Court of Appeals of Texas, Fourth District, San Antonio
the 25th Judicial District Court, Guadalupe County, Texas
Trial Court No. 14-2048-CV Honorable W.C. Kirkendall, Judge
Sitting: Sandee Bryan Marion, Chief Justice Patricia O.
Alvarez, Justice Luz Elena D. Chapa, Justice
Patricia O. Alvarez, Justice
an accelerated appeal of the trial court's order
terminating Appellants Ralph's and
Carla's parental rights to their
child, R.S. T. Ralph contends the evidence does not support
the trial court's termination based on Texas Family Code
subsections 161.001(1)(b)(D), (E), and (O). Tex. Fam. Code
Ann. § 161.001(b)(1)(D), (E), (O) (West Supp. 2016).
Ralph also contends the trial court failed to properly
conduct the requested de novo hearing pertaining to the
parental terminations. Carla, on the other hand, does not
argue that the evidence was insufficient to support the trial
court's findings that she violated statutory grounds for
termination. Instead, she asserts the evidence is neither
legally nor factually sufficient for the trial court to have
found by clear and convincing evidence that terminating her
parental rights is in R.S. T.'s best interest.
See Tex. Fam. Code Ann. § 161.001(b)(2).
Because we conclude the evidence is legally and factually
sufficient to support the trial court's findings in both
cases, we affirm the trial court's order terminating
Ralph's and Carla's parental rights to R.S. T.
and Procedural Background
gave birth to R.S.-T. on August 7, 2014. The next day, on
August 8, 2014, the Texas Department of Family and Protective
Services received a referral alleging physical abuse and
neglectful supervision of newborn R.S. T. R.S. T.'s
mother, Carla, tested positive for marijuana on two different
prenatal visits and, after delivery, the nursing staff
expressed concern that Carla's cognitive delay might
affect the child's care following his release from the
hospital. The Department set up a formal safety plan
requiring that (1) the hospital release R.S. T. only if
Carla's parents were present and (2) Carla reside with
was released from the hospital in accordance with the safety
plan. Within a couple of days, however, Carla moved out of
her parents' residence. During the next six weeks, the
Department's numerous voice messages and attempts to
contact Carla, and to ensure the safety of R.S. T., went
September 22, 2014, the Department's investigator finally
located Carla and R.S. T. The six-week old baby appeared
lethargic and withdrawn. The child was taken to an emergency
room in Guadalupe County and ultimately transferred to a
children's hospital in San Antonio. The following day, on
September 23, 2014, the Department filed its Original
Petition for Protection of a Child and for Conservatorship
and for Termination in Suit Affecting the Parent-Child
Relationship. Included in the motion was a request for
emergency temporary orders naming the Department as Sole
Temporary Managing Conservator of R.S. T. with the exclusive
right to physical possession of the child.
October 23, 2016, after several permanency hearings, a
multiple-day bench trial on the merits before the associate
judge, and a de novo hearing before the district court judge,
Ralph's and Carla's parental rights to R.S. T. were
terminated based on (1) subparagraphs (D), (E), and (O) of
section 161.001(b)(1),  see Tex. Fam. Code Ann. §
161.001(b)(1)(D), (E), (O), and (2) a determination that such
termination was in the child's best interests, see
id. § 161.001(b)(2).
of the Evidence
Standards of Review
termination of parental rights involves fundamental
constitutional rights and divests the parent and child of all
legal rights, privileges, duties, and powers normally
existing between them, except for the child's right to
inherit from the parent." In re L.J.N., 329
S.W.3d 667, 671 (Tex. App.-Corpus Christi 2010, no pet.)
(citing Holick v. Smith, 685 S.W.2d 18, 20 (Tex.
1985)). As a result, appellate courts must strictly
scrutinize involuntary termination proceedings in favor of
the parent. Id. (citing In re D.S.P., 210
S.W.3d 776, 778 (Tex. App.- Corpus Christi 2006, no pet.)).
order terminating parental rights must be supported by clear
and convincing evidence that (1) the parent has committed one
of the grounds for involuntary termination as listed in
section 161.001(b)(1) of the Family Code, and (2) terminating
the parent's rights is in the best interest of the child.
