in the Interest of A.B. and H.B., Children , 412 S.W.3d 588 ( 2013 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-11-00209-CV
IN THE INTEREST OF A.B. AND
H.B., CHILDREN
----------
FROM THE 322ND DISTRICT COURT OF TARRANT COUNTY
----------
DISSENTING OPINION ON APPELLEES’ MOTION FOR
REHEARING AND MOTION FOR EN BANC RECONSIDERATION
----------
I respectfully dissent. This court has already written two opinions reversing
two trial court judgments terminating Father’s parental rights. See In re A.B., No.
02-09-00215-CV, 2010 WL 2977709 (Tex. App.—Fort Worth July 29, 2010, no
pet.) (mem. op.) (hereinafter referred to as A.B. 1 and attached hereto as
Appendix 1); and In re A.B., No. 02-11-00209-CV, 2012 WL 4010404 (Tex.
App.—Fort Worth Sept. 13, 2012, no pet. h.) (mem. op.) (hereinafter referred to
as A.B. 2 and attached hereto as Appendix 2). The en banc majority now issues
an opinion, A.B. 3, reaching the opposite result of this court’s first two opinions.
In A.B. 1, a panel of this court––joined by the now en banc author of A.B.
3––reversed the trial court’s judgment terminating Father’s rights to his two
children, holding that legally sufficient but factually insufficient evidence existed
to establish the two grounds for termination that the Texas Department of Family
Protective Services (TDFPS) proceeded on at trial, endangering environment
under family code section 161.001(1)(D) and endangering conduct under family
code section 161.001(1)(E). On remand after A.B. 1, the State again sought
termination of Father’s parental rights under family code sections 161.001(1)(D)
and 161.001(1)(E). The case proceeded to trial for a second time, and TDFPS
offered into evidence no new facts in support of termination of Father’s rights
under family code sections 161.001(1)(D) and 161.001(1)(E). A comparison of
the evidence offered at the first and second trials is detailed in A.B. 2. In A.B. 2,
after thoroughly comparing the evidence admitted at the first trial and the
evidence admitted at the second trial, a panel of this court, with one justice
dissenting without opinion, found that no new evidence supporting termination of
Father’s parental rights based on either family code section 161.001(1)(D) or
family code section 161.001(1)(E) grounds was admitted on retrial and again
found that the evidence was legally sufficient but factually insufficient to support
termination based on family code sections 161.001(1)(D) and 161.001(1)(E).
TDFPS and Intervenors, who are Father’s children’s foster parents, filed a motion
for en banc reconsideration, and the en banc majority now, after this court has
issued two opinions holding that the evidence was factually insufficient to support
2
termination of Father’s rights on family code section 161.001(1)(D) or family code
section 161.001(1)(E) grounds, holds that the evidence is factually sufficient to
support termination of Father’s parental rights to his two children based on family
code section 161.001(1)(E).
I dissent from the en banc majority’s opinion in A.B. 3 because it does not
apply the proper factual sufficiency standard of review. It fails to review the
entire record. The majority opinion analyzes the evidence favorable to TDFPS,
but it fails to mention, discuss, or analyze much of the evidence evidence
favorable to Father––such as that both Nurse Donna Wright and Dr. Peter
Lazarus testified that they would have needed to conduct more tests before
making a failure-to-thrive diagnosis for H.B. in May 2007;1 such as that Mother
was the person who took the children to the doctor and fed the children; such as
that Father is a small man and was a small child and testified that he thought
H.B.’s size was genetically-related; such as that paramedic Chris Conner said
that when he saw H.B. on September 29, 2007, she looked a little underweight
but not emaciated; such as that Nurse Wright testified that A.B.’s injury to his ear
was caused by a slap; and such as Father’s testimony that he pleaded guilty to
injury to a child––slapping A.B.––only after being in jail for seventy-five days,
being unable to post his $20,000 bond, and being told that if he could not post his
1
H.B.’s condition was diagnosed in early October 2007, and the evidence
is undisputed that she gained weight and began to thrive after that time. So the
evidence must show Father’s conduct and knowledge before that time to support
termination of his rights on section 161.001(1)(E) grounds.
3
bond he would remain in jail for approximately two years until trial unless he
pleaded guilty. The en banc majority fails to mention that Father has no drug or
alcohol addiction, has maintained stable housing, has provided proof of steady
income, has worked his services to the satisfaction of TDFPS to regain his
children at one point, and has continuously pursued a relationship with his
children.
Despite the fact that three medical experts testified favorably to Father that
they did not know without further testing whether H.B. was suffering from failure
to thrive and that H.B. appeared only to be a little underweight but not emaciated,
despite limited evidence concerning Father’s slap to A.B.’s ear, and despite
Father’s compliance with his service plan, the en banc majority without
mentioning any of this evidence, holds that
the jury could have reasonably concluded that Father engaged in a
conscious course of conduct by consistently failing to adequately
feed his children and that he voluntarily engaged in a course of
hostile conduct around the children, CPS caseworkers, and other
authorities that culminated with A.B.’s injuries (for which he pleaded
guilty to criminal charges), further endangering the children’s
physical and emotional well-being.
Maj. Op. at 25. No evidence exists at all that A.B., as opposed to H.B., was
malnourished. No evidence exists of a course of hostile conduct toward the
children, and hostility toward ―CPS caseworkers and other authorities‖ is not
relevant to any element of termination of parental rights under family code
section 161.001(1)(E).
4
A correct factual sufficiency analysis must include the entire record; the
court must analyze all of the evidence, both the evidence favorable to Father and
the evidence favorable to TDFPS. See, e.g., In re H.R.M., 209 S.W.3d 105, 108
(Tex. 2006). The analysis is then whether, based on the entire record, a
factfinder could reasonably form a firm conviction or belief about the truth of the
termination grounds alleged by TDFPS; 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
such firm a conviction or belief, then the evidence is factually insufficient. Id. A
complete factual sufficiency analysis, taking into account the entire record, has
been twice performed by this court, and twice this court held the evidence to be
factually insufficient to enable a factfinder to form a firm conviction or belief that
Father engaged in an endangering course of conduct under family code section
161.001(1)(E). See A.B. 1 and A.B. 2.
Applying the appropriate factual sufficiency standard of review, as this
court did in A.B. 1 and in A.B. 2, I would hold that the evidence remains factually
insufficient to support termination of Father’s parental rights under family code
section 161.001(1)(E).2 Because the Majority does not so hold, I respectfully
dissent.
2
Because, based on the analysis set forth in A.B. 1 and A.B. 2, I would
hold that the evidence is factually insufficient to support termination under family
code section 161.001(1)(D) and section 161.001(1)(E), it is unnecessary to
address the sufficiency of the evidence to support the best-interest finding.
5
SUE WALKER
JUSTICE
DAUPHINOT, J., joins.
DELIVERED: August 8, 2013
6
Appendix 1
COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-09-00215-CV
IN THE INTEREST OF A.B. AND
H.B, CHILDREN
----------
FROM THE 322ND DISTRICT COURT OF TARRANT COUNTY
----------
MEMORANDUM OPINION1
----------
I. INTRODUCTION
In four issues, Appellant Father appeals the trial court‘s order terminating
his parental rights to his children, A.B. and H.B. Father argues that legally and
factually insufficient evidence exists to support termination of his parental rights
1
See Tex. R. App. P. 47.4.
under Texas Family Code sections 161.001(1)(D) and (E) 2 and to support a
finding that termination of his parental rights is in the children‘s best interest. See
Tex. Fam. Code Ann. § 161.001(1)(D), (E) (Vernon 2008). Father also contends
that the trial court violated his due process rights by denying him access to
expert witness fees. Because the evidence is factually insufficient to support
termination of Father‘s parental rights under either (D) or (E), we will reverse the
trial court‘s termination judgment and remand this case for a new trial.
II. FACTUAL BACKGROUND3
A. Mother and Father’s Marriage4 and Domestic Violence in
Missouri
Mother and Father met on a telephone chat line and dated for
approximately one year before they married on February 18, 2005. Mother is
from Texas, and Father is from Missouri, so they bounced back and forth
between the two states for a while.
1. Mother’s Testimony5
2
For ease of reading, these subsections are hereinafter referred to simply
as ―(D)‖ and ―(E).‖
3
We recognize that some of the witnesses‘ testimony is conflicting and
inconsistent. This factual background section of our opinion, however, sets forth
the testimony given, even when it is inconsistent or even apparently incorrect.
4
At the time of the termination trial, although Mother was still married to
Father, a divorce action was pending, and Mother was pregnant with her
boyfriend‘s child.
5
Although Mother‘s parental rights to A.B. and H.B. were terminated at the
same time as Father‘s, she did not appeal the judgment. We include her
testimony as it pertains to the endangering conduct and endangering
2
Mother said that when they lived in Missouri, Father hit her more than once
and pushed her. Mother said that the domestic violence consisted of both
arguing and physical confrontation and that she probably hit Father while
defending herself. Mother never called the police or made a report, she never
went to a battered women‘s shelter, and Father never was arrested for domestic
violence in Missouri.
2. Father’s Testimony
Father said that during his first year of marriage to Mother, the police were
never called out to their apartment for loud arguments or fighting because there
was no domestic violence. Father also testified that he did not strike Mother but
that she struck him.
B. A.B.’s Birth
1. Mother’s Testimony
Mother testified that A.B. was born in Missouri in April 2005.
2. Father’s Testimony
A.B. was born with the umbilical cord around his neck, but he was a
healthy baby. Father said that they took A.B. to the doctor regularly and that his
only hospital visit was the one at the center of this case, which is discussed
below.
environment findings that the trial court made when it terminated Father‘s
parental rights to A.B. and H.B.; however, we omit testimony regarding Mother‘s
compliance with her service plan and do not attempt to analyze whether the
termination of her parental rights was proper because that issue is not before us.
3
C. Missouri CPS Investigation
1. Mother’s Testimony
While Mother and Father lived in Missouri, CPS investigated them because
A.B. had cradle cap and a rash and because their house was dirty. Mother felt
that the allegations were false. She said that Father called CPS quite often
because he wanted them to close the case and that he was harassing the
caseworker with an inappropriate tone of voice. Mother said that the CPS
caseworker made a surprise visit to their home due to Father‘s phone calls to
their office. Mother and Father thereafter moved to Texas.
2. Father’s Testimony
CPS became involved with Mother and Father while they lived in Missouri,
but Father said that ―[CPS] realized that the referrals that were made were false.
And so, after a two- to three-day period, they closed out the case. They did not
offer any services or remove the child.‖
D. The Move to Texas
When Mother and Father moved to Texas, their first apartment was at the
Regents Cove Apartments near Westcreek Drive in Fort Worth. Mother worked,
and Father worked sometimes; however, they worked different shifts so that they
could take care of A.B.
E. H.B.’s Birth
4
H.B. was born June 25, 2006, in Fort Worth and weighed six pounds,
twelve ounces. Father worked when H.B. was born until Mother could go back to
work.
F. Domestic Violence in Texas
1. Mother’s Testimony
After they moved to Texas, Father continued to yell at Mother, and she
yelled back. While Mother was pregnant with H.B., Father hit her and pushed
her; she would not hit back or push back but would instead go to another room.
After Mother gave birth to H.B., she and Father continued to argue off and on.
Mother said that she never instigated the physical altercations. The
domestic violence occurred ―once every several months‖ and did not always
involve physical violence. Mother said that the children were present but that
Father was never physically violent to them.
2. Father’s Testimony
Father said that there were no fights or violence prior to his separation
from Mother, and the police were never called to their apartment. Father said
that they ―fussed over [money] a lot‖ but that it never came to the point where he
became violent with Mother. Father said that if they had arguments, they did not
have them in front of the children.
G. Separation
1. Mother’s Testimony
5
Mother left Father in approximately July 2007 because he was abusive.
When she separated from Father, Mother moved in with her sister and brother-in-
law, Jennifer and Gary W., in Mansfield for a month.6 Mother testified that
Jennifer W. did not take care of the children while Mother worked.7 Instead,
Mother took the children to Father‘s apartment while she worked in Fort Worth at
Sprint from 3:00 p.m. to midnight because Father was not employed; he received
Social Security disability payments for ADHD.
Mother rented her own apartment in Bedford in August 2007. After Mother
moved into her own apartment, Mother and Father watched the children.8
2. Father’s Testimony
H.B. was two years old and A.B. was three when Mother and Father
separated. Father said that when Mother received an $800 check from Sprint,
she decided to leave him. She went to Mansfield to live with her sister. Father
said that Mother‘s leaving ―kind of hurt‖ but that he could not force her to stay. During
6
Jennifer W. testified that she had noticed bruises on Mother, and Mother
initially told her that she had bumped into a wall or had hit herself. After Mother
separated from Father, Mother said that Father had hit her and caused the
bruises. Mother told Jennifer W. that she had separated from Father because he
was being very abusive toward her.
7
H.B.‘s medical records revealed that Mother said that Jennifer W. watched
the children while Mother was at work and that Father watched the children
―sometimes.‖
8
Jennifer W. said that Mother never lived with her; Mother went straight
from Father‘s apartment into her own apartment. Jennifer W. did not provide
babysitting services to Mother and Father‘s children while they were separated;
Mother told Jennifer W. that Father watched the children while she worked from
3:00 p.m. to midnight.
6
the entire separation, Father watched the children a couple of hours during the
week but not on a consistent basis. Jennifer W. watched the children while
Mother worked. Father did not keep the children overnight because he was
having maintenance issues with his apartment. Father said that there was a hole
in the bathroom ceiling through which bugs were coming in, and the dishwasher
was broken.
After Mother had lived with her sister for about a month, she then moved to
Bedford. Father said that after Mother moved to Bedford, he saw the children the
same amount of time (a couple of hours a week on an inconsistent basis);
Jennifer W. continued to keep the children while Mother was at work. Father said
that he did not keep the children for a weekend because he did not want them to
be in his apartment that long due to the maintenance issues.
H. Father’s Mental Illness
1. Mother’s Testimony
Father told Mother that he was bipolar. He was taking Welbutrin before
they got married, but then he stopped. Mother noted that Father was very angry
and more argumentative when he was not taking his medication. Mother had
also reported to the children‘s doctors that Father had Tourette‘s Syndrome,
insomnia, ADHD, and a history of seizures as an infant.
2. Father’s Testimony
Father testified that he was diagnosed with ADHD as a child and spent
most of his childhood—from a very early age to adulthood—in CPS custody
7
where he was placed in sixteen or seventeen foster homes. Father admitted
having emotional problems the majority of his adult life ―because things haven‘t
been going the way I wanted them to go as far as education and stuff.‖ Father
said that he might be depressed one day and extremely happy the next day but
that it never led ―to the level of complete anger.‖
I. No Domestic Violence After the Separation
Mother said that Father‘s mood when she saw him daily while dropping off
the children was the same as when he was not on his medication; he was angry,
but he did not strike her. Mother said that no physical violence occurred during
the times when she was dropping off the children and picking them up from
Father‘s apartment. Mother trusted Father with the children despite the domestic
violence that had occurred prior to the separation because she ―did not see
anything, as far as the kids.‖ From A.B.‘s birth in April 2005 throughout the time
that Mother and Father were separated, Father never harmed the children.
J. H.B.’s Growth Issues
1. Mother’s Testimony
Mother took the children to Cook‘s Clinic for well-baby check-ups. Mother
said that she and Father took H.B. to the doctor before they separated and that
she was the one who took H.B. to the doctor after they separated.
Mother agreed that H.B. was pretty small and was not growing very fast
but said that H.B. was eating regularly during that time and did not appear to
8
have any problems health-wise. Mother said that she had talked to the doctors
about H.B.‘s slow weight gain, and the doctors were under the impression that
H.B. took after Father, who had taken growth hormone shots in order to grow.
The doctors did not ask Mother to change H.B.‘s feedings. Mother said that she
did not have a conversation with Jennifer W., or anyone else, about taking H.B.
to the doctor for weight issues.9
2. Father’s Testimony
Father did not go to the doctor visit in May 2007 when H.B. was
underweight and falling off the growth chart;10 Mother said that H.B. was fine, so
Father did not know that H.B. was underweight. Father said that H.B. was born
small, and he just thought that she was having a tough time growing and that it
took some children a little longer than others to develop.
Father said that he and Mother were not purposely doing anything that
would have kept H.B. from thriving. H.B.‘s appetite was fine; she was eating
Cheetos, crackers, and pizza. Father said that they were always able to keep
9
Jennifer W. said that Mother and the children had visited her frequently
prior to H.B.‘s hospitalization, so Jennifer W. had lots of opportunities to see the
children. Jennifer W. was very concerned about H.B.‘s appearance from July
through September 2007 and told Mother that H.B. did not look healthy. Mother
told Jennifer W. that she had a doctor‘s appointment for H.B., but there was
never an appointment. It was obvious to Jennifer W. that H.B. was in distress.
Jennifer W. told Mother that if she needed help with formula or food that she
would help her. Father was there during that time, so he knew Jennifer W. was
concerned.
10
Father said that Mother did not let him go with her to the children‘s
pediatrician appointments often.
9
the refrigerator, the freezer, and the cabinets stocked, and they always made
sure that their children ate.
Father agreed that H.B. was fifteen months old in September 2007 and
that she was not walking or crawling; she was trying to ―scoot.‖ Father said that
H.B. could sit up when she was close enough to sit against the couch, but she
could only sit up by herself for a few seconds before falling over.
K. H.B.’s Seizure
1. Mother’s Testimony
On September 29, 2007, Mother had been in Mansfield visiting with
Jennifer W., and H.B. had been outside most of the day. Mother and the children
were at Mother‘s apartment when H.B. had a seizure. H.B. was conscious during
the seizure, but her eyes rolled back in her head, and she twitched. Mother said
that the EMS crew saw H.B. having a seizure and that the seizures occurred
repeatedly until H.B. was at the hospital. Mother said that Father went to the
hospital when H.B. was being treated.
Mother said that as a result of H.B.‘s hospital visit, the Texas Department
of Family and Protective Services (hereinafter ―the Department‖ or ―CPS‖)
became involved. After H.B. was released from the hospital, the children went to
live with Jennifer W. for eight or nine months until they were returned to Father.
2. Paramedic’s Testimony
Chris Conner, a paramedic with the Bedford Fire Department, testified that
on September 29, 2007, at 9:58 p.m., he responded to a call that a child was
10
having a seizure. When he arrived at Mother‘s apartment,11 he found H.B. to be
a little lethargic. Mother told him that H.B. was in her crib when Mother heard
some noises; H.B. started gasping for air and shaking her arms. Mother said it
looked like H.B. was having a seizure, but she had no history of seizures. Conner
could not tell whether H.B. had suffered a seizure, but he immediately asked one
of the firemen who came with him to grab H.B. from Mother‘s arms and to take
her out to the ambulance so that they could assess her.
H.B. did not have a seizure in Conner‘s presence, and her vital signs were
all stable. H.B. was acting fine physically, but she was dehydrated and exhibited
skin tartar, meaning that her skin felt ―real elastic.‖ Conner said that H.B. ―looked
a little underweight for her size‖ but was not emaciated, had an abrasion on her
forehead that was in a healing stage, and had ―a lot of dirt on her,‖ including dirt
under her fingernails. Conner saw that there was a lot of scabbing on her bottom
and that there was some dried blood in her diaper.
Mother told Conner that the abrasion on H.B.‘s head was caused by A.B.
throwing a toy at her four days earlier and that H.B. had a diaper rash that she
had continued to scratch.
11
Conner said that he noticed that the home was dirty. He said that there
were a lot of dirty dishes in the sink, and pots and pans were still sitting on the
stove. Conner described Mother‘s apartment as an unclean environment that
was below standards because its only contents were a bottle of Sprite, an air
mattress, and a car seat.
11
Conner advised Cook Children‘s Hospital of the situation and asked if they
would call CPS. His largest concern was H.B.‘s head injury because it was
unknown how severe the abrasion was and because Mother had admitted that
she did not take H.B. to the hospital to have it checked. However, Conner
believed that Mother‘s explanation for the injury—that A.B. threw a toy, which hit
H.B.‘s head—was consistent with the injury.
3. Dr. Lazarus’s Testimony
Dr. Peter Lazarus, a pediatrician at Cook Children‘s Hospital, testified that
H.B. was treated in the pediatric intensive care unit (PICU) for seizures and was
treated in his ward for failure to thrive. The cause of H.B.‘s seizures was a
chemical imbalance referred to as hypo low sodium. It is not a chronic condition.
It would take hours to two or three days for the condition to appear and be a
danger. Dr. Lazarus said that he did not think that the condition could be brought
on by Mother‘s giving the child a lot of water after a day of activity in the warm
weather. When H.B.‘s sodium level normalized, her seizures stopped.
H.B. was diagnosed with ―failure to thrive‖ because her weight when she
was admitted to the hospital, was fifteen pounds, and she was fifteen months old
at the time. H.B.‘s weight put her well below the fifth percentile on the growth
chart. When asked if H.B.‘s failure-to-thrive condition would have been obvious
two months before to relatives who saw the child every day, Dr. Lazarus said that
it would have been less obvious to people who saw the child every day than it
would have been to someone who had not seen the child for three months. Dr.
12
Lazarus said that the medical records showed that when H.B. was born, she was
in the twenty-fifth percentile.12 Dr. Lazarus noted that H.B. had her nine-month
check-up on April 9, 2007, at a neighborhood clinic, and her weight was in the
tenth percentile. Dr. Lazarus said that falling from the twenty-fifth percentile at
birth to the tenth percentile nine months later is within the realm of normal
because some children ―are born bigger than their genetic potential.‖ He also
said that sometimes it takes a while for children to get into their normal growth
channel, so falling one or two channels or growth curves is not unusual. But he
said that if the child was seen at twelve months and at fifteen months and growth
was starting to fall off, that would be alarming. When asked if he was concerned
about H.B.‘s health because she was down below the growth chart, Dr. Lazarus
said, ―Well, it certainly is not optimum growth.‖
When asked what the triggers are that let a parent know that the child is in
danger of not thriving, Dr. Lazarus said that the parents should find out at
―wellcare‖ or routine baby care. He did not know whether the doctors at Cook‘s
Clinic saw the triggers at H.B.‘s check-up five or six months before she presented
to the hospital. Dr. Lazarus said that if the child was seen at twelve months, the
problem should have been addressed.
12
The medical charts that Dr. Lazarus reviewed also noted that H.B. had
developmental delays; she did not crawl, pull up, walk, or sit up alone, which
would have been normal tasks for a fifteen-month-old child. There was concern
about H.B.‘s brain growth because her head circumference was small and was
falling off the growth curve, but H.B.‘s CT scan was normal.
13
After she was hospitalized, H.B. began thriving. Because all of H.B.‘s
metabolic screenings were normal, all the medical personnel did at the hospital
was properly feed her, which is what caused her to gain weight. From
September 29 to October 8, 2007, while she was in the hospital, H.B. gained one
pound, eleven ounces, which Dr. Lazarus said was an ―extraordinary weight gain
in the hospital.‖ During the nine months from the date that H.B. was hospitalized
(September 29) until her second birthday (June 25), she went from well below
the third percentile in weight to the seventy-fifth percentile, her length went from
well below the fifth percentile to the twenty-fifth percentile, and her head
circumference went from the third percentile to the fiftieth percentile. Dr. Lazarus
said that H.B.‘s weight gain was ―really substantial‖ and told him that she was
thriving. These improvements ruled out a hereditary cause for H.B.‘s failure to
gain weight. Dr. Lazarus had a more solid medical opinion at trial than he had
while H.B. was in the hospital because he had received the results from her two-
year checkup, so he opined that H.B. was inadequately nourished when she
presented on September 29, 2007.
4. CPS Investigator’s Testimony
Stacie Hall, an investigator with CPS who worked in the night response or
emergency response unit, testified that she had received a referral on September
30, 2007, stating that H.B. had been brought to the hospital by EMS at
10:00 p.m. on September 29 for seizures. Hall went to the hospital about noon
on September 30 to see H.B. and noted that she appeared pale and very small
14
for her age. H.B. had a diaper rash and had an abrasion on the right side of her
forehead, which Mother said occurred when A.B. threw a Buzz Lightyear toy at
her head.13 Hall said that the medical personnel told her that H.B. was admitted
to the hospital because they had concerns about her weight and the seizures that
she was having.
Mother told Hall that on the day H.B. was taken to the emergency room,
she had fed H.B. half of a peanut butter and jelly sandwich around 10:00 a.m.,
along with water and Sprite. Between going to the lake and then to her relatives‘
house, Mother fed H.B. some crackers. Mother and Jennifer W. left the children
in the care of Jennifer W.‘s mother-in-law, whom Mother assumed had fed H.B.
something while they were gone. Mother told Hall that she and the children had
arrived home at around 7:00 p.m.14 While Mother was getting dinner ready, she
heard H.B. make ―a really strange noise.‖ Mother looked and saw that H.B. was
gasping for air, that she was ―drooling really bad,‖ and that her left arm was
twitching. Mother contacted her neighbor, and the neighbor told Mother to call
EMS.
13
Father called the CPS office on September 30, 2007, and talked to Hall.
He also said that H.B.‘s injury was caused by A.B.‘s throwing a Buzz Lightyear
toy at her. Hall said that the injury looked consistent with the explanation that
Mother and Father had given.
14
Hall said that there were some discrepancies about what Mother did
throughout the day; Mother said that they were at the lake all day and then said
that they were there for only fifteen minutes.
15
Hall also obtained some additional background on H.B. and her family from
Mother. Mother said that H.B. weighed six pounds, twelve ounces when she was
born and that H.B.‘s last doctor visit was her thirteen-month well check-up.
Mother told Hall that she had been separated from Father for about two
months, but Mother did not mention who she had been living with while she was
separated. Mother told Hall that during the time that Mother and Father were
separated, Father was still involved in the children‘s lives. Mother said that
Jennifer W. and another lady helped watch the children while she worked;
Mother never told Hall that Father watched the children while she worked.
Mother initially denied any domestic violence but then said that Father had
been physically violent in the last six months of marriage, which is why she had
left him. Mother told Hall that they had a CPS referral for neglect when they lived
in Missouri.
When Hall interviewed Father, he said that H.B. ate baby food out of a jar
and drank whole milk. Father said that every now and then he would give her
some light potatoes or ―light solvent,‖ but he did not explain what he meant by
―light solvent.‖
Father said that he and Mother had been separated about two or three
weeks but denied that there was domestic violence in his relationship with
Mother. Father later said that Mother had assaulted him once. When Hall asked
Father why Mother would have said that he was hitting her, he told Hall that he
16
was going to court to file for child support because he kept the children most of
the time15 (i.e., whenever Mother was at work).
Hall said that the case was found ―reason to believe for physical neglect‖
due to the fact that H.B. was underweight for her age, had poor gross motor
skills, was developmentally delayed, and had not been seen by a doctor since
May; because all of H.B.‘s tests came back normal, the Department determined
that H.B.‘s condition was due to neglect.16
5. Father’s Testimony
Father said that he became aware of the medical crisis with H.B. when
Mother called him from the hospital and told him that CPS was involved. Mother
told him, ―[P]lease, please don‘t get upset with them.‖ Father asked if he could
speak with the social worker, and that was when Hall had her conversation with
Father.
Father did not go to the hospital until Monday because he did not have
transportation until that time. H.B. was still in the PICU when Father arrived.
Father said that H.B. stayed there for three or four days and then was transferred
to a room. Father stayed at the hospital continuously while H.B. was there.
