In Interest of ARB (Tex.App.- Houston [14th Dist.] Oct. 27, 2009)(Yates)
(
termination of parental rights affirmed, physical abuse, child's best interest analysis)
AFFIRMED: Opinion by Justice Brock Yates  
Before Justices Brock Yates, Frost and Brown
14-08-00452-CV   In the Interest of A.R.B., C.J.T, and A.J.
Appeal from 300th District Court of Brazoria County
Trial Court Judge:  Eric Andell

MEMORANDUM OPINION

      This is an accelerated appeal from a judgment terminating the parental rights of a mother as to three
young children.  Appellant, the children’s mother, challenges the factual sufficiency of the evidence to support
the jury’s finding that termination is in the best interest of the children and that Brazoria County Children’s
Protective Service should be appointed as the sole managing conservator of the children.  We affirm.

Factual and Procedural Background

      In the early morning hours of October 18, 2006, appellant was bathing when she heard A.R.B., her oldest
child, screaming.  Roy Jackson, appellant’s boyfriend at the time, brought A.R.B. into the bathroom to wash a
wound on her face.  When he began to wash A.R.B.’s face, her skin peeled away.  Appellant questioned
Jackson about what happened to A.R.B.’s face and Jackson became angry.  Jackson choked appellant and hit
her so hard she said she lost consciousness.  Appellant testified that when she awakened after dawn, she and
her mother took A.R.B. to the hospital.  Physicians examined A.R.B. and determined that she suffered second
degree burns to her face.  Appellant told nurses at the hospital that the burns were caused by spilling boiling
water, but the physicians’ assessments were not consistent with appellant’s explanation.

      After A.R.B. was taken to the hospital, Victoria Jennings, an investigator with the Texas Department of
Family and Protective Services (“DFPS”), requested that appellant’s other two children be examined at the
Children’s Assessment Center (“CAC”) in Brazoria County.  The results of the assessments revealed that A.R.
B., who was two years old at the time, in addition to the burn on her face, had 12 different scarring patterns on
her body including a looping pattern mark consistent with physical abuse.  C.J.T., who was one year old at the
time, had several marks and scars consistent with physical abuse, and A.J., who was three and a half months
old at the time, had four broken ribs.  Jennings testified that the medical records clearly indicated that the
children’s injuries were the result of physical abuse.

      On November 2, 2006, appellant returned with the children to the Brazoria County CAC.  At that time, she
was confronted with an inconsistency between her story and her mother’s story about the timing of taking A.R.
B. to the hospital.  When confronted with the inconsistency, appellant became visibly upset, stated that “no one
was going to call her a liar,” and stormed out of the interview room.  At that time, appellant was given the
opportunity to voluntarily place the children with a family member.  She chose to place the children with her
father and stepmother.  The children were not placed with appellant’s mother and stepfather because the
stepfather had sexually abused appellant in the past.

      On November 17, 2006, Jennings learned that A.J.’s rib fractures were intentionally inflicted and would
have caused severe pain.  Jennings requested that appellant return to the CAC for another interview and
asked her why she did not seek medical attention for A.J.’s broken ribs.  Appellant responded, “that it was
bullshit,” and told Jennings to “f  - - -  off.”

      On December 4, 2006, the Brazoria County Children’s Protective Services (“CPS”) and the DFPS filed suit
seeking termination of appellant’s rights to A.R.B., C.J.T., and A.J.[1]  On December 18, 2006, the trial court
named CPS and DFPS temporary managing conservators of the children and ordered appellant to (1) submit
to a psychological assessment and follow the recommendations, (2) complete parenting classes, (3) attend
counseling sessions with a therapist, (4) complete a drug and alcohol assessment, and follow the
recommendations, (5) remain drug and alcohol free, (6) maintain a safe and stable home environment, and (7)
comply with the service plan pursuant to section 263.106 of the Texas Family Code (permitting the court to
render appropriate orders to implement or require compliance with a service plan.).  At that time, the children
were to remain with their grandparents.

      In June, 2007, Jennings received another report of additional physical abuse to the children.  During her
investigation, she learned that in the Spring of 2007, the children were moved from their grandparents’ home
to the home of appellant’s aunt whom appellant had previously accused of physical abusing her.  After the
discovery of subsequent abuse, the children were placed in foster care.  A.J. was placed with her paternal
grandmother, and A.R.B. and C.J.T. were placed in foster homes.

      On February 22, 2008, CPS and DFPS filed a second amended petition to terminate appellant’s parental
rights.  The petition alleged that appellant (1) knowingly placed or knowingly allowed the children to remain in
conditions or surroundings which endanger the physical or emotional well-being of the children, (2) engaged in
conduct or knowingly placed the children with persons who engaged in conduct which endangers the physical
or emotional well-being of the children, and (3) failed to comply with the provisions of the court order that
specifically established the actions necessary for her to obtain the return of the children.  See Tex. Fam. Code
Ann. § 161.001(1)(D),(E), & (O) (Vernon 2008).

