CPS = Child Protective Services; cases now litigated in name of Texas Department of Family & Protective
Services (
TDFPS or Texas DFPS); Also see --> Austin DFPS cases (Third Court of Appeals) Appeals
from Texas DFPS suits seeking termination of parental rights (Austin, TX)
Terminology: child abuse, child neglect | best interest of child | parenting skills | parenting plan | drugs
use | best interest factors | parenting plan | relinquishment | appointment of sole managing conservator
(SMC) | Also see -->
Termination of employee (Labor and employment law and litigation)

2008 APPELLATE CASES

In Interest of SN, SMN, DAN (Tex.App.- Houston [14th Dist.] Oct 14, 2008)(Yates)
(
termination, constitutionality TFC § 263.405, statement of points for appeal 15 day deadline)
AFFIRMED: Opinion by
Justice Brock Yates  
Before Justices Brock Yates, Anderson and Brown
14-07-00161-CV In the Interest of S.N., S.M.N., D.A.N., Children
Appeal from 314th District Court of Harris County

Lopez v. DFPS (Tex.App.- Houston [1st Dist.] Sep. 25, 2008)(Higley)
(termination of parental rights reversed, appointment of CPS as SMC affirmed)
AFFIRM TC JUDGMENT IN PART, REVERSE TC JUDGMENT IN PART, AND RENDER JUDGMENT:
Opinion by Justice Higley
Before Chief Justice Radack, Justices Nuchia and Higley
01-08-00111-CV Hector Israel Lopez v. Department of Family and Protective Services
Appeal from 313th District Court of Harris County
Trial Court Judge: Hon. Pat Shelton  

DFPS v. Dickensheets (Tex.App.- Houston [1st Dist.] Sep. 11, 2008)(Keyes)
(CPS child protection SAPCR suit, constitutional challenge to deadline, separations of powers doctrine)
AFFIRM TC JUDGMENT: Opinion by
Justice Keyes  
Before Chief Justice Radack, Justices Keyes and Higley
01-07-00584-CV        Department of Family and Protective Services v. Travis Reid Dickensheets, et al
Appeal from 300th District Court of Brazoria County
Trial Court Judge:  Hon. K. Randal Hufstetler

In Interest of RS (Tex.App.- Houston [14th Dist.] Aug. 28, 2008)(per curiam)
(
interlocutory appeal of temporary order in SAPCR termination suit not authorized, DWOJ)
DISMISSED: Per Curiam  
Before Chief Justice Hedges, Justices Guzman and Brown
14-08-00598-CV        In the Interest of R.S.
Appeal from
310th District Court of Harris County

In Interest of CMC, CEC, GLC (Tex.App.- Houston [14th Dist.] Aug. 28, 2008)(Brown)  
(termination of parental rights of alleged father reversed)
AFFIRMED IN PART; REVERSED & REMANDED IN PART: Opinion by Justice Brown  
Before Justices Brock Yates, Guzman and Brown
14-07-00881-CV        In the Interest of C.M.C., C.E.C., G.L.C.
Appeal from 314th District Court of Harris County

In the Interest of CJ (Tex.App.- Houston [14th Dist.] July 10, 2008)(Hedges)
(termination of parental righs)
AFFIRMED: Opinion by Chief Justice Hedges  
Before Chief Justice Hedges, Justices Hudson and Boyce
14-07-00838-CV        In the Interest of C.J., a child
Appeal from 311th District Court of Harris County
Trial Court
Judge: Hon. Doug Warne

In the Interest of CMJ (Tex.App.- Houston [14th Dist.] July 10, 2008)(Hedges)
(termination of parental rights)
AFFIRMED: Opinion by Chief Justice Hedges  
Before Chief Justice Hedges, Justices Hudson and Boyce
14-07-00839-CV        In the Interest of C.M.J., a Child
Appeal from
311th District Court of Harris County
Trial Court Judge:  Hon. Doug Warne

Alexander v. DFPS (Tex.App.- Houston [1st Dist.] June 26, 2008) (subst. opinion by Hanks)
(termination of parental rights)
AFFIRM TC JUDGMENT IN PART, REVERSE TC JUDGMENT IN PART, AND RENDER JUDGMENT:
Opinion by Justice Hanks  
Before Justices Taft, Hanks and Higley
01-07-00160-CV  Paul Alexander and Shde Hurst v. Department of Family and Protective Services
Appeal from 314th District Court of Harris County
Trial Court Judge: Hon. John Phillips

In re Walker (Tex.App.- Houston [1st Dist.] June 30, 2008)(Jennings)
(termination of parental rights, mandamus against denial of motion to dismiss suit after dismissal deadline
had passed)
GRANT PETITION FOR WRIT OF MANDAMUS: Opinion by Justice Jennings
Before Justices Taft, Jennings and Bland
01-08-00348-CV        In re Kristal Timish Walker a/k/a Kristal Timisha Walker
Appeal from 314th District Court of Harris County
Trial Court Judge: Hon. John Phillips
Having held that the trial court clearly abused its discretion in not dismissing TDFPS's suit and that Walker does not have
an adequate remedy by appeal, we conditionally grant the writ of mandamus and direct the trial court to dismiss TDFPS's
suit against Walker. A writ from this Court will issue only if the trial court does not comply.
Dissent by Justice Keyes (issued July 1, 2008)

