Texas Judiciary Online - HTML Opinion

Affirmed and Opinion filed May 17,=20 2007.

In The

Fourteenth=20 Court of Appeals

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NO. 14-06-00552-CV

NO. 14-06-00555-CV

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IN THE INTEREST OF T.T., A.T., D.D., = A.D. and=20 A.D.

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On Appeal from the 300th District=20 Court

Brazoria County, Texas

Trial Court Cause No.=20 33922

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O P I N I=20 O N

This is an=20 appeal from a judgment terminating the parental rights of a mother = as to=20 five young children and a father as to three of these = children. The=20 mother challenges the legal and factual sufficiency of the = evidence to=20 support the jury=3Ds=20 termination findings and the jury=3Ds finding=20 that a state agency, rather than a relative, should be appointed = as the=20 sole managing conservator of the children. The father brings = these=20 same challenges as to his three children, and he also asserts in a = separate issue that the trial court abused its discretion in = excluding the=20 testimony of his expert witness. Under the applicable = standards of=20 review, we conclude that the evidence is legally and factually = sufficient=20 to support the termination of both the mother=3Ds and the=20 father=3Ds parental=20 rights and to support the jury=3Ds decision=20 as to the sole managing conservator of the children. We also = conclude that=20 the father has waived the issue regarding his expert. = Accordingly,=20 we affirm the trial court=3Ds = judgment.

= ; = =20 I. Factual and Procedural Background

Johnny and=20 Melissa, a married couple, are the parents of three young = children, D.D.=20 (hereinafter ADavid@), A.D.=20 (hereinafter AAmy@), and=20 A.D. (hereinafter AAddy@).^[1] = Melissa is=20 the mother of two additional children from a previous = relationship, T.T.=20 (hereinafter ATommy@) and A.T.=20 (hereinafter AAdrienne@).^[2] On = June 9,=20 2005, the Brazoria County Children=3Ds=20 Protective Services Unit (ACPS@), Texas=20 Department of Family and Protective Services (the ADepartment@), filed=20 suit to terminate the parental rights of Johnny and Melissa. = At that=20 time, David was three years old, the twins Amy and Addy were two = years=20 old, Tommy was five years old, and Adrienne was four years old.=20

Days before the = termination=20 suit was filed, three-year old David fell out of a second-story = window in=20 his family=3Ds apartment while he = was=20 playing tag with several other children in the room. When = CPS=20 Investigator Sheila Green arrived to investigate the incident, she = found=20 the apartment to be messy, dirty, and smelly. Although=20 David=3Ds fall was ruled=20 accidental, based on the condition of the apartment, CPS = temporarily=20 removed David and his four siblings from his parents=3D care, placing them = with a=20 relative, Hattie Williams. Green informed Johnny and Melissa = that=20 the children would be returned if they cleaned up the apartment = and made=20 it safe by a designated deadline.

Johnny and Melissa = quickly=20 complied with CPS=3Ds instructions, = contacted Green=20 before the deadline, and asked her to return to re-inspect the=20 apartment. Green discovered that they had done a = Agreat job@ in getting the = apartment=20 cleaned up; they had repainted, bought some new furniture, and=20 decorated. CPS returned the children to their parents on = June 7,=20 2005. However, around 3:00 a.m. the next morning, four-year = old=20 Adrienne was found wandering outside the family=3Ds apartment by a = neighbor, who,=20 upon returning the child to the family=3Ds apartment, found = the door=20 unlocked and Johnny and Melissa asleep. Later that day, CPS = again=20 removed the children from Johnny and Melissa.^[3] This = time,=20 after the placement possibilities suggested by Johnny and Melissa = were=20 ruled out, CPS placed the children in the foster-care = system.

Johnny and Melissa = had legal=20 problems when the Department filed suit. Both were on = probation for=20 misdemeanor theft-by-check charges in other counties. = Because of=20 various probation violations, each also had served time in = jail. In=20 fact, during the trial of this case, Melissa was in jail because = of a=20 probation violation, and Johnny indicated that it was possible he = would be=20 going to jail for a probation violation in the near = future.

The case was tried to = a jury,=20 which found by clear and convincing evidence that: (1) = Johnny=20 and Melissa had placed or knowingly allowed their children to = remain in=20 conditions or surroundings that endangered the = children=3Ds physical or = emotional=20 well-being; (2) Johnny and Melissa had engaged in conduct or = knowingly=20 placed the children with people who engaged in conduct that = endangered=20 their children=3Ds physical or = emotional=20 well-being; (3) Johnny and Melissa failed to comply with = provisions=20 of a court order that specifically established the actions = necessary for=20 them to obtain the return of their children, who at the time had = been in=20 the temporary managing conservatorship of the Department for not = less than=20 nine months as a result of their removal for abuse and neglect; = and (4)=20 termination of the parent-child relationships is in the best = interests of=20 the children. The jury also found by a preponderance of = evidence=20 that CPS should be appointed sole managing conservator of the = children.=20

II. =20 Standards of Review

Because=20 termination of parental rights is a drastic remedy, due process = and the=20 Texas Family Code require the Department to prove the necessary = elements=20 by the heightened burden of proof of Aclear and=20 convincing evidence.@ =20 See Tex. Fam. = Code=20 Ann. ' = 161.001=20 (Vernon 2002); In re B.L.D., 113 S.W.3d 340, = 353B54 (Tex.=20 2003). In this case, the Department had to prove by clear = and=20 convincing evidence that Johnny and Melissa engaged in the conduct = described in subsection 161.001 (1)(D), (E), or (O), and = that=20 termination of their parental rights is in the = children=3Ds best=20 interest.^[4] = See=20 Tex. Fam. Code = Ann.=20 ' = 161.001=20 (Vernon 2002). AClear and=20 convincing evidence@ = means=20 Athe=20 measure or degree of proof that will produce in the mind of the = trier of=20 fact a firm belief or conviction as to the truth of the = allegations sought=20 to be established.@ =20 Id. ' 101.007.