See Tex. Fam. Code Ann. § 161.001; In re
J.F.C., 96 S.W.3d 256, 261 (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; J.F.C., 96 S.W.3d at 264.
is a strong presumption that the best interest of the child
is served by keeping the child with its natural parent, and
the burden is on [the Department] to rebut that
presumption." In re D.R.A., 374 S.W.3d 528, 533
(Tex. App.-Houston [14th Dist.] 2012, no pet.). "The
same evidence of acts or omissions used to establish grounds
for termination under section 161.001[(b)](1) may be
probative in determining the best interest of the
clear and convincing evidence standard applies, a legal
sufficiency review requires the appellate court to "look
at all the evidence in the light most favorable to the
finding to determine whether a reasonable trier of fact could
have formed a firm belief or conviction that its finding was
true." In re J.L., 163 S.W.3d 79, 85 (Tex.
2005) (quoting J.F.C., 96 S.W.3d at 266). If the
court "determines that [a] reasonable factfinder could
form a firm belief or conviction that the matter that must be
proven is true, then that court must conclude that the
evidence is legally [sufficient]." See id.
(quoting J.F.C., 96 S.W.3d at 266). "[A]
reviewing court must assume that the factfinder resolved
disputed facts in favor of its finding if a reasonable
factfinder could do so." J.F.C., 96 S.W.3d at
266. "A corollary to this requirement is that a court
should disregard all evidence that a reasonable factfinder
could have disbelieved or found to have been
clear and convincing standard, evidence is factually
sufficient if "a factfinder could reasonably form a firm
belief or conviction about the truth of the State's
allegations." In re C.H., 89 S.W.3d 17, 25
(Tex. 2002); accord In re K.R.M., 147 S.W.3d 628,
630 (Tex. App.-San Antonio 2004, no pet.). We must consider
"whether disputed evidence is such that a reasonable
factfinder could not have resolved that disputed evidence in
favor of its finding." J.F.C., 96 S.W.3d at
266; accord C.H., 89 S.W.3d at 25. "If, in
light of the entire record, [unless] the disputed evidence
that a reasonable factfinder could not have credited in favor
of the finding is so significant that a factfinder could not
reasonably have formed a firm belief or conviction, . . . the
evidence is factually [sufficient]." J.F.C., 96
S.W.3d at 266.
Testimony Elicited During the Termination Hearing before the
the applicable standards of review for sufficiency of the
evidence, we examine all the evidence presented during the
termination hearing. See J.F.C., 96 S.W.3d at 266;
see also City of Keller v. Wilson, 168 S.W.3d 802,
827 (Tex. 2005) (crediting or disregarding evidence for legal
sufficiency). The associate judge heard several days of
testimony from multiple witnesses, including Ralph, the
caseworkers, doctors, and the foster mother. The judge also
heard arguments from the Department's attorney, the
children's ad litem, and respective counsel for Ralph,
Carla, and the foster parents.
Ralph challenges the trial court's finding that he
committed one or more of the statutory grounds of involuntary
termination and Carla challenges the trial court's
finding that termination was in R.S. T.'s best interest,
a more in-depth presentation of the facts is warranted.
Texas Department of Family and Protective Services
Department's first witness was Investigator Lori Dickens.
At the time of the trial, Dickens had been an investigator
for approximately three years. Dickens was assigned to
newborn R.S. T.'s case on August 8, 2014. The original
allegations included physical abuse and neglectful
supervision: Carla tested positive for marijuana on two
different prenatal visits and, after delivery, the nursing
staff expressed concern that Carla's cognitive delay
might affect the child's care following his release from
met with Carla at the hospital; the meeting was very pleasant
and R.S. T. was in the room with her at the time. Carla
reported that R.S. T.'s father, Ralph, was at the birth
and they were a couple, but not married. At the time of their
meeting, Ralph had left the hospital to shower and take a
nap. Carla explained that one of the marijuana tests was the
result of second-hand smoke during a baby shower; she offered
no explanation for the other positive test.
regard to R.S. T., Dickens described Carla as apprehensive.
Carla explained that she suffered brain trauma following an
automobile accident and she was concerned about dropping the
baby. Dickens and Carla discussed the need for Carla to stay
with Carla's parents when she left the hospital; Dickens
noted that Carla appeared somewhat unrealistic about her
parents' physical impairments and the effect on the
amount of assistance they might be able to provide.
set up a formal safety plan with Carla and specifically
explained that the plan prohibited the hospital from
releasing R.S. T. unless Carla's parents were present;
the plan also required Carla to reside with her parents.
Dickens explained to Carla that following her release from
the hospital, Dickens would visit Carla at her parents'
home to check on the home and R.S. T.
testified that she called the residence on August 14, 2014;
when no one answered, Dickens left a message requesting Carla
return her call. On August 15, 2014, Dickens attempted to
make contact with Carla, in person, at her parents'
house. No one answered the door and Dickens left a note on
the door for Carla to contact her. Dickens testified that she
made several phone calls between August 15, 2014, and August
23, 2014, to both Carla's cellphone and to the home
August 23, 2014, Dickens finally spoke to Carla's father.