Smith v. DFPS (Tex.App.- Houston [1st Dist.] June 19, 2008)(Higley) (termination of parental rights -
drugs) AFFIRM TC JUDGMENT: Opinion by Justice Higley  
Before Chief Justice Radack, Justices Keyes and Higley
01-07-00648-CV Earl Clarence Smith aka Clarence Earl Smith v. Department of Family and Protective
Services
Appeal from 314th District Court of Harris County
Trial Court Judge: Hon. John Phillips

Smith v. DFPS (Tex.App.- Houston [1st dist.] June 12, 2008)(per curiam) (grant of motion for new trial
moots appeal,
record transferred to subsequent appeal from final judgment)
DISMISS APPEAL: Per Curiam  
Before Chief Justice Radack, Justices Keyes and Higley
01-07-00112-CV        Earl Clarence Smith aka Clarence Earl Smith v. Department of Family and
Protective Services
Appeal from 314th District Court of Harris County
Trial Court Judge: Hon. John Phillips

Lumpkin v. DFPS (Tex.App.- Houston [1st Dist.] June 12, 2008)(Higley)
(
termination of parental rights, drugs, frivolous appeal)
AFFIRM TC JUDGMENT: Opinion by Justice Higley  
Before Chief Justice Radack, Justices Keyes and Higley
01-07-00560-CV    01-07-00561-CV      01-07-00706-CV
Derrick Lumpkin, Sr. and Geneva Herrera v. Department of Family and Protective Services
Appeal from 257th District Court of Harris County
Trial Court
Judge: The Honorable Judy L. Warne

Bermia v. DFPS (Tex.App.- Houston [1st Dist.] Apr. 3, 2008)(Keyes) (termination of parental rights,
ineffective counsel)
AFFIRM TC JUDGMENT: Opinion by Justice Keyes
Before Justices Taft, Keyes and Alcala
01-07-00699-CV Lisa Bermia v. Department of Family and Protective Services
Appeal from County Court at Law of Washington County
Trial Court Judge: Hon. Matthew Reue  

Huepers. v. Thompson (Tex.App.- Houston [1st Dist.] Mar. 27, 2008)(Alcala)
(termination of parent's rights)
AFFIRM TC JUDGMENT: Opinion by Justice Alcala
Before Justices Taft, Keyes and Alcala
01-06-00817-CV Marjorie Huepers v. Amy Michelle Thompson
Appeal from 300th District Court of Brazoria County
Trial Court Judge: The Honorable W. Edwin Denman  

Termination of Parent-Child Relationship Reversed

In the Interest of AS, DS, and LAS (Tex.App.- Houston [14th Dist.] Mar. 4, 2008)(Fowler)(termination of
parental rights reversed)
REVERSED AND RENDERED IN PART AND REMANDED IN PART: Opinion by Justice Fowler
Before Justices Brock Yates, Fowler and Guzman
14-07-00140-CV In the Interest of A.S., D.S. and L.A.S
Appeal from 314th District Court of Harris County (Judge John Phillips)

Mother's low income considered in terminating her parental rights

Hopkins v. DFPS No. 01-07-00313-CV (Tex.App.- Houston [1st Dist.] Feb. 28, 2008)(Keyes)(termination
of parental rights, indigence, court costs)
AFFIRM TC JUDGMENT: Opinion by Justice Keyes
Before Justices Taft, Keyes and Alcala
Robyn Rachelle Hopkins, Guadalupe Padilla v. Department Family & Protective Services
Appeal from 315th District Court of Harris County (Judge Michael H. Schneider Jr.)

Termination reversed, but award of custody to CPS affirmed

Alexander v. DFPS (Tex.App. - Houston [1st Dist.] Jan. 24, 2008)(Hanks)(termination, CPS, DFPS)
AFFIRM TC JUDGMENT IN PART, REVERSE TC JUDGMENT IN PART, AND RENDER JUDGMENT:
Opinion by Justice Hanks
Before Justices Taft, Hanks and Higley
01-07-00160-CV Paul Alexander and Shde Hurst v. Department of Family and Protective Services
Appeal from 314th District Court of Harris County (Judge Hon. John Phillips)
We dismiss Alexander’s appeal for want of prosecution. We reverse and render judgment denying DFPS’
s petition for termination of Hurst’s parental rights. We affirm the portion of the decree assigning DFPS as
the sole managing conservator of A.A.A.

Termination Affirmed - Mother failed to get off drugs and take embrace parenting

Strange v. DFPS (Tex.App.- Houstoon [14th Dist.] Nov. 20, 2007)(Alcala)(termination, drugs, jury)
AFFIRM TC JUDGMENT: Opinion by Justice Alcala
Before Chief Justice Radack, Justices Alcala and Bland
01-07-00267-CV Amanda Strange v. Department of Family and Protective Services
Appeal from 306th District Court of Galveston County (Hon. Janis L. Yarbrough)

Counsel withdraws - appeals court decides appeal on Anders brief and affirms termination

Smith v. DFPS (Tex.App.- Houston [1st Dist.] Nov. 8, 2007)(Alcala)
AFFIRM TC JUDGMENT: Opinion by Justice Alcala
Before Chief Justice Radack, Justices Alcala and Bland
01-06-00625-CV Shuemon Manuel Smith v. Department of Family and Protective Services
Appeal from 315th District Court of Harris County (Hon. Earl Kent Ellis)

Court of appeals find insufficient evidence  that termination was in the children's best interest
and reverses

In Interest of S.R.L (Tex.App.- Houston [14th Dist.] Nov. 8, 2007)(Yates)(termination of parental rights
reversed)
REVERSED AND RENDERED IN PART AND REMANDED IN PART: Opinion by Justice Brock Yates
Before Justices Brock Yates, Fowler and Guzman
14-06-00659-CV In the Interest of S.R.L., and L.L., Children
Appeal from 387th District Court of Fort Bend County (Hon. Robert J. Kern)

