in the Interest of M. J. F., a Child ( 2006 )

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

______________________________

No. 06-05-00113-CV

______________________________

IN THE INTEREST OF M.J.F., A CHILD

---

On Appeal from the County Court at Law

Rusk County, Texas

Trial Court No. 2003-12-583B-CCL

---

Before Morriss, C.J., Ross and Carter, JJ.

Memorandum Opinion by Chief Justice Morriss

MEMORANDUM OPINION  

            There was considerable stress at the home of Michael Faison and his wife, Sonja Faison. Michael and Sonja had resumed living together as husband and wife after a separation, during which separation Michael had fathered a child, M.J.F., with Wreathye Guerrero. Part of the stress arose as Sonja was thrust into the role of caring for M.J.F., another woman's child.

            December Faison, one of Michael and Sonja's young children, reportedly described an event occurring after Michael and Sonja resumed living together. In this event, when M.J.F. started crying, Sonja hit him repeatedly on the head and kept hitting him until he quit crying and "went to sleep." While living with Michael and Sonja, M.J.F. was once admitted to a hospital with multiple bruises, which admission resulted in a $20,000.00 hospital bill.

            M.J.F.'s mother, Wreathye, is not without her problems either. Wreathye has had substance abuse problems. After a year and a half of working with agency officials in dealing with parenting issues, Wreathye still admits to using alcohol and marihuana, and managed to achieve only thirteen days' sobriety immediately preceding the trial of this case. The Texas Department of Family and Protective Services (the Department), decided to seek to terminate Wreathye's parental rights because she drove while intoxicated with M.J.F. in the car.

            Michael and Wreathye each appeal the termination of their parental rights to M.J.F. They each assert that the evidence is legally and factually insufficient to support findings that they respectively endangered M.J.F., that they respectively placed him in dangerous conditions, and that termination of their respective parental rights is in M.J.F.'s best interest.

            Based on our own extensive review of the evidence in the record, we affirm the termination of Michael's and Wreathye's parental rights to M.J.F. because we hold that:

            (1) Legally and factually sufficient evidence supports the finding of the trial court that Wreathye knowingly placed or allowed M.J.F. to be in conditions or surroundings that endangered M.J.F.'s physical or emotional well-being. See Tex. Fam. Code Ann. § 161.001(1)(D) (Vernon Supp. 2006).

            (2) Legally and factually sufficient evidence supports the finding of the trial court that Michael knowingly placed or allowed M.J.F. to be in conditions or surroundings that endangered M.J.F.'s physical or emotional well-being. See Tex. Fam. Code Ann. § 161.001(1)(D).

            (3) Legally and factually sufficient evidence supports the finding of the trial court that Wreathye engaged in conduct, or knowingly placed M.J.F. with persons who engaged in conduct, which endangered M.J.F.'s physical or emotional well-being. See Tex. Fam. Code Ann. § 161.001(1)(E) (Vernon Supp. 2006).

            (4) Legally and factually sufficient evidence supports the finding of the trial court that Michael engaged in conduct, or knowingly placed M.J.F. with persons who engaged in conduct, which   endangered    M.J.F.'s   physical   or   emotional   well-being.   See   Tex.   Fam.   Code Ann. § 161.001(1)(E).

            (5) Legally and factually sufficient evidence supports the finding of the trial court that termination of Wreathye's parental rights to M.J.F. is in M.J.F.'s best interest. See Tex. Fam. Code Ann. § 161.001(2) (Vernon Supp. 2006).

            (6) Legally and factually sufficient evidence supports the finding of the trial court that termination of Michael's parental rights to M.J.F. is in M.J.F.'s best interest. See Tex. Fam. Code Ann. § 161.001(2).

The Evidence

            In our evidentiary review which yielded the following recitation of evidence, we have found no evidentiary disputes which could not reasonably be resolved in favor of termination by reasonable fact-finders. We also find no fact-finder determinations based on credibility of witnesses that we conclude were unreasonable. As to each issue, we conclude a reasonable fact-finder could have found the evidence clear and convincing in support of termination. In light of the entire record, we conclude the evidence allows the fact-finder reasonably to form a firm belief or conviction supporting each element of proof supporting termination.

            Each statement recounted in this section of this opinion—whether or not it is explicitly attributed to the witness—is taken from the witness' statements and is not the opinion or conclusion of this Court.

            A. Donald Winstead Testimony

            Dr. Donald Winstead, a licensed psychologist in private practice who devotes a large part of his practice to families involved with Child Protective Services (C.P.S.), testified at length.

