### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-09-00596- CV

Laura Ann ie Cathey and P aul C. Cathey, Appellan ts

v. Texas Depart m ent of Fam ily and P rote ctive Service s, Appellee

F ROM TH E DISTRI CT COURT O F B ELL COUNTY , 146 TH JUDICI AL DISTRICT NO. 217 ,860 -B , H ONO RAB LE RICK MO RRIS, J UDGE P RESIDING

M E M O R A N D U M O P I N I O N

L aura Annie Cathey and Paul C. Cathey appea l the jud gm en t t er minating their pare nt al ri gh t s to their sons, M.C. and J .C. After a bench trial, the trial court found that clea r and convincing evidenc e supported finding that both pare nts knowing ly place d and knowing l y allowed the children to rema in in condition s an d s u rr oundings that endang ere d the children’ s phy sical and emotional we l l -b ei n g. The trial court also found t hat clear and convincing evidenc e supported finding that termination of pare ntal rig hts was in the children’ s best interest. On appea l, the pare nts contend that these finding s are not supported by leg ally or fac tually sufficie nt evidenc e. We affir m. The family had been the subject of investiga tion almost annually s i n ce 2002, including two previous instances in w hich the children wer e remove d from the house. The f amily includes four chil d ren—the two boy s who are the subject of the judgme nt appea led here , M.C.and J .C., and two older g irls, B.C. and C.C., who wer e orig inally part of this suit, but wer e dismiss ed

as subj ects severa l months befor e the bench trial. At the t ime of t he final heari n g, t h e b o y s wer e, respe ctively , eleve n and six y ear s old and the g irls were ag es seve nteen a nd fiftee n. The previous

case was dismissed on Dec ember 7, 2006. Acc ording to the aff

idavit attache d to the petition, this case was prompted by

a Fe bruar y 2008 repor

t that M.C. had missed over twenty day s o f s ch o ol, had failing g rade s, had
two lice infestations, had lost weig ht, and had g aps betwe en re fills of his medic ations. He arr ived late to sc hool r eg ularly , was quiet and withdrawn, and had serious trouble keeping focuse d. L aura had been aler

ted to some of these issues and appea red to show conce rn, but no chang e had occur red. T h e investiga

tor, Shantara Har

ris, noted that the children had been remove d from the house t h e previous y ear beca

use of unhealthy living conditions and the poor health of the children. She visited the Cathey home the day afte r rec eiving the repor t and found that the conditions wer e hazardous and unsani tary

. She repor ted trash, old food, clothing, and other items scatter ed throug hout the home. She opined that it appea red the home was be ing use d as a trash ca n, with refuse seeming ly poured on the floor. The pare nts stated that t h e h o u se had g otten into that condition only in the last couple of da

y s and that they wer e in the proce ss of clea ning it up. Ha

rris noted that e x cessive
amounts of medication wer e easily acc essible to the children. She descr ibed the bathroom as filthy with dirty clothes and used m axipads on the floor. Floor fans t hroug hout the hom e h ad t ra s h and paper s stuck in them beca use, Paul stated, the children liked to cause the fans to make a loud noise. Har ris descr ibed the children as phy sically neg lected and odorous, as if they had not bathed reg ularly

. J .C. told her that his pare nts foug ht over money and that sometimes Paul hit L aura . M.C. responde d

2to her questions that he forg ot what his mother told him to say . Har ris also stated that C.C. was not

on medication despite having been diag nosed with mental health iss u es . Al l o f the children had missed extensive amounts of school and had been infested with lice. All four children wer e remove d from the home. B.C. and C.C. went back home later that spring under a monitored return. By order signe d October

1, 2008, this case wa s dismis sed re g arding the g irls. The pare nts wer e order ed to participa te in thera py individually and with their family

