ins. Co. v. Akin, 927 S.W.2d 627, 629 (Tex. 1996) (orig. proceeding); Aviation

Composite Techs., 131 S.W.3d at 188. A claim is properly severable if (1) the

controversy involves more than one cause of action, (2) the severed claim is

one that would be the proper subject of a lawsuit if independently asserted, and

(3) the severed claim is not so interwoven with the remaining action that they

involve the same facts and issues.          Guar. Fed. Sav. Bank v. Horseshoe

Operating Co., 793 S.W.2d 652, 658 (Tex. 1990) (op. on reh’g); Aviation

Composite Techs., 131 S.W .3d at 188.            The controlling reasons for a

severance are to do justice, avoid prejudice, and further convenience. Guar.

Fed. Sav. Bank, 793 S.W.2d at 658; Aviation Composite Techs., 131 S.W.3d

at 188.

      A trial court is not required to provide prior notice of its intent to sever,

and, in most cases, it need not hold an evidentiary hearing before severing.

Aviation Composite Techs., 131 S.W.3d at 187–88; see WorldPeace v.

                                        9
Comm’n     for   Lawyer    Discipline,   183   S.W.3d    451,   461      n.11   (Tex.

App.—Houston [14th Dist.] 2005, pet. denied).13

B.    Analysis

      Here, the trial judge was faced with a looming section 263.401 dismissal

deadline when he had to retake the case from the associate judge. Tex. Fam.

Code Ann. § 263.401. He was left with one day to try the case. Thus, it is

clear from the record that his decision to sever the intervention was made in

light of those scheduling constraints.

      Although Dorothy’s petition states that she is aligned with DFPS and

seeking    termination    and   eventual   adoption     or   permanent    managing

conservatorship, Carol’s counsel informed the trial court, and Dorothy later

testified, that she would have no objection to Carol having visitation. Thus,

Carol based her objection to the severance at trial on—and urges on




      13
        … The cases Carol cites to support her contention that “a trial court
cannot make a decision to sever a matter simply on the live pleadings” are
inapposite. Two involve insurance companies opposing a trial court’s refusal
to sever first-party contractual and bad faith claims without first hearing
evidence of prejudice, a potential fact issue related to severance in those
particular type of cases. See, e.g., Allstate Ins. Co. v. Hunter, 865 S.W.2d
189, 194 (Tex. App.—Corpus Christi 1993, orig. proceeding); Progressive
County Mut. Ins. Co. v. Parks, 856 S.W.2d 776, 780 (Tex. App.—El Paso
1993, orig. proceeding). Here, the fact issues to be resolved relate to the
ultimate issues in the case, not to the factors governing the propriety of
severance.

                                         10
appeal—the ground that Dorothy’s wishes that Carol have visitation had bearing

on whether termination would be in Abraham’s best interest. It is not clear

from the record, however, that Dorothy had entirely abandoned her claim for

adoption. Thus, the intervention clearly had at least two distinct claims: for

permanent managing conservatorship and, in the event of termination, adoption.

      Additionally, Dorothy was able to testify at trial about her background and

qualifications, why Abraham was removed from her home, and her wishes for

Carol, Abraham, and Abraham’s siblings to have contact in the future. In fact,

the trial court ordered post-termination supervised visitation for Carol.

      Dorothy had standing to intervene because of her possession of Abraham

for a twelve-month period ending not ninety days before the filing of the

intervention.   See Tex. Fam. Code Ann. § 102.003(a)(12) (Vernon 2008).

Thus, she also had standing to maintain her own suit. See id.; In re N.L.G.,

238 S.W.3d 828, 829 (Tex. App.—Fort Worth 2007, no pet.).

      Moreover, the severed claims were not so interwoven with the

termination suit that they could not be tried separately. The trial court was

effectively able to try the termination part, hearing evidence as to the propriety

of either retaining Carol as a possessory conservator or terminating her rights.

Nowhere was unsupervised visitation between Carol and Abraham advocated,

including by Dorothy. The trial court also heard evidence as to the propriety of

                                       11
a future placement of Abraham with Dorothy. The court told the parties that

it intended to try the adoption issues as soon as possible. And, although the

trial court stated that it anticipated the parties would introduce much of the

same evidence that it had heard in the termination proceeding, the fundamental

issues are ultimately different. Evidence that Abraham was adoptable by either

Dorothy or the then-current foster family, or that Dorothy was willing to allow

Carol supervised visitation, went to the issue of whether Carol’s parental rights

should be terminated.      But evidence as to which of the two adoptive

placements would be ultimately in Abraham’s best interest was not necessary

to determine the impact of Carol’s having continued parental rights in light of

her inability to provide Abraham a stable, permanent home environment. See

Tex. R. Civ. P. 41; cf. Tex. R. Civ. P. 39(a) (requiring joinder if disposition of

action in party’s absence would result in substantial risk of existing parties

incurring inconsistent obligations).