            Sonja admitted she had slapped her daughter, December. Sonja's attitude toward corporal punishment suggests that she might overuse that form of correction and that Sonja is likely to be threatened by a child's normal actions striving for independence.

            Sonja and Michael's marriage was subject to many stresses, including M.J.F. Winstead expressed "some concerns" that keeping M.J.F. in Sonja and Michael's home would be in his best interest, if the issues that existed in the marriage continued.

            Winstead evaluated Michael and found that Michael had a personality disorder, including narcissistic, antisocial, and schizoid features. Michael was evaluated as being acceptable on corporal punishment, appropriate expectations of children, and empathy with children. Michael's test results were a concern in the area of being prone to role reversal, that is, being too focused on the child meeting his needs rather than the normal pattern. Michael also showed a propensity to be threatened by children's assertion of independence. Because Michael had been abused as a child, he has a higher chance of being an abuser. Michael admitted prior substance abuse to Winstead, but claimed three years' sobriety. Michael acknowledged "a lot of" past serious relationships. If Sonja injured M.J.F., it would be important for Michael to accept that as fact. Michael did not believe Sonja had injured M.J.F. Per Winstead, if M.J.F. was a special needs child, parental role reversal would create significant problems and frustration risks.

            Because Winstead had not seen M.J.F., Michael, or Sonja recently, it is difficult to assess whether M.J.F. should be placed in Michael and Sonja's home, but if their situation has not changed, i.e., if the problems persist, it would concern Winstead to place M.J.F. in that home.

            Winstead diagnosed Wreathye as a substance abuser. The rough edges to Wreathye's personality were pronounced enough to suggest she may have a personality disorder. She had obsessive compulsive and histrionic traits. Winstead expressed having concerns about Wreathye's ability to protect M.J.F., given her substance abuse problem. When she first started counseling with Winstead, Wreathye was not fully ready to admit to having a drinking problem, but came to a counseling session with alcohol on her breath. It is very traumatic for a child to see his or her parent get arrested for drunk driving. Substance abuse has a high correlation with being a leading cause of child abuse. If Wreathye continued to have problems with substance abuse, Winstead would have a lot of concerns about placing M.J.F. with her. Wreathye did not have a good support system in place, as is needed for her to maintain her progress in recovery from substance abuse.

            On the other hand, Winstead testified that Wreathye brought M.J.F. to Winstead's office, at which time Winstead observed that her interactions with M.J.F. were always appropriate, she was attentive and concerned, and she did a good job with M.J.F. Winstead also opined that, if Wreathye could get past her substance abuse problems and progress on her emotional issues, such as self-esteem and personality matters, the rest of her parenting skills seem to be good.

            Per Winstead, Michael struggles with self-centeredness and the tendency to exploit or take advantage of others, and is in a relationship to figure out what he can get for himself.

            On the other hand, Winstead indicated that Michael has empathy and normal expectations for children. Though Michael had been a serious drug abuser and had been physically abused during childhood, he apparently had been sober and dry for a few years. Michael had the strength to remain sober and dry. Winstead further indicated that Wreathye had the possibility of remaining sober and dry.

            M.J.F. was developmentally delayed in his speech, motor skills, and "things like that."

            Combine the factors of Sonja's propensity to be angry regarding her marital issues, her inappropriate attitude toward corporal punishment, her past experience of actual physical abuse of children in her care, and a child, M.J.F., produced by Michael's recent sexual relationship with Wreathye while Michael and Sonja were married but separated, and you have an explosive potential. All that increased Winstead's concern. Wreathye reported to Winstead that Michael had been physically and emotionally abusive to Wreathye during their relationship.

            Wreathye was charged with driving while intoxicated (D.W.I.), with M.J.F. as a passenger in the vehicle. Winstead believes there are significant risks to M.J.F.'s health and life for Wreathye to continue as his mother.

            Once Michael decided to stay with Sonja, Winstead believes that the risks Sonja poses to M.J.F. are effectively imputed to Michael, so long as they are together. Michael is thus exposing M.J.F. to known risks, which runs counter to M.J.F.'s best interest.

            Physical abuse in the presence of a child, even if not directed at the child, endangers his or her well-being. And, given Sonja's prior abusive behavior and Michael's personality disorders, Michael might not have the strength to protect M.J.F. from Sonja, causing concerns for M.J.F.'s safety in that home.