      At trial, Jennings testified she first received a referral about the safety of appellant’s children in July, 2005,
when A.R.B. was one year old and C.J.T. was three days old.  The concerns were that appellant and the
children were living with appellant’s mother and stepfather in unsanitary living conditions.  Further, appellant
had previously accused her stepfather of sexually abusing her.  The case was closed and appellant was
directed to agencies that could assist her.  The second referral came in October 2006, when A.R.B. was seen
in the hospital for burns to her face.  When Jennings questioned appellant about why Jackson was cleaning A.
R.B.’s face in the middle of the night, appellant replied that they had run out of diapers several days earlier
and A.R.B. had soiled herself.  Jennings testified that appellant admitted to engaging in domestic violence with
Jackson while the children were either in the same room or in an adjacent room.

      Dr. James Lukefahr, a pediatrician in the child abuse division at the University of Texas Medical School,
testified that he recruited a nurse practitioner to conduct physical assessments in Brazoria County.  The nurse
practitioner’s assessments of the children revealed that A.R.B. had second degree burns on her face.  The
pattern of burns indicated that something had been applied to her face to cause the burns.  The splashing of
boiling water would have affected deeper areas of the face and was not the likely cause of the burns.  A.R.B.
had a bruise on the side of her face and a loop-shaped bruise on her right lower back.  The injuries were not
to areas that usually occur when a child accidentally injures herself.  A.R.B. had several scars that neither
appellant, nor her mother, could explain when asked.  Further, A.R.B. had linear marks on her left lower back,
which were unlikely to have occurred from a fall.  She also had a loop-shaped bruise in her genital area, which
was indicative of abuse.

      At the time of her physical assessment, A.J. was three and a half months old.  A skeletal survey revealed
she had four broken ribs that indicated they were the result of squeezing forces applied to the chest.  Her
injuries were consistent with a finding of physical abuse.  The most significant finding in C.J.T.’s physical
assessment was the grandmother’s report that Jackson had shaved a gang sign into the child’s eyebrow.  
Photographs showed that a portion of C.J.T.’s eyebrow was missing, but the photographs did not show any
particular configuration.  C.J.T. also had several scars that indicated abuse.  Dr. Lukefahr recommended that
the children not be placed in the care of the adults who cared for them during this time period.

      Dr. Ralph Noble examined the children when they were returned to CAC in May 2007, because they were
found living with appellant’s aunt rather than her father and stepmother.  At that time, A.R.B. had new scars on
her back that were consistent with physical abuse.  She also had linear marks on her back that indicated they
were most likely the result of blows struck by a belt or strap-like implement.

      Dr. Joanne Baer, the psychologist who performed a mental and academic assessment of appellant,
testified that appellant had a history of mental illness, but was not taking prescribed medication.  She had
earlier reported physical and sexual abuse, but had later recanted.  Dr. Baer found paranoid, borderline, and
antisocial traits in appellant’s personality.  Appellant’s ability to use verbal information to solve problems is in
the fourth percentile, which has an impact on her ability to make decisions concerning her children.  Dr. Baer
testified that this “configuration of difficulties” in appellant’s personality placed the children at risk for abuse or
neglect.  The results of Dr. Baer’s testing revealed that appellant was not amenable to treatment.  Dr. Baer
concluded her testimony by stating that she had “very high concerns” about permitting appellant to be
responsible for the children.

      Laura Jo Martinez, a patrol officer for the Angleton Police Department, testified that she was asked to help
CPS workers remove appellant’s youngest child, S.T., from appellant’s custody.[2]  Officer Martinez testified
that when the caseworker attempted to remove S.T. from appellant’s custody, an altercation ensued with
appellant, her mother, and her sister in which Officer Martinez was assaulted by appellant’s sister.  Both
appellant and her sister were arrested for assault on a police officer.

      Jacinda Ainsworth, a caseworker with DFPS, testified that she conducted periodic home visits with
appellant and supervised her visitation with the children.  She testified that appellant exercised her bi-monthly
visitation with the children, but the children did not appear to have formed a bond with her.  In Ainsworth’s
opinion, appellant is not capable of caring for the children.  In their foster homes, the children are doing well.  
DFPS conducted four home studies in an attempt to place the children with relatives.  One of the studies
resulted in A.J. being placed with her paternal grandmother.  A home study was conducted on a maternal aunt
to place A.R.B. and C.J.T., but she told DFPS she did not have room for two children.  A home study was
conducted on another relative, but she could take only one of the children.  A final home study was done on
appellant’s aunt, but she was denied because an allegation of physical abuse had been made against her.