In reviewing the=20 legal-sufficiency challenges to the jury=3Ds termination = findings, this=20 court must look at all the evidence in the light most favorable to = the=20 termination findings to determine whether a reasonable factfinder = could=20 have formed a firm belief or conviction that these finding are = true. =20 In re J.L., 163 S.W.3d 79, 85 (Tex. 2005). Looking at = the=20 evidence in the light most favorable to the judgment means that a=20 reviewing court must presume that the factfinder resolved disputed = facts=20 in favor of its findings if a reasonable factfinder could do = so. =20 Id. The reviewing court disregards any evidence that = a=20 reasonable factfinder could have disbelieved but does not = disregard=20 undisputed facts. Id.

In reviewing the=20 factual-sufficiency challenges to the jury=3Ds termination = findings, we must=20 give due consideration to evidence that the jury reasonably could = have=20 found to be clear and convincing. In re J.F.C., 96 = S.W.3d=20 256, 266 (Tex. 2002). The factual-sufficiency inquiry is = whether the=20 evidence is such that the jury reasonably could form a firm belief = or=20 conviction about the truth of the State=3Ds allegations. =20 Id. This court should consider whether the disputed = evidence=20 is such that a reasonable factfinder could not have resolved that = disputed=20 evidence in favor of its finding. Id. If, in = light of=20 the entire record, the disputed evidence that a reasonable = factfinder=20 could not have credited in favor of the finding is so significant = that a=20 factfinder could not reasonably have formed a firm belief or = conviction=20 about the truth of the State=3Ds allegations, then = the=20 evidence is factually insufficient. Id. We must = give=20 due deference to a jury=3Ds factfindings, and = we should=20 not supplant the jury=3Ds judgment with our = own. =20 In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006).

In reviewing the = no-evidence=20 challenges to the jury=3Ds = sole-managing-conservatorship=20 findings, we must consider evidence in the light most favorable to = the=20 challenged finding and indulge every reasonable inference that = would=20 support it. City of Keller v. Wilson, 168 S.W.3d 802, 823 = (Tex.=20 2005). We must credit favorable evidence if a reasonable = factfinder could=20 and disregard contrary evidence unless a reasonable factfinder = could=20 not. See id. at 827. We must determine whether = the=20 evidence at trial would enable reasonable and fair‑minded = people to find=20 the facts at issue. See id. The jury is = the only=20 judge of witness credibility and the weight to give to = testimony. =20 See id. at 819.

In reviewing the=20 factual-sufficiency challenges to the jury=3Ds = sole-managing-conservatorship=20 findings, we examine the entire record, considering both the = evidence in=20 favor of, and contrary to, the challenged findings. Cain = v.=20 Bain, 709 S.W.2d 175, 176 (Tex. 1986). After considering = and=20 weighing all the evidence, we set aside the fact findings only if = they are=20 so contrary to the overwhelming weight of the evidence as to be = clearly=20 wrong and unjust. Pool v. Ford Motor Co., 715 S.W.2d = 629, 635=20 (Tex. 1986). The jury is the sole judge of the credibility = of the=20 witnesses and the weight to be given to their testimony. = GTE=20 Mobilnet of S. Tex. v. Pascouet, 61 S.W.3d 599, = 615B16 (Tex. = App.CHouston [14th Dist.] = 2001, pet.=20 denied). We may not substitute our own judgment for = that of=20 the trier of fact, even if we would reach a different answer on = the=20 evidence. Maritime Overseas Corp. v. Ellis, 971 = S.W.2d 402,=20 407 (Tex. 1998). The amount of evidence necessary to affirm = a=20 judgment is far less than that necessary to reverse a = judgment. =20 Pascouet, 61 S.W.3d at 616.

III. =20 Issues and Analysis

In one issue, Melissa = argues=20 the evidence is legally, or in the alternative factually, = insufficient to=20 support the following jury findings: (1) that she engaged in = conduct or=20 knowingly placed all of the children with persons who engaged in = conduct=20 that endangered the children=3Ds physical or = emotional=20 well-being; (2) that she knowingly placed or knowingly allowed all = of the=20 children to remain in conditions or surroundings that endangered = their=20 physical or emotional well-being; (3) that she failed to comply = with=20 provisions of a court order that specifically established the = actions=20 necessary for her to obtain the return of her children, who have = been in=20 the temporary managing conservatorship of the Department for not = less than=20 nine months as a result of their removal for abuse and neglect; = (4) that=20 termination of the parent-child relationship she shares with each = of the=20 children is in each child=3Ds best interest; and = (5) that=20 CPS should be appointed sole managing conservator of the = children. =20

Johnny brings the = same five=20 challenges as to David, Amy, and Addy.^[5] = In=20 addition, Johnny alleges that the trial court abused its = discretion by=20 excluding the testimony of Sherri Simmons, his designated expert = on=20 adoption and sibling issues. However, because Johnny failed = to=20 specifically present this issue to the trial court in a timely = filed=20 statement of appellate points or in such a statement combined with = his=20 motion for new trial, Johnny has waived this issue. See = Tex. Fam. Code Ann. = ' 263.405(b), (i) = (Vernon Supp.=20 2006) (barring an appellate court from considering any issue not=20 specifically presented to the trial court in either a timely filed = statement of points the party intends to appeal or such a = statement=20 combined with a motion for new trial). Accordingly, we = overrule this=20 issue.