            Based on what Winstead has learned about Wreathye, there is a significant probability that Wreathye will not be able to "pull it together" and do what is needed to parent her child. Even if M.J.F. is not adoptable, the alternative prospects are preferable to being a child of either Michael or Wreathye.

            B. Wreathye Guerrero Testimony

            Wreathye admitted that she has had multiple episodes of being arrested, being assaulted, or having crimes committed in the presence of her children, including M.J.F. There were multiple times Wreathye had been drinking alcohol when she appeared at a hospital. There were other drugs she used habitually, including benzodiazepines. Wreathye's record is replete with examples of her abusing alcohol or marihuana and of missing counseling and rehabilitation meetings. Wreathye has violated the terms of court orders and service plans.

            On the other hand, Wreathye testified that she is attentive to M.J.F. and has brought him things he needs. She says she and M.J.F. bonded together well.

            Drugs and alcohol have had a powerful hold on Wreathye so that she has had a difficult time turning loose of them.

            Wreathye feels she can offer M.J.F. a home and take care of him appropriately. She does not believe it is in M.J.F.'s best interest for her parental rights to be terminated.

            Even while this case has been going on, while Wreathye has been under scrutiny, she has had lapses and used drugs and alcohol. Although knowing for some time that she needs to obtain an Alcoholics Anonymous sponsor, Wreathye has not obtained one, except that, for a short time, she got a fellow A.A. attender to be her sponsor, notwithstanding that he was also in treatment for alcohol abuse.

            Wreathye admitted in her trial testimony given June 28 that she last used an intoxicating substance June 15, thirteen days earlier, at which time she used marihuana.

            C. Michael Faison Testimony

            Michael admitted he has been convicted for felony delivery of marihuana. That conviction occurred before his marriage to Sonja. Sonja knew of it.

            Michael indicated that he did not find out about Sonja's involvement with C.P.S. until he got involved with C.P.S. in Rusk County.

            Michael testified that, right after Michael and Sonja resumed living together, Wreathye was arrested for public intoxication outside Michael's trailer, and as a result, Michael took M.J.F.

            Sonja had told Michael that she had accidentally "grazed" M.J.F.'s eye with the telephone receiver and that young Michael had dropped M.J.F. Michael told Katy Wady, a C.P.S. caseworker, that things at the Faison home were stressful because of the situation which included taking care of an infant child produced by an extramarital affair. Michael's best recollection is that he reported M.J.F. falling from bed and M.J.F. getting "grazed" by the telephone receiver.

            When Michael saw Wreathye intoxicated on October 25, she was one of two possible drivers at the time, and she was apprehended by police for public intoxication. On a different occasion, Wreathye appeared at Longview Regional Hospital and, in a way, Michael agreed with the doctors' opinion that Wreathye was intoxicated at that time. For a time, Michael did not realize that Wreathye's alcoholism posed a problem for her parenting of M.J.F., but then he realized it did.

            Michael does not believe the hematomas on M.J.F.'s body were caused by Sonja. If Michael retained parental rights to M.J.F., M.J.F. would live with Michael and Sonja in their home. After the injury to M.J.F. requiring hospitalization, there was a $20,000.00 hospital bill.

            Michael has been sober, or clean, since the end of 2001.

            In 1998, Michael sold marihuana to an undercover policeman. Michael was using drugs when he and Sonja married and when they separated. Before 2001, he had been heavily into "hard drugs" since approximately 1984.

            In 2003, Sonja decided to reunite with Michael, and Michael, recognizing his obligation to his estranged wife, chose her over Wreathye. Back in the home environment, though it was stressful, the other kids "took to" M.J.F., and he did well. Though M.J.F. sustained some bumps, from the accident with the telephone receiver and from the other children picking him up, he was not abused.

            Michael became concerned about M.J.F. because of his enlarged head and his unusual behavior, and took him to see a doctor. M.J.F. was taken by air flight to Dallas for medical evaluation. Michael was stressed out. He talked with the doctors, support staff, and "everyone." C.P.S. came later and took the children.

            Before the children were removed, when Wreathye was arrested, she had left her car in front of Michael's house with M.J.F.'s car seat still inside. Michael retrieved the car seat, but had to take it apart to adjust the straps because they did not properly connect.

            Michael does not believe Sonja caused any injuries to M.J.F. It would be unjust to require him to get a divorce from Sonja unless she is proven to have hurt M.J.F. Michael is willing to forego temporary custody pending the outcome of Sonja's criminal proceeding, which he believes will be an acquittal. Michael does not believe it would be fair to terminate Wreathye's parental rights. While separated from Sonja, Michael tried to help support M.J.F. Recently, Michael has been doing his best to stay "clean" (drug free), notwithstanding that he had been an addict. Michael did not know about an instance in which C.P.S. investigated possible abuse by Sonja against her children in Houston.