He was upset and informed Dickens that Carla left town with
Ralph and R.S. T. Both he and his wife told Carla about the
notes and messages left by Dickens, and they encouraged Carla
to make contact with Dickens. Dickens continued to call
Carla's cellphone and the home phone in attempts to reach
September 16, 2014, Dickens again called the home phone and
Carla's mother answered. Carla's mother reported that
Carla was out running errands and R.S. T. was with her.
Carla's mother reported that R.S. T. was gaining weight
and appeared to be doing well overall.
September 19, 2014, Dickens again called the home phone and
Carla's father reported Carla was living in San Marcos
and that he relayed to Carla the urgency to contact Dickens.
Carla's father also provided the paternal
step-grandmother's name. Dickens proceeded to contact the
paternal step-grandmother who denied knowing Carla's
whereabouts. Dickens requested that she give Carla the
contact information and relay the urgency of Carla contacting
finally contacted Investigator Dickens that evening. Carla
agreed to meet Dickens at her parents' home in Seguin the
following Monday. Carla remembered Dickens and she understood
that she was in violation of the Department's safety
plan. Carla replied that she and Ralph were simply taking
R.S. T. to see different family members. In between visits,
Carla explained that she and R.S. T. had been staying with
Ralph at his father's and step-mother's home.
September 22, 2014, Dickens made face-to-face contact with
Carla. Dickens testified that she was shocked by R.S.
T.'s appearance. R.S. T.'s coloring was poor, his
previously round, rosy cheeks were thin and drawn, his hair
appeared to be falling out, he was lethargic, and R.S. T. was
relatively unresponsive to Dickens's holding him. Dickens
inquired whether Carla had taken R.S. T. to the pediatrician
for newborn care; Carla reported she had only recently
selected a pediatrician from Medicaid. Carla further
explained that she did not take R.S. T. for his initial
check-up after leaving the hospital because she lacked
then requested that Carla feed the child while she was there.
Carla proceeded to fill the bottle with three ounces of water
and a three-quarters-full scoop of baby formula powder.
Dickens immediately explained and demonstrated for Carla that
for every two ounces of water, Carla needed to use a full
scoop of formula. The proper bottle was prepared and R.S. T.
drank the entire bottle. Dickens testified that Carla's
feeding R.S. T. raised further concerns. "Once he would
start to suckle and really latch onto it, she would pull it
out." Dickens again demonstrated proper bottle
techniques. When R.S. T. finished his bottle, Dickens
requested Carla prepare another bottle to ensure that Carla
understood the proper amount of formula required. Dickens
testified that Carla did not properly mix the formula.
Dickens again showed Carla how to mix the formula and
reiterated that mixing the right proportions was vital to
R.S. T.'s nutritional needs. Dickens also told Carla that
she would contact Medicaid and attempt to set up an immediate
appointment with the doctor Carla had previously selected.
Dickens contacted Medicaid, they had no record of Carla
requesting a primary care physician for R.S. T. Dickens
testified that she had concerns regarding R.S. T.'s
physical health. After speaking to her supervisor, Dickens
transported Carla and R.S. T. to the emergency room. When
they arrived at the emergency room, Carla was able to relay
to the triage nurse Dickens's concerns about R.S.
T.'s weight and that Carla felt he was constipated. The
emergency room doctor determined that R.S. T. was dehydrated
and requested transport to the children's hospital in San
Antonio. R.S. T. was diagnosed with failure to thrive and
hospitalized for approximately one week. Dickens requested an
emergency removal; when R.S. T. was released, he was taken
directly to the foster home where he has remained.
testified the purpose of the safety plan was to ensure R.S.
T.'s safety, and Carla's failure to comply with the
safety plan put R.S. T. in danger necessitating his removal.
Additionally, Dickens testified that she did not see any
problems with R.S. T.'s attaching to the bottle. He was
able to suck, swallow, and breathe as necessary without
also testified that she first met Ralph during an adversary
hearing. He was living with his parents in San Marcos.
Although he was not on the original service plan, he knew the
Department was involved in R.S. T.'s removal Ralph did
not take any initiative to contact Dickens or the Department.
Upon further questioning, Ralph acknowledged knowing that
Carla tested positive for marijuana during her pregnancy.
Ralph declined Investigator Dickens's request to submit
to a drug test.
Rocky Steven Henserling
Henserling, a master conservatorship supervisor for the
Department, was the second witness called to testify.
