Opinion issued October = 18,=20 2007
Following a=20
jury trial, the trial court terminated the parental rights of =
We=20
affirm.
C.M. was=20
born on January 3, 2006. Two days later, the Department of Family =
and=20
Protective Services ("DFPS") became involved with the family after =
it was=20
notified by the hospital that C.M. had tested positive for =
marijuana. C.M.=20
was initially placed with English's sister, Amber Sorenson. Not =
long=20
after, Mikowski and English contacted DFPS stating that they no =
longer=20
wished for C.M. to be placed with Sorenson. Because the parents =
were=20
unable to provide a suitable relative placement, DFPS took =
temporary=20
custody of C.M. on January 23, 2007. At that time, C.M. was placed =
with a=20
foster family. DFPS=20
ultimately sought to terminate Mikowski's and English's parental =
rights to=20
C.M. The case went to trial before a jury in December 2006, when =
C.M. was=20
11 months old. The trial court instructed the jury that Mikowski's =
and=20
English's parental rights could be terminated if it found, by =
clear and=20
convincing evidence, that Mikowski and English had each engaged in =
at=20
least one activity described in subsections (D), (E),or (O) of =
Family Code=20
section 161.001(1) and if it found that terminating the =
parent-child=20
relationship was in the best interest of the child. See =
Tex. Fam.=20
Code Ann. =A7=A7 161.001(1)(D), (E), (O), 161.001(2) (Vernon Supp. =
2006).=20
Based on these instructions, the jury found that Mikowski's and =
English's=20
parental rights to C.M. should be terminated. In=20
conformity with the jury's verdict, the trial court signed two =
orders of=20
termination, one for Mikowski and one for English. The same =
grounds for=20
termination are listed in each termination order. Specifically, =
the trial=20
court stated in each order that it had found by clear and =
convincing=20
evidence that the respective parent had committed one or more of =
the=20
following acts: 6.2.1.=20
knowingly placed or knowingly allowed [C.M.] to remain in =
conditions or=20
surroundings which endanger the physical or emotional well-being =
of=20
[C.M.]; 6.2.2. engaged in =
conduct or=20
knowingly placed [C.M.] with persons who engaged in conduct which=20
endangers the physical or emotional well-being of [C.M.]; 6.2.3. failed to =
comply with=20
the provisions of a court order that specifically established the =
actions=20
necessary for [Mikowski or English, respectively] to obtain the =
return of=20
[C.M.] who [has] been in the permanent or temporary managing=20
conservatorship of [DFPS] for not less than nine months as a =
result of=20
[C.M.'s] removal from the parent under Chapter 262 for the abuse =
or=20
neglect of [C.M.]. The termination =
orders also=20
state that the trial court found, by clear and convincing =
evidence, that=20
it was in C.M.'s best interest for Mikowski's and English's =
parental=20
rights to be terminated. Mikowski and =
English each=20
appealed.
We first determine =
whether=20
Mikowski complied with Family Code section 263.405(b), which =
requires an=20
appellant to file, not later than the 15th day after the date a =
final=20
termination order is signed, "a statement of the point or points =
on which=20
the party intends to appeal." Tex. Fam. Code Ann. =
=A7 263.405(b)=20
(Vernon Supp. 2006). The statement may be filed separately or it =
may be=20
combined with a motion for new trial. Id. The legislature =
expressly mandates that we "may not consider any issue that was =
not=20
specifically presented to the trial court in a timely filed =
statement of=20
the points on which the party intends to appeal or in a statement =
combined=20
with a motion for new trial." Id. =
=A7 263.405(i).=20
In this case, the =
record=20
reflects that Mikowski failed to timely file his statement of =
points=20
pursuant to section 263.405(b). The trial court signed the=20
termination orders on December 19, 2006. Mikowski had already =
filed his=20
notice of appeal on December 14, 2006. No statement of points on =
which=20
Mikowski intended to appeal accompanied the notice of appeal, and =
Mikowski=20
did not file a statement of points within the 15 day period =
following the=20
signing of the order. Seventeen days =
after the=20
trial court signed the termination orders, on January 5, 2007, =
Mikowski=20
filed a "First Amended Notice of Appeal, Statement of Points to be =
Appealed, Motion for New Trial, and Request for Free Record." In =
the=20
amended notice, Mikowski for the first time identified points that =
he=20
intended to appeal. Though Mikowski's statement was filed only two =
days=20
after the 15-day deadline, the plain language of Family Code =
section=20
263.405(i) precludes this Court from considering Mikowski's =
appellate=20
issues, as draconian as this may seem. See id. =
Consequently, we=20
affirm the order terminating the parental-child relationship =
between=20
Mikowski and C.M. See Pool v. Tex. Dep't of Family & =
Protective=20
Servs., 227 S.W.3d 212, 216 (Tex. App.--Houston [1st Dist.] =
2007, no=20
pet.) (affirming decree terminating father's parental rights as =
result of=20
father's failure to comply with Family Code section=20
263.405(b)).
