      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       444444444444444
                                       NO. 03-00-00812-CV
                                       444444444444444


                                  Mary Esther Perez, Appellant

                                                  v.

               Texas Department of Protective & Regulatory Services, Appellee



    FROM THE DISTRICT COURT OF COMAL COUNTY, 247TH JUDICIAL DISTRICT
       NO. C 99-186C, HONORABLE CHARLES RAMSAY, JUDGE PRESIDING



               This is an appeal from a judgment terminating the parental rights of Mary Esther Perez

to her two children. Perez complains about the district court’s refusal to accord her de novo review

of the associate judge’s proposed order of termination. She also complains about the legal and

factual sufficiency of the evidence to support the ruling that termination is in the children’s best

interest. We will affirm the judgment of the district court.


                                PROCEDURAL BACKGROUND

               Perez’s children were removed from her care on March 8, 1999, by the Texas

Department of Protective & Regulatory Services (“TDPRS”) which was granted temporary managing

conservatorship of the children on March 12, 1999. The case was tried on July 17, 2000, to an

associate judge without a jury. Perez’s counsel was appointed. The associate judge announced in

open court that he found that the evidence supported the alleged grounds for termination and that it

was in the best interests of the children to terminate. The proposed order to that effect, however, was
not signed by the associate judge until September 26, 2000, some two months after the hearing.

Interlineated on the proposed order above the associate judge’s signature is handwritten: “Rendered

on the record in open court on July 17, 2000, but recommended [on September 26, 2000].”

               The district judge signed the order on October 10, 2000, and above his signature is

interlineated: “rendered on the record in open court on July 17, 2000, but signed, approved and

ratified [on October 10, 2000].” The order makes findings that: (1) Perez placed or allowed the

children to remain in dangerous conditions; (2) Perez’s acts placed the children in danger; and (3)

termination was in the best interests of the children. Tex. Fam. Code Ann. § 161.001(1)(D), (E)

and (2) (West Supp. 2002).

               Perez filed her Notice of Appeal From Associate Judge’s Hearing on September 15,

2000, before the associate judge signed the recommendation. That notice quoted the three findings

which the associate judge’s signed proposed termination order would later contain. Perez specifically

objected to each of the three findings and expressly requested a “hearing de novo” “before a District

Judge.” After Perez filed her notice, TDPRS moved in writing to enter a final order of termination.

A signed but undated Order Dismissing Respondent’s Notice of Appeal of Associate Judge, filed in

the record on October 12, 2000, states that after a hearing the district court dismissed the appeal of

the associate judge’s report as untimely.


                                 PROCEDURAL DISCUSSION

               Perez complains about the district court’s denying her a de novo hearing on the basis

that her request was untimely. Chapter 201 of the Texas Family Code governs procedures concerning

associate judges. The powers this chapter accords associate judges are not coextensive with that of

                                                  2
district judges.1 They are authorized to exercise only those powers listed in the statute and delegated

to them by a district court in a referral order. See Tex. Fam. Code Ann. § 201.006 (West 1996),

§ 201.007 (West Supp. 2002).

               Once an associate judge has completed the matter assigned, section 201.011(a)

provides that an associate judge’s report may contain the associate judge’s findings, conclusions, or

recommendations, including a proposed order. Id. § 201.011(a) (West Supp. 2002). Although the

report is required to be in writing, a notation on the referring court’s docket sheet is sufficient. Id.

                Subsection 201.011(b) also requires that:


        [a]fter a hearing, the associate judge shall provide the parties participating in the
        hearing notice of the substance of the associate judge’s report. The notice may be
        given in the form of a proposed order.


Tex. Fam. Code Ann. § 201.011(b) (West Supp. 2002) (emphasis added.). Notice of the substance

of the associate judge’s report may be given to the parties by oral statement made in open court. Tex.

Fam. Code Ann. § 201.011(c)(1) (West Supp. 2002); Peacock v. Humble, 933 S.W.2d 341, 342

(Tex. App.—Austin 1996, orig. proceeding).

                Section 201.012 requires that all parties be given notice of their right to appeal an

associate judge’s ruling to the referring district court. The notice may be given orally in open court




       1
          For instance, if not objected to, the recommendation of an associate judge does not become
a final order until it is ratified by the district court. Tex. Fam. Code Ann. § 201.013(b) (West Supp.
2002); Phagan v. Aleman, 29 S.W.3d 632, 634 (Tex. App.—Houston [1st Dist.] 2000, no pet.). In
contrast, a special master’s recommendation becomes final by operation of law without ratification.
Id. n.2.