15
Father told Hall that he was unemployed and received Social Security
Income (SSI), but he did not explain to her why he was receiving SSI.
16
La‘Morra Cornelius, a caseworker for the family, averred in her affidavit
that the reasons for the voluntary placement included H.B.‘s health and severe
developmental delays, as well as the home environment in which she lived.
17
Father said that he had a problem with the formula that the doctor was
giving H.B. because it was causing her stomach to become bloated and making it
hard for her to have a bowel movement. Father spoke to the nurses, they
ultimately changed the formula, and those problems went away. Father also had
a problem with the doctor‘s not informing him what was going on and not asking
for Father‘s permission to treat H.B.
L. Voluntary Placement
1. Hall’s Testimony
Hall recommended that the children be voluntarily placed with Jennifer W.
and that a case be opened with CPS to provide services to Mother and Father.
Mother signed an agreement stating that she would let her children stay with her
sister. Hall said that the voluntary placement kept the children from going into
foster care. A.B. was already staying with Jennifer W.,17 and H.B. was taken to
Jennifer W.‘s house after she was discharged from the hospital.
2. Father’s Testimony
Father also signed the papers to allow his children to live with Jennifer W.;
he thought that if he did not allow his children to stay with her, he would lose his
parental rights because that is what the investigator told him. CPS left it up to
Jennifer W. to determine when Father could visit, so Father was allowed to see
his children only about once a month. Father admitted that he did ―enough
17
Hall saw A.B. and noted that he was in good health; he was clean and
appeared to be of normal height and weight.
18
complaining‖ about not getting to see his children that eventually, three or four
months later, the caseworker set up supervised visits at the CPS office instead of
at Jennifer W.‘s residence. After the visits were moved to the CPS office, Father
was allowed to visit with the children on a weekly basis.
3. Jennifer W.’s Testimony
Jennifer W. testified that she kept the children from when H.B. was
released from the hospital through June 2008. Jennifer W. said that the children
gained weight and that Early Childhood Intervention services were offered to the
children while they were in her home.
M. Father Worked Family-Based Safety Services (FBSS)
1. Father’s Testimony
Father said that he immediately wanted to get started on his service plan
and that he ―jumped right on it‖ and ―got [his] stuff done‖ as soon as CPS issued
the necessary forms. Father said that it took about two months after the
voluntary placement to start the plan. Father said that during the time he was
working his FBSS, CPS made an unannounced visit to check on the condition of
his apartment, the sleeping arrangements, and the food that he had on hand.
Father took parenting classes with Janice Barker, who was with Volunteers
of America (VOA); he completed a psychological consultation with Dr. Parnell;
and he underwent a psychiatric evaluation with Dr. Yackulic at John Peter Smith
Hospital. Father participated in individual counseling with Norma Bartholomew
and was supposed to have ten sessions, but they mutually agreed to stop at the
19
seventh session because there was not a bond between them and because she
was siding with CPS. Father said that Judy Gaither was his anger management
instructor. Father got along well with Gaither because she took the time to listen
and understand the situation that he was in and ―basically didn‘t just throw [him]
out the door.‖ After Father completed his list of services, CPS gradually
increased the time that he was allowed to spend with his children.
2. Barker’s Testimony
Barker testified that in January 2008, she received a referral to provide
services to Father. Barker went over parenting skills and worked on budgeting
and homemaking skills with Father. Additionally, Barker provided transportation
to Father once a week so that he could visit with his children at CPS.
Barker said that Father was very hostile toward the services until she
explained them; at that point, he worked with the VOA but remained hostile to
CPS during the entire time that she worked with him. Barker said that Father
talked about his CPS case ―quite a bit,‖ but he never talked about going and
getting his children to remove them. When the trial court asked Barker if she
ever felt anxious while in Father‘s presence, she said that she had a good
working relationship with Father and that she did not feel like he was hostile
toward her, only CPS, but she would not have wanted to agitate him, especially
while the children were there because she could not have physically removed the
children.
20
The issues that Barker identified in her first visit to Father‘s apartment were
that there was very little food, there were no sheets on the bed, and there were
stains on the carpet;18 other than those issues, the apartment was clean. The
only food that Father had in the refrigerator was a small package of lunch meat
and bread; the fact that he had no fruits or vegetables was a concern. Father
told Barker that he did not have food stamps for the children but had only his own
food stamp money. Father was very resistant to getting sheets and food
because he did not understand why CPS was pushing the issues since the
children were not living with him. Barker explained to Father that he had to put
healthy food in his home to show CPS that he could provide food in case the
children were placed with him on any given day.
From February to March 2008, Father made progress by putting the sheets
that the VOA gave him on the bed and purchasing food. During later visits,
Barker saw that the same food was there and had not been touched. But Barker
agreed that it was reasonable for Father to keep the food for when the children
were returned to him and that it was not unusual that the food was not eaten.
Although Father told Barker that he had never been diagnosed with
anything, Barker noted that Father paced around his apartment and talked about
how his rights as a father were being ―very violated‖ and that was why he had
18
Barker admitted that it was an older apartment and that the stains on the
carpet were something that the landlord would have to take care of. Barker said
that Father did not have any pets.
21
made an appointment at West Texas Legal Services. Father did not understand
why the children were not placed with him after the problem occurred with H.B.
while she was in Mother‘s possession because he had been taking care of the
children every day. When Barker asked him why the children were not placed
with him, Father admitted that his apartment was not as clean as it could have
been. Father was relatively appropriate from January through March 2008,
except for the agitation, the pacing around, and the nervousness, which usually
occurred when he spoke of CPS.
Father appeared willing to learn the parenting materials and participated in
the parenting classes. Father did quite well on his final parenting quiz and
completed all his parenting classes. When Father had completed his parenting
classes, Barker talked with the CPS caseworker and discussed closing the VOA
services ―so that [Father] would not become too dependent upon [their]
transportation to and from the children‘s visits.‖
N. Children Returned to Father
1. Mother’s Testimony
Ms. Cornelius, the CPS caseworker, told Mother that CPS was going to
allow Father to have the children back in his home because he had completed
his services, and the children went to his apartment from Jennifer W.‘s home.
Mother had some concerns about the children being placed back with Father.
She wondered whether he could take care of the children financially and thought
that she had ―mentioned to someone that is not a good idea,‖ but she did not
22
remember whether she pressed it any further. Mother admitted that she was
instructed not to have contact with Father until she completed her services.
2. Father’s Testimony
Father testified that the children were returned to him on June 10, 2008.
Father said that CPS did not have reservations about him or they would not have
returned the children to him. While Father had the children, Mother was allowed
to see them only at the CPS office with supervision.
Father said that the children‘s schedule when they were with him included
waking up around eight or nine; eating pancakes or biscuits for breakfast; playing
in the living room with toys; playing outside on the playground; eating pizza,
hamburgers, hot dogs, or bologna sandwiches for lunch; playing and watching
television; eating dinner that Father fixed;19 and giving them a bath before bed.
Father said that both children were in diapers. He had twice attempted to
potty train A.B., but A.B. had issues with not wanting to sit on the toilet. Father
said that he wanted to slowly progress A.B. into potty training instead of
traumatizing him. Father said that there was no argument or forcing the issue.
O. Mother’s Domestic Violence Incident
1. Mother’s Testimony
19
Father said that his cooking skills were ―[n]ot the best in the world‖ but
that he could cook microwave food and some on the stove. When A.B. was
three, he was eating ―table scraps‖: green beans, vegetables, and normal food
that Mother and Father ate. Father said that they mostly had weaned H.B. from
her bottle at one year and that she ate small ―table scraps.‖ She was ―eating as
much table food as she could take in.‖
23
Mother said that on June 16, 2008, she went over to Father‘s apartment
because he had called her; she did not make a scene, she did not punch Father
in the face, and no citation was issued. When Father‘s attorney produced a
citation dated June 16, 2008 for assault by contact, Mother said that was the first
time that she had seen the citation and that she had not been told that she had
been issued a citation. Mother said that she went to Father‘s apartment to see
the children only once; she denied that there was an incident in which she went
to Father‘s apartment, she was unwilling to leave, and she was escorted to the
door by Father.
2. Father’s Testimony
When Mother came to Father‘s apartment on June 16, 2008, she knocked
on the door and said that she wanted to see the children. Father told her that he
could not let her see the children because Ms. Cornelius had said that Mother
was required to have supervised visits. Father said that he told Mother, ―I‘m
going to have to ask you to leave ‗cause I don‘t want to lose [the children] again.‖
Father had opened the door slightly, and Mother pushed her way in and went to
the bedroom where the children were watching television. Father told Mother that
she had to leave, put her arm behind her back, and tried to escort her out of the
apartment. On the way out of the bedroom, Mother tried to break out of Father‘s
24
arm and hit her eye on the door frame;20 Mother left, went to the apartment
manager, and said that Father had attempted to beat her. The police thereafter
came to Father‘s apartment.
Mother came over ―one other time‖21 when the children were with Father,
and Father told her that she needed to leave. Mother punched Father in the eye
and then took off running down the stairs. Father said that this was the assault
by contact episode that resulted in a citation being issued to Mother.
P. Barker’s July 1 Visit to Father’s Apartment
On July 1, 2008, Barker reopened the file on Father because the VOA had
received a new referral that his children had been placed back in his care. Barker
said that she had concerns when she learned that the children had been returned
to Father because he was very agitated during many of her previous visits and
spoke in a very hostile manner about Mother and about CPS. Barker said that
Father seemed to have a lot of anger issues, so she was concerned with whether
those had been addressed. Barker felt like Father‘s agitation was ―probably at a
higher level‖ than what she considered to be normal for people in his situation.
20
Father said that the children were watching television and could have
seen Mother hit her face on the bedroom door, but he could not guarantee that
they saw it.
21
Although Father described the previous event as taking place on June
16, 2008, it appears that the following event is the one that took place on June
16, 2008, because it matches the description in the police citation.
25
When Barker went to Father‘s apartment on July 1,22 she was concerned
because Father had very little furniture and very little food. He had a bed in his
bedroom, a toddler bed in the living room, a high chair, and an older television
console. Barker talked with Father about the fact that he needed to get some
food, told him about utilizing food banks, and said that she would try to get a food
card for him. The lack of food also concerned Barker because it was almost the
Fourth of July, and the stores would be closed for the holiday. During that visit,
Barker noted, however, that Father‘s bed and the toddler bed had sheets on
them.
Q. A.B.’s Injuries
1. Barker’s Observation
On July 8, Barker went back to visit Father, brought food, and noticed that
there was not any new food. Father and the children appeared to have just
awakened when she arrived around 9:00 or 9:30 a.m., and both children had
dirty diapers.23 Barker pointed out the dirty diapers and told Father to change
them; he complied.
22
At that time, Father had moved into the Woodhaven apartment complex
in east Fort Worth.
23
Barker said that the fact that both children had dirty diapers when they
awakened would not in and of itself be surprising, but ―they were very wet and
very full, which tends to make you feel like that they were on for quite sometime.‖
26
Barker noticed that A.B. had bruises on his face and ear. 24 Barker asked
A.B. what had happened, and he said that he had fallen. 25 When Barker asked
how he fell, A.B. looked down at the ground and did not say anything else.
Before Barker could ask Father what had happened, Father said, ―[Y]ou heard
him, he said he fell.‖ Barker asked Father how A.B. had fallen, and he said that
he had no idea how A.B. had received the bruising on his face and ear and
denied that he had struck the child. Barker told Father that he needed to call his
CPS caseworker and inform her of the fall. Father seemed very hesitant and told
Barker that CPS was not going to believe him.
Barker found the bruising on A.B. to be ―very upsetting.‖ She stated that
the children had just been placed back with Father, that it was a very stressful
time, and that now there was bruising on A.B.‘s face. Barker said that it looked
like a definite handprint on A.B.‘s cheek and that his ear was very black and blue.
Barker assumed that A.B.‘s ear had been pinched and said that the bruising on
A.B.‘s ear was ―definitely not a sleeping print.‖ If A.B. had fallen, Barker would
have expected him to have had other injuries, not just bruising on his face and
ear. Barker believed that the children were in a dangerous environment, so she
24
Barker testified that she did not see any bruising on the children during
her July 1 visit.
25
Barker testified that A.B. had limited verbal skills and was saying ―maybe
three-word sentences.‖
27
left to make a call to CPS to report the bruising on A.B.26 Barker called both the
national CPS hotline and the local CPS office because she thought the local
caseworker could get out to the apartment faster than someone from the national
office.
Barker testified that Father called her a few times after the July 8 incident,
and Barker told him that she had made a referral to CPS. Barker said that the
calls that Father made to her were appropriate for the most part; he wanted to
verify that she had relayed to CPS that A.B. had stated that he had fallen. Barker
said that Father continued to call her after that, but she screened her calls and
did not answer his calls. When asked if Father continued to call and harass her
over the last year, Barker said, ―No. He did come by the VOA office,‖ but she
was not there. Barker stated that after Father came to the VOA office twice, they
started keeping the doors locked because his visits alarmed the ladies in the
building.
2. Tammy Brooks’s Testimony
Tammy Brooks, who works for CPS, was assigned to investigate the
referral that was received on July 8, regarding physical injuries to A.B. She and
Officer Steven Osborne went to Father‘s home to make sure that the children
were safe.
26
Barker testified that this was only the second time in her twelve years
with the VOA that she had to report abuse.
28
Brooks knocked on the door, and Father opened it. Father asked why she
had come to his home ―with those pigs,‖ referring to the police. Father called
Brooks a ―whore‖ even though they had never met before. 27 Brooks said that
Father seemed annoyed that they were at his home and wanted them to leave.
Brooks told Father that she needed to see the children because a referral
had been phoned in, but Father would not let her in. He asked if they had a
warrant and said that they needed to leave his property if they did not have one.
Brooks explained that they did not need a warrant to see his children, but Father
still would not let her in.
When Brian Knox of FBSS arrived, Father let him inside his apartment.
Knox came out and reported the condition of the children to Brooks. After that,
Brooks told Father that she needed to see the children and take pictures of them
because Knox had reported that they had injuries. Father picked up each child,
held him/her out the door, and said, ―[S]ee they‘re fine.‖ Brooks told Father that if
he did not allow her to see his children so that she could make sure that they
were safe, then she would go to court, and there might be a removal.
When Father finally let Brooks inside the apartment, Brooks noted that the
apartment was sparsely furnished. She saw a red toddler bed in the bedroom, a
27
Brooks testified that Father never talked to her in a calm manner while
she was at his apartment; he was loud, verbally abusive, constantly aggressive,
and constantly on the attack. And although he never struck anyone, she was
glad that she had police officers with her. Brooks explained that she was not
Father‘s caseworker and that Father wanted his caseworker, Ms. Cornelius.
29
mattress box spring on the floor, and dishes in the sink; she did not recall seeing
anything that was a danger to the children. When asked whether the children
were in a neglected environment, Brooks said that she did not spend that much
time in the home and could not get a sense of it. 28 Brooks also said that she
could not tell whether Father‘s apartment was a dangerous environment.
Brooks said that A.B. was wearing some mismatched shorts and a shirt;
H.B. had on only a diaper. Brooks said that the whole family had an odor from
not bathing. Brooks noted that A.B.‘s ear was dark purple and that he had some
linear bruises on his face. Brooks said that A.B. was really dirty and that she
could not see any other bruises in the short amount of time that Father allowed
her in the apartment, but she did observe dark marks under A.B.‘s eyes.
Father told Brooks that A.B. had fallen off the toddler bed. Later, Father
said that A.B. fell off Father‘s bed. Then, Father gave a more detailed version;
he said that he had been asleep and had awakened when he heard A.B.‘s crying,
and A.B. told him that he had fallen and that it hurt. Father said that A.B. had
marks on his eyes because he was not getting enough sleep and that A.B. had
marks on his cheeks because he was rubbing his face on the carpet.
Brooks told Father that A.B. needed to be seen by a doctor to make sure
that he did not have additional injuries. Father refused to take A.B. to the
hospital, stating that he was ―not going to fall for it again‖ because CPS had
28
Brooks said that she was outside Father‘s home for about three or four
hours and that she was inside for only five or ten minutes.
30
previously taken his children from him at the hospital. Brooks told Father that if
he would not take the children to the hospital, CPS would remove them.
Ultimately, Knox transported the children to Cook Children‘s Hospital, and
Brooks followed him. Brooks said that they had a problem when they first arrived
at the hospital and tried to get the children seen by a doctor; Father was very
angry and would not give any information to the hospital staff to allow them to
register the children. Both children were eventually seen in the emergency room.
After they had been at the hospital for an hour or more, Brooks took
pictures of the children and tried to clean H.B. with baby wipes because she had
dirt on her. Brooks said that H.B. did not look like she was failing to thrive 29 but
that both children stared and looked blank, so Brooks thought that they might be
hungry. Brooks and Ms. Cornelius bought food for the children and tried to blow
on the food to cool it, but A.B. kept putting it in his mouth and eating it while it
was still hot. After the children were fed, they began moving, talking to each
other, and hugging each other.
Brooks tried to establish rapport with the children by asking their names
and ages, but A.B. was unresponsive. When Brooks pointed to his bruise and
asked him what had happened, A.B. blurted out, ―I fell,‖ and ―[i]t hurt.‖ After A.B.
said that he had fallen, Brooks heard A.B. tell Ms. Cornelius about a fight
29
Father had asked Brooks to ―check out‖ the doctors that he saw when he
was young so that she would realize that H.B. did not have a failure-to-thrive
problem but rather that she had a growth hormone problem just like he had when
he was growing up.
31
between Father and Mother. A.B. moved his hand and body and said Father
pushed Mother, and he demonstrated how she fell down and how she was
pushed. As he was telling the story, A.B.‘s voice became loud, like he was acting
out the scene that he had witnessed.
Based on information that Brooks received from the emergency room
doctor, who did not believe that A.B.‘s injuries were accidental, Brooks decided to
remove A.B. and H.B. from Father and to place them in foster care. In addition to
her concern over A.B.‘s injuries, Brooks said that the open FBSS case, the
history,30 and Father‘s behavior31 factored into her decision to remove the
children.
Corporal Blanchard, who had arrived at the hospital while the group was in
the exam room waiting for the doctor to see A.B., escorted Father out of the
hospital to try to serve him with papers. Ms. Cornelius attempted to serve Father
with the notice of emergency removal, but Father refused to sign it. He also
refused to sign a medical release information form and to provide placement
30
When Brooks went to investigate the referral, she did not know that there
was a prior CPS case in Missouri; she found that out later in her investigation.
Father had mentioned that he was from Missouri, so Brooks called the state and
requested that they check to see if Father had any CPS history. Missouri
responded to Brooks‘s inquiry and sent CPS records.
31
Brooks described Father as ―so aggressive and so loud and in your face‖
and said that several times, ―people had to come in and tell him to be quiet or
they were going to have him taken out of the hospital.‖ Brooks said that Father
quieted down for a little bit, but then he became angry when he found out that the
doctors had examined H.B.‘s private parts; he said that she had been violated.
32
information, and he had an altercation with Corporal Blanchard.32 The doctor
ultimately released the children to Brooks, and Ms. Cornelius placed them in a
foster home, where Jennifer H. became their foster mother.
After the removal, Brooks received phone calls and e-mails from Father.
Brooks said that somehow Father had obtained her State e-mail address and
had sent her multiple e-mails per day. At the time of trial, which was almost a
year after the removal, Father had continued to e-mail her with the last e-mail
dated ten days before the termination trial commenced. Brooks said that
Father‘s e-mails33 repeatedly stated that Brooks had violated his rights, that she
had taken his children, that she had been wrong about his son, and that Father
had not injured his child. Father did not ask Brooks to further investigate the
case but instead blamed her for taking his children, saying that she had handled
the case incorrectly. Brooks said that Father kept repeating the same
information ―in massive amounts, massive emails‖ and that he ―would call back to
back to back to back. He would just keep calling.‖ Brooks did not respond to
Father‘s e-mails because they were not providing new information; it was the
same thing that he had said on the phone, and she had already told him over the
phone that his case had ―moved on.‖ Brooks described Father as ―unique‖
32
Brooks read from her investigation report that Father ―told Corporal
Blanchard to suck his dick and he grabbed his crotch and thrust it toward him.‖
33
The e-mails were not admitted into evidence; Brooks testified that her e-
mails were ultimately deleted because her part of the case was closed.
33
because he kept calling and e-mailing her, and she had never been contacted by
a client before via e-mail.
3. Nurse Wright’s Testimony
Donna Wright is a pediatric nurse practitioner and a sexual assault nurse
examiner at Cook Children‘s Hospital. She is also on the CARE Team, which is
the child advocacy resource and evaluation team that sees children who have
been possible victims of physical abuse, sexual abuse, or neglect. She testified
that she saw both A.B. and H.B. on July 9, 2008, after they had been referred to
the CARE Team.
Nurse Wright said that in the emergency room, A.B. underwent a CAT
scan of his brain to check for injuries and had x-rays taken of his entire body due
to the bruises that had been found. All of the tests came back within the normal
range.
Nurse Wright performed a thorough head-to-toe assessment on A.B.
because he was too young to give her a history. She saw multiple soft tissue
injuries on A.B. Specifically, she noted that A.B. had purple-red bruising
approximately two millimeters on his left eyelid and had petechia—small pinpoint-
type bruising—on his left cheek and also on the temporal area right next to his
eye. Nurse Wright said that A.B. had red lines of bruising on the left side of his
face and purple-red bruising on his left ear. A.B. had a five-millimeter brown
bruise on his lower left abdomen, a five-millimeter brown bruise on his right lower
34
buttocks, and some line and configuration abrasions on his upper thigh.
Photographs of the bruises on A.B. were admitted into evidence.
Nurse Wright provided her opinion regarding A.B.‘s injuries. She testified
that all of the injuries to A.B.‘s face were of equal severity because of the amount
of force that would have been necessary to cause those injuries. She said that
the injuries would have been painful to A.B.
With regard to the injuries to A.B.‘s ear, Nurse Wright said, ―[T]hat is an
injury where something has to hit only the ear . . . . [S]omething struck the child in
the ear[,] or he only fell on one thing on his ear.‖ Nurse Wright said that A.B.‘s
ear injuries could have been from pinching, slapping, or twisting and pinching.
She agreed that the injury to the ear could have been caused by a parent‘s
grabbing the child by the ear with the thumb inside the ear and the first finger
outside the ear and pulling or jerking. Nurse Wright testified that the injury to the
ear would have required a significant amount of force and agreed that whatever
trauma caused the injury to the outside of A.B.‘s ear had sufficient force to bruise
through the ear to the back. When the trial court asked whether there would be
enough strength in the fingertips to make the bruise inside the ear while the rest
of the hand was making the print on the face, Nurse Wright answered that it
would require really long fingers to wrap that far around and that it would be
difficult to have that much force in the fingertips to cause bruising. The ear had a
darker bruise, and Nurse Wright opined that the bruise on the face and the bruise
on the ear were approximately the same age based on their color and the fact
35
that they were in the same area of the body. Nurse Wright opined that A.B.‘s
face and ear injuries could have been caused at the same time, but the bruise
near his eye was caused at a different time. She said that all of the injuries to
A.B.‘s ear and face had the potential to be severe because they were on his
head and could cause brain trauma.
Nurse Wright testified that she believed that the injuries on the left side of
A.B.‘s face,34 which included the linear configuration, were slap marks. She
opined that the slap print was caused by an adult because the length between
each of the linear marks was inconsistent with a child‘s hand, that the person
who had slapped A.B. had used his/her right hand, and that the bruise from the
alleged hand slap was approximately less than three or four days old. Nurse
Wright agreed that there was one slap to A.B.‘s face and that was all they had
pinned down and that the injury could not have been caused by a carpet burn
because there were no abrasions, just bruises.
With regard to the injuries to A.B.‘s eye, Nurse Wright said that if someone
fell forward on an object or onto the floor, his cheeks or forehead would be
injured, not the inside of his eye. To cause injuries inside the eye, a toy or
another object would have to go straight into the eye. Nurse Wright did not know
what caused the injury to A.B.‘s eye socket. She said that there was a possibility
that the thumb from the hand that made the slap mark might have reached A.B.‘s
34
All of A.B.‘s injuries were on the left side of his face, with the exception of
one bruise that was fading on his right cheek.
36
eye socket, but it was on a different plane. Nurse Wright did not dispute that A.B.
could have fallen, but she did not believe that A.B.‘s injuries occurred from a
single fall because the injuries were on two different planes of the head.
She said that the bruise on A.B.‘s buttock was of concern because it was
in an area protected by a diaper and was a different color than his other bruises,
which indicated that it had occurred at a different time than the other bruises.
Nurse Wright said that it would take a lot of force to get a bruise in a spot
covered by a diaper, but A.B. could have sustained a bruise on his bottom if he
was running around without a diaper on. Nurse Wright could not say that the
bruises on A.B.‘s abdomen and buttocks happened at the same time; she could
only say that they were about the same age and were older than the bruises on
A.B.‘s face.
Nurse Wright was ―extremely concerned‖ about the bruise on A.B.‘s
abdomen because it is very difficult for the abdomen to bruise from a fall. She
said that there is always a concern about internal injuries—to the liver and
pancreas—when there is a bruise on the abdomen.
Nurse Wright said that common accidental bruises in children usually
occur on the front side of their bodies on boney prominences—their knees,
hands, or forehead—when they fall. However, A.B. did not have bruises on his
boney prominences when Nurse Wright saw him in July 2008. The fact that A.B.
did not have any bruises on his boney prominences was a red flag, but it was the
compilation of where all the bruises were located that resulted in Nurse Wright‘s
37
diagnosis of ―not an accident.‖ Nurse Wright said that if A.B. had told her that he
had fallen, that would not have changed the diagnosis that he had non-accidental
injuries because all of his injuries were not from a single fall. If A.B. had fallen
from a toddler bed, Nurse Wright said that it would have been more likely that he
would have had injuries to a boney prominence in addition to the injuries that he
had presented with. Nurse Wright said that in her opinion, the linear marks were
probably from a slap and that the ear injuries could have been caused by a fall.
Nurse Wright said that it would not be inconsistent for A.B. to have said that he
had fallen, had hurt his ear, and was slapped; however, she did not think that
scenario would explain all the injuries that he had. Nurse Wright said that the
probability of A.B.‘s injuries being caused by an accident was less than five
percent.
Nurse Wright performed the same head-to-toe examination on H.B. H.B.
had a pale brown bruise on her left thigh that was approximately three by four
centimeters. This bruise was not of concern because there were no other
bruises and no other injuries.
Nurse Wright saw in the hospital records that H.B. had been hospitalized
nine months before for failure to thrive. Nurse Wright was extremely surprised
that H.B. had been previously diagnosed as ―failure to thrive‖ because ―she was
so chunky, she was playful, active‖ and because she was in the seventy-fifth
percentile for weight, the tenth percentile for length, and the fiftieth percentile for
head circumference. Nurse Wright said that if she had been in private practice
38
and had seen a child who had gone from the twenty-fifth percentile to the tenth
percentile within about four or five months, she would have been extremely
concerned and would have required the family to come back to the office to have
the child‘s length and weight checked periodically to monitor the situation. If the
child had come in to a clinic with those falling stats, Nurse Wright said that she
would have a significant follow-up appointment and would want to see all past
growth to know whether the decrease had occurred gradually or had immediately
dropped off. Nurse Wright said that it would be difficult for a child‘s care giver to
know that the child was falling off the growth chart unless he or she had gone for
a visit with the child‘s pediatrician and had been told of the problem.