      Accordingly, we conclude and hold that the trial court did not abuse its

discretion by severing Dorothy’s petition in intervention and that the severance

did not harm Carol. See Tex. Fam. Code Ann. § 162.001(b)(1) (Vernon 2008)

(providing that termination is required for child to be adopted); cf. In re A.G.C.,

279 S.W.3d 441, 448 (Tex. App.—Houston [14th Dist.] 2009, no pet.)

(holding that termination via affidavit of relinquishment is not available only in

                                        12
anticipation of adoption, reasoning, in part, that termination and adoption

chapters of family code are separate); Hunter v. NCNB Tex. Nat’l Bank, 857

S.W.2d 722, 725–26 (Tex. App.—Houston [14th Dist.] 1993, writ denied)

(holding that trial court had discretion to sever claims involving trust’s alleged

ownership interest in home from declaratory judgment claim regarding

appellant’s alleged homestead interest in home because homestead rights had

to be determined regardless of whether house belonged to trust or guardianship

estate of appellant’s mother).         Furthermore, because prior notice and an

evidentiary hearing are not required, and because Carol was given the

opportunity to be heard on her objections, we conclude and hold that her due

process rights were not violated. We overrule her first three points.

                                III. Best Interest Finding

      In her fourth point, Carol challenges the factual sufficiency of the trial

court’s finding that termination of her parental rights was in Abraham’s best

interest.

A. Standard of Review and Applicable Law

      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

                                             13
(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

State 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 Supp. 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.).

      Termination decisions, including the best interest finding, 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 2002).

Due process demands this heightened standard because termination results in

permanent, irrevocable changes for the parent and child.          In re J.F.C., 96

                                        14
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).

      In reviewing the evidence 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 must determine

whether, on the entire record, a factfinder could reasonably form a firm

conviction or belief that termination of the parent-child relationship would be in

the best interest of the child. 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 a firm belief or conviction in the truth of its finding,

then the evidence is factually insufficient. H.R.M., 209 S.W.3d at 108.

      There is a strong presumption that keeping a child with a parent is in the

child’s best interest. In re R.R., 209 S.W.3d 112, 116 (Tex. 2006). Prompt

and permanent placement of the child in a safe environment is also presumed

to be in the child’s best interest. Tex. Fam. Code Ann. § 263.307(a) (Vernon

2002). The following factors should be considered in evaluating the parent’s

willingness and ability to provide the child with a safe environment:

            (1) the child’s age and physical and mental vulnerabilities;

            (2) the frequency and nature of out-of-home placements;

                                       15
      (3) the magnitude, frequency, and circumstances of the harm
to the child;

       (4) whether the child has been the victim of repeated harm
after the initial report and intervention by DFPS or other agency;

       (5) whether the child is fearful of living in or returning to the
child’s home;

      (6) the results of psychiatric, psychological, or developmental
evaluations of the child, the child’s 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;

       (9) whether the perpetrator of the harm to the child is
identified;

      (10) the willingness and ability of the child’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 child’s family to effect
positive environmental and personal changes within a reasonable
period of time;

      (12) whether the child’s family demonstrates adequate
parenting skills, including providing the child and other children
under the family’s care with:

             (A) minimally adequate health and nutritional care;




                                  16
                  (B) care, nurturance, and appropriate discipline
            consistent with the child’s physical and psychological
            development;

                  (C) guidance and supervision consistent with the child’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 child; and

                 (F) an understanding        of the   child’s   needs    and
            capabilities; and

            (13) whether an adequate social support system consisting
      of an extended family and friends is available to the child.

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 child include:

      (A)   the desires of the child;

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

      (C)   the emotional and physical danger to the child 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 child;

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

                                        17
      (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 v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976).

      These factors are not exhaustive.          Some listed factors may be

inapplicable to some cases; other factors not on the list may also be considered

when appropriate. C.H., 89 S.W.3d at 27. 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.

B. Application of Factors to Evidence

      DFPS’s main concern about Carol was that she had failed to demonstrate

that she could provide a stable home and permanence for Abraham, which his

caseworker and the CASA advocate testified he needed most. Abraham was

two at the time of his removal and almost four when Carol’s rights were

terminated. Although his leg was doing well and he had been able to wear two

shoes for the first time since his infection, he still had physical needs to be

addressed, and there was still a chance he would have to have additional

                                        18
surgeries. He still had follow-up doctor’s visits. The CASA advocate and DFPS

caseworker both testified that Abraham’s need for permanence was paramount.