. I n J une 2008, the case worke r repor ted inconsistent attendanc e at thera p y s es s i o n s , and inhome thera

py beg an. Their family thera pist, Terr i Schroder , repor ted that the Cathey s wer e lowfunctioning , but cooper ative and par t i ci p ated in thera py . Schroder stated that the house was not filthy or disgusting when she visited, but was messy . S h e also opined that the Cathey s did not

rec og nize cluttere d floors as a problem. Schroder repor ted that L aura let the children have their way beca use she did not want them to be ang ry wi t h h er . Schroder repor ted that the family seeme d g enuinely happy to see eac h other when reunited fo r thera py . The case worke r repor ted that the front door was broken and could not be opened and that the back door had two broken hinge s and was hang ing on by the third. She told the pare nts they neede d to fix the door beca use it was dang erous to the y oung er children. The state of the doors wa s not dang erous f or the g irls beca

use t h ey were older. She repor ted that M.C. and J .C.’s foster place ment was safe and appropr iat e. Paul’s thera

pist repor ted in Aug ust 2008 that Paul had problems with rag e and intrusive thoughts arising from killing a

boy in A fg hanistan who had shot a me mber of his pa rty and leve led his rifle
at Paul. Paul was disturbed by the memory of removing the shooter’s scar f and discovering he was a boy , which made him think i t was like shooting his own c hild.

3I n Augu s t 2 0 08, the case worke r repor ted that one thera

pist said that the pare nts did best with outside pressure , althoug h they tended to “fa ll apar t” when they g ot stressed or did not have outside pressure . Unannounc ed vis its reve aled a clea n home, but there wer e reports that the g randmother

who had be en cle aning the home had to stop doing so beca use the wor

k was c ausing her health problems. Fr iends and family repor ted that the Cathey s wer e not pay ing utilit y bills. The 1 utilit ies wer e being shut off intermittently due to failure t o m ak e t i m ely pay ments. The boy s’ foster mother repor

ted t hat J .C. had a hard time following direc tions and was damag ing her home (e.g . by jumping off

the top bunk and g rabbing the ce iling fa n) despite be ing c orre cted. I n October 2008, the case worke r repor ted more prog ress in some are as. The Cathey s

wer e working on a budg et and had paid utilit y bills. They still had trouble setting boundarie s for J .C. They had beg un wee kend visits with the boy s.

I n J anuar y 2009, the case worke r report ed that, despite incre ases in their pay and budg eting help, the Cathey s wer e having problems pay ing their bills. She stated that Paul was g etting counseling for his ang er manag ement issues. She repor ted that L aura was very motivated to get h er b o y s returne d, but did not think that her children’s ex perie nce was t oug h compar ed to h er experience of childhood. Schroder repor ted that the Cathey s felt their standards of clea nliness wer e adequate and that the Depa rtment was just hassling them. The case worke r repor ted that the Cathey s

wer e i gn o ri n g the importance of school attendanc e and did “not appea r to have their children’ s best interest in mind.” The Cathey s insisted that the g irls wer e at t en d i n g s ch ool. Schroder had

The utilit ies wer e in the gra n d m o t her’ s name. Howeve r, the g randmother relied on the 1 Cathey s to pay

the bills. 4spoken to the Cathey s reg arding alterna tive school place ments for B.C., but they had done nothing

to move B. C

. T h e caseworke r repor ted continued budg eting issues that she had sug g ested could be resolved by less eating out, but that the problems continued. She repor ted continued boundary

setting issues reg arding J .C. The case worke r repor ted that, afte r having unsupervised home visits, J .C. beg an smearing fec es on the walls of his foster home. She stated that J .C.’s problems wer e not improving and that his be havior seeme d worse afte r wee kend home visits. The boy s wer e making and having trouble at school.

I n Marc h 2009, Schroder noted small improvements in family functioning , but w as

uncer tain how many of the ch an ges we re internalized and how many wer e temporar y chang es in order to placa te her. She said that the pare nts verba liz ed their desire to chang e and cre ate a more appropr iate household, but their f ollow-throug h was inconsistent. I n May 2009, the case worke r repor ted some reg ression. The Cathey s we re n o t meeting with their budg eting case manag er. P au l ’s course of thera py was canc eled beca

use he stopped attending

. L aura had not schedule d a medicatio n ev al uation for depre ssed mood even though they had discussed completing it by th e en d of Marc h. The g irls wer e still not attending school as they should. Although the thera pist repor ted that the condition of the home was marg inally

acc eptable, the case worke r repor ted that unannounce d visits reve aled an unclea n home with old food

on the counter

tops and stove and trash, pap er s , an d cl o thes ly ing on floors and furniture