4. Caseworker’s Testimony
Father volunteered to Ruth Groomer, who became the family‘s caseworker
in July 2008, an explanation about the cause of A.B.‘s bruising: he said that A.B.
had fallen. Father told Groomer that he and the children had been walking down
the street and that A.B. had fallen on a gate rail. 35 Father told Groomer that he
never slapped A.B.
5. Father’s Testimony
Father testified that on July 7 at about 7:00 p.m., A.B. was walking next to
the stroller that H.B. was sitting in when he tripped and fell over a gate at the
35
Dorene Branum, the manager of the apartment complex where Father
lived, testified that there was a large gate railing in the front of the apartment
complex.
39
apartment complex and hit his ear and his cheek on the ground. Father said that
there was no swelling when he checked A.B. before they went to bed.
They went to sleep about 8:00 or 9:00 p.m., and Father awoke an hour or
two later to A.B.‘s crying, ―My ear. My ear,‖ and he was slapping his hand
against the metal headboard of his bed. When Father asked A.B. what had
happened, he said, ―My ear. My ear. My ear.‖ Father thought that A.B. had
been jumping on the bed and had fallen down and had hit his ear on the
headboard because he was standing on the carpet slapping the headboard when
Father woke up. Father did not see any bruising on A.B. at that time. Father
said that it is possible that A.B. sustained his injuries from both the fall over the
gate and the incident with the headboard. Father said that he was concerned
about A.B.‘s injury but that he knew that it was not life-threatening.
Father testified that he and the children were sleeping when Barker arrived
the next morning. Barker thought there was dirt on A.B.‘s ear and tried to rub it
off; she then pointed out the bruising on A.B.‘s ear while Father was changing his
diaper. Barker asked A.B. what had happened, and he said that he had fallen. 36
Barker did not press A.B. for further details.
Father said that he told Barker the whole story about A.B.‘s slapping the
headboard with his hand but that she must have left that out of her testimony.
Father believed that there was an injury to only one side of A.B.‘s ear and that
36
Father said that A.B. was ―pretty verbal,‖ but he did not speak in full
sentences.
40
Barker‘s rubbing A.B.‘s ear may have caused bruising to the other side of his ear
to show up at the hospital. Father said that he never slapped A.B. and never
pulled or tugged on his ear.
Around 3:00 p.m. on the same day that Barker had visited Father, Brooks
came to Father‘s apartment, along with the police and others. The children were
in the living room, and Brooks was outside the door when Father called her a
―whore.‖ Father said that he was very sorry for his actions. Father described his
attitude when the police arrived as ―iffy.‖ He said that he was not cursing at,
screaming at, hollering at, threatening, or assaulting anyone; he was just trying to
get his point across that A.B. did not need to go to the hospital because he had
simply fallen. Father said that he did not have anything to hide but was scared
that CPS was not going to believe anything that he said about where the injury
came from. He said that he had finally gotten his children back and felt like his
life was where it needed to be, so he was afraid of losing his children again.
Father said that he went to Cook Children‘s Hospital when Brooks
threatened to remove the children if he did not take A.B. to the hospital to be
examined. He explained that when he refused to sign forms at the hospital, he
did so because he thought that CPS should pay for the visit because they had
requested it.
6. Mother’s Testimony
41
A.B. told Mother numerous times, ―[D]addy tried to break my ear.‖ 37
Mother said that A.B. did not provide additional details after he said that Father
had tried to break his ear, but he was persistent in his story. Mother believed
A.B. and said that Father engaged in similar behavior with her, but Mother later
said that in all her years with Father, A.B.‘s statement regarding his ear was the
only incident that she is aware of in which her son complained that Father may
have injured him.
R. Father Charged with Injury to a Child
Father talked to a detective on July 9, was charged with injury to a child,
and spent seventy-five days in jail from July 16 to September 29, 2008. Father‘s
bond was initially set at $10,000. Father asked for a personal recognizance
bond, and ―the judge, I guess, got mad, and he doubled my bond at arraignment
from 10 grand to 20 grand and was making it impossible for me to bond out.‖
Father‘s understanding was that if he did not plead guilty, he would spend
two years in jail pending trial. So Father signed a judicial confession that he had
injured A.B. and entered a guilty plea because he missed his children and knew
that the only way he would have any hope of getting his children back would be
to plead guilty and to start working on his service plan.
37
Mother was in the midst of potty training A.B. when she voluntarily placed
him with Jennifer W., and Mother had talked to Father about having trouble potty
training A.B. However, she never saw Father take A.B. by the ear to the
bathroom.
42
S. Father’s Second Round of Services38
1. Service Plan Requirements
As noted above, Groomer became the caseworker on this case in July
2008 while Father was incarcerated in the Tarrant County Jail. Groomer
developed a service plan for Father that required him to attend counseling,
parenting classes, anger management classes, and a batterers intervention
program.39 Father‘s service plan also required him to undergo a psychiatric
evaluation, a psychological consultation by Dr. Parnell Ryan,40 and a drug and
alcohol assessment.41
38
Although the Department did not move for termination of Father‘s
parental rights based on any failure to complete his service plan, see Tex. Fam.
Code Ann. § 161.001(1)(O), we include a discussion of the services that he
worked because it is relevant to the endangering conduct and endangering
environment grounds that the Department pleaded in its petition to terminate
Father‘s parental rights.
39
Groomer determined that Father needed to participate in batterer‘s
intervention based on the previous case file, which included in the investigation
that A.B. had told CPS that Father had knocked down Mother, had hit her, and
had made her cry. Groomer was not aware that Mother had been charged with
domestic violence.
40
Groomer requested that Father complete another psychological
consultation, even though Father had completed one the year before, because
Father had attended parenting classes and had completed other services for the
Department, which could have made the outcome of the psychological
consultation different from the previous one.
41
Groomer testified that the inclusion of the drug-free education in a
service plan does not necessarily indicate that the parent has a drug problem. In
this case, Groomer testified that she had no evidence that Father used drugs,
though there was evidence of ―very erratic behaviors.‖
43
After Groomer developed a service plan for Father, she went to visit him at
the jail on August 26, 2008; gave him the service plan; and went over it with him.
During that meeting, Father called Groomer a ―bitch‖ and told her that he had
already done services with FBSS, that he would not participate in services, that
he did not need services, that the charges against him were going to be
dropped,42 that he would be getting his children back, and that he would move to
Missouri to live with his mother as soon as his children were returned to him.
Father said that he would not sign the service plan until he had talked to his
attorney.
2. Service Plan Delay
a. Groomer’s Testimony
The trial court held a status hearing on September 30, 2008, at which
Groomer reported that Father had been released from jail the previous day but
was not in attendance at the hearing and had not contacted Groomer despite the
fact that her phone number was on his service plan. Groomer acknowledged
that Father had lost two and half months of time on his service plan while he was
in jail.43
42
Father said that he was appealing his conviction for injury to a child and
that it would be overturned.
43
Groomer said that the services on Father‘s plan were actually offered
back in August 2008.
44
In November, Father said that he had lost his service plan. Groomer said
that she provided Father with several copies of his service plan; she mailed two
copies to him and hand-delivered one in December when she went over the
services with him again. Father continued stating through December 2008 that
he would not work his services.
b. Father’s Testimony
Father said that Groomer‘s statement that he did not contact her until
December was incorrect; Father said that within a week of being released from
jail, he had contacted Groomer about getting his services in place. Father
testified that he had called Groomer fifteen to twenty times in October 2008 and
had left voice mails but received no response. At a hearing in January 2009,
Father‘s attorney demanded that Father‘s services be initiated and pushed, and
CPS moved a little faster after that hearing by scheduling parenting classes and
anger management classes.
3. Parenting Classes
Father said that as part of his parenting classes, he learned about nutrition;
discipline; holding, comforting, and cuddling the children; playing with the
children; showing the children that he cared; watching television with the
children; the timing for feeding and bathing children; and dealing with the stress
of being a parent. Father said that the parenting classes taught him not to spank
his children but to put them in the corner and talk to them to see if they knew why
45
they were in the corner; once they said that they were sorry for what they had
done wrong, Father could let them out of the corner.
Father admitted that he initially did not want to take the parenting classes,
but he later realized that they were beneficial and said that they helped him a lot.
He said that the parenting instructor listened to the parents, gave them a chance
to talk, and ―was just all around a great lady.‖ He did not have any personality
conflicts with her. Father made a good grade on his test and received a
certificate of completion.
4. Anger Management and Individual Counseling Classes
a. Burdick’s Testimony
Constance Burdick, a clinical social worker with Catholic Charities Diocese
of Fort Worth, testified that Father came to her for anger management classes
and individual therapy. Father was punctual to all ten anger management
sessions. In the first class, Father blurted out, ―Are you qualified to write a letter
saying I don‘t have an anger problem and get me out of this class?‖ Father said
that he did not want to be there, that he did not have an anger problem, and that
he wanted out of the class. Father thereafter frequently asked Burdick to write
letters saying that he did not have an anger problem. During the classes, Father
talked about what had happened with A.B., and Burdick told him that he needed
to wait until individual counseling to discuss that topic. Father also announced in
46
the anger management class that he had ADHD and bipolar disorder.44
However, Father was never asked to leave a class, and his behavior in the class
was not so inappropriate that he was unable to complete the class.
Burdick stated that Father has impulse control issues—when he wants to
talk about something, he does not stop talking about it and will interrupt others
when they are talking. Burdick believed that Father needed to be in the anger
management classes because he was agitated and intrusive, interrupting other
people. Father‘s affect was angry, and he was very tense. Father‘s anger
stemmed from his feeling that the police, the physician at Cook Children‘s
Hospital, CPS, and the courts all had a vendetta against him. In Burdick‘s
opinion, Father did not have any behavioral changes and was not able to
articulate what he had learned in the anger management class.
When Burdick conducted individual counseling with Father, she did not see
him use the skills that he had learned in the anger management class. He was
angry during most of the individual counseling sessions; he was loud, was
focused on what he wanted to talk about (i.e., about what had happened to
A.B.),45 and would not accept redirection. Father was not cooperative during the
44
Father gave Burdick some paperwork showing that he had been
diagnosed with a personality disorder.
45
Father said that he had taken the two children to the store and that on
the way back into the apartment complex, A.B. had tripped and fallen over
something and had hit the side of his head. Father told her that he had pleaded
guilty to injury to A.B. because he was coerced by his attorney and the courts.
47
individual counseling sessions; his total focus was on getting Burdick to write
letters stating that he did not have an anger problem, that he did not harm his
child, that he did not need to be in counseling, and that his children should be
returned to him. When Burdick told Father that she could not write a letter about
an event that she did not witness, Father became agitated and said that he was
going to prove that he did not hurt A.B. Burdick took Father at his word that he
had not hit A.B.
Father told Burdick that he and Mother did not get along and that there had
been domestic violence between them.46 He described one incident that
occurred when he twisted Mother‘s arm behind her back, and the other
happened when Mother injured Father on June 16, 2008.47 The children were
with them when this incident of domestic violence occurred. Father repeatedly
asked Burdick to obtain the police reports from the domestic violence incidents,
but she did not. Burdick believed that Father should have called 911 instead of
trying to remove Mother from the premises. Burdick said that Father never
acknowledged that he was an abuser of Mother or A.B.
Father told Burdick that he was actively involved in all the CPS programs
and that he was doing everything that CPS wanted him to do, including getting
46
In Burdick‘s counseling with Mother, Mother said that Father was verbally
and physically violent toward her.
47
Although Burdick testified that Father told her that he received a ticket as
a result of the June 16 incident, the record does not bear this out. As set forth
above, Mother received a citation for the June 16, 2008 incident.
48
on medication. Burdick, however, could not say whether Father was taking his
medication, only that he repeatedly told her that he wanted to get off his
medication. Burdick recommended that Father have a full battery of
psychological testing to rule out schizoaffective disorder, but he said that he
would not undergo further testing.
Burdick believed that Father‘s involvement with CPS when he was a child
had a bearing on his current frustrations with CPS in trying to get his children
back. Burdick agreed that Father was driven to get his children back and said
that was not a vice. Burdick felt that Father had anger control problems based
on the behavior he exhibited and felt that he had been involved in domestic
violence.
Father complained to Catholic Charities that he and Burdick were not able
to work together, and ultimately, Burdick was removed from the case.
b. Father’s Testimony
Father said that he initially did not think that he needed the anger
management class but that he did learn a lot, such as how to control his temper,
how to deal well with others, how to communicate positively, and how to not get
aggressive with other people. When Father was asked to explain why he still
had a tendency to be confrontational after taking the anger management class,
he said, ―[T]hey‘re making me look out to be a little bit more worse than it actually
is.‖ He said that he gets agitated every now and then because he is doing
everything he can to show CPS that he deserves to have his children returned to
49
him, but CPS is not willing to give him a chance. Father complained about CPS‘s
failure to return his phone calls and their unwillingness to sit down and have a
discussion with him. He said that he became agitated when he was told that the
plan was family reunification and then it was changed to termination.
Father said that he got along with Burdick for the most part. He said that
there were no major confrontations, just ―a little discussion at the beginning.‖
Father ultimately earned a certificate for completing the anger management
class.
However, Father began having problems with Burdick in the individual
counseling sessions. In counseling, Father was confronted about his alleged
abuse of A.B., and there was a presumption that he had done ―these things.‖
Father believed that Burdick had already decided that he was a child abuser and
a batterer, and he felt like that put up a wall between them and did not give him a
chance to bond with the counselor.48 So Father asked CPS for another
counselor, and they said he had to remain with Burdick. Ultimately, Ms. Hart with
Catholic Charities allowed him to switch.
5. Drug Testing
Father said that he has never touched drugs and has never had a positive
drug test. He explained that one time he walked past some neighbors who were
48
Father said that one thing he could have done better under his service
plan was to have better interaction with Burdick in counseling, but he felt like he
had gotten everything that he could out of the services.
50
smoking marijuana and that someone told the apartment manager that he was
smoking marijuana; the apartment manager then called Ms. Cornelius, who sent
Father to take a drug test. Father passed the drug test and said that was the
only allegation of drug use.
6. Visitations
a. Groomer’s Testimony
Father‘s first visitation with the children after he was released from jail
occurred on October 10, 2008. Typically during the visits, Father picked up the
children individually and gave them a very short ride on his shoulders—maybe
one trip around the room for each child—and then he sat down because he said
that he was tired. Father then read a book aloud, but he did not gather his
children to him. The foster mom sent lunch for the children, and Father brought
them a snack because he did ―not always have the money to provide [every]thing
for his children.‖ Groomer said that the visits ―went okay.‖
Val Trammel was the case aid who observed most of Father‘s visits, and
Groomer observed all but approximately five. Groomer said that it was extremely
rare to have two people observe a parent‘s visits and agreed that supervised
visitation is not the optimum type of visitation, but the judge had ordered two
people to observe Father‘s visits. Additionally, the visits were ordered to take
place at the Ben Street location so that there would be a security guard.
Groomer believed that condition was ―absolutely appropriate‖ because several
times they had needed the guard to intervene.
51
For instance, in April, Father came to a visit while he was very agitated,
walked straight toward Groomer, started ranting and raving and shaking his
finger in her face, waved his arms, and screamed at her. Father said that
Groomer and the program director had lied to him about CPS‘s plan for
reunification.49 Groomer said that Father stood over her screaming, would not sit
down, and would not calm himself even after she and the security guard had
requested that he calm down. The children retreated to a corner because they
appeared to be afraid of him. Groomer became fearful for the children to be
returned to Father and decided that CPS should terminate Father‘s parental
rights. Groomer canceled Father‘s visitation for that day, and CPS did not give a
make-up visit. Groomer testified that in her seven and a half years with CPS,
she had never seen anyone as upset as Father was. He was so upset that it
made her fearful or anxious.
49
It is difficult to determine when the plan changed from family reunification
to termination because Groomer could not recall when she, her supervisor, and
the program director made the decision to seek termination of Father‘s parental
rights. Groomer said that on September 30, 2008, at the status hearing, they
decided to make the change from family reunification to termination. Later,
Groomer read an e-mail that she had sent on January 29, 2009, in which she
said that ―[t]he current permanency goal is family reunification, but Nora and I
have discussed this and we feel it should be changed to alternative family
unrelated adoption.‖ At the end of the February 24, 2009 permanency
conference, the district supervisor announced that the goal was to work a dual
plan—family reunification would be worked side by side with termination. When
Groomer was asked whether her decision to terminate happened in April after
the incident in the CPS lobby, she said, ―Yes, on that date due to his behaviors.‖
However, Groomer also testified that CPS had talked about terminating Father‘s
parental rights prior to the April 30 episode at the Ben Street office.
52
Groomer testified that the photos that were introduced at trial of Father
cuddling with the children at the visits were posed at Father‘s request. Groomer
said that Father prompted the children to smile at him and then took their picture
during the visitation. Groomer could not say that all the ―happy pictures‖ were
prompted because the children had a wonderful time when they were playing on
little cars, but Groomer said that they were not interacting with their Father when
they were playing on the little cars.
b. Father’s Testimony
Father said that he usually arrived about a half hour early for his visits and
that the children would run up to him and grab his leg and hug him. Father said
that he would read to them, play with toys with them, and toss papers like
Frisbees to them. Father said that his children hugged and kissed him and would
ride on his shoulders. Father said that he changed diapers and fed his children
at every visit, though sometimes he fed them food that the foster parents had
packed because he is on food stamps. Father said that he did whatever he could
to show his children that he loved them and that he wanted them back, including
telling them that he was trying his hardest to get them back.
Father asked Groomer if he would be allowed to take the children out to
the playground during his visits instead of having them stay in the office. Father
asked Groomer throughout the majority of the visits and finally had to go to
Groomer‘s supervisor to get the approval to take his children to the playground.
Father was able to take the children outside two or three times until A.B. was
53
bitten by a bug at the foster home, and then CPS refused to allow Father to take
the children outside.
Father said that Groomer‘s description that the children were lifeless and
flat during his visits was ―not true at all.‖ Father said that the pictures showing his
children with smiles on their faces accurately depicted their demeanor during his
visits. Father said that his visits went very well and that his children cried and
wanted to go home with him.
Father said that the visits when Trammel supervised solo went much better
than those when Groomer was also present because Trammel quietly observed.
Father said that Groomer wrote on a notepad continuously during the visits that
she supervised and would verbalize things during the visit, such as, ―[H]e‘s not
kissing them enough.‖ Father had a problem with Groomer‘s standing over him
during his visits, making him feel like he was a criminal and a bad father. Father
said that if there was verbal friction between he and Groomer it was started by
her and would only last a few seconds because he would ―chill out ‗cause [he]
didn‘t want [his] kids to see that.‖ Father testified that he attempted but was not
successful in establishing a working relationship with Groomer.
7. Home Visits
Groomer said that before attempting a home visit on Friday, March 20,
2009, at 4:00 p.m., she called Father‘s attorney because she wanted to request
permission to go into Father‘s home to see if he had adequate accommodations
54
for his children. Groomer denied wanting to get incriminating information on
Father and said that she did not have a camera with her.
When Groomer went to Father‘s home to perform the unannounced home
visit to check on his environment, she took two caseworkers along with her.
Groomer knocked on the door, and Father opened the door a small crack and
said that he would have to call his attorney. Father was very angry when he
opened the door, and his hands were shaking extremely hard. After Father
spoke with his attorney, Father said that his attorney had refused to let them
come in, and so Father did not let Groomer in that day. While the door was
cracked, Groomer noted an extremely heavy smell of smoke and a kind of a
musky smell; she said that Father smokes ―some kind of a little cigar.‖
8. Service Plan Compliance
a. Groomer’s Testimony
Groomer said that Father‘s services were set up immediately on January
6, 2009, when he agreed to do his services. Father completed the parenting
classes and received a certificate, underwent a psychological consultation as
ordered by the trial court, took part in an anger management program and
received a certificate, attended counseling, made every visitation with his
children, and maintained the same residence throughout the pendency of the
case. Although Groomer had no indication that Father had drug or alcohol
issues, she included a drug and alcohol assessment in his plan. Father did not
participate in the drug and alcohol assessment. Father also did not go for a
55
psychiatric evaluation, even though Groomer had given Father the number for
MHMR so that he could undergo the evaluation at no charge. At the time of trial,
Groomer had not received any information stating that Father had completed a
batterers intervention class, but during the weeks prior to trial, Father told
Groomer that he was attending a batterers intervention class or was going to
attend. When asked whether she wanted to leave the trial court with the
impression that Father was not active in getting all of his services taken care of,
Groomer said that it was not an impression; it was a fact. Groomer later agreed
that Father took all the services that were offered, but in this case, it was not
enough. Groomer did not see any behavioral changes or improvement in
Father‘s ―character‖ after the completion of the programs, and Groomer did not
believe that Father had demonstrated any benefit from the services that CPS
provided to him. In Groomer‘s opinion, Father did not make a positive change
within a reasonable time period, and he did not have adequate parenting skills to
care for his two young children.
b. Father’s Testimony
Father testified that he had completed the parenting class, the
psychological consult, the anger management class, the counseling sessions,
and had made all his visits except for when he was in jail.
T. Father’s Probation
1. Oldham’s Testimony
56
Samuel Oldham, Father‘s probation officer, testified that he was assigned
to work on cases for people with mental illnesses. He met with Father on
December 31, 2008, and noted that Father had previously been diagnosed as
bipolar and that his diagnosis had been sustained by two separate psychological
evaluations performed by Dr. Parnell Ryan.
Father, who was serving a two-year probation, was required to perform
160 hours of community service,50 to report to his probation officer at least once
a month or as directed by the trial court or by Oldham, and to pay a $25 monthly
probation fee. Oldham testified that Father‘s probation had five additional mental
health conditions: (1) submit to a psychiatric and/or a psychological evaluation,
which Father did; (2) attend and participate fully in counseling or classes as
directed by the trial court or Oldham, including Project Safe Neighborhood, which
he completed, and a substance abuse evaluation; (3) take all medication as
prescribed by the treatment provider;51 (4) abstain from the use, possession, or
consumption of alcoholic beverages and submit to testing for alcohol use, which
Father complied with by submitting to four urinalyses that were all negative; and
(5) be assigned to a mental health officer, which was completed. There was a
50
Father‘s hours of community service were initially deferred because of
the stressful nature of the CPS proceedings and the effect that they were having
on Father.
51
Father was prescribed ten milligrams of Abilify, a psychotropic
medication, on February 12, 2009. Father told Groomer that he was taking three
milligrams of Abilify.
57
supplemental condition that there be no harmful/injurious contact with children
and that he have only adult-supervised contact with children.52
Early on during Father‘s probation, he violated the terms by failing to
submit to a substance abuse assessment, but that violation was later cleared up
as a misunderstanding based on scheduling. Father violated his probation on
April 3, 2009, when he failed to report for his scheduled monthly appointment.
Father claimed that his appointment was at a different time, but Oldham said that
Father had been issued written instructions that contained the correct time.
Father was contacted on April 4, and he reported as scheduled later in the
month.
On May 6, Father received a citation for failing to take his medication as
prescribed. During a home visit, Oldham saw that Father had not been taking his
medicine, and Father explained that he had been taking his medicine every other
day because he did not like the side effects.53 Father admitted that he did not
consult with a physician prior to altering his medication schedule and has since
52
Father wanted unsupervised visitation with the children, and Oldham told
him to have his attorney file a motion for modification. Oldham said that he had
no reason to agree to the recommendation for Father to have unsupervised
contact with the children based on the behavior that he had observed. Oldham
noticed that Father frequently became angry and had what appeared to be mood
swings.
53
Father said that he did not skip any pills. He said that the psychotropic
medication causes a hand tick and a ―very strong aversion to medication.‖ He
did not want to take the medicine, but he took it because he loves his children
and wants them back.
58
reported taking his medicine as prescribed. Oldham, however, admitted that the
probation department does not have the resources to test whether Father is
taking the medicine or throwing away the pills. After the May 6 citation was
issued, Oldham noticed mood swings in Father. On May 21, Father called and
spoke to acting supervisor Kelly Pierce and expressed various frustrations to her;
he sounded very agitated and angry. Five days later when Father called and
asked what would happen to his community service once his CPS case was
taken care of, Oldham thought that Father sounded depressed because he was
brief in his answers and used a subdued voice.
Oldham made four unannounced visits to Father‘s home. On the two visits
when he went inside,54 on February 25 and May 6, 2009, Father‘s apartment was
very messy and cluttered. Oldham noted that Father‘s apartment smelled very
strongly of tobacco smoke, that there were a large number of dirty dishes in the
kitchen, that the refrigerator did not have much food in it, that the child‘s bed and
the baby bed both appeared to be in very poor repair, that the baby bed did not
have a padded bottom so the metal support bar was clearly visible as a hump in
the bottom lining, that the bedroom was very messy with clothes on the floor, that
the bed did not have a frame and did not have sheets on it, and that a gate was
stretched across the entry to the kitchen. Oldham stated that he found Father‘s
54
Oldham said that he was not denied access the other two times; one time
Father was not home, and the other time, Oldham had accompanied the
transportation officer who picked up Father and took him to the Department.
59
apartment in a similar condition the second time that he went in. In his lay
opinion, Oldham said that the home environment was not suitable for small
children.
Oldham said that Father ―acts as someone who does not want to be on
probation, and he works very hard at taking care of his case‖ and can be
described as ―very proactive.‖ Oldham said that there was a fifty-page printout of
all his contacts with Father, and Oldham guessed that approximately seventy-five
percent of the contacts were phone calls in which Father had asked about his
community service and about whether Oldham had received any communication
from CPS. Father talked at length to Oldham about his CPS case, including his
fears and his poor relationship with the CPS workers.
Oldham testified that Groomer had contacted him approximately three
times a month. The initial contact was made by telephone, but subsequent
contacts were required to be made in writing so that the trial court could approve
or disapprove of her requests for information. On March 10, 2009, Groomer
requested information concerning the condition of Father‘s home during home
visits, Father‘s attitude and behavior during the home visits, any children
observed in the home, the results of the psychiatric evaluation, any medications
prescribed to Father, anyone who had been fearful of Father, and Father‘s
feelings about CPS staff. On March 25, 2009, Father signed a release, giving
Groomer access to information held by Oldham. Oldham believed that
Groomer‘s questions were appropriate for her safety and the safety of others.
60
On April 9, Groomer called to inform Oldham that a CPS director had sent
Father an e-mail telling him that he was to cease calling a doctor who had
examined his child earlier in the month for a diaper rash. Groomer said that
Father repeatedly called the doctor‘s office and that the doctor‘s personnel felt
threatened. Groomer said that the doctor had called the police and reported to
her that Father would be arrested for trespassing if he came to the doctor‘s
office. Father sent an e-mail to Groomer‘s supervisor stating, ―I‘m sorry that
you‘ve been misinformed regarding calls to the doctor‘s office. I have not called
their office at any time.‖ Oldham was not able to verify Groomer‘s concerns.
On May 6, Groomer e-mailed Oldham with news that Father had been
confronted over identity theft but that the charge could not be prosecuted
because of the manner in which the victim of the identity theft handled the
situation.
On May 20, there were e-mails and letters received by Oldham from CPS
alleging that Father had contacted the children‘s foster parents.
Oldham said that if Father finished all of his community servics, maintained
his fee payments, and maintained general compliance with his probation
conditions, he would be eligible for mandatory early dismissal review in
September 2009.55 If Father finished his community service before then, he
could obtain an early hearing through an attorney.
55
Oldham later reiterated in his testimony that Father was up for a review,
not a mandatory release, in September 2009.
