Opinion filed October 21, 2010



## In The 

# Eleventh Court of Appeals

__________ 

### No. 11

- 09

- 00 362

- CV

__________ I N THE INTEREST OF D.W.W.D

. & M.L.B.M. , CHILDREN

On Appeal from the 35 th District Court Brown County, Texas Trial Court Cause No. CV 08

- 09

- 293

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

This is an accelerated appeal from a trial court’s order terminating appellant s ’ parental rights. We affirm.
I. Background Facts Virgie De L isle and Michael Massey are the biological parents of D.W.W.D. and
M.L.B.M. De L isle is married to Timothy De L isle, but the two are separated. At the beginning of this case, De L isle
, Massey , and the children lived with De L isle’s mother, Kitty Carlisle.
On August 29, 2008, De L isle and Carlisle took De L isle’s one

- month

- old daughter, M.L.B.M., to Brownwood Regional Medical Center. When admitted, the infant weighed less than her birth weight. Staff determined that the parents had not been mixing the formula

c orrectly. The hospital filed a report with the Texas Department of Family and Protective
Services.2

The Department’s investigation uncovere d further causes for concern. In addition to difficulties mixing the formula, the Department was concerned that the parents were using tap
water in the formula and that De L isle
, Massey , and Carlisle had taken M.L.B.M. to swim in Lake Brownwood while the umbilical cord was still attached to her navel, thereby exposing the i nfant
to a risk of infection. A visit to their home revealed it to be filthy. Twenty

- one month old
D.W.W.D was not verbal and had head lice. De L isle
, Massey , and Carlisle appeared to the
D epartment’s investigator to be cognitively impaired, a fact psychiatr ic evaluations later
confirmed. The D epartm ent removed the children from the home and eventually sought the
termination of De L isle’s and Massey’s parental rights. A jury trial was held in October 2009, with the jury finding by clear and convincing evidence that the parental rights of De L isle and M assey should be terminated.
II. Issues On appeal
, De L isle and Massey argue that the evidence was legally and factually insufficient to support the jury verdict terminating their parental rights. De L isle also argues that she was unduly prejudiced by the D epartment’s excessive use of leading questions in the direct
examination of LVN Angie Willett.
III. Legal and Factual Insufficiency
A. Standard of Review

. The natural right existing between a parent and a child is of “ constitutional dimensions. ” Wiley v . Spratlan , 543 S.W.2d 349, 352 (Tex. 1976). There is a strong presumption that it is in the child’s best interest to remain with the natural parent. In re R.R. , 209 S.W.3d 112, 116 (Tex. 2006). Grounds for termination must be established by clear and c onvincing evidence. This requires a 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. T EX

. F AM

. C ODE A NN

. § 101.007 (Vernon 2008). In a legal suffic iency review, we 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.F.C

. , 96 S.W.3d 256 , 266 (Tex. 200 2). In doing so, we must assume that the factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could do so, and we disregard all evidence that a reasonable factfinder could have
disbelieved or found to have been incredible. Id

.3

In a factual sufficiency review, we must give due consideration to evidence that the trier of fact could reasonably have found to be clear and convincing. Id . We must determine whether the evidence is such that the factfinder could reasonably have form ed a firm belief or conviction regarding the allegations. Id . We must also consider whether the disputed evidence is such that a reasonable factfinder could not have resolved that disputed evidence in favor of its finding. Id

. To determine if the evid ence is factually sufficient, we give due deference to the trial court’s findings and determine whether, on the entire record, the trial court could reasonably form a firm conviction or belief that the parent committed an act that would support termination and that termination of the parent’s parental rights would be in the child’s best interest. In re C.H. , 89 S.W.3d 17, 28 (Tex. 2002). Only one ground of termination is necessary for a judgment of termination when there is also a finding that termination is in the child’s best interest . In re A.V. , 113 S.W.3d 355, 362 (Tex. 2003).
B. Grounds for Termination

. In its verdict, the jury found four statutory grounds for the t ermination of parental rights: (1) that the parent had knowingly placed or allowed the children to remain in conditions or surroundings which endanger the physical or emotional well

- being of the children

. T EX

. F AM

. C ODE A NN

. § 161.001(1)(D) (Vernon Supp. 2010).
(2) that the parent had engaged in conduct or knowingly placed the children with persons who engaged in conduct which endangers the physical or emotional well

- being of the children . Section 161.001(1)(E).

