




Affirmed and Opinion filed May 17, 2007








Affirmed and Opinion filed May 17, 2007.
 
In The
 
Fourteenth Court of
Appeals
_______________
 
NO. 14-06-00552-CV
NO. 14-06-00555-CV
_______________
 
IN THE INTEREST OF T.T., A.T., D.D., A.D. and A.D.
                                                                                             
                                                  
On Appeal from the 300th District Court
Brazoria County, Texas
Trial Court Cause No. 33922
                                                                                                             
                                  
 
O P I N I
O N
 
This is an appeal from a judgment terminating the parental
rights of a mother as to five young children and a father as to three of these
children.  The mother challenges the legal and factual sufficiency of the
evidence to support the jury=s termination findings and the jury=s finding that a
state agency, rather than a relative, should be appointed as the sole managing
conservator of the children.  The father brings these same challenges as
to his three children, and he also asserts in a separate issue that the trial
court abused its discretion in excluding the testimony of his expert
witness.  Under the applicable standards of review, we conclude that the
evidence is legally and factually sufficient to support the termination of both
the mother=s and the father=s parental rights
and to support the jury=s decision as to the sole managing
conservator of the children.  We also conclude that the father has waived the issue regarding
his expert.  Accordingly, we affirm the trial court=s judgment.
                       
I.  Factual and Procedural Background
Johnny and Melissa, a married couple, are the parents of
three young children, D.D. (hereinafter ADavid@), A.D.
(hereinafter AAmy@), and A.D. (hereinafter AAddy@).[1]  Melissa is the
mother of two additional children from a previous relationship, T.T.
(hereinafter ATommy@) and A.T. (hereinafter AAdrienne@).[2]  On June 9, 2005,
the Brazoria County Children=s Protective Services Unit (ACPS@), Texas Department of Family and Protective Services (the ADepartment@), filed suit to
terminate the parental rights of Johnny and Melissa.  At that time, David
was three years old, the twins Amy and Addy were two years old, Tommy was five
years old, and Adrienne was four years old. 
Days
before the termination suit was filed, three-year old David fell out of a second-story
window in his family=s apartment while he was playing tag with several other
children in the room.  When CPS Investigator Sheila Green arrived to
investigate the incident, she found the apartment to be messy, dirty, and
smelly.  Although David=s fall was ruled accidental,  based on the condition of
the apartment, CPS temporarily removed David and his four siblings from his
parents= care, placing them with a relative,
Hattie Williams.  Green informed Johnny and Melissa that the children
would be returned if they cleaned up the apartment and made it safe by a
designated deadline.
 
Johnny
and Melissa quickly complied with CPS=s instructions, contacted Green
before the deadline, and asked her to return to re-inspect the apartment. 
Green discovered that they had done a Agreat job@ in getting the apartment cleaned up;
they had repainted, bought some new furniture, and decorated.  CPS
returned the children to their parents on June 7, 2005.  However, around
3:00 a.m. the next morning, four-year old Adrienne was found wandering outside
the family=s apartment by a neighbor, who, upon returning the child to the family=s apartment, found the door unlocked
and Johnny and Melissa asleep.  Later that day, CPS again removed the
children from Johnny and Melissa.[3]  This
time, after the placement possibilities suggested by Johnny and Melissa were
ruled out, CPS placed the children in the foster-care system.
Johnny
and Melissa had legal problems when the Department filed suit.  Both were
on probation for misdemeanor theft-by-check charges in other counties. 
Because of various probation violations, each also had served time in
jail.  In fact, during the trial of this case, Melissa was in jail because
of a probation violation, and Johnny indicated that it was possible he would be
going to jail for a probation violation in the near future.
The case
was tried to a jury, which found by clear and convincing evidence
that:   (1) Johnny and Melissa had placed or knowingly allowed their
children to remain in conditions or surroundings that endangered the children=s physical or emotional well-being;
(2) Johnny and Melissa had engaged in conduct or knowingly placed the children
with people who engaged in conduct that endangered their children=s physical or emotional well-being;
(3)  Johnny and Melissa failed to comply with provisions of a court order
that specifically established the actions necessary for them to obtain the
return of their children, who at the time had been in the temporary managing
conservatorship of the Department for not less than nine months as a result of
their removal for abuse and neglect; and (4) termination of the parent-child
relationships is in the best interests of the children.  The jury also
found by a preponderance of evidence that CPS should be appointed sole managing
conservator of the children. 
 