61
Oldham expressed some concerns about Father‘s mental stability if he did
not become more proactive with his psychiatric treatment. Oldham specifically
noticed high levels of aggression during Father‘s phone calls and office visits;
most of his aggression was directed toward agencies, but some was directed
toward individuals. Father never threatened Oldham, but Father had become
agitated with Oldham and had accused him of unethical behavior. Based on
Oldham‘s training, experience, and interaction with Father, Oldham believed that
Father could be a physical danger to others.
2. Groomer’s Testimony
While this case was pending, Groomer asked the trial court for permission
to have Father sign a release so that she could talk to his probation officer.
Groomer called Father‘s probation officer five times to find out about drug tests
and whether Father was in compliance with his probation terms. Groomer read
on the record the unredacted portions of Respondent‘s Exhibit 13, an e-mail from
her to Oldham, in which she had requested information on Father.
Groomer admitted that she had provided information to Oldham, telling him
that Father had a girlfriend in Springtown and that he was traveling out of the
county to visit her. Groomer agreed that she did not have personal knowledge of
any of these purported facts. Groomer also contacted Oldham to tell him that
Father had improperly e-mailed the foster parents. Groomer admitted that she
had also called Oldham to talk about Father‘s claiming his children on his income
tax return and to inform Oldham that she had been told that Father was involved
62
in some kind of fraud. When asked how many times she had called Oldham in
an effort to provide information on Father that would result in the revocation of his
probation and that would ―cause him to go to jail for ten years,‖ Groomer said that
she never knew that it could cause Father to go to jail for ten years.
U. Children’s Lives with Foster Parents
1. The Initial Foster Parents
Jennifer H. testified that A.B. and H.B. were brought to her by CPS near
midnight on July 8, 2008, and remained in her home until February 15, 2009.
When the children arrived, they had on pajamas, their hair was matted and had
not been washed, they were dirty and very much in need of a bath, their
fingernails were long and dirty, and they had no additional clothes; it took two
baths the next morning to get them clean. While Jennifer H. was bathing A.B.,
he told her that ―his daddy tried to rip his ear off,‖ and Jennifer H. noted that the
inside of A.B.‘s ear was black and blue, he had finger-sized bruises on both sides
of his cheeks, and one of his eyes was bruised. Jennifer H. said that A.B. spoke
to her very clearly56 and that she reported his statement to CPS.
Jennifer H. said that H.B.‘s language was inappropriate for a two-year-old
child. She would yell at Jennifer H., ―[W]ould somebody go get me a damn
bottle,‖ and if someone bumped her, she would say, ―[G]--damn you.‖ Jennifer H.
56
Although A.B. was three and a half when he came to Jennifer H.‘s house
and was not fully verbal, he was able let her know what his needs were and
when he was unhappy.
63
said that they told H.B. that her language was inappropriate, and she gradually
stopped using profanity.
Jennifer H. observed that the children were very fearful of not being fed,
and H.B. grossly overate when she first arrived in their house, while A.B. would
hide food and stand in the corner and eat. Additionally, Jennifer H. recollected
an incident involving H.B. and International House of Pancakes (IHOP). Around
Thanksgiving, the children saw a commercial for pancakes at IHOP, and Jennifer
H. told the children that she would take them there. When they arrived at the
restaurant, it was packed, so Jennifer H.‘s husband made the decision that they
would go to another IHOP location. A.B. became hysterical, and Jennifer H. had
to physically put him in his car seat. A.B. tried to open the window and get out
and was crying uncontrollably. Jennifer H. kept reassuring A.B. that they were
just going to another IHOP. When they pulled into the second IHOP, Jennifer
H.‘s husband assured A.B. that he was going to be able to eat pancakes, and he
―kind of calmed down and . . . went in and . . . ate.‖ A.B. ate all of his food and all
of Jennifer H.‘s food and was very embarrassed by the way he had acted.
Before the children‘s visits with Father started,57 Jennifer H. said that the
children ―were great. They were happy. They played with the other children.
They were kids. You know, they ate well; they loved to go shopping; they loved
57
From July 8 through the end of September 2008, Father did not have
visits with the children because he was in jail. Father‘s visits began when he was
released from jail.
64
to look good. You know, we -- -- bought them a lot of nice clothes. And they
were -- they were just happy.‖ Jennifer H. said that the children were very
comfortable in her home, they slept through the night in twin beds, and they used
sippy cups.
After the visits with Father started, Jennifer H. noticed ―a real rapid decline
in their behavior.‖ Jennifer H. said that the children would come home from the
visits ―wired,‖ and at other times, they wanted to sleep in the crib or play pen.
For instance, after some visits, A.B. went immediately to the play pen or the crib
or grabbed a bottle and asked Jennifer H. to fill it up and then asked to be put in
the crib. A.B. laid in the crib and watched SpongeBob on the television for as
long as she would let him. Jennifer H. said that A.B. did not act like that on other
days of the week.
A.B. also experienced nightmares and would cry out, ―[N]o, daddy, no.‖
Jennifer H. would go in to his room, wake him up, hold him, calm him down, and
put him back to bed. A.B.‘s nightmares happened on the night of the visit and
sometimes the night after the visit and continued for several months. A couple of
times during his nightmares, A.B. fell out of his bed until Jennifer H. remedied
that by placing body pillows around his bed.
After A.B.‘s initial telling of the story about his ear during his first bath at
Jennifer H.‘s house, every so often, A.B. would repeat his statement. One
morning when Jennifer H. and A.B. were waiting for the school bus, A.B. started
65
to cry and said that his ear hurt. When Jennifer H. asked if A.B. had fallen or if
he had bumped it, A.B. said that his dad had tried to rip it off.
Jennifer H. said that around that time, she and her husband made the
decision to ―let go‖ of A.B. and H.B. Jennifer H. had initially wanted to adopt A.B.
and H.B., but Father had started making accusations against her. 58 Jennifer H.
said that her home was investigated three times for sexual abuse and physical
abuse. The first allegation that Father made was in regard to bad diaper rashes
on H.B. During that time, H.B. had the flu and was having a lot of bowel
movements, so the diaper rash was hard to control. The second allegation was
that something may have happened sexually to the children. When Father
attempted to change A.B.‘s diaper59 at a visit and he resisted, Father made the
accusation that A.B.‘s reaction proved that Jennifer H. was molesting him. A
CPS caseworker examined A.B. and determined that he was fine. The third
allegation involved a bite. H.B. was bitten by Jennifer H.‘s daughter while H.B.
was in her home. Father wanted a doctor to look at the bite marks on H.B.‘s
face, but Groomer told Jennifer H. that was not necessary. Thus, CPS ruled out
all of the allegations.
58
Jennifer H. said that the investigators told her that Father made the
anonymous referrals.
59
Jennifer H. said that A.B. had a fear of bathrooms; he would resist when
she put him on the toilet, so she just let him wear pull-ups.
66
2. Father’s Allegations Against Jennifer H.
Father testified at trial regarding his version of the allegations that he made
against Jennifer H. He said that the first referral was for an allegation of sexual
abuse based on a visit when he went to change A.B.‘s diaper, and A.B. pushed
him away; Father said that A.B. had never done that before, and it alarmed
Father. Father asked Groomer to look into the sexual abuse allegations.
The next referral involved a purple, golf-ball sized bruise on H.B.‘s face
below her left eye. Father asked Groomer to have a physician look at it, and
Groomer said that she believed the foster parents‘ story—that their daughter had
bitten H.B.—and that there was no need to have a physician look at it.
The third referral was for redness in A.B.‘s private area. Father said that
he felt like the referrals that he made were made in confidence under state law.
3. The Current Foster Parents
Greg, A.B. and H.B.‘s current foster parent, testified at trial that the
children had been in his home for approximately four months. During the first
couple of days that A.B. was in their home, he made the statement, ―Daddy tried
to break my ear,‖ and another statement, ―Daddy tried to pull my ear off.‖
Greg said that A.B. would ―hit a wall emotionally, physically‖ about mid-
afternoon and would become very easily agitated at the smallest thing and would
throw a tantrum. Greg said that A.B. would regress and that the episodes would
usually involve self-injury or an injury to his wife Julie. A.B. struck Julie, H.B.,
67
and Greg, with the last time that he hit Julie occurring in April 2009. A.B. also
attempted to bite Greg‘s arm, but he stopped himself before he actually bit Greg.
Greg said that the children are now doing very well in his home. A.B. has
a lot of superhero toys that he likes, H.B. likes to play with food and cooking-type
toys, and both children like to play with blocks. Greg said that they have
transitioned the children from SpongeBob to more educational shows on
television and that seems to have had a positive effect on their developmental
skills.
Greg testified that he had concerns about giving his address and the name
of his employer because there was a pattern in this case where information
reached Father, and then Father used the information to harass Greg or the
children‘s caregivers. Father had contacted the pediatrician that Greg took the
children to and had also e-mailed Greg. In the e-mail, Greg received Father‘s
phone number and his Metro account, which Greg used to see if Father had
anything posted on the internet. Greg performed a Google search and found
websites that Father had set up on the internet. Based on what he found, Greg
said that he has concerns about the children‘s safety if they are returned to
Father.
68
4. Father’s Allegations Regarding the Current Foster
Parents and His Responses to Greg’s Testimony
While the children were with Greg, Father noticed during a visit that H.B.
had three fingertip contusions above her buttocks. Father asked the investigator
to look at the injuries and see if they were accidental or intentional.
Father admitted that he took Greg‘s e-mail address from the discovery in
this suit and responded to his accusations that the children were returned to him
after the visits with dirty diapers and diaper rashes; Father said that it was not his
fault because Mother‘s visits followed his. Father said that he did not contact the
pediatrician that Greg took the children to.
Father admitted that he had posted family pictures of his children on an
internet website that he used for finding friends and dating. Father was not
aware of who looked at the websites, but he hoped that it was adults. Father
also admitted that he had posted nude photos of himself on a different internet
website and that it was not at all appropriate for him to do that. He posted the
pictures right after he was released from jail because he ―was trying to have a
little bit of fun.‖ He said that the children were never exposed to the website
because they were in foster care.
69
V. Father’s Environment
1. Mother’s Testimony
Mother said that Father‘s apartment smelled like dogs60 and that it was
unclean. Mother therefore did not believe that Father‘s apartment was
appropriate for the children. However, Mother said that Father had beds for the
children and that she did not have any concerns about the children being taken
care of at Father‘s home.
2. Father’s Testimony
Father testified at trial that he was living in a one-bedroom apartment at
the Cherry Hill Apartments, where he had lived since June 10, 2008. Father said
that his apartment was clean and well kept and that there was always food in the
refrigerator. When the children lived with Father, H.B. slept in her playpen in the
living room,61 A.B. slept in his bed in the living room, and Father slept in the
master bedroom. Father said that if the children were returned to him, he would
attempt to obtain a part-time job to increase his income and then upgrade to a
two-bedroom apartment. He said that he would let the children have the two
bedrooms and that he would sleep in the living room.
60
Mother said that Father had dogs that lived inside the apartment.
61
Father said that he was waiting to buy a bed for H.B. until he was sure he
was getting his children back.
70
W. Father’s Finances
Throughout the case, Father has received SSI. He receives a monthly
disability check for $692 and a monthly SSI check for $2. If the children were
returned to him, he would receive a $46 check for A.B. from his Social Security.
Father said that he currently receives $200 in food stamps and that he would
receive $360 to $400 per month if the children were returned to him.
Father said that if he had the children, his monthly expenses would include
$345 for rent, $61 for electricity, $60 for cell phone service (to keep in contact
with his probation officer), $36 to $42 for water, $20 to $30 for diapers and
clothing for the children, and $25 for bus transportation.62 All of the groceries,
except his cigarettes, would be bought using food stamps. When asked about
other expenses, such as entertainment, Father said that he was trying to save
money so that if his children were returned to him, he could buy them the things
that they needed.
Father said that the reason he was not currently working was because the
CPS case had taken up so much of his time that there was no time to go and get
a full-time job. Father said that he can earn $900 per month without losing his
SSI and that he is going to work full-time after he completes technical school; he
62
Father stated that he no longer had credit cards but admitted that he had
credit card debt that had accrued during his marriage. His monthly budget,
however, did not include the amount that he would be paying toward that debt.
71
is going to be a freelance computer technician and expects to make fifteen to
twenty dollars an hour, or possibly more.
X. Character Testimony
1. Friend’s Testimony
Diana Michelle Gordon testified that she has known Mother and Father
since the early years of their marriage. Gordon saw them two or three times per
month at their house. Gordon said that H.B. has always been small and that she
saw her eating; she did not see anything that concerned her. Gordon said that
the children were fed, clothed, and clean and that Mother and Father took very
good care of their children.
Gordon said that during Mother and Father‘s separation, Gordon had
contact with Mother about three or four times a month. Mother called Gordon
and asked for Father‘s phone number so that she could talk to him about this
case, and Gordon said that she could not give it to her. Gordon called Father
and told him about Mother‘s call.
Gordon said that she knew of about five times when Father watched the
children, but he did not keep them while Mother worked; Mother‘s sister or a
friend name Allison watched the children.
2. Apartment Complex Manager’s Testimony
Dorene Branum, the manager from the Cherry Hill Apartments, testified
that she knew Father because he came in to the office ―all the time‖ with his
children and visited with the office staff. Branum said that she saw Father with
72
the children two or three times a week and that the ladies in the apartment
complex‘s office would watch the children while he would run upstairs to put
away groceries. Branum said that Father was protective of his children and
would not leave them with just anyone. Father was always good with his
children; he played with them and talked to them, and they seemed very happy.
Branum said that the children looked healthy and taken care of and that she
never saw bumps and bruises on them.
Branum said that Father was always pleasant. She did not have any
problems with Father; he was very quiet, did not associate with many people at
the apartment complex, and was current on his payments.
3. Groomer’s Testimony
Mother had provided Groomer with reports of her observations of Father‘s
behavior—including his irritability, anger, instability, temper, and fits—and
Groomer also had the opportunity to observe Father‘s behaviors for herself.
Father rarely talked to Groomer in a nice, polite, professional manner. Groomer
said that apart from the confrontation in the lobby at the Ben Street CPS location,
she had another confrontation with Father, but it was not that extreme. She said
that one time earlier in the case, they had ―some words‖ when Father demanded
that she do things the way he wanted them done. When asked whether it was
fair to say that Father and Groomer did not get along well, Groomer said that she
could not meet Father‘s demands, including his demand that she immediately
return his children. Groomer said that she did not have a personal conflict with
73
Father, but she thought that he was a difficult person to deal with. Groomer,
however, said that her personal feelings did not affect her professionalism in
handling this case.
Y. Recommendations and Requests
1. Mother’s Recommendation
In Mother‘s opinion, Father would not make a good parent for the children.
She said that she would have concerns for the safety of the children if they were
returned to Father because of what A.B. has told her and because of the pictures
that she saw of A.B.‘s ear and cheek; Mother believes that if the children were
placed with Father, they would be in danger physically. Mother said that she had
signed a relinquishment of her parental rights63 because she wanted her children
to be safe, and she personally could not achieve that. When asked whether the
children would have been safe in her care, she said that they would have been
safe but that she ―wanted to make sure they‘ll be safe from their father too.‖
Mother agreed that she was trying to tell the court that she did not feel that she
could protect her children from Father:
I feel if I had the kids, they would be safe in my home. I‘m not
saying they wouldn‘t. But as far as me solely protecting them away
from him so that he cannot reach them or come in contact with them,
63
If Father‘s parental rights were not terminated, everyone agreed that it
would not be in the children‘s best interest for the trial court to accept Mother‘s
relinquishment. However, Mother did not perfect an appeal. Additionally,
Gordon testified that Mother told her that Mother had made a ―deal‖ with CPS
concerning her unborn child. The details of any such ―deal‖ were not made part
of the record.
74
no I can‘t. I don‘t believe that I can, so that is why I said that to the
court.
Mother ultimately testified that one slap makes a person unfit to be a parent and
that a person should lose his parental rights for such a slap.
2. Burdick’s Recommendation
Burdick told Father that she would not recommend that his children be
returned to him because her concern was for the welfare of the children. When
asked her opinion on whether Father has the skills to raise a four-year-old child
and a three-year-old child, Burdick said that she had concerns because Father
did not take good care of himself; she saw him only twice when he was clean and
did not have an extreme odor. She was also concerned that he was incapable of
living on the amount of money he had, that he would need more money to raise
his children, and that he had an unrealistic view of what it was going to take to
raise his children. Further, Burdick said that Father gets focused on something
and cannot be distracted, which was a concern since he would be in charge of
small children, and Father possessed an inability to be flexible or to change to
accommodate small children.
3. Groomer’s Recommendation
Groomer testified that the children were neglected when they were in
Father‘s care and that she did not believe that Father could provide a safe, stable
environment for his children. Groomer testified regarding her concerns about
returning the children to Father: (1) she did not see that he had benefitted from
75
any of the programs, even though he had completed them twice; (2) his
behaviors were of extreme concern; (3) Father did not know how to handle the
children when they were acting out because he told her, ―[Y]ou won‘t let me
spank them‖; (4) he had not accepted responsibility for any of his actions; (5) he
could go to jail if his probation was revoked; and (6) she was not sure that he
could take care of them financially.64 Additionally, A.B. had nightmares when he
first came into care, the children had eating disorders, and there was a lack of
bonding shown during the visits. Moreover, the children, who were almost three
and four at the time of the trial, were ―more vulnerable‖ than children who are
much older.
Thus, Groomer‘s recommendation to the court was to terminate Father‘s
parental rights because she believed it was in A.B.‘s and H.B.‘s best interest.
Groomer believed that the failure to thrive incident alone was sufficient to
terminate Father‘s parental rights and that a single slap was sufficient to
terminate a parent‘s rights. However, Groomer said that her recommendation to
terminate Father‘s parental rights was based on everything that had happened,
64
Groomer admitted that she had no specific knowledge of Father‘s income
because he would not talk to her about it; Groomer‘s understanding was that he
received SSI payments.
76
including the CPS history in Missouri,65 H.B.‘s failure to thrive, A.B.‘s injury, and
Father‘s failure to show progress after completing his services.
4. Ad Litem’s Recommendation
The ad litem testified that he had relied on the testimony of several
witnesses: Oldham, who had testified that he was very concerned about Father‘s
mental capacity; Conner, who had testified that he did not see any seizures in
H.B. but transported her because of the bruises on her; Barker, who had testified
that she had concerns about the amount of food in the house, the injuries that
she saw on A.B., and A.B.‘s explanation that he had fallen; Wright, who had
testified that A.B.‘s injuries were on two different planes and were not an
accident; and Dr. Lazarus, who had testified that H.B. was not gaining weight
because she was not being fed. The ad litem recommended that the children not
be returned to Father because he did not believe that the children would be safe.
5. Father’s Requests
Father asked the trial court to give him an opportunity to get back in his
children‘s lives. He said that he would not have any problem with being
monitored by another CPS worker if the trial court gave him another chance.
Father said that he was still bonding with the children because of his weekly
visits and that his children loved him.
65
However, Groomer agreed that she did not ―have any knowledge on what
the Court did in Missouri,‖ and the record before us does not contain the Missouri
CPS records.
77
Father admitted that he had told someone that if his children were returned
to him, he would move to Missouri. He clarified that he would only do that if he
was given ―the green light‖ by the trial court; otherwise, he would ―be glad to stay
in Texas.‖
Z. Trial Court’s Disposition
After hearing the above evidence, the trial court signed a judgment
terminating Father‘s parental rights. The trial court found by clear and convincing
evidence that Father had knowingly placed or knowingly allowed the children to
remain in conditions or surroundings which endangered the physical or emotional
well-being of the children; that Father had engaged in conduct or knowingly
placed the children with persons who engaged in conduct which endangered the
physical or emotional well-being of the children; and that termination of the
parent-child relationship with Father was in the children‘s best interest. Following
the termination trial, the trial court held a prove-up hearing and granted Father‘s
petition for divorce. This appeal from the judgment terminating Father‘s parental
rights followed.
III. CONDUCT AND ENVIRONMENTAL ENDANGERMENT
In his second and third issues, Father argues that there is no evidence or
factually insufficient to establish (D) and (E) termination grounds. Specifically,
78
Father argues that ―the cumulative findings by the trial court would hardly justify a
modification in a custody suit, much less the termination of [his] parental rights.‖ 66
A. Burden of Proof and Standards of Review
A parent‘s rights to ―the companionship, care, custody, and management‖
of his or her children are constitutional interests ―far more precious than any
property right.‖ Santosky v. Kramer, 455 U.S. 745, 758–59, 102 S. Ct. 1388,
1397 (1982); In re M.S., 115 S.W.3d 534, 547 (Tex. 2003). ―While parental rights
are of constitutional magnitude, they are not absolute. Just as it is imperative for
courts to recognize the constitutional underpinnings of the parent-child
relationship, it is also essential that emotional and physical interests of the child
not be sacrificed merely to preserve that right.‖ In re C.H., 89 S.W.3d 17, 26
(Tex. 2002). In a termination case, the Department seeks not just to limit
parental rights but to erase them permanently—to divest the parent and child of
all legal rights, privileges, duties, and powers normally existing between them,
except for the child‘s right to inherit. Tex. Fam. Code Ann. § 161.206(b) (Vernon
2008); Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985). We strictly scrutinize
termination proceedings and strictly construe involuntary termination statutes in
66
The trial court made 145 ―findings of fact.‖ They are primarily recitations
and summations of testimony presented during trial. Some of the findings of fact
are inconsistent with other findings of fact; some are favorable to Father, while
others are favorable to the Department. The factual background of our opinion
incorporates the trial court‘s various findings of fact, and we incorporate them in
our legal and factual sufficiency analysis.
79
favor of the parent. Holick, 685 S.W.2d at 20–21; In re M.C.T., 250 S.W.3d 161,
167 (Tex. App.—Fort Worth 2008, no pet.).
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 subdivision (1) of the statute and must also prove that termination is
in the best interest of the child. Tex. Fam. Code Ann. § 161.001 (Vernon 2008);
In re J.L., 163 S.W.3d 79, 84 (Tex. 2005). 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. Tex. Dep’t of Human Servs. v. Boyd, 727 S.W.2d
531, 533 (Tex. 1987).
Termination decisions must be supported by clear and convincing
evidence. Tex. Fam. Code Ann. §§ 161.001, 161.206(a). 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.‖ Id.
§ 101.007 (Vernon 2008). Due process demands this heightened standard
because termination results in permanent, irrevocable changes for the parent
and child. 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).
The heightened clear-and-convincing burden of proof in termination cases
alters the legal sufficiency standard of review that we apply. In reviewing the
evidence for legal sufficiency in parental termination cases, we must determine
80
whether the evidence is such that a factfinder could reasonably form a firm belief
or conviction that the grounds for termination were proven. In re J.P.B., 180
S.W.3d 570, 573 (Tex. 2005). We must review all the evidence in the light most
favorable to the finding and judgment. Id. This means that we must assume that
the factfinder resolved any disputed facts in favor of its finding if a reasonable
factfinder could have done so. Id. We must also disregard all evidence that a
reasonable factfinder could have disbelieved. Id. We must consider, however,
undisputed evidence even if it is contrary to the finding. Id. That is, we must
consider evidence favorable to termination if a reasonable factfinder could and
disregard contrary evidence unless a reasonable factfinder could not. Id.
We must therefore consider all of the evidence, not just that which favors
the termination judgment. Id. But we cannot weigh witness credibility issues that
depend on the appearance and demeanor of the witnesses, for that is the
factfinder‘s province. Id. at 573–74. When credibility issues appear in the
appellate record, we must defer to the factfinder‘s determinations as long as they
are not unreasonable. Id. at 573.
The heightened clear-and-convincing burden of proof in termination cases
also alters the factual sufficiency standard of review that we apply. In reviewing
the evidence following a termination judgment for factual sufficiency, we must
give due deference to the factfinder‘s findings and not supplant the judgment with
our own. In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). We must determine
whether, on the entire record, a factfinder could reasonably form a firm conviction
81
or belief about the truth of the allegations that Father violated (D) or (E) and that
the termination of his parental rights would be in the best interest of his children.
See C.H., 89 S.W.3d at 28. 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 such a firm
conviction or belief, then the evidence is factually insufficient. H.R.M., 209
S.W.3d at 108. When reversing on factual sufficiency grounds, we detail in our
opinion why we have concluded that a reasonable factfinder could not have
credited disputed evidence in favor of its finding. J.F.C., 96 S.W.3d at 266–67.
B. Law on Endangerment
Endangerment means to expose to loss or injury, to jeopardize. Boyd, 727
S.W.2d at 533; In re J.T.G., 121 S.W.3d 117, 125 (Tex. App.—Fort Worth 2003,
no pet.); see also In re M.C., 917 S.W.2d 268, 269 (Tex. 1996). To prove
endangerment under subsection (D), the Department had to prove that Father (1)
knowingly (2) placed or allowed his children to remain (3) in conditions or
surroundings that endangered their physical or emotional well-being. See Tex.
Fam. Code Ann. § 161.001(1)(D). Subsection (D) focuses on dangerous
conditions or surroundings that endanger the physical or emotional well-being of
the children. In re J.A.J., 225 S.W.3d 621, 625 (Tex. App.—Houston [14th Dist.]
2006) (op. on reh‘g), judgm’t aff’d in part, rev’d in part by 243 S.W.3d 611 (Tex.
2007). It focuses on the suitability of the children‘s living conditions. Id. Thus,
82
under (D), it must be the environment itself that causes the children‘s physical or
emotional well-being to be endangered, not the parent‘s conduct. Id.
Under (E), the relevant inquiry is whether evidence exists that the
endangerment of the children‘s physical well-being was the direct result of
Father‘s conduct, including acts, omissions, or failures to act. See J.T.G., 121
S.W.3d at 125; see also Tex. Fam. Code Ann. § 161.001(1)(E). Additionally,
termination under (E) must be based on more than a single act or omission; the
statute requires a voluntary, deliberate, and conscious course of conduct by the
parent. J.T.G., 121 S.W.3d at 125; see Tex. Fam. Code Ann. § 161.001(1)(E). It
is not necessary, however, that the parent‘s conduct be directed at the children
or that the children actually suffer injury. Boyd, 727 S.W.2d at 533; J.T.G., 121
S.W.3d at 125. The specific danger to the children‘s well-being may be inferred
from parental misconduct standing alone. Boyd, 727 S.W.2d at 533; In re R.W.,
129 S.W.3d 732, 738 (Tex. App.—Fort Worth 2004, pet. denied). To determine
whether termination is necessary, courts may look to parental conduct occurring
both before and after the children‘s birth. In re D.M., 58 S.W.3d 801, 812 (Tex.
App.—Fort Worth 2001, no pet.).
C. Evidence Is Legally Sufficient to Support Termination
We first address whether the evidence is legally sufficient to support
termination of Father‘s parental rights pursuant to (D) or (E)—that is, whether
Father (1) knowingly placed or knowingly allowed A.B. and H.B. to remain in
conditions or surroundings that endangered their physical or emotional well-being
83
or (2) engaged in conduct or knowingly placed the children with persons who
engaged in conduct that endangered their physical or emotional well-being. See
Tex. Fam. Code Ann. § 161.001(1)(D), (E). The Department‘s brief contains a
combined legal and factual sufficiency analysis in which it focuses on five acts or
omissions by Father that it contends support termination of Father‘s rights under
(D) and (E): the allegations that Father bruised A.B. by slapping him in July
2008; that Father knew that H.B. was failing to thrive in September 2007; that the
children witnessed domestic violence; that Father had emotional difficulties; and
that Father did not provide a safe environment for his children.67 We will
examine all of the evidence in the record, focusing on these allegations.