A. Is=20 the evidence legally and factually sufficient to support = termination under=20 161.001(1)(O)?

Paragraph=20 (O) of subsection 161.001(1) provides that one basis for = establishing the=20 parental-conduct prong required for termination of parental rights = is that=20 a parent Afailed to=20 comply with the provisions of a court order that specifically = established=20 the actions necessary for the parent to obtain the return of the = child who=20 has been in the permanent or temporary managing conservatorship of = the=20 [Department] for not less than nine months as a result of the=20 child=3Ds removal=20 from the parent under Chapter 262 for the abuse or neglect of the=20 child.@ =20 Tex. Fam. Code Ann.=20 ' = 161.001(1)(O) (Vernon Supp. 2006).

There is=20 no dispute that at the time of trial the children had been in the=20 temporary managing conservatorship of the Department for not less = than=20 nine months as a result of the children=3Ds removal=20 from Johnny and Melissa under Chapter 262 for abuse or neglect.^[6] = Furthermore,=20 the evidence shows, and Johnny and Melissa do not dispute, that = the trial=20 court signed an order, in which the trial court ordered Johnny and = Melissa=20 to take the following specific actions that the trial court stated = were=20 necessary for them to obtain the return of the = children:

(1) =20 submit to and cooperate fully in the preparation of a = psychological=20 assessment . . . with a psychologist designated by [CPS], and = follow all=20 recommendations of the psychologist with regard to further = assessment or=20 treatment, including but not limited to psychiatric evaluation and = treatment.

(2) =20 attend, actively participate in, and successfully complete = parenting=20 classes with a provider designated by [CPS] and to submit to [CPS] = a=20 certificate of completion for the same.

(3) =20 attend, actively participate in, and successfully complete = counseling with=20 a therapist designated by [CPS] to address the specific issues = that led to=20 the removal of the subject children from the home and to address = any=20 additional issues arising during the pendency of this case, and = follow any=20 and all recommendations of the therapist.

(4) =20 submit to and successfully complete a drug and alcohol abuse = assessment at=20 Gulf Coast Center or another treatment facility designated by = [CPS], and=20 follow all recommendations made by facility staff with regard to = further=20 assessment or treatment, whether said recommendation be for = inpatient or=20 outpatient treatment.

(5) =20 remain drug and alcohol free during the pendency of this suit . . = . and=20 submit to random drug/alcohol screenings as directed by [CPS] . .=20 .

(6) =20 maintain a safe and stable home environment, and

(7) =20 comply with each requirement set out in the original, or any = amended,=20 service plan filed with the Court during the pendency of this suit = by=20 [CPS] . . . .

Testifying=20 during the Department=3Ds=20 case-in-chief, Johnny admitted that he did not complete the = counseling=20 ordered in item (3), above. Johnny also testified that he = had not=20 complied with the court=3Ds order in=20 item (6) to maintain a safe and stable home environment. = Johnny=20 testified that his current home is not a safe and stable = environment for=20 the children. Johnny also admitted that he had not complied = with=20 each requirement set out in his service plan as ordered by the = trial court=20 in item (7). Explaining that his job allows him to not work = on any=20 given day if he has something he needs to do, Johnny testified = there is no=20 reason why he could not have taken off work to finish his = counseling, to=20 maintain his home, and to take care of his responsibilities with=20 CPS.

Likewise,=20 Melissa, testifying during the Department=3Ds=20 case-in-chief, admitted that she did not follow all = recommendations of her=20 psychologist as required in item (1). Melissa admitted that = she did=20 not successfully complete counseling with her therapist as = required in=20 item (3). Additionally, Melissa testified that she had not = complied=20 with the court=3Ds order in=20 item (6) to maintain a safe and stable home environment for her=20 children. Melissa also admitted that she had not complied = with each=20 requirement set out in her service plan as ordered by the trial = court in=20 item (7). Johnny also testified that he was aware that = Melissa was=20 not undergoing the therapy and completing the counseling ordered = by the=20 trial court.

CPS=20 referred Johnny and Melissa to therapist Provilla Scruggs for = their=20 counseling as required by item (3) above. Scruggs testified = that=20 Melissa did not successfully complete counseling as ordered by the = trial=20 court. Scruggs also stated that Melissa did not even make=20 substantial progress in successfully completing this = counseling. =20 Scruggs listed seven treatment goals that Melissa and she had = developed=20 for Melissa=3Ds=20 counseling. Scruggs testified that Melissa had achieved only = one of=20 these goals. Though Melissa had made some progress on = two of=20 the goals, she had not achieved the remaining four goals. = Scruggs=20 testified that she had eleven counseling sessions with Melissa = between=20 July and December of 2005. Melissa failed to appear for a = counseling=20 appointment on December 1, 2005, and after her counseling session = on=20 December 22, 2005, Melissa never again appeared for further = sessions to=20 complete her counseling. Scruggs called Melissa a few times = and saw=20 her once in the CPS parking lot. Melissa called in April = 2006, and=20 Scruggs made an appointment for counseling; however, Melissa later = canceled, saying she had car trouble.

