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Opinion issued December = 21,=20 2006 For=20
The NO.=20
01-04-01233-CV NO.=20
01-05-00124-CV NO.=20
01-05-00126-CV NO.=20
01-05-00127-CV
ERICKA =
SHANETTE=20
COLBERT, Appellant DEPARTMENT OF FAMILY=20
& PROTECTIVE SERVICES, Appellee
On =
Appeal from the=20
314th District Court Harris =
County,=20
Texas Trial =
Court Cause=20
Nos. 1996-43960, 2002-25084, 2004-03601J,=20
2003-04414J, & 2003-14864
O P I N =
I O=20
N Appellant, Ericka Shanette =
Colbert,=20
appeals five orders terminating her parental rights to her seven =
children,=20
T.J.C. and T.D.C. (the twins), and D.N.C., T.L.J., T.B.J., E.D.C., =
and=20
J.D.M (the five older children).
In April 2003, appellant was =
living in a=20
three-bedroom house with her five children, ten-year-old D.N.C.,=20
eight-year-old J.D.M., In May 2003, the Department of =
Protective=20
and Regulatory Services, the predecessor of the Department of =
Family and=20
Protective Services ("DFPS"), took possession of appellant's five =
children=20
and filed a petition for protection of a child, for =
conservatorship, and=20
for termination of appellant's parental rights with respect to =
each of her=20
five children. Jackson was=20
out of jail on bond while he awaited his trial, and DFPS had told=20
appellant not to allow Jackson to be around the children. However, =
appellant did not believe that Jackson's actions had caused T.J.'s =
death,=20
and she let Jackson move back into the house. DFPS later learned =
that=20
Jackson was living in the house and removed the children from =
appellant.=20
DFPS placed J.D.M with his paternal grandfather and the other =
children=20
with the grandmother, who, along with Newman, still lived in =
appellant's=20
house. Appellant moved out of the house, stayed with a cousin, and =
visited=20
her children during the day. After DFPS=20
took custody of the children, The Children's Crisis Care Center =
(the CCCC)=20
did a family evaluation, during which appellant revealed that the=20
grandmother had a history that included drug convictions, that she =
was=20
currently on parole, and that she no longer used drugs and had =
made a=20
better life for herself. DFPS learned that the grandmother also =
had=20
convictions for prostitution and burglary, and that Newman had =
convictions=20
for aggravated robbery, breaking and entering, and possession of =
cocaine.=20
In December 2003, DFPS took possession of the four children and =
put them=20
in substitute care. J.D.M. remained with his grandfather. At the =
time of=20
trial, the two boys were in the same foster home and the two girls =
were=20
each in different foster homes. DFPS=20
offered various services to appellant and her family as a part of =
DFPS's=20
permanency planning. Appellant participated in therapy, parenting =
classes,=20
and anger management classes and was allowed supervised visits =
with the=20
children for one hour every two weeks. Appellant attended all the =
family=20
visits allowed by DFPS and made all her court appearances. =
On January=20
30, 2004, appellant gave birth to T.D.C. and T.J.C., whose father =
was=20
Jackson. In April 2004, DFPS removed the =
two-and-one-half-month-old twins=20
from appellant's home. DFPS filed a petition for protection,=20
conservatorship, and termination of parental rights with respect =
to the=20
twins. The five cases, which included all seven children, were =
tried=20
together in November 2004.
At her=20
trial in November 2004, appellant testified that she saw Jackson =
spank=20
T.J. only one time--with a belt on April 5. Brenda=20
Hornaday, the therapist who treated four of the five older =
children=20
beginning in about August 2003, testified that she visited with =
the=20
children in appellant's home weekly and that her primary focus =
with the=20
children was behavior modification. She said that the house was =
orderly,=20
but that there was chaos. She testified that there were a lot of =
people in=20
the house and that children were always present. She said that the =
grandmother allowed her to conduct the therapy in the =
grandmother's=20
bedroom. Hornaday testified that, based on her visits, she could =
not=20
assess whether the home environment was conducive to the =
children's=20
return. She said that she had no opinion regarding the termination =
of=20
appellant's parental rights. She thought that the children would =
be able=20
to deal with never going back to their mother. She said that the =
children=20
needed consistency, stability, structure, and patience and were =
getting=20
some of those things at home, but that they need all of those =
things.=20
Hornaday=20
testified that all the children were very much bonded with their =
mother=20
and that they loved Jackson. She said that two of the children =
told her=20
that they got "whippings," but did not say by whom, and she did =
not ask.=20
She was not able to address the severity of the whippings, because =
the=20
children did not talk about that. She testified that the children =
would=20
need continuing therapy, and that, if they were returned to their =
mother,=20
Hornaday would continue to treat them. She also stated that, if =
stability,=20
consistency, patience, and structure could prevail in the chaos in =
appellant's home, it would be in the best interest of the children =
to=20
return them to their mother. If not, returning them would not be =
in their=20
best interest. She stated that she did not have sufficient =
information on=20
appellant to assess whether appellant could develop the needed =
attributes.=20
She knew that family visitations were scheduled every two weeks, =
but she=20
had never observed one. In response to a hypothetical situation in =
which a=20
mother had one hour to visit with all her children, she responded =
that it=20
was possible that one child might feel neglected. Kenneth=20
Williamson, J.D.M.'s paternal grandfather, testified that J.D.M. =
had been=20
living with him for about a year and had previously lived with him =
from=20
the ages of five months to eight or nine years. He testified that =
J.D.M.=20
lived with him because Williamson did not like the atmosphere at=20
appellant's home, with its "[i]n and out traffic," which he =
suspected was=20
drug trafficking, although he could not be sure. He said that =
appellant=20
visited J.D.M. "two, three, four times at the most" and that =
J.D.M. spent=20
some weekends with appellant. He testified that J.D.M. saw =
appellant as a=20
mother figure and that the two had a close bond. He opined that =
appellant=20
loved all her children, but made bad choices. He said he would not =
have=20
concerns if J.D.M. went back to appellant's home, but would have =