After Father and Mother separated, a doctor diagnosed H.B. as failing to
thrive. Contradictory evidence exists concerning how frequently H.B. was in
Father‘s care during this time, but viewing the evidence in the light most
favorable to the termination judgment, evidence exists that Father cared for H.B.
to some extent around the time of the failure-to-thrive diagnosis when H.B.‘s
growth was so stunted that she was ―falling off the growth chart.‖ Thus, evidence
exists supporting an inference that Father knew of and contributed to H.B.‘s
67
During oral argument, the State focused mostly on Father‘s slap to A.B.,
H.B.‘s failure to thrive, and the domestic violence allegations.
84
failure to thrive and that consequently Father‘s conduct, including omissions,
created an endangering environment for H.B. by underfeeding her.68
A.B. received bruises while in Father‘s care. CPS and medical personnel
at the hospital documented several bruises of varying ages on A.B., including
what appeared to be a slap mark on his face and a bruise on both sides of A.B.‘s
ear. Concerning the bruise to his ear, A.B. told several people that Father had
tried to pull his ear off. Viewing this evidence in the light most favorable to the
termination judgment, evidence exists that Father slapped A.B.‘s face and/or
pinched his ear, causing significant bruising. Although medical tests ruled out
any additional injuries to A.B. from the slap and/or pinch by Father, a medical
expert testified that all injuries to a child‘s head are potentially severe. Thus,
evidence exists that, on at least one occasion, Father inflicted a potentially
severe injury to A.B.‘s head. Concerning A.B.‘s other bruises, medical personnel
opined that these other bruises were not consistent with accidental falls because
of their locations. This evidence is some evidence that Father‘s conduct
physically endangered A.B.
A.B. reenacted a fight between Mother and Father that involved Father‘s
pushing Mother and Mother‘s falling. This evidence is some evidence that
Father‘s conduct directed toward Mother created an environment that
endangered A.B.‘s emotional or physical well-being.
68
The underfeeding is also supported by the children‘s eating habits that
were witnessed by the foster parents.
85
Some evidence exists that CPS caseworkers found that Father failed to
maintain a living environment suitable for the children because of clutter, smoke,
and odors that filled his apartment. Father resolved the other alleged
deficiencies in the physical home that he provided for A.B. and H.B. Likewise,
evidence exists in the record of Father‘s history of mental and emotional
instability; Father admitted that he had been diagnosed with bipolar disorder, and
he exhibited mood swings and was belligerent toward CPS workers and the
police. But no witness testified and no evidence exists that Father‘s mental and
emotional problems caused consequences to A.B. or H.B. We are not aware of
any case law, and none has been cited to us, holding that these acts or
omissions by Father—clutter and odors in the home and having been diagnosed
with mental and emotional problems—constitute endangering the children,
absent evidence that these acts or omissions actually did result in some physical
or emotional danger to A.B. or H.B. Absent such testimony, this evidence is no
evidence in support of termination under (D) or (E).
Viewing all the evidence in the light most favorable to the termination
judgment and disregarding all contrary evidence that a reasonable factfinder
could disregard, we hold that some evidence exists that will support a factfinder‘s
firm conviction or belief that Father violated subsection (D) and (E), and we
overrule the part of Father‘s second and third issues challenging the legal
sufficiency of the evidence to support the termination of his parental rights to A.B.
and H.B. See In re J.P., No. 02-07-00026-CV, 2008 WL 283295, at *11 (Tex.
86
App.—Fort Worth Feb. 4, 2008, no pet.) (mem. op.) (holding that evidence was
legally sufficient to support termination when record revealed some evidence that
appellant had history of mental instability, failed to maintain a clean living
environment, and did not demonstrate appropriate parenting skills).
D. Evidence is Factually Insufficient to Support Termination
We next address whether the evidence is factually sufficient to support
termination of Father‘s parental rights pursuant to (D) or (E); that is whether
Father (1) knowingly placed or knowingly allowed A.B. and H.B. to remain in
conditions or surroundings that endangered their physical or emotional well-being
and (2) engaged in conduct or knowingly placed the children with persons who
engaged in conduct that endangered their physical or emotional well-being. See
Tex. Fam. Code Ann. § 161.001(1)(D), (E). We review all of the evidence in a
neutral light, including the evidence concerning the five allegations set forth
above and relied upon by the Department as establishing (D) and (E) grounds for
termination—that Father bruised A.B. by slapping him in July 2008, that Father
knew that H.B. was failing to thrive in September 2007, that the children
witnessed domestic violence, that Father had emotional difficulties, and that
Father did not provide a safe home for his children.
1. Injuries to A.B.—Factually Insufficient (E) Ground
Medical tests established that A.B. had no underlying injuries beyond his
bruising. His bruising injuries included red marks underneath and on one side of
his eye, an old bruise on his left eyebrow, red scattered dot-type marks on his left
87
cheek, purple bruising in and around his left ear, linear marks or a ―slap mark‖
on the left side of his face, and a small bruise on his abdomen and on his
buttock. Concerning the bruise to A.B.‘s left ear and the linear marks on the left
side of his face, A.B. and Father both said that A.B. had fallen. Later, A.B. said
that Father had ―tried to pull his ear off,‖ but A.B. never told anyone that Father
had slapped him. Although medical personnel testified that because the bruises
on A.B.‘s abdomen and buttocks were not on boney prominences, they were
likely not the result of an accidental fall; medical personnel did not rule out other
causes of accidental bruising to a three-year-old toddler like A.B. from bumping
into things, sitting on things, or from accidents other than falling. Medical
personnel testified that A.B.‘s bruises—other bruises to A.B.‘s face and ear—
were of varying ages, but no one testified whether they were less than or more
than a month old. In other words, whether they occurred before or after Father
regained possession of A.B.69
Father testified that he had pleaded guilty to injury to A.B. in order to obtain
probation so that he could work his service plan, but he was adamant that he did
not slap A.B., even going so far as to take a polygraph examination in an attempt
to prove his innocence. Mother testified that in all her years with Father, A.B.‘s
statement regarding his ear is the only incident that she was aware of in which
69
The Department had returned the children to Father approximately one
month before Barker visited them at Father‘s apartment and reported A.B.‘s
bruising.
88
her son complained that Father may have injured him. The record contains no
evidence of physical injuries to the children prior to Barker‘s second visit to
Father‘s apartment one month after he regained possession of the children;
likewise, the CPS referral in Missouri was not based on any injuries to A.B. (H.B.
had not been born).
Termination under subsection (E) may not ordinarily be based on a single
transaction, but rather ―a showing of a course of conduct is required.‖ In re D.P.,
96 S.W.3d 333, 338 (Tex. App.—Amarillo 2001, no pet.); see also In re D.T., 34
S.W.3d 625, 634 (Tex. App.—Fort Worth 2000, pet. denied) (―[A] voluntary,
deliberate, and conscious ‗course of conduct‘ by the parent is required.‖).
Conduct similar to Father‘s may be insufficient even under the preponderance of
the evidence standard to modify conservatorship of a child. See Stucki v. Stucki,
222 S.W.3d 116, 123–24 (Tex. App.—Tyler 2006, no pet.) (upholding joint
managing conservatorship even though father had hit child on the head with a
book hard enough to give her a headache); see also In re B.R.P., No. 11-07-
00255-CV, 2009 WL 1349954, at *2–3 (Tex. App.—Eastland May 14, 2009, no
pet.) (mem. op.) (holding that father‘s slap that left a red mark on child‘s face for
two days did not cause substantial harm to require change of conservatorship).
Thus, viewing all of the evidence in a neutral light, the evidence that Father
pinched A.B.‘s ear and/or slapped A.B.‘s face and that A.B. had other small
bruises on his body is factually insufficient to establish a firm conviction or belief
89
that Father engaged in an endangering course of conduct from June 10, 2008 to
July 8, 2008.
2. H.B.’s Failure to Thrive—Factually Insufficient (D) or (E)
Grounds
The record before us is likewise factually insufficient to establish that
Father knew of H.B.‘s failure to thrive. Father testified that Mother took H.B. to
the doctor for her check-ups. He said that he did not attend H.B.‘s doctor visits
with Mother that often because she did not allow him to go; no contrary evidence
exists in the record. Father testified that he was a small child and eventually took
growth hormones and that he believed H.B. was small because she took after
him. Mother testified that the doctors thought H.B. was small like Father and that
the doctors did not tell Mother to alter H.B.‘s feedings.
The paramedic who responded when H.B. suffered seizures testified that
H.B. ―looked a little underweight for her size‖ but was not emaciated and that the
main reason he took her to the hospital was due to the abrasion on her head
from being hit by a toy, not her weight.70 Medical personnel from the hospital
testified that H.B.‘s failure to thrive would be less obvious to those who saw H.B.
frequently, that it would be difficult for a parent to know of the problem unless he
had been told by a doctor, and that the parents should have been told of H.B.‘s
growth issues at a well-baby exam. Mother testified that she was never told of
70
H.B.‘s failure-to-thrive diagnosis occurred when she was taken to the
hospital by the paramedic.
90
any growth issues with H.B. before H.B. was taken to the hospital for seizures.
Father testified that H.B. ate baby food and ―table scraps‖ and that she drank
whole milk. Moreover, Father, Mother,71 and Gordon testified that after Father
and Mother separated, Jennifer W. kept the children from 3:00 p.m. to midnight
while Mother worked; Jennifer W. and Hall testified that Father kept the children
while Mother worked. Assuming that Jennifer W. and Hall are correct, Father
would only have had the children during one meal time. And the record reflects
that, according to Ms. Cornelius‘s affidavit, Mother‘s apartment was barren of
food other than Sprite.
Termination under (D) requires that Father ―knowingly‖ placed or allowed
his children to remain in conditions or surroundings that endangered their
physical or emotional well-being. See Tex. Fam. Code Ann. § 161.001(1)(D).
Viewing all of the evidence in the record in a neutral light, the evidence is
factually insufficient for a reasonable finder of fact to form a firm conviction or
belief that Father knowingly allowed H.B. to be underfed. See, e.g., In re J.R.,
171 S.W.3d 558, 571 (Tex. App.—Houston [14th Dist.] 2005, no pet.) (holding
evidence legally insufficient to show Mother knowingly allowed children to remain
in endangering environment when she moved in with sex offender and record
failed to show she knew of conviction for sex offense).
71
As mentioned earlier, H.B.‘s medical records conflict with Mother‘s
testimony at trial; the records reflect that Mother told medical personnel that
Jennifer W. watched the children while Mother was at work and that Father
watched the children ―sometimes.‖
91
3. Domestic Violence—Factually Insufficient (D) Ground
A.B. reenacted a fight between Father and Mother during which Father
pushed Mother and Mother fell. No evidence exists, however, that domestic
violence between Father and Mother resulted in physical injury to the children,
and Mother never testified that she had to seek medical treatment as a result of
such domestic violence. In fact, Mother testified that Father was never physically
violent to the children and that she trusted Father with the children, despite the
domestic violence that had occurred between her and Father, because he had
never harmed the children; Mother said that in all her years with Father, A.B.‘s
statement regarding his ear was the only incident that she is aware of in which
her son complained that Father may have injured him. Additionally, Father could
not be certain that the children saw Mother punch him in the face at his
apartment after the separation because the children were in the bedroom.
Moreover, Father divorced Mother, so domestic violence between them will not
be a continuing issue. Viewing all of the evidence in the record in a neutral light,
factually insufficient evidence exists for a reasonable finder of fact to form a firm
conviction or belief that the children had been placed in a dangerous
environment because of the domestic violence between Father and Mother. See
In re A.S., 261 S.W.3d 76, 84–85 (Tex. App.—Houston [14th Dist.] 2008, pet.
denied) (holding that evidence was legally and factually insufficient to support
termination of mother‘s parental rights under (D) when, even assuming father‘s
behavior was abusive and had occurred in front of the children, mother had taken
92
responsive action to protect the children by taking them out of the environment);
see also Lewelling v. Lewelling, 796 S.W.2d 164, 167 (Tex. 1990) (holding in
conservatorship case ―that a parent is a victim of spousal abuse, by itself, is no
evidence that awarding custody to that parent would significantly impair the
child‖).
4. Father’s Mental and Emotional Difficulties—Factually
Insufficient (D) or (E) Grounds
While the evidence establishes that Father suffered from bipolar disorder
and anger issues, no evidence links these mental and emotional problems to
endangering conduct by Father. Father testified that he was aware of his bipolar
disorder and of how his moods fluctuated, and the record reveals that he took
medication for his bipolar disorder, even though he did not want to, because he
wanted his children back. The evidence in the record concerning Father‘s mental
and emotional difficulties is not in this case evidence of (D) or (E) grounds; the
Department did not seek termination under section 161.003. See Tex. Fam.
Code Ann. § 161.003 (Vernon 2008) (authorizing termination of parent-child
relationship under certain circumstances based on mental or emotional illness of
parent); see also, generally, In re A.L.M., 300 S.W.3d 914, 919–20 (Tex. App.—
Texarkana 2009, no pet.).
5. Father’s Apartment—Factually Insufficient (D) or (E)
Grounds
The record reflects that the Department returned the children to Father to
live with him at his apartment one month before their involuntary removal. Father
93
complied with the Department‘s requests concerning his apartment. He used the
sheets that the VOA gave him and purchased food to keep on hand even when
the children were not living with him. Although Oldham gave his lay opinion that
Father‘s apartment was not suitable for small children because it was messy and
cluttered when he viewed it approximately one month before trial, he did not
explain how the children would be harmed by the mess or clutter that he noted.
Father‘s apartment was obviously clean enough for the children to be returned to
him in June 2008, so the record demonstrates that Father had the capability to
provide a clean living space for the children when necessary. See J.A.J., 225
S.W.3d at 625–26 (holding evidence legally insufficient to support termination
under (D) when appellant worked to improve her living situation after son was
taken into State custody); J.R., 171 S.W.3d at 577 (holding evidence factually
insufficient to establish by clear and convincing evidence that (D) or (E) grounds
existed based on alleged unsanitary living environment); accord M.C., 917
S.W.2d at 269–70 (upholding termination under prior standard of review based
on ―extraordinarily unsanitary conditions‖ when children‘s home was roach
infested; children ate food off of floor and out of garbage; floor and furniture were
littered with food, garbage, dirty clothes, and feces; one child had dead
cockroaches matted in her hair; infant had dead cockroaches in her bottle; and
one summer, mother moved children into house that lacked plumbing or drinking
water).
94
6. Other Evidence
Father worked two service plans—under the FBSS plan, he attended
parenting classes, completed a psychological consultation and a psychiatric
evaluation, attended seven sessions of individual counseling, and completed an
anger management course; under the CPS plan, he completed individual
counseling, parenting classes, an anger management course, and a
psychological consultation; had no positive drug tests; and maintained the same
residence—all while never missing a visit with his children.
Father contended throughout trial that various caseworkers had a vendetta
against him; these contentions are somewhat supported by evidence in the
record that one of Father‘s caseworkers, Groomer, of her own accord, contacted
Father‘s probation officer to make allegations against Father that were not
relevant to his children.
Various witnesses urged the trial court to terminate Father‘s parental rights
based on evidence that is not evidence of endangerment under (D) or (E).
Burdick urged termination of Father‘s parental rights, saying she was concerned
for the children because Father had an extreme odor and needed more money to
raise the children. Groomer urged termination of Father‘s parental rights
because she did not think that Father had benefitted from the services or that
Father could provide a safe environment. Groomer also testified on one
occasion that the family plan moved from reunification to termination based on
Father‘s conduct toward her.
95
Although Father was apparently not congenial in his dealings with
caseworkers, had ―an extreme odor,‖ was not well off financially, had a cluttered
and messy apartment, was persistent to the point of being annoying and
somewhat belligerent to caseworkers with his calls and e-mails concerning his
children, and did not—in one person‘s opinion—exhibit ―any behavioral changes
or improvement in [his] character after completing programs,‖ this evidence is not
evidence of endangerment under (D) or (E).
Likewise, evidence exists that the children demonstrated physical and
mental improvement while they were in foster care. Their language skills, social
skills, and physical health improved. While these facts, as well as the various
witnesses‘ opinions on Father‘s parenting abilities,72 are evidence of the best
interests of the children, they are not evidence that Father violated subsections
(D) or (E).
7. A Reasonable Factfinder Could Not Reasonably Have Formed A
Firm Conviction or Belief That Father Violated Subsection (D) or
(E)
Viewing all of the evidence in a neutral light, the volume of disputed
evidence—set forth extensively above—that a reasonable factfinder could not
have credited in favor of subsection (D) and (E) findings is so significant that a
factfinder could not reasonably have formed a firm conviction or belief of the truth
72
See Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976) (listing the
parenting abilities of the individual seeking custody as a factor to be considered
in making a best interest determination).
96
of the allegations that Father violated subsections (D) or (E). See C.H., 89
S.W.3d at 28; H.R.M., 209 S.W.3d at 108. Because the evidence viewed in a
neutral light cannot 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 under
subsections (D) and (E), factually insufficient exists to support termination of
Father‘s parental rights under subsections (D) and (E). See Tex. Fam. Code
Ann. § 161.001(1)(D), (E); J.P., 2008 WL 283295, at *12 (holding that appellant‘s
mental health issues, her living conditions, and her parenting skills did not rise to
the level of endangerment when considered in context with the other evidence in
the record). We sustain the part of Father‘s second and third issues challenging
the factual sufficiency of the evidence to support the termination of his parental
rights to A.B. and H.B. See Santosky, 455 U.S. at 758–59, 102 S. Ct. at 1397;
M.S., 115 S.W.3d at 547; Holick, 685 S.W.2d at 20–21; M.C.T., 250 S.W.3d at
167.
IV. LEGALLY SUFFICIENT EVIDENCE EXISTS SUPPORTING BEST INTEREST FINDING
In his fourth issue, Father challenges the legal and factual sufficiency of
the evidence to support the trial court‘s finding that it was in his children‘s best
interest for his parental rights to A.B. and H.B. to be terminated. Because we
have concluded that the evidence is factually insufficient to support termination
under (D) or (E), we need not address whether there was factually sufficient
evidence to support the trial court‘s best interest finding. See Tex. R. App. P.
47.1. However, because we have held that there was legally sufficient evidence
97
to support the trial court‘s findings under (D) or (E), and because a holding of
legally insufficient evidence to support the trial court‘s best interest finding would
entitle Father to greater relief than what he is afforded under a factual
insufficiency holding, we will analyze whether legally sufficient evidence exists to
support the trial court‘s best interest finding.
A. Standard of Review
There is a strong presumption that keeping children with a parent is in the
children‘s best interest. In re R.R., 209 S.W.3d 112, 116 (Tex. 2006). Prompt
and permanent placement of the children in a safe environment is also presumed
to be in the children‘s best interest. Tex. Fam. Code Ann. § 263.307(a) (Vernon
2008). The following factors should be considered in evaluating the parent‘s
willingness and ability to provide the children with a safe environment:
(1) the children‘s ages and physical and mental vulnerabilities;
(2) the frequency and nature of out-of-home placements;
(3) the magnitude, frequency, and circumstances of the harm
to the children;
(4) whether the children has been the victim of repeated harm
after the initial report and intervention by the department or other
agency;
(5) whether the children are fearful of living in or returning to
the child‘s home;
(6) the results of psychiatric, psychological, or developmental
evaluations of the children, the children‘s parents, other family
members, or others who have access to the children‘s home;
98
(7) whether there is a history of abusive or assaultive conduct
by the children‘s family or others who have access to the children‘s
home;
(8) whether there is a history of substance abuse by the
children‘s family or others who have access to the children‘s home;
(9) whether the perpetrator of the harm to the children is
identified;
(10) the willingness and ability of the children‘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 children‘s family to effect
positive environmental and personal changes within a reasonable
period of time;
(12) whether the children‘s family demonstrates adequate
parenting skills, including providing the children under the family‘s
care with:
(A) minimally adequate health and nutritional care;
(B) care, nurturance, and appropriate discipline
consistent with the children‘s physical and psychological
development;
(C) guidance and supervision consistent with the
children‘s safety;
(D) a safe physical home environment;
(E) protection from repeated exposure to violence even
though the violence may not be directed at the children; and
(F) an understanding of the children‘s needs and
capabilities; and
(13) whether an adequate social support system consisting of
an extended family and friends is available to the children.
Id. § 263.307(b); R.R., 209 S.W.3d at 116.
99
Other, nonexclusive factors that the trier of fact in a termination case may
use in determining the best interest of the children include (A) the desires of the
children, (B) the emotional and physical needs of the children now and in the
future, (C) the emotional and physical danger to the children 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
children, (F) the plans for the children 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. Holley, 544 S.W.2d at 371–72.
These factors are not exhaustive; some listed factors may be inapplicable
to some cases; other factors not on the list may also be considered when
appropriate. C.H., 89 S.W.3d at 27. Furthermore, undisputed evidence of just
one factor may be sufficient in a particular case to support a finding that
termination is in the best interest of the child. Id. On the other hand, the
presence of scant evidence relevant to each factor will not support such a
finding. Id.
B. Evidence Supporting Best Interest Finding
In addition to the facts detailed above, the record contains other facts
supporting the factors listed above, with the exception of the children‘s wishes
because they did not testify. The children were three and four at the time of the
100
trial and were vulnerable, according to Groomer. They had been placed outside
Father‘s home twice. The foster parents reported that after visits with Father, the
children had nightmares, and their behavior reverted to being more infant-like.
The children also exhibited developmental delays. Father had trouble being
flexible and expressed that he did not know how to discipline the children without
spanking them. Father‘s ability to provide nutritious meals for the children was
questioned, and Father had no other family in the area to help him raise his
children. As mentioned above, evidence exists that the children demonstrated
physical and mental improvement while they were in foster care; their language
skills, social skills, and physical health improved. Thus, the plan, as stated in the
record, was for Greg‘s family to adopt the children.
Viewing the evidence in the light most favorable to the termination
judgment, we hold that the evidence is legally sufficient to support the trial court‘s
best interest finding. See Horvatich v. Tex. Dep’t of Protective & Regulatory
Servs., 78 S.W.3d 594, 601, 604 (Tex. App.—Austin 2002, no pet.) (holding
evidence legally sufficient to support best interest finding but factually insufficient
to support best interest finding); see also In re S.G.S., 130 S.W.3d 223, 240–41
(Tex. App.—Beaumont 2004, no pet.) (holding evidence legally sufficient to
support trial court‘s best interest finding). We therefore overrule the portion of
Father‘s fourth issue challenging the legal sufficiency of the evidence.
101
V. DUE PROCESS RIGHTS WERE NOT VIOLATED BY DENIAL OF EXPERT WITNESS
FEES
As mentioned above, in an attempt to prove his innocence regarding
slapping A.B., Father took a polygraph exam on March 26, 2009. After making
some pre-test statements, the polygraph examiner asked Father whether he had
put any bruises on A.B.‘s face, whether he had hit A.B. putting a bruise on his
face, and whether Father had caused A.B.‘s face to hit anything bruising him;
Father answered ―no‖ to each of the three questions. The evaluation of the
polygraph results failed to reveal criteria indicative of deception to the relevant
questions. Father attempted to introduce the polygraph results at trial, and the
trial court excluded the polygraph results and any discussion regarding the
polygraph exam.73
In his first issue, Father argues that the trial court violated his due process
rights by denying him access to expert witness fees. Specifically, Father argues
73
We note, however, that the trial court did not require Burdick‘s final report
that was admitted into evidence to be redacted, and it contains the following with
regard to the polygraph exam that Father took:
In March, [Father] spent $500 to have a polygraph exam by Richard
Wood. I encouraged [Father] to spend that money more wisely for
the betterment of his children. He stated he was going to prove that
he did not hit his son. I also told him that the polygraph was
inadmissible in court. He has spent time assuring this counselor that
he pl[ed] guilty to Injury to a Child because he was told he had no
choice. He sees this as another form of victimization by the courts
and CPS. His intent is to take the poly[graph] results back to the
Judge that gave him probation and prove he did not injure his son [in
an attempt to] get the conviction overturned.
102
that the trial court erred by denying his request for expert witness fees so that he
could pay an expert to lay the predicate for introducing polygraph exam results
into evidence. Father acknowledges that this court has previously ruled that due
process is not denied by the refusal to provide expert witness fees in termination
cases, see J.T.G., 121 S.W.3d at 130, and that he has found no Texas case
applying the criminal due process right to an expert to parental rights termination
cases. Because we also find no case law applying the criminal due process right
to parental rights termination cases, we overrule this portion of Father‘s first
issue.
Father also argues in his first issue in his brief and in his oral argument
that he should have been allowed broad discretion (i.e., introducing results from
the polygraph exam that he took) in challenging the State‘s caseworkers‘ biases
and prejudices.
Generally, the admission and exclusion of evidence is committed to the
sound discretion of the trial court. See Owens-Corning Fiberglass Corp. v.
Malone, 972 S.W.2d 35, 43 (Tex. 1998). To determine whether a trial court
abused its discretion, we must decide whether the trial court acted without
reference to any guiding rules or principles; in other words, we must decide
whether the act was arbitrary or unreasonable. Low v. Henry, 221 S.W.3d 609,
614 (Tex. 2007); Cire v. Cummings, 134 S.W.3d 835, 838–39 (Tex. 2004).
Although Father argues that he should have been able to ask whether the
CPS caseworkers considered the polygraph exam in deciding to recommend the
103
termination of his parental rights, the record reveals that he did not attempt to do
this at trial. Instead, he attempted to discuss the results during his testimony,
and the trial court excluded the polygraph results and the discussion regarding
the polygraph exam. The trial court did not have the opportunity to rule on the
specific issue that Father raises here because this issue was not before it. See
Banda v. Garcia, 955 S.W.2d 270, 272 (Tex. 1997) (stating that the complaint on
appeal must be the same as that presented in the trial court). Therefore, on the
record before us, we cannot say that the trial court abused its discretion by not
allowing Father to cross-examine the CPS caseworkers on whether they
considered the polygraph examination results in making their decision to
recommend terminating his parental rights because Father never attempted to
question the caseworkers on that issue at trial. See id. (holding that appellate
court cannot reverse based on a complaint not raised in the trial court); see
generally Tennard v. State, 802 S.W.2d 678, 683 (Tex. Crim. App. 1990) (holding
that the existence and results of polygraph examinations are inadmissible for all
purposes on proper objection), cert. denied, 501 U.S. 1259 (1991). We overrule
the remainder of Father‘s first issue.
104
VI. CONCLUSION
Having determined that the evidence is factually insufficient to support the
trial court‘s findings under family code section 161.001(1)(D) and (E), we reverse
the trial court‘s judgment and remand for a new trial.
SUE WALKER
JUSTICE
PANEL: WALKER and MCCOY, JJ.; and DIXON W. HOLMAN (Senior Justice,
Retired, Sitting by Assignment).
DELIVERED: July 29, 2010
105
Appendix 2
COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-11-00209-CV
IN THE INTEREST OF A.B. AND
H.B., CHILDREN
----------
FROM THE 322ND DISTRICT COURT OF TARRANT COUNTY
----------
MEMORANDUM OPINION1
----------
In five points, Appellant D.B. (Father) appeals the trial court‘s order
terminating his parental rights to his children, A.B. and H.B. Because we hold that
the evidence supporting the endangerment findings remains insufficient, we reverse
the trial court‘s judgment terminating Father‘s parental rights and remand this case
to the trial court for another new trial.