Parties agree to reversal of judgment and remand for new trial on termination of father's
parental rights

Gonzalez v. DFPS (Tex.App.- Houston [1st Dist.] Nov. 5, 2007)(per curiam)(agreed reversal and remand
for new trial on father's termination and appointment of CPS as sole managing conservator)
SET ASIDE TC JUDGMENT AND REMAND CASE TO TC FOR RENDITION OF JUDGMENT IN
ACCORDANCE WITH PARTIES' AGREEMENT: Per Curiam
Before Chief Justice Radack, Justices Alcala and Bland
01-07-00549-CV Jose Angel Gonzales v. Department of Family and Protective Services
Appeal from 313th District Court of Harris County (Hon. Pat Shelton)

Termination of parental rights affirmed on appeal

Milkowski v. DFPS (Tex.App.- Houston [1st Dist.] Oct. 18, 2007)(Higley)(termination, drugs, jury trial,
ineffective assistance of counsel claim)
AFFIRM TC JUDGMENT: Opinion by Justice Higley
Before Justices Taft, Hanks and Higley
01-07-00011-CV Ian Mikowski and Toni English v. Department of Family and Protective Services
Appeal from 306th District Court of Galveston County (Hon. Janis L. Yarbrough)

Retired Justice Margaret Mirabal writes appellate opinion reversing order terminating
parental rights - mother was entitled to jury trial

In Interest of M.A. (Tex.App.- Houston [14th Dist.] Oct. 4, 2007)(Mirabal)(termination, jury trial)
AFFIRMED IN PART; REVERSED & REMANDED IN PART: Opinion by Justice Mirabal
Before Justices Anderson, Frost and Mirabal
14-05-00579-CV In the Interest of M.A.
Appeal from 313th District Court of Harris County (Hon. John Phillips)

In the Interest of P.R.G (Tex.App.- Houston [14th Dist.] Apr. 5, 2007)(per curiam dismissal, failure to pay
for appeal)(termination of parental rights)
DISMISSED: Per Curiam
(Before Chief Justice Hedges, Justices Hudson and Guzman)
14-06-01105-CV        In the Interest of P.R.G a child
Appeal from
308th District Court of Harris County

Mandamus relief granted in termination of parental rights case

In Re Shipman (Tex.App.- Houston [14th Dist.] Sep. 4, 2007)(per curiam)(CPS case)
MOTION OR WRIT GRANTED: Per Curiam
Before Chief Justice Hedges, Justices Anderson and Seymore
14-07-00662-CV In Re: Tony L. Shipman
Appeal from 315th District Court of Harris County (Michael H. Schneider)

Claim of ineffective assistance of counsel rejected in appeal from order terminating
mother's parental rights

In Interest of D.H. (Tex.App.- Houston [14th Dist.] Aug. 30, 2007)(Guzman)(termination of mother's
parental rights, living with registered sex offender, ineffective assistance of counsel claim rejected; new
trial granted on motion of attorney ad litem, appeal previously abated)
AFFIRMED: Opinion by Justice Guzman
Before Chief Justice Hedges, Justices Hudson and Guzman
14-06-00187-CV In the Interest of D.H., A.L., J.L.C., and C.C.
Appeal from 300th District Court of Brazoria County (Judge K. Randall Hufstetler)

Termination of both parents' rights affirmed

In Interest of C.L.S. (Tex.App.- Houston [14th Dist.] Aug. 30, 2007)(Guzman)(termination of parental
rights, both parents, jury charge error overruled, service by publication, due diligence)
AFFIRMED: Opinion by Justice Guzman
Before Justices Frost, Seymore and Guzman
14-06-00762-CV In the Interest of C.L.S
Appeal from 300th District Court of Brazoria County (Hon. Robert May)

In Interest of HBNS, (Tex.App.- Houston [14th Dist.] Jul. 17, 2007)(Anderson)

McKay v. DFPS (Tex.App.- Houston [1st Dist.] Jun. 21, 2007)(Jennings)(termination of parental rights)
(Jennings)
AFFIRM TC JUDGMENT: Opinion by Justice Jennings
Before Justices Taft, Jennings and Alcala
01-06-00568-CV        Sandra McKay v. Department of Family and Protective Services
Appeal from 313th District Court of Harris County  (Hon. Pat Shelton)

In the Interest of T.T. (Tex.App.- Houston [14th Dist.] May 17, 2007)(Frost)(CPS, termination)
AFFIRMED: Opinion by Justice Frost
Before Justices Frost, Seymore and Guzman
14-06-00552-CV In the Interest of T.T., A.T., D.D., A.D & A.D., Minor Children
14-06-00555-CV In the Interest of T.T., A.T., D.D., A.D & A.D., Minor Children
Appeal from 300th District Court of Brazoria County (W. Edwin Denman)

In the Interest of JR and BR (Tex.App.- Houston [14th Dist.] Apr. 10, 2007)(Edelman)
[family law, termination of parental rights, CPS, child abuse and neglect, effect of mandate in prior appeal
on trial court proceedings in underlying case]
AFFIRMED: Opinion by Justice Edelman
Before Justices Anderson, Edelman and Frost
14-05-01216-CV In the Interest of J.R. and B.R., Children
Appeal from 314th District Court of Harris County (Judge John Phillips)
In the Interest of JR and BR (Tex.App.- Houston [14th Dist.] Apr. 10, 2007)(Edelman)(CPS case)