II.  Standards of Review
Because termination of parental rights is a drastic remedy,
due process and the Texas Family Code require the Department to prove the necessary
elements by the heightened burden of proof of Aclear and
convincing evidence.@  See Tex. Fam. Code Ann. ' 161.001 (Vernon
2002); In re B.L.D., 113 S.W.3d 340, 353B54 (Tex. 2003).  In this case, the Department had to prove by clear and convincing evidence
that Johnny and Melissa engaged in the conduct described in subsection 161.001
(1)(D),  (E), or (O), and that termination of their parental rights is in
the children=s best interest.[4] 
See Tex. Fam. Code Ann. ' 161.001
(Vernon  2002).  AClear and convincing evidence@ means Athe 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.@  Id.
' 101.007. 
In reviewing
the legal-sufficiency challenges to the jury=s termination findings, this court
must look at all the evidence in the light most favorable to the termination
findings to determine whether a reasonable factfinder could have formed a firm
belief or conviction that these finding are true.  In re J.L., 163
S.W.3d 79, 85 (Tex. 2005).  Looking at the evidence in the light most
favorable to the judgment means that a reviewing court must presume that the
factfinder resolved disputed facts in favor of its findings if a reasonable
factfinder could do so.  Id.  The reviewing court disregards
any evidence that a reasonable factfinder could have disbelieved but does not
disregard undisputed facts.  Id.  
 
In reviewing
the factual-sufficiency challenges to the jury=s termination findings, we must give
due consideration to evidence that the jury reasonably could have found to be
clear and convincing.  In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002).  The factual-sufficiency inquiry is whether the evidence is such that the
jury reasonably could form a firm belief or conviction about the truth of the
State=s allegations.  Id.  This court should consider whether the disputed evidence is such that a
reasonable factfinder could not have resolved that disputed evidence in favor
of its finding.  Id.  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 about the truth of the State=s allegations, then the evidence is
factually insufficient.  Id.  We must give due deference to a
jury=s factfindings, and we should not
supplant the jury=s judgment with our own.  In re H.R.M., 209
S.W.3d 105, 108 (Tex. 2006). 
In
reviewing the no-evidence challenges to the  jury=s sole-managing-conservatorship
findings, we must consider evidence in the light most favorable to the
challenged finding and indulge every reasonable inference that would support
it. City of Keller v. Wilson, 168 S.W.3d 802, 823 (Tex. 2005). We must
credit favorable evidence if a reasonable factfinder could and disregard
contrary evidence unless a reasonable factfinder could not.  See id.
at 827.  We must determine whether the evidence at trial would enable
reasonable and fair‑minded people to find the facts at issue.  See
id.   The jury is the only judge of witness credibility and the
weight to give to testimony.  See id. at 819. 
 
In
reviewing the factual-sufficiency challenges to the jury=s sole-managing-conservatorship
findings, we examine the entire record, considering both the evidence in favor
of, and contrary to, the challenged findings.  Cain v. Bain, 709
S.W.2d 175, 176 (Tex. 1986).  After considering and weighing all the
evidence, we set aside the fact findings only if they are so contrary to the
overwhelming weight of the evidence as to be clearly wrong and unjust.  Pool
v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986).  The jury is the
sole judge of the credibility of the witnesses and the weight to be given to
their testimony.  GTE Mobilnet of S. Tex. v. Pascouet, 61 S.W.3d
599, 615B16 (Tex. App.CHouston [14th Dist.] 2001, pet.
denied).   We may not substitute our own judgment for that of the
trier of fact, even if we would reach a different answer on the evidence. 
Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 407 (Tex. 1998). 
The amount of evidence necessary to affirm a judgment is far less than that
necessary to reverse a judgment.  Pascouet, 61 S.W.3d at 616.
III.  Issues and Analysis
In one
issue, Melissa argues the evidence is legally, or in the alternative factually,
insufficient to support the following jury findings: (1) that she engaged in
conduct or knowingly placed all of the children with persons who engaged in
conduct that endangered the children=s physical or emotional well-being;
(2) that she knowingly placed or knowingly allowed all of the children to
remain in conditions or surroundings that endangered their physical or
emotional well-being; (3) that she failed to comply with provisions of a court
order that specifically established the actions necessary for her to obtain the
return of her children, who have been in the temporary managing conservatorship
of the Department for not less than nine months as a result of their removal
for abuse and neglect; (4) that termination of the parent-child relationship
she shares with each of the children is in each child=s best interest; and (5) that CPS
should be appointed sole managing conservator of the children.  
 