1
See Tex. R. App. P. 47.4.
I. Procedural and Factual Background
A. Procedural Background
This is the second time that this matter has been before our court.2
As we detailed in our first opinion, A.B. and H.B. were placed with family
members in September 2007 after then fifteen-month-old H.B., weighing only fifteen
pounds, was admitted to the hospital; she had suffered a seizure. The Texas
Department of Family and Protective Services (TDFPS) concluded that she had
been physically neglected. The children remained in that voluntary family placement
about nine months before TDFPS returned them to Father‘s care.3 About a month
after reunification, TDFPS removed the children from Father after a doctor opined
that A.B. had injuries that were not accidental, and TDFPS placed the children with
an unrelated foster family.4 TDFPS filed its petition for termination the next day.
About seven months later, the children were placed with a second foster family,
G.H. and J.H.5
In June 2009, after a bench trial, Father‘s parental rights were terminated for
the first time. The trial court found by clear and convincing evidence that Father had
knowingly placed or knowingly allowed the children to remain in conditions or
2
See In re A.B., No. 2-09-00215-CV, 2010 WL 2977709 (Tex. App.—Fort
Worth July 29, 2010, no pet.) (mem. op.).
3
See id. at *4, 7.
4
See id. at *13.
5
See id. at *28.
2
surroundings that endangered their physical or emotional well-being, that he had
engaged in conduct or knowingly placed the children with persons who engaged in
conduct that endangered the children‘s physical or emotional well-being, and that
termination of the parent-child relationship with Father was in the children‘s best
interest.6 S.B.‘s (Mother‘s) rights were also terminated, but she did not appeal that
decision.
Father appealed from that judgment and challenged the legal and factual
sufficiency of both endangerment findings and of the best interest finding.7 In July
2010, this court reversed the judgment and remanded the case to the trial court.8 In
doing so, we overruled Father‘s legal sufficiency challenges, sustained his challenge
to the factual sufficiency of the evidence supporting the endangerment findings, and
did not reach his challenge to the factual sufficiency of the evidence supporting the
best interest finding.9 No one petitioned for review of our decision.
Father‘s parental rights were terminated for a second time in June 2011 when
a jury made the same endangerment and best interest findings that the trial court
had made in the first trial. This appeal followed.
6
See id. at *32.
7
See id. at *1.
8
See id. at *44.
9
See id. at *36, 40–42.
3
B. Factual Background
Because our previous opinion set forth in great detail the evidence from the
first trial,10 this section of our opinion will set forth additional evidence admitted in the
second trial—relevant evidence from new exhibits, relevant testimony from new
witnesses, and new testimony from repeat witnesses.
1. New Exhibits
a. Family Assessment Summary
TDFPS offered and the trial court admitted into evidence a family assessment
summary completed by the Missouri Department of Social Services (MDSS). This
assessment summary pertains to a December 2005 investigation that MDSS had
conducted into the living conditions that Mother and Father had provided for A.B.
while living in Missouri. This summary indicates that someone had reported that
A.B.‘s living conditions in the family‘s home were unsanitary, hazardous, and
immediately threatening to A.B. due to a lack of heat and to the presence of dog
feces, dirty clothes, and trash everywhere.
The assessment summary confirms this report in part and refutes it in part.
Some boxes checked on the summary indicate that the living conditions were
hazardous and immediately threatening, that they needed improvement, and that
someone reported poor hygiene and dirty clothes. However, other checked boxes
indicate that medical and dental needs were being met, that the living conditions
10
See id. at *1–32.
4
were clean, orderly, and sanitary, and that there were no observed infestations. The
assessment summary further provides that the family was staying with friends until
the heat in their own home was restored.
An MDSS representative told Father that he and Mother had made the
appropriate provisions to provide for A.B. by staying in trailers that met minimum
standards and that they were free to move to Texas. The assessment summary
states that services were needed but that the family declined them and moved out of
the state. The summary also provides that MDSS had conducted a prior
assessment for abrasions and for unsanitary living conditions in June 2005 and had
concluded that services were needed.
b. H.B.’s Medical Records from the Bedford Fire Department
TDFPS offered and the trial court admitted into evidence medical records
showing that H.B. had a possible seizure ten minutes prior to someone calling 9-1-1
on September 29, 2007. The sequence chart indicates that H.B. was found awake
and alert in Mother‘s arms, that H.B.‘s pupils were equal and reactive, and that
wheezes were detected in her upper lobes. The narrative summarizes Mother‘s
statements to EMS, including that A.B. had hit H.B. in the head with a toy four days
prior and that H.B.‘s gasps for air had prompted Mother to call 9-1-1. The report
outlines the responder‘s medical observations, including an abrasion on H.B.‘s
forehead, and notes that the hospital staff was told to notify TDFPS for a possible
investigation.
5
c. Project RAPP Disposition Form
Father offered and the trial court admitted into evidence a Project RAPP
Disposition Form, indicating that a psychiatrist, Dr. Robert Mims, evaluated Father in
August 2009 at the Project RAPP offices. We take judicial notice of the fact that
Project RAPP is a Tarrant County Mental Health Mental Retardation (MHMR)
program that seeks to reduce recidivism through psychiatric and psychosocial
rehabilitation.11 The form further indicates that Dr. Mims concluded that Father did
not have signs or symptoms of mental illness and did not require services from
Project RAPP.
d. Order Terminating Father’s Deferred Adjudication
Father offered and the trial court admitted into evidence an October 2009 order
terminating his deferred adjudication community supervision for injury to a child
(A.B.). In this order, the trial court presiding over the criminal case notes that Father
had satisfactorily completed nine months of the two-year deferred adjudication
community supervision period and had satisfactorily fulfilled his terms and conditions
of community supervision. The order discharges Father from further community
supervision, allows Father to withdraw his plea, and dismisses the criminal case.
The order further releases Father ―from all penalties and disabilities resulting from
the offense or crime of which he has been convicted or [to] which he has pleaded
guilty, as provided by law.‖
11
See Tex. R. Evid. 201(b).
6
e. Order of Deferred Adjudication for Sammie Jo Rains
TDFPS offered and the trial court admitted into evidence the March 2010
order of deferred adjudication for Rains‘s conviction of bodily injury to an elderly
person. Father testified that at the time of trial, he and Rains were living together,
and she was expecting a child that might be his.
f. Images
A.B. and H.B.‘s foster parents, intervenors G.H. and J.H., offered and the trial
court admitted into evidence two exhibits relating to Father‘s involvement with adult
websites. The first exhibit is a 2010 image of Father‘s Myspace webpage that
encourages viewers to create a member profile on an adult website at a link
provided. The other exhibit is an image of Father‘s ―adultspace.com‖ profile page,
which contains nude photographs. The image indicates that Father has not logged
in since June 2008.
Additionally, the trial court admitted into evidence several photographs that
G.H. and J.H. had taken, including photographs of the children‘s rooms, of the
children dressed up in costumes, and of the children lying or walking in fields of
bluebonnets.
g. Lease Violation and Pest Control Records
The children‘s attorney ad litem offered and the trial court admitted into
evidence notices of Father‘s lease violations as well as pest control records from
Father‘s apartment. The notices, dated September 2009 and September 2010,
report violations for unhealthy and unsanitary living conditions and poor
7
housekeeping. The first comprehensible pest control record, dated September 28,
2010, indicates that Father‘s apartment was infested with roaches and that a
cleanout would be scheduled for the following week. The next record, dated
October 5, 2010, indicates that Father did not comply with instructions for cleanout
treatment and that the apartment was thoroughly infested with roaches. The next
record, dated October 19, 2010, includes an entry that the roaches were ―Bad!!‖ in
Father‘s apartment. The final record, dated November 16, 2010, indicates that
Father‘s apartment had a heavy roach infestation. All four records indicate that at
least one other apartment in the complex was being treated on each of those days.
h. 2011 Psychological Evaluation
TDFPS offered and the trial court admitted into evidence Dr. Parnell Ryan‘s
January 2011 psychological evaluation of Father. According to the report, Dr.
Ryan‘s diagnostic impressions were that Father has bipolar disorder not otherwise
specified (NOS) in partial sustained remission, attention-deficit/hyperactivity disorder
NOS, adjustment disorder with depressive mood, and chronic motor tic disorder and
was abused as a child. The report indicates that Father told Dr. Ryan that he did not
take prescription medications, and Father denied that he ever used illegal drugs or
alcohol. According to the report, Father had been in foster homes as a child, but at
the time of the evaluation, he described his relationship with his mother as ―[o]kay‖
and with his siblings as ―good.‖ Father‘s greatest fear at the time was losing his
children to TDFPS, and he regretted cursing at and getting angry with TDFPS
personnel.
8
Dr. Ryan states in his report that Father‘s profile ―suggests someone who has
difficulty understanding how his problematic behaviors impact others‖ but that Father
denied needing to change anything about himself. Dr. Ryan recommended that
Father participate in TDFPS services, attend counseling, and obtain medical
evaluations for possible medication management of his attention difficulties.
2. New Witnesses
a. Jennifer Porter
Porter testified that she was a TDFPS investigator for A.B. and H.B.‘s case
and that she was assigned on October 1, 2007, when H.B. was still in the hospital.
She testified that H.B. was discharged from the hospital around October 8, 2007,
and that Father was ―up there a lot.‖ She testified that Father was cooperative with
her.
Porter testified that she attempted the first home visit on October 9, 2007, but
that Father was not home. She added that she heard several dogs barking inside,
that there was a cat sitting in the window, and that there was a strong odor of animal
feces coming from inside the apartment. When Porter spoke to Father the next day,
he told her that he had contacted the city pound because he did not have the means
or ability without a car to take away the four dogs and four cats that Mother had
brought to the apartment. Porter testified that when she visited Father‘s apartment
on October 10, 2007, there was a strong odor of animal feces and animal urine,
stains and animal excrement were on the floor, the walls were ripped up, and bugs
were visible in the home, including in the refrigerator and the freezer. She testified
9
that she made the finding of ―reason to believe‖ for physical neglect, and she
testified that the condition of Father‘s apartment could be a dangerous environment
for young children who crawl on the floor and put things in their mouths. Porter
testified that she did not know the condition of the apartment during the time that
Father may have been caring for the children and that she did not have pictures of
the apartment with her.
Porter also testified that Father told her that after he and Mother separated, he
would watch the children at his home from 3:00 p.m. until midnight while Mother
worked. Porter further testified that developmental delays could impact a child‘s
well-being for the rest of her life without proper treatment.
b. Lamorra Cornelius
Cornelius, a TDFPS investigator for the emergency response unit, testified
that when she was a TDFPS caseworker, her job was to work with parents to help
them get their children back. She testified that when she first met with Father in
October 2007, the children had been placed with family members. She testified
that when she walked into his apartment that month, she felt fleas biting her legs
and noticed a strong odor, stains on the carpet, roaches in the kitchen, and black
water and dirty dishes in the dishwasher. However, Cornelius did not take any
pictures of these conditions.
Cornelius testified that each time Father would come to visits at the TDFPS
office, he would yell and scream at her, make demands, and ask when he was
going to get his children back. She said that this behavior occurred in the children‘s
10
presence and that this concerned her because it was not a wise use of his time with
his children. Cornelius testified that although Father was initially noncompliant, he
worked on all of his services from November 2007 to February 2008 and that by
March 2008, TDFPS made a decision to allow Father to have visits in his home.
Cornelius testified that when she visited Father‘s apartment on April 2, 2008, it
was clean. She said that she did not notice any odors or stains but that she told
Father that he needed to keep more food in the house. Cornelius also testified that
after a four-hour visit in April, Father returned the children to TDFPS hungry and
dirty from being at the park. She testified that he also returned the children hungry
after the next four-hour visit and that he got angry with her when she discussed his
failure to feed the children. She explained that Father had difficulty obtaining food
because the family members with whom the children had been placed had the food
stamps and that Father had trouble getting the food stamps transferred back to him.
Cornelius testified that Father had food for the children by the next visit because a
friend gave him food.
Cornelius testified that when Father returned the children from the next two
visits, one overnight visit in May 2008 and one in June 2008, the children did not
appear to have been bathed. But Cornelius testified that despite her concerns
regarding the children being fed and being returned dirty, the children were placed
back with Father on June 10, 2008.
Cornelius testified that she visited Father and the children on June 17, 2008,
and that there was a rotten odor in the air and stains, trash, and ―[f]ood, just kind of
11
old food,‖ on the floor but no food to eat in the home. When she opened the
bedroom door, she found the children lying in bed. They did not respond to her,
which she testified was unusual. She testified that she visited again on June 27,
2008, and that the conditions had worsened—more food on the floor, unclean
dishes in the sink, and a rotten odor—except that there was some edible food in the
home. The next time that she saw the children was when they were taken to the
hospital due to A.B.‘s injuries on July 8, 2008. She testified that the children were
placed in foster care that night and that she believed that Father had placed the
children in a dangerous environment.
c. Dr. Ryan
Dr. Ryan, a licensed psychologist and professional counselor, testified that he
conducted two psychological evaluations of Father and one diagnostic consultation,
all of which were admitted into evidence in the second trial. The consultation and
the first evaluation were also admitted into evidence in the first trial.
Dr. Ryan testified that the global assessment of functioning (GAF) assesses
how well a person is doing in life and that a person with a GAF under 50 is usually
hospitalized. Dr. Ryan testified that Father‘s GAF was 75 in 2007, 55 in 2009, and
55 in 2011. He testified that he diagnosed Father with attention deficit hyperactivity
disorder NOS, adjustment disorder with depressive mood, bipolar disorder NOS,
and chronic motor tick disorder but that he did not see any sign of psychosis or
paranoia. Dr. Ryan also testified that Father did not report being on any medication
12
in 2007, 2009, or 2011 and that a psychiatrist‘s report in 2009 indicated that a
referral for a pharmaceutical patient assistance program was not needed.
Dr. Ryan testified that Father was consistent in how he presented over the
years. Dr. Ryan also testified that lacking insight into one‘s own behavior and how
the behavior affects others is a problem in parenting children but that whether it is a
dangerous situation—whether it endangers a child‘s emotional or physical well-
being—depends on what the problematic behavior is. Dr. Ryan testified that
Father‘s insight mildly improved by the last evaluation and that Father‘s problematic
issues were the disorders with which Dr. Ryan had previously diagnosed him. Dr.
Ryan testified that having bipolar disorder does not prevent someone from being a
good parent and that Father did not present as a dangerous person. Dr. Ryan
further testified that everyone has problematic behavior and that Father was able to
control his behavior when he chose. Dr. Ryan also testified that an inability to
control one‘s own behavior, for example, illegal drug use, coupled with lack of
insight could endanger a child.
Dr. Ryan testified that Father denied needing to change anything and denied
needing counseling but that Dr. Ryan believed that Father did need counseling
because of his separation from his children. Dr. Ryan testified that he did not
recommend that Father go to anger management classes. When asked whether
Father would likely participate in services offered through TDFPS, Dr. Ryan said,
―Possibly.‖
13
d. Dr. Carl Shaw
Dr. Shaw, a physician at the emergency department of Cook Children‘s
Hospital, testified that he examined A.B. on July 8, 2008, and that A.B. had several
locations of bruising around his head. Shaw testified that x-rays detected no
fractures and that A.B.‘s injuries were not life-threatening but that they were not the
type of injuries that a toddler would sustain by an accidental fall or successive falls
within a short amount of time. Dr. Shaw testified that he wrote in his affidavit that
A.B.‘s injuries were likely consistent with physical abuse.
Dr. Shaw testified that A.B.‘s skeletal survey showed no evidence of prior
bone injuries. Dr. Shaw testified that in his affidavit, his answer to the question of
whether he felt that the child would be in immediate danger of additional injury or at
a substantial risk of harm if released to the parents was ―[P]ossibly so.‖ Dr. Shaw
testified that he could not tell whether the injuries happened at one time or at
different times.
e. Bryan Knox
TDFPS investigator Knox testified that he began interacting with Father when
TDFPS determined that Father and Cornelius had a lot of conflict. He testified that
he went to Father‘s apartment on July 8, 2008, to investigate the possible abuse of
A.B. Knox testified that another investigator and the police were also there. But
according to Knox, Father refused to let anyone but Knox into the apartment, and
Father called the police officers ―pigs.‖
14
Knox testified that they all went to the hospital; that Father was ―[a]ngry,
angry, angry‖; that Father told an officer to ―suck his dick‖; and that the children were
present and heard Father say that. Knox told the jury that he had never seen a
parent treat a police officer that way. He also testified that in domestic violence
cases, it is detrimental to the children‘s well-being to observe the emotional abuse.
Knox further testified that from around April 2008 to June 2008, he had been
inside Father‘s apartments. Knox testified that Cornelius was with him when he
visited the first apartment, which was clean—no bugs, no mice, no smell, and
nothing endangering to a child. Knox testified that Cornelius was not with him when
he visited Father‘s second apartment, which Knox said was nothing more than
messy. Knox said that he did not have a bad working relationship with Father and
that he was a referee of sorts between Cornelius and Father.
f. Val Trammell
Trammell, a TDFPS case aide, testified that she observed visits at the TDFPS
office between Father and his children from October 2008 until June 2009 while the
children lived with foster parents. She acknowledged that other visitation facilities
permitted TDFPS workers to observe visitations through a mirror but that theirs was
more intrusive and stressful for those being observed because the observers stood
or sat in the doorway and were visible to those being observed.
Trammell testified that at virtually every visit, Father displayed a lot of anger
toward TDFPS in front of his children at the beginning of the visit, said things that
are not supposed to be said in front of children on a visit, and got loud on occasion.
15
She said that while this was going on, the children would get very quiet, look down,
and move to the other side of the room as if they were trying to make themselves
invisible. Trammell clarified that Father‘s anger was primarily directed at TDFPS
and was never directed at the children. She said that TDFPS workers had to call
the security guard at times but that when Father calmed down and played with the
children, things went fairly well, and the children did not appear to be afraid of him.
She also testified that Father did not act hostilely toward TDFPS on one occasion
when his attorney and the attorney ad litem were present, showing her that Father
had the ability to control his anger.
Trammell further testified that she would pick the children up from J.H. and
G.H.‘s home to take them to the TDFPS office visits, that J.H. and G.H.‘s home was
beautiful, and that she was surprised by how quickly the children had bonded with
them.
g. Melissa Reagan-Perez
Perez, a Tarrant County community supervision officer, testified that Father
was on deferred adjudication community supervision from September 2008 to
October 2009, at which point he was successfully discharged and the case was
dismissed.
Perez noted that one community supervision condition had required that
Father take medication, that Father was not initially compliant in this regard, that
Father obtained a psychiatric evaluation in 2009, and that the psychiatrist did not
recommend medication after that evaluation. Perez also noted that Father was
16
angry and agitated during most of his visits with her and that he would repeat a point
continuously to make sure that it was heard but did not generally scream or yell.
She testified that the community supervision department was only required to have
two contacts with Father per month but that it had thirty contacts with him in June
2009. She explained that these contacts were mostly the police department,
TDFPS, or other agencies calling the community supervision office and asking it to
address the issue of Father contacting them too often.
Perez testified that from July 2009 to October 2009, Father‘s apartment was
generally cluttered and very unclean but that the children were not living there
during that time. She explained that fast food wrappers and containers were left out.
Perez opined that Father‘s apartment was not an appropriate place for children to
live ―primarily because there [wa]s a very strong odor from the litter box.‖ Perez
testified that she also detected a litter box odor as well as human body odor and
noticed that the apartment was cluttered when she visited Father‘s apartment in
January 2011.
Perez testified that at the time of trial, Rains was on Perez‘s community
supervision caseload for injury to the elderly and that Rains had previous charges of
theft as a juvenile and of assault on the elderly. Perez testified that Rains, who was
pregnant, moved in with Father in May 2010, moved out in September 2010, and
then moved back in with Father in December 2010. Perez added that Rains
identified Jeff Jones, who Perez believed lived with Father and Rains, as her
boyfriend and identified Father as the father of her child. Perez further testified that
17
Rains had another child but did not have custody of that child. Because Perez had
never seen Rains interact with children, Perez could not opine as to whether A.B.
and H.B. would be safe around Rains.
h. J.H.
J.H. testified about her previous experience with children, which included
working in daycares and in preschools. She testified that she and her husband want
to adopt A.B. and H.B. She also testified about her daily routine with the children,
which includes playing with H.B. in the morning after G.H. takes A.B. to school,
getting H.B. ready for pre-K, taking H.B. to pre-K, resting in the afternoon, picking
the children up from school, working on homework and having snacks with them,
letting them play, having dinner, bathing them every other day, and putting them to
bed.
J.H. testified that she told A.B.‘s psychologist that A.B. had a tendency to fall
down and say that she and G.H. had pushed him. J.H. testified that Father had filed
several reports with TDFPS regarding the couple‘s treatment of the children. She
explained that these reports were disruptive because as a result of the reports, the
children were interviewed at school, the children cried, and A.B. had temper
tantrums. Finally, she testified that she had never called the police regarding Father
but that G.H. had.
i. Elaine Johnson
Johnson, a licensed professional counselor and children‘s play therapist,
testified that she first saw the children in March 2009. She explained that she
18
evaluated them over a period of time in play therapy. She testified that when his
foster parents brought him in, A.B. was tired, and his affect was ―rather flat.‖ She
described his play as repetitive and purposeless but very cooperative. Johnson
testified that H.B. was aloof and did not have a strong connection with anyone
except A.B., to whom she was greatly attached, and that Johnson was still working
with H.B. on empathy. Johnson testified that H.B. displayed unusual distress
regarding potty training.
Johnson also testified that A.B. tried to bite J.H. on one occasion but that this
was not unusual for children who have gone through some sort of trauma. She also
said that A.B. hit J.H. and G.H. early on but that the trigger was not always known.
She further testified that while the children played out fantasies, they sometimes
said things out of the ordinary. She explained that A.B. said things about someone
stealing children, ―I don‘t want them dead,‖ and ―cutting their brains out.‖ Johnson
testified that she went a period of time without seeing the children but that in
October 2010, A.B. was having trouble transitioning to going to school and that after
expending his energy all day, he was sometimes too exhausted to eat when he got
home. She testified that at the time of trial, they were working on modifying
behavior so that the children will ask the foster parents for help when needed and to
stop meltdowns before they occur.
Finally, Johnson testified that she was really impressed with J.H. and G.H.,
that they had a beautiful relationship with each other and with the children, and that
the children call them ―[M]ommy‖ and ―[D]addy‖ and call Father their ―other [D]addy.‖
19
j. Joanna Letz
TDFPS caseworker Letz testified that she worked with children who had been
put into foster care, with the foster parents, and with the birth parents. She
explained that she had been the children‘s caseworker since August 2010 and had
been working with Father since October 21, 2010. She testified that in order to
consider placing children back with a parent, she must visit the parent‘s home. She
testified that she went to Father‘s apartment on October 20, 2010, but that he was
not there.
Letz testified that the first time that she saw Father was at the courthouse on
October 21, 2010. She claimed that she had tried to introduce herself to him there
but that he had told her that he could not speak to anyone without his attorney being
present. She testified that she saw him next at the TDFPS office, where she met
with Father and his attorney about Father‘s service plan. She said that even though
Father had already completed counseling, parenting classes, anger management,
and psychological examinations, she offered them again. She testified that Father
agreed only to the completion of another psychological examination.
Letz testified that she went to Father‘s apartment again in January 2011. She
stated that a man first opened the door, and then a woman opened the door and told
Letz that she was not supposed to be there. Then Father told Letz that she could
not come in without his attorney being present. Letz admitted that Father‘s attorney
had indeed told her not to speak with Father without his attorney and that she
believed that it was also ―[s]upposed to be‖ TDFPS‘s policy. She went to Father‘s
20
home without contacting his lawyer because she believed that it was her ―duty‖ and
her ―job.‖
Letz testified that she had seen J.H. and G.H.‘s home many times and that it
was inspirational to watch how they parent the children. She testified that the
children had been with J.H. and G.H. for just over two years; that they had a loving
relationship with the children; and that the children received love, nurturing,
kindness, emotional support, security, and structure in J.H. and G.H.‘s home.
Letz testified that TDFPS‘s permanency goal for Father and his children had
been reunification in 2008 but that in October 2010, when she tried to visit Father‘s
apartment, it was for Father‘s rights to be terminated and for the children to be
adopted. Letz testified that in her opinion, it was in the children‘s best interest for
Father‘s parental rights to be terminated.
k. Sheryl Coaxum
Coaxum, assistant manager of the Cherry Hill Apartments, testified that
Father‘s lease there began on June 9, 2008, and that he paid his rent on time. She
testified that Father had lease violations in September and October 2010 for
unsanitary living conditions, which were noticed by the pest control company. She
testified that Father had requested that pest control treat his apartment but that on
September 28, 2010, the pest control company personnel told Father that they
would not treat his apartment until he cleaned it, especially the area behind the
microwave where pest control found dead roaches. She testified that pest control
could not treat Father‘s apartment on October 5 because Father had not complied
21
with instructions to clean it and that they visited Father‘s apartment twice after that.
Coaxum also testified that maintenance employees would not fix Father‘s
dishwasher in September 2010 until he cleaned the dirty floors. She testified that
she had no record of a complaint or a lease violation for unsanitary living conditions
during June and July 2008 while his children were living with him.
Coaxum further testified that Father told her that Rains was his girlfriend, that
Rains had been living with him, and that Rains was pregnant with his child.
l. Betty Williams
Williams, who resided in the Cherry Hill Apartments, the same apartment
complex in which Father resided, testified that she had known Father for eleven or
twelve months at the time of trial. She testified that Father would come over to her
apartment to work on her computer. She described Father‘s temperament as ―laid
back‖ and testified that he would help her do anything that she could not do, that he
was very respectful, and that she had never seen him get upset about anything or
lose his temper. She testified that he seemed very concerned about his children.
3. New Testimony from Repeat Witnesses
a. Chris Conner
Conner, a paramedic with the Bedford Fire Department, offered essentially the
same testimony that he had offered during the first trial.12 However, instead of
12
See A.B., 2010 WL 2977709, at *4.
22
describing H.B. as appearing lethargic,13 he testified in the second trial that she
appeared normal and did not exhibit signs of having had a seizure.
b. Janice Barker
As an employee of Volunteers of America, Barker taught Father parenting and
homemaking skills from January 2008 to March 2008.14 In addition to offering the
testimony that she had offered during the first trial,15 Barker testified during the
second trial that when she revisited Father in July 2008, Father lived in a different
apartment than he had lived in before. She testified that this apartment was clean,
that he had no pets, and that she looked around but did not see any animal feces or
roaches or notice an overwhelming odor.
c. Nurse Donna Wright
In addition to providing the testimony that she had provided during the first
trial,16 Wright testified during the second trial that in July 2008, A.B. had language
delays but no other developmental delays. She testified that there are many
reasons that a child can have language delays, including insufficient stimulation,
trouble hearing, multiple ear infections, or neurological delays. She testified that in
her opinion, this inability to verbalize can frustrate a child, cause temper tantrums,
13
See id.
14
See id. at *8.
15
See id. at *8–9.
16
See id. at *14.
23
and cause behavioral problems that can jeopardize a child‘s physical or emotional
well-being.