            M.J.F. was born with an enlarged head. That may have been related to Wreathye's history of drinking.

            Michael saw M.J.F. fall off the bed at Wreathye's house, hurting himself. M.J.F. has also fallen off the bed in Michael and Sonja's house. Michael knows of four different occasions in which M.J.F. fell or was dropped.

            D. Rita DeShannon Testimony

            Rita DeShannon was with the Rusk County Child Advocacy Center in 2004 when she interviewed December Faison and young Michael Faison, the two children of Michael and Sonja. DeShannon does not remember two children from the same family both blurting out information, at the very beginning of their interviews, about mama hitting "the baby," as December and young Michael did when they were interviewed. The fact that December spontaneously used the slang "weed" for marihuana in her interview enhances the believability of her claim of marihuana use by Michael.

            E. Kelly Smith Testimony

            Kelly Smith, a self-employed, licensed professional counselor contracting with C.P.S. and with the Children's Advocacy Center, testified that, in Smith's play therapy and counseling sessions with December starting in May 2004, Smith noticed evidence in December's play that indicated violence in Michael and Sonja's home. December told Smith that, once when M.J.F. was crying, Sonja hit him repeatedly on the head and kept hitting him until he quit crying and "went to sleep." Before hearing that story, Smith knew that Sonja had injured M.J.F., but had not discussed that with December. December's revelation seemed to Smith spontaneous and not coached. In Smith's play therapy and counseling sessions with young Michael, he also exhibited evidence of a great deal of violence in his home environment. And young Michael talked about the violence in his home. Young Michael told essentially the same story about M.J.F.'s crying and Sonja hitting him repeatedly to make him stop crying. According to young Michael, the source of violence in the home was Sonja. Smith does not recall young Michael and December ever mentioning whether Michael was present when Sonja was violent in the home.

            Young Michael's depictions of violence and his aggression were extreme. December drew, and played out, violence and aggression quite a bit. A child who is raised in an abusive and violent home tends to grow up to be an abusive adult. December said that, on different occasions, she was "whipped" with an extension cord that left bruises and marks on her, which, in Smith's opinion, would be difficult for a father or stepfather not to notice. So, it would not be in the best interest of the children for them to be taken care of by Michael. December drew pictures of violence and anger and played out, with dolls, scenarios of violence.

            F. Amanda Prewitt Testimony

            Amanda Prewitt, a social worker employed by the Department, testified that she saw M.J.F. at the time of his discharge from the hospital and noticed that he was small, slender, and pale, with a large head—a head which had a large lump, bump, or protruding area.

            Wreathye did some, but not all, of the things to comply with her family service plan. She did some work, but did not continue it. Wreathye maintained her housing, but she did not comply with the counseling requirements.   

            During monitored visits with the children, there were arguments between Sonja and Michael in the presence of the children.

            Michael, in conversations with Prewitt about M.J.F.'s injuries, maintained his belief that Sonja was not responsible for abusing M.J.F., that he knew Sonja had a C.P.S. history and that she might hurt an older child, but not a seven-month-old baby, such as M.J.F. Michael knew that, sometimes when he came home from work and M.J.F. had been in Sonja's care, M.J.F. would have a cut, a red mark, or such, and was crying. Michael knew Sonja was stressed from all the marital issues they were having, trying to put the relationship back together, taking care of someone else's child—many stresses.

            The Department recommends that parental rights to M.J.F. be terminated and that he be adopted. That would be in the best interest of M.J.F.

            M.J.F. was injured only at Michael and Sonja's home, not while in Wreathye's possession.

            Per Prewitt, Michael knew of Sonja's proclivity to injure a child. But Prewitt has no reason to doubt the truth of Michael's claim that he did not know of Sonja's C.P.S. history in Houston until M.J.F. was removed from the home. Because Wreathye could have learned of Sonja's C.P.S. history only by Michael telling her, she could not have known any earlier.

            When Wreathye came to visit M.J.F., she was one of the few parents Prewitt recalled who came with toys on her own, and also brought diapers, wipes, videos, and the like. Wreathye demonstrated a good relationship with M.J.F. and took excellent care of him during those visits. During Wreathye's visits with M.J.F., M.J.F. seemed to improve markedly. Except for her substance abuse problems, Wreathye appears to be a good mother.

