in the Interest of L.E.M. and S.G.M., Children ( 2012 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-11-00505-CV
IN THE INTEREST OF L.E.M. AND
S.G.M., CHILDREN
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FROM THE 323RD DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION1
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After a bench trial, the trial court found by clear and convincing evidence that
Appellants D.M.M. (Father) and S.T. (Mother) engaged in conduct or knowingly
placed their daughters L.E.M. and S.G.M. with persons who had engaged in conduct
that endangered the physical or emotional well-being of the children and knowingly
placed or knowingly allowed L.E.M. and S.G.M. to remain in conditions or
1
See Tex. R. App. P. 47.4.
surroundings that endangered their physical or emotional well-being.2 The trial court
further found that termination of Father’s and Mother’s parental rights was in the
children’s best interest.3 Based on these findings, the trial court terminated the
parental relationship between Father and Mother and daughters L.E.M. and S.G.M.
In two issues, Father contends that the evidence is legally and factually
insufficient to support the endangerment and best interest findings against him and
complains that the order of termination violates his federal and state rights to due
process. In four issues, Mother contends that the evidence is legally and factually
insufficient to support the endangerment findings against her and that the trial court
abused its discretion by denying her motion to extend the dismissal date and her
final oral motion for continuance. Because we hold that (1) the evidence is legally
and factually sufficient to support the trial court’s endangerment findings against
both parents and the best interest finding against Father, (2) the termination order
does not violate Father’s rights to due process, and (3) the trial court did not abuse
its discretion by denying Mother’s motion to extend the dismissal date or by denying
her final oral motion for continuance, we affirm the trial court’s judgment.
Sufficiency of the Evidence
In proceedings to terminate the parent-child relationship brought under section
161.001 of the family code, the petitioner must establish one ground listed under
2
See Tex. Fam. Code Ann. § 161.001(1)(D)–(E) (West Supp. 2012).
3
Id. § 161.001(2).
2
subsection (1) of the statute and must also prove that termination is in the best
interest of the child.4 Both elements must be established; termination may not be
based solely on the best interest of the child as determined by the trier of fact. 5
Termination decisions must be supported by clear and convincing evidence.6
Evidence is clear and convincing if it “will produce in the mind of the trier of fact a
firm belief or conviction as to the truth of the allegations sought to be established.”7
Due process demands this heightened standard because termination results in
permanent, irrevocable changes for the parent and child.8
In evaluating the evidence for legal sufficiency in parental termination cases,
we determine whether the evidence is such that a factfinder could reasonably form a
firm belief or conviction that the challenged ground for termination was proven.9
Here, Father and Mother each challenge the endangerment findings against them
4
Tex. Fam. Code Ann. § 161.001 (West Supp. 2012); In re J.L., 163 S.W.3d
79, 84 (Tex. 2005).
5
Tex. Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987); In re
D.T., 34 S.W.3d 625, 629 (Tex. App.—Fort Worth 2000, pet. denied) (op. on reh’g).
6
Tex. Fam. Code Ann. § 161.001; see also § 161.206(a) (West 2008).
7
Id. § 101.007 (West 2008).
8
In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002); see In re J.A.J., 243 S.W.3d
611, 616 (Tex. 2007) (contrasting standards for termination and modification).
9
In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005).
3
under subsections (D) and (E) of section 161.001, and Father challenges the best
interest finding against him.10
We review all the evidence in the light most favorable to the finding and
judgment.11 We resolve any disputed facts in favor of the finding if a reasonable
factfinder could have done so.12 We disregard all evidence that a reasonable
factfinder could have disbelieved.13 We consider undisputed evidence even if it is
contrary to the finding.14 That is, we consider evidence favorable to the finding if a
reasonable factfinder could, and we disregard contrary evidence unless a
reasonable factfinder could not.15
We cannot weigh witness credibility issues that depend on the appearance
and demeanor of the witnesses, for that is the factfinder’s province.16 And even
when credibility issues appear in the appellate record, we defer to the factfinder’s
determinations as long as they are not unreasonable.17
10
Tex. Fam. Code Ann. § 161.001(1)(D), (E), (2).
11
J.P.B., 180 S.W.3d at 573.
12
Id.
13
Id.
14
Id.
15
Id.
16
Id. at 573, 574.
17
Id. at 573.
4
In reviewing the evidence for factual sufficiency, we give due deference to the
factfinder’s findings and do not supplant the judgment with our own.18 Here, for
each parent, we determine whether, on the entire record, a factfinder could
reasonably form a firm conviction or belief that the parent violated subsection (D) or
(E) of section 161.001(1). For Father, who challenged the best interest finding, we
also determine whether, on the entire record, a factfinder could reasonably form a
firm conviction or belief that the termination of his parental rights to the children is in
their best interest.19 If, in light of the entire record, the disputed evidence that a
reasonable factfinder could not have credited in favor of the finding is so significant
that a factfinder could not reasonably have formed a firm belief or conviction in the
truth of its finding, then the evidence is factually insufficient.20
As we have explained in a similar case,
Endangerment means to expose to loss or injury, to
jeopardize. The trial court may order termination of the parent-child
relationship if it finds by clear and convincing evidence that the parent
has knowingly placed or knowingly allowed the child to remain in
conditions or surroundings that endanger the physical or emotional
well-being of the child. Under subsection (D), it is necessary to
examine evidence related to the environment of the child to determine
if the environment was the source of endangerment to the child’s
physical or emotional well-being. Conduct of a parent in the home can
create an environment that endangers the physical and emotional well-
being of a child.
18
In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006).
19
Tex. Fam. Code Ann. § 161.001; In re C.H., 89 S.W.3d 17, 28 (Tex. 2002).
20
H.R.M., 209 S.W.3d at 108.
5
. . . . Under subsection (E), the relevant inquiry is whether
evidence exists that the endangerment of the child’s physical or
emotional well-being was the direct result of the parent’s conduct,
including acts, omissions, and failures to act. Termination under
subsection (E) must be based on more than a single act or omission; a
voluntary, deliberate, and conscious course of conduct by the parent is
required.