Johnny
brings the same five challenges as to David, Amy, and Addy.[5]  
In addition, Johnny alleges that the trial court abused its discretion by
excluding the testimony of Sherri Simmons, his designated expert on adoption
and sibling issues.  However, because Johnny failed to specifically
present this issue to the trial court in a timely filed statement of appellate
points or in such a statement combined with his motion for new trial, Johnny
has waived this issue.  See Tex.
Fam. Code Ann. ' 263.405(b), (i) (Vernon Supp. 2006) (barring an appellate
court from considering any issue not specifically presented to the trial court
in either a timely filed statement of points the party intends to appeal or
such a statement combined with a motion for new trial).  Accordingly, we
overrule this issue.  
A.        Is the
evidence legally and factually sufficient to support termination under
161.001(1)(O)? 
Paragraph (O) of subsection 161.001(1) provides that one
basis for establishing the parental-conduct prong required for termination of
parental rights is that a parent Afailed 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] 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.@  Tex. Fam. Code Ann. ' 161.001(1)(O) (Vernon Supp. 2006). 
There is no dispute that at the time of trial the children
had been in the temporary managing conservatorship of the Department for not less
than nine months as a result of the children=s removal from
Johnny and Melissa under Chapter 262 for abuse or neglect.[6]  Furthermore, the
evidence shows, and Johnny and Melissa do not dispute, that the trial court signed
an order, in which the trial court ordered Johnny and Melissa to take the
following specific actions that the trial court stated were necessary for them
to obtain the return of the children:
(1)     submit to and cooperate
fully in the preparation of a psychological assessment . . . with a
psychologist designated by [CPS], and follow all recommendations of the
psychologist with regard to further assessment or treatment, including but not
limited to psychiatric evaluation and treatment.
(2)     attend, actively
participate in, and successfully complete parenting classes with a provider
designated by [CPS] and to submit to [CPS] a certificate of completion for the
same.
 
(3)     attend, actively
participate in, and successfully complete counseling with a therapist
designated by [CPS] to address the specific issues that led to the removal of
the subject children from the home and to address any additional issues arising
during the pendency of this case, and follow any and all recommendations of the
therapist.
(4)     submit to and
successfully complete a drug and alcohol abuse assessment at Gulf Coast Center or another treatment facility designated by [CPS], and follow all
recommendations made by facility staff with regard to further assessment or
treatment, whether said recommendation be for inpatient or outpatient
treatment.
(5)     remain drug and alcohol
free during the pendency of this suit . . . and submit to random drug/alcohol
screenings as directed by [CPS] . . .
(6)     maintain a safe and
stable home environment, and
(7)     comply with each
requirement set out in the original, or any amended, service plan filed with
the Court during the pendency of this suit by [CPS] . . . .
Testifying during the Department=s case-in-chief,
Johnny admitted that he did not complete the counseling ordered in item (3),
above.  Johnny also testified that he had not complied with the court=s order in item
(6) to maintain a safe and stable home environment.  Johnny testified that
his current home is not a safe and stable environment for the children. 
Johnny also admitted that he had not complied with each requirement set out in
his service plan as ordered by the trial court in item (7).  Explaining
that his job allows him to not work on any given day if he has something he
needs to do, Johnny testified there is no reason why he could not have taken
off work to finish his counseling, to maintain his home, and to take care of
his responsibilities with CPS.  
Likewise, Melissa, testifying during the Department=s case-in-chief,
admitted that she did not follow all recommendations of her psychologist as
required in item (1).  Melissa admitted that she did not successfully
complete counseling with her therapist as required in item (3). 
Additionally, Melissa testified that she had not complied with the court=s order in item
(6) to maintain a safe and stable home environment for her children. 
Melissa also admitted that she had not complied with each requirement set out
in her service plan as ordered by the trial court in item (7).  Johnny
also testified that he was aware that Melissa was not undergoing the therapy
and completing the counseling ordered by the trial court.  
 
CPS referred Johnny and Melissa to therapist Provilla
Scruggs for their counseling as required by item (3) above.  Scruggs
testified that Melissa did not successfully complete counseling as ordered by
the trial court.  Scruggs also stated that Melissa did not even make
substantial progress in successfully completing this counseling.  Scruggs
listed seven treatment goals that Melissa and she had developed for Melissa=s
counseling.  Scruggs testified that Melissa had achieved only one of these
goals.  Though  Melissa had made some progress on two of the goals,
she had not achieved the remaining four goals.  Scruggs testified that she
had eleven counseling sessions with Melissa between July and December of
2005.  Melissa failed to appear for a counseling appointment on December
1, 2005, and after her counseling session on December 22, 2005, Melissa never
again appeared for further sessions to complete her counseling.  Scruggs
called Melissa a few times and saw her once in the CPS parking lot. 
Melissa called in April 2006, and Scruggs made an appointment for counseling;
however, Melissa later canceled, saying she had car trouble. 
Scruggs first saw Johnny in September 2005, after he was
released from jail.  Scruggs removed Johnny from her schedule after he
failed to appear for two sessions, and she testified that she had not
seen  him since January 2006.  According to Scruggs, she provided
Johnny and Melissa many chances to complete their court-ordered counseling, yet
they failed to do so. 
Carolyn Davis, Johnny and Melissa=s CPS caseworker
also testified as follows:
!       Melissa
completed her court-ordered services to a degree.  In the fall of 2005,
Melissa completed everything and was Agoing to everything aggressively.@  However, in early 2006,
legal problems got in the way, and Melissa dropped out of the counseling.
!       To Davis=s knowledge, Melissa followed the
recommendations of her psychologist.
!       To Davis=s knowledge, Melissa had not been
taking her medications for her bipolar disorder.
 