            The Department's intent to work with Wreathye ended with her arrest for D.W.I., and M.J.F. was taken as a result. It is because of that D.W.I. that the Department seeks to terminate Wreathye's rights.

            During a six-week period, M.J.F. was in the presence of at least six caretakers.

             A different foster parent, a Mrs. Berry, reported December as saying that Sonja would hit "the baby" on the hand, and if it continued crying, then on the "butt," and if it continued crying, would "pop" it on the back of the head. December reportedly cried and asked Mrs. Berry not to report that to Michael because he would tell Sonja, and December would "get it."

            One reason M.J.F. blossomed might be that he was receiving additional help, not just his contact with Wreathye.

            Even while under scrutiny, Wreathye has not performed to the minimal standards of a parent.

            G. Judith Ward Testimony

            Judith Ward, the guardian ad litem for M.J.F. and an assistant program manager for East Texas Court Appointed Special Advocates, recommends termination of the parental rights of both parents to M.J.F. As to Wreathye, it is because, after a year and a half, she still admits to using alcohol and marihuana, and at the time of trial had maintained only thirteen days' sobriety. Ward believes it is a terrible risk to put a child with someone with that kind of record. As to Michael, after a year and a half, he continues to be in denial about Sonja's problems. He gives insufficient or unbelievable reasons for M.J.F.'s injuries. He has not provided M.J.F. a safe environment. Michael has not been cooperative with CASA. He is argumentative and angers easily. Ward opines that it is in M.J.F.'s best interest for Wreathye's and Michael's parental rights to be terminated and for M.J.F. to be placed for adoption.

            On the other hand, Ward testified that Wreathye has cooperated with CASA and has done all they asked of her, except remaining sober. When Wreathye got M.J.F. back, he blossomed. She was "wonderful."

            Although Wreathye cooperated and was otherwise a good parent, she had the D.W.I. with M.J.F. in the car and put him in danger again. That was a great disappointment.

            CASA approves of Lawrence and Terry Gower as prospective adoptive parents, because of an impressive lifestyle and the fact that they have current experience in dealing with their own child that does not hear or speak. That is a plus because of M.J.F.'s challenged condition.

            H. Faye Hubbard Testimony

            Fay Hubbard, a supervisor with the Department, testified that Michael's parental rights to M.J.F. should be terminated because he cannot or has not provided M.J.F. a safe environment, permanency, protection, or nurture. Hubbard testified that the following risk areas were met: M.J.F. is five years old or younger or otherwise unable to protect himself; M.J.F. is physically or mentally impaired or needs special care; Wreathye and Michael were "unwilling/unable to protect the child"; Wreathye and Michael "significantly lack child development knowledge"; Wreathye and Michael have "unrealistic expectations of child or frequently fail to understand the child's needs"; Wreathye and Michael "significantly lack parenting skills to meet the child's behavioral or developmental needs"; Wreathye and Michael "lack impulse control"; Wreathye and Michael are "unable to cope appropriately with stress"; Wreathye and Michael have a "history of drug/alcohol abuse"; a "caregiver [was] abused/neglected as [a] child"; a "caregiver [is] so self-centered or needy that his/her needs are put above the child's"; a "child [has] experienced significant separation from the primary caregiver"; a child was "scapegoated, rejected, humiliated, or treated differently by a caregiver"; M.J.F. "suffered physical injuries or sexual abuse"; abuse or neglect "require[d] immediate medical care"; "[a]ctual or potential harm [was] severe"; a "child [was] born addicted or exposed to drugs or alcohol"; there has been "a prior abuse or neglect investigation"; "a child" has been "inadequately supervised or left with inappropriate caregiver"; a "child [has] been removed from home by [a] protective agency"; a "prior incident resulted in a severe outcome"; incidents are "escalating in severity"; more people are "becoming involved, either as victim or perpetrator"; the family is "experiencing recent significant stress"; behaviors of some "household member endanger[s] the child"; the family is "isolated or supported by extended family"; the social relationships of caregiver are "primarily negative"; Michael has a history of abusing a spouse; Wreathye has "been [a] victim of spousal abuse"; Wreathye has a "history of criminal involvement"; Michael "promote[s] violence"; Wreathye and Michael "deny, seem unaware of, or take allegations less seriously than [the Department]"; Wreathye and Michael are "unmotivated/unrealistic about change"; and Wreathye and Michael "offer implausible explanations, attempt to deliberately mislead [the Department], or refuse to disclose important information."