To support a finding of endangerment, the parent’s conduct does
not necessarily have to be directed at the child, and the child is not
required to suffer injury. The specific danger to the child’s well-being
may be inferred from parental misconduct alone, and to determine
whether termination is necessary, courts may look to parental conduct
both before and after the child’s birth . . . . As a general rule, conduct
that subjects a child to a life of uncertainty and instability endangers the
child’s physical and emotional well-being.21
Additionally, a parent’s mental state may be considered in determining
whether a child is endangered if that mental state allows the parent to engage in
conduct jeopardizing the child’s physical or emotional well-being.22 Finally, even if a
parent makes dramatic improvements before trial, “evidence of improved conduct,
especially of short-duration, does not conclusively negate the probative value of a
long history of . . . irresponsible choices.”23
Father admitted to being involved in a domestic violence incident with Mother
on September 1, 2007, in which he hit her in the mouth, slammed her against the
21
In re J.W., No. 02-08-00211-CV, 2009 WL 806865, at *4 (Tex. App.—Fort
Worth Mar. 26, 2009, no pet.) (mem. op.) (citations omitted).
22
In re M.E.-M.N., 342 S.W.3d 254, 262 (Tex. App.—Fort Worth 2011, pet.
denied).
23
In re J.O.A., 283 S.W.3d 336, 346 (Tex. 2009).
6
wall, and slammed her against the door. He also admitted that L.E.M. was in the
apartment at the time.
On April 17, 2009, the police responded on two separate occasions to two
separate domestic violence incidents occurring between Father and Mother. Officer
Eric Montgomery responded to a 10:30 a.m. call. By the time he reached Mother’s
home, MedStar was attending to her as she lay on the floor. In response to
Montgomery’s repeated questions, Mother told him that she had fallen and hit her
head. When he asked her again what had happened, she told him that she had
high blood pressure and seizures that had caused her to hit her head.
At around 3:00 p.m., Montgomery assisted Officer Veronica Coronado in
responding to another assault call. Mother was at a convenience store, wearing her
pajamas. Mother told Montgomery that she had lied to him about how she had
sustained her injuries in the earlier incident because she loved Father and did not
want him to get in trouble. She admitted that Father had pushed her down and
caused her to hit her head.
Mother told Coronado that Father had assaulted her that morning, she had
gone to the hospital for her injuries and had been released, and then he had
attacked her again. Mother told Coronado that Father had pushed her about ten
times and had punched, slapped, and choked her. Mother reported to Coronado
that Father had said to her, “Bitch, if you love me, you will fight for me. . . . Are you
tired of fighting for me? Hit me back.” Coronado testified that Mother had scratches
on her face and minor abrasions on her neck. Mother admitted to Coronado that the
7
second incident was precipitated by her getting upset that Father was receiving text
messages from another woman.
Coronado then went to speak with Father. Father told her that he and Mother
had continued to argue after her release from the hospital and that she scratched
him and ripped his necklace, causing abrasions on his neck. Father also told
Coronado that Mother had almost run over him as she had driven off after the
incident.
About six months later, at almost 2:00 p.m. on October 19, 2009, Officer Chris
Bolling responded to a domestic disturbance call at Mother’s home. He spoke to
Father and Mother. Father told Bolling that he and Mother had been “tussling over
the keys and she fell into the wall.” Father also admitted to Bolling that he had
punched Mother in the mouth.
Bolling testified that Mother’s lip had been swelling and was bleeding and that
her eye looked swollen as well. Mother told him that she and Father had been
fighting because he had cheated on her. She also told Bolling that Father had
punched her with his closed fist several times. Bolling testified that a child was in
the home at the time of the incident and that he believed it was Mother’s child.
Bolling asked Mother if she wanted an emergency protective order and told her that
“she needed to end the relationship for the good of her child and [that] the
[emergency protective order] would help her.” The police arrested Father for
assault/family violence with bodily injury.
8
Mother testified that L.E.M. and S.G.M. “saw everything,” including the
beating, the police arresting Father, and the ambulance taking Mother to the
hospital. Father admitted that he was placed on deferred adjudication for this
conduct.
Officer Francisco Solano testified that on January 7, 2010, he responded to a
criminal mischief report at Mother’s home. When he arrived, he saw several items
on the floor, including an entertainment center, a television, and a Christmas tree.
Ornaments lay on the floor, and some had broken into smaller pieces. Mother told
the officer that she had invited a neighbor into her apartment and that Father had
entered the apartment directly behind that guest. Mother told Solano that Father
had told her that he wanted to get back together, and he became upset when she
told him that she had begun a relationship with someone else. Mother reported to
Solano that Father had told her that he was “going to beat [her] face in” and that he
was “going to kill [her.]” Mother also told Solano that Father had thrown the
Christmas tree and entertainment center down on the floor, and the ornaments had
broken. At least one of the daughters was in the apartment during the incident.
Mother told Solano that her daughter ran into her room yelling, “Don’t hurt Mommy.”
Solano opined that when a domestic violence incident occurs in a child’s presence,
then that child is endangered.
Teresa Moreno, a family based safety services (FBSS) supervisor for the
Texas Department of Family and Protective Services (TDFPS), testified that in
August 2010, when L.E.M. and S.G.M. were approximately four years old and two
9
years old respectively, TDFPS received a referral alleging neglectful supervision of
them, drug use by Mother, and domestic violence. Specifically, L.E.M. had made an
outcry that Father had spanked her, and she was bruised. Additionally, someone
had reported that the children had been playing outside their apartment complex
unsupervised. Mother told Moreno that she had seen bruises on “the little baby” and
confirmed to Moreno that Father had caused that bruising. Moreno testified that she
became concerned that the domestic violence was severe when she saw a lot of
holes in the apartment walls and that the door had been kicked in. Mother told
Moreno that Father had made the holes in the walls with his fists. The children’s
room contained holes in the walls as well. Father admitted later to TDFPS that he
had put the holes in the walls, but he did not understand why TDFPS was
concerned because he had paid for the damages.