(3) that the parent had failed to comply with provisions of a court order that specifically established the actions necessary for the parent to obtain the return of the children who have been in the permanent or temporary managing conservatorship of the Department of Family and Protective Services for not less than nine months as a result of the children’s removal from the parent as a result of the abu se or neglect of the children. Section 161.00 1(1)(O).
(4) that the parent ha d a mental or emotional illness or a mental deficiency that renders them unable to provide for the physical, emotional, and mental needs of the children and will continue to render the parent unable to provide for the children’s needs until the 18 th birthda y of the children, despite at least six months of reasonable efforts to return the children to the parent. Section 161.003(a).
Section 161.001(1)(E) of the Texas Family Code requires clear and convincing proof that the parent “engaged in conduct or knowi ngly placed the child with persons who engaged in4

conduct which endangers the physical or emotional well

- being of the child.” This section refers not only to the parent’s acts, but also to the parent’s omissions or failures to act. In re J.A. , 109
S.W.3d 869, 875 (Tex. App.

— Dallas 2003, pet. denied). Endanger means “to expose to loss or injury; to jeopardize.” In re M.C. , 917 S.W.2d 268
, 269 (Tex. 1996). Although endanger means more than a threat of physical injury or the possible ill effects of a less

- than

- ideal family environment, it is not necessary that the conduct be directed at the child or that the child actually suffers injury. Id . The D epartment need not establish the specific danger to the child’s well

being as an independent proposition; th e danger may be inferred from parental misconduct. Phillips v. Tex. Dep ’ t of Protective & Regulatory Servs

. , 149 S.W.3d 814, 817 (Tex. App.

— Eastland 2004, no pet.). At the time in question, De L isle and the children had been staying at Carlisle’s house in
Blanket , Texas . Also staying there was Carlisle’s elderly boyfriend Clarence Wa ch oviak. For the first few months of D.W.W.D.’s life, De L isle and her husband Timothy had lived together. When Timothy discovered that Massey was the father of D.W.W.D., he a nd De L isle separated. After the separation, Timothy and Carlisle began a sexual relationship. Massey moved into the home. At trial, De L isle testified that she had concerns about how Massey disciplined the children but refused to go into specifics. She al so did not think that he provided for them financially. Periodically, De L isle and Carlisle would kick Massey out, and he would return to his mother’s house in Bangs , Texas

. Whenever Massey was not there, Timothy would return to Carlisle’s house. Timothy was physically abusive toward De L isle and Carlisle

. At trial, De L isle also testified that Timothy
had been violent toward the children. Carlisle testified that Timothy is not someone t he children
should be around. Nevertheless, there was evidence that b oth De L isle and Carlisle remained in
contact with Timot hy up to the date of trial.
C hild P rotective S ervices became involved in this case when M.L.B.M

. was hospitalized a month after she was born for failure to thrive. When admitted to the hospital, she w eighed four ounces less than her birth weight. Angie Willett, a nurse who had treated M.L.B.M. and who had worked at the pediatric department of the Brownwood Regional Medical Center for six years, testified that M.L.B.M. was the thinnest failure