            According to Hubbard, termination would be in M.J.F.'s best interest, based on the totality of the situation. Michael is still unable to provide a protective environment. The Department's recommendation of termination and adoption seeks to get M.J.F. into a safe, secure, and stable environment. Wreathye is not going to be able to parent.

            I. Megan Crim Testimony

            Megan Crim, a conservatorship worker with the Department, testified that, after the monitored return of M.J.F. into Wreathye's possession was found to be unsafe, Crim and Prewitt went to retrieve M.J.F. from Wreathye. Wreathye's D.W.I. with M.J.F. in the car is conduct which endangers the physical well-being of M.J.F. One condition of Wreathye's service plan was to attend Alcoholics Anonymous or Narcotics Anonymous meetings, which she did sporadically. Part of Wreathye's service plan required her to get at least a part-time job. Crim had no record that Wreathye ever got a job. Since M.J.F. was removed from Wreathye's possession, he has progressed well.

            On the other hand, Crim noted that Wreathye attended seventeen meetings in April. A "monitored return hearing order" dated October 19, 2004, indicates that, at that time, Wreathye had demonstrated adequate and appropriate compliance with the service plan as of that date, and says the same thing about Michael. The order says that Wreathye was willing and able to provide M.J.F. a safe environment and that return of M.J.F. to Wreathye was in the child's best interest. The only subsequent development was Wreathye's D.W.I. event with M.J.F. in the car.

            J. Rick Sirls Testimony

            Rick Sirls, a substance abuse counselor with the Woodbine Treatment Center, testified that he ordered a drug test of Wreathye, and she had admitted to smoking marihuana and drinking alcohol. This was on an occasion when he smelled alcohol on her. The test came back positive for alcohol, but not for marihuana. The clinic tested Wreathye twice more at later dates, but both tests proved negative for "all substances." Not getting an A.A. sponsor after some delay would be a matter of concern for Wreathye's chances for success.

            On the other hand, Sirls opined that, with a positive support network, Wreathye ought to have good chances to stay clean and sober.

            K. Terry Gower Testimony

            Terry Gower, the foster mother in possession of M.J.F. at the time of trial, testified that she has a natural child who is deaf and blind at age thirty-four. When M.J.F. came into the Gowers' home, M.J.F. was afraid of everything, except Gower's eighty-year-old mother, to whom he went readily. M.J.F. has some unusual fears that they are working on, including a terrible fear of the garage, and a terror of even ankle-deep water. He is developmentally delayed. In January, when M.J.F. came into Gower's care, he had few or no language skills, and even now he has only around fifty words, which is "far behind." He was walking. He was not walking well or climbing stairs by himself. He had motor skills problems. On Tuesdays, a lady from "E.C.I." comes out and works with M.J.F. for forty-five minutes. In the approximately five months since M.J.F. has been with Gower, M.J.F. is quite different, more confident, more friendly and open, showing no remaining fear of people. He talks to everybody, not being understood, and everybody loves him. He is learning sign language and uses it with his words. There are other foster children that play well with him and mother him. Gower would like to adopt M.J.F. M.J.F. is catching up and making great strides. But he still has limited vocabulary and is far behind normal children his age. Gower understands some of his words, but others not without his sign language accompanying them. Though M.J.F. was in a very regressed condition when he joined the Gower family, since that time he is making remarkable progress. M.J.F. is a special needs child and likely will remain so. As such, stability, routine, and dependability are extremely important to his best interest. Gower and her husband are willing to provide long-term care for M.J.F. with or without adoption. Gower and her husband are reimbursed $23.00 per day for M.J.F.'s care expenses, but whether they get that reimbursement really does not matter to them.

(1)       Legally and Factually Sufficient Evidence Supports the Finding of the Trial Court that             Wreathye Knowingly Placed or Allowed M.J.F. to be in Conditions or Surroundings that             Endangered M.J.F.'s Physical or Emotional Well-Being

            One of the substantive grounds for termination of Wreathye's parental rights to M.J.F. urged by the State and found by the trial court is that Wreathye has "knowingly placed or knowingly allowed [M.J.F.] to remain in conditions or surroundings which endanger [his] physical or emotional well-being . . . ." See Tex. Fam. Code Ann. § 161.001(1)(D). The evidence recited above is such that a reasonable fact-finder could form a firm belief or conviction that Wreathye knowingly placed M.J.F., or allowed him to be placed, in at least two types of endangering conditions or surroundings, (a) Wreathye's substance abuse or criminal violations and (b) Michael's potential for physical and emotional abuse.