concerns=20
if the home had the same environment as before. He had attended =
the family=20
visits and thought that appellant treated all the children the =
same.=20
David=20
Cooney, the children's guardian ad litem through Child Advocates, =
had been=20
involved in the case since August 2003. He testified that he =
visited the=20
home before the children were removed and had concerns about the =
presence=20
of Kenneth Newman, the grandmother's boyfriend, in the home =
because of his=20
criminal record. Cooney also testified that he had concerns about =
the=20
grandmother's extensive criminal history. He further testified =
that, in=20
December 2003, he recommended to the court that the children be =
removed=20
from the home because of his concerns about appellant's minimizing =
Jackson's role in the death of T.J. and appellant's failure to =
acknowledge=20
her own responsibility to protect T.J. or to admit the severity of =
T.J.'s=20
bruises. However, he testified that, if appellant had recognized =
that=20
Jackson was responsible for T.J.'s death, he would not have =
changed his=20
mind about termination. Cooney felt=20
that the 28 months of services appellant received after the death =
of her=20
infant son in 1998 had been ineffective because she had another =
child=20
after those services had been completed. However, he denied =
holding the=20
birth of that child against her, but explained that he saw a =
pattern in=20
her life of choosing men who wound up in prison. He testified that =
the=20
initial goal of Child Advocates in this case, like that of DFPS, =
was=20
family reunification, but that goal was changed in December 2003 =
to=20
reunification/adoption when they discovered that Newman was still =
living=20
in the house. However, Cooney could not recall telling appellant =
that=20
Newman should move out, and the record does not reveal how or when =
appellant was told that Newman could not live in the home. =
Cooney=20
testified that, during the family visits, which were customarily =
one hour=20
long, appellant gave most of her time to the twins; the other five =
did not=20
get equal time and would play with each other, sit by themselves, =
or play=20
games. He stated that he thought that appellant could ask for more =
time=20
and that she did ask for and receive an extra hour to visit T.L.J. =
when he=20
was in the hospital. He said he thought that the children love =
appellant,=20
but that they don't show affection as he thinks children would. He =
also=20
stated that he did not know whether it is normal for a mother to =
spend=20
more time with babies than with older children. Cooney=20
testified that, when he visited the children in appellant's home, =
they=20
were exuberant and hard to settle down. In his opinion, appellant =
could=20
not give the structure that they needed, and he had not seen that =
she had=20
the will to change. He further testified that, since their =
placement in=20
substitute care, the children's school work had improved and that =
he=20
believed termination of appellant's parental rights was in the =
best=20
interest of the children. Adrienne=20
Aiken, the DFPS caseworker, testified that the goal for services =
changed=20
from reunification to adoption first with the twins in the spring =
of 2004=20
shortly after they were removed from appellant's home on April 15. =
The=20
decision was formally made at a meeting of the Permanency Planning =
Team=20
(PPT) in May. She further testified that the goal for all the =
children=20
changed to adoption in June based on incidents over the period of=20
Jackson's trial and appellant's minimization of both Jackson's and =
appellant's roles in the death of T.J. Aiken=20
testified that appellant's rights should be terminated because =
Aiken=20
believed that all the children had been abused and =
neglected--physically=20
abused and neglected and emotionally neglected. She stated that =
she could=20
see the results of that abuse and neglect in the children's =
behavior, such=20
as the way they socialize and respond to people and the language =
they use,=20
telling teachers to "Kiss my butt" and using "more graphic =
language." As a=20
further example, she said that T.L.J. was hospitalized for =
threatening to=20
kill a child at school. But she also testified that when someone =
talked to=20
T.L.J. about the threat, he did not know that "killing" meant what =
had=20
happened to T.J., and, according to Aiken, he was "horrified" that =
he had=20
said that to someone. Aiken also=20
testified that she had been at all of appellant's family visits =
with the=20
children and observed that there was not a "big bond" with the =
children=20
and not a "lot of nurturing" by appellant. Aiken stated that, when =
she=20
asked appellant to give special attention to E.D.C., appellant did =
not do=20
so. The twins got almost all the attention. She testified that she =
believed that termination of appellant's rights was in the best =
interest=20
of the children because she believed that the children deserved an =
opportunity for permanency, stability, and consistency in their =
lives. She=20
also stated that she believed the children were adoptable. She =
said that=20
she was not disputing that appellant had completed the services =
offered to=20
her. Aiken=20
testified that, although appellant had made all the family visits =
and=20
court appearances, she had not done everything she was asked to =
do.=20
According to Aiken, appellant had not obtained appropriate =
housing, and=20
Aiken had not seen proof that appellant had a job and was making =
the wages=20
she claimed. Aiken said that the problem with the house appellant =
was=20
currently living in was that T.J.'s death had occurred there and =
the=20
children should not be living in that house. When asked whether =
Aiken had=20
told appellant that, if appellant got other housing, it would =
change=20
Aiken's opinion about termination, Aiken responded, "When the plan =
was=20
given to Miss Colbert that she signed, it was - - that's what it =
said."=20
The=20
attorney ad litem for the children asked Aiken how he could =
guarantee that=20
the children would get to see each other if appellant's parental =
rights=20
were terminated. Aiken testified that the children could visit =
while they=20
were in foster care and said, "And who is to [say] that somebody =
will not=20
adopt all of them?" She further testified that "we don't know that =
they're=20
going to be adopted in the homes that they're in particularly."=20
The=20
grandmother testified that the children had plenty of food, were=20
well-clothed, and were disciplined by taking away privileges. She =