!       Johnny and
Melissa have not maintained a safe and stable home as ordered by the trial
court.
!       When asked
whether Johnny had completed his court-ordered services, Davis answered Ayes@ and stated that Johnny had done the psychological
assessment, the drug assessment, parenting classes, and the counseling until Alegal problems got in the way and
he dropped out.@ However, she also testified that
Johnny had not completed the court-ordered services because he did not complete
the counseling.  
!       Davis believes
that Johnny and Melissa have substantially completed their court-ordered
services.  
!       Johnny and
Melissa were told multiple times that they needed to complete their
court-ordered services and comply with the trial court=s orders within one year of the
children coming into CPS=s care.
!       Johnny and
Melissa failed to comply with the provisions of the trial court=s order establishing what was
necessary for the children to be returned to their home. 
!      
Davis no longer believes that Johnny and Melissa substantially completed the
court-ordered services.  They were Aover 51 percent,@ but they were not
substantially complying.  
Johnny and Melissa assert in their issues that there is
legally and factually insufficient evidence to support the jury=s finding that
they Afailed to comply
with the provisions of a court order that specifically established the actions
necessary for [them] to obtain the return of the children.@  However,
Johnny and Melissa do not explain how there is no evidence that they failed to
comply with the trial court=s order.  This is not surprising
because Johnny testified that he failed to comply with three of the seven items
in the court=s order, and Melissa testified that she had failed to
comply with four of the seven items. 
 
Instead, in their appellate briefing, Johnny and Melissa
focus on the parts of Davis=s testimony in which she stated that
Johnny and Melissa had substantially completed the requirements  ordered
by the court.  This argument raises the issue as to whether substantial
completion is sufficient to avoid a termination finding under section
161.001(1)(O).  Johnny and Melissa assert that, because this court must
strictly construe termination statutes in favor of the parents, we should
construe section 161.001(1)(O) as requiring only substantial compliance with or
completion of the trial court=s order.  Johnny and Melissa have not
cited, and this court has not found, any cases holding that substantial
completion or substantial compliance is sufficient to avoid a finding under
section 161.001(1)(O).[7] 
Research  reveals that substantial completion or substantial compliance is
not enough to avoid a termination finding under this section.  See In
re T.N.F., 205 S.W.3d 625, 630B31 (Tex. App.CWaco 2006, pet.
denied)  (indicating the parents must comply with every requirement of the
court order and holding that section 161.001(1)(O) does not allow for
consideration of excuses as to why parents failed to comply with all provisions
of the court=s order); In re D.L.H., No. 04-04-00876-CV,
2005 WL 2989329, at *2 (Tex. App.CSan Antonio Nov.
9, 2005, no pet.) (mem. op.) (rejecting parents= arguments that
substantial compliance is sufficient to avoid a finding under section
161.001(1)(O)); see also In re J.R., No. 14-01-01042-CV, 2002 WL
31318790, at *8 (Tex. App.CHouston [14th Dist.] Oct. 17, 2002, no
pet.) (not designated for publication) (stating that section 161.001(1)(O)
requires the parent in question to comply with all of the terms of the court=s order).
 
Nevertheless, we need not address whether substantial
completion or substantial compliance may be sufficient to avoid a finding under
section 161.001(1)(O) because, presuming without deciding that it is
sufficient, the evidence is still legally and factually sufficient to support
the jury=s findings under
section 161.001(1)(O).  In part of her testimony, Davis initially
indicated that Johnny had completed his court-ordered services and that Johnny
and Melissa had substantially completed their court-ordered services.  However, Davis  retracted this
testimony, later testifying that Johnny and Melissa failed to substantially
comply with the trial court=s order.  We conclude the jury reasonably could have
credited the parts of Davis=s testimony supporting a conclusion that Johnny and Melissa
did not substantially comply with the court order or substantially complete the
actions ordered by the trial court. See In re J.P.B., 180 S.W.3d 570,
573 (Tex. 2005) (stating that, in reviewing sufficiency of the evidence in
cases involving Aclear and convincing@ burden of proof,
appellate courts must defer to the jury=s credibility
determinations, at least as long as they are not unreasonable).  Furthermore, Stephanie Sammons, Davis=s supervisor at CPS, testified as to her belief
that Johnny and Melissa had not substantially complied with their court-ordered
services and other requirements necessary for the children to be
returned.  Likewise, the testimony of Scruggs, Johnny, and Melissa also support the conclusion that
Johnny
and Melissa did not substantially complete their court-ordered services or
substantially comply with the trial court=s order specifically establishing the actions
necessary for the children to be returned.  
Reviewing
all the evidence in the light most favorable to the termination findings, we
conclude that a reasonable factfinder could have formed a firm belief or
conviction as to the truth of the termination findings under section
161.001(1)(O).  See In re T.N.F., 205 S.W.3d at 630B31 (holding
evidence was legally and factually sufficient to support termination of father=s parental rights
under section
161.001(1)(O) based on his failure to comply with all twelve of the specific actions
listed in the trial court=s order); In re D.L.H., 2005 WL
2989329, at *2 (holding evidence was legally and factually sufficient to
support termination of parents= rights under section 161.001(1)(O) based on their
failure to fully comply with only two items in the trial court=s order); In re
J.M.M., 80 S.W.3d 232, 244 (Tex. App.CFort Worth 2002,
pet. denied) (concluding that, even presuming that substantial compliance could
be sufficient to avoid termination under section 161.001(1)(O), evidence was legally and factually
sufficient to support termination of mother=s parental rights
under this section), disapproved on other grounds by, In re J.F.C.,
96 S.W.3d 256, 267 (Tex. 2002).
 