            The evidence is uncontested that Wreathye continued, until just a few days before trial, to engage in substance abuse, even in M.J.F.'s presence. While there is no direct evidence in the record that Michael abused M.J.F., there is evidence that Wreathye was an abuse victim at Michael's hands and knew of his tendency to be abusive.

            The evidence is legally and factually sufficient to support the finding that Wreathye knowingly placed or allowed M.J.F. to be placed in conditions or surroundings that endangered his physical or emotional well-being. See Tex. Fam. Code Ann. § 161.001(1)(D).

(2)       Legally and Factually Sufficient Evidence Supports the Finding of the Trial Court that             Michael Knowingly Placed or Allowed M.J.F. to be in Conditions or Surroundings that             Endangered M.J.F.'s Physical or Emotional Well-Being

            The State urged and the trial court also found that Michael had "knowingly placed or knowingly allowed [M.J.F.] to remain in conditions or surroundings which endanger [his] physical or emotional well-being . . . ." Tex. Fam. Code Ann. § 161.001(1)(D). The evidence recited above is such that a reasonable fact-finder could form a firm belief or conviction that Michael knowingly placed M.J.F., or allowed him to be placed, in three types of endangering conditions or surroundings, (a) Sonja's physical abuse, (b) Wreathye's substance abuse or criminal violations, and (c) physical violence and emotional turmoil in Michael and Sonja's home.

            Michael denies knowing of Sonja's abusive behavior and claims she was not actually abusive. One could argue that his denials concerning his knowledge are undisputed. But there is evidence that could have been believed by a reasonable fact-finder that Sonja was guilty of physical abuse, including numerous injuries to M.J.F. while in her care, reports by December and young Michael confirming Sonja's abusive behavior against M.J.F., the other children's fears of retribution for reporting that abuse, and December being "whipped" with an extension cord, an event which, in the opinion of witness Smith, would be unlikely to escape Michael's notice. A reasonable fact-finder could have disbelieved Michael's protestations that he knew nothing about Sonja's abusive behavior. Likewise, a reasonable fact-finder could have concluded also that Michael knew of physical violence and emotional turmoil in his own home.

            There is no real dispute that Michael knew about Wreathye's continued substance abuse, at least sometimes in M.J.F.'s presence.

            The evidence is legally and factually sufficient to support the finding that Michael knowingly placed or allowed M.J.F. to be in conditions or surroundings that endangered M.J.F.'s physical or emotional well-being. See Tex. Fam. Code Ann. § 161.001(1)(D).

(3)      Legally and Factually Sufficient Evidence Supports the Finding of the Trial Court that             Wreathye Engaged in Conduct, or Knowingly Placed M.J.F. with Persons Who Engaged in             Conduct,Which Endangered M.J.F.'s Physical or Emotional Well-Being

            The second substantive ground for termination of Wreathye's parental rights to M.J.F. is that she "engaged in conduct or knowingly placed [M.J.F.] with persons who engaged in conduct which endangers [his] physical or emotional well-being . . . ." See Tex. Fam. Code Ann. § 161.001(1)(E). The evidence recited above is such that a reasonable fact-finder could form a firm belief or conviction that Wreathye had engaged in endangering conduct, including (a) substance abuse in M.J.F.'s presence and also while pregnant with M.J.F., (b) driving while intoxicated with M.J.F. in the car, and (c) driving M.J.F. without a properly adjusted car seat.

            The evidence is legally and factually sufficient to support the finding that Wreathye engaged in conduct, or knowingly placed M.J.F. with persons who engaged in conduct, which endangered M.J.F.'s physical or emotional well-being. See Tex. Fam. Code Ann. § 161.001(1)(E).

(4)       Legally and Factually Sufficient Evidence Supports the Finding of the Trial Court that             Michael Engaged in Conduct, or Knowingly Placed M.J.F. with Persons Who Engaged in             Conduct, which Endangered M.J.F.'s Physical or Emotional Well-Being

            The second ground for termination of Michael's parental rights to M.J.F. is also that Michael "engaged in conduct or knowingly placed [M.J.F.] with persons who engaged in conduct which endangers [his] physical or emotional well-being . . . ." Tex. Fam. Code Ann. § 161.001(1)(E). The evidence recited above is such that a reasonable fact-finder could form a firm belief or conviction at least that (a) Michael allowed Sonja to care for M.J.F., notwithstanding his knowledge of her violent tendencies, and (b) Michael allowed Wreathye to care for M.J.F. notwithstanding his knowledge of her ongoing substance abuse.