      Provilla Scruggs, a psychotherapist who counseled appellant, testified that she terminated counseling
services with appellant after appellant missed her second appointment.  Scruggs did not believe appellant was
capable of maintaining healthy relationships that would protect her from additional violence.  She was of the
opinion that appellant would be unable to protect herself or her children.

      Appellant testified that each of her four children had different fathers and she was still living with the father
of the youngest child.   Appellant reported that she had been sexually abused by her stepfather to whom her
mother is still married.   Appellant was first diagnosed with depression at the age of 14 and was hospitalized
four times for depression between the ages of 14 and 17.  She stopped taking medication for depression
because it was cost prohibitive.  She admitted that her children went several days without diapers because she
could not afford to purchase them.  She has taken parenting classes and learned that her violent relationship
with Jackson was dangerous for the children.  She did not know that A.J.’s ribs were broken, but had noticed
that she had difficulty crawling and walking.  Appellant completed the psychological assessment and followed
the recommendations, completed parenting classes, remained drug and alcohol free, complied with the original
service plan, and believes she maintained a safe and stable home.  She admitted she had not completed
individual counseling.  She has gone to three different counselors because she felt like the first two counselors
were not helping her.

      The case was tried to a jury, which found that appellant (1) knowingly placed or knowingly allowed the
children to remain in conditions or surroundings which endanger their physical or emotional well-being, (2)
engaged in conduct or knowingly placed the children with persons who engaged in conduct which endangers
their physical or emotional well-being, and (3) failed to comply with the provisions of the court order that
specifically established the actions necessary for her to obtain the return of the children.  The jury further
found that termination of appellant’s parental rights was in the best interests of the children and that Brazoria
County CPS should be appointed sole managing conservator of the children.

      In two issues,  appellant asserts (1) the State failed to prove by clear and convincing evidence that
termination of the parent-child relationship is in the children’s best interests, and (2) the jury erred in
appointing Brazoria County CPS as the sole managing conservator of the children.

Standard of Review

      Due process and the Texas Family Code require DFPS to prove the necessary elements by the
heightened burden of proof of “clear and convincing evidence.”  See Tex. Fam. Code Ann. § 161.001 (Vernon
2002); In re B.L.D., 113 S.W.3d 340, 353–54 (Tex. 2003).  “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 2008).

When reviewing factual findings required to be made by clear and convincing evidence, we apply a standard of
review that reflects this burden of proof.  In a factual-sufficiency review, we must determine whether a fact
finder could reasonably form a firm belief or conviction about the truth of the allegations.  In re J.F.C., 96 S.W.
3d 256, 266 (Tex. 2002).  If, in light of the entire record, the disputed evidence that a reasonable fact finder
could not have credited in favor of the finding is so significant that a fact finder could not have reasonably
formed a firm belief or conviction, then the evidence is factually insufficient.  Id.

In reviewing the factual-sufficiency challenges to the jury’s findings that Brazoria County CPS should be the
sole managing conservator, we examine the entire record, considering both the evidence in favor of, and
contrary to, the challenged findings.  Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986).  After considering and
weighing all the evidence, we set aside the fact findings only if they are so contrary to the overwhelming weight
of the evidence as to be clearly wrong and unjust.  Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986).  
The jury is the sole judge of the credibility of the witnesses and the weight to be given to their testimony.  GTE
Mobilnet of S. Tex. v. Pascouet, 61 S.W.3d 599, 615–16 (Tex. App.—Houston [14th Dist.] 2001, pet. denied).  
We may not substitute our own judgment for that of the trier of fact, even if we would reach a different answer
on the evidence.  Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 407 (Tex. 1998).

Best Interests of the Children

In her first issue, appellant challenges the factual sufficiency of the evidence that termination is in the children’s
best interest.  There is a strong presumption that the best interests of the children are served by keeping the
children with their natural parent, and the burden is on DFPS to rebut that presumption.  In re U.P., 105 S.W.3d
222, 230 (Tex. App.—Houston [14th Dist.] 2003, pet. denied).  The Texas Supreme Court has examined
several factors in evaluating the children’s best interests, including (1) the desires of the children, (2) the
present and future physical and emotional needs of the children, (3) the present and future emotional and
physical danger to the children, (4) the parental abilities of the person seeking custody, (5) the programs
available to assist those persons seeking custody in promoting the best interests of the children, (6) plans for
the children by the individuals or agency seeking custody, (7) the stability of the home or proposed placement,
(8) acts or omissions of the parent that indicate the existing parent-child relationship is not appropriate, and (9)
any excuse for the parent’s acts or omissions.  Holley v. Adams, 544 S.W.2d 367, 372 (Tex. 1976); In re U.P.,
105 S.W.3d at 230. This list is not exhaustive, nor is evidence required on all nine factors to support a finding
terminating a parent’s rights. Holley, 544 S.W.2d at 372; In re U.P., 105 S.W.3d at 230.