English presents =
five issues=20
on appeal. Specifically, in the first four issues, English =
challenges the=20
legal and factual sufficiency of the trial court's findings =
supporting the=20
termination of her parental rights to C.M. In her fifth issue, =
English=20
challenges an evidentiary ruling of the trial court. A. =
Statement of=20
Points As mentioned, the =
trial=20
court signed the order terminating English's parental rights to =
C.M. on=20
December 19, 2006. English timely filed her statement of points to =
be=20
appealed on December 18, 2006, within 15 days of the signing of =
the=20
termination order. See Tex. Fam. Code Ann. =
=A7 263.405(b). In=20
her timely filed statement of points, English raised the legal and =
factual=20
sufficiency complaints that she now raises on appeal in her first =
four=20
issues. Thus, we may consider those issues on appeal. On January 11, =
2007, 23 days=20
after the trial court signed the termination order, English =
amended her=20
statement of points to include the evidentiary issue she now =
raises on=20
appeal in issue five. Because this issue was not timely included =
in her=20
statement of points, we may not consider it on appeal. See =
id.=20
=A7 263.405(i). B. Legal =
and Factual=20
Sufficiency Challenges Because=20
English's third and fourth issues are dispositive, we address them =
first.=20
In her third issue, English contends that the evidence is legally =
and=20
factually insufficient to support a finding that, under Family =
Code=20
section 161.001(1)(O), she "failed to comply with the provisions =
of a=20
court order that specifically established the actions necessary =
for=20
[English] to obtain the return of [C.M.] . . . ." See =
Tex. Fam.=20
Code Ann. =A7 161.001(1)(O). In her fourth issue, English =
challenges the=20
legal and factual sufficiency of the evidence to support the =
finding that=20
the termination of English's parental rights was in C.M.'s best =
interest.=20
See id. =A7 161.001(2) (Vernon Supp. =
2006). 1. =
Burden of=20
Proof and Standard of Review The burden of =
proof at trial=20
in parental-termination cases is by clear and convincing evidence. =
Tex.=20
Fam. Code Ann. =A7 161.001; In re J.F.C., 96 S.W.3d 256, =
263 (Tex.=20
2002). Section 161.001 of the Texas Family Code provides the =
method by=20
which a court may involuntarily terminate the parent-child =
relationship.=20
See Tex. Fam. Code. Ann. =A7 161.001. Under this section, =
a court=20
may order the termination of the parent-child relationship if the =
court=20
finds, by clear and convincing evidence, that (1) one or more of =
the acts=20
enumerated in section 161.001(1) was committed and (2) termination =
is in=20
the best interest of the child. Id. "Clear and =
convincing=20
evidence" means the measure or degree of proof that will produce =
in the=20
mind of the trier of fact a firm belief or conviction as to the =
truth of=20
the allegations sought to be established. Tex. Fam. Code. Ann. =A7 =
101.007=20
(Vernon 2002); J.F.C., 96 S.W.3d at 264. This heightened =
burden=20
of proof results in a heightened standard of review. When determining =
legal=20
sufficiency, we review all the evidence in the light most =
favorable to the=20
finding "to determine whether a reasonable trier of fact could =
have formed=20
a firm belief or conviction that its finding was true." =
J.F.C.,=20
96 S.W.3d at 266. To give appropriate deference to the =
factfinder's=20
conclusions, we must assume that the factfinder resolved disputed =
facts in=20
favor of its finding if a reasonable factfinder could do so. =
Id.=20
We disregard all evidence that a reasonable factfinder could =
have=20
disbelieved or found to have been incredible. Id. =
The natural rights =
that=20
exist between parents and their children are of constitutional =
dimension.=20
Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985). =
Therefore,=20
termination proceedings should be strictly scrutinized, and the=20
involuntary termination statutes should be strictly construed in =
favor of=20
the parent. Id. at 20-21. However, "[j]ust as it is =
imperative=20
for courts to recognize the constitutional underpinnings of the=20
parent-child relationship, it is also essential that emotional and =
physical interests of the child not be sacrificed merely to =
preserve that=20
right." C.H., 89 S.W.3d at 26. 2. =
Failure to=20
Comply with Service Plan: Section=20
161.001(1)(O) One of the grounds =
supporting termination of English's parental rights was Family =
Code=20
subsection 161.001(1)(O). Pursuant to that subsection, the =
termination=20
order reflects that trial court found, in relevant part, that =
English had=20
not complied with the provisions of a court order that =
specifically=20
established the actions necessary for her to obtain C.M.'s return. =
See=20
Tex. Fam. Code Ann. =A7 161.001(1)(O). We turn to the record =
to=20
determine whether legally and factually sufficient evidence =
supports this=20
finding. The record =
reflects that the=20