Wright next testified about H.B.‘s October 2007 failure-to-thrive diagnosis,
which she opined was caused by not being offered enough food. In addition to
discussing the dates, weights, and percentages that she had addressed in the first
trial, she added that H.B. was in the fiftieth percentile in weight on February 20,
2007, that she dropped to between the third and the fifth percentile by April 9, 2007,
and to below the third percentile by May 3, 2007. She opined that a parent would
notice such a drop but testified that H.B.‘s doctors were not ready to make a failure-
to-thrive diagnosis as of May 3, 2007, and that she, too, would have needed to run
more tests at that time before making such a diagnosis.
Wright testified that H.B.‘s physical or emotional health was endangered by
her failure to thrive because it caused her to have a seizure. She testified that at the
time of H.B.‘s evaluation in July 2008, H.B. had language delays that ―would have a
potentially endangering effect on [her] physical or emotional wellbeing.‖ Wright
further testified that H.B. had motor skill developmental delays that could continue
over time and affect her ability to get a job, to play sports, and to do physical labor,
which Wright opined would also have a tendency to endanger H.B.‘s well-being.
Wright also testified that H.B.‘s medical records noted ―some concern about the
development of [her] head and cranium.‖ Wright explained that insufficient nutrition
can inhibit brain cell growth and endanger a child‘s physical and emotional well-
being and can do so permanently if it is not corrected.
24
d. Dr. Peter Lazarus
In addition to offering testimony similar to the testimony that he had offered
during the first trial,17 Dr. Lazarus testified during the second trial that he would have
needed to do a history and physical exam, some preliminary tests, and a nutritional
consult to rule out medical reasons before making a failure-to-thrive diagnosis in
May 2007.
He testified that failure to thrive can lead to repeated infections or problems
with psychosocial development—which includes ―development anywhere from gross
motor, fine motor, language skills, or social skills.‖ He also testified that ―[i]f those
skills and that type of development [were] impeded, [that] would . . . pose a danger
to a child‘s physical and emotional wellbeing‖ by keeping the child from meeting
milestones.
He further testified that problems with head growth, which H.B. experienced
when she was diagnosed with failure to thrive, could endanger a child‘s physical and
emotional well-being by leading to retardation. When asked if H.B.‘s failure to thrive
could have led to retardation if her condition had gone untreated, Dr. Lazarus said
that it could have led to development that was below what would be expected of her.
17
See id. at *5.
25
e. Jennifer
Jennifer, one of the children‘s initial foster parents, repeated during the
second trial the testimony that she had offered during the first trial,18 except that she
did not state this time that H.B. had used profanity when she was two years old.
f. Constance Burdick
In addition to repeating the testimony that she had offered during the first
trial,19 Burdick, a clinical social worker with Catholic Charities Diocese of Fort Worth,
testified during the second trial that a psychologist had diagnosed Father with
paranoia. When Father‘s attorney showed her Dr. Ryan‘s evaluation, Burdick stated
that this evaluation, which she said was the most current evaluation, did not list
paranoia as a diagnosis.
Also, Burdick testified that her clinical opinion in 2009 was that Father was
―low functioning in insight and impulse control,‖ which could endanger the physical
or emotional well-being of one‘s child. She explained that a parent who was low
functioning in insight would have difficulty knowing how to care for an ill child, an
injured child, or a child with developmental problems. She also explained that
parents with low impulse control would be more inclined to act spontaneously
without thinking, to ―smack a child,‖ and to set a bad example for their children.
18
See id. at *26–28.
19
See id. at *19–20.
26
g. G.H.
In addition to repeating the testimony that he had offered during the first trial,20
G.H. testified during the second trial that A.B. and H.B. were in kindergarten and
pre-K, respectively, in an exemplary school district and that A.B. was in Indian
Guides, which he enjoyed. He testified that A.B. was considered ―special needs‖ for
speech language delays but that they worked with him a lot outside of school and
that he was improving. G.H. also testified about the children‘s daily routine and
about the training that he and J.H. had to receive and maintain to be licensed foster
parents.
G.H. testified again about Father‘s online activities but this time added that
G.H. had found the profile page of a seventeen-year-old female who claimed to be
in a relationship with Father and that some of the photos on her profile page
depicted her with drug paraphernalia.
h. Father
i. Testimony Regarding Rains
In addition to repeating the same testimony that he had offered during the first
trial,21 Father testified during the second trial that the only other person who lived in
his apartment or stayed overnight was Rains because she was due to have a baby
in March 2011. He explained that he was unsure who the father was because he
20
See id. at *28.
21
Id. at *1–4, 7–10, 16–23, 28–30, 32.
27
and Rains separated for about one month and that Jones, who spent some time at
Father‘s apartment to protect Rains while Father was gone, could be the father.
Father said that Rains was seeking to qualify for Social Security disability benefits
but that he was unsure what disability she had.
Father testified that he did not know until after Rains became pregnant that
she was on community supervision for injuring her grandmother. He said that he
would still consider Rains to be a safe person for his children to be around if her
actions toward her grandmother were out of protection for her child rather than out
of pure anger toward her grandmother.
ii. Testimony Regarding His Apartment
Father testified that his apartment was probably not as nice as J.H. and G.H.‘s
home but that it was the nicest apartment that he could afford. Father stated that his
children were not living with him when Cornelius came to his apartment with Knox to
make her initial reports or when the maintenance workers came to his apartment.
He explained that he had not let Letz into his apartment because he and his attorney
had agreed that anyone who wanted to see his apartment would have to obtain
permission from his attorney to enter the apartment.
Father testified that he had a king-size bed with two twin mattresses
underneath it that functioned as box springs and that he also had couches, an
entertainment center with a TV and computer on it, and a computer table in the
living room. He stated that he did not have a toddler bed or a crib yet but that he
28
could obtain those. Father testified that he had only one cat and never had more
than one animal in the apartment that he began renting in June 2008.
iii. Testimony Regarding Education and Income
Father testified that he had taken a few classes at Tarrant County Community
College as recently as spring 2010 in pursuit of one of two computer degrees—
information security technology or personal computer support. He testified that his
cumulative grade point average in college was a 3.8 and that he planned on
returning to classes when the TDFPS case was over.
Father stated that he could not remember what his last job was and that he
continued to receive supplemental security income despite a psychiatrist telling him
that he showed no signs of having a mental illness. He explained that the Social
Security Administration had not done a review of his disability status since that
psychiatrist‘s report. Father testified that his income consisted of his social security,
food stamps, and the money that he earned from donating plasma. He said that he
was not financially ready to have the children returned but that if the children were
returned to him, his food stamps would increase from $360 to $400, which would be
plenty of money.
Father testified that during a time period that included March 2010, he had an
advertisement on his Myspace website for an adult website, an affiliated network,
which he joined on September 28, 2007. He stated that he did whatever he could
do to make money and that he got a percentage of the proceeds that the adult
website made off his referrals.
29
iv. Testimony Regarding TDFPS
Father testified that when Mother‘s family members were given possession of
the children after H.B. was released from the hospital, Father only got to see the
children one time over a two- or four-month period, and so he had to ―bug and bug
and bug‖ TDFPS to get visits at the TDFPS office. Father testified that he felt like he
had to be aggressive, argumentative, and demanding toward TDFPS because they
would not look at the facts and would not return his phone calls to give him an
update or to tell him what to do next.
He testified that when he was permitted to take the children away from the
TDFPS office for visits, the bus ride was so long that most of their time together was
spent on the bus or at the park. He testified that he fed them during these visits but
that he returned them dirty from their time at the park. He testified that he had to
send e-mails, make phone calls, and file complaints to get his visits to last over four
hours.
Father admitted that when he and the children were at the hospital after A.B.
was injured, he was highly upset that TDFPS was investigating him again and that
he did not act maturely toward them. Father testified that when he was released
from jail after pleading guilty to injury to a child, he tried to contact his former
caseworker, Ruth Groomer, about his service plan and had to call her many times,
send her e-mails, and go ―over her head‖ to get the service plan started. He testified
that he retained an attorney, that his attorney filed a motion to compel, that the
30
service plan was put in place, and that he completed the service plan with the
exception of the batterers‘ intervention class.
Father testified that he had a horrible relationship with Groomer and that he
also had to call, e-mail, and go ―over her head‖ repeatedly to set up visits with his
children. He testified,
[W]hen I tried to be calm and collected with them, you know, when I
tried to do the right thing and leave a voicemail and wait for a call back,
I would never get a call back. It was almost like, it is [Father], forget it;
don‘t call him back. You know, it‘s like they blew me off every chance
they got.
The only way that I could actually get them to respond to me was
to call and call and call and e-mail and e-mail, and make complaints.
Father stated that when he went to the TDFPS office for visits, he had words with
Groomer because Groomer accused him of being a child abuser, thought he was a
horrible person, did not treat him as a parent, and did not respect him. He admitted
that he got into arguments with TDFPS personnel at the TDFPS office but that this
did not occur each time and did not occur in front of the children.
Father testified that he filed several reports with TDFPS because he had
genuine concern for the children‘s well-being, such as concerns that they were
being pushed while they were in J.H. and G.H.‘s care.
v. Testimony Regarding H.B.’s Failure to Thrive
Father testified that he was small but not malnourished as a child and that he
suffered from seizures as a child. He said that when he and Mother were together,
H.B. was eating and doing everything that she was supposed to be doing. Father
31
said that from July 2007 until September 2007, he watched H.B. ―a few times a
week, but not on a consistent basis‖ but that when he cared for her, she ate normal
table ―scraps‖ like pizza or whatever he was eating along with milk or formula.
Medical records admitted at both trials indicate that Mother‘s sister babysat the
children while Mother was at work and that Father watched the children ―sometimes‖
and on some weekends but not consistently.
Father testified that he was unable to get to the hospital to be with H.B. after
her seizure until the following Monday because there was no bus transportation for
him over the weekend but that he spent ―[e]very single day, except for that Saturday
and Sunday‖ at the hospital. He testified that he was not knowledgeable enough
during the time that H.B. had her seizure but that he was now familiar with
developmental goals and milestones of children. He also testified that in addition to
taking the classes that were required by his service plan, he took a class called
―Positive [B]rain [D]evelopment‖ on his own.
II. Sufficiency Review of Endangerment Evidence
In his first and second points, Father argues that there is no evidence or
factually insufficient evidence that he (1) knowingly placed or knowingly allowed A.B.
and H.B. to remain in conditions or surroundings that endangered their physical or
emotional well-being or (2) engaged in conduct or knowingly placed the children with
32
persons who engaged in conduct that endangered their physical or emotional well-
being.22
A. Burden of Proof and Standards of Review
A parent‘s rights to ―the companionship, care, custody, and management‖ of
his or her children are constitutional interests ―far more precious than any property
right.‖23 In a termination case, the State seeks not just to limit parental rights but to
erase them permanently—to divest the parent and child of all legal rights, privileges,
duties, and powers normally existing between them, except for the child‘s right to
inherit.24 We strictly scrutinize termination proceedings and strictly construe
involuntary termination statutes in favor of the parent.25
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
subsection (1) of the statute and must also prove that termination is in the best
22
See Tex. Fam. Code Ann. § 161.001(1)(D), (E) (West Supp. 2012).
23
Santosky v. Kramer, 455 U.S. 745, 758–59, 102 S. Ct. 1388, 1397 (1982); In
re M.S., 115 S.W.3d 534, 547 (Tex. 2003).
24
Tex. Fam. Code Ann. § 161.206(b) (West 2008); Holick v. Smith, 685
S.W.2d 18, 20 (Tex. 1985).
25
Holick, 685 S.W.2d at 20–21; In re R.R., 294 S.W.3d 213, 233 (Tex. App.—
Fort Worth 2009, no pet.).
33
interest of the child.26 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. 27
Termination decisions must be supported by clear and convincing evidence.28
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.‖29
Due process demands this heightened standard because termination results in
permanent, irrevocable changes for the parent and child.30
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 grounds for termination were proven.31 We review
all the evidence in the light most favorable to the finding and judgment. 32 We
resolve any disputed facts in favor of the finding if a reasonable factfinder could
26
Tex. Fam. Code Ann. § 161.001 (West Supp. 2012); In re J.L., 163 S.W.3d
79, 84 (Tex. 2005).
27
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).
28
Tex. Fam. Code Ann. § 161.001; see also § 161.206(a) (West 2008).
29
Id. § 101.007 (West 2008).
30
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).
31
In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005).
32
Id.
34
have done so.33 We disregard all evidence that a reasonable factfinder could have
disbelieved.34 We consider undisputed evidence even if it is contrary to the
finding.35 That is, we consider evidence favorable to termination if a reasonable
factfinder could, and we disregard contrary evidence unless a reasonable factfinder
could not.36
We cannot weigh witness credibility issues that depend on the appearance
and demeanor of the witnesses, for that is the factfinder‘s province.37 And even
when credibility issues appear in the appellate record, we defer to the factfinder‘s
determinations as long as they are not unreasonable.38
In reviewing the evidence for factual sufficiency, we give due deference to the
jury findings and do not supplant the verdict with our own.39 Here, 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).40 If, in
33
Id.
34
Id.
35
Id.
36
Id.
37
Id. at 573, 574.
38
Id. at 573.
39
In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006).
40
Tex. Fam. Code Ann. § 161.001; In re C.H., 89 S.W.3d 17, 28 (Tex. 2002).
35
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.41
When we reverse on factual sufficiency grounds, then we must detail in our
opinion why we have concluded that a reasonable factfinder could not have credited
disputed evidence in favor of its finding.42
B. Law on Endangerment
―Endanger‖ means to expose to loss or injury, to jeopardize.43 It requires
more than a mere threat of metaphysical injury or the possible ill effects of a less-
than-ideal family environment.44
To prove endangerment under subsection (D), TDFPS had to prove that
Father (1) knowingly (2) placed or allowed his children to remain (3) in conditions or
surroundings that endangered their physical or emotional well-being.45 Subsection
(D) focuses on dangerous conditions or surroundings that endanger the physical or
41
H.R.M., 209 S.W.3d at 108.
42
J.F.C., 96 S.W.3d at 266–67.
43
Boyd, 727 S.W.2d at 533; In re J.T.G., 121 S.W.3d 117, 125 (Tex. App.—
Fort Worth 2003, no pet.); see also In re M.C., 917 S.W.2d 268, 269 (Tex. 1996).
44
Boyd, 727 S.W.2d at 533.
45
See Tex. Fam. Code Ann. § 161.001(1)(D).
36
emotional well-being of the children.46 It focuses on the suitability of the children‘s
living conditions.47 Thus, under subsection (D), it must be the environment itself that
causes the children‘s physical or emotional well-being to be endangered, not the
parent‘s conduct.48
Under subsection (E), the relevant inquiry is whether evidence exists that the
endangerment of the children‘s physical well-being was the direct result of Father‘s
conduct, including acts, omissions, or failures to act.49 Additionally, termination
under subsection (E) must be based on more than a single act or omission; the
statute requires a voluntary, deliberate, and conscious course of conduct by the
parent.50 It is not necessary, however, that the parent‘s conduct be directed at the
children or that the children actually suffer injury.51 The specific danger to the
children‘s well-being may be inferred from parental misconduct standing alone.52 To
46
In re M.C., 352 S.W.3d 563, 566 (Tex. App.—Dallas 2011, no pet.).
47
Id.
48
Id.
49
In re M.C.T., 250 S.W.3d 161, 169 (Tex. App.—Fort Worth 2008, no pet.);
see Tex. Fam. Code Ann. § 161.001(1)(E).
50
M.C.T., 250 S.W.3d at 169; see Tex. Fam. Code Ann. § 161.001(1)(E).
51
Boyd, 727 S.W.2d at 533; M.C.T., 250 S.W.3d at 168–69.
52
Boyd, 727 S.W.2d at 533; In re R.W., 129 S.W.3d 732, 738 (Tex. App.—Fort
Worth 2004, pet. denied).
37
determine whether termination is necessary, courts may look to parental conduct
occurring both before and after a child‘s birth.53
C. Legal Sufficiency Analysis
As in the first trial, we first address whether the evidence is legally sufficient to
support termination of Father‘s parental rights pursuant to subsection (D) or (E).54
Much of the same evidence that we considered to be legally sufficient to
terminate Father‘s parental rights pursuant to subsection (D) and (E) in the first trial
was admitted into evidence during the second trial.55 Specifically, there was
evidence that Father cared for H.B. to some extent around the time that she was
diagnosed with failure to thrive due to malnourishment.56 Thus, as it did last time,
this evidence supports an inference that Father knew of and contributed to H.B.‘s
failure to thrive and, consequently, that Father endangered her by underfeeding her
and knowingly allowed her to remain in a malnourished condition that endangered
her.57 Accordingly, viewing all the evidence in the light most favorable to the
termination judgment and disregarding all contrary evidence that a reasonable
factfinder could disregard, we again hold that some evidence exists that would
53
In re D.M., 58 S.W.3d 801, 812 (Tex. App.—Fort Worth 2001, no pet.).
54
See A.B., 2010 WL 2977709, at *35.
55
See id.
56
See id.
57
See Tex. Fam. Code Ann. § 161.001(1)(D), (E); A.B., 2010 WL 2977709, at
*35–36.
38
support a factfinder‘s firm belief or conviction that Father violated subsections (D)
and (E), and we overrule those portions of Father‘s first two points challenging the
legal sufficiency of the evidence to support the termination of his parental rights on
these two grounds.58
D. Factual Sufficiency Analysis
As we did in the first opinion, we next address whether the evidence is
factually sufficient to support termination of Father‘s parental rights pursuant to
subsection (D) or (E).59 We review all of the evidence, focusing on the evidence
concerning the three allegations that TDFPS relies on as establishing subsections
(D) and (E) grounds for termination: (1) H.B.‘s failure-to-thrive diagnosis, (2)
Father‘s hostile behavior, and (3) the conditions of Father‘s homes.60
1. Failure to Thrive
We concluded in our first opinion that the evidence relating to H.B.‘s failure-to-
thrive diagnosis was factually insufficient to terminate Father‘s parental rights under
subsection (D) or (E) because a reasonable factfinder could not have formed a firm
belief or conviction that Father underfed H.B. or knowingly allowed her to be
underfed.61
58
See J.P.B., 180 S.W.3d at 573; A.B., 2010 WL 2977709, at *36.
59
See A.B., 2010 WL 2977709, at *36.
60
See id.
61
See id. at *38.
39
a. Knowledge
Most of the evidence from the first trial relating to Father‘s knowledge was
also offered in the second trial—namely, EMT Chris Conner‘s testimony that H.B.
did not appear to be emaciated and Father‘s testimony that Mother took H.B. to the
doctor for her check-ups without Father, that he thought that H.B. was small
because she took after him, and that he did not know that H.B. was failing to
thrive.62 While Wright added in the second trial that a parent would have noticed
H.B.‘s drop from the fiftieth to below the fifth percentile in weight from February to
April 2007, this is not evidence that Father knew that H.B. was failing to thrive.
Indeed, the doctors did not even know at that point that H.B. was failing to thrive,
and Wright and Dr. Lazarus both testified that they would have needed to conduct
more tests before making such a diagnosis in May 2007.
Therefore, no additional evidence was admitted during the second trial to
change our determination that the evidence is factually insufficient to support a
finding that Father knew that H.B. was failing to thrive.63
b. Conduct
As for Father‘s conduct, the evidence in the second trial does not show that
Father had the children more often after he and Mother separated than the evidence
62
See id.
63
See Tex. Fam. Code Ann. § 161.001(1)(D); C.H., 89 S.W.3d at 28–29; A.B.,
2010 WL 2977709, at *38.
40
in the first trial showed.64 Just as in the first trial, some evidence in the second trial
shows that Father had the children daily while Mother worked from 3:00 p.m. to
midnight, while other evidence shows that Father had the children only
―sometimes.‖65 And in the first appeal, we concluded that even if Father had the
children daily while Mother worked, the evidence was insufficient to terminate under
subsection (E).66 Also, as in the first trial, the evidence in the second trial shows
that when Father took care of H.B., he fed her table ―scraps‖, such as pizza, along
with milk.
Therefore, no additional evidence was introduced during the second trial to
change our determination that the evidence is factually insufficient to show that
Father‘s conduct after he and Mother separated endangered H.B. by causing or
contributing to her failure to thrive.67
TDFPS appears to argue that because Father and Mother did not separate
until July 2007, Father had sufficient contact with H.B. during April and May 2007,
when H.B. was falling off the growth chart, to tie his conduct to her failure to thrive.
Indeed, evidence that Father had regular contact with H.B. and that H.B. was falling
64
See A.B., 2010 WL 2977709, at *38.
65
See id. at *38 & n.71.
66
See id. at *38–39.
67
See Tex. Fam. Code Ann. § 161.001(1)(E); C.H., 89 S.W.3d at 28–29; A.B.,
2010 WL 2977709, at *38–39.
41
off the growth chart during this time period was admitted in both trials.68 However,
there is no evidence in the appellate record of either trial that Mother and Father
were not offering H.B. enough food at that time.69 Instead, the only evidence in this
regard is Father‘s testimony during the second trial that H.B. was eating normally
when Mother and Father were together.
While the jury could have reasonably inferred the requisite conduct based on
a diagnosis of failure to thrive due to malnutrition in April or May 2007, the jury did
not have evidence of such a diagnosis.70 Instead, the jury in the second trial had
testimony from both Wright and Dr. Lazarus that they would have needed to conduct
a series of tests before making a failure-to-thrive diagnosis at that time. Therefore,
no additional evidence was introduced during the second trial to change our
68
See A.B., 2010 WL 2977709, at *3.
69
Cf. In re A.H.A., No. 14-12-00022-CV, 2012 WL 1474414, at *8 (Tex. App.—
Houston [14th Dist.] Apr. 26, 2012, no pet.) (mem. op.) (noting that the children had
been going through the garbage cans looking for food and that the mother admitted
that rations tended to run very low toward the end of the month); In re H.N.H., No.
02-11-00141-CV, 2012 WL 117861, at *2 (Tex. App.—Fort Worth Jan. 12, 2012, no
pet.) (mem. op.) (stating that the mother endangered her child by failing to wake up
in time to feed her child before the child left for school).
70
See In re S.H.A., 728 S.W.2d 73, 86 (Tex. App.—Dallas 1987, writ ref‘d
n.r.e.) (inferring that parents did not properly feed child, despite little direct evidence
as to what foods they fed the child on a daily basis, when evidence included a
diagnosis of failure-to-thrive caused by malnutrition).
42
determination that the evidence is factually insufficient to show that Father‘s conduct
regarding H.B.‘s nutrition before he and Mother separated endangered H.B.71
The main evidentiary difference between the first and second trials is that
Wright and Dr. Lazarus supplemented their testimony during the second trial by
addressing the ways in which A.B.‘s and H.B.‘s physical and emotional well-being
had been endangered by their developmental delays. However, because there was
no new evidence that these developmental delays were the direct result of Father‘s
conduct,72 or that Father knowingly placed or allowed his children to remain in
conditions that endangered them, Wright‘s and Dr. Lazarus‘s testimony in this
regard did not support termination under subsection (D) or (E).73
Accordingly, viewing all the evidence and affording due deference to the jury
findings, we again hold that the evidence relating to H.B.‘s failure-to-thrive diagnosis
is factually insufficient to terminate Father‘s parental rights under subsection (D) or
(E) because a reasonable factfinder could not have formed a firm belief or conviction
that Father underfed H.B. or knowingly allowed her to be underfed.74
71
See Tex. Fam. Code Ann. § 161.001(1)(E); C.H., 89 S.W.3d at 28–29; A.B.,
2010 WL 2977709, at *38–39.
72
See M.C.T., 250 S.W.3d at 169.
73
See Tex. Fam. Code Ann. § 161.001(1)(D), (E).
74
See id.; H.R.M., 209 S.W.3d at 108.
43
2. Hostile Behavior
In our first opinion, we held that the evidence of A.B.‘s injuries was factually
insufficient to terminate Father‘s parental rights under subsection (D) or (E).75
Therefore, even if Father committed injury to a child—his criminal case was
dismissed after he successfully completed deferred adjudication community
supervision—TDFPS needed to offer additional evidence in the second trial to show
that Father engaged in a continuing course of conduct that endangered his
children‘s well-being.76
In the second trial, TDFPS did not show that Father had injured either of his
children on another occasion. Indeed, Dr. Shaw, the Cook Children‘s Hospital
emergency department physician who examined A.B. in July 2008, testified that
A.B.‘s skeletal survey showed no evidence of prior bone injuries and that he could
not tell whether A.B.‘s injuries happened at one time or at different times.
However, TDFPS argues that the incident involving A.B. is just one of many
examples of Father‘s hostile and violent course of conduct toward others—namely,
police officers and TDFPS caseworkers—under subsection (E).77 TDFPS contends
75
See A.B., 2010 WL 2977709, at *37.
76
See M.C.T., 250 S.W.3d at 169.
77
See Tex. Fam. Code Ann. § 161.001(1)(E); M.C.T., 250 S.W.3d at 169.
44
that both the children‘s observation of this behavior and Father‘s inability to control
or understand the effect of his behavior endangered the children‘s well-being.78
a. Conduct toward Police Officers
The only new evidence admitted in the second trial regarding Father‘s conduct
toward police officers is the testimony of Knox, the TDFPS investigator, that the
children were present when Father cursed at the officers at Cook Children‘s
Hospital. However, we could infer this fact when we addressed this issue in the first
appeal, based on evidence from the first trial that the children were at the hospital
and that Father was extremely loud.79 Indeed, we noted in our first opinion that
Brooks, the TDFPS investigator charged with investigating the July 2008 referral
regarding A.B., described Father as ―so aggressive and so loud and in your face‖
that on several occasions ―people had to come in and tell him to be quiet or they
were going to have him taken out of the hospital.‖80 Brooks even testified that this
behavior factored into her decision to remove the children that day.81 Therefore,
Knox‘s testimony about Father‘s conduct toward police officers was not new
evidence to support termination under subsection (E).
78
See Tex. Fam. Code Ann. § 161.001(1)(E).
79
See A.B., 2010 WL 2977709, at *13 & n.31.
80
See id. at *13 n.31.
81
See id. at *13 & n.31.
45
b. Conduct toward TDFPS
Father admitted in the second trial that he had a horrible relationship with
Groomer and that after trying to go through the proper channels and then having to
―bug‖ TDFPS by repeatedly calling, emailing, and going over Groomer‘s head, he
felt like he had to be aggressive, argumentative, and demanding toward TDFPS for
someone to give him an update or tell him what to do next. However, our first
opinion addressed evidence of Father‘s behavior toward TDFPS personnel,
evidence that the children witnessed his behavior, and evidence of how the children
responded to such behavior.82 Specifically, we described an instance in April 2009:
Father came to a visit while he was very agitated, walked straight
toward Groomer, started ranting and raving and shaking his finger in
her face, waved his arms, and screamed at her. Father said that
Groomer and the program director had lied to him about [TDFPS]‘s
plan for reunification. . . . Groomer said that Father stood over her
screaming, would not sit down, and would not calm himself even after
she and the security guard had requested that he calm down. The
children retreated to a corner because they appeared to be afraid of
him. Groomer became fearful for the children to be returned to Father
and decided that [TDFPS] should terminate Father‘s parental rights.
Groomer canceled Father‘s visitation for that day, and [TDFPS] did not
give a make-up visit. Groomer testified that in her seven and a half
years with [TDFPS], she had never seen anyone as upset as Father
was. He was so upset that it made her fearful or anxious.83
In the first trial, we decided that such conduct was not evidence of endangerment
under subsection (D) or (E).84 Moreover, we recognized that Father‘s contention
82
See id. at *21.
83
Id.
84
See id. at *40.