said=20
that she did not spank the children, but disciplined them in the =
same way=20
as appellant. She said that she would be willing to move out of =
the house=20
if it would help appellant keep the children. Kenneth=20
Newman, the grandmother's boyfriend, testified that he had lived =
in=20
appellant's house one or two years and had moved out in January =
2004. Newman also=20
testified that he never saw appellant whip the children. She =
disciplined=20
them by sending them to their room or restricting their access to=20
television or their bicycles. Newman admitted that he had =
convictions for=20
the offenses of aggravated robbery, possession of drug =
paraphernalia, and=20
criminal trespass. He also admitted that he had used illegal =
drugs, but=20
said that he did not do so in the house. 8.=20
Other Evidence The signed=20
Family Service Plan in the record shows, as one of four goals, =
that=20
"Ericka Colbert will maintain housing that is safe and free of=20
environmental hazards." In another section, it elaborates: "Ericka =
Colbert=20
will locate and maintain appropriate housing." The plan does not =
indicate=20
that appellant's three-bedroom home was unsafe or inappropriate, =
nor does=20
it indicate that finding other housing was a condition of =
retaining her=20
parental rights. Moreover, a February 2004 "Permanency Plan and =
Permanency=20
Progress Report," which was filed with the trial court, stated, =
"Erika=20
Colbert has located and maintained employment and has appropriate =
housing.=20
. . . Ms. Colbert has employment and has provided CPS with a =
statement of=20
earnings." Aiken's=20
testimony that appellant did not give additional attention to =
E.D.C. as=20
requested was contradicted by Aiken's "CPS Monthly =
Summary/Assessment" for=20
September 2004. Her notes for September 20, 2004 state, "Ms. =
Hornaday=20
asked if [caseworker] could speak with mother about giving =
attention to=20
[E.D.C.]." Aiken's notes for September 28, 2004 state, "[Mother] =
gave more=20
attention to E.D.C. and held him on her lap for a few minutes."=20
In all five=20
cases, the trial court entered a order terminating appellant's =
parental=20
rights to her children. Each order also terminated the father's =
parental=20
rights, but those terminations are not challenged in these =
appeals.=20
Because both the mother's and father's parental rights were =
terminated,=20
the trial court appointed DFPS as the sole managing conservator of =
the=20
children. With=20
respect to appellant, each order provided as follows: The Court=20
finds by clear and convincing evidence that termination of the=20
parent-child relationship between ERICKA SHANETTE COLBERT and the =
[child=20
or children], the subject of this suit is in the [child or =
children's]=20
best interest. Further,=20
the Court finds by clear and convincing evidence that ERICKA =
SHANETTE=20
COLBERT has: knowingly=20
placed or knowingly allowed the [child or children] to remain in=20
conditions or surroundings which endanger the physical or =
emotional=20
well-being of the [child or children], pursuant to =
=A7 161.001 (1)(D)=20
of the Texas Family Code[.] Appellant=20
challenges the legal and factual sufficiency of the evidence to =
support=20
these findings.
"The=20
natural right that exists between parents and their children is =
one of=20
constitutional dimensions." In re J.W.T., 872 S.W.2d 189, =
194-95=20
(Tex. 1994) (quoting Wiley v. Spratlan, 543 =
S.W.2d 349,=20
352 (Tex. 1976)). A parent's right to "the companionship, care, =
custody=20
and management" of her children is a constitutional interest "far =
more=20
precious than any property right." Santosky v. Kramer, =
455 U.S.=20
745, 758-59, 102 S. Ct. 1388, 1397 (1982) (quoting Stanley v.=20
Ill., 405 U.S. 645, 651, 92 S. Ct. 1208, 1212 (1972)). "Due =
process=20
requires that the State support its allegations by at least clear =
and=20
convincing evidence" to reduce the risk of erroneous termination.=20
Id., 455 U.S. at 747-48, 102 S. Ct. at 1391-92; In re =
B.L.D., 113 S.W.3d 340, 353-54 (Tex. 2003). Therefore, in a =
case=20
terminating parental rights, we strictly scrutinize the =
proceedings and=20
strictly construe the law in favor of the parent. Holick v.=20
Smith, 685 S.W.2d 18, 20 (Tex. 1985). There is a=20
strong presumption that it is in the best interest of the child to =
keep=20
custody in the natural parent. In re K.C.M., 4 S.W.3d =
392, 395=20
(Tex. App.--Houston [1st Dist.] 1999, pet. denied), =
disapproved on=20
other grounds, In re C.H., 89 S.W.3d 17, 26 (Tex. =
2002).=20
DFPS has the burden to rebut this presumption by clear and =
convincing=20
evidence. Id. To be clear and convincing, the proof must =
produce=20
in the mind of the trier of fact a firm belief or conviction as to =
the=20
truth of the allegations sought to be established. Tex. Fam. Code =
Ann. =A7=20
101.007 (Vernon 2002); In re J.F.C., 96 S.W.3d 256, 264 =
(Tex.=20
2002). The distinction, often fine, between a legal-sufficiency =
and a=20
factual-sufficiency review lies in how the evidence is viewed. =
In re=20
J.F.C., 96 S.W.3d at 266. In reviewing for legal sufficiency, =
we must=20
look at all the evidence in the light most favorable to the =
finding to=20
determine whether the evidence is such that a factfinder could =
reasonably=20
have formed a firm belief or conviction that the finding was true. =
Id. We assume that the factfinder resolved disputed facts =
in=20
favor of its finding if a reasonable factfinder could do so. =
Id.=20
We disregard evidence that a reasonable factfinder could have =
disbelieved,=20
but we do not disregard undisputed facts that do not support the =
finding.=20
Id. In a=20
factual-sufficiency review, we consider the entire record to =
determine=20
whether a factfinder could reasonably form a firm belief or =
conviction=20
about the truth of the State's allegations. In re C.H., =
89 S.W.3d=20
at 28. If, in light of all the evidence, the disputed evidence =
that a=20
reasonable factfinder could not have credited in favor of the =
finding is=20
so significant that a factfinder could not reasonably have formed =
a firm=20
belief or conviction, then the evidence is factually insufficient. =
In=20
re J.F.C., 96 S.W.3d at 266. If a court of appeals determines =
that=20
the evidence is factually insufficient, it should detail in its =
opinion=20
why it has concluded that a reasonable factfinder could not have =
credited=20
disputed evidence in favor of the finding. Id. at 267.=20
To=20
terminate the parent-child relationship, a court must find by =
clear and=20
convincing evidence that the parent has committed one of the acts =
listed=20