Sambrano v. DFPS (Tex.App.- Houston [1st Dist.] May 31, 2007)(Taft)(CPS termination)
[termination of parental rights, Anders brief]
AFFIRM TC JUDGMENT: Opinion by Justice Taft
Before Justices Taft, Jennings and Alcala
01-06-00854-CV
Irma Sambrano v. Department of Family and Protective Services
Appeal from 300th District Court of Brazoria County (Hon. W. Edwin Denman)

In Interest of RAP, II (Tex.App.- Houston [14th Dist.] Jan. 25, 2007)(Yates)
[mother's parental rights terminated, father custody]
AFFIRMED: Opinion by Justice Brock Yates
(Before Chief Justice Hedges, Justices Brock Yates and Seymore)
14-06-00109-CV        In the Interest of R.A.P. II, a Child
Appeal from 310th District Court of Harris County (
Judge Lisa A. Millard)

In the Interest of HGH (Tex.App.- Houston [14th Dist.] Jan. 25, 2007)(Anderson)
[termination of parental rights]
AFFIRMED: Opinion by Justice Anderson
(Before Justices Brock Yates, Anderson and Hudson)
14-06-00137-CV        In the Interest of H.G.H., a Minor Child
Appeal from 300th District Court of Brazoria County (Judge K. Randall Hufstetler)

Doe v. DFPS (Tex.App.- Houston [1st Dist.] Jan. 16, 2007)(Radack)(CPS termination)
[termination of parental rights, ineffective assistance of counsel]
AFFIRM TC JUDGMENT: Opinion by Chief Justice Radack
Before Chief Justice Radack, Justices Alcala and Bland
01-05-00987-CV        Jane Doe v. Department of Family and Protective Services
Appeal from 300th District Court of Brazoria County (Hon. K. Randal Hufstetler)


===========

Milkowski v. DFPS (Tex.App.- Houston [1st Dist.] Oct. 18, 2007)(Higley)(termination, drugs, jury trial,
ineffective assistance of counsel claim)

MEMORANDUM OPINION

Following a jury trial, the trial court terminated the parental rights of appellants, Ian Mikowski and Toni
English, to their minor son, C.M. Presenting five issues each, Mikowski and English challenge the legal
and factual sufficiency of the evidence to support the findings supporting the termination. In addition,
Mikowski contends that he did not receive effective assistance of counsel, and English raises an
evidentiary challenge.

We affirm.

Background

C.M. was born on January 3, 2006. Two days later, the Department of Family and Protective Services
("DFPS") became involved with the family after it was notified by the hospital that C.M. had tested positive
for marijuana. C.M. was initially placed with English's sister, Amber Sorenson. Not long after, Mikowski
and English contacted DFPS stating that they no longer wished for C.M. to be placed with Sorenson.
Because the parents were unable to provide a suitable relative placement, DFPS took temporary custody
of C.M. on January 23, 2007. At that time, C.M. was placed with a foster family.

DFPS ultimately sought to terminate Mikowski's and English's parental rights to C.M. The case went to
trial before a jury in December 2006, when C.M. was 11 months old. The trial court instructed the jury that
Mikowski's and English's parental rights could be terminated if it found, by clear and convincing evidence,
that Mikowski and English had each engaged in at least one activity described in subsections (D), (E),or
(O) of Family Code section 161.001(1) and if it found that terminating the parent-child relationship was in
the best interest of the child. See Tex. Fam. Code Ann. §§ 161.001(1)(D), (E), (O), 161.001(2) (Vernon
Supp. 2006). Based on these instructions, the jury found that Mikowski's and English's parental rights to
C.M. should be terminated.

In conformity with the jury's verdict, the trial court signed two orders of termination, one for Mikowski and
one for English. The same grounds for termination are listed in each termination order. Specifically, the
trial court stated in each order that it had found by clear and convincing evidence that the respective
parent had committed one or more of the following acts:

6.2.1. knowingly placed or knowingly allowed [C.M.] to remain in conditions or surroundings which
endanger the physical or emotional well-being of [C.M.]; (1)

6.2.2. engaged in conduct or knowingly placed [C.M.] with persons who engaged in conduct which
endangers the physical or emotional well-being of [C.M.]; (2)

6.2.3. failed to comply with the provisions of a court order that specifically established the actions
necessary for [Mikowski or English, respectively] to obtain the return of [C.M.] who [has] been in the
permanent or temporary managing conservatorship of [DFPS] for not less than nine months as a result of
[C.M.'s] removal from the parent under Chapter 262 for the abuse or neglect of [C.M.]. (3)

The termination orders also state that the trial court found, by clear and convincing evidence, that it was
in C.M.'s best interest for Mikowski's and English's parental rights to be terminated.

Mikowski and English each appealed.

Mikowski's Appeal

We first determine whether Mikowski complied with Family Code section 263.405(b), which requires an
appellant to file, not later than the 15th day after the date a final termination order is signed, "a statement
of the point or points on which the party intends to appeal." Tex. Fam. Code Ann. § 263.405(b) (Vernon
Supp. 2006). The statement may be filed separately or it may be combined with a motion for new trial. Id.
The legislature expressly mandates that we "may not consider any issue that was not specifically
presented to the trial court in a timely filed statement of the points on which the party intends to appeal or
in a statement combined with a motion for new trial." Id. § 263.405(i).