                                                   3
or posted near the courtroom of the referring court. Appeal of an associate judge’s report is

governed by section 201.015 of the Texas Family Code, which states in pertinent part:


               Appeal to Referring Court

       (a) A party may appeal an associate judge’s report by filing notice of appeal not later
           than the third day after the date the party receives notice of the substance of the
           associate judge’s report as provided by Section 201.011.

       (b) An appeal to the referring court must be in writing specifying the findings and
           conclusions of the associate judge to which the party objects. The appeal is
           limited to specified findings and conclusions.

       (c) On appeal to the referring court, the parties may present witnesses as in a hearing
           de novo. . . .


Tex. Fam. Code Ann. §201.015(a), (b) and (c) (West Supp. 2002) (emphasis added).

               In this case, the associate judge’s report was not reduced to writing in a report or

proposed order and signed until several months after the hearing. A handwritten entry for the July

17 hearing which appears on the docket sheet of the referring court states:


       Trial on the merits. DA, CPS, MO, MO’s atty, unknown FA’s atty, AAL. Evidence
       taken. MO rights terminated as to [children]. FA’s rights terminated as to [one
       child]. Unknown FA’s terminated as to [other child]. PRS = PMC. placement rev.
       in 6 mos.2




       2
          The docket entry gives only the proposed ultimate outcome and discloses no basis for the
decision. We need not decide whether the associate judge’s entry on the docket sheet gives notice
of the “substance” of the associate judge’s report. See Waddell v. Huckabee, 807 S.W.2d 455, 458
(Tex. App.—Houston [1st Dist.] 1991, orig. proceeding).

                                                 4
After testimony and arguments at the July 17 hearing, the associate judge orally announced that he

found the evidence sufficient to support the grounds alleged for termination, that termination was in

the best interests of the children, and that he was terminating Perez’s parental rights.

               The associate judge explained his decision to Perez by stating:


       nothing that you’ve done . . . gives me any confidence that if I sent these children
       home to you, you would understand what their needs are and follow through to meet
       them. . . . You’ve had almost 18 months3. . . . Your children can’t wait any longer
       for you to decide that you’re going to grow up and be a parent. And I just can’t leave
       them waiting any longer while you decide if that’s what you want to do or not.


The associate judge went on to state in open court:


       I don’t really have much choice but to grant the termination here. So I do find that
       the evidence is sufficient and it’s in the best interests of the child to terminate your
       rights as to both [children].


The only grounds for termination pleaded by TDPRS were the following:


       "    that Perez knowingly placed or knowingly allowed the children to remain in
            conditions or surroundings that endanger the physical or emotional well-being of
            the children;




       3
          At the time of this hearing, the eighteen-month deadline was approaching after which the
children would have to be returned to Perez if no disposition was made. Under section 263.401(a)
of the Family Code, this action against Perez was approaching the deadline after which the case was
required to be dismissed. The one-year anniversary of TDPRS’s temporary managing
conservatorship of Perez’s children was March 13, 2000, which was the statutory deadline. The
court had already granted the only extension of the dismissal date allowable. See Tex. Fam. Code
Ann. § 263.401 (b) (West Supp. 2002); In re Ruiz, 16 S.W.3d 921, 926 (Tex. App.—Waco 2000)
(mandamus conditionally granted); In re Neal, 4 S.W.3d 443, 447 (Tex. App.—Houston [1st Dist.]
1999) (mandamus conditionally granted).

                                               5
        "    that Perez engaged in conduct or knowingly placed the children with persons who
             engaged in conduct that endangers the physical or emotional well-being of the
             children; and

        "    that termination of Perez’s parental rights is in the best interests of the children.


Tex. Fam. Code Ann. § 161.001(1)(D), (E) and (2) (West Supp. 2002). The order of termination

recites that the court finds that there is clear and convincing evidence of each of these allegations.