court required English to complete individual counseling and =
parenting=20
classes, to submit to random drug tests, and to maintain suitable =
housing=20
and employment. At trial, English admitted that she did not =
complete all=20
of the requirements of the court-ordered service plan. English =
also=20
testified that she was aware that such failure to comply could =
result in=20
termination of her parental rights. Nonetheless, on appeal, =
English=20
contends that the evidence is legally and factually insufficient =
to=20
support termination because she "substantially complied with the =
services=20
that the court ordered her to complete." In support of this =
assertion, English does not cite, and we cannot find, any legal =
authority=20
holding that a parent's substantial compliance with court-ordered =
services=20
will preclude a section 161.001(1)(O) finding. See In re =
T.T, 228=20
S.W.3d 312, 319 (Tex. App.--Houston [14th Dist.] 2007, no pet.) =
(noting=20
that court found no cases to support parents' substantial =
compliance=20
argument). To the contrary, courts have held that evidence of =
substantial=20
compliance will not defeat a section 161.001(1)(O) finding on =
legal and=20
factual sufficiency grounds. See, e.g., In re T.N.F., 205 =
S.W.3d=20
625, 630-31 (Tex. App.--Waco 2006, pet. denied); In re =
D.L.H.,=20
No. 04-04-00876-CV, 2005 WL 2989329, at *2 (Tex. App.--San Antonio =
Nov.9,=20
2005, no pet.) (mem. op.). In any event, we disagree that English=20
"substantially complied" with her the court-ordered service=20
plan. The record =
reflects that=20
English failed to complete her individual counseling and parenting =
classes=20
and failed to take all random drug tests as required by the court. =
At=20
trial, English offered a number of excuses for her failure to =
complete=20
these services. English testified =
that she=20
did not complete the random drug tests because no one had =
explained the=20
process to her. Regarding her failure to complete individual =
therapy,=20
English claimed that she went to her therapist's office to =
initiate=20
therapy. In contrast, the therapist testified that she was not =
aware that=20
English had come to her office. According to the therapist, she =
never=20
received any messages from English to initiate therapy. The =
therapist=20
testified that she called English to schedule therapy at the =
number given=20
on the DFPS referral form. The therapist stated that she left five =
messages for English and that English never returned her =
calls. Regarding her =
failure to=20
take parenting classes, English claimed that she called the =
telephone=20
number given to her but that no one answered. English testified =
that she=20
did not know when the classes began or where the classes were =
held.=20
English admitted that she never asked her caseworker about how to =
initiate=20
the parenting classes. English further =
testified=20
that she understood that the parenting classes merged with her =
individual=20
therapy. English explained that she did not complete her =
individual=20
therapy because the court ordered DFPS to no longer pay for her =
services.=20
English testified that she could not afford the therapy. =
The record shows =
that the=20
court did eventually order DFPS to discontinue paying for =
English's=20
services, but also reflects that the court did so because English =
had=20
failed to comply with certain provisions of the service plan up to =
that=20
point. The record further shows that the court had warned English =
that=20
noncompliance with the plan would result in discontinuation of =
payment for=20
the services. DFPS also offered =
evidence=20
that English failed to offer proof of stable housing and =
employment, as=20
required by the court. The record shows that, during the 11-month =
period=20
between C.M.'s birth and the trial, English lived in five =
different=20
locations. She was evicted from two of these locations and =
threatened with=20
eviction from a third location. On appeal, English maintains that =
the=20
evidence shows that she has suitable housing. At trial, English =
testified=20
that she, Mikowski, and her brother were living in a three-bedroom =
trailer=20
home, which she and Mikowski are "renting to own." English =
contends that=20
no evidence was offered to show that the trailer home is not "safe =
and=20
stable." DFPS points out that one of its caseworkers testified =
that=20
"stability of home also means how many times you move." With regard to =
employment,=20
English testified that she had worked at two or three jobs since =
C.M. was=20
born. She also testified at the December trial that she had not =
worked=20
since June. English explained that she lost her job in June when =
she was=20
arrested for credit card abuse and that she could not maintain =
employment=20
because she was incarcerated for 40 days in August and September. =
One of=20
the caseworkers assigned to C.M.'s case testified that English had =
never=20
offered proof of employment as required in the court =
order. Given the record, =