. The

case worke r explained to the Cathey s that they could n o t k ee p t h e home fre e of bug s and rodents under such conditions. She said that the pare nts continued to offe r excuses for the condition of the home instead of corr ecting the condition. The case worke r repor ted that the Cathey s wer e attending

5their par enting classes, g iving examples of how they wer e implementing the lessons, and said that

L aura repor

ted that she was being firmer with the g irls about school attendanc e. Paul completed his ang er manag ement co u rs e, an d encour ag ed the children to express their ange r so they could l ear n how to control it. The case worke r conclude d that the Cathey s wer e g enuinely conce rned about their children, but continued to g ive excuses for their actions and showed littl e chang e. They still had trouble setting boundarie s for J .C. The case worke r also stated that the boy s’ foster mother repor ted that the boy s seeme d to be reg ressing as we ll. J .C. had resume d defe cating in his pants daily , and M.C., despite doing very well in school, was beg inning to have difficulty pay ing attention in class. J .C. was taking Ritalin, but was g etting additional medical attention beca use of his lack of prog ress with the drug and his violent outbursts at school.

I n the final hear ing repor t dated J u l y 2 8 , 2009, the case worke r repor ted continued reg ression except for L aura ’s improved functioning on Prozac. L aura ’s thera pist repor ted that L aura appea red to have incre ased ener g y , clea rer thinking, better functioning , and incre ased initiative. The

case worke r, howeve r, had n o t b ee n able to see the home since May

. Twice , on unannounce d home visits, she hear d movement in the home, but no one ca m e t o t he door. Telephone contac t failed beca

use the Cathey s’ telephone was out of service

. The case worke r reiter ated that P au l’s outbursts reg arding court proce eding s and the Depa rt m en t’s stance on the condition of the home made her question whether he internalized much of the training

. Simi larly , she was not cer tain how

m u ch of the pare nting skills the Cathey s had internalized beca use they continued to have i s s u es pare nting the boy s. The Cathey s still h ad not contac ted their budg et manag er. Despite L aura ’s improved functioning , the case worke r had been unable to arr ang e a home visit in the three months

6since the previous repor t. For the first time, th e caseworke r rec ommended termination of the Cathey s’ par ental rig hts to M.C . and J.C

.

At trial, psy cholo gi st Timothy Daiheim also rec ommended termination. He had
trea ted the boy s for o v er a y ea r an d had been the family ’s thera pist for four or five months. He testified that the Cathey s had made prog ress, but also tende d to reg ress a nd reve rt to unacc eptable behavior s. L aura had made the m ost prog ress. L aura and the g irls had excellent par ticipation but Paul had not attended due to w ork conflicts or possibly a lack of commitment. Daiheim descr ibed the pare nts as apathe tic, and noted that apathy was unworka ble when dealing with J .C. and, to

a lesser extent, M.C. Both boy s neede d attention, and J

. C

. ’s condition was so extreme that medications wer e not eff

ective and experts could bare ly keep him focuse d. The apathy had also led
to delay s in L aura g etting presc ribed helpful medication, failure to keep the house in repa ir, and the children not g etting med i ca t i o ns consistently

. Apathy also cause d the pare nts not to consistently require t h e gi rl s to attend school, with the result that B.C. missed 103 day s and C.C. missed the equivalent of 49 full day s in a school y ear . Daiheim test ified t hat consist ent m edica tion was very important for J .C. so that he was not a dang er to himself. Daiheim also testified that an uncluttere d phy s i ca l environment was important not just for the boy s’ g ener al well-be ing, but beca use J .C.

was likely to pick up and throw just about any thing. Whil e in foster car e, for example, he had hurled

a book and hit M.C., inflicting a black ey e. Daiheim also testified t h at the cy cle of remova l and
return was particula

rly damag ing to children who, like M.C. and J .C., neede d a stable environment. He testified that, if this wer e not the pare nts’ third time having thei r ch i l d re n remove d, he