In light
of the entire record, the disputed evidence that a reasonable factfinder could
not have credited in favor of the termination findings under section 161.001(1)(O)
is not so significant that a factfinder could not reasonably have formed a firm
belief or conviction as to the truth of these findings.  See In re J.F.C., 96 S.W.3d at 266.  Giving due
consideration to the evidence the jury reasonably could have found to be clear
and convincing, we conclude the jury reasonably could form a firm belief or
conviction about the truth of the termination findings under section
161.001(1)(O).  See In re T.N.F., 205 S.W.3d at 630B31; In re D.L.H., 2005 WL 2989329, at
*2; In re J.M.M., 80 S.W.3d at 244.  Accordingly, we overrule
Melissa=s third sub-issue
and Johnny=s third issue, both of which challenge the sufficiency
of the evidence to support the jury=s findings under section 161.001(1)(O).[8]
B.        Is the
evidence legally and factually sufficient to support the findings that
termination is in the best interests of the children? 
In Melissa=s fourth sub-issue and Johnny=s fourth issue,
they assert the evidence is legally and factually insufficient to support the
jury=s findings that
termination of their parental rights is in the best interests of each of the
children.  The jury was instructed that some factors that may be
considered in making this determination are (1) the desires of the child; (2)
the emotional and physical needs of the child now and in the future; (3) any
emotional and physical danger to the child now and in the future; (4) the
parenting ability 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 parent.  See Holley v. Adams, 544 S.W.2d 367, 371B72 (Tex.
1976).  ABest interest@ does not require
proof of any unique set of factors, nor does it limit proof to any specific
factors.  Id. 
 
CPS caseworker Carolyn Davis testified that the children
usually had to be reminded to hug their parents at the end of their
visits.  She also stated that during the visits she did not see much of a
bond between Melissa and her children.  Davis testified that when the
children went into foster care, they were  Abehind in their
development.@  However, since being in foster care, they all
had improved significantly.  The children were described as happy and
secure in their foster placements, with all of them being in stable foster
homes for several months.  Davis stated that, in her opinion as a
caseworker, adoption is in the best interest of these five children, which
necessarily requires termination of Johnny=s and Melissa=s parental
rights.  Davis stated that CPS=s goal for the
five children is adoption.  The three youngest children are currently
placed with foster parents who would like to adopt them.  David is with
one set of foster parents who would like to adopt him, and Amy and Addy are
with another set of foster parents who would like to adopt them.  Davis
stated that it would be in their best interests for Amy, Addy, and David to be
adopted together but that there is no guarantee of such an outcome.  Davis
also stated that the younger children=s half-siblings,
Tommy and Adrienne are currently in separate foster homes.  
Pauline Clansy, the psychologist who performed the
psychological evaluations on Johnny and Melissa, testified that Johnny would be
able to parent, given adequate support.  She agreed that, hypothetically,
if Johnny had substantially complied with his individual therapy and if he had
successfully completed the parenting classes, he would be able to parent the
five children.  However, she did not reach the same conclusion as to
Melissa=s prospects for
successful parenting.  Dr. Clansy stated that Melissa has difficulty with
change and problems planning and following through with activities, which make
parenting a challenge.  According to Dr. Clansy=s reports, both
Johnny and Melissa suffer from some degree of bipolar disorder.  
 
