in the Interest of A.B. and H.B., Children ( 2010 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-09-215-CV
IN THE INTEREST OF A.B.
AND H.B., CHILDREN
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FROM THE 322ND DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION 1
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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
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
1
… See Tex. R. App. P. 47.4.
2
… For ease of reading, these subsections are hereinafter referred to
simply as “(D)” and “(E).”
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. F ACTUAL B ACKGROUND3
A. Mother and Father’s Marriage 4 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.
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.
2
1. Mother’s Testimony 5
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.
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
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
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.
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.”
4
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
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.
5
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
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.
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.”
6
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 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
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.
7
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
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.”
8
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
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.
9
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.
10
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.
11
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 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
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.
12
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.
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
13
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. 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
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.
14
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.
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,
15
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 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
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.
16
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.
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.
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.
17
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
18
that he was going to court to file for child support because he kept the children
most of the time 15 (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
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.
19
transferred to a room. Father stayed at the hospital continuously while H.B.
was there.
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.
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.
20
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 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
21
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 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
22
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.
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.
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.
23
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
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
24
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 remember whether she pressed it any further. Mother admitted that she
was instructed not to have contact with Father until she completed her
services.
25
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.
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.”
26
O. Mother’s Domestic Violence Incident
1. Mother’s Testimony
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
27
to escort her out of the apartment. On the way out of the bedroom, Mother
tried to break out of Father’s 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
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.
28
“probably at a higher level” than what she considered to be normal for people
in his situation.
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
22
… At that time, Father had moved into the Woodhaven apartment
complex in east Fort Worth.
29
dirty diapers.23 Barker pointed out the dirty diapers and told Father to change
them; he complied.
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
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.”
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.”
30
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 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
26
… Barker testified that this was only the second time in her twelve years
with the VOA that she had to report abuse.
31
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.
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.
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.
32
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 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
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.
33
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
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
34
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
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
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.
35
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
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.
36
placement 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-mails 33 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
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.
37
the phone that his case had “moved on.” Brooks described Father as “unique”
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
38
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 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
39
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 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
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.
40
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 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
41
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 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
42
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 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
43
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 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.
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.
44
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.
45
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.
46
6. Mother’s Testimony
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
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.
47
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.
S. Father’s Second Round of Services 38
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
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.
48
evaluation, a psychological consultation by Dr. Parnell Ryan,40 and a drug and
alcohol assessment.41
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.
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.”
42
… Father said that he was appealing his conviction for injury to a child
and that it would be overturned.
49
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
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
43
… Groomer said that the services on Father’s plan were actually offered
back in August 2008.
50
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 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.
51
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 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
44
… Father gave Burdick some paperwork showing that he had been
diagnosed with a personality disorder.
52
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 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
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.
53
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
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
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.
54
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 him, but CPS is not willing to give him a chance.
55
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.
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.
56
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 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
57
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.
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
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.
58
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.
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
59
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 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
60
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 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
61
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
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
62
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
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.
63
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 supplemental condition that there be no
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.
64
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
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.
65
not consult with a physician prior to altering his medication schedule and has
since 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
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.
66
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 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
67
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.
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.
68
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.
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.
55
… Oldham later reiterated in his testimony that Father was up for a
review, not a mandatory release, in September 2009.
69
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 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.
70
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 clearly 56 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. 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
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.
71
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 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
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.
72
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.
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started 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 diaper 59 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.
74
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
75
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., 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
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said that he has concerns about the children’s safety if they are returned to
Father.
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.
77
V. Father’s Environment
1. Mother’s Testimony
Mother said that Father’s apartment smelled like dogs 60 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.
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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
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.
79
his SSI and that he is going to work full-time after he completes technical
school; he 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.
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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
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
81
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 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 rights 63 because she
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
82
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, 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
“deal” with CPS concerning her unborn child. The details of any such “deal”
were not made part of the record.
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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 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
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.
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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, 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
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.
85
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.
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
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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. C ONDUCT AND E NVIRONMENTAL E NDANGERMENT
In his second and third issues, Father argues that there is no evidence or
factually insufficient to establish (D) and (E) termination grounds. Specifically,
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
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.
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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 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
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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
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.,
89
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
90
must determine whether, on the entire record, a factfinder could reasonably
form a firm conviction 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
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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, 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
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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 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.
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.
93
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 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
68
… The underfeeding is also supported by the children’s eating habits
that were witnessed by the foster parents.
94
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.
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
95
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. 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
96
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 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
97
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 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
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.
98
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 that Father engaged in an endangering
course of conduct from June 10, 2008 to July 8, 2008.
99
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
70
… H.B.’s failure-to-thrive diagnosis occurred when she was taken to the
hospital by the paramedic.
100
never told of 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
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.”
101
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).
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
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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 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
103
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 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
104
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).
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.
105
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.
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
106
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 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
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).
107
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. L EGALLY S UFFICIENT E VIDENCE E XISTS S UPPORTING B EST INTEREST F INDING
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 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.
108
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;
(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;
109
(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.
110
Id. § 263.307(b); R.R., 209 S.W.3d at 116.
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.
111
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 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
112
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.
V. D UE P ROCESS R IGHTS W ERE N OT V IOLATED B Y D ENIAL OF E XPERT W ITNESS F EES
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
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
113
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 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
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.
114
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
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
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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.
VI. C ONCLUSION
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
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