7m i gh t believe they could turn it around. Wit h their history and tendenc y to reg ress, h o we v er , h e

rec ommended ter

mination. Ba rbar a Sanford, the boy s’ foster mother, testified th at t h e b oy s wer e wonder ful, but had a lot of beh av i o r i s s ues. J .C. broke something near ly ever y day

. He urinated in bed and defe cate d on the floor—stating that he was allowed to do so at home. She testified that the boy s had nightmar es soon afte r arr iving at her house that rats and roac hes wer e walking on them. They told her tha t the toilet was not working at hom e, as it was full of feces, and that fec es were also on the floor. They could not put clothes in draw ers beca use rats would defe cate on them. Their fathe r put sticky traps down for rats, but left rats in the sticky traps. They told her that ever y body did what they wanted, which led to trash and uneate n food just sitti ng around the house. J .C. told her he liked that, but she said M.C. pref

err ed being clea

n and safe

. Sanford testified that the boy s loved their mother and wa nted to be with her . Sanford testified tha t M.C. was improving, but J.C . was the sa me. Conservatorship worker L eslie Campbell testified that the Dec ember 2008 lice incident e x emplified the pa rents’ apathy and inabili ty to sustain chang e. The g irls’ continued school attendanc e woes also spoke to those qualities, as did the unrepa ired front door. She opined that the door could fall and hurt J .C. There was no kitchen g arba g e can, the toilet leake d, the sewe r line emptied onto the g round, and me dication re mained out in the open, among othe r issues.

Campbell and Dr. Daiheim both te stified that both boy s wer e adoptable. Schroder , howeve r, testified that M.C. would not ag ree to adoption and J .C. had such sever e behavior problems , h e wo u l d not be easily adoptable. She said that, as of April 2009 when she last saw the family , the boy s wer e very attache d to their parents and wanted t o g o home. She said t h at the

8family ’s only rea l prog ress during her thera py term was g etting the boy s on medication to trea t their ADHD condition. She said that the Cathey s did not make much prog ress beca use they did not acc ept the Depa rtment’s standards of behavior

. Schroder testified that returning the boy s to the home wou ld probably lead to further involvement by the Depa rtment. Campbe ll r ecommende d termination based on the par ents’ chr onic neg lect and the hope that an adoptive home could provide sa fety , stability , and individualiz ed attention that the pare nts had consistently shown themselves unable to provide. She testified t hat, when she spoke with the boy s ab o u t ad o p t i on, they did not express sadness but discussed what they would like to see in an adoptive home. She conce ded, howeve r, that she did not speak to them dire ctly

about termination. L aura testified t hat t he boy s wanted to co m e h o m e. S h e testi fied that she i s try ing
to raise the children “rig ht” and has lear ned from her mistak es . S he said she was willing to do wh at ev er she had to do to bring them home. She acknow ledg ed to the trial court that, i n t h e spring semester , B.C. missed fourtee n day s of s ch ool with a doctor’s note, six teen day s with a note from her mother say ing she was sick, and twelve d ay s with a note that they had car trouble. Paul did not testi fy

.

The trial court noted on the rec ord t h at the termination hear ing marke d the eig hteenth time the pare nts had app ea re d b efore him since J uly 2006. He commented that the full ashtray s in the photogr aphs—couple d with the price of cig are ttes—demonstrated to him that the pare nts’ failure to make important cha ng es in their home was not pur ely economic hardship, but a product of misplaced priorities. He deter mined that the boy s would have to r emain in D epar tment

conser vatorship, so his c hoice was whether it wa s with or without ter mination. He c oncluded that