                Perez contends that she timely appealed the associate judge’s ruling and was entitled

to a de novo hearing before the district court. TDPRS argues that the associate judge’s findings and

conclusions supporting the termination decision were adequately expressed by the associate judge

orally in open court thereby giving Perez notice at that time of the substance of the report as

authorized by the statute. It argues that Perez had sufficient notice of the “substance of the associate

judge’s report” within the meaning of section 201.011 so as to trigger the accrual of the three-day

deadline for appeal of the order. If so, the deadline for appealing was July 21. Perez disagrees and

contends that her request for a de novo hearing was timely because it was filed before the written

order was signed; therefore, it should be deemed filed within three days of the written order. Tex.

Fam. Code Ann. § 201.015(a) (West Supp. 2002).

                We agree with TDPRS and hold that the oral statements made by the court at the

hearing sufficiently expressed in open court the “substance” of the decision so as to satisfy section

201.015(a) and trigger the accrual of the three-day deadline to appeal that decision. The only issues

litigated in this case were whether Perez engaged in the conduct alleged, and if so, whether it was in

her children’s best interest that her parental rights be terminated. The associate judge expressly stated

“that the evidence is sufficient and it’s in the best interests of the child to terminate [Perez’s] rights

                                                    6
as to both [children].” The clear import of this statement was to find sufficient evidence to support

TDPRS’ allegations against Perez and to rule in favor of termination. Perez has not shown that she

lacked notice of the “substance” of the ruling as of the July 17 hearing, and the record reflects that

she had notice. Thus, her September 15 notice of appeal from that ruling was well beyond the three-

day deadline by which she could obtain a de novo hearing. We hold that the district court did not err

in dismissing the request as untimely and instead adopting the associate judge’s report. Perez’s first

issue on appeal is overruled.


                                   FACTUAL BACKGROUND

                Perez does not challenge the sufficiency of the evidence to support the allegations that

she placed or allowed her children to remain in dangerous conditions or that her conduct endangered

her children. She complains only that the evidence is insufficient to prove that termination is in her

children’s best interest.

                Perez’s children were removed from her custody because of alleged neglect based on

the poor and unhealthy conditions in which they were found to be living. There were no substantiated

allegations of physical abuse of the children. Perez and her children lived in the home of her parents,

Isidro and Blanche Aguillon, along with her sister, Dorothy, and Dorothy’s children. Blanche

Aguillon worked full-time outside the home and Isidro was disabled. Neither Perez nor her sister was

employed. TDPRS initially became involved as a result of a complaint regarding Dorothy’s children.



                The evidence showed that TDPRS inspected the home on February 17, 1999, and

found it to be extremely dirty and infested with large rats. The house was old and dilapidated. Food

                                                   7
was found caked on the carpet, wall-paper was falling from the walls, and the sofa was dirty and torn.

There was no door between Dorothy’s room, where her children were sleeping, and the kitchen

where a large rat infestation was found. Several rats (four to five inches long, excluding tails) were

seen scurrying on the kitchen floor, stove and microwave. There were rats in cabinets under the sink,

as well as in the cabinets where dishes and food were stored. A large garbage can was overflowing

with trash. Cabinet doors were hanging off their hinges. The once white cabinet exteriors were

yellow and brown with dirt and grease. Dirty dishes covered the counter top and the stove top was

covered in grease. The kitchen sink was not working properly and water drained down to the cabinet

and floor underneath. A large quantity of rat droppings were found on the floor, in the corners of

cabinets, and on appliances. Rat tails could be seen hanging out of cabinets and the noises of unseen

scurrying rats could be heard. Food cabinets contained rat droppings and nesting areas. There was

trash on the floor and rat droppings on and around cans of baby formula.

               The bathroom was dirty with bits of trash on the floor and the floor was soaked with

water. The area around the bathtub was rotted out and open to the outside, and rats were obviously

present and nesting in the walls around the pipes. The toilet was filthy. Pieces of ceiling were falling

from rafters and daylight could be seen through the ceiling. There was a hole in the screen of the

back door large enough for a child to climb through. There was no back porch or steps, and there

was a four or five foot drop from the back door to the ground.

                The family was instructed to clean the house and get the rats exterminated. An

inspection the next day showed very little progress to that end. In addition, there was spoiled and




                                                   8
open meat found in the refrigerator. Perez reportedly was not greatly concerned about her children’s

welfare in such an unhealthy environment.

               The children were rough-housing and fighting. Perez admitted that the children

frequently witnessed the adults of the home fighting. She admitted that most of the turmoil was a

result of her own altercations with her father and sister.