in section 161.001(1) of the Family Code and that termination is =
in the=20
best interest of the child. See Tex. Fam. Code Ann. =A7 =
161.001(1),=20
(2) (Vernon Supp. 2006). The failure to prove either of these =
elements=20
will prevent termination of a parent's rights. See In re =
U.P.,=20
105 S.W.3d 222, 229 (Tex. App.--Houston [14th Dist.] 2003, pet. =
denied)=20
("Proof of one element does not relieve petitioner from =
establishing the=20
other."). "[T]he best interest standard does not permit =
termination merely=20
because a child might be better off living elsewhere. Termination =
should=20
not be used to merely reallocate children to better and more =
prosperous=20
parents." In re D.M., 58 S.W.3d 801, 814 (Tex. App.--Fort =
Worth=20
2001, no pet.). In her=20
first issue, appellant challenges the legal and factual =
sufficiency of the=20
evidence to support the trial court's finding that she "knowingly =
placed=20
or knowingly allowed the twins to remain in conditions or =
surroundings=20
which endanger the physical or emotional well-being of the =
children" under=20
section 161.001(1)(D) of the Family Code. Appellant argues that =
subsection=20
(1)(D) requires the child to have actually been in conditions or=20
surroundings that threaten the child and that there is no evidence =
that=20
the twins were living in such conditions. Appellant also argues =
that=20
Jackson's presence in appellant's home eight months before the =
twins were=20
born cannot be the legal basis for the twins' removal from her =
custody.=20
We agree.=20
There is no evidence in the record to establish that the =
environment in=20
appellant's home posed a danger to the twins. See In re =
A.B., 125=20
S.W.3d 769, 775 (Tex. App.--Texarkana, 2003, pet. denied) ("Under =
this=20
section, we look to see if the environment itself poses a danger =
to the=20
child's physical or emotional well-being."). Appellant testified =
that DFPS=20
did not visit the home before taking the twins. That testimony is=20
uncontested. Therefore, DFPS had no basis on which to claim that =
the home=20
environment posed a danger to the twins. Although=20
the grandmother was a part of that environment, and both Aiken and =
Cooney=20
made it clear that they did not think she should be with the =
children,=20
their opinions were not based on any evidence of harm or danger =
that she=20
posed. Rather, they were based on the fact of the grandmother's =
past=20
criminal record and did not take into account that there was no =
evidence=20
of current illegal activity and that she was a source of financial =
and=20
moral support for appellant. Cooney's child-advocate reports dated =
February 24, 2004, July 22, 2004, and November 16, 2004 stated =
"There are=20
no present indications that Joann Colbert is currently involved =
with=20
drugs." Furthermore, appellant's statement to the interviewer for =
the=20
CCCC's family evaluation "that since her mother has been released =
from=20
prison, she earned a GED, goes to Church, has obtained employment =
and no=20
longer uses drugs" and "that her mother has changed and made a =
better life=20
for herself" is uncontested. Aiken and=20
Cooney also objected to the grandmother's relationship with =
Newman, who=20
may or may not have lived with appellant and the grandmother for =
the two=20
and one-half months between the twins' birth and their removal =
from the=20
home. Newman had lived with the grandmother and appellant for one =
to two=20
years, and, although he admitted to drug use, he testified that he =
did not=20
use drugs at the home. No evidence contradicts this testimony. =
Aiken=20
testified to the following reasons for taking the twins into =
custody: (1)=20
appellant's previous history with DFPS; (2) the fact that the five =
older=20
children were in custody; (3) appellant's testimony in the Jackson =
trial=20
which, according to Aiken, showed that appellant misstated to DFPS =
the=20
truth of what happened to T.J.; and (4) the fragility of the =
babies. These=20
reasons are not related to the environment in the home when the =
twins were=20
removed and therefore cannot support termination under subsection =
(1)(D).=20
DFPS does=20
not respond to appellant's arguments under her first issue. =
Instead, DFPS=20
urges that, because the trial court did not file findings of fact=20
separately, as required in rule 299a of the Texas Rules of Civil=20
Procedure, this Court must affirm the judgment if any legal theory =
pleaded=20
by DFPS is supported by the evidence. We rejected=20
this same argument by DFPS in Cervantes-Peterson v. Texas =
Department=20
of Family & Protective Services, No. 01-05-00307-CV, 2006 =
WL=20
2195241, at *5 (Tex. App.--Houston [1st Dist.] Aug. 3, 2006, no =
pet.). In=20
Cervantes-Peterson, we pointed out that a trial court's=20
recitation in the judgment of its ground for termination of =
parental=20
rights is not a fact-finding that is prohibited under rule 299a of =
the=20
Texas Rules of Civil Procedure. Id. at *5 (citing In =
re=20
A.I.G., 135 S.W.3d 687, 693-94 (Tex. App.--San Antonio 2003, =
no=20
pet.). The trial court in the instant cases, as in=20
Cervantes-Peterson and A.I.G., was simply =
stating the=20
grounds for termination of parental rights, as required by section =
161.206=20
of the Family Code. Here, there=20
is no evidence favorable to the trial court's finding under =
subsection=20
(1)(D). In fact, there are undisputed facts that are against the=20
finding--the failure of DFPS to visit the home before deciding to =
remove=20
the twins; the report stating, "There are no present indications =
that=20
Joann Colbert is currently involved with drugs"; appellant's =
uncontested=20
statement that the grandmother had turned her life around; and the =
grandmother's financial and moral support of appellant and her =
children.=20
Even considering all the evidence in the light most favorable to =
the trial=20
court's finding under subsection (1)(D), we hold that a factfinder =
could=20
not have reasonably formed a firm belief or conviction that the =
finding=20
was true with respect to the twins. Accordingly, we sustain =
appellant's=20
first issue. In her=20
third issue, appellant challenges the factual sufficiency of the =
evidence=20
to support the trial court's finding that termination of =
appellant's=20
parental rights was in the best interest of D.N.C., E.D.C., =
J.D.M.,=20
T.L.J., and T.B.J. Texas courts have generally considered nine=20
nonexclusive, nonexhaustive factors set out in Holley v. =
Adams in=20
determining the best interest of the child. 544 S.W.2d 367 (Tex. =
1976).=20
Those factors are (1) the desires of the child; (2) the emotional =
and=20