TDFPS began offering FBSS services in September 2010. The parents did
not complete any of the services during the FBSS portion of the case except that
Mother completed a psychological evaluation. The children were placed with
Mother and were to have only supervised contact with Father.
Officer Justin Swindell of the Fort Worth Police Department testified that he
responded to a hit-and-run call on October 25, 2010. Father told Swindell that he
had been driving along the highway when a red, four-door Geo Metro vehicle hit
him. Father told Swindell that he had exited and stopped to exchange information
with the other driver. But the other driver sped off. Father told Swindell that “one of
the [Geo’s] windows had been busted out” and that the driver looked like Mother.
10
Father told Swindell that he had called Mother, who had said, “[H]a, ha, ha, how did
you like that, motherfucker[?]” and hung up. Swindell testified that red scrapes on
the left side of Father’s car were consistent with his story. Swindell also testified
that he overheard a woman whom he believed to be Mother’s sister tell Father in a
telephone call that Mother had been driving a red Geo Metro earlier that day.
The police went to the apartment where Mother and the children were living
and saw a red, four-door Geo Metro vehicle with damage to its right side. Although
at first she told the police that she had not committed the hit-and-run, Mother
admitted at trial that she had hit Father’s car but contended that she did not do so
intentionally. Mother was arrested and charged with aggravated assault with a
deadly weapon. Our review of the record did not reveal that any evidence of
prosecution for that offense was admitted at trial. Father, who was supposed to
have only supervised contact with the children, was allowed to take the children
after Mother’s arrest. Father took the children to his mother’s house. Mother
testified that the children should not have been placed with Father’s mother because
she uses cocaine.
Before the alleged hit-and-run, Mother had confided to TDFPS that her father
had molested her when she was a child. Mother also admitted to TDFPS that her
father had stayed with her and the children from time to time. Officer Swindell
testified that he confirmed that Mother had left the children with her father at the
apartment while she was gone on the day of the alleged hit-and-run. Father also
told Moreno that Mother had left the children with her father during the incident, and
11
the police confirmed it to TDFPS. Mother denied that accusation at trial and stated
that she had left the children with a neighbor, not their grandfather, while she was
out in the Geo.
Moreno testified that Father notified TDFPS that Mother had been arrested
after the alleged hit-and-run and that she was still in jail. The children were then
placed with his mother. Moreno testified that that placement later broke down
because Mother would show up at various times of the day to see the children
instead of respecting the times of visitation and because the children’s paternal
uncle, who had a criminal history involving allegations of sex abuse, moved in with
the grandmother. Father testified that the breakdown of the placement had more to
do with the restrictions placed on how many hours a day he could stay with the
children at his mother’s home and her finances. The children were next placed with
a neighbor of Mother’s.
Officer Philip Rice testified that he responded to a “fight” call on January 16,
2011 at a Quick Trip gas station and that he followed a crowd from that location to
an apartment complex catty-cornered to the gas station. Mother was in the group,
and she told him that she had been fighting with another woman because Mother
had slept with the other woman’s boyfriend. Rice issued the women citations for
disorderly conduct.
Mother’s neighbor who was caring for the children was also involved in the
fight, and both women were evicted. At that point, according to Moreno, the children
12
were removed from the family and placed in non-relative foster care because there
were no other placement options.
Moreno testified that Mother tested positive for marijuana during the FBSS
portion of the case and that TDFPS had concerns about her mental health because
Mother reported that she had been diagnosed as being bipolar but was not taking
medication.
Mark Matthews, a licensed clinical psychologist, testified that he had
performed a psychological evaluation of Mother in December 2010. Mother had told
him that her father had a history of substance abuse, had been physically abusive to
the family, and had molested her. Mother also told Matthews that she had been
admitted to Austin State Hospital when she was thirteen years old and that she had
been previously diagnosed with an anxiety disorder, bipolar disorder, depression,
and an eating disorder. She also reported a history of “nervous breakdowns” and
self-mutilation.
Regarding drug use, Mother told Matthews that she began smoking marijuana
when she was eleven years old. She told him that she smoked “every day, all day”
at her heaviest use, stopped when she discovered that she was pregnant with
L.E.M., resumed that level of smoking after L.E.M.’s birth until the pregnancy with
S.G.M., and then resumed smoking every two or three days after S.G.M.’s birth.
Emotionally, Mother told Matthews that she was ‘‘not right,” and he noted that
her mood was generally euphoric or upbeat during the interview. She told him that
she has trouble sleeping, gets two to four hours of sleep a night, and frequently
13
goes “four or five days without sleeping.” She also told him that her appetite was
unstable.
Matthews testified that he diagnosed Mother with cannabis abuse, a bipolar II
disorder, post traumatic stress disorder, partner relational problems, and physical
abuse. He also recommended a psychiatric evaluation so that she could be
evaluated for medication, but he testified that he did not believe that he had
discussed the need for a psychiatric examination directly with Mother.
Ashley M. Williams, the third TDFPS caseworker on the case and the second
since the January 2011 removal, testified that the first caseworker had given the
parents their service plans. When Williams was assigned to the case in May 2011,
Mother had completed only her psychological examination and domestic violence
classes. Mother and Williams had a long talk, during which Mother told Williams
that she and Father were “working things out.” The women also talked about the
services that Mother still needed to complete, like counseling and the psychiatric
evaluation. Williams testified that Mother had already been told to get the
psychiatric evaluation before Williams was placed on the case and that Mother had
known to do so “for almost a year” before the trial. The women also discussed
Mother’s living situation. At that point, she was living with Father’s father and his
girlfriend. Williams was concerned that this living situation meant that Mother had
not cut ties with Father.
When Williams spoke with Father the next day, he confirmed that he and
Mother “were trying to work things out.” Father had not completed any of his service
14
plan, which included completing courses in anger management and batterers’
intervention, completing counseling sessions, and achieving stable income and
housing. Williams told Mother that “it would be difficult for [TDFPS] to consider
reunification if the parents were together and not completing services.”
Williams testified that when TDFPS learned that the parents were back
together, TDFPS changed the parents’ visits with the children from individual visits
to joint visits. But Williams testified that “around June,” the children’s behavior
“became so extreme” that TDFPS separated the visits again, with the parents’
agreement.