Provilla Scruggs, the CPS-provided therapist, stated that
both Johnny and Melissa would  have difficulty making the changes
necessary for them to succeed as parents.  Scruggs testified that she had
concerns about Melissa=s ability to make appropriate choices and
parental judgments, as well as her ability to take responsibility for the care
of her five children.  Scruggs stated she does not think Johnny and Melissa
could provide a safe and stable home environment for their children at this
time.  According to Scruggs, Melissa could not provide Johnny with the
stability and support he needs to even parent three of the five children. 
Scruggs testified that part of Melissa=s problem is that
she has not been taking medication for her biploar disorder.  Scruggs
stated that, even if Melissa takes medications to address her bipolar disorder
and depression, these medications may not remedy Melissa=s difficulty making
good choices or solve her various problems with insight, consistency in
parenting, cleanliness of her house, and taking responsibility.
A former neighbor of Johnny and Melissa testified that,
around 3:00 a.m., she saw four-year-old Adrienne coming down the stairs from her apartment by
herself.  The neighbor took Adrienne back upstairs and woke up Johnny and
Melissa.  According to the neighbor, Melissa was not surprised and stated
that A[Adrienne] does that all the time.@  The neighbor testified that this
incident occurred before David fell out of the window and was not the incident with Adrienne in which CPS
was called.  
Johnny testified to several time periods during the
children=s lives in which
he would be living apart from Melissa and the children for two to six months to give Melissa and
Johnny time to Acool off.@  Johnny admitted these separations would contribute to
a chaotic and unstable environment for the children.  Addressing his
criminal record, Johnny testified that he was on probation in three different
counties for theft-by-check and that, as of trial, Johnny was not in compliance
with his probation requirements in any of the three counties.  Johnny
acknowledged that, if the trial court in any one of these counties found that
he had violated his probation, he could be incarcerated for as long as one
year.  Johnny stated that, since he married Melissa, he has been
incarcerated five or six times, and Melissa has been incarcerated three times. 
 
Johnny
also admitted that he had a webpage on Amyspace.com,@ which included a photograph of
Johnny and a statement that he was single.  This webpage also contained
the statement, AI don=t want kids.@  Although Johnny acknowledged this was his webpage, he
claimed not to know about the contents of the webpage and stated that he
emailed the photograph of himself to Tim Shank, who then set up the
webpage.  Johnny testified that this webpage was created less than two
weeks before trial and that if called to testify, Tim Shank would take
responsibility for setting up the webpage.  The next day, Tim Shank
testified he did not set up and knew nothing about any webpage that Johnny had
on Amyspace.com.@  Melissa testified that Johnny
had been unfaithful to her while she was pregnant with their twin
daughters.  There was sufficient evidence for the jury reasonably to
conclude that Johnny set up the webpage, which stated he was single and did not
want children.  
At the
time of trial, Melissa was incarcerated in the Brazoria County Jail and
anticipated being in jail for another eight weeks.  Melissa stated that
she was not in compliance with the terms of her probation in another county
and, for that reason, could be jailed for another six months in that
county.  Melissa testified that she was surprised to learn about her
husband=s webpage but that it did not upset
her.  When asked why the webpage did not upset her, she said that she did
not know.  Melissa testified that, if the children are returned, then
Johnny and she plan on getting a bigger home, making it safe, and giving the
children everything they need mentally and physically.  
 
Moreover,
Johnny=s and  Melissa=s failure to complete the
court-ordered therapy with Scruggs militates in favor of the jury=s finding, even though they both
provided excuses for this failure.  Johnny agreed at trial that he had not
maintained a safe and stable home environment.  Johnny testified that he
had not given his children the love and discipline they require to satisfy
their emotional needs.  Johnny testified that if the children were
returned to Johnny and Melissa and both parents were incarcerated, they would
arrange for a relative, Hattie Williams to care for the children. 
Williams is the seventy-two-year-old great-grandmother of the children=s cousin.  Johnny stated that, if
he were incarcerated, he could not help support his children, but that Williams
has support from churches and the surrounding communities.
The
twins= foster mother testified that she and
her husband had been caring for the girls since June 8, 2005, and that they
would like to adopt Amy and Addy.  She stated that when the twins first
arrived they were full of head lice and talked a lot but not in a way that the
foster parents understood.  They would not answer to their names but they
indicated that their names were ANoony@ and AMs. Piggy.@  Their foster mother stated
that testing indicated that Amy and Addy were one year behind in their
development; however, she said they have been improving in foster care.  
David=s foster mother testified that David
has been living with her husband and her  since August 2005.  She
testified that when they began to care for him, David had very bad speech
problems and difficulty with boundaries and discipline.  David now sees a
speech therapist twice a week and has progressed quite a bit.  She and her
husband would like to adopt David.  She also testified that she knows a
foster family that has expressed a strong interest in adopting Tommy and
Adrienne.  If these three sets of foster parents adopt the five children,
then all of the adoptive parents would know one another, which would make it
possible for the children to have contact with one another in the future. 

In her
case-in-chief, Melissa testified that, if the children are returned, she plans
to move to a three-bedroom apartment in a complex in which they previously
lived.  She intends to continue the speech therapy the children are
currently receiving in foster care.  She said she would see a doctor for
her bipolar disorder and take the medications that he prescribed.  She
also stated that she would get a job at a fast-food restaurant and have Hattie
Williams babysit for the children while she was at work.  
 