      Although Abraham had never been removed from Carol’s care before 14

and did not need to remain on IV antibiotics when he left the hospital, DFPS

nevertheless petitioned for removal because of Carol’s past neglect and the

severity of the infection that led to him being admitted to the hospital. Before

he was admitted, he was in danger of becoming septic and losing his leg, and

he had to be sent to Cook Children’s via CareFlite from the Wichita Falls

emergency room. The DFPS investigator testified that despite this, Carol told

her at the time that Abraham was doing ok. Carol admitted that when her

friend who was going to drive her to Cook Children’s for Abraham’s followup

visits went to jail, she still had the money Medicaid had given her for

transportation, but she said she could not get anyone else to take her. When

asked about the bus, she said they wouldn’t allow Abraham on the bus because

of his health condition. Carol did not keep in contact with Abraham’s doctors.

DFPS was concerned because she had not demonstrated an understanding of

how important Abraham’s followup care was.




      14
       … The omissions that initially prompted Abraham’s removal did not recur
because Carol failed to work her service plan and did not regain custody of
Abraham.

                                      19
      The evidence showed that Carol was a chronic marijuana user, which she

acknowledged. She admitted smoking marijuana when she was pregnant with

Abraham and another of her children.       Carol failed at least one drug test

required by her service plan and refused to take another. In fact, her drug use

led to her probation being revoked while Abraham was in DFPS’s care; she was

not able to visit Abraham for the two months she was in jail. Carol told DFPS

she had been going to a treatment facility before trial, but she did not provide

any proof of her attendance, and the center would not confirm whether she had

been attending. The CASA advocate testified that narcotics use can affect a

person’s ability to parent by affecting judgment, motivation, and motor skills.

      Between the time of removal and trial, Carol had lived in four different

places: her aunt’s house, the Budget Inn,15 a rental house, and the Deluxe Inn.

She acknowledged that the motels were not safe for her children but said these

places were all she could afford.16 Carol testified that she had been working

at Sonic for eight months and that she made $260 per month after she paid

child support. Although there was some testimony that Abraham’s father was

at the house when a DFPS worker came by one time, there is no evidence


      15
        … Carol testified that her other children lived with a cousin while she
was living at the Budget Inn.
      16
      … The caseworker testified that Carol was on a waiting list for housing
and was scheduled to get housing the month after trial.

                                      20
about whether he lived with the family or provided any support. Abraham’s

father told the DFPS worker that he did not want anything to do with the case.

      Abraham was in DFPS’s custody for eighteen months. While Abraham

was in DFPS’s custody, Carol failed to maintain regular contact with him. She

testified that she made about thirteen visits. According to Carol, she could not

make every visit because of her other children.      But the DFPS caseworker

testified that DFPS provided Carol with transportation and that Carol was

allowed to bring the other children. According to the caseworker, between

November 2007 and the time of trial on October 3, 2008, Carol visited

Abraham four times, once on the day before trial. The CASA advocate testified

that the inconsistency of Carol’s visits was harmful to Abraham.

      There were no psychological test results introduced at trial. Carol had

failed to attend the counseling appointments and take the psychological tests

recommended in her service plan. She acknowledged at trial that she had failed

to do so.

      Carol also failed to attend any parenting classes as required by her service

plan. DFPS was concerned that she did not know how to meet Abraham’s

medical and emotional needs, as evidenced by the need for Abraham’s

admission to Cook Children’s, Carol’s failure to visit him regularly when he was

in DFPS’s custody, and her failure to complete her service plan. The CASA

                                       21
advocate testified that neither parent had demonstrated that he or she

understood parenting. The DFPS caseworker agreed, however, that Carol was

young and immature and that people can mature over time.

      No evidence indicated that Carol or the children’s father had been

assaultive toward Abraham or his siblings. But the removal petition alleged,

and the caseworker referred to in her testimony, that Carol had a prior history

with DFPS. The results of that history were not introduced.

      Carol testified that Abraham told her he wanted to come home. But the

caseworker testified that Abraham cried during at least one of Carol’s visits.

She also testified that it appeared Carol and Abraham no longer had a bond.

The CASA advocate testified that they appeared uncomfortable and did not

interact very much; Carol tried but she gave up when Abraham acted

indifferently toward her and chose to play independently. She also testified,

however, that Abraham would interact with his siblings.

      The caseworker testified that Carol had referred a potential placement for

Abraham to her but that the woman was not suitable because she had a prior

DFPS history. Additionally, a relative of the father’s called and asked about the

case, but “that was it.” That relative had a prior history too. According to the

caseworker, there were no other potential placements from the father’s family.