Williams also testified that Mother got in a fight with Father’s father’s girlfriend
in June 2011. Williams stated that Mother later admitted to her that she was
pregnant at the time. Despite her efforts, William was unable to speak with Mother
from the end of June until July 21, 2011. Williams testified that on that day, Mother
told her that she and Father were sexually involved and had spent the previous
weekend together. Williams told both parents that TDFPS’s goal had changed from
reunification to termination. She discussed the parents’ service plans with them
again. She strongly encouraged Mother to seek counseling and get her psychiatric
evaluation. Williams spoke to Father about counseling and his batterers’
intervention classes. Williams testified that by this July meeting, the parents had
completed their parenting class and Mother had begun working. On August 18,
2011, Mother had her first counseling appointment with Connie Burdick.
15
But on August 25, 2011, Mother called Williams to report that Father had
called her and threatened to cut her throat. And in late October 2011, Mother told
Williams that Father continued to threaten to cut her throat and “things of that
nature,” and Mother showed Williams her cell phone indicating thirty missed calls
from him. Williams stated that Mother admitted to her that she sometimes knowingly
answered his calls. Williams also testified that in October 2011, the month before
trial, Father told her that Mother had called him to report that she had miscarried. At
trial, he testified that he had not said that. Instead, he testified that he had told
Williams that “word out on the street was [that Mother] had a miscarriage.”
Williams stated that Mother did not complete her psychiatric evaluation until
early September 2011. As far as housing, by September 2011, Mother had moved
in with a friend at work who had a young child. But Mother did not move into her
own apartment until November 1, 2011, less than a month before trial. The
apartment is only about five minutes from Father and his family, and Mother told
Williams that Father knows which apartment complex Mother lives in.
Williams testified that the parents had made minimal progress toward
addressing her concerns. Williams admitted that Mother was working, had had
three or four clean drug tests, had completed her domestic violence classes, had
progressed in individual counseling, had completed her psychiatric evaluation, and
had been on medication for a couple of months. Williams also admitted that she
had seen progress in Mother.
16
Nevertheless, Williams was concerned about Mother’s not starting her
services until several months into the case, her staying in a relationship with Father
until late July, her ability to take care of her mental health needs in the long run, and
the chronic history of domestic violence. Mother herself had told Williams that
mental health issues had caused much of Father and Mother’s past conduct.
Williams was also concerned that Mother’s “preoccupation with men” could
affect her ability to care for L.E.M.’s mental health needs and that Mother would put
her own needs ahead of L.E.M.’s. Williams explained that she did not believe that
Mother would protect the children:
[I]n the past she has shown that she cannot be protective, that she is
always allowing him to come back into her life. They’ve always just
continued to try to be in a relationship with each other over the past five
years. And I don’t know how we’ll ever be able to determine whether or
not she is truly done with that relationship.
Mother’s Facebook page contained posts from Mother that concerned
Williams. The post from October 1, 2011 reads,
Tonight was wild we went to the park at 12 something and got
hemmed up by the cops lol how they saw us still got us puzzled worst
part he has a warr[a]nt an[d] I got two but we both were able to go
home tonight Myst say[s] it would [have] been a good story to tell in
[j]ail tho[ugh] Lmao[.]
Williams testified that “Lmao” means “laughing my ass off.”
The October 29, 2011 post from Mother reads, “Whoo hooooo lol having fun
drinking omg pi like a mother right now …..hahaha lovin that I’m free of the old I’m
free so free lovin every moment[.]” The post was published less than a month
17
before trial, after the psychiatric evaluation, and soon after Mother had been placed
on prescription medication regarding her mental health.
Williams was concerned about Father as well. He had not completed his
service plan, so she had “no way to tell where he [was] at in his ability to care for
[the children].” She also testified that he told her that “the plan all along was for
[Mother] to get the children back” and that he used that as his excuse for not doing
his services. Williams testified that she did not believe that it would be safe to return
the children to either parent and that termination of the parental rights would be in
the children’s best interest.
Williams testified that the children had been placed in their third foster home
as of April 30, 2011, because the first two homes could not manage L.E.M. and felt
she was a risk. Williams also testified that L.E.M. was hospitalized in February
2011, June 2011, and twice in September 2011 and had “homicidal and suicidal
ideation[s],” auditory hallucinations, and was hearing voices. According to Williams,
“[L.E.M.’s] behaviors were just out of control.”
The current foster mother testified that L.E.M. had “outbursts, rages. She was
destructive. She would try to tear apart her clothes. She would try to destroy toys.
She would harm the animals.” S.G.M. also had issues. According to the foster
mother, S.G.M. “had really long tantrums” and “would beat her head against the
ground,” as would L.E.M. L.E.M. “would also twist her hair and then pull it out.”
The foster mother testified that at first, L.E.M. and S.G.M. were being bathed
together, but L.E.M. “simulated sexual acts with her sister.” The foster mother
18
testified that she and her husband then started bathing the sisters separately. But
the foster mother testified that L.E.M. “simulated sex with her sister again in the
living room” and also stuck “a Ken doll up Barbie’s skirt and [made] . . . slurping
noises.”
The foster mother also testified that L.E.M. had told her that Father had held a
knife to her face and that both L.E.M. and S.G.M. had said that their parents
punched really hard, that the children were poked in the eyes when they
misbehaved, and that they were kicked out of the house for misbehavior. Both
children also reported that S.G.M. was burned on her hip.
One night in June, the foster mother heard choking sounds via the baby
monitor in the girls’ room. The next day, L.E.M. confessed to choking her sister.
Also in June, L.E.M., who had an interest in knives, found a pair of nail clippers.
(After the choking incident, the foster parents had locked the knives up.) When
asked to give the clippers to the foster parents, L.E.M. refused and started beating
her head against a brick wall. She was then admitted to a mental health treatment
facility.