- to

- thriv e patient she had seen. It was determined that the parents were not making the formula strong enough. In addition, doctors
were concerned that De L isle’ s use of hot tap water to mix the formula was exposing the infant to5

chemicals from the water heater. De L isle also admitted that she, Massey , and Carlisle had taken M.L.B.M. swimming in Lake Brownwood while the infant’s umbilical cord was still atta ched, thus risking infection.
While De L isle and Carlisle were at the hospital with M.L.B.M., Massey and Wa ch o viak looked after D.W.W.D. When a C.P.S. investigator visited the house, the place was filthy. D.W.W.D. appeared dirty and had a bad case of head lice. Even though their pediatrician had
told De L isle and Massey that the only way to treat the lice was to cut D.W.W.D.’s hair short, Massey had refused to let anyone do so. D.W.W.D. appeared to be developmentally delayed. When CPS removed D.W.W.D. from the home a few days later, he was wearing an outfit that

was too small and a urine

- soa ked diaper filled with feces. These facts are sufficient to allow a reasonable juror to form a firm conviction that
De L isle and Massey engaged in conduct or knowingly placed the child ren with persons who engaged in conduct that endang ered the physical or emotional well

- being of the children. Therefore, the evidence is legally and factually sufficient to establish grounds for termination
under Section 161.001(1)(E) of the Texas Family Code

. Because only one ground is neede d to support a termination order, it is unnecessary to discuss the remaining statutory findings.
C. Best Interests of the Children

. To terminate the parent

- child relationship, the trial court must also find that termination is
in the best interest of the children. T ex. Dep’t of Human Servs. v . Boyd , 727 S.W.2d 531 533 (Tex. 1987). When reviewing the sufficiency of the best

- interest evidence, we apply the
nonexclusive factors found in Holley v. Adams , 544 S.W.2d 367, 371

- 72 (Tex. 1976). These
factors include (1) the desires of the child ren , (2) the emotional and physical needs of the
child ren now and in the future, (3) the emotional and physical danger to the child ren now and in
the future
, (4) the parental abilities of the individuals seeking custody, (5) the progra ms available to assist these individuals to promote the best interest of the child ren , (6) the plans for the
child ren by these individuals or by the agency seeking custody, (7) the stability of the home or proposed placement
, (8) the acts or omissions of the parent that may indicate that the existing parent

- child relationship is not a proper one, and (9) any excuse for the acts or omissions of the parents. Id . The Department need not prove all of these factors. In re C.H. , 89 S.W.3d at 27. In an appropriate case, proof of just one factor may be sufficient. Id

.6

After removal
, CPS prepared a family service plan. Among the tasks required were that
De L isle and Carlisle participate in individual counseling, undergo a psychiatric assessment, attend family counseling, and attend parenting classes. A psychological evaluation of De L isle stated that she was “in the mildly retarded range of intelligence with limited cognitive skills to recognize, understand and develop appropriate parenting strategies.” At trial, Kay Oliver, De L isle’s CPS therapist, stated that she did not
believe that De L isle had the mental capacity to care for D.W.W.D. and M.L.B.M. and that DeLisle’s conditi on would not improve. She testified: [W]hat I was seeing was lack of an ability to take care of herself, lack of ability to maintain employment, lack of ability to provide adequate child care. For example, with the self

- care thing, she told me she had no t brushed her teeth since she was five years old, and she was living with her mother, did not have any means of support was totally dependent on her mother to bring her to the sessions for transportation, for a place to live. I believe she may have been d rawing food stamps on her own, but she had no income of her own.
In addition, Oliver had concerns about things De L isle would say about parenting. When discussing CPS’s concerns about how De L isle mixed M.L.B.M.’s formula, De L isle became very upset and sai d that “ [ s ] he didn’t think a child should be pussy

- fed, that they need to learn to take up for themselves.” There were also concerns about whether De L isle would be able to put the
child ren’s needs ahead of her own. Oliver testified that De L isle would tal k about not having enough money for food, gasoline, or basic furniture but would show up to se ssions with sculptured nails.
Oliver recalled that De L isle’s relationships with Massey and Timothy changed frequently throughout the course of her counseling, wi th De L isle one week intending to reconcile with Timothy and the next week intending to move in with Massey . Although De L isle relied on
Carlisle for everything, Oliver testified that their relat ionship was unstable as well. They had problems getting along, and De L isle talked about being abused by her mother as a child. Oliver was of the opinion that the kids should not be placed with De L isle