In this case, the record reflects that Mikowski failed to timely file his statement of points pursuant to
section 263.405(b). The trial court signed the termination orders on December 19, 2006. Mikowski had
already filed his notice of appeal on December 14, 2006. No statement of points on which Mikowski
intended to appeal accompanied the notice of appeal, and Mikowski did not file a statement of points
within the 15 day period following the signing of the order.

Seventeen days after the trial court signed the termination orders, on January 5, 2007, Mikowski filed a
"First Amended Notice of Appeal, Statement of Points to be Appealed, Motion for New Trial, and Request
for Free Record." In the amended notice, Mikowski for the first time identified points that he intended to
appeal. Though Mikowski's statement was filed only two days after the 15-day deadline, the plain
language of Family Code section 263.405(i) precludes this Court from considering Mikowski's appellate
issues, as draconian as this may seem. See id. Consequently, we affirm the order terminating the
parental-child relationship between Mikowski and C.M. See Pool v. Tex. Dep't of Family & Protective
Servs., 227 S.W.3d 212, 216 (Tex. App.--Houston [1st Dist.] 2007, no pet.) (affirming decree terminating
father's parental rights as result of father's failure to comply with Family Code section 263.405(b)).

English's Appeal

English presents five issues on appeal. Specifically, in the first four issues, English challenges the legal
and factual sufficiency of the trial court's findings supporting the termination of her parental rights to C.M.
In her fifth issue, English challenges an evidentiary ruling of the trial court.

A. Statement of Points

As mentioned, the trial court signed the order terminating English's parental rights to C.M. on December
19, 2006. English timely filed her statement of points to be appealed on December 18, 2006, within 15
days of the signing of the termination order. See Tex. Fam. Code Ann. § 263.405(b). In her timely filed
statement of points, English raised the legal and factual sufficiency complaints that she now raises on
appeal in her first four issues. Thus, we may consider those issues on appeal.

On January 11, 2007, 23 days after the trial court signed the termination order, English amended her
statement of points to include the evidentiary issue she now raises on appeal in issue five. Because this
issue was not timely included in her statement of points, we may not consider it on appeal. See id. §
263.405(i).

B. Legal and Factual Sufficiency Challenges

Because English's third and fourth issues are dispositive, we address them first. In her third issue,
English contends that the evidence is legally and factually insufficient to support a finding that, under
Family Code section 161.001(1)(O), she "failed to comply with the provisions of a court order that
specifically established the actions necessary for [English] to obtain the return of [C.M.] . . . ." See Tex.
Fam. Code Ann. § 161.001(1)(O). In her fourth issue, English challenges the legal and factual sufficiency
of the evidence to support the finding that the termination of English's parental rights was in C.M.'s best
interest. See id. § 161.001(2) (Vernon Supp. 2006).

1. Burden of Proof and Standard of Review

The burden of proof at trial in parental-termination cases is by clear and convincing evidence. Tex. Fam.
Code Ann. § 161.001; In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002). Section 161.001 of the Texas Family
Code provides the method by which a court may involuntarily terminate the parent-child relationship. See
Tex. Fam. Code. Ann. § 161.001. Under this section, a court may order the termination of the parent-
child relationship if the court finds, by clear and convincing evidence, that (1) one or more of the acts
enumerated in section 161.001(1) was committed and (2) termination is in the best interest of the child. Id.

"Clear and convincing evidence" means the measure or degree of proof that will produce in the mind of
the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established. Tex.
Fam. Code. Ann. § 101.007 (Vernon 2002); J.F.C., 96 S.W.3d at 264. This heightened burden of proof
results in a heightened standard of review.

When determining legal sufficiency, we review all the evidence in the light most favorable to the finding
"to determine whether a reasonable trier of fact could have formed a firm belief or conviction that its
finding was true." J.F.C., 96 S.W.3d at 266. To give appropriate deference to the factfinder's conclusions,
we must assume that the factfinder resolved disputed facts in favor of its finding if a reasonable factfinder
could do so. Id. We disregard all evidence that a reasonable factfinder could have disbelieved or found to
have been incredible. Id. This does not mean that we must disregard all evidence that does not support
the finding. Id. Disregarding undisputed facts that do not support the finding could skew the analysis of
whether there is clear and convincing evidence. Id. Therefore, in conducting a legal-sufficiency review in
a parental-termination case, we must consider all of the evidence, not only that which favors the verdict.
See City of Keller v. Wilson, 168 S.W.3d 802, 817 (Tex. 2005).

In determining a factual-sufficiency point, the higher burden of proof in termination cases also alters the
appellate standard of review. In re C.H., 89 S.W.3d 17, 26 (Tex. 2002). "[A] finding that must be based on
clear and convincing evidence cannot be viewed on appeal the same as one that may be sustained on a
mere preponderance." Id. at 25. In considering whether evidence rises to the level of being clear and
convincing, we must consider whether the evidence is sufficient to reasonably form in the mind of the
factfinder a firm belief or conviction as to the truth of the allegation sought to be established. Id. We
consider whether disputed evidence is such that a reasonable factfinder could not have resolved that
disputed evidence in favor of its finding. J.F.C., 96 S.W.3d at 266. "If, in light of the entire record, the
disputed evidence that a reasonable factfinder could not have credited in favor of the finding is so
significant that a factfinder could not reasonably have formed a firm belief or conviction, then the
evidence is factually insufficient." Id.

The natural rights that exist between parents and their children are of constitutional dimension. Holick v.
Smith, 685 S.W.2d 18, 20 (Tex. 1985). Therefore, termination proceedings should be strictly scrutinized,
and the involuntary termination statutes should be strictly construed in favor of the parent. Id. at 20-21.
However, "[j]ust 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." C.H., 89 S.W.3d at 26.