46
that various TDFPS workers had a vendetta against him was ―somewhat supported
by evidence in the record.‖85
The only new evidence in the second trial relevant to Father‘s conduct toward
TDFPS caseworkers is evidence regarding the frequency of his outbursts toward
them. Specifically, Trammell, the TDFPS aide who observed visitation, testified that
Father would act out on virtually every visit from October 2008 to June 2009.
However, it was apparent from the evidence in the first trial that Father acted this
way on numerous occasions: Groomer had testified that two TDFPS employees
were required to observe Father‘s visits and that this was appropriate because a
guard had intervened in the visits several times due to Father‘s behavior.86
Therefore, Trammell‘s testimony about the frequency of Father‘s outbursts toward
TDFPS employees was not new evidence to support termination under subsection
(E).
Because the second trial did not involve new evidence of Father‘s hostile
conduct, evidence of Father‘s conduct will again be factually insufficient to support
termination under subsection (E) absent new evidence that this conduct endangered
the well-being of his children.87
85
Id.
86
See id. at *21.
87
See Tex. Fam. Code Ann. § 161.001(1)(E).
47
c. Endangerment
Knox testified in the second trial that the children‘s observations of Father‘s
interactions with TDFPS endangered the children‘s well-being because it is
detrimental for a child to observe emotional abuse in a domestic violence situation.
Indeed, evidence of children‘s observations of domestic violence can be used to
support a finding of endangerment.88 However, as Trammell confirmed, Father
never directed his hostility toward his children during his TDFPS visits, and there is
no evidence that he directed it toward Mother either. While conduct need not be
directed at the child to constitute endangerment,89 Knox‘s testimony about the
effects of domestic violence is not evidence that Father‘s behavior toward TDFPS
endangered his children‘s well-being and therefore not evidence in support of
termination under subsection (E).90
TDFPS contends that Father‘s expression of his frustration with TDFPS
demonstrated low levels of impulse control, which endangered his children. Indeed,
we have held that an inability to control one‘s anger is some evidence of
endangering conduct.91 And Burdick, the Catholic Charities social worker who
88
See, e.g., In re C.J.O., 325 S.W.3d 261, 265–66 (Tex. App.—Eastland 2010,
pet. denied); In re M.R., 243 S.W.3d 807, 819 (Tex. App.—Fort Worth 2007, no
pet.).
89
See J.T.G., 121 S.W.3d at 125.
90
See A.B., 2010 WL 2977709, at *36.
91
See In re J.G.K., No. 02-10-00188-CV, 2011 WL 2518800, at *40 (Tex.
App.—Fort Worth June 23, 2011, no pet.) (mem. op.).
48
evaluated Father, testified that her 2009 report indicates that Father had low
functioning levels of impulse control. However, Dr. Ryan, who evaluated Father in
2011, and Trammell both testified that Father was able to control his behavior. And,
notably, Dr. Ryan did not even recommend anger management classes in 2011.
Therefore, even showing due deference to the jury findings as we must, we cannot
conclude based on the record that a reasonable jury could have formed a firm belief
or conviction that Father‘s behavior toward others was evidence of an inability to
control his anger that endangered his children under subsection (E).92
To the extent that TDFPS claims that Father‘s low levels of insight
endangered his children, we reject this argument as well. Burdick determined in
2009 that Father had low levels of insight, and Dr. Ryan agreed but noted that
Father‘s insight somewhat improved by 2011. Burdick testified that, in general,
being low functioning in insight could have an endangering effect on the well-being
of one‘s children. However, Dr. Ryan clarified that whether lack of insight
endangers one‘s children depends on what the problematic behavior is, with illegal
drug use being an example of a problematic behavior about which lack of insight
could endanger a child. Dr. Ryan‘s report noted that everyone has problematic
behavior, that Father did not use drugs or consume alcohol, and that Father‘s
problematic behaviors were the disorders with which he had been diagnosed.
92
See C.H., 89 S.W.3d at 28–29.
49
As for Father‘s bipolar disorder, Dr. Ryan said that this disorder does not
prevent someone from being a good parent, that Father‘s bipolar disorder was in
partial sustained remission, and that Father did not present as a dangerous person.
Similarly, there is also no evidence that Father‘s adjustment disorder in any way
endangered the children; rather, Dr. Ryan diagnosed Father with this disorder and
recommended counseling because of Father‘s separation from his children. The
only medication that Dr. Ryan recommended was medication to treat Father‘s
attention deficit disorder, and there is no evidence that this disorder, his chronic
motor tick disorder, or his GAF score endangered his children‘s well-being.
Because Dr. Ryan did not testify that Father‘s low level of insight exposed his
children to injury,93 and because Burdick merely testified about a threat of
metaphysical injury,94 a reasonable jury could not have formed a firm belief or
conviction that Father‘s problem with understanding how his behavior affected
others endangered his children‘s well-being.95
Accordingly, based on our review of the entire record and applying the
appropriate standard of review, we hold that the evidence of Father‘s hostility is
factually insufficient to support the termination of his parental rights under
subsection (E) because a reasonable factfinder could not have formed a firm belief
93
See Boyd, 727 S.W.2d at 533.
94
See id.
95
See C.H., 89 S.W.3d at 28–29.
50
or conviction that Father‘s behavior toward others in front of his children or his low
functioning levels of insight and impulse control endangered his children‘s well-
being.96
3. Condition of Father’s Homes
First, TDFPS points to the condition of Father and Mother‘s Missouri trailer.
The scant evidence in the record regarding MDSS‘s first contact with the family in
June 2005 is ―6/26/05 Assessment for abrasions, unsanitary living conditions that
was concluded Services needed linked initial 30 days.‖ That brief reference does
not provide any proof of unsanitary conditions. Further, there is no evidence that
MDSS found that A.B. was in the trailer in December 2005 when MDSS found it to
be unsanitary, without heat, and immediately threatening to A.B. Instead, as TDFPS
recognizes, the evidence shows that Father, Mother, and A.B. were not staying in
their trailer at the time but had moved to trailers that met MDSS‘s minimum
standards.
As evidence of endangerment after the family moved to Texas, TDFPS points
to Porter‘s depiction of the condition of Father‘s first apartment in October 2007.
Porter testified that although Father was not home on October 9, 2007, she could
smell a strong odor of animal feces coming from inside. Porter testified that the
following day, she entered the apartment and smelled an odor of animal feces and
urine, observed stains and animal excrement on the floor, saw bugs in areas of the
96
See Tex. Fam. Code Ann. § 161.001(1)(E); H.R.M., 209 S.W.3d at 108.
51
home including the refrigerator and the freezer, and noticed that the walls were
ripped up.
While Porter testified that such an environment is dangerous to young children
who put things in their mouths, Porter said that she did not know what the condition
of Father‘s apartment was when the children were there, and there is no evidence of
either child being at Father‘s apartment during this time period. Indeed, the
evidence shows that Father was not even home from Monday, October 3, when the
bus was able to take him to the hospital to see H.B., until Monday, October 10,
when the bus, which did not operate on the weekend, was able to take him home
after H.B.‘s Sunday, October 8 release. Instead, the evidence suggests that this
situation was much like the one in Missouri—one in which the animals nearly
destroyed the home while the family was out of the home for an extended period of
time and unable to return.
Furthermore, no evidence suggests that these same animal-related problems
pervaded Father‘s home again. When Porter visited Father on October 10, Father
told her that he had already contacted the city pound about his inability to take the
animals anywhere without a car. And Father had only one pet, a cat, for which he
had a litter box, by the time his children were returned on June 10, 2008, the day
that he moved into his second apartment. Indeed, Father testified that he never had
more than one animal in his second apartment.
TDFPS also points to Cornelius‘s testimony that she smelled a strong odor of
animal feces in Father‘s apartment when she visited in October 2007. We note that
52
Cornelius also said that she could feel fleas biting her legs, that she saw roaches,
and that she observed stains on the carpet and dirty water and dirty dishes in the
dishwasher. Because no evidence suggests that the children lived in or visited
Father‘s apartment in October 2007, though, neither Porter‘s nor Cornelius‘s
testimony about the condition of Father‘s apartment at that time is evidence that the
children were exposed to harm.97
While TDFPS does not mention this evidence, we note that TDFPS
Investigator Cornelius testified in the second trial that during her visits to Father‘s
apartment on June 17 and June 27, 2008, when the children were present, she saw
―kind of old food‖ and trash on the floor. But like one of the witnesses in the first
trial, Cornelius did not explain how the children would be harmed by the mess or
clutter that she observed.98 For instance, she did not testify that the children, who
were in the bedroom with the door shut, were crawling around on the living room
floor, had access to the food, were putting dangerously old food in their mouths, or
were endangered by trash on the floor.99 Therefore, like the witness‘s testimony in
97
See Boyd, 727 S.W.2d at 533.
98
See A.B., 2010 WL 2977709, at *39.
99
Compare M.C., 917 S.W.2d at 270 (holding that the evidence of
endangerment was legally sufficient when, in part, children ate food off the floor and
out of the garbage), with In re J.R., 171 S.W.3d 558, 573 (Tex. App.—Houston [14th
Dist.] 2005, no pet.) (holding that the evidence of endangerment was factually
insufficient when, in part, the witness did not state what kind of knife she found on
the floor, how long the knife had been there, or whether the children had access to
it).
53
the first trial, Cornelius‘s testimony is not factually sufficient evidence of
endangerment under subsection (D) or (E).100
TDFPS also points to the condition of Father‘s second apartment from
September 28 to November 16, 2010. During that time period, Father received
lease violations for unhealthy and unsanitary living conditions and for poor
housekeeping, pest control instructed Father to clean his apartment before they
would treat it for a roach infestation, and maintenance workers refused to make
repairs in Father‘s apartment until he cleaned his floors. However, this evidence of
the conditions during fall 2010 was not evidence that these conditions existed in
Father‘s apartment when the children lived there in June and July 2008. Indeed,
Coaxum testified that she had no record of unsanitary living conditions in Father‘s
apartment during that time period. Because the children did not live in or visit
Father‘s apartment during fall 2010 and had not done so for several months,
evidence of the apartment‘s condition during fall 2010 was not evidence that the
children were exposed to harm.101
Next, TDFPS points us to the testimony of Perez, who described Father‘s
apartment from July to October 2009 as ―generally cluttered‖ and ―very unclean‖ and
opined that Father‘s apartment was not an appropriate place for children to live
―primarily because there [wa]s a very strong odor from the litter box.‖ Also, Perez
100
See Tex. Fam. Code Ann. § 161.001(1)(D), (E); H.R.M., 209 S.W.3d at
108; A.B., 2010 WL 2977709, at *39.
101
See Boyd, 727 S.W.2d at 533.
54
noted that she detected the litter box odor as well as human body odor in January
2011.
We decided in our first opinion that evidence of Father‘s body odor is not
evidence of endangerment under subsection (D) or (E).102 And we need not decide
whether there is a point at which the odor from a litter box becomes grounds for
termination because Perez testified that the children did not live with Father at the
time that she detected the odor. Therefore, Perez‘s testimony about the condition of
Father‘s apartment is not evidence that the children were exposed to harm.103
Accordingly, applying the appropriate standard of review, we hold that
evidence of the condition of Father‘s homes is factually insufficient to support
termination of Father‘s parental rights under subsection (D) or (E) because a
reasonable factfinder could not have formed a firm belief or conviction that the
children were present in Father‘s homes when the unsanitary conditions were
reported in 2007, 2009, 2010, and 2011 or that the children were endangered by the
conditions that existed when they did live in the home in June and July 2008.104
102
See A.B., 2010 WL 2977709, at *40.
103
See Boyd, 727 S.W.2d at 533.
104
See Tex. Fam. Code Ann. § 161.001(1)(D), (E); H.R.M., 209 S.W.3d at
108.
55
4. Other Evidence
a. Rains
The evidence shows that Rains, whom Father identified as his girlfriend and
roommate, was convicted of committing bodily injury to an elderly person after
injuring her grandmother while trying to protect her daughter. Father testified that
his children would be safe around Rains, and Perez, the only other person who
testified on this particular matter, said that she could not determine whether the
children would be safe around Rains because Perez had never seen Rains interact
with children. Without evidence that Rains would expose the children to injury,
Rains‘s potential presence in Father‘s apartment upon the children‘s return is not
evidence of endangerment under subsection (D) or (E).105
b. Online activities
Just as Father‘s involvement with adult websites did not factor into our
decision in the first case, it does not factor into our decision in this case.106 While
new evidence of Father‘s online activities was introduced in the second trial, there is
no evidence, just as there was not in the first trial, that the children were exposed to
harm.107 Without evidence that the children were exposed to any danger stemming
105
See Tex. Fam. Code Ann. § 161.001(1)(D), (E); Boyd, 727 S.W.2d at 533.
106
See A.B., 2010 WL 2977709, at *29–30.
107
See id. at *29.
56
from Father‘s online activities,108 this evidence is not evidence of endangerment
under subsection (D) or (E).109
5. Conclusion
Applying the appropriate standard of review, the volume of disputed
evidence—set forth extensively above—that a reasonable factfinder could not have
credited in favor of subsection (D) or (E) findings is so significant that a factfinder
could not reasonably have formed a firm belief or conviction of the truth of the
allegations that Father violated subsection (D) or (E).110 Therefore, the evidence is
factually insufficient to support termination of Father‘s parental rights under
subsection (D) or (E).111 Accordingly, we sustain the remaining portions of Father‘s
first and second points.
III. Best Interest
In his third point, Father challenges the legal and factual sufficiency of the
evidence to support the jury‘s finding that it was in his children‘s best interest to
terminate his parental rights. Because we have concluded that the evidence is
factually insufficient to support termination under subsection (D) or (E), we need not
address whether the evidence to support the jury‘s best interest finding is factually
108
See Boyd, 727 S.W.2d at 533.
109
See Tex. Fam. Code Ann. § 161.001(1)(D), (E).
110
See H.R.M., 209 S.W.3d at 108; C.H., 89 S.W.3d at 28–29.
111
See Tex. Fam. Code Ann. § 161.001(1)(D), (E).
57
sufficient.112 However, because a holding of legally insufficient evidence to support
the jury‘s best interest finding would entitle Father to greater relief than he is
afforded under our factual insufficiency holding, we shall address his contention that
the evidence is legally insufficient to support the jury‘s best interest finding.113
Much of the same evidence that supported the best interest finding in the first
trial was also admitted into evidence during the second trial.114 Specifically, the
evidence shows that the children exhibited developmental delays, especially A.B.,
who is considered ―special needs.‖ Additionally, the evidence questions Father‘s
ability to provide minimally adequate healthcare, nutrition, and a safe physical home
environment as well as his ability to understand his children‘s needs. The evidence
also shows that Rains, who may very well live in Father‘s home upon the children‘s
return, has a history of assaultive conduct. Additionally, the evidence shows that the
children demonstrated physical and mental improvement while they were in foster
care, that J.H. and G.H. provide the children with a safe, nurturing environment, that
the children call J.H. and G.H. ―[M]ommy‖ and ―[D]addy,‖ and that J.H. and G.H.
would like to adopt the children if Father‘s parental rights are terminated.
112
See Tex. R. App. P. 47.1.
113
See A.B., 2010 WL 2977709, at *41.
114
See Tex. Fam. Code Ann. § 263.307(b) (West 2008); A.B., 2010 WL
2977709, at *42.
58
Therefore, viewing the evidence in the light most favorable to the judgment,
we hold, as we did in our first opinion, that the evidence is legally sufficient to
support the jury‘s best interest finding.115 We overrule Father‘s third point.
IV. Intervention
In his fourth point, Father claims that the trial court erred by allowing G.H. and
J.H. to intervene in the termination suit because (1) they should not have been able
to gain standing after the trial court wrongfully terminated his parental rights and (2)
intervention by foster parents violates a parent‘s due process rights. As we have
previously explained,
The standard of review for determining whether the trial court
improperly denied a motion to strike intervention is abuse of discretion.
To determine whether a trial court abused its discretion, we must
decide whether the trial court acted without reference to any guiding
rules or principles; in other words, we must decide whether the act was
arbitrary or unreasonable.
In 1995, the Texas Legislature passed new laws specifically
implicating the ability of foster parents to be heard in trial court
regarding their foster children. Foster parents now have two avenues
to the courthouse. First, foster parents can bring an original suit
affecting the parent child relationship (SAPCR) if the child has lived
with the foster parents ―for at least [twelve] months ending not more
than [ninety] days preceding the date of the filing of the petition.‖ Tex.
Fam. Code Ann. § 102.003(a)(12) (Vernon Supp.20[12]).
Second, foster parents who have not had possession of the child
for at least twelve months ninety days before they file suit may
nevertheless intervene in a SAPCR brought by someone with standing
if the foster parents can demonstrate that they have had substantial
past contact with the child. Id. at § 102.004(b).
115
See Tex. Fam. Code Ann. § 263.307(b); J.P.B., 180 S.W.3d at 573; A.B.,
2010 WL 2977709, at *42.
59
The substantial past contact test established by section
102.004(b) for foster parent intervenors was a dramatic change from
the traditional intervenor standing requirement. For several years, the
Texas Supreme Court case of Mendez v. Brewer dominated the
jurisprudence of when foster parents could intervene in termination
proceedings. In Mendez, foster parents planning on adopting the child
if parental rights were terminated sought to intervene in a termination
suit. The court looked to [former] section 11.03 of the Texas Family
Code, which . . . read: ―A suit affecting the parent-child relationship may
be brought by any person with an interest in the child.‖ Based on this
statute, the court in Mendez established a ―justiciable interest‖ standard
for intervenors. Applying this standard to the foster parents, the
Mendez court held that their interest was wholly contingent on the
outcome of the termination suit—an interest that was too weak to be
justiciable.
Since Mendez, however, the Texas Legislature has passed
section 102.004, which, as discussed above, creates the new, more
relaxed substantial past contact test for establishing intervenor
standing in a SAPCR. Thus, a party who cannot file a SAPCR under
the Mendez ―justiciable interest‖ standard may nonetheless intervene in
a suit filed by a qualified party under the statutory ―substantial past
contact‖ standard.
Sound policy supports the relaxed standing requirements. There
is a significant difference between filing a suit which could disrupt the
children‘s relationship with their parents, and intervening in a pending
suit, where the relationship is already disrupted. In the latter case,
intervention may enhance the trial court‘s ability to adjudicate the cause
in the best interest of the child.
Other courts have evaluated cases in which foster parents
sought to intervene in termination proceedings. In one case, a
seventeen-month-old child had lived with the foster parents for fourteen
months of her life. The foster parents had decided to adopt the child if
the mother‘s parental rights were terminated. The appellate court held
that, under section 102.004, the trial court did not abuse its discretion in
allowing the foster parents to intervene in the termination suit because
the foster parents had had substantial past contact with the child.
The foster parents in this case had two avenues to be heard by
the court—either as petitioners or intervenors. N.L.G. came to the
foster parents in April 2005 and continuously remained with them
60
through the termination hearing in September 2006. Therefore, under
section 102.003(a)(12), the foster parents could have brought an
original suit affecting the parent-child relationship concerning N.L.G.
The foster parents in this case, however, chose the second
method available to them as intervenors in the suit brought by the
State. As intervenors, the foster parents had to provide the trial court
with grounds for a finding of substantial past contact with N.L.G. At the
time of the hearing on Sarah‘s motion to strike, the child had lived with
the foster parents for her entire life, excluding the first seven days
following her birth. Furthermore, the foster parents had become
emotionally attached to the child and had decided to adopt her if
Sarah‘s parental rights were terminated. The intervenors made the trial
court aware of these facts through their motion to intervene and the
hearing on that motion.116
Father argues that our reversal of the first termination order should somehow
cancel out all but three and a half months of the time that that the children have
been with G.H. and J.H.; that is, he argues that the trial court should not have
considered the eighteen-month period from June 8, 2009, when the first trial began,
until December 9, 2010, when G.H. and J.H. intervened, in deciding the standing
issue.
We decline to invade the province of the legislature by injecting new
requirements into the statute.117 We also reject Father‘s arguments portraying this
case as a dispute between parents and foster parents and neglecting the policy of
116
In re N.L.G., 238 S.W.3d 828, 829–31 (Tex. App.—Fort Worth 2007, no
pet.) (selected citations omitted).
117
See Atmos Energy Corp. v. Cities of Allen, 353 S.W.3d 156, 162 (Tex.
2011).
61
acting in the children‘s best interest.118
Finally, Father‘s argument ignores the trial court‘s order in the first trial naming
TDFPS as the children‘s permanent management conservator (PMC) and the
related findings that ―the appointment of either parent as Managing Conservator
would not be in the best interest of the children because the appointment would
significantly impair [their] physical health or emotional development‖ and that the
appointment of TDFPS would be in the children‘s best interest. Neither the findings
nor the designation of TDFPS as the children‘s PMC was disturbed by our first
opinion.119 Because TDFPS placed the children in G.H. and J.H.‘s care and left
them in that foster home after being designated their PMC, there is no taint on the
period of more than twenty one-months that G.H. and J.H. fostered the children
before intervening in the termination suit. We hold that the trial court did not abuse
its discretion by considering all the time the children have been with G.H. and J.H.
and allowing the intervention.
As to Father‘s due process argument, we find our sister court in Tyler‘s
analysis instructive:
[The parents] contend that [former] Chapters 11 and 15 of the
T[exas] F[amily] C[ode] violate the constitutionally protected right to
integrity of the family insofar as they allow a party other than the state
to seek the termination of the natural parents‘ parental rights.
118
See N.L.G., 238 S.W.3d at 830.
119
See In re J.A.J., 243 S.W.3d 611, 612–13 (Tex. 2007).
62
The right to marry, to establish a home and bring up children is a
fundamental liberty interest protected by the fourteenth amendment.
The natural parents‘ fundamental liberty interest in the care, custody
and management of their child is not lost because they have not been
model parents or have lost temporary custody of their child to the state.
A compelling governmental interest must exist in order to justify state
interference with the parent-child relationship. The appellants maintain
that there is no compelling state interest that would allow parties other
than the state to seek a termination of parental rights.
The compelling state interest at stake in parental rights
termination proceedings is a parens patriae interest in preserving and
promoting the welfare of the child. It is undoubtedly true that the
parens patriae interest favors preservation, not severance, of natural
familial bonds. Although favoring the preservation of the natural
familial bond, it does not mandate such a result where clear and
convincing proof shows that this would not be in the best interest of the
child. The determination of what is in the child‘s best interest requires
a fact finding by procedures that promote an accurate determination of
whether the natural parents can and will provide an adequate and
stable home.
When a conflict arises between the individual‘s protected interest
under the fourteenth amendment and the countervailing compelling
state interest, the individual is protected by the due process guarantee
of the amendment. But in a case, such as this one, in which due
process unquestionably applies, the question remains what process is
due. Due process is flexible and calls for such procedural protections
as the particular situation demands. The fundamental requirement of
due process is the opportunity to be heard ―at a meaningful time and in
a meaningful manner.‖ ―All that is necessary is that the procedures be
tailored, in light of the decision to be made, to ‗the capacities and
circumstances of those who are to be heard.‘‖ In Mathews, the
Supreme Court set out three factors which must be considered in
identifying the specific dictates of due process.
First, the private interest that will be affected by
official action; second, the risk of an erroneous deprivation
of such interest through the procedures used, and the
probable value, if any, of additional or substitute
procedural safeguards; and finally, the Government‘s
interest, including the function involved and the fiscal and
63
administrative burdens that the additional or substitute
procedural requirement would entail.
In arguing that the state must show a compelling interest to allow
suits for termination by persons other than the state, the appellants
confuse the nature of the private, protected interest entitled to due
process protection with a procedural characteristic of the Texas
process. Clearly, there need not be a compelling state interest for each
detail of the process due. In our view, the provision for suits for
termination by persons ―whom the court determines to have had
substantial past contact with the child sufficient to warrant standing to
do so‖ does nothing to diminish the appellants‘ due process protection.
Many states give standing to persons other than the state to bring
termination suits. Foster parents have standing to bring such actions in
at least eight other states. Texas courts have long recognized that
parental custodial rights come within the protection of the due process
clauses of the federal and state constitutions. ―In cases of this kind the
question of the fairness of the hearing is always present and has been
jealously guarded by the courts.‖ The state‘s right to intervene to
protect dependent or neglected children was recognized long before
the advent of state supported child welfare agencies. Before the
passage of the F[amily] C[ode], under the statutes pertaining to
dependent and neglected children, private persons customarily initiated
suits to declare a child dependent and neglected. Common sense
argues that the fairness and accuracy of the fact-finding process would
be served by granting standing to those among the most intimately
concerned with the child‘s welfare.
The appellants were provided counsel and interpreters, a trial of
the issues in which the burden of proof borne by their adversaries was
by a clear and convincing evidence standard. The foster parents were
required to prove not only the best interests of the child, but also the
natural parents‘ misconduct. In this case, the natural parents were
extensively helped by TDHS in an attempt to improve their marginal
child rearing capabilities. The appellants‘ due process rights were not
violated by the procedure provided by the T[exas] F[amily] C[ode].120
Like the birth parents in Rodarte, Father had appointed counsel and a jury trial
120
Rodarte v. Cox, 828 S.W.2d 65, 79–80 (Tex. App.—Tyler 1991, writ denied)
(citations omitted).
64
in which the appellees had the burden of proving the grounds for termination by
clear and convincing evidence. We therefore likewise hold that allowing the foster
parents to intervene did not violate Father‘s rights to due process.
Further, unlike Rodarte, Father has been successful on appeal. Our reversal
of this second termination order removes the foster parents as joint managing
conservators because the trial court did not make independent conservatorship
findings in this order.121 Thus, Father is in exactly the position he was in before the
intervention—TDFPS is the PMC of the children and has placed them with G.H. and
J.H. Consequently, even if the intervention had violated Father‘s rights to due
process, he can show no harm. We overrule Father‘s fourth issue.
V. Impeachment
In his fifth point, Father argues that the trial court erroneously denied him the
right to fully cross-examine Burdick by preventing him from impeaching her
regarding her bias against him. Specifically, Father argues that the trial court gave
the jury a false impression and violated his right to a full cross-examination by
redacting from Burdick‘s report her mention of his polygraph examination and her
comment that he wasted his money by obtaining a polygraph examination. But
Father agreed to and the trial court granted a motion in limine that prohibited ―[a]ny
reference to polygraph results or the taking of a polygraph examination.‖ He
therefore cannot now complain of the exclusion of the polygraph evidence on
121
See In re D.N.C., 252 S.W.3d 317, 319 (Tex. 2008).
65
appeal.122
Accordingly, we overrule Father‘s fifth point.
VI. Conclusion
Having determined that the evidence is factually insufficient to terminate
Father‘s parental rights under subsections (D) and (E) of section 161.001(1) of the
family code and having overruled his other points, we reverse the trial court‘s
judgment and remand the case to the trial court for a new trial.
LEE ANN DAUPHINOT
JUSTICE
PANEL: DAUPHINOT, WALKER, and MCCOY, JJ.
MCCOY, J., dissents without opinion.
DELIVERED: September 13, 2012
122
See In re A.S.Z., No. 02-07-00259-CV, 2008 WL 3540251, at *2 (Tex.
App.—Fort Worth Aug. 14, 2008, no pet.) (mem. op.); McLendon v. McLendon, 847
S.W.2d 601, 609 (Tex. App.—Dallas 1992, writ denied) (holding that because father
agreed to the omission of specific periods of possession, he cannot complain on
appeal that the failure to grant him specific terms is reversible error).
66