we=20
conclude that the evidence, viewed in the light most favorable to =
the=20
section 161.001(1)(O) finding, was sufficiently clear and =
convincing that=20
a reasonable factfinder could have formed a firm belief or =
conviction that=20
English failed to comply with the provisions of a court order that =
specifically established the actions necessary for her obtain the =
return=20
of C.M. We further conclude that, viewed in light of the entire =
record,=20
any disputed evidence could have been reconciled in favor of the =
section=20
161.001(1)(O) finding or was not so significant that the =
factfinder could=20
not reasonably have formed a firm belief or conviction that =
English failed=20
to comply with the provisions of a court order that specifically=20
established the actions necessary for her obtain the return of =
C.M.=20
Accordingly, we hold that the evidence was legally and factually=20
sufficient to support the section 161.001(1)(O) =
finding. We overrule =
English's third=20
issue. 3. =
Best Interest=20
of C.M In her fourth =
issue, English=20
challenges the legal and factual sufficiency of the evidence to =
support=20
the required finding that termination was in the C.M.'s best =
interest.=20
See Tex. Fam. Code Ann. =A7 161.001(2). Some of the =
factors that an=20
appellate court may consider in ascertaining the best interest of =
a child=20
include the non-exhaustive list set forth in Holley v. =
Adams. 544=20
S.W.2d 367, 371-72 (Tex. 1976). Those factors include the =
following: (1)=20
the desires of the child; (2) the emotional and physical needs of =
the=20
child now and in the future; (3) the emotional and physical danger =
to the=20
child now and in the future; (4) the parental abilities of the =
individuals=20
seeking custody; (5) the programs available to assist these =
individuals to=20
promote the best interest of the child; (6) the plans for the =
child by=20
these individuals or by the agency seeking custody; (7) the =
stability of=20
the home or proposed placement; (8) the acts or omissions of the =
parent=20
that may indicate that the existing parent-child relationship is =
not a=20
proper one; and (9) any excuse for the acts or omissions of the =
parent.=20
Id. These factors are =
not=20
exhaustive. C.H., To support the =
best interest=20
finding, DFPS cites the evidence discussed above showing that =
English=20
could not maintain suitable housing and employment and has failed =
to take=20
advantage of the court-ordered services offered to her. We agree =
that such=20
evidence is not only probative of the section 161.001(1)(O) =
finding, but=20
also of the best-interest determination. DPFS also =
presented evidence=20
that, despite being at risk of losing her child, English engaged =
in=20
criminal conduct following C.M.'s birth. In February 2006, English =
was=20
charged with committing the offense of credit card abuse, a state =
jail=20
felony. At that time, English was also charged with being in =
possession of=20
a controlled substance, Xanax. English claimed that she had a =
prescription=20
for the Xanax but one was never produced. English ultimately =
pleaded nolo=20
contendere to the controlled substance offense and received a =
sentence of=20
30 days in jail. In June 2006, =
English was=20
again charged with credit card abuse. English pleaded guilty to =
the=20
offense and was sentenced to five years' deferred adjudication =
community=20
supervision. As part of the plea agreement, the February 2006 and =
an=20
earlier 2004 charge for credit card abuse were dismissed. Related =
to the=20
plea agreement, English spent 40 days in jail in August and =
September of=20
2006, affecting her ability to visit C.M., maintain employment, =
and=20
participate in court-ordered services. DFPS also =
presented evidence=20
probative of English's ability to keep C.M. physically safe in the =
future.=20
English admitted to smoking marijuana while pregnant with =
C.M.--conduct=20
that endangered C.M. even before he was born. The record also =
showed that,=20
when C.M. was five days old, he was permitted by the family =
members caring=20
for him to stay one evening with English and Mikowski at their =
apartment.=20
On that evening, Mikowski and English's brother engaged in a =
physical=20
altercation in which English's brother punched Mikowski in the =
face. The=20
police were called to the apartment. When they arrived, the police =
observed Mikowski standing in a bedroom holding a loaded shotgun. =
Newborn=20
C.M. was still in the apartment at the time. Mikowski was arrested =
with=20
respect to the weapon and English was arrested on outstanding=20
warrants. The evidence =
further=20
revealed that, on June 22, 2006, Mikowski was arrested for =
committing an=20
act of domestic violence against English. DFPS offered the =
testimony of=20
the manager of the apartment where the couple resided at that =
time. She=20
testified that she heard English say "Stop" and "Stop it. Don't =
push me.=20
Leave me alone." The apartment manager noted that English was =