2. Failure to Comply with Service Plan: Section 161.001(1)(O)

One of the grounds supporting termination of English's parental rights was Family Code subsection
161.001(1)(O). Pursuant to that subsection, the termination order reflects that trial court found, in
relevant part, that English had not complied with the provisions of a court order that specifically
established the actions necessary for her to obtain C.M.'s return. See Tex. Fam. Code Ann. § 161.001(1)
(O). We turn to the record to determine whether legally and factually sufficient evidence supports this
finding.

The record reflects that the court required English to complete individual counseling and parenting
classes, to submit to random drug tests, and to maintain suitable housing and employment. At trial,
English admitted that she did not complete all of the requirements of the court-ordered service plan.
English also testified that she was aware that such failure to comply could result in termination of her
parental rights. Nonetheless, on appeal, English contends that the evidence is legally and factually
insufficient to support termination because she "substantially complied with the services that the court
ordered her to complete."

In support of this assertion, English does not cite, and we cannot find, any legal authority holding that a
parent's substantial compliance with court-ordered services will preclude a section 161.001(1)(O) finding.
See In re T.T, 228 S.W.3d 312, 319 (Tex. App.--Houston [14th Dist.] 2007, no pet.) (noting that court
found no cases to support parents' substantial compliance argument). To the contrary, courts have held
that evidence of substantial compliance will not defeat a section 161.001(1)(O) finding on legal and
factual sufficiency grounds. See, e.g., In re T.N.F., 205 S.W.3d 625, 630-31 (Tex. App.--Waco 2006, pet.
denied); In re D.L.H., No. 04-04-00876-CV, 2005 WL 2989329, at *2 (Tex. App.--San Antonio Nov.9,
2005, no pet.) (mem. op.). In any event, we disagree that English "substantially complied" with her the
court-ordered service plan.

The record reflects that English failed to complete her individual counseling and parenting classes and
failed to take all random drug tests as required by the court. At trial, English offered a number of excuses
for her failure to complete these services.

English testified that she did not complete the random drug tests because no one had explained the
process to her. Regarding her failure to complete individual therapy, English claimed that she went to her
therapist's office to initiate therapy. In contrast, the therapist testified that she was not aware that English
had come to her office. According to the therapist, she never received any messages from English to
initiate therapy. The therapist testified that she called English to schedule therapy at the number given on
the DFPS referral form. The therapist stated that she left five messages for English and that English
never returned her calls.

Regarding her failure to take parenting classes, English claimed that she called the telephone number
given to her but that no one answered. English testified that she did not know when the classes began or
where the classes were held. English admitted that she never asked her caseworker about how to initiate
the parenting classes.

English further testified that she understood that the parenting classes merged with her individual
therapy. English explained that she did not complete her individual therapy because the court ordered
DFPS to no longer pay for her services. English testified that she could not afford the therapy.

The record shows that the court did eventually order DFPS to discontinue paying for English's services,
but also reflects that the court did so because English had failed to comply with certain provisions of the
service plan up to that point. The record further shows that the court had warned English that
noncompliance with the plan would result in discontinuation of payment for the services.

DFPS also offered evidence that English failed to offer proof of stable housing and employment, as
required by the court. The record shows that, during the 11-month period between C.M.'s birth and the
trial, English lived in five different locations. She was evicted from two of these locations and threatened
with eviction from a third location. On appeal, English maintains that the evidence shows that she has
suitable housing. At trial, English testified that she, Mikowski, and her brother were living in a three-
bedroom trailer home, which she and Mikowski are "renting to own." English contends that no evidence
was offered to show that the trailer home is not "safe and stable." DFPS points out that one of its
caseworkers testified that "stability of home also means how many times you move."

With regard to employment, English testified that she had worked at two or three jobs since C.M. was
born. She also testified at the December trial that she had not worked since June. English explained that
she lost her job in June when she was arrested for credit card abuse and that she could not maintain
employment because she was incarcerated for 40 days in August and September. One of the
caseworkers assigned to C.M.'s case testified that English had never offered proof of employment as
required in the court order.

Given the record, we conclude that the evidence, viewed in the light most favorable to the section 161.001
(1)(O) finding, was sufficiently clear and convincing that a reasonable factfinder could have formed a firm
belief or conviction that English failed to comply with the provisions of a court order that specifically
established the actions necessary for her obtain the return of C.M. We further conclude that, viewed in
light of the entire record, any disputed evidence could have been reconciled in favor of the section
161.001(1)(O) finding or was not so significant that the factfinder could not reasonably have formed a
firm belief or conviction that English failed to comply with the provisions of a court order that specifically
established the actions necessary for her obtain the return of C.M. Accordingly, we hold that the
evidence was legally and factually sufficient to support the section 161.001(1)(O) finding.

We overrule English's third issue. (4)

3. Best Interest of C.M

In her fourth issue, English challenges the legal and factual sufficiency of the evidence to support the
required finding that termination was in the C.M.'s best interest. See Tex. Fam. Code Ann. § 161.001(2).

Some of the factors that an appellate court may consider in ascertaining the best interest of a child
include the non-exhaustive list set forth in Holley v. Adams. 544 S.W.2d 367, 371-72 (Tex. 1976). Those
factors include the following: (1) the desires of the child; (2) the emotional and physical needs of the child
now and in the future; (3) the emotional and physical danger to the child now and in the future; (4) the
parental abilities of the individuals seeking custody; (5) the programs available to assist these individuals
to promote the best interest of the child; (6) the plans for the child by these individuals or by the agency
seeking custody; (7) the stability of the home or proposed placement; (8) the acts or omissions of the
parent that may indicate that the existing parent-child relationship is not a proper one; and (9) any
excuse for the acts or omissions of the parent. Id.