Scruggs=20 first saw Johnny in September 2005, after he was released from = jail. =20 Scruggs removed Johnny from her schedule after he failed to appear = for two=20 sessions, and she testified that she had not seen him since = January=20 2006. According to Scruggs, she provided Johnny and Melissa = many=20 chances to complete their court-ordered counseling, yet they = failed to do=20 so.

Carolyn=20 Davis, Johnny and Melissa=3Ds CPS=20 caseworker also testified as follows:

! =20 Melissa completed her court-ordered services to a degree. In = the=20 fall of 2005, Melissa completed everything and was Agoing to everything = aggressively.@ However, in = early=20 2006, legal problems got in the way, and Melissa dropped out of = the=20 counseling.

! =20 To Davis=3Ds knowledge, = Melissa followed=20 the recommendations of her psychologist.

! =20 To Davis=3Ds knowledge, = Melissa had not=20 been taking her medications for her bipolar disorder.

! =20 Johnny and Melissa have not maintained a safe and stable home as = ordered=20 by the trial court.

! =20 When asked whether Johnny had completed his court-ordered = services, Davis=20 answered Ayes@ and stated that = Johnny had=20 done the psychological assessment, the drug assessment, parenting = classes,=20 and the counseling until Alegal problems got = in the way=20 and he dropped out.@ However, she also = testified=20 that Johnny had not completed the court-ordered services because = he did=20 not complete the counseling.

! =20 Davis believes that Johnny and Melissa have substantially = completed their=20 court-ordered services.

! =20 Johnny and Melissa were told multiple times that they needed to = complete=20 their court-ordered services and comply with the trial = court=3Ds orders within one = year of=20 the children coming into CPS=3Ds care.

! =20 Johnny and Melissa failed to comply with the provisions of the = trial=20 court=3Ds order = establishing what was=20 necessary for the children to be returned to their home. =

! =20 Davis no longer believes that Johnny and Melissa substantially = completed=20 the court-ordered services. They were Aover 51=20 percent,@ = but they=20 were not substantially complying.

Johnny and=20 Melissa assert in their issues that there is legally and factually = insufficient evidence to support the jury=3Ds finding=20 that they Afailed to=20 comply with the provisions of a court order that specifically = established=20 the actions necessary for [them] to obtain the return of the=20 children.@ =20 However, Johnny and Melissa do not explain how there is no = evidence that=20 they failed to comply with the trial court=3Ds=20 order. This is not surprising because Johnny testified that = he=20 failed to comply with three of the seven items in the = court=3Ds order,=20 and Melissa testified that she had failed to comply with four of = the seven=20 items.

Instead,=20 in their appellate briefing, Johnny and Melissa focus on the parts = of=20 Davis=3Ds=20 testimony in which she stated that Johnny and Melissa had = substantially=20 completed the requirements ordered by the court. This = argument=20 raises the issue as to whether substantial completion is = sufficient to=20 avoid a termination finding under section 161.001(1)(O). = Johnny and=20 Melissa assert that, because this court must strictly construe = termination=20 statutes in favor of the parents, we should construe section = 161.001(1)(O)=20 as requiring only substantial compliance with or completion of the = trial=20 court=3Ds=20 order. Johnny and Melissa have not cited, and this court has = not=20 found, any cases holding that substantial completion or = substantial=20 compliance is sufficient to avoid a finding under section = 161.001(1)(O).^[7] =20 Research reveals that substantial completion or substantial=20 compliance is not enough to avoid a termination finding under this = section. See In re T.N.F., 205 S.W.3d 625, = 630B31 (Tex.=20 App.CWaco 2006,=20 pet. denied) (indicating the parents must comply with every=20 requirement of the court order and holding that section = 161.001(1)(O) does=20 not allow for consideration of excuses as to why parents failed to = comply=20 with all provisions of the court=3Ds order);=20 In re D.L.H., No. 04-04-00876-CV, 2005 WL 2989329, at *2 = (Tex.=20 App.CSan=20 Antonio Nov. 9, 2005, no pet.) (mem. op.) (rejecting = parents=3D = arguments=20 that substantial compliance is sufficient to avoid a finding under = section=20 161.001(1)(O)); see also In re J.R., No. 14-01-01042-CV, = 2002 WL=20 31318790, at *8 (Tex. App.CHouston=20 [14th Dist.] Oct. 17, 2002, no pet.) (not designated for = publication)=20 (stating that section 161.001(1)(O) requires the parent in = question to=20 comply with all of the terms of the court=3Ds=20 order).