physical needs of the child now and in the future; (3) the =
emotional and=20
physical danger to the child now and in the future; (4) the =
parental=20
abilities of the individuals seeking custody; (5) the programs =
available=20
to assist these individuals to promote the best interest of the =
child; (6)=20
the plans for the child by these individuals or by the agency =
seeking=20
custody; (7) the stability of the home or proposed placement; (8) =
the acts=20
or omissions of the parent, which may indicate that the existing=20
parent-child relationship is not a proper one; and (9) any excuse =
for the=20
acts or omissions of the parent. Id. at 372. We will =
consider the=20
evidence as it relates to these factors. 1. The=20
desires of the children. Hornaday agreed that all the =
children loved=20
appellant. Hornaday further testified that the children were very =
much=20
bonded with their mother. On the other hand, Aiken testified =
regarding the=20
twice-monthly one-hour family visits, "My observation is that =
there's not=20
a big bond with the children. My observation is that there is not =
a lot of=20
nurturing that happens." When asked whether the children loved =
their=20
mother, Aiken responded, "I believe they do." Hornaday=20
testified that D.N.C. wanted to come home. The CCCC's initial =
evaluation=20
report stated that D.N.C. wanted to live with her mother. DFPS =
asserts=20
that D.N.C.'s behavior following family visits--being "ugly to =
everyone"=20
and yelling and screaming until midnight--while otherwise doing =
well in=20
foster care is inconsistent with her stated desire to live with =
her=20
mother. However, D.N.C.'s foster mother reported to DFPS that =
D.N.C. got=20
angry and yelled that "no one" was helping her mother and that the =
foster=20
mother was not helping her mother. Thus, D.N.C.'s poor behavior =
following=20
family visits was more likely caused by her perception that her =
mother was=20
not getting the help that she needed. DFPS's summary reports also =
indicate=20
that, on one occasion, it was difficult to separate D.N.C. from =
her mother=20
at the end of a family visit. Hornaday=20
testified that E.D.C. really loved his mother and that, although =
he was=20
getting the structure he needed at the foster home, he rejected it =
because=20
he wanted to be with his mother. Approximately one month before =
trial, a=20
DePelchin Children's Services report noted that E.D.C. had a =
strong bond=20
to his siblings and family. The report also noted that E.D.C. said =
he=20
loved his foster parents. The CCCC's initial evaluation report =
stated that=20
E.D.C. said that his mother is good, takes care of the children, =
and that=20
he loves her. He wished to be back with his family. DFPS asserts =
that=20
E.D.C. was depressed after a family visit because his mother did =
not talk=20
to him and that E.D.C. says he likes school and his foster parents =
are=20
good to him. These facts do not negate E.D.C.'s stated desire to =
live with=20
his mother. Williamson=20
testified that, although J.D.M. lived with him most of the time, =
J.D.M.=20
saw appellant as a mother figure and they had a close bond. =
Williamson=20
testified that J.D.M. had gone back to live with appellant in =
September=20
2002 because he wanted to be with appellant and his brothers and =
sisters.=20
Williamson further testified that, at the time of trial, J.D.M. =
wanted to=20
live with Williamson but wanted to maintain contact with appellant =
and his=20
sisters and brothers and that he sometimes spent weekends with =
appellant.=20
Williamson testified that he felt that appellant and J.D.M. had a=20
mother-son relationship and that appellant treated all the =
children the=20
same. There is=20
nothing in the record to indicate the desires of T.L.J. and T.B.J. =
DFPS=20
cites T.B.J.'s refusal to get dressed and her saying that she did =
not want=20
to go to the family visits as evidence of her desires. DFPS does =
not=20
speculate regarding what those desires are, nor do we. 2.=20
Emotional and physical needs of the children now and in the=20
future. The record does not indicate that any of the children =
have=20
special physical needs. There was evidence that the children were=20
appropriately clothed and well-fed. However, D.N.C., E.D.C., =
T.L.J., and=20
T.B.J. had some significant behavioral and emotional problems. =
Hornaday=20
testified that the house was orderly, but that there was chaos--a=20
"constant flow of traffic"--and that "there were always children =
present."=20
With=20
respect to the individual children, Hornaday testified that D.N.C. =
was=20
diagnosed as having attention-deficit-hyperactive disorder (ADHD) =
and was=20
borderline mentally retarded, that E.D.C. also had ADHD and =
oppositional=20
defiance, that T.L.J. was diagnosed as having ADHD, and that =
T.B.C. was=20
identified as having behavior problems that included tantrums, =
fighting,=20
and defiance of authority. Hornaday further testified that the =
children=20
needed consistency, stability, structure, and patience. She said =
that they=20
were getting some of those things at home, but that these children =
needed=20
all of those things. Hornaday said that she did not know whether =
appellant=20
could develop the necessary attributes to give the children the =
structure=20
they need. Hornaday also said she had no opinion regarding the =
termination=20
of appellant's parental rights. She expressed her opinion that the =
children would adjust and thrive if they were removed from the =
home. But=20
Hornaday also testified that, if the children were returned home, =
she=20
would continue to see them. Cooney=20
testified that appellant gave most of her time to the twins during =
family=20
visits and that the other five did not get equal time. But he =
admitted=20
that he did not know if it was normal for a mother to spend more =
time with=20
babies. Aiken testified that, from her observation of the family =
visits,=20
she did not think appellant was bonded with the children or =
nurturing to=20
them. The=20
evidence shows that appellant has been able to take care of the =
children's=20
physical needs, but she will likely need some assistance in caring =
for=20
their emotional needs. 3.=20
Emotional and physical danger to the children now and in the=20
future. DFPS contends that Department personnel were =
concerned for=20
the safety of appellant's children. However, those concerns =
centered=20
around appellant's failure to recognize that Jackson was =
responsible for=20
T.J.'s death and Newman's presence in appellant's home. DFPS =
directs us to=20
a June 2003 evaluation by the CCCC expressing the concern that =
appellant's=20