Jennifer Didier, a licensed social worker and therapist for the Excel Center, a
day treatment center for children and adolescents, testified that after leaving the
mental health treatment facility in July 2011, L.E.M. was admitted to the Excel
Center (even though the center typically does not treat children under five years of
age) because of the severity of her problems. Didier explained,
19
When [L.E.M.] came into our program, at home she was having a
lot of physical and verbal aggression towards her foster parents and
then also her sibling. She would have rages to where she wasn’t able
to control herself for extended periods of time. She was also having
nightmares and trouble sleeping. And then within our program just a lot
of inattentiveness, easily distracted. I didn’t see aggression within our
program, but she would at times appear to be having flashbacks when
she would be talking about particular things. She was having some
hypersexual behaviors with other peers in our group.
Didier testified that on July 7, 2011, L.E.M. told her that Mother had beaten
her and hit her. On July 15, 2011, L.E.M. stated that her parents had kissed her all
over her body, including her genital area. The foster mother testified that in mid-
July, L.E.M. told her the same and also that it occurred while L.E.M. and her parents
watched “nasty movies.” On July 18, L.E.M. told Didier that when her parents would
hit her, she would hide in the closet. On July 19, 2011, L.E.M. told Didier that she
had watched “nasty movies” with Mother that made L.E.M. feel bad and that Mother
had touched L.E.M.’s “pee pee.” On July 21, 2011, Didier received a written report
from the foster mother that L.E. M. was
continuing to have nightmares at home and that—[L.E.M.] reported
having visual and auditory hallucinations and that [L.E.M.] reported the
voices telling her to hit things and say bad words. . . . [The foster
mother] also reported that [L.E.M.] ha[d] started engaging in
hypersexual talk about men and women licking in nasty ways.
Williams received notification that L.E.M. had made an outcry of sexual abuse.
It was ruled out against the parents.
L.E.M. also told Didier that she had been seeing bugs crawling on cabinets
and under her bed. L.E.M. further reported to Didier that “her father would punch
holes in the walls and hit her mother and sibling” and that he moved in and out of
20
the home often. L.E.M. told Didier that she would get scared, her body would
shake, and she would hide in the closet. After sharing this information, L.E.M.
isolated herself from the other children in the group. Didier also noticed that L.E.M.
would get a “blank stare” or a “very blunt [a]ffect” on her face for fifteen or twenty
seconds when discussing more traumatic events.
Didier testified that L.E.M. seemed to decompensate after visits with her
parents—her aggression would increase; her hypersexuality in group sessions
increased; and Didier would receive reports of nightmares, flashbacks, and
hallucinations. So Didier suggested to the CASA volunteer that visits with the
parents be suspended while L.E.M. was in treatment. Didier believed that would be
in L.E.M.’s best interest.
The CASA volunteer, Cynthia Sinor, testified that Father brought gifts and
food to the visits and sometimes other people. She also said that he “spen[t] a lot of
time tickling the girls roughly. And he. . . also ha[d] a habit of—sort of scaring them
with the policeman is going to come and get them if things don’t go right, which
[was] kind of upsetting to [Sinor] and a little upsetting to the kids sometimes.”
Didier testified that it would be harmful to the emotional and mental well-being
of a child to be exposed to domestic violence and physically or emotionally
endangering to a child to have been hit by her parents and sexually abused as
L.E.M. had described. When asked how children exposed to domestic violence
behaved, Didier replied,
21
Some children exhibit a lot of anxiety and depression. Other
children become very inattentive, irritable, decreased attention span.
And some have a mixture of—of both of those types of varying
behaviors. Kids be—can become verbally and physically aggressive,
kind of mirroring the behaviors that they’ve witnessed. Sometimes kids
kind of start ganging up on children that are younger than them and
becoming more aggressive or intimidating.
Didier testified that she considered L.E.M.’s behavior, including her
aggression toward her younger sister, consistent with her having experienced
domestic violence.
When asked how children who have been sexually abused react, Didier
replied,
Children that are sexually abused, it’s—can be very similar to children
who have been exposed to domestic violence. Again, with—it almost
looks like they would have ADHD, it’s kind of hyperactive behavior,
inability to focus, inattentiveness, but a lot of hypersexual behavior,
which by that I mean poor boundaries with others, inappropriate
touching, touching of others or themselves, whether it’s masturbating.
They can also have nightmares and flashbacks. Sometimes
hallucinations, it just depends on the level of acuity for the child.
Didier testified that she saw L.E.M. touch another student’s clothed bottom
with a pencil and that L.E.M. was always touching the other children and always
wanting to give and receive hugs from the adult staff at the center. Didier
characterized this behavior by the four-year-old as hypersexual.
Mother admitted that she had “fail[ed] to protect [her daughters] at the
beginning.” But she testified that the reason for her prior inability to protect her
children was that she “was sick [her]self. [She] was a battered woman.”
22
Father contended that he had had no unsupervised contact with his daughters
after October 2009 except for the day of the alleged hit-and-run in October 2010.
But Mother testified that Father had seen the children unsupervised a few times
since the October 2009 assault. Nevertheless, Father denied the allegations of
sexual abuse made by L.E.M. He also denied that he poked his daughters in the
eyes and that they were afraid of him and hid in the closet.
The foster mother testified that in early September 2011, L.E.M. exhibited a lot
of rage against the foster father and was still behaving destructively. S.G.M. started
to imitate that behavior. On cross-examination, the foster mother testified that she
had no knowledge of anything happening in the home that would cause L.E.M. to
fear her husband and that her general impression was that L.E.M. does not like
men.
L.E.M. was admitted to a mental health treatment facility again, and from
there, in late September 2011, she was admitted to a residential treatment center
(RTC) in Austin. As Didier explained, an RTC “is for patients who—their behavior is
so severe that going inpatient for a couple weeks is not enough. It is a long-term
treatment facility. It’s a psychiatric hospital. So patients typically go there for six to
[twelve] months.” Didier had never had a patient as young as L.E.M. placed in an
RTC.
The foster mother testified that L.E.M. has been diagnosed with severe
posttraumatic stress disorder, severe depression with psychosis, oppositional
defiance disorder, ADHD, and reactive attachment disorder.