Nevertheless,=20 we need not address whether substantial completion or substantial=20 compliance may be sufficient to avoid a finding under section=20 161.001(1)(O) because, presuming without deciding that it is = sufficient,=20 the evidence is still legally and factually sufficient to support = the=20 jury=3Ds findings=20 under section 161.001(1)(O). In part of her testimony, Davis = initially indicated that Johnny had completed his court-ordered = services=20 and that Johnny and Melissa had substantially completed their=20 court-ordered services. However, Davis = retracted=20 this testimony, later testifying that Johnny and Melissa failed to = substantially comply with the trial court=3Ds order. We = conclude the=20 jury reasonably could have credited the parts of Davis=3Ds testimony = supporting a=20 conclusion that Johnny and Melissa did not substantially comply = with the=20 court order or substantially complete the actions ordered by the = trial=20 court. See In re=20 J.P.B., 180=20 S.W.3d 570, 573 (Tex. 2005) (stating that, in reviewing = sufficiency of the=20 evidence in cases involving Aclear and=20 convincing@ = burden of=20 proof, appellate courts must defer to the jury=3Ds=20 credibility determinations, at least as long as they are not=20 unreasonable). Furthermore, = Stephanie Sammons,=20 Davis=3Ds supervisor at CPS, = testified=20 as to her=20 belief that Johnny and Melissa had not substantially complied with = their=20 court-ordered services and other requirements necessary for the = children=20 to be returned. Likewise, the testimony of Scruggs, Johnny, and = Melissa=20 also support the conclusion that Johnny and=20 Melissa did not substantially complete their court-ordered = services or=20 substantially comply with the trial court=3Ds=20 order = specifically=20 establishing the actions necessary for the children to be = returned. =20

Reviewing all the = evidence in=20 the light most favorable to the termination findings, we conclude = that a=20 reasonable factfinder could have formed a firm belief or = conviction as to=20 the truth of the termination findings under section=20 161.001(1)(O). =20 See In re T.N.F., 205 S.W.3d at 630B31=20 (holding evidence was legally and factually sufficient to = support=20 termination of father=3Ds parental=20 rights under section=20 161.001(1)(O) = based on=20 his failure to comply with all twelve of the specific actions = listed in=20 the trial court=3Ds order);=20 In re D.L.H., 2005 WL 2989329, at *2 (holding evidence was = legally=20 and factually sufficient to support termination of = parents=3D = rights=20 under section=20 161.001(1)(O) = based on=20 their failure to fully comply with only two items in the trial=20 court=3Ds order);=20 In re J.M.M., 80 S.W.3d 232, 244 (Tex. App.CFort Worth=20 2002, pet. denied) (concluding that, even presuming that = substantial=20 compliance could be sufficient to avoid termination under = section=20 161.001(1)(O), evidence=20 was legally and factually sufficient to support termination of=20 mother=3Ds parental=20 rights under this section), disapproved on other grounds = by, In=20 re J.F.C., 96 S.W.3d 256, 267 (Tex. 2002).

In light of the = entire record,=20 the disputed evidence that a reasonable factfinder could not have = credited=20 in favor of the termination findings under section 161.001(1)(O) = is not so=20 significant that a factfinder could not reasonably have formed a = firm=20 belief or conviction as to the truth of these findings. =20 See = In re = J.F.C., 96=20 S.W.3d at 266. Giving due consideration to the evidence the = jury=20 reasonably could have found to be clear and convincing, we = conclude the=20 jury reasonably could form a firm belief or conviction about the = truth of=20 the termination findings under section 161.001(1)(O). = See=20 In re T.N.F., 205 S.W.3d at 630B31; In re=20 D.L.H., 2005 WL 2989329, at *2; In re J.M.M., 80 S.W.3d = at=20 244. Accordingly, we overrule Melissa=3Ds third=20 sub-issue and Johnny=3Ds third=20 issue, both of which challenge the sufficiency of the evidence to = support=20 the jury=3Ds findings=20 under section=20 161.001(1)(O).^[8]

B. Is=20 the evidence legally and factually sufficient to support the = findings that=20 termination is in the best interests of the children? =

In=20 Melissa=3Ds fourth=20 sub-issue and Johnny=3Ds fourth=20 issue, they assert the evidence is legally and factually = insufficient to=20 support the jury=3Ds findings=20 that termination of their parental rights is in the best interests = of each=20 of the children. The jury was instructed that some factors = that may=20 be considered in making this determination are (1) the desires of = the=20 child; (2) the emotional and physical needs of the child now and = in the=20 future; (3) any emotional and physical danger to the child now and = in the=20 future; (4) the parenting ability of the individuals seeking = custody; (5)=20 the programs available to assist these individuals to promote the = best=20 interest of the child; (6) the plans for the child by these = individuals or=20 by the agency seeking custody; (7) the stability of the home or = proposed=20 placement; (8) the acts or omissions of the parent which may = indicate that=20 the existing parent‑child relationship is not a proper one; = and (9) any=20 excuse for the acts or omissions of the parent. See = Holley v.=20 Adams, 544 S.W.2d 367, 371B72 (Tex.=20 1976). ABest=20 interest@ = does not=20 require proof of any unique set of factors, nor does it limit = proof to any=20 specific factors. Id.

CPS=20 caseworker Carolyn Davis testified that the children usually had = to be=20 reminded to hug their parents at the end of their visits. = She also=20 stated that during the visits she did not see much of a bond = between=20 Melissa and her children. Davis testified that when the = children=20 went into foster care, they were Abehind in=20 their development.@ =20 However, since being in foster care, they all had improved=20 significantly. The children were described as happy and = secure in=20 their foster placements, with all of them being in stable foster = homes for=20 several months. Davis stated that, in her opinion as a = caseworker,=20 adoption is in the best interest of these five children, which = necessarily=20 requires termination of Johnny=3Ds and=20 Melissa=3Ds parental=20 rights. Davis stated that CPS=3Ds goal for=20 the five children is adoption. The three youngest children = are=20 currently placed with foster parents who would like to adopt = them. =20 David is with one set of foster parents who would like to adopt = him, and=20 Amy and Addy are with another set of foster parents who would like = to=20 adopt them. Davis stated that it would be in their best = interests=20 for Amy, Addy, and David to be adopted together but that there is = no=20 guarantee of such an outcome. Davis also stated that the = younger=20 children=3Ds=20 half-siblings, Tommy and Adrienne are currently in separate foster = homes.