9t h e Depa

rtment had tried for seven y ear s to g et the family on trac k and that thei r p ro b l em s

wer e appar ently unresolvable

. Consequently , the trial court found by clea r and convincing evidenc e that the pare nts had knowing ly place d and knowing ly allowed the boy s to rema i n i n co nditions and surrounding s that endang er their phy sical and emotional well -being, and that termination of pare ntal rig hts was in the boy s’ best interest. Ba sed on these finding s, the trial court t erminate d the Ca t h ey s ’ p ar ental rig hts to the boy s. On appea l, the Cathey s challeng e the leg al and fac tual sufficie ncy

of the e vidence to support both of these finding s. A cour t may order involuntary

termination only

if the cour

t finds that: (1) a pa

rent has committed a predic ate act or omission harmful to the child, and (2) termination is in the best interest of the child. Tex. Fa m . C o d e Ann. § 161.001 (West Supp. 2009). The court must

ensure that these finding s are supported by clea r and convincing evidenc e—a standard o f proof specific ally intended, in view of the constitutional interests at stake, to reduc e the risk of err oneous ter m i n at i o ns. Id. ; see Santosky v. Kramer , 455 U.S. 745, 764-65 (1982); In re G.M. , 596 S.W .2d 846, 847 (Tex. 1980). This Court, too, must appl y a h ei gh t en ed standard of appellate revie w to complaints that the evidenc e is leg ally or fac tually insufficient to support the finding s nece ssary for
term i n at i o n . I n revie wing a leg al sufficie ncy claim, we look at all the evidenc e in the light
most favor able to the finding to deter mine whether a rea sonable fac t-finder could form a firm belief

or conviction that the matter that must be p ro v en i s t rue. In re J.F.C. , 96 S.W .3d 256, 265-66 (Tex. 2002). We assume the fac t-finder resolved disputed fac ts in favor of its finding if a rea sonable fac t-finder could do so, and we disreg ard all contra ry evidenc e unless a rea sonable fac t-finder could
not. Id .; see also City of Keller v. W ilson , 168 S.W .3 d 8 0 2 , 8 27 (Tex. 2005). When revie wing

10fac tual sufficie ncy , we must g ive due consideration to evidenc e that the fac t-finder could rea sonably

have found to be clea

r and convincing and then deter mine whether , based on the entire rec ord, disputed evidenc e that a rea sonable fac t-finder could not have cre dited in f avor of the finding is so signific ant that a fac t-finder could not re as o n ably have formed a firm belief or conviction that the alleg ations in the petition were tr ue. In re J

.F.C. , 96 S.W .3d at 266. The evidenc e is leg ally and fac tual l y sufficie nt to support the finding of endang erme nt. The testimony about the phy sical condition of the home upon the children’ s remova l

was disturbing. Piles of trash, food waste, and human waste sitti ng in a broken toilet lend cre dence to the boy s’ reports of human wa ste on the floor a nd their re ports of their living conditions. After eig hteen months of Depa rtment scrutiny and involvement, the l i v ing conditions in the house had failed to improve to an acc eptable level. There wer e no working smoke detec tors and no kitchen g arba g e can. The toilet leake d on the inside of the house and a sewe r line just emptied into the y ard. Medica tion was left out acc essible to children. Ceiling fan blades wer e broken by J .C. The boy s g ot lice while at home while they wer e in foster car e, althoug h they wer e lice-f ree in 2009. C.C. injured J .C. during a visit, and did not consistently t ak e h er medications. There was evidenc e that the children did not consistently have their medication presc riptions filled or administered while in their p ar ents ’ home despite their demonstrated need for it and the dang ers of abruptly stopping t h es e medications. The boy s’ ADHD condition require d structure and discipline, and both wer e reg ularly ab s en t from school. B.C.’s continued absenc es from school during the spring semester an d

summer school indicated that the lack of discipline and structure persisted despite pare nting classes and counseling