crying. The=20
manager then observed Mikowski push English. The manager called =
the=20
police, who arrested Mikowski for the incident. Both Mikowski and =
English=20
denied the manager's account, and the charges against Mikowski =
were=20
ultimately dismissed. Although C.M. is =
too young=20
to express his desires, the evidence showed that C.M. has bonded =
with his=20
foster family and that the family wishes to adopt him. The =
evidence=20
indicated that C.M. is doing well in foster care and is on target=20
developmentally. The foster mother's testimony indicated that, =
when=20
medical concerns had arisen with C.M., she had promptly attended =
to them.=20
For example, C.M. will require surgery on his tongue for which the =
foster=20
family has obtained medical advice. On appeal, English =
relies=20
heavily on evidence presented at trial discrediting C.M.'s foster =
parents=20
as a suitable placement. The evidence showed that C.M.'s foster =
family had=20
an earlier "CPS referral" in which it was alleged that the parents =
allowed=20
their children to play unattended in the street. The report stated =
that=20
one of the foster parents was observed cursing at a driver and =
that the=20
children were seen playing in the street as late as 1:00 a.m. The =
foster=20
mother testified that the information in the report was false. =
Evidence was also =
presented=20
that the foster parents both had, at some point, used marijuana =
and that=20
the foster father drank beer. English contends that this evidence =
weighs=20
against the best interest finding under a number of the =
In addition to the =
evidence=20
relied on by English relating to the foster parents, the record =
also shows=20
that the foster parents have cared for 10 foster children since =
they=20
became licensed for foster care in 2003. The foster parents =
adopted one of=20
the foster children in 2005, a three-year-old girl. The foster =
mother=20
testified that her little girl and C.M. love each other. The =
foster mother=20
also testified that she and her husband annually attend child =
care,=20
parenting, and safety classes to maintain their foster parent =
status.=20
Undeniably, some =
evidence=20
exists in the record that weighs in favor of English under the=20
Holley factors. Overall, caseworkers who observed English =
with=20
C.M. during visitation testified that she acted appropriately and =
showed=20
motherly affection for C.M. Evidence was presented that English =
had=20
purchased baby items to care for C.M. The one home visit to =
English and=20
Mikowski's apartment revealed that the apartment appeared to be an =
adequate home for C.M. Regarding her =
plans for the=20
future, English testified that she planned to attend college, =
though there=20
is conflicting evidence whether English has obtained her general =
education=20
degree. English also testified that Mikowski is in the process of =
joining=20
the military and would assist in supporting C.M. In sum, the record =
contains=20
evidence showing that English expresses a desire to be a good =
parent to=20
C.M. However, evidence cannot be read in isolation; it must be =
read in the=20
context of the entire record. The record reveals that, in the =
past, when=20
English has taken one step forward, she ultimately takes two back =
by=20
committing a criminal act, failing to follow through on services, =
failing=20
to keep a job, moving from home to home, or being with Mikowski =
when he=20
exhibits violent tendencies. Given the record, the factfinder in =
this case=20
could have reasonably inferred that English would continue such =
pattern of=20
conduct. Such an inference relates directly to English's ability =
to=20
provide a stable and suitable home for C.M. and indicates that =
C.M.'s=20
emotional and physical well-being may be endangered in the future =
if=20
English's parental rights are not terminated. We conclude that =
the=20
evidence, viewed in the light most favorable to the best-interest =
finding,=20
was sufficiently clear and convincing that a reasonable fact =
finder could=20
have formed a firm belief or conviction that termination of the=20
parent-child relationship between English and C.M. was in C.M.'s =
best=20
interest. We further conclude that, viewed in light of the entire =
record,=20
any disputed evidence could have been reconciled in favor of the =
finding=20
that termination of the parent-child relationship between =
appellant and=20
C.M. was in C.M.'s best interest or was not so significant that =
the trial=20
court could not reasonably have formed a firm belief or conviction =
that=20
termination was in C.M.'s best interest. Thus, we hold that the =
evidence=20
was legally and factually sufficient to support such =
finding. We overrule =
English's fourth=20
issue.
We affirm=20
the orders of the trial court terminating the parent-child =
relationship=20
between Mikowski and C.M. and English and C.M. Laura Carter=20
Higley Justice Panel consists of =
Justices=20
Taft, Hanks, and Higley.=20
2. 3. 4.