Pauline=20 Clansy, the psychologist who performed the psychological = evaluations on=20 Johnny and Melissa, testified that Johnny would be able to parent, = given=20 adequate support. She agreed that, hypothetically, if Johnny = had=20 substantially complied with his individual therapy and if he had=20 successfully completed the parenting classes, he would be able to = parent=20 the five children. However, she did not reach the same = conclusion as=20 to Melissa=3Ds=20 prospects for successful parenting. Dr. Clansy stated that = Melissa=20 has difficulty with change and problems planning and following = through=20 with activities, which make parenting a challenge. According = to Dr.=20 Clansy=3Ds reports,=20 both Johnny and Melissa suffer from some degree of bipolar = disorder. =20

Provilla=20 Scruggs, the CPS-provided therapist, stated that both Johnny and = Melissa=20 would have difficulty making the changes necessary for them = to=20 succeed as parents. Scruggs testified that she had concerns = about=20 Melissa=3Ds ability=20 to make appropriate choices and parental judgments, as well as her = ability=20 to take responsibility for the care of her five children. = Scruggs=20 stated she does not think Johnny and Melissa could provide a safe = and=20 stable home environment for their children at this time. = According=20 to Scruggs, Melissa could not provide Johnny with the stability = and=20 support he needs to even parent three of the five children. = Scruggs=20 testified that part of Melissa=3Ds problem=20 is that she has not been taking medication for her biploar = disorder. =20 Scruggs stated that, even if Melissa takes medications to address = her=20 bipolar disorder and depression, these medications may not remedy=20 Melissa=3Ds=20 difficulty making good choices or solve her various problems with = insight,=20 consistency in parenting, cleanliness of her house, and taking=20 responsibility.

A former=20 neighbor of Johnny and Melissa testified that, around 3:00 a.m., = she saw=20 four-year-old=20 Adrienne coming down the stairs from her apartment by = herself. The=20 neighbor took Adrienne back upstairs and woke up Johnny and = Melissa. =20 According to the neighbor, Melissa was not surprised and stated = that=20 A[Adrienne] does that = all the=20 time.@ The neighbor = testified=20 that this incident occurred before David fell out of the window=20 and was=20 not the incident=20 with Adrienne in which CPS was called.

Johnny=20 testified to several time periods during the children=3Ds lives in=20 which he would be living apart from Melissa and the children for=20 two to = six months=20 to give Melissa and Johnny time to Acool off.@ Johnny = admitted these=20 separations would contribute to a chaotic and unstable environment = for the=20 children. Addressing his criminal record, Johnny testified = that he=20 was on probation in three different counties for theft-by-check = and that,=20 as of trial, Johnny was not in compliance with his probation = requirements=20 in any of the three counties. Johnny acknowledged that, if = the trial=20 court in any one of these counties found that he had violated his=20 probation, he could be incarcerated for as long as one year. = Johnny=20 stated that, since he married Melissa, he has been incarcerated = five or=20 six times, and Melissa has been incarcerated three times. =

Johnny also admitted = that he=20 had a webpage on Amyspace.com,@ which included a = photograph of=20 Johnny and a statement that he was single. This webpage also = contained the statement, AI don=3Dt want = kids.@ Although = Johnny=20 acknowledged this was his webpage, he claimed not to know about = the=20 contents of the webpage and stated that he emailed the photograph = of=20 himself to Tim Shank, who then set up the webpage. Johnny = testified=20 that this webpage was created less than two weeks before trial and = that if=20 called to testify, Tim Shank would take responsibility for setting = up the=20 webpage. The next day, Tim Shank testified he did not set up = and=20 knew nothing about any webpage that Johnny had on Amyspace.com.@ Melissa = testified that=20 Johnny had been unfaithful to her while she was pregnant with = their twin=20 daughters. There was sufficient evidence for the jury = reasonably to=20 conclude that Johnny set up the webpage, which stated he was = single and=20 did not want children.

At the time of trial, = Melissa=20 was incarcerated in the Brazoria County Jail and anticipated being = in jail=20 for another eight weeks. Melissa stated that she was not in=20 compliance with the terms of her probation in another county and, = for that=20 reason, could be jailed for another six months in that = county. =20 Melissa testified that she was surprised to learn about her=20 husband=3Ds webpage but that it = did not=20 upset her. When asked why the webpage did not upset her, she = said=20 that she did not know. Melissa testified that, if the = children are=20 returned, then Johnny and she plan on getting a bigger home, = making it=20 safe, and giving the children everything they need mentally and=20 physically.

Moreover, = Johnny=3Ds and = Melissa=3Ds failure to complete = the=20 court-ordered therapy with Scruggs militates in favor of the=20 jury=3Ds finding, even = though they=20 both provided excuses for this failure. Johnny agreed at = trial that=20 he had not maintained a safe and stable home environment. = Johnny=20 testified that he had not given his children the love and = discipline they=20 require to satisfy their emotional needs. Johnny testified = that if=20 the children were returned to Johnny and Melissa and both parents = were=20 incarcerated, they would arrange for a relative, Hattie Williams = to care=20 for the children. Williams is the seventy-two-year-old=20 great-grandmother of the children=3Ds cousin. = Johnny stated=20 that, if he were incarcerated, he could not help support his = children, but=20 that Williams has support from churches and the surrounding=20 communities.