                                       22
      Dorothy testified that she had cared for twenty-two children through

DFPS. She was a licensed vocational nurse; sometimes DFPS would place

children with significant medical issues with her. She testified that Carol was

very nice and sweet and that she visited Abraham about once a month.

According to Dorothy, she witnessed Carol’s interaction with Abraham during

the visits, and she and Abraham became less attached as Abraham became

more attached to Dorothy. However, she also testified that Abraham “never

forgot” his sisters.

      Dorothy testified that she had no problem with Carol and Abraham’s

siblings having supervised visits with Abraham. She had an adopted daughter,

and she allowed her to see her biological mother and siblings. She believed

Abraham needs to see his siblings, especially because Abraham and his family

are African-American, and Dorothy and the foster parents with whom Abraham

was currently placed are Caucasian.

      At the time of trial, Abraham was living with foster parents who also

wanted to adopt him. He had been placed with the family after DFPS removed

him from Dorothy’s care.17     The caseworker testified that Abraham had



      17
        … Abraham had been found wandering near the highway while in the
care of a babysitter. Dorothy contended that she had left Abraham with her
brother-in-law, an approved caregiver, but that he went to sleep, leaving
Abraham in the care of an unapproved caregiver. The CASA advocate testified

                                      23
prospered in their care and that his behavior had dramatically improved. His

manners, speech, and listening skills had all improved, and he was showing less

defiance.   The foster parents were able to meet Abraham’s physical and

emotional needs; they also provided a stable home and environment. He called

the foster parents mom and dad and was very loving with them.

      The CASA advocate testified that termination of Carol’s parental rights

and adoption were in Abraham’s best interest.         The caseworker agreed,

testifying that giving Carol possessory conservatorship would not be in

Abraham’s best interest because of his age and need for stability and because

of Carol’s demonstrated inability to parent. According to the caseworker, if

Carol were awarded possessory conservatorship, the visitation schedule would

become more complicated, and it would impact Abraham’s sense of

permanency if Carol failed to visit on a regular basis.    However, the DFPS

caseworker and investigator, as well as Dorothy, all agreed that giving Carol

supervised visitation would alleviate DFPS’s concerns about medical neglect.

The caseworker also testified in response to cross-examination that supervised

visitation would alleviate “all concerns” and that it would be better for a child

to have some contact with a parent than none at all. However, she qualified



that Dorothy told her she knew the brother-in-law was going to sleep and asked
him to have the unapproved caregiver watch Abraham.

                                       24
her answer by stating that it could emotionally scar Abraham if Carol were to

continue to miss visits. She was concerned that Carol would not visit in the

future because she had not visited in the past. She agreed, however, that it

was good for Abraham to have continued contact with his siblings.

C.    Analysis

      Based on the above evidence, and applying the best-interest factors, we

conclude and hold that the trial court could reasonably have formed a firm

conviction or belief that termination of the parent-child relationship would be in

Abraham’s best interest. Although it was not disputed that contact between

Abraham and Carol and Abraham and his siblings would benefit Abraham, it

was likewise undisputed that it would be emotionally harmful to Abraham if

Carol failed to maintain that contact on a regular basis.      DFPS’s plans for

Abraham included permanent placement, and there were two potential options

for adoption. Carol’s home and financial situation never stabilized over the

eighteen-month period when Abraham was removed from her custody, and she

did not have the support of Abraham’s father or, apparently, any other suitable

family members to assist her in establishing the kind of stability Abraham

needed.   Likewise, she continued to use marijuana and failed to visit with

Abraham on a regular basis. In other words, she continued to demonstrate a

lack of parenting skills in the same vein as her lack of attention to Abraham’s

                                       25
medical condition for which he was initially removed. See Tex. Fam. Code Ann.

§ 263.307(b) (Vernon 2008); Holley, 544 S.W.2d at 371–72; In re K.C., 219

S.W.3d 924, 931 (Tex. App.—Dallas 2007, no pet.) (“The State’s interest in

establishing a ‘stable, permanent home’ is ‘compelling,’ and a parental-rights

termination, when grounds authorizing it are met, serves that goal by permitting

adoption.”). Accordingly, we overrule Carol’s fourth point.

                                IV. Conclusion

      Having overruled all of Carol’s points, we affirm the trial court’s

judgment.




                                           TERRIE LIVINGSTON
                                           JUSTICE

PANEL: LIVINGSTON, DAUPHINOT, and GARDNER, JJ.

DELIVERED: June 25, 2009




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