23
Williams testified that she told the parents to let her know when they wanted
to visit L.E.M. and she would arrange it with the RTC and provide Greyhound bus
passes if necessary. Williams also testified that Mother told her that her sister could
possibly take her to Austin and that Father told her that “they would possibly be able
to make arrangements to visit.” But neither parent had visited L.E.M. by the time of
trial. Mother testified that she had not visited L.E.M. in Austin because she could
not secure transportation, but she admitted that she went to California for
Thanksgiving to visit her boyfriend’s family because “[s]omebody took [her.]” The
foster parents and S.G.M. did visit L.E.M. regularly at the RTC, including the
weekend after Thanksgiving Day. The foster maternal grandmother also visited
L.E.M. at the RTC.
Williams testified that both parents had called L.E.M. occasionally at the RTC.
On cross-examination, she admitted that Mother had made twenty calls, Father had
made five or ten, and the foster parents had made seven. Williams testified that on
one of the phone calls between L.E.M. and Mother, L.E.M. said, “[Y]ou and dad tried
to kill each other with a knife,” and she told Mother that it had scared her. In
another, L.E.M. asked about Father buying a new Christmas tree. In one
conversation with Father, L.E.M. told him to never break the Christmas tree.
Similarly, in a later telephone conversation with Father, L.E.M. asked if he and
Mother would get married and asked him not to break her Christmas tree. In a
different telephone conversation with Father, he stated that he wanted to squeeze
L.E.M. until she “barf[ed] on [herself], and L.E.M. stated, “I don’t love Daddy.”
24
Williams testified that at the time of trial, S.G.M. was in the same foster home,
and L.E.M. remained in the RTC in Austin. Williams stated that L.E.M. was then
“having some issues” but was “somewhat stable.” Later, Williams admitted that
L.E.M. had “somewhat deteriorated at the RTC,” that she was “zoning out” and
having severe tantrums, and that she had been placed in a room alone because of
her behaviors. Nevertheless, she attended regular school.
Williams testified that TDFPS’s plan is for the children to be adopted and that
the foster parents are adoption-motivated. Williams explained that “[t]he adoption
subsidy would . . . provide ongoing Medicaid coverage” and that the children would
also receive “free college and things of that nature.”
Williams testified that she did not believe that the parents could meet the
children’s present and future emotional and physical needs but that she did think
that the foster parents could meet those needs. Williams admitted that TDFPS had
not offered the parents any training on dealing with the children’s behaviors or
special needs.
Although Father was working at the time of trial and making minimum wage,
he was staying with a friend rent-free until he could “get on [his] feet.” Father did not
know his friend’s last name or whether he had a criminal history. He had not paid
any child support for the children’s care. He had a car but no car insurance.
Further, Mother testified that Father missed most of his visits with the children.
Williams stated that Father’s plan was that Mother would have custody of the
children, and Mother had stated that she would have the children in counseling and
25
“utilize any support that she could to take care of them.” But Williams testified that
Mother has not been able to show the stability of her home because she had only
been in her apartment about a month when trial began. Williams further testified
that “a lot of [L.E.M.’s] suicidal [and] homicidal ideations . . . occurr[ed]” after visits
with Mother. “The children would reenact domestic violence in the home. They
would say . . . that [the] police [were] going to come to get [them].” Williams testified
that S.G.M. also had some negative behaviors after visits, such as pulling her hair
and acting more defiantly. The foster mother testified that the girls were very
agitated after visits with their parents. “They often had rages immediately after.”
Two weeks before trial, S.G.M. had a visit with Mother, and afterwards she spread
her feces on the bathroom wall.
Regarding her concerns about returning the children to their parents, Sinor
explained,
Originally I was okay, I thought Mom—I know that they love—I know
they love the children. And I was very much on the mom’s side, and I
was really trying to help. And then as the behaviors became more
aggressive and more—you know, just nastier, I just felt that they will be
difficult for Mom and Dad or either one or both to be able to provide for
them. I feel that there are triggers there that are going to send these
kids—you know, can affect the kids at any time, so that they can’t—
And you can’t control those triggers. If they are there, they’re going to
go. And I just feel that they are not stable enough probably yet to have
these children back.
Sinor admitted that she had seen Mother progress since the beginning of the
case but testified that even if Mother had completed her services soon enough to
show stability, that still would not “eliminate the problem of violence and anger and
26
things [like] that—that have gotten them to this point.” Sinor testified that she did not
believe it would be safe to return the girls to their parents and that she believed
terminating the parents’ rights would be in the children’s best interest. Sinor testified
that “it’s probably safe—very safe for [the children] to be with the [foster parents].”
Kent Bass, a counselor at Catholic Charities, testified that he saw Mother two
or three times. He testified that based on what he knew of her and what she told
him, he believed that Mother is healthy enough that she could parent the children.
He also testified that he believed that she had set up boundaries to keep her
daughters and her safe from Father, for example, by avoiding phone contact.
Didier opined that in the future, L.E.M. is going to require a lot of therapy. At
the same time, Didier believes that it’s very important for L.E.M. “to be in a very
stable and nurturing and understanding environment.” Williams testified that the
foster home is a stable placement for the children “[a]t this time.” The foster mother
testified that she would be willing to have L.E.M. live in her home again after she
gets out of the RTC. The foster mother also testified that if the parents’ rights are
terminated, she and her husband would be interested in adopting the girls and that
their goal is to keep the sisters together.
The foster mother further testified that she and her husband would make sure
that the girls had an opportunity to see a counselor on a regular basis, that she has
already checked into a school for emotionally troubled children for L.E.M., and that
she has a flexible schedule.
27
Sinor testified that L.E.M. is doing well at the RTC but also that “[s]he is
beginning to start more of those behaviors that got her to this point.”
Regarding S.G.M., Sinor testified,
She is very loving with the foster family. She seems to be—she
has come out—She has become more of her own person since she is
the only child in the family and she doesn’t have to compete with
anybody else. So she is becoming more of her own person. She is
starting to exhibit more of the behaviors, like, she will rub herself until it
hurts or she’ll pull her hair or do things like that. I think she is doing
more of that recently. Well, no, she did more of it when [L.E.M.] first
went to the RTC. I think it has decreased lightly.