. Although L aura testified that she had lear ned from h er mistakes and others

11testified that conditi ons had im proved, problems repe atedly cited by the Depa rtment had not bee n

corr ecte d. There was testimony that J .C. said Paul had hit L aura wh en an g ry , and evidenc e that Paul had ang er- manag ement issues. The pare nts’ inability or unwillingness to corr ect issues raised by the Depa

rtment preda

ted this 18-month case . The rec ord provides leg ally and fac tually sufficie nt evidenc e to support the finding by clea r and convincing evidenc e that the pare nts knowing ly place d and knowing ly allowed the boy s to rema in in a home that prese nted phy sical and emotional dang ers to the boy s when they

wer e re moved that had not bee n adequately mitigated by

the time of trial. The evidenc e is also leg ally and fac tually sufficie nt to support the court ’s finding that termination was in the children’ s best interest. The non-exclusive list of fac tors that have been considere d when deter

mining a child’s best interest includes: (1) th e d esires of the child; (2) the emoti o n al and phy sical needs of the child now and in the future; (3) the emotional and phy sical dang er to the child now and in the future; (4) the pare ntal abilities of the individuals seeking custody ; (5) the prog rams available to assist these individuals to promote the best interest of the child; (6) the plans for the child by these individuals or by the ag ency seeking custody ; (7) the stability of the home

or prop o s ed p lace ment; (8) the acts or omissions of the pare nt that may indicate the exis ting pare nt-child rela tionship is not a proper one; and (9) any excuse for the acts or omi s s i o n s o f the pare nt. Holley v . Adams , 544 S.W .2d 367, 371-72 (Te x . 1976).

The evidenc e supports a finding that the H o ll e y f a c to r s s u p p o r t te r mi n a ti o n. Although there was testimony that t h e boy s loved their mother espec ially and that both—particular ly M.C.—wanted to return home, there was also testimony that M.C. asked a potential adoptive pare nt to adopt him. The evidenc e wa s unequivoca l that the boy s neede d a gre at deal of close a ttention.

12M.C. wa s d i agnosed with ADHD and some mild depre ssion. He had trouble stay ing focuse d on

tasks, but had made g rea t aca demic strides while i n fo s t er car e. J .C. was so sever ely ADHD that medication had not enable d h i m t o gai n control. He lived in the moment and was not making prog ress de spite increa sed and more focuse d attention. His impulsi veness cause d him to be a risk to da mag e proper

ty and other s, including his brothe r. B oth boy s neede d consistent administration of medications s o t h at t h e medications would have the best chanc e of taking eff ect. Abrupt withdrawa l of t he medications would blunt their eff ect, c ould cause unpleasa nt rea ctions, and had

a “5 0 -50 chanc e” of making them ineffe ctive when rea dminist ere d. The Cathey s had not shown them s el v es capa

ble of consistent administration of medications for any one, including their older daug hter. Although the phy sical condition of the house improved, there wer e significant problems rema ining, such as the fr o n t door not being fully hinge d and the leaking toilet and open sewe r pipe. There was repe atedly expressed conce rn about whether the Cathey s could maintain the g ains in clea

nli n es s i f t hey wer e not under scrutiny

. Despite thera py and classes, the Cathey s

wer e not consistently setting and maintaining boundarie s and discipline for the children—e specia lly J

. C

. d u ri n g h i s visits. Although L aura and the g irls participa ted i n thera py sessions reg ularly , the Cat h ey s ’ occa sionally sporadic contac t with case worke rs and other support profe ssionals left a question reg arding whether any available prog rams would be useful. Evidence showed that L aura and Paul had problems of their own, which interfe red with their ability to pa rent and to a

bsorb and implement other pare nting strateg ies. Although L aura was improving while on Prozac, the history of sporadic distribution of medications to the children made this improvement appea r tenuous. There was no post-termination perma nent place ment set, but the boy s’ fo s ter mother said she

13would keep them until a perma nent place ment was found. T h e b o y s wer e descr ibed by some witnesses as adoptable, althoug h M.C.’s ag e and J .C.’s habits might reduc e their chanc es. Although there was evidenc e that the pare nts wanted g ood things for their children, there was ample evidenc e to support a belief that the pare nts could not consistently provide minimally adequat e and safe surrounding s and circ umstances f or their y oung er c hildren. We f ind the evidenc e leg ally

and fac tually sufficie nt to support the trial court’s finding that termination of the Cathey s’ pare ntal rig hts is in the children’s be st interest.

Affir med.

G. Alan Waldrop, Just ice

Be fore J ustices Patterson, Waldrop and H enson Affir med Filed: Aug ust 31, 2010

14