"conflicted feelings regarding Mr. Jackson may prevent her from =
providing=20
a safe environment for her children." That evaluation was made =
less than=20
two months after DFPS became involved. Almost one year later, May =
28,=20
2004, appellant's therapist sent a report to Aiken which showed =
that=20
appellant had made "good" progress in recognizing Jackson's role =
in T.J.'s=20
death and "moderate" progress in taking responsibility for her =
lack of=20
protectiveness. DFPS characterizes these statements as =
"self-serving."=20
However, they are not statements by appellant; they are the =
opinions of a=20
therapist to whom DFPS referred appellant. Jackson is=20
no longer a threat to the children's safety, and there is no =
evidence that=20
Newman ever was. The May 28, 2004 monthly report by appellant's =
therapist=20
indicates that appellant had made good progress in understanding =
Jackson's=20
mistakes and his involvement in the death of T.J. Although Aiken =
and=20
Cooney both testified that, as late as May 2004, appellant did not =
believe=20
that Jackson was responsible for T.J.'s death, they did not =
testify that=20
she continued to believe so. At the termination trial, appellant =
testified=20
that she no longer had any contact with Jackson. She said that a =
lot of=20
"stuff" came out at his trial that she did not know and that she =
had to=20
get the information "secondhand" because she was not allowed to =
sit in the=20
courtroom. Thus, there=20
is no evidence that the children will be emotionally or physically =
endangered by being returned to appellant. 4.=20
Parental abilities. The testimony of Hornaday, Cooney, =
and Aiken=20
regarding the five older children when they were in appellant's =
home=20
indicated that the atmosphere was chaotic, hectic, and =
unstructured.=20
However, Newman testified that appellant was a good mother and =
that the=20
children were well-fed and clothed. Appellant had completed =
parenting=20
classes and said she no longer disciplined the children by =
spanking.=20
Hornaday=20
testified that the five older children were getting some of the =
things=20
they needed at home. She did not specify what needs were being met =
by=20
appellant. Significantly, Hornaday testified that she had no =
opinion=20
regarding the termination of appellant's parental rights. =
According to a=20
"Permanency Plan/Permanency Progress Report" filed with the court =
on=20
February 24, 2004, appellant was actively participating in =
individual and=20
group therapy, had completed parenting classes, and was making =
progress=20
toward alleviating the causes for the removal of the children. In=20
addition, according to her therapist's monthly reports for April =
and May,=20
appellant had made progress in the goals set for her. The only =
area in=20
which the report showed that she made no progress was the family's =
ability=20
to communicate effectively and demonstrating appropriate parenting =
skills.=20
However, this was not entirely within her control. Those skills =
were to be=20
worked on in family therapy, and, although appellant's therapist's =
report=20
dated May 28, 2004 shows the recommendation, "Begin Family =
Therapy," there=20
is no evidence that family therapy was ever provided to appellant. =
At=20
trial, Aiken testified that she was not disputing that appellant =
had=20
completed the services that she was offered, although she later =
stated=20
that appellant had not obtained appropriate housing--a claim that =
is=20
contradicted by DFPS records. 5.=20
Programs available to assist in promoting the best interest of =
the=20
children. Appellant=20
had already taken advantage of all programs offered to her to =
increase her=20
ability to meet the needs of the children. These programs included =
parenting classes, anger management classes, and individual and =
group=20
therapy. Aiken admitted that appellant had completed all the =
services she=20
was offered. Appellant's therapist reported that appellant was =
making=20
progress in all areas. Appellant also earned a GED and a license =
as a=20
nurse's aid and was employed in health care. 6.=20
Plans for the children. At trial, when asked about her =
plans for=20
the children, appellant stated, "I would do everything in my power =
to keep=20
all their fathers away from them." She testified that, if the =
children are=20
returned to her, the grandmother would move out to satisfy DFPS's=20
requirement. DFPS's=20
plans are to place the children for adoption. Although Aiken =
testified=20
that the children were adoptable, she also said that she did not =
know that=20
they would be adopted into their foster homes, and she did not =
provide any=20
information regarding potential adoptive homes. In addition, she =
could not=20
assure that the children would be able to visit each other after =
adoption.=20
7.=20
Stability of the home or proposed placement. Appellant =
has=20
demonstrated her stability by living in the same residence for =
several=20
years, obtaining her GED and job training, and securing =
employment. In=20
spite of DFPS's objections to the grandmother, her presence in the =
home=20
appears to enhance the stability of the home because the =
grandmother=20
provides family support for appellant. DFPS produced no evidence =
regarding=20
the stability of any proposed placement for the children. =
8. Acts=20
or omissions of the parent indicating parent-child relationship is =
not=20
proper. Knowing that Jackson was charged with injury to T.J., =
and=20
having agreed with DFPS that she would not allow Jackson to be =
around her=20
children, appellant let Jackson move into her home while he =
awaited=20
trial. 9. Any=20
excuse for acts or omissions of the parent. Appellant =
testified that=20
she let Jackson live with her and be around the children after she =
agreed=20
that she would not because she did not think that Jackson was =
responsible=20
for T.J.'s death. Appellant said that she could not believe that =
Jackson=20
had severely beaten T.J. and that she was not allowed into the =
courtroom=20
during his trial and did not see the evidence presented. At the=20
termination hearing, appellant testified that she, at that time, =
believed=20
that Jackson was the cause of T.J.'s death. Moreover, contrary to =
Aiken's=20
statements, there is no evidence in the record that Jackson abused =
any of=20
appellant's children. Appellant=20
contends that T.J. did not have severe bruising at the time =
appellant left=20
the house on the day T.J. was beaten. Newman testified that when =
appellant=20
left the house on that day, T.J. was "all right" and that =
appellant had no=20