The twins=3D foster mother = testified that=20 she and her husband had been caring for the girls since June 8, = 2005, and=20 that they would like to adopt Amy and Addy. She stated that = when the=20 twins first arrived they were full of head lice and talked a lot = but not=20 in a way that the foster parents understood. They would not = answer=20 to their names but they indicated that their names were = ANoony@ and AMs. = Piggy.@ Their foster = mother=20 stated that testing indicated that Amy and Addy were one year = behind in=20 their development; however, she said they have been improving in = foster=20 care.

David=3Ds foster mother = testified that=20 David has been living with her husband and her since August=20 2005. She testified that when they began to care for him, = David had=20 very bad speech problems and difficulty with boundaries and=20 discipline. David now sees a speech therapist twice a week = and has=20 progressed quite a bit. She and her husband would like to = adopt=20 David. She also testified that she knows a foster family = that has=20 expressed a strong interest in adopting Tommy and Adrienne. = If these=20 three sets of foster parents adopt the five children, then all of = the=20 adoptive parents would know one another, which would make it = possible for=20 the children to have contact with one another in the future. =

In her case-in-chief, = Melissa=20 testified that, if the children are returned, she plans to move to = a=20 three-bedroom apartment in a complex in which they previously = lived. =20 She intends to continue the speech therapy the children are = currently=20 receiving in foster care. She said she would see a doctor = for her=20 bipolar disorder and take the medications that he = prescribed. She=20 also stated that she would get a job at a fast-food restaurant and = have=20 Hattie Williams babysit for the children while she was at = work. =20

In his case-in-chief, = Johnny=20 testified that, if the children are returned, he plans on moving = into a=20 three-bedroom apartment and seeing if the children can continue to = address=20 their developmental delays through the services they are currently = receiving while in foster care.

Stephanie Sammons,=20 Davis=3Ds supervisor at CPS, = testified=20 that she=20 believes it is in the children=3Ds best=20 interest that Johnny=3Ds and=20 Melissa=3Ds parental=20 rights be terminated. Sammons also stated that she does not = feel it=20 is in the children=3Ds best=20 interest to be separated from their brothers and sisters or to be = placed=20 in foster homes in which they potentially could bond again and = then have=20 that bond broken. Sammons testified that preserving the bond = between=20 brothers and sisters is essential to their long-term emotional=20 well-being. Sammons explained that it is in the best = interest of the=20 children that, if their natural parents=3D = parental=20 rights are terminated, the children should be placed, if possible, = with an=20 appropriate relative or close family friend who has had a = significant=20 relationship with the children. Sammons testified that, if=20 Johnny=3Ds and=20 Melissa=3D = parental=20 rights are terminated, CPS would look first for an adoptive = placement in=20 which all five children could stay together. If CPS could = not find=20 such a placement, then, according to Sammons, CPS would see if = there are=20 adoptive placements available for multiple children to maintain = contact=20 between the siblings. Sammons stated that, if the five = children=20 could not be adopted in a single placement, then CPS would = determine what=20 other adoptive placements should be pursued, including potential = adoption=20 by the foster parents with whom the children are currently = placed. =20 Sammons stated that she had never seen an instance of five = children being=20 adopted in one home, although she could not remember ever = trying to=20 place five children together. Sammons stated that she was = somewhat=20 confident that all five children could be placed = together. =20

Reviewing all the = evidence in=20 the light most favorable to the termination findings, we conclude = that a=20 reasonable factfinder could have formed a firm belief or = conviction as to=20 the truth of the jury=3Ds = findings = that=20 termination of Johnny=3Ds and=20 Melissa=3Ds parental=20 rights is in the best interests of the children. = See = Smith=20 v. Texas Dep=3Dt of Prot.=20 & Reg. Servs., 160=20 S.W.3d 673, 680B83 (Tex.=20 App.CAustin=20 2005, no pet.) (concluding evidence is legally sufficient to = support=20 best-interest finding). In light of the = entire record,=20 the disputed evidence that a reasonable factfinder could not have = credited=20 in favor of the jury=3Ds best-interest = findings is not=20 so significant that a factfinder could not reasonably have formed = a firm=20 belief or conviction as to the truth of these findings.=20 See = In re = J.F.C., 96=20 S.W.3d at 266. Giving due consideration to the evidence the = jury=20 reasonably could have found to be clear and convincing, we = conclude that=20 the evidence is such that the jury reasonably could form a firm = belief or=20 conviction about the truth of its findings that=20 termination of Johnny=3Ds and=20 Melissa=3Ds parental=20 rights is in the best interests of the children. = See = Smith, 160 S.W.3d at 680B83=20 (concluding evidence is factually sufficient to support = best-interest=20 finding); In re V.A., No. 13-06-237-CV, 2007 WL 293023, at=20 *5B7 (Tex.=20 App.CCorpus=20 Christi Feb. 1, 2007, no pet. h.) (mem. op.) (concluding evidence = is=20 factually sufficient to support best-interest findings). = Accordingly=20 we overrule Melissa=3Ds fourth=20 sub-issue and Johnny=3Ds fourth=20 issue.^[9]

C. Is=20 the evidence legally and factually sufficient to support the=20 jury=3Ds findings that CPS rather than = the=20 children=3Ds relative should be the sole managing = conservator=20 of the children?

