Opinion filed October 21, 2010

In The

Eleventh Court of Appeals 

__________

No. 11-09-00362-CV

__________

IN THE INTEREST OF D.W.W.D. & M.L.B.M., CHILDREN

On Appeal from the 35th 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 appellants’ parental 

rights. We affirm.

I. Background Facts

Virgie DeLisle and Michael Massey are the biological parents of D.W.W.D. and 

M.L.B.M. DeLisle is married to Timothy DeLisle, but the two are separated. At the beginning 

of this case, DeLisle, Massey, and the children lived with DeLisle’s mother, Kitty Carlisle.

On August 29, 2008, DeLisle and Carlisle took DeLisle’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 

correctly. The hospital filed a report with the Texas Department of Family and Protective 

Services.
2

The Department’s investigation uncovered 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 DeLisle, 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 infant 

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. DeLisle, Massey, and Carlisle appeared to the 

Department’s investigator to be cognitively impaired, a fact psychiatric evaluations later 

confirmed. The Department removed the children from the home and eventually sought the 

termination of DeLisle’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 DeLisle and Massey should be terminated.

II. Issues

On appeal, DeLisle and Massey argue that the evidence was legally and factually 

insufficient to support the jury verdict terminating their parental rights. DeLisle also argues that 

she was unduly prejudiced by the Department’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 convincing 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. TEX. FAM. CODE ANN.

§ 101.007 (Vernon 2008).

In a legal sufficiency 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. 2002). 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 formed 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 evidence 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 termination 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. TEX. FAM. CODE ANN. § 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 abuse or neglect of the children. Section 161.001(1)(O).

(4) that the parent had 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 18th birthday 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 knowingly placed the child with persons who engaged in 
4

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 Department need not establish the specific danger to the child’s wellbeing as an independent proposition; the 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, DeLisle and the children had been staying at Carlisle’s house in 

Blanket, Texas. Also staying there was Carlisle’s elderly boyfriend Clarence Wachoviak. For 

the first few months of D.W.W.D.’s life, DeLisle and her husband Timothy had lived together. 

When Timothy discovered that Massey was the father of D.W.W.D., he and DeLisle separated. 

After the separation, Timothy and Carlisle began a sexual relationship.

Massey moved into the home. At trial, DeLisle testified that she had concerns about how 

Massey disciplined the children but refused to go into specifics. She also did not think that he 

provided for them financially. Periodically, DeLisle 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 DeLisle and Carlisle. At trial, DeLisle also testified that Timothy 

had been violent toward the children. Carlisle testified that Timothy is not someone the children 

should be around. Nevertheless, there was evidence that both DeLisle and Carlisle remained in 

contact with Timothy up to the date of trial.

Child Protective Services 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 weighed 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-thrive patient she had seen. It was 

determined that the parents were not making the formula strong enough. In addition, doctors 

were concerned that DeLisle’s use of hot tap water to mix the formula was exposing the infant to 
5

chemicals from the water heater. DeLisle 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 attached, 

thus risking infection.

While DeLisle and Carlisle were at the hospital with M.L.B.M., Massey and Wachoviak

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 DeLisle 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-soaked diaper filled with feces.

These facts are sufficient to allow a reasonable juror to form a firm conviction that 

DeLisle and Massey engaged in conduct or knowingly placed the children with persons who 

engaged in conduct that endangered 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 needed 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. Tex. 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 children, (2) the emotional and physical needs of the 

children now and in the future, (3) the emotional and physical danger to the children now and in 

the future, (4) the parental abilities of the individuals seeking custody, (5) the programs available 

to assist these individuals to promote the best interest of the children, (6) the plans for the 

children 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 

DeLisle and Carlisle participate in individual counseling, undergo a psychiatric assessment, 

attend family counseling, and attend parenting classes.

A psychological evaluation of DeLisle 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, DeLisle’s CPS therapist, stated that she did not 

believe that DeLisle had the mental capacity to care for D.W.W.D. and M.L.B.M. and that 

DeLisle’s condition 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 not 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 drawing food 

stamps on her own, but she had no income of her own.

In addition, Oliver had concerns about things DeLisle would say about parenting. When 

discussing CPS’s concerns about how DeLisle mixed M.L.B.M.’s formula, DeLisle became very 

upset and said 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 DeLisle would be able to put the 

children’s needs ahead of her own. Oliver testified that DeLisle would talk about not having 

enough money for food, gasoline, or basic furniture but would show up to sessions with 

sculptured nails.

Oliver recalled that DeLisle’s relationships with Massey and Timothy changed frequently 

throughout