knowledge of what happened to T.J. after appellant left the house. =
There=20
was no testimony establishing the extent of any bruising on T.J. =
after the=20
first spanking, but before the beating on April 5, 2003. If =
appellant did=20
not see T.J.'s bruises, she was not in a position to "admit" to =
the=20
severity of the bruising to comply with DFPS's demands. In weighing=20
the Holley factors, we will necessarily consider some to =
be more=20
important than others, depending on the facts of a case. Here, it =
seems=20
clear that the three children who were old enough to express a =
preference=20
wanted to live with their mother, or at least to continue their=20
relationship with her, as is the case with J.D.M. Although DFPS =
may not=20
agree that this issue is undisputed, it presented no evidence that =
any of=20
the children did not want to return to their mother. Aiken =
admitted that=20
all the children love their mother. The desires of the children =
weigh in=20
favor of appellant. It is=20
undisputed that appellant had completed all programs offered to =
her by=20
DFPS. The only evidence offered by DFPS that appellant had not =
done=20
everything she was asked to do was Aiken's testimony that =
appellant had=20
not obtained appropriate housing. That evidence was not credible =
because=20
it was contradicted by DFPS's records stating that appellant had=20
appropriate housing. Appellant admitted that she had not contacted =
any=20
agencies that could offer services for the children, but said she =
would if=20
the children were returned to her. Appellant's diligence in doing =
all that=20
DFPS asked of her weighs in her favor. Neither=20
appellant nor DFPS dwelt on future plans for the children. =
Appellant said=20
she would try to keep the children's fathers away and would have =
her=20
mother move out of the house to satisfy DFPS's requirements, and =
DFPS=20
planned to place the children for adoption, although it did not =
yet have=20
adoptive homes for all the children. Thus, this factor does not =
weigh on=20
either side. It is=20
undisputed that appellant provided for the physical needs of the =
children=20
by providing food, clothing, and shelter. However, the children =
have=20
significant emotional needs, some of which appellant has not been =
able to=20
fulfill. Three of the children were diagnosed as having ADHD, and =
they and=20
a fourth child had a variety of behavior problems. The children =
were=20
generally making better grades at school while in foster care. =
According=20
to Hornaday, most of the children's problems existed before DFPS =
became=20
involved with the children. But the evidence suggests that some of =
the=20
children's negative behavior was exacerbated by their separation =
from=20
their mother. Appellant's ability to take care of the children's =
physical=20
needs and some of their emotional needs weighs in her favor. =
However, her=20
difficulty in providing for all their emotional needs weighs in =
favor of=20
DFPS. At the time=20
of trial, there was no evidence that the children would have been =
in any=20
danger by being returned to appellant because appellant and her =
mother=20
were the only ones living in appellant's house. Aiken's testimony =
that she=20
believed that all the children were abused and neglected, both =
physically=20
and emotionally, is without support in the record. When asked for=20
specifics, she said, "Well, their ability to socialize and how =
they=20
socialize tells a great deal about what they have been exposed to =
previous=20
to this. . . . [A]nd I believe they came to us with those types of =
behavior . . . such as telling teachers to 'Kiss my butt' and =
using more=20
graphic language than that." Aiken also testified that the =
children had=20
nightmares, but those she discussed were related to the death of =
T.J. In=20
its brief, DFPS also cites the fact that the children were =
sometimes=20
disciplined by spanking and had various scars and old healed marks =
as=20
evidence of physical abuse. DFPS does not direct us to anything in =
the=20
record to show that these marks were the result of physical abuse, =
nor=20
does it inform us of how it distinguishes between permissible =
physical=20
punishment and physical abuse. Certainly, a child's use of =
somewhat crude=20
language is not a basis for terminating the parent-child =
relationship. The=20
physical-danger factor weighs in favor of appellant. Relevant to=20
appellant's parental abilities, Hornaday testified that the home=20
atmosphere was chaotic, that appellant gave the children some of =
what they=20
needed, but not all, and that she did not know whether appellant =
was=20
capable of developing the attributes needed to parent the =
children.=20
Hornaday did not specify the needs that appellant was not meeting, =
and her=20
description of the chaos--that there were always children =
there--was=20
merely stating the obvious about a family having five (now seven)=20
children. Most important, Hornaday said she had no opinion =
regarding the=20
termination of appellant's parental rights and that she would =
continue to=20
work with the children if they were returned to their mother. =
Considering=20
the love and attachment between appellant and her children and her =
success=20
in complying with DFPS's requirements, appellant's parental =
abilities=20
weigh in her favor. DFPS argues=20
that having eight children by four different fathers is an =
indication of=20
appellant's instability. DFPS does not consider appellant's recent =
history. She has lived in the same house for several years and has =
obtained her GED, a license as a nurse's-aid, and a job. It is =
evident=20
that she has worked on becoming more stable and capable of caring =
for her=20
children. The stability factor weighs in favor of appellant. =
Appellant's=20
reason for allowing Jackson to be around the children while he =
waited to=20
go on trial was her belief that he was not the cause of T.J.'s =
death. Her=20
testimony that, after his conviction, she came to believe that =
Jackson=20
caused T.J.'s death was corroborated by her therapist's reports to =
DFPS.=20
This factor also weighs on the side of appellant. Having=20
considered the Holley factors as they apply in this case, =
we hold=20
that the evidence in this case is factually insufficient to =
support the=20
orders terminating appellant's parental rights to D.N.C., E.D.C., =
J.D.M.,=20
T.L.J., and T.B.J. because, considering the entire record, a =
factfinder=20
could not reasonably form a firm belief that the termination of=20
appellant's parental rights was in the best interests of the =
children.=20
Accordingly, we sustain appellant's third issue.