In = Melissa=3Ds fifth sub-issue and = in=20 Johnny=3Ds fifth and sixth = issues, they=20 argue the evidence is legally and factually insufficient to = support the=20 jury=3Ds finding, by a = preponderance=20 of the evidence, that CPS, rather than Hattie Williams, should be=20 appointed sole managing conservator of the children. In = analyzing=20 these issues, we apply the familiar standard of review for legal = and=20 factual sufficiency in civil cases in which the burden of proof at = trial=20 was by a preponderance of the evidence. See Corrales v.=20 Dep=3Dt of Family and Prot. = Servs., 155=20 S.W.3d 478, 487B88 (Tex. = App.CEl Paso 2004, no=20 pet.).

Hattie Williams is a = distant=20 relative of the children who has cared for them in the past. = Melissa=20 testified that Williams is between seventy and eighty years = old. =20 According to Melissa, Williams was recently married and has = Aa lot on her = plate.@ Although she=20 acknowledged that rearing five young children is a huge = responsibility,=20 Melissa thinks it is realistic for Williams to care for the five = children,=20 all of whom have some special needs. Johnny and Melissa each = stated=20 they have no concerns with the children being placed with Williams = on a=20 long-term basis. Melissa testified that, if Johnny and she = could not=20 keep the children, then it would be in each child=3Ds best interest to = live with=20 Williams.

CPS caseworker = Carolyn Davis=20 testified that there are too many concerns about placing the = children with=20 Williams. She explained that Williams told her that she did not = think she=20 could follow the rules regarding visitation and parent access to = the=20 children. Davis also stated that she had concerns based on=20 Williams=3Ds advanced age and = the fact=20 that the children are very active, requiring a great deal of = care. =20 Davis noted that Williams recently married and that she already is = caring=20 for two of her great-grandchildren, who live in her home. =20

Hattie Williams = testified that=20 she is seventy-two years old and in very good health. She = knows,=20 loves, and has a bond with the five children. She stated she = and her=20 husband would be willing to take the children on a long-term basis = if=20 Johnny=3Ds and = Melissa=3Ds parental rights are = terminated. Williams admitted telling caseworker Davis that = Williams=20 would have trouble following instructions or the court order but = said=20 that, since then, she has talked to Davis, Johnny, and Melissa, = and now=20 would be willing to follow the instructions of CPS and the = court. =20 Williams, who has one daughter, three grandchildren, and four=20 great-grandchildren, has raised her own child as well as five = siblings, a=20 niece, a nephew, and a child who was entrusted to her for seven = years by=20 the child=3Ds parents. = Williams=20 currently has two great-grandchildren living with her during the = week, and=20 they are three and four years old. Williams said she could = take care=20 of seven children at once.

Stephanie Sammons,=20 Davis=3Ds supervisor at CPS, = testified=20 that she had issues with the children being placed with Williams = because=20 Williams already had two great grandchildren living with her that = she=20 cared for on a fairly permanent basis. Furthermore, Davis = stated=20 that Williams had informed Davis that she could not follow the = rules of=20 the court regarding visitation and maintaining contact between = children=20 and parents. Sammons stated that, even if Williams were = willing to=20 follow these rules, Sammons would have concerns about = Williams=3Ds ability to properly = manage=20 all five children in the home on a long-term basis. Under = the=20 applicable standards of review, we conclude the evidence is = legally and=20 factually sufficient to support the jury=3Ds finding that CPS, = rather than=20 Williams, should be appointed sole managing conservator of the=20 children. See Corrales, 155 S.W.3d at 489B91 (concluding that = the=20 evidence was legally and factually sufficient to support the=20 jury=3Ds finding that CPS = rather than=20 the children=3Ds grandmother should = be=20 appointed sole managing conservator upon termination of the=20 parents=3D parental = rights). =20 Accordingly=20 we overrule Melissa=3Ds fifth=20 sub-issue and Johnny=3Ds fifth=20 and sixth issues.

&= nbsp; &n= bsp; &nb= sp; &nbs= p; = ;=20 IV. Conclusion

The evidence is = legally and=20 factually sufficient to support the jury=3Ds findings regarding = the=20 parental-conduct prong under section 161.001(1)(O) and the = best-interest=20 prong. Likewise, the evidence is legally and factually = sufficient to=20 support the jury=3Ds findings that CPS, = rather=20 than Hattie Williams, should be appointed sole managing = conservator of the=20 children. Accordingly, we affirm the trial court=3Ds = judgment.

/s/ Kem=20 Thompson Frost

Justice

Affirmed and Opinion = filed May=20 17, 2007.

Panel consists of = Justices=20 Frost, Seymore, and Guzman.

^[1] =20 To protect the privacy of the parties in this case, we identify = the=20 children by fictitious names and the parents by their first names = only.=20 See Tex. = Fam. Code=20 Ann. ' 109.002(d) (Vernon = 2002).

^[2] =20 Tommy and Adrienne=3Ds father voluntarily relinquished his = parental=20 rights and is not a party to this appeal.

^[3] =20 Johnny and Melissa were both arrested this same day for = outstanding=20 warrants in other counties.

^[4] =20 Unless otherwise specified, all statutory citations in this = opinion are to=20 the Texas Family Code.

^[5] =20 Both parents=3D rights were terminated in the same = trial, and the=20 Department presented similar evidence in seeking to terminate each = parent=3Ds rights. Therefore, we address = the=20 parents=3D