Henserling was R.S. T.'s primary caseworker from May to
September in 2015. Henserling testified neither Ralph's
father or Ralph's step-mother requested contact or
visitation with R.S. T. During his first meeting with Ralph
and Carla, Henserling reviewed the Department's service
plan for each parent and any uncompleted services.
relayed that, in May of 2015, Carla completed her
psychological evaluation, but the Department had not yet
secured a doctor to complete the suggested neuropsychological
evaluation. Henserling also expressed concern regarding the
continued allegations of domestic abuse between Ralph and
Carla and the effects of such abuse on a child in the home.
Carla had not completed parenting classes, individual
counseling, or domestic violence classes. Ralph had not
completed a requested substance abuse assessment, individual
therapy, parenting classes, or domestic violence classes.
the July 20, 2015 permanency hearing, the trial court signed
an order requiring that Carla complete her neuropsychological
evaluation, individual therapy, domestic violence classes,
and a parenting workshop. Ralph still needed to complete the
substance abuse assessment, domestic violence classes,
individual therapy, and parenting classes. By September 21,
2015, the Department finally secured a provider for the
neuropsychological evaluation and the trial date was
rescheduled for a later date. Henserling explained that
although Ralph completed the substance abuse assessment,
neither parent made significant progress with their
individual therapy or domestic violence classes.
visitation, Ralph engaged and interacted well with R.S. T.
Ralph met R.S. T.'s physical needs, showed affection, and
was appropriate throughout the visits. Ralph's visitation
record was tarnished by the times he would "no
show" or be late. Henserling further testified that
Carla's largest obstacle with visitation was scheduling
issues. The Department attempted to be very flexible,
changing times and days of the week. Carla would be employed
for a period of time and attend visitation; at other times,
she simply would not show up. When she did visit, Carla
tended to treat R.S. T. like a newborn baby with very
infantile and soft-spoken terms. Carla wanted to cradle R.S.
T. and did not appear to understand that the toddler was
growing and developing and wanted to explore his
asked for his recommendation, Henserling did not believe
either Ralph, who was incarcerated at the time of the
hearing, or Carla could provide a safe and stable home for
R.S. T. Carla could barely meet her own basic needs and there
was a relatively extensive domestic abuse history between
Ralph and Carla. Henserling attempted to assist Carla in
meeting her appointments and obligations. On
cross-examination, he testified that each of the service
plans he develops are modified and customized for each
individual parent. Henserling explained to Carla the
importance of attending the classes, the counseling sessions,
and regular visits with R.S. T. He even provided Carla with a
calendar and showed her how to plan for transportation and
also testified that, during his time with the Department, he
successfully worked with several parents with cognitive
limitations. With Carla, Henserling was concerned with her
support network and her unrealistic expectations of the
people around her. For example, Carla's mother suffered a
stroke, but Carla appeared to believe the symptoms would
simply disappear when R.S. T. came home; "my mom is
going to be better and she's going to run after him and
chase him around and play with him. She's just really sad
because he's not home."
Henserling testified regarding the love shown by the foster
parents. They love R.S. T. as if he was their own; their home
is the only home R.S. T. has ever known. Henserling described
R.S. T. as a very happy baby, with an adorable smile and very
bonded with his foster parents. The foster parents even
allowed Carla and Ralph to visit R.S. T. at their home and
presented themselves as a support family and attempted to
model proper and appropriate child care. "I really feel
like they tried to go above and beyond to help support
reunification with these first time parents [Ralph and
Anderson, the program director for the Department, testified
regarding her meeting with Carla on April 6, 2015. Carla was
upset because she had not seen R.S. T. in over a month;
Anderson's concern was more immediately focused on the
bruises and scratches on the left side of Carla's neck.
When asked about the bruises, a crying Carla relayed that she
and Ralph argued over the weekend and Ralph strangled and
scratched her. Carla assured Anderson that she was safe and
that she had moved back to Seguin and was living with her
parents. Anderson took photographs of Carla's injuries;
the photographs were admitted during the termination hearing.