. Shay Martin, a Department caseworker, testified that there was some improvement in the parents’ interactions during visits with the children after the Department switched to giving
De L isle and Massey thirty minutes with each child separately rather than an hour with both
children at the same time. However, a fter this initial improvement the interactions remained at
the same level.7

In the time since CPS removed the children, De L isle has qualified to receive SSI payments. She moved out of her mother’s house and into a trailer park. After a month, she
found she could not afford to live th ere and moved into a camper trailer near a friend’s house.
De L isle admitted that the camper trailer would be too small for her and her two children. If she gets her children back, she hoped to be able to move into government housing. Von Bates, a counselo r at the Family Services Center, testified that De L isle had made

some progress in becoming more independent but admitted that this progress had been slow.
De L isle still depended on someone else for transportation
, and providing for her children would
be a struggle. Bates testified that she thought that De L isle could provide for the physical, mental, and emotional needs of the children to the best of her ability. However, Bates based this opinion on her belief that De L isle was providing for those needs bef ore the children’s removal. Gina Jameson, De L isle ’s parenting instructor, testified that she believed that De L isle could successfully parent the children with the right support system of ongoing parenting classes, support from the family service center, a good pediatrici an, and stability in her life. A psychological evaluation of Massey said that he was “in the mildly retarded range of intelligence, with limited cognitive skills to recognize, understand and develop appropriate parenting strategies.” Dr. Bi ll Gustavus, Massey ’s CPS therapist, testified that Massey would have difficulty making independent decisions. Michael will be challenged by making decisions about their welfare, about what they need to eat, about the amount of nurturance that they need, about who is safe to play with, about where they

- - lots of decision

. And, those basic decisions that you and I take for granted, and that most people perform not perfectly
, but to an acceptable degree, are going to be very challenging areas for [ Michael ]

. In the time since CPS removed the children, Massey quali fied to receive SSI payments. Massey moved into a house in Brownwood with a roommate. Just before trial , his roommate
moved out. When asked what he would do now, Massey said he would pay the ren t by himself.
Dr. Gustavus doubted that Massey can afford to do so

. While in foster care, D.W.W.D. underwent surgery to have tubes put into his ears. Since then, his verbal abilities have improved. M.L.B.M. has a chromosomal defect inherited from
De L isle and Carlisle

. De L isle herself question ed whether she and Massey would have the money or mental abilities to care for the children. She agree d that the foster parents were taking good care of them and that the kids are mixed up now with two sets of paren ts.8

The evidence is legally and factually sufficient for a reasonable juror to form a firm
conviction that termination of De L isle ’s and Massey ’s parental rights would be in the best
interests of D.W.W.D. and M.L.B.M. Accordingly, we overrule DeLisle’s and Massey’s sufficiency of the evidence points.
IV. Leading Questions During direct examination of LVN Angie Willett, De L isle ’s counsel objected three times to leading questions. T he trial court overruled the second objection. The witness’s testimony on direct concerned the diagnosis M.L.B.M. received when admitted to the hospital, the appearance of the infant, the manner in which the hospital treated the infant, and her impressions of De L isle
and Carlisle

. On direct examination , leading questions should be used only when necessary to develop

a witness’s testimony. T EX

. R. E VID . 611(c). The decision to allow leading questioning is in the
discretion of the trial court

. Wyatt v. State , 23 S.W.3d 18, 28 (Tex. Crim. App. 2000); Me ga Child Care, Inc. v. Tex. Dep ’ t of Protective & Regulatory Servs

. , 29 S.W.3d 303, 308 (Tex. App.

— [14 th Dist.] 2000, no pet.). Abuse of discretion cannot be shown unless the appellant demonstrates he was unduly prejudiced as a result of such questioning. Wyatt , 23 S.W.3d at 28

. De L isle cites no particular instances during Willett’s testimony where leading questions caused her irreparable harm. Therefore
, we overrule her second point of error.
V. Conclusion
The order of the trial court is affirmed

.

RICK STRANGE
JUSTICE

October 21, 2010 Panel consists of: Wright, C.J., McCall, J., and Strange, J.