Opinion filed October 21, 2010




                                            In The


   Eleventh Court of Appeals
                                          __________

                                    No. 11-09-00362-CV
                                        __________

            IN THE INTEREST OF D.W.W.D. & M.L.B.M., CHILDREN


                           On Appeal from the 35th District Court
                                   Brown County, Texas
                            Trial Court Cause No. CV 08-09-293


                            MEMORANDUM OPINION

       This is an accelerated appeal from a trial court’s order terminating appellants’ parental
rights. We affirm.
                                      I. Background Facts
       Virgie DeLisle and Michael Massey are the biological parents of D.W.W.D. and
M.L.B.M. DeLisle is married to Timothy DeLisle, but the two are separated. At the beginning
of this case, DeLisle, Massey, and the children lived with DeLisle’s mother, Kitty Carlisle.
       On August 29, 2008, DeLisle and Carlisle took DeLisle’s one-month-old daughter,
M.L.B.M., to Brownwood Regional Medical Center. When admitted, the infant weighed less
than her birth weight. Staff determined that the parents had not been mixing the formula
correctly. The hospital filed a report with the Texas Department of Family and Protective
Services.
       The Department’s investigation uncovered further causes for concern. In addition to
difficulties mixing the formula, the Department was concerned that the parents were using tap
water in the formula and that DeLisle, Massey, and Carlisle had taken M.L.B.M. to swim in Lake
Brownwood while the umbilical cord was still attached to her navel, thereby exposing the infant
to a risk of infection. A visit to their home revealed it to be filthy. Twenty-one month old
D.W.W.D was not verbal and had head lice. DeLisle, Massey, and Carlisle appeared to the
Department’s investigator to be cognitively impaired, a fact psychiatric evaluations later
confirmed. The Department removed the children from the home and eventually sought the
termination of DeLisle’s and Massey’s parental rights.
       A jury trial was held in October 2009, with the jury finding by clear and convincing
evidence that the parental rights of DeLisle and Massey should be terminated.
                                             II. Issues
       On appeal, DeLisle and Massey argue that the evidence was legally and factually
insufficient to support the jury verdict terminating their parental rights. DeLisle also argues that
she was unduly prejudiced by the Department’s excessive use of leading questions in the direct
examination of LVN Angie Willett.
                               III. Legal and Factual Insufficiency
       A. Standard of Review.
       The natural right existing between a parent and a child is of “constitutional dimensions.”
Wiley v. Spratlan, 543 S.W.2d 349, 352 (Tex. 1976). There is a strong presumption that it is in
the child’s best interest to remain with the natural parent. In re R.R., 209 S.W.3d 112, 116 (Tex.
2006). Grounds for termination must be established by clear and convincing evidence. This
requires a 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. TEX. FAM. CODE ANN.
§ 101.007 (Vernon 2008).
       In a legal sufficiency review, we look at all the evidence in the light most favorable to the
finding to determine whether a reasonable trier of fact could have formed a firm belief or
conviction that its finding was true. In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002). In doing so,
we must assume that the factfinder resolved disputed facts in favor of its finding if a reasonable
factfinder could do so, and we disregard all evidence that a reasonable factfinder could have
disbelieved or found to have been incredible. Id.

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       In a factual sufficiency review, we must give due consideration to evidence that the trier
of fact could reasonably have found to be clear and convincing. Id. We must determine whether
the evidence is such that the factfinder could reasonably have formed a firm belief or conviction
regarding the allegations. Id. We must also consider whether the disputed evidence is such that
a reasonable factfinder could not have resolved that disputed evidence in favor of its finding. Id.
To determine if the evidence is factually sufficient, we give due deference to the trial court’s
findings and determine whether, on the entire record, the trial court could reasonably form a firm
conviction or belief that the parent committed an act that would support termination and that
termination of the parent’s parental rights would be in the child’s best interest. In re C.H., 89
S.W.3d 17, 28 (Tex. 2002).
       Only one ground of termination is necessary for a judgment of termination when there is
also a finding that termination is in the child’s best interest. In re A.V., 113 S.W.3d 355, 362
(Tex. 2003).
       B. Grounds for Termination.
       In its verdict, the jury found four statutory grounds for the termination of parental rights:
           (1) that the parent had knowingly placed or allowed the children to remain in
       conditions or surroundings which endanger the physical or emotional well-being
       of the children. TEX. FAM. CODE ANN. § 161.001(1)(D) (Vernon Supp. 2010).