               When the house was again inspected on February 19, the conditions had improved.

Overall, the house was cleaner. The food storage area had been wiped down and straightened, the

stove was white and scrubbed, the refrigerator was wiped down and arranged, the toilet was cleaned,

and the other rooms were swept and cleaned. However, rats could still be heard running around, and

the family claimed they were still attempting to make arrangements for an exterminator.

               On March 3, TDPRS made an unannounced visit to the home and conditions had again

deteriorated considerably. French fries were scattered on the floor, the children were running around

in the dirty kitchen, rats were still scampering around, and there were rat droppings in the food

storage area. A package of meat had been left open on top of a freezer to thaw and was accessible

to rats. Dirty dishes were stacked up on the counter, and there were messy spills and open food

containers in the refrigerator. The house still had not been exterminated and the mothers and children

were barefooted.     Both mothers refused any TDPRS services.            Photographs of the house

documenting the poor conditions were introduced into evidence.

               Similar conditions were found on March 5, and all of the children were removed from

the home because of “Physical Neglect and Neglectful Supervision.” The court signed temporary

orders placing Perez’s children in TDPRS custody and ordering Perez to: (1) pay $150 a month in



                                                  9
child support; (2) submit to psychological evaluation; (3) undergo counseling, especially for anger

management; (4) attend and complete parenting classes; (5) submit to drug and alcohol testing; and

(6) otherwise comply with the TDPRS service plan. Perez’s service plan required her to obtain

employment and suitable housing independent of her parents.

               Neither Perez nor anyone in her family denied the horrible condition of their house

prior to TDPRS intervention. However, they maintained that they had made considerable progress

in cleaning and repairing the home. The rats finally had been exterminated. Perez’s father used his

disability payments to do some repairs on the house. Perez claimed that she contributed funds to this

effort, which was her excuse for failing to pay the court-ordered child support. The family contended

that the home was now safe for the children. TDPRS did not substantially dispute that the conditions

of the home had greatly improved.

               Perez submitted to drug and alcohol testing which found a low probability of a

substance abuse problem.       She successfully completed parenting classes and submitted to

psychological evaluation. She obtained counseling in anger management and she undisputedly

benefitted from it. There was evidence that Perez’s oldest child had expressed a desire to return to

her. The children’s appointed attorney ad litem testified that he considered this a very close case, but

that he could not recommend termination of Perez’s parental rights.

               TDPRS contended that Perez had made little effort to comply with the service plan

and had not done so successfully. Although they had worked with her for almost eighteen months,

she still had not obtained stable employment or independent suitable housing for herself and her

children. Perez’s children are relatively young (ages two years and four years, ten months at the time



                                                  10
of the hearing), and representatives from TDPRS testified that they were adoptable. The evidence

indicated that the children were doing well in foster care.

                Perez admitted that she still lived with her parents, stayed out very late at night, and

hung out at pool halls. She admitted that her parents on occasion locked her out of their house

because she stayed out too late. In that event, she would either break into the house in the middle

of the night or sleep in her car. Her father confirmed that she had broken into his home at least six

times. When asked what Perez did all day, her father testified that when Perez is at home she

primarily cleans and watches TV. Perez testified that she had been trying to find an apartment but

had yet to find one that she could afford. She testified that she had obtained several jobs but could

not keep them because they conflicted with the visitation with her children dictated by TDPRS. Perez

did not make the child support payments ordered by the court.


                                   EVIDENTIARY DISCUSSION

                Perez challenges the legal and factual sufficiency of the evidence to support the

holding that termination was in the best interests of Perez’s children. Some of the common factors

that courts use to evaluate the best interests of a child in a given case are: (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 parental abilities of the individuals seeking custody;

(5) the programs available to assist these individuals to promote the best interest of the child; (6) the

plans for the child by these individuals or by the agency seeking custody; (7) the stability of the home

or proposed placement; (8) the acts or omissions of the parent which may indicate that the existing

parent-child relationship is not a proper one; and (9) any excuse for the acts or omissions of the

                                                    11
parent. Holley v. Adams, 544 S.W.2d 367, 372 (Tex. 1976); Leal v. Texas Dep’t of Protective &

Regulatory Servs., 25 S.W.3d 315, 321 (Tex. App.—Austin 2000, no pet.).