Sinor testified that she believed that the placement with the foster parents is
good for S.G.M. She further testified, “I have never seen a set of foster parents so
devoted to two children and willing to do whatever it requires to make sure that they
get what they need so that they can, you know, create a life for themselves.” Sinor
also testified that the children have established “a big bond” with their foster parents.
Applying the appropriate standards of review, we hold that the evidence of
Mother’s long-term, frequent drug use; assaultive conduct, including her alleged hit-
and-run with Father as the complainant; and her failure to protect the children from
Father, combined with the children’s statements of physical abuse at her hands, is
legally and factually sufficient to support the trial court’s endangerment findings
against her. We overrule Mother’s third and fourth issues.
Applying those same standards of review, we hold that the evidence of
Father’s repeated acts of domestic violence against Mother, sometimes in at least
L.E.M.’s presence, coupled with the children’s statements of physical abuse at his
28
hands, is legally and factually sufficient to support the trial court’s endangerment
findings against him.
Father also challenges the legal and factual sufficiency of the evidence
supporting the trial court’s finding that termination of his parental relationship with
L.E.M. and S.G.M. is in their best interest. Consequently, in our legal sufficiency
review, we review all the evidence in the light most favorable to the finding and
judgment to determine whether the evidence is such that a factfinder could
reasonably form a firm belief or conviction that the best interest ground for
termination was proven.24 In our factual sufficiency review, we determine whether,
on the entire record, a factfinder could reasonably form a firm conviction or belief
that termination of Father’s parental rights is in the children’s best interest.25
There is a strong presumption that keeping a child with a parent is in the
child’s best interest.26 Prompt and permanent placement of the child in a safe
environment is also presumed to be in the child’s best interest.27 The following
factors should be considered in evaluating the parent’s willingness and ability to
provide the child with a safe environment:
(1) the child’s age and physical and mental vulnerabilities;
24
J.P.B., 180 S.W.3d at 573.
25
Tex. Fam. Code Ann. § 161.001; H.R.M., 209 S.W.3d at 108; C.H., 89
S.W.3d at 28.
26
In re R.R., 209 S.W.3d 112, 116 (Tex. 2006).
27
Tex. Fam. Code Ann. § 263.307(a) (West 2008).
29
(2) the frequency and nature of out-of-home placements;
(3) the magnitude, frequency, and circumstances of the harm to the
child;
(4) whether the child has been the victim of repeated harm after the
initial report and intervention by the department or other agency;
(5) whether the child is fearful of living in or returning to the child’s
home;
(6) the results of psychiatric, psychological, or developmental
evaluations of the child, the child’s parents, other family members, or
others who have access to the child’s home;
(7) whether there is a history of abusive or assaultive conduct by the
child’s family or others who have access to the child’s home;
(8) whether there is a history of substance abuse by the child’s family
or others who have access to the child’s home;
(9) whether the perpetrator of the harm to the child is identified;
(10) the willingness and ability of the child’s family to seek out, accept,
and complete counseling services and to cooperate with and facilitate
an appropriate agency’s close supervision;
(11) the willingness and ability of the child’s family to effect positive
environmental and personal changes within a reasonable period of
time;
(12) whether the child’s family demonstrates adequate parenting skills,
including providing the child and other children under the family’s care
with:
(A) minimally adequate health and nutritional care;
(B) care, nurturance, and appropriate discipline consistent with
the child’s physical and psychological development;
(C) guidance and supervision consistent with the child’s safety;
(D) a safe physical home environment;
30
(E) protection from repeated exposure to violence even though
the violence may not be directed at the child; and
(F) an understanding of the child’s needs and capabilities; and
(13) whether an adequate social support system consisting of an
extended family and friends is available to the child.28
Other, nonexclusive factors that the trier of fact in a termination case may use
in determining the best interest of the child include:
(A) the desires of the child;
(B) the emotional and physical needs of the child now and in
the future;
(C) the emotional and physical danger to the child now and in
the future;
(D) the parental abilities of the individuals seeking custody;
(E) the programs available to assist these individuals to
promote the best interest of the child;
(F) the plans for the child by these individuals or by the
agency seeking custody;
(G) the stability of the home or proposed placement;
(H) the acts or omissions of the parent which may indicate
that the existing parent-child relationship is not a proper
one; and
(I) any excuse for the acts or omissions of the parent.29
These factors are not exhaustive; some listed factors may be inapplicable to
some cases.30 Furthermore, undisputed evidence of just one factor may be
28
Id. § 263.307(b); R.R., 209 S.W.3d at 116.
29
Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976) (citations omitted).
31
sufficient in a particular case to support a finding that termination is in the best
interest of the child.31 On the other hand, the presence of scant evidence relevant to
each factor will not support such a finding.32
Father admitted to committing domestic violence in L.E.M.’s presence, and
the girls both reported physically violent acts he committed against them. L.E.M.
told him in a phone call that she did not love him, and she appears obsessed with
his violence involving the Christmas tree. He also admitted to not completing his
service plan and stated that the goal had been for the children to be returned to
Mother, not him. Mother stated that he missed many of his scheduled visits with the
children, and the foster mother, Williams, and Didier all testified that the children
decompensated after parental visits. Father further had not investigated the
environment into which he would be moving his daughters had they been returned
to him at trial—he did not even know his roommate’s last name.
On the other hand, the foster parents have visited L.E.M. regularly at the RTC
with her sister and have begun investigating a special school for L.E.M. in the event
that she is returned to their care. They have further committed to obtaining regular
counseling for the girls and to trying to keep the girls together. Applying the
appropriate standards of review, we hold that the evidence is legally and factually
30
C.H., 89 S.W.3d at 27.
31
Id.
32
Id.
32
sufficient to support the trial court’s best interest finding against Father. We overrule
Father’s first issue.
Due Process Violation
In his second issue, Father contends that the trial court’s order terminating his
parental rights violates his rights to due process under the state and federal
constitutions. But his only argument within this issue is that his due process rights
were violated because the evidence is insufficient to support the endangerment and
best interest findings. Because we have held otherwise, we overrule Father’s
second issue.