These factors are not exhaustive. C.H., 89 S.W.3d at 27. The absence of evidence about some of these
factors does not preclude a factfinder from reasonably forming a strong conviction or belief that
termination is in the child's best interest. Id. "Best interest" does not require proof of any unique set of
factors, nor does it limit proof to any specific factors. Holley, 544 S.W.2d at 371-72. With the foregoing
legal precepts in mind, we review the legal and factual sufficiency of the evidence to support the finding in
this case that termination was in C.M.'s best interest.

To support the best interest finding, DFPS cites the evidence discussed above showing that English
could not maintain suitable housing and employment and has failed to take advantage of the court-
ordered services offered to her. We agree that such evidence is not only probative of the section 161.001
(1)(O) finding, but also of the best-interest determination. See C.H., 89 S.W.3d at 28. This evidence
demonstrates English's inability to provide C.M. with a stable home and to meet his physical and
emotional needs.

DPFS also presented evidence that, despite being at risk of losing her child, English engaged in criminal
conduct following C.M.'s birth. In February 2006, English was charged with committing the offense of
credit card abuse, a state jail felony. At that time, English was also charged with being in possession of a
controlled substance, Xanax. English claimed that she had a prescription for the Xanax but one was never
produced. English ultimately pleaded nolo contendere to the controlled substance offense and received a
sentence of 30 days in jail.

In June 2006, English was again charged with credit card abuse. English pleaded guilty to the offense
and was sentenced to five years' deferred adjudication community supervision. As part of the plea
agreement, the February 2006 and an earlier 2004 charge for credit card abuse were dismissed. Related
to the plea agreement, English spent 40 days in jail in August and September of 2006, affecting her
ability to visit C.M., maintain employment, and participate in court-ordered services.

DFPS also presented evidence probative of English's ability to keep C.M. physically safe in the future.
English admitted to smoking marijuana while pregnant with C.M.--conduct that endangered C.M. even
before he was born.

The record also showed that, when C.M. was five days old, he was permitted by the family members
caring for him to stay one evening with English and Mikowski at their apartment. On that evening,
Mikowski and English's brother engaged in a physical altercation in which English's brother punched
Mikowski in the face. The police were called to the apartment. When they arrived, the police observed
Mikowski standing in a bedroom holding a loaded shotgun. Newborn C.M. was still in the apartment at the
time. Mikowski was arrested with respect to the weapon and English was arrested on outstanding
warrants.

The evidence further revealed that, on June 22, 2006, Mikowski was arrested for committing an act of
domestic violence against English. DFPS offered the testimony of the manager of the apartment where
the couple resided at that time. She testified that she heard English say "Stop" and "Stop it. Don't push
me. Leave me alone." The apartment manager noted that English was crying. The manager then
observed Mikowski push English. The manager called the police, who arrested Mikowski for the incident.
Both Mikowski and English denied the manager's account, and the charges against Mikowski were
ultimately dismissed.

Although C.M. is too young to express his desires, the evidence showed that C.M. has bonded with his
foster family and that the family wishes to adopt him. The evidence indicated that C.M. is doing well in
foster care and is on target developmentally. The foster mother's testimony indicated that, when medical
concerns had arisen with C.M., she had promptly attended to them. For example, C.M. will require
surgery on his tongue for which the foster family has obtained medical advice.

On appeal, English relies heavily on evidence presented at trial discrediting C.M.'s foster parents as a
suitable placement. The evidence showed that C.M.'s foster family had an earlier "CPS referral" in which
it was alleged that the parents allowed their children to play unattended in the street. The report stated
that one of the foster parents was observed cursing at a driver and that the children were seen playing in
the street as late as 1:00 a.m. The foster mother testified that the information in the report was false.

Evidence was also presented that the foster parents both had, at some point, used marijuana and that
the foster father drank beer. English contends that this evidence weighs against the best interest finding
under a number of the Holley factors.

In addition to the evidence relied on by English relating to the foster parents, the record also shows that
the foster parents have cared for 10 foster children since they became licensed for foster care in 2003.
The foster parents adopted one of the foster children in 2005, a three-year-old girl. The foster mother
testified that her little girl and C.M. love each other. The foster mother also testified that she and her
husband annually attend child care, parenting, and safety classes to maintain their foster parent status.

Undeniably, some evidence exists in the record that weighs in favor of English under the Holley factors.
Overall, caseworkers who observed English with C.M. during visitation testified that she acted
appropriately and showed motherly affection for C.M. Evidence was presented that English had
purchased baby items to care for C.M. The one home visit to English and Mikowski's apartment revealed
that the apartment appeared to be an adequate home for C.M.

Regarding her plans for the future, English testified that she planned to attend college, though there is
conflicting evidence whether English has obtained her general education degree. English also testified
that Mikowski is in the process of joining the military and would assist in supporting C.M.

In sum, the record contains evidence showing that English expresses a desire to be a good parent to C.
M. However, evidence cannot be read in isolation; it must be read in the context of the entire record. The
record reveals that, in the past, when English has taken one step forward, she ultimately takes two back
by committing a criminal act, failing to follow through on services, failing to keep a job, moving from home
to home, or being with Mikowski when he exhibits violent tendencies. Given the record, the factfinder in
this case could have reasonably inferred that English would continue such pattern of conduct. Such an
inference relates directly to English's ability to provide a stable and suitable home for C.M. and indicates
that C.M.'s emotional and physical well-being may be endangered in the future if English's parental rights
are not terminated.