               The degree of proof necessary to support an order terminating a parent’s rights to a

child is clear and convincing evidence. In re G.M., 596 S.W.2d 846, 847 (Tex. 1980). Due process

requires the higher standard of proof because termination of parental rights is a drastic remedy

involving fundamental constitutional rights. Edwards v. Texas Dep’t of Protective & Regulatory

Servs., 946 S.W.2d 130, 135 (Tex. App.—El Paso 1997, no writ). This standard requires that degree

of proof which will produce in the mind of the trier of fact a firm belief or conviction as to the truth

of the proposition sought to be established.4 Id.

               This court has held that on appeal the standard of review in termination cases is not

altered by the clear and convincing standard because the factual sufficiency review in a civil case

already incorporates the degree of proof required at trial. Leal, 25 S.W.3d 320; D.O. v. Texas Dep’t

of Human Servs., 851 S.W.2d 351, 353 (Tex. App.—Austin 1993, no writ).

               In a civil case, if findings of fact and conclusions of law are neither filed nor requested,

as in this case, all findings raised by the pleadings and supported by the evidence are implied and the

judgment will be sustained on any reasonable theory consistent with the evidence and applicable law.

IKB Indus. v. Pro-Line Corp., 938 S.W.2d 440, 445 (Tex. 1997); Austin Area Teachers Fed. Credit




        4
           The purpose of the clear and convincing standard embodied in the due process clause is to
“‘instruct the fact finder concerning the degree of confidence our society thinks he should have in the
correctness of factual conclusions for a particular type of adjudication.’ In re Winship, 397 U.S. 358,
370 (1970) (Harlan, J., concurring). The standard serves to allocate the risk of error between the
litigants and to indicate the relative importance attached to the ultimate decisions.” Addington v.
Texas, 441 U.S. 418, 423 (1979).

                                                   12
Union v. First City Bank-Northwest Hills, N.A., 825 S.W.2d 795, 801 (Tex. App.—Austin 1992, writ

denied). When a reporter’s record is brought up on appeal as it was here, the legal and factual

sufficiency of the implied findings are subject to the same standards of review as jury findings. Holt

Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 84 (Tex. 1992).

                  In deciding the legal sufficiency of the evidence of an adverse finding, we consider

only the evidence and inferences supporting the finding, disregarding all contrary evidence, and affirm

if more than a scintilla of probative evidence supports the finding. Leal, 25 S.W.3d at 321. The

uncontroverted evidence regarding the deplorable conditions in the Aguillon home, the history of the

family relapsing in their maintenance of the home, the fact that Perez intended to return the children

to her parents’ home, the fact that after eighteen months Perez had made little, if any, effort to

establish a suitable home and obtain stable employment to support her children, and the evidence

reflecting her self-centered attitude without recognizing her children’s needs amounts to more than

a scintilla of probative evidence to support the finding that termination was in the best interests of

these children.

                  In resolving a challenge to the factual sufficiency of the evidence, we review all the

evidence in the record neutrally and affirm if the proof supporting the finding is not so obviously weak

or contrary to the weight of the evidence as to be clearly wrong and unjust. Leal, 25 S.W.3d at 321.

We cannot say that the evidence supporting termination in this case is so weak and the contrary

evidence so overwhelming as to make the decision wrong and unjust. Perez’s overall behavior

demonstrated a lack of sufficient maturity to enable her to adequately parent her children. She

displayed no inclination to improve her situation for the benefit of her children. She demonstrated



                                                   13
a willingness to abdicate her parental responsibilities to her parents. 5 Moreover, the evidence also

showed that these children apparently were doing well in foster care and had a very good chance of

being adopted. Viewing all the evidence neutrally, we hold that there is factually sufficient evidence

to support the finding that termination of Perez’s parental rights is in the children’s best interest.

Perez’s second complaint is overruled.


                                          CONCLUSION

               We hold that Perez did not timely appeal the associate judge’s proposed order of

termination and that there is legally and factually sufficient evidence to support the decision to

terminate. We affirm the judgment of the district court.




                                               Marilyn Aboussie, Chief Justice

Before Chief Justice Aboussie, Justices B. A. Smith and Puryear

Affirmed

Filed: April 11, 2002

Do Not Publish




       5
        There was evidence that both Perez and her sister had been removed from the Aguillon
home when they were minors as a result of sexual abuse in the home.

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