          (2) that the parent had engaged in conduct or knowingly placed the children
       with persons who engaged in conduct which endangers the physical or emotional
       well-being of the children. Section 161.001(1)(E).

           (3) that the parent had failed to comply with provisions of a court order that
       specifically established the actions necessary for the parent to obtain the return of
       the children who have been in the permanent or temporary managing
       conservatorship of the Department of Family and Protective Services for not less
       than nine months as a result of the children’s removal from the parent as a result
       of the abuse or neglect of the children. Section 161.001(1)(O).

           (4) that the parent had a mental or emotional illness or a mental deficiency
       that renders them unable to provide for the physical, emotional, and mental needs
       of the children and will continue to render the parent unable to provide for the
       children’s needs until the 18th birthday of the children, despite at least six months
       of reasonable efforts to return the children to the parent. Section 161.003(a).

       Section 161.001(1)(E) of the Texas Family Code requires clear and convincing proof that
the parent “engaged in conduct or knowingly placed the child with persons who engaged in

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conduct which endangers the physical or emotional well-being of the child.” This section refers
not only to the parent’s acts, but also to the parent’s omissions or failures to act. In re J.A., 109
S.W.3d 869, 875 (Tex. App.—Dallas 2003, pet. denied). Endanger means “to expose to loss or
injury; to jeopardize.” In re M.C., 917 S.W.2d 268, 269 (Tex. 1996). Although endanger means
more than a threat of physical injury or the possible ill effects of a less-than-ideal family
environment, it is not necessary that the conduct be directed at the child or that the child actually
suffers injury. Id. The Department need not establish the specific danger to the child’s well-
being as an independent proposition; the danger may be inferred from parental misconduct.
Phillips v. Tex. Dep’t of Protective & Regulatory Servs., 149 S.W.3d 814, 817 (Tex. App.—
Eastland 2004, no pet.).
       At the time in question, DeLisle and the children had been staying at Carlisle’s house in
Blanket, Texas. Also staying there was Carlisle’s elderly boyfriend Clarence Wachoviak. For
the first few months of D.W.W.D.’s life, DeLisle and her husband Timothy had lived together.
When Timothy discovered that Massey was the father of D.W.W.D., he and DeLisle separated.
After the separation, Timothy and Carlisle began a sexual relationship.
       Massey moved into the home. At trial, DeLisle testified that she had concerns about how
Massey disciplined the children but refused to go into specifics. She also did not think that he
provided for them financially. Periodically, DeLisle and Carlisle would kick Massey out, and he
would return to his mother’s house in Bangs, Texas.
       Whenever Massey was not there, Timothy would return to Carlisle’s house. Timothy
was physically abusive toward DeLisle and Carlisle. At trial, DeLisle also testified that Timothy
had been violent toward the children. Carlisle testified that Timothy is not someone the children
should be around. Nevertheless, there was evidence that both DeLisle and Carlisle remained in
contact with Timothy up to the date of trial.
       Child Protective Services became involved in this case when M.L.B.M. was hospitalized
a month after she was born for failure to thrive. When admitted to the hospital, she weighed four
ounces less than her birth weight. Angie Willett, a nurse who had treated M.L.B.M. and who
had worked at the pediatric department of the Brownwood Regional Medical Center for six
years, testified that M.L.B.M. was the thinnest failure-to-thrive patient she had seen. It was
determined that the parents were not making the formula strong enough. In addition, doctors
were concerned that DeLisle’s use of hot tap water to mix the formula was exposing the infant to