We conclude that the evidence, viewed in the light most favorable to the best-interest finding, was
sufficiently clear and convincing that a reasonable fact finder could have formed a firm belief or
conviction that termination of the parent-child relationship between English and C.M. was in C.M.'s best
interest. We further conclude that, viewed in light of the entire record, any disputed evidence could have
been reconciled in favor of the finding that termination of the parent-child relationship between appellant
and C.M. was in C.M.'s best interest or was not so significant that the trial court could not reasonably
have formed a firm belief or conviction that termination was in C.M.'s best interest. Thus, we hold that the
evidence was legally and factually sufficient to support such finding.

We overrule English's fourth issue.

Conclusion

We affirm the orders of the trial court terminating the parent-child relationship between Mikowski and C.M.
and English and C.M.

Laura Carter Higley

Justice

Panel consists of Justices Taft, Hanks, and Higley.

1. Tex. Fam. Code Ann. § 161.001(1)(D) (Vernon Supp. 2006).

2. Id. § 161.001(1)(E).

3. Id. § 161.001(1)(O).

4. Because there is sufficient evidence of endangerment, we need not address English's first and second
issues challenging the sufficiency of the evidence to support findings under subsections 161.001(1)(D),
(E).

============

In Interest of M.A. (Tex.App.- Houston [14th Dist.] Oct. 4, 2007)(Mirabal)(termination, jury trial)
AFFIRMED IN PART; REVERSED & REMANDED IN PART: Opinion by Justice Mirabal

M E M O R A N D U M   O P I N I O N

After a bench trial, the trial court terminated the parental rights of the mother and father of M.A., who was 22 years old at the
time of trial.  The maternal grandfather of M.A. (the grandfather) was named sole managing conservator.  The mother
appeals, complaining that reversible error was committed when she was denied a jury trial, and raising sufficiency of the
evidence issues as to termination and conservatorship.  Applying controlling principles of law set out in Texas Supreme
Court and Fourteenth Court of Appeals cases, we reverse and remand.  

===========

In Interest of C.L.S. (Tex.App.- Houston [14th Dist.] Aug. 30, 2007)(Guzman)(termination of parental
rights, both parents, jury charge error overruled, service by publication, due diligence)

In this appeal from the trial court=s order terminating the parental rights of a mother and father to their minor daughter, the
mother challenges the legal and factual sufficiency of the evidence to support the jury=s termination findings and the
court=s refusal of her proposed jury instruction.  The father challenges the finding that the petitioning state agency
exercised due diligence to serve his citation.  We affirm.


In Interest of D.H. (Tex.App.- Houston [14th Dist.] Aug. 30, 2007)(Guzman)(termination of mother's
parental rights, living with registered sex offender, ineffective assistance of counsel claim rejected; new
trial granted on motion of attorney ad litem, appeal previously abated)
CPS and Termination of Parental Rights Cases from
Houston Courts of Appeals (Tex.App.-Houston 2008)
Recent Supreme Court Cases
(Tex. 2006-08)

Supreme Court says that omission of
statement of points from appellate record was
not appellant's fault and that court of appeals
should have reviewed the merits of the
mother's appeal from the trial court's order
terminating her parental rights.
In Interest of K.C.B., a Child, No. 07-1068 (Tex.
Apr. 18, 2008) (per curiam) (
parents right to
appeal in termination of parental rights case,
procedural requisites for appeal)

Supreme Court agrees with Houston Court of
Appeals that reversal of conservatorship to
CPS along with termination order was proper
in the absence of independent grounds to
take children from parent
In the Interest of DNC No. 07-0621 (Tex.
2008)(child protection, DFPS suit, termination of
parental rights, natural parent presumption, award
to conservatorship to child protection agency
reversed along with termination of parental rights)
N THE INTEREST OF D.N.C., A CHILD; from Harris
County; 1st district (01-04-01232-CV,
227 S.W.3d 799, 12/21/06)

In Interest of J.A.J., No. 07-0511 (Tex. Nov. 2,
2007)(O'Neill)(termination of parental rights,
conservatorship to CPS not appealed)

In Interest of R.R. and S.J.S., No. 06-0460 (Tex.
Dec. 1, 2006)(per curiam)(termination of parental
rights)

In re H.R.M., 209 S.W.3d 105 (Tex. 2006)
In Interest of H.R.M., No. 06-0270 (Tex. Dec. 1
2006)(per curiam)(termination of parental rights)

Opinion on Remand to the Fourteenth Court
of Appeals  
In the Interest of H.R.M. (Tex.App.-
Houston [14th Dist.] Mar. 8, 2007)(Justice Seymore)
This case is on remand from the Texas Supreme
Court for consideration of a single issue.  The
issue is whether the evidence is factually sufficient
to support the jury's finding that the parental rights
of William Keith M. ["Keith"] to his biological
daughter, H.R.M., should be terminated under
Texas Family Code Section 161.001(1)(Q), which
provides "parental rights may be terminated if the
parent has "knowingly engaged in criminal conduct
that has resulted in the parent's:  (i) conviction of
an offense; and (ii) confinement or imprisonment
and inability to care for the child for not less than
two years from the date of filing the petition."See In
re H.R.M., 209 S.W.3d 105, 107 (Tex. 2006) (per
curiam) (quoting Tex. Fam. Code Ann. Section
161.001(1)(Q))
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