Dismissal Date
In her first issue, Mother complains that the trial court abused its discretion by
denying her motion to extend the dismissal date. Section 263.401 of the family code
provides,
(a) Unless the court has commenced the trial on the merits or
granted an extension under Subsection (b), on the first Monday after
the first anniversary of the date the court rendered a temporary order
appointing the department as temporary managing conservator, the
court shall dismiss the suit affecting the parent-child relationship filed
by the department that requests termination of the parent-child
relationship or requests that the department be named conservator of
the child.
(b) Unless the court has commenced the trial on the merits, the
court may not retain the suit on the court’s docket after the time
described by Subsection (a) unless the court finds that extraordinary
circumstances necessitate the child remaining in the temporary
managing conservatorship of the department and that continuing the
appointment of the department as temporary managing conservator is
in the best interest of the child. If the court makes those findings, the
33
court may retain the suit on the court’s docket for a period not to
exceed 180 days after the time described by Subsection (a).33
Because an extension of the dismissal date is similar to a continuance and
section 263.401(b) does not specify which appellate standard of review should
apply, we apply the abuse of discretion standard.34 We decline TDFPS’s invitation
to overrule our own precedent and to instead hold that parents may not complain of
a trial court’s decision whether to extend a suit’s dismissal date.
Mother sought an extension of the dismissal date on November 10, 2011, less
than two weeks before trial began, and the hearing on the motion was held
November 15, 2011, a week before the trial was scheduled to begin. The stated
basis for the motion was to allow Mother more time to show TDFPS that she could
“provide a safe and appropriate home for her children.” Mother had been in her own
apartment just two weeks when the motion was heard.
The evidence showed that the removal occurred about nine and a half months
before the hearing on Mother’s motion to extend the dismissal date. Mother gave
the following testimony at the hearing:
Q [TDFPS attorney:] But you’ve known that it’s been an issue
for CPS since the removal in January—were you aware that stable
housing was an issue for CPS and they’ve encouraged you to have
stable housing?
A Yes, ma’am, I’m aware of that, but you have to have a job
in order to be able to pay bills.
33
Tex. Fam. Code Ann. § 263.401 (West 2008).
34
In re T.T.F., 331 S.W.3d 461, 476 (Tex. App.—Fort Worth 2010, no pet.).
34
....
Q Where were you living through spring of April, May, June
of this year?
A I was bouncing around with friends.
....
Q Did you meet your caseworker Ashley Moore in May of
2011?
A I believe so.
Q And did Ashley tell you at that time that it was very
important for you to have stable housing?
A Yes, she did.
The trial court had approved the service plan at a March 30, 2011 status
hearing attended by Mother’s counsel but not by Mother, who was not working at the
time. In addition to Mother’s having not yet shown an ability to maintain stable
housing by the time of the hearing on her motion to extend the dismissal date,
TDFPS was also concerned that she had not been on her mental health
prescriptions very long and that she had not been out of a relationship with Father
for at least six months.
But Mother had known of TDFPS’s concerns about the stability of her housing
since at least the removal, the trial court had signed the order approving the service
plans at the end of March 2011, and the caseworker had again emphasized to
Mother in May 2011 that she needed stable housing. Given Mother’s delay in
beginning and completing her services, we cannot say that the trial court abused its
35
discretion by failing to find that extraordinary circumstances justified a 180-day
extension of the dismissal deadline.35 We overrule Mother’s first issue.
Continuance
In her second issue, Mother complains that the trial court abused its discretion
by denying her third motion for continuance, brought orally on the day before the
trial ended. Mother had also raised an oral continuance regarding the same absent
witness on the first day of trial, which was denied. An amended motion for
continuance filed on the first day of trial and a second amended motion filed on the
day before the trial ended appear in the clerk’s record. Neither is supported by an
affidavit, and there is no indication that the trial court ruled on either of them.
A motion for continuance shall not be granted except for sufficient cause
supported by an affidavit, through consent of the parties, or by operation of law. 36 If
a motion for continuance is not made in writing and verified, it will be presumed that
35
See In re D.K., No. 02-09-00117-CV, 2009 WL 5227514, at *2 (Tex. App.—
Fort Worth Dec. 31, 2009, no pet.) (mem. op.) (holding that trial court’s
determination that mother who did not visit children during pendency of case failed
to present extraordinary circumstance was not abuse of discretion); In re L.D.K., No.
02-07-00288-CV, 2008 WL 2930570, at *3 (Tex. App.—Fort Worth July 31, 2008, no
pet.) (mem. op.) (holding father who argued service plan was deficient because of
misnomer despite evidence that he knew what was expected of him failed to present
any extraordinary circumstances that would necessitate an extension); Shaw v. Tex.
Dep’t of Family & Protective Servs., No. 03-05-00682-CV, 2006 WL 2504460, at *8
(Tex. App.—Austin Aug. 31, 2006, pet. denied) (mem. op.) (holding mother did not
show that needing more time after failing to make progress on the service plan for
eight months amounted to extraordinary circumstances).
36
Tex. R. Civ. P. 251; see In re E .L.T., 93 S.W.3d 372, 374–75 (Tex. App.—
Houston [14th Dist.] 2002, no pet.).
36
the trial court did not abuse its discretion by denying the motion.37 Because Mother
did not comply with rule 251, the trial court did not abuse its discretion by denying
her oral motion for continuance.38 Accordingly, we overrule Mother’s second issue.
Conclusion
Having overruled Father’s two issues and Mother’s four issues, we affirm the
trial court’s judgment.
PER CURIAM
PANEL: DAUPHINOT, J.; LIVINGSTON, C.J.; and GARDNER, J.
DELIVERED: October 18, 2012
37
See Villegas v. Carter, 711 S.W.2d 624, 626 (Tex.1986); E.L.T., 93 S.W.3d
at 375.
38
See Villegas, 711 S.W.2d at 626; see also In re A.C.H., No. 02-11-00072-
CV, 2012 WL 1345759, at *15 (Tex. App.—Fort Worth Apr. 19, 2012, no pet.).
37