Having=20
sustained appellant's third issue, we reverse the portion of the =
orders of=20
the trial court terminating appellant's parental rights and =
awarding DFPS=20
sole managing conservatorship in appeal numbers 01-04-01232-CV,=20
01-04-01233-CV, 01-05-00126-CV, and 01-05-00127-CV and remand =
those cases=20
to the court below for further proceedings consistent with this =
opinion.=20
Having=20
sustained appellant's first issue and overruled DFPS's =
cross-issue, we=20
need not reach appellant's second issue regarding the best =
interest of the=20
twins. We reverse the portion of the order related to the =
termination of=20
appellant's parental rights in appeal number 01-05-00124-CV. =
Because the=20
trial court appointed DFPS as managing conservator of the children =
under=20
Family Code section 161.207 as a necessary consequence of the =
termination=20
of the parental rights of both appellant and each of the =
children's=20
fathers, and made no findings to support the appointment of DFPS =
as=20
managing conservator with the termination of appellant's parental =
rights=20
under Family code section 263.404, we also reverse the portion of =
the=20
order that appointed DFPS as the sole managing conservator. When=20
reversing the trial court's judgment or appealable order, we =
usually=20
render the judgment or order that the trial court should have =
rendered.=20
Tex. R. App. P. 43.3. However, in a case involving the involuntary =
termination of parental rights, if the trial court does not order=20
termination of the parent-child relationship, section 161.205 of =
the=20
Family Code requires that the trial court either (1) deny the =
petition for=20
termination or (2) render any order in the best interest of the =
child.=20
See Tex. Fam. Code Ann. =A7 161.205 (Vernon 2002). =
An=20
appellate court is not in a position to determine whether simply =
to deny=20
the petition for termination or to render some other order in the =
best=20
interest of the child. Circumstances concerning the child or =
parent may=20
have changed since the trial court rendered its order of =
termination, a=20
matter that requires a factfinder. We are therefore unable to =
render a=20
judgment that disposes of all remaining issues in the case and =
must remand=20
the case in part to the trial court for further proceedings under =
section=20
161.205. Sam=20
Nuchia Panel=20
consists of Justices Nuchia, Jennings, and Higley. Justice=20
Jennings, concurring in part and dissenting in part.=20
D.N.C. is the=20
subject of appeal number 01-04-01232-CV, trial cause number =
1996-43960;=20
T.L.J. and T.B.J. are the subjects of appeal number =
01-04-01233-CV, trial=20
cause number 2002-25084; T.J.C. and T.D.C. are the subjects of =
appeal=20
nnumber 01-05-00124-CV, trial cause number 2004-03601J; E.D.C. is =
the=20
subject of appeal number 01-05-00126-CV, trial cause number =
2003-04414J;=20
and J.D.M. is the subject of appeal number 01-05-00127-CV, trial =
cause=20
number 2003-14864.=20
2. J.D.M. actually lived more with his =
paternal=20
grandfather than with appellant. However, he was with appellant at =
the=20
time of this occurrence.=20
4. The fathers of D.N.C. and J.D.M. were in =
prison,=20
and the whereabouts of E.D.C.'s father were unknown.=20
5. See Tex. Fam. Code Ann. =A7 =
161.001=20
(1)(A)-(G), (J)-(S), (2) (Vernon 2002 & Supp. 2006).=20
6. Appellant had a history with DFPS. In =
1998, after=20
being evicted from her apartment for non-payment of rent, =
appellant, her=20
cousin, and their children were staying in a motel room with only =
one bed.=20
Appellant, her two-week-old infant, and a couple of older children =
were=20
sleeping in the bed one night. When appellant woke up, the infant =
was not=20
breathing and blood was coming from his mouth. Appellant took the =
infant=20
to a fire station nearby, but he could not be resuscitated. The =
autopsy=20
report showed the cause of death as asphyxia, but the manner of =
death was=20
undetermined. DFPS investigated, but found no indication that =
appellant=20
was at fault. After this incident, DFPS provided services to =
appellant,=20
including parenting classes, which she completed. In four other =
referrals=20
to DFPS, allegations of abuse or neglect were resolved as "Ruled =
out" or,=20
in one instance, as "Unable to Determine/Factors controlled."=20
7. At Jackson's trial in April 2004, =
appellant=20
testified that she saw Jackson spank T.J. two times: once on April =
4 and=20
once on April 5, 2003. At the termination trial, appellant said =
that she=20
knew about the April 4 spanking because Jackson told her.=20
8. Appellant's "role" in T.J.'s death, =
according to=20
Aiken, was her failure to protect T.J. from Jackson.=20
9. Newman also testified that he moved out =
of=20
appellant's house when Jackson's trial started, which was in April =
2004.=20
10. A party need not file a notice of =
appeal to bring=20
a cross-point that presents alternate or additional grounds for =
affirming=20
a judgment. Helton v. R.R. Comm'n, 126 S.W.3d 111, 120 =
(Tex.=20
App.--Houston [1st Dist.] 2003, pet. denied).=20
11. "If the court finds by clear and =
convincing=20
evidence grounds for termination of the parent-child relationship, =
it=20
shall render an order terminating the parent-child relationship." =
Tex.=20
Fam. Code Ann. =A7 161.206(a) (Vernon Supp. 2006).=20
12. In addition,=20
the grandmother testified that, because Aiken and Cooney thought =
that she=20
should not live with the children, she would move out if the =
children were=20
returned. 13. In its brief, DFPS refers us generally =
to Section=20
I of its brief for other acts and omissions of appellant. Section =
I=20
comprises 27 pages of argument and authority relating to its =
section=20
161.001(1)(E) endangerment issue. However, DFPS does not direct us =
to any=20
specific acts or omissions stated within those pages, nor does it =
make any=20
specific argument with reference to such acts or omissions.=20
14. This Court is not reversing on =
unassigned error,=20
as asserted by the dissent. DFPS's appointment as managing =
conservator was=20
a consequence of the trial court's termination of both parents' =
rights.=20
See Tex. Fam. Code Ann. =A7 161.207 (Vernon 2002). =
Because we=20
have reversed the termination of appellant, the circumstances =
requiring=20
the appointment of a managing conservator under section 161.207 no =
longer=20
exist, and reversal of the appointment of DFPS as managing =
conservator is=20
a consequence of reversing the termination of appellant's parental =
rights.=20
15. The dissent states that Family Code =
sections=20
161.205 and 263.404 are inapplicable to this appeal because the =
trial=20
court "actually ordered the termination of Colbert's parental =
rights."=20
That was true at the time the trial court rendered it original =
order of=20
termination. However, section 161.205 becomes applicable on remand =
because=20
we have reversed the trial court order and have rendered judgment =
that=20
appellant's parental rights are not terminated. Section 161.205 is =
the=20
controlling authority for how the trial court must proceed on =
remand.=20
See Walker v. Department of Family and Protective =
Services, No.=20
01-06-00253-CV (Tex. App.--Houston [1st Dist.] December 21, 2006, =
no pet.=20
h.). Section 263.404 becomes applicable only if the trial court =
makes the=20
findings required by that section.=20
|