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chemicals from the water heater. DeLisle also admitted that she, Massey, and Carlisle had taken
M.L.B.M. swimming in Lake Brownwood while the infant’s umbilical cord was still attached,
thus risking infection.
       While DeLisle and Carlisle were at the hospital with M.L.B.M., Massey and Wachoviak
looked after D.W.W.D. When a C.P.S. investigator visited the house, the place was filthy.
D.W.W.D. appeared dirty and had a bad case of head lice. Even though their pediatrician had
told DeLisle and Massey that the only way to treat the lice was to cut D.W.W.D.’s hair short,
Massey had refused to let anyone do so. D.W.W.D. appeared to be developmentally delayed.
When CPS removed D.W.W.D. from the home a few days later, he was wearing an outfit that
was too small and a urine-soaked diaper filled with feces.
       These facts are sufficient to allow a reasonable juror to form a firm conviction that
DeLisle and Massey engaged in conduct or knowingly placed the children with persons who
engaged in conduct that endangered the physical or emotional well-being of the children.
Therefore, the evidence is legally and factually sufficient to establish grounds for termination
under Section 161.001(1)(E) of the Texas Family Code. Because only one ground is needed to
support a termination order, it is unnecessary to discuss the remaining statutory findings.
       C. Best Interests of the Children.
       To terminate the parent-child relationship, the trial court must also find that termination is
in the best interest of the children. Tex. Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531 533
(Tex. 1987).    When reviewing the sufficiency of the best-interest evidence, we apply the
nonexclusive factors found in Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976). These
factors include (1) the desires of the children, (2) the emotional and physical needs of the
children now and in the future, (3) the emotional and physical danger to the children 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 children, (6) the plans for the
children 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 that may indicate that the existing
parent-child relationship is not a proper one, and (9) any excuse for the acts or omissions of the
parents. Id. The Department need not prove all of these factors. In re C.H., 89 S.W.3d at 27. In
an appropriate case, proof of just one factor may be sufficient. Id.



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       After removal, CPS prepared a family service plan. Among the tasks required were that
DeLisle and Carlisle participate in individual counseling, undergo a psychiatric assessment,
attend family counseling, and attend parenting classes.
       A psychological evaluation of DeLisle stated that she was “in the mildly retarded range
of intelligence with limited cognitive skills to recognize, understand and develop appropriate
parenting strategies.” At trial, Kay Oliver, DeLisle’s CPS therapist, stated that she did not
believe that DeLisle had the mental capacity to care for D.W.W.D. and M.L.B.M. and that
DeLisle’s condition would not improve. She testified:
       [W]hat I was seeing was lack of an ability to take care of herself, lack of ability to
       maintain employment, lack of ability to provide adequate child care. For
       example, with the self-care thing, she told me she had not brushed her teeth since
       she was five years old, and she was living with her mother, did not have any
       means of support was totally dependent on her mother to bring her to the sessions
       for transportation, for a place to live. I believe she may have been drawing food
       stamps on her own, but she had no income of her own.

In addition, Oliver had concerns about things DeLisle would say about parenting.                When
discussing CPS’s concerns about how DeLisle mixed M.L.B.M.’s formula, DeLisle became very
upset and said that “[s]he didn’t think a child should be pussy-fed, that they need to learn to take
up for themselves.” There were also concerns about whether DeLisle would be able to put the
children’s needs ahead of her own. Oliver testified that DeLisle would talk about not having
enough money for food, gasoline, or basic furniture but would show up to sessions with
sculptured nails.
       Oliver recalled that DeLisle’s relationships with Massey and Timothy changed frequently
throughout the course of her counseling, with DeLisle one week intending to reconcile with
Timothy and the next week intending to move in with Massey. Although DeLisle relied on
Carlisle for everything, Oliver testified that their relationship was unstable as well. They had
problems getting along, and DeLisle talked about being abused by her mother as a child. Oliver
was of the opinion that the kids should not be placed with DeLisle.
       Shay Martin, a Department caseworker, testified that there was some improvement in the
parents’ interactions during visits with the children after the Department switched to giving
DeLisle and Massey thirty minutes with each child separately rather than an hour with both
children at the same time. However, after this initial improvement the interactions remained at
the same level.