In his
case-in-chief, Johnny testified that, if the children are returned, he plans on
moving into a three-bedroom apartment and seeing if the children can continue
to address their developmental delays through the services they are currently
receiving while in foster care.
Stephanie
Sammons, Davis=s supervisor at CPS, testified that she believes it is in the children=s best interest
that Johnny=s and Melissa=s parental rights
be terminated.  Sammons also stated that she does not feel it is in the
children=s best interest to
be separated from their brothers and sisters or to be placed in foster homes in
which they potentially could bond again and then have that bond broken. 
Sammons testified that preserving the bond between brothers and sisters is
essential to their long-term emotional well-being.  Sammons explained that
it is in the best interest of the children that, if their natural parents= parental rights
are terminated, the children should be placed, if possible, with an appropriate
relative or close family friend who has had a significant relationship with the
children.  Sammons testified that, if Johnny=s and Melissa= parental rights
are terminated, CPS would look first for an adoptive placement in which all
five children could stay together.  If CPS could not find such a
placement, then, according to Sammons, CPS would see if there are adoptive
placements available for multiple children to maintain contact between the
siblings.  Sammons stated that, if the five children could not be adopted
in a single placement, then CPS would determine what other adoptive placements
should be pursued, including potential adoption by the foster parents with whom
the children are currently placed.  Sammons stated that she had never seen
an instance of five children being adopted  in one home, although she
could not remember ever trying to place five children together.  Sammons
stated that she was somewhat confident that all five children could be placed
together.   
 
Reviewing
all the evidence in the light most favorable to the termination findings, we
conclude that a reasonable factfinder could have formed a firm belief or
conviction as to the truth of the jury=s findings that termination
of Johnny=s and Melissa=s parental rights
is in the best interests of the children.  See Smith v. Texas Dep=t of Prot. &
Reg. Servs., 160 S.W.3d 673, 680B83 (Tex. App.CAustin 2005, no
pet.) (concluding evidence is legally sufficient to support best-interest
finding).  In light
of the entire record, the disputed evidence that a reasonable factfinder could
not have credited in favor of the jury=s best-interest findings is not so
significant that a factfinder could not reasonably have formed a firm belief or
conviction as to the truth of these findings. See In re J.F.C., 96 S.W.3d at 266.  Giving due
consideration to the evidence the jury reasonably could have found to be clear
and convincing, we conclude that the evidence is such that the jury reasonably
could form a firm belief or conviction about the truth of its findings that termination
of Johnny=s and Melissa=s parental rights
is in the best interests of the children.  See Smith, 160 S.W.3d at 680B83 (concluding
evidence is factually sufficient to support best-interest finding); In re
V.A., No. 13-06-237-CV, 2007 WL 293023, at *5B7 (Tex. App.CCorpus Christi
Feb. 1, 2007, no pet. h.) (mem. op.) (concluding evidence is factually
sufficient to support best-interest findings).  Accordingly we overrule
Melissa=s fourth sub-issue
and Johnny=s fourth issue.[9]
 
C.        Is the
evidence legally and factually sufficient to support the jury=s findings that  CPS rather than the children=s relative should be the sole managing conservator of
the children? 
In
Melissa=s fifth sub-issue and in Johnny=s fifth and sixth issues, they argue the
evidence is legally and factually insufficient to support the jury=s finding, by a preponderance of the
evidence, that CPS, rather than Hattie Williams, should be appointed sole
managing conservator of the children.  In analyzing these issues, we apply
the familiar standard of review for legal and factual sufficiency in civil
cases in which the burden of proof at trial was by a preponderance of the
evidence.  See Corrales v. Dep=t of Family and Prot. Servs., 155 S.W.3d 478, 487B88 (Tex. App.CEl Paso 2004, no pet.).
Hattie
Williams is a distant relative of the children who has cared for them in the
past. Melissa testified that Williams is between seventy and eighty years
old.  According to Melissa, Williams was recently married and has Aa lot on her plate.@  Although she acknowledged that
rearing five young children is a huge responsibility, Melissa thinks it is
realistic for Williams to care for the five children, all of whom have some
special needs.  Johnny and Melissa each stated they have no concerns with
the children being placed with Williams on a long-term basis.  Melissa
testified that, if Johnny and she could not keep the children, then it would be
in each child=s best interest to live with Williams.
CPS
caseworker Carolyn Davis testified that there are too many concerns about
placing the children with Williams. She explained that Williams told her that
she did not think she could follow the rules regarding visitation and parent
access to the children.  Davis also stated that she had concerns based on
Williams=s advanced age and the fact that the
children are very active, requiring a great deal of care.  Davis noted
that Williams recently married and that she already is caring for two of her
great-grandchildren, who live in her home.  
 