Carla also told Anderson about several other occasions where
Ralph's abuse caused her black eyes and nosebleeds and
also showed her a scar Carla received as result of
Ralph's step-mother scratching her. During
cross-examination, Anderson confirmed the Department's
investigation revealed Ralph and Carla were engaged in
battering each other.
testified that Carla's cognitive abilities and
disabilities were not a part of the Department's
recommendation for placement. To the contrary, Anderson was
adamant that the Department's decision was based
primarily on Carla's inability to appropriately care for
R.S. T. and the family domestic violence-which creates
anxiety and fear in children. Anderson relayed that the
Department considered Ralph's father and step-mother for
placement on four different occasions. In October of 2014,
they were denied based on too many young children in the home
and issues with clutter and cleanliness in the home. On March
30, 2015, although two of the younger children were no longer
in the home, there were still issues with the home's
cleanliness and whether the children in the home were being
fed. On April 16, 2015, the Department noted a referral was
called in regarding physical abuse and disparate treatment in
the home. The child that was the subject of the disparate
treatment was removed from the home and placed with his
father. Lastly, in December of 2015, the Department did not
approve placement based on criminal histories of Ralph's
father and step-mother and concerns related to frequent
visitors to the home with criminal histories.
Smith, a Department caseworker, testified regarding her
observations during Carla's and Ralph's visitations
with R.S. T. R.S. T. is a happy little boy and was always
pleased to see both Carla and Ralph. Prior to each, the
foster mother would pack a lunch containing food and two
sippy cups. Even with Smith's encouragement and
explanations that R.S. T. needed to eat the food, Carla only
opted to give R.S. T. the sippy cups. Smith also described an
obsessive nature in the way Carla would change R.S. T.'s
diaper. At the beginning of each visit, Carla would
immediately change his diaper-even when the diaper was not
soiled. What alarmed Smith, however, was Carla's
incessant wiping of R.S. T.'s genitals "anywhere
from 10 to 15 minutes sometimes, " and Smith never saw a
diaper that was anything more than slightly wet with urine.
described the foster family as loving and very supportive.
R.S. T. has several young foster siblings in the home, all
adopted through the Department. Smith opined that the foster
parents were more than able to care for the children. The
house was clean, with plenty of room for each of the
children. According to Smith, R.S. T. was thriving in the
foster home. The foster family was committed to caring for
R.S. T. and they hoped to adopt R.S. T. Smith strongly
believed that such adoption was in R.S. T.'s best
supervisor Brittany Brumme opined that termination of both
Carla's and Ralph's parental rights was in R.S.
T.'s best interest.
Neither of the parents in this case have been able to
demonstrate they could maintain a safe and stable home or
provide for this child. . . . Dad has been in and out of jail
at least twice during the pendency of this case. We have
offered services to both parents. Neither of the parents
[has] completed counseling which is a huge concern since
that's one of the main services that would have offered,
you know, them an ability to change their lifestyle and learn
how to better care for the child. [R.S. T.] is extremely
bonded with his foster family. He's been there almost 16
months. This is basically the only family that he knows as
his family. Beyond that parents not taking advantage of
services that have been offered to them, not being able to
demonstrate that they can provide that safe and stable home,
and not being able to demonstrate that they [will] be able to
meet [R.S. T.]'s needs.
also expressed concern regarding the domestic violence and
substance abuse in R.S. T.'s home and Ralph's and
Carla's failure to understand the seriousness of both.
Brumme testified that she believed the counseling services
offered to Carla were sufficient to meet her needs had she
taken advantage of the services.
attorney spent significant time discussing the
Department's failure to timely provide a
neuropsychological evaluation and the Department's
failure to appropriately modify Carla's service plan
based on her mental disabilities. Brumme explained that
although no written changes were made to the Department's
service plan, like in all Department cases, the plan was
continually informally modified. The neuropsychological
evaluation provided guidance that Carla's intellectual
limitations would require repetition in the learning process.
The Department and the service providers attempted to
demonstrate the skills and explain the importance of Carla
following through at each appointment. When the
neuropsychological evaluation was received, R.S. T.'s
case was again staffed by the Department. Brumme explained
that based on the neuropsychological evaluation, the
psychological evaluation, and the caseworkers' one-on-one
contacts with Carla, Brumme and the other Department staff
felt that the accommodations in place were reasonably
designed to assist Carla in learning the identified skills.
Brumme opined that Carla's failure to participate in
counseling, not her intellectual or mental limitations, was
the greatest obstacle to the Department's efforts to
reunify mother and child.
Not Employed by the Department
Tomlinson, a licensed professional counselor, began working
with both Ralph and Carla in January 2015. Tomlinson
described the counselor-patient relationship as sporadic,
with many "no shows." She saw Carla for a total of
six visits and Ralph for a total of eight. Carla and
Ralph's relationship was also sporadic, breaking up and
then reuniting. Tomlinson testified that Ralph never took
responsibility for R.S. T.'s condition when the
Department intervened. To the contrary, Ralph considered R.S.
T.'s care Carla's responsibility.