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       In the time since CPS removed the children, DeLisle has qualified to receive SSI
payments. She moved out of her mother’s house and into a trailer park. After a month, she
found she could not afford to live there and moved into a camper trailer near a friend’s house.
DeLisle admitted that the camper trailer would be too small for her and her two children. If she
gets her children back, she hoped to be able to move into government housing.
       Von Bates, a counselor at the Family Services Center, testified that DeLisle had made
some progress in becoming more independent but admitted that this progress had been slow.
DeLisle still depended on someone else for transportation, and providing for her children would
be a struggle. Bates testified that she thought that DeLisle could provide for the physical,
mental, and emotional needs of the children to the best of her ability. However, Bates based this
opinion on her belief that DeLisle was providing for those needs before the children’s removal.
       Gina Jameson, DeLisle’s parenting instructor, testified that she believed that DeLisle
could successfully parent the children with the right support system of ongoing parenting classes,
support from the family service center, a good pediatrician, and stability in her life.
       A psychological evaluation of Massey said that he was “in the mildly retarded range of
intelligence, with limited cognitive skills to recognize, understand and develop appropriate
parenting strategies.” Dr. Bill Gustavus, Massey’s CPS therapist, testified that Massey would
have difficulty making independent decisions.
       Michael will be challenged by making decisions about their welfare, about what
       they need to eat, about the amount of nurturance that they need, about who is safe
       to play with, about where they - - lots of decision. And, those basic decisions that
       you and I take for granted, and that most people perform not perfectly, but to an
       acceptable degree, are going to be very challenging areas for [Michael].

       In the time since CPS removed the children, Massey qualified to receive SSI payments.
Massey moved into a house in Brownwood with a roommate. Just before trial, his roommate
moved out. When asked what he would do now, Massey said he would pay the rent by himself.
Dr. Gustavus doubted that Massey can afford to do so.
       While in foster care, D.W.W.D. underwent surgery to have tubes put into his ears. Since
then, his verbal abilities have improved. M.L.B.M. has a chromosomal defect inherited from
DeLisle and Carlisle. DeLisle herself questioned whether she and Massey would have the
money or mental abilities to care for the children. She agreed that the foster parents were taking
good care of them and that the kids are mixed up now with two sets of parents.

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       The evidence is legally and factually sufficient for a reasonable juror to form a firm
conviction that termination of DeLisle’s and Massey’s parental rights would be in the best
interests of D.W.W.D. and M.L.B.M.          Accordingly, we overrule DeLisle’s and Massey’s
sufficiency of the evidence points.
                                      IV. Leading Questions
       During direct examination of LVN Angie Willett, DeLisle’s counsel objected three times
to leading questions. The trial court overruled the second objection. The witness’s testimony on
direct concerned the diagnosis M.L.B.M. received when admitted to the hospital, the appearance
of the infant, the manner in which the hospital treated the infant, and her impressions of DeLisle
and Carlisle.
       On direct examination, leading questions should be used only when necessary to develop
a witness’s testimony. TEX. R. EVID. 611(c). The decision to allow leading questioning is in the
discretion of the trial court. Wyatt v. State, 23 S.W.3d 18, 28 (Tex. Crim. App. 2000); Mega
Child Care, Inc. v. Tex. Dep’t of Protective & Regulatory Servs., 29 S.W.3d 303, 308 (Tex.
App.—[14th Dist.] 2000, no pet.). Abuse of discretion cannot be shown unless the appellant
demonstrates he was unduly prejudiced as a result of such questioning. Wyatt, 23 S.W.3d at 28.
       DeLisle cites no particular instances during Willett’s testimony where leading questions
caused her irreparable harm. Therefore, we overrule her second point of error.
                                          V. Conclusion
       The order of the trial court is affirmed.




                                                       RICK STRANGE
                                                       JUSTICE


October 21, 2010
Panel consists of: Wright, C.J.,
McCall, J., and Strange, J.




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