Hattie
Williams testified that she is seventy-two years old and in very good
health.  She knows, loves, and has a bond with the five children. 
She stated she and her husband would be willing to take the children on a
long-term basis if Johnny=s and Melissa=s parental rights are terminated.  Williams admitted
telling caseworker Davis that Williams would have trouble following
instructions or the court order but said that, since then, she has talked to
Davis, Johnny, and Melissa, and now would be willing to follow the instructions
of CPS and the court.  Williams, who has one daughter, three
grandchildren, and four great-grandchildren, has raised her own child as well
as five siblings, a niece, a nephew, and a child who was entrusted to her for
seven years by the child=s parents.  Williams currently has two
great-grandchildren living with her during the week, and they are three and
four years old.  Williams said she could take care of seven children at
once.  
Stephanie
Sammons, Davis=s supervisor at CPS, testified that she had issues with the children
being placed with Williams because Williams already had two great grandchildren
living with her that she cared for on a fairly permanent basis. 
Furthermore, Davis stated that Williams had informed Davis that she could not
follow the rules of the court regarding visitation and maintaining contact
between children and parents.  Sammons stated that, even if Williams were
willing to follow these rules, Sammons would have concerns about Williams=s ability to properly manage all five
children in the home on a long-term basis.  Under the applicable standards
of review, we conclude the evidence is legally and factually sufficient to
support the jury=s finding that CPS, rather than Williams, should be appointed
sole managing conservator of the children.  See Corrales, 155
S.W.3d at 489B91 (concluding that the evidence was legally and factually sufficient to
support the jury=s finding that CPS rather than the children=s grandmother should be appointed
sole managing conservator upon termination of the parents= parental rights).  Accordingly we
overrule Melissa=s fifth sub-issue and Johnny=s fifth and sixth
issues.
                                                            
IV.  Conclusion
 
The
evidence is legally and factually sufficient to support the jury=s findings regarding the
parental-conduct prong under section 161.001(1)(O) and the best-interest
prong.  Likewise, the evidence is legally and factually sufficient to
support the jury=s findings that CPS, rather than Hattie Williams, should be
appointed sole managing conservator of the children.  Accordingly, we
affirm the trial court=s judgment.
 
 
 
/s/        Kem
Thompson Frost
Justice
 
 
Affirmed and Opinion filed May 17,
2007.
Panel consists of Justices Frost, Seymore,
and Guzman.







[1]          
To protect the privacy of the parties in this case, we identify the children by
fictitious names and the parents by their first names only.  See Tex. Fam. Code Ann. ' 109.002(d) (Vernon 2002).


[2]          
Tommy and Adrienne=s father voluntarily relinquished his parental rights
and is not a party to this appeal.


[3]          
Johnny and Melissa were both arrested this same day for outstanding warrants in
other counties.


[4]          
Unless otherwise specified, all statutory citations in this opinion are to the
Texas Family Code.


[5]          
Both parents= rights were terminated in the same trial, and the
Department presented similar evidence in seeking to terminate each parent=s rights.  Therefore, we address the parents= respective issues together. When we refer to Johnny=s parental rights, however, we refer to these rights
only as to David, Amy, and Addy, the only children as to which he has
rights.  


[6]          
In any event, there is legally and factually sufficient evidence in the record
to support such a finding.


[7]          
Johnny cites no cases in this regard, and the only case Melissa cites is not on
point because it does not involve termination based on section 161.001(1)(O).  See
Doria v. Texas Dep=t Human Res.,
747 S.W.2d 953, 958 (Tex. App.CCorpus Christi
1988, no writ).


[8]          
Having done so, we need not address Melissa=s
first and second sub-issues and Johnny=s
first and second issues challenging the jury=s
findings under section 161.001(1)(D) and (E).


[9]          
Johnny and Melissa cite four cases in which courts have concluded the evidence
is legally or factually insufficient to support best-interest findings;
however, these cases are factually distinguishable and not on point.  See
In re C.T.E., 95 S.W.3d 462, 467B69
(Tex. App.CHouston [1st Dist.] 2002, pet. denied) (holding
evidence was factually insufficient to support best-interest finding because
(1) the children had behavioral problems and special needs and there was no
evidence that they were adoptable or what the chances were that they would be
adopted by the same family, (2) one child had been in nine different foster
homes and the other in six different foster homes, and (3) there was evidence
one child was sexually abused while in CPS=s
care); Ybarra v. Tex. Dep=t of Human Servs., 869 S.W.2d
574, 579B80 (Tex. App.CCorpus
Christi 1993, no writ) (concluding evidence was factually insufficient to
support best-interest finding after finding insufficient evidence to support
parental-conduct finding and in case where one of petitioner=s social workers testified that termination of
parental rights was not in children=s
best interest); Doria, 747 S.W.2d at 58 (finding evidence factually
insufficient based on parental-conduct finding); In re A.L.F., 690
S.W.2d 106, 107 (Tex. App.CBeaumont 1985,
no writ) (finding evidence legally insufficient in short opinion that does not
discuss evidence relating to best-interest finding).