In reviewing the factual sufficiency of the evidence to support termination as it relates to the best interests of
the children, we examine the evidence in light of the Holley factors:

Desires of the children.  All three children were under the age of five at the time this case was tried.  A.J. was
only three and a half months old when the children were removed from appellant’s custody.  Therefore, we
cannot determine with certainty their desires.  However, the record reflects that all three children have adjusted
well to their foster families.  The record also reflects that the children have not bonded with appellant.

Present and future physical and emotional needs of the children.  Children need permanency, security, and
medical attention when they are injured.  Appellant’s failure to seek medical attention for the children
endangered their physical well-being.  Appellant failed to notice that A.J. suffered four broken ribs despite
medical testimony that such an injury would cause excruciating pain.  The record reflected that all three
children suffered scarring and bruising,  and had not received proper medical attention.

Present and future emotional and physical danger to the child.  Appellant had a history of placing herself in
environments where she and her children were subject to physical abuse.  When the children were in appellant’
s home, she and Jackson frequently engaged in domestic violence.  The man with whom appellant lived at the
time of trial had a criminal history and a history with CPS.  The counselor testified that appellant is incapable of
protecting herself and her children from a violent environment.

      Parental abilities of the person(s) seeking custody.  The evidence shows that appellant is unable to
provide a safe and stable home for the children.  Several home studies were conducted in an attempt to place
the children with relatives, but those studies revealed that those placements would be inappropriate.             

Available assistance programs.  Appellant completed parenting classes, but did not complete counseling
sessions.  The counselors testified that appellant was not amenable to treatment.  Further, she failed to keep
her counseling appointments indicating a lack of willingness to participate in the available assistance.

      Plans for the child[ren] by those individuals or by the agency seeking custody.  The “permanency plan” of
DFPS is to permit the adoption of the children.  The DFPS caseworker testified that it was likely the children
would be adopted because they were young and had no long-term medical issues other than recovery from
their injuries.

      Stability of home or proposed placement.  Appellant’s home is not a safe and stable environment for the
children because she is currently living with an individual who has physically abused her and the children.  
Appellant’s sister, who allegedly assaulted a police officer, is frequently in appellant’s home.  Further, appellant
lives with a man who has a criminal history and history with CPS.  Appellant received no child support because
the fathers’ rights to the children were terminated.  The children are currently living in foster care to which they
have adjusted and DFPS is seeking to place them for permanent adoption.

      Acts or omissions of the parent.  Appellant continues to live in a home with domestic violence.  She
engaged in domestic violence in the presence of her children and failed to seek medical attention after they
were physically abused and suffered serious injuries.  The voluntary placement of the children was
unsuccessful because they were moved from the voluntary placement to a home where they were physically
abused.

      Any excuse for the acts or omissions of the parent.  Appellant was physically and sexually abused by her
stepfather and suffered from depression.  She has failed to take medication for depression and has failed to
complete counseling.  She subjects herself to abusive environments, and has been unable to protect the
children from violence.

      Giving due consideration to the evidence the jury reasonably could have found to be clear and convincing,
we conclude that the evidence is such that the jury reasonably could form a firm belief or conviction that
termination of appellant’s parental rights is in the best interests of the children.  See In re M.G.D., 108 S.W.3d
508, 530 (Tex. App.—Houston [14th Dist.] 2003, pet. denied).  Accordingly, we overrule appellant’s first issue.

Conservatorship Finding

In her second issue, appellant argues the jury erred in appointing Brazoria County CPS as the sole managing
conservator of the children.  Appellant relies on section 263.404 of the Texas Family Code, which provides the
procedure for a final order appointing DFPS as managing conservator without terminating parental rights.  Tex.
Fam. Code Ann. § 263.404 (Vernon 2008).  Appellant’s second issue is dependent on a favorable outcome to
her first issue.  Because we have found factually sufficient evidence to support the jury’s finding of termination,
we overrule appellant’s second issue.

Accordingly, the judgment of the trial court is affirmed.

                                                                  /s/        
Leslie B. Yates

                                                                              Justice


Panel consists of Justices Yates, Frost, and Brown.


[1] Each of appellant’s children has different fathers whose rights have also been terminated.

[2] At the time A.R.B., C.J.T., and A.J. were removed from appellant’s custody, she was pregnant with S.T.