            The evidence is legally and factually sufficient to support the finding that Michael engaged in conduct, or knowingly placed M.J.F. with persons who engaged in conduct, which endangered M.J.F.'s physical or emotional well-being. See Tex. Fam. Code Ann. § 161.001(1)(E).

(5)       Legally and Factually Sufficient Evidence Supports the Finding of the Trial Court that             Termination of Wreathye's Parental Rights to M.J.F. is in M.J.F.'s Best Interest

            In addition to finding a substantive basis for terminating parental rights, such as we address above, the trier of fact must have found, as it did, that termination of Wreathye's parental rights to M.J.F. is in M.J.F.'s best interest. See Tex. Fam. Code Ann. § 161.001(2). There is a strong presumption that the best interest of the child is served by keeping custody with the natural parent. See In re D.M., 58 S.W.3d 801, 814 (Tex. App.—Fort Worth 2001, no pet.). The parents' rights, however, are not absolute; protection of the child is paramount. In re A.V., 113 S.W.3d 355, 361 (Tex. 2003).

            A nonexclusive list of factors established by the Texas Supreme Court helps measure the best interest of the child: (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 stability of the home or proposed placement, (g) the acts or omissions of the parent, which may indicate that the existing parent-child relationship is not a proper one, and (h) any excuse for the acts or omissions of the parent. See Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976). Best interest, however, does not require proof of any unique set of factors, nor does it limit proof to any specific factor. See In re H.R., 87 S.W.3d 691, 700 (Tex. App.—San Antonio 2002, no pet.). Much of the evidence touches on a number of these factors.

            Although at the time of trial M.J.F. was incapable of making his desires known, there is considerable evidence as to his emotional and physical needs, the emotional and physical dangers to him, the relative parenting abilities of Wreathye and the Gowers, the relative stability of the homes of Wreathye and the Gowers, and acts and omissions of Wreathye.

            Of course, the same evidence that supports the substantive findings against Wreathye also weigh in favor of the finding in the trial court. But, in addition, the record contains a diagnosis that Wreathye has personality defects that impact her parenting suitability. The undisputed evidence that M.J.F. is especially vulnerable and has special needs, arising from his disabilities, strengthens the finding that termination is in his best interest. While there is contrary evidence, it is neither so voluminous, nor is it of a quality or type, such that it would mandate a contrary finding on M.J.F.'s best interest. Finally, there is substantial evidence that the Gowers would make good alternative parents for M.J.F.

            There is legally and factually sufficient evidence to support the finding that termination of Wreathye's  parental  rights  to  M.J.F.  is  in  M.J.F.'s  best  interest.  See  Tex.  Fam.  Code  Ann. §  161.001(2). 

(6)       Legally and Factually Sufficient Evidence Supports the Finding of the Trial Court that             Termination of Michael's Parental Rights to M.J.F. is in M.J.F.'s Best Interest

            In addition to finding a substantive basis for terminating Michael's parental rights, the trier of fact must have found, as it did, that termination of Michael's parental rights to M.J.F. is in M.J.F.'s best interest. See Tex. Fam. Code Ann. § 161.001(2). The same guidelines and factors apply here as in dealing with the same issue as to Wreathye's parental rights.

            Although M.J.F. is currently incapable of making his desires known, there is considerable evidence as to his emotional and physical needs, the emotional and physical dangers to him, the relative parenting abilities of Michael and Sonja as well as the Gowers, the relative stability of the homes of Michael and Sonja and the Gowers, and Michael's acts and omissions along with some excuses offered for those acts or omissions.

            As we noted in Wreathye's case, the evidence that Michael was guilty of substantive violations authorizing termination also weigh in favor of the finding that termination of Michael's parental rights would be in M.J.F.'s best interest. The evidence tending to support or subvert a finding of best interest as to Michael is similar to that supporting or subverting such a finding as to Wreathye. There is also evidence that Michael, too, has been diagnosed with personality defects, which impact on his parenting abilities.

            There is legally and factually sufficient evidence to support the finding that termination of Michael's  parental  rights  to  M.J.F.  is  in  M.J.F.'s  best  interest.  See  Tex.  Fam.  Code  Ann. § 161.001(2).

            Because there is legally and factually sufficient evidence to support all findings necessary to the judgment, we affirm the judgment of the trial court.  

                                                                                    Josh R. Morriss, III

                                                                                    Chief Justice

Date Submitted:          July 13, 2006

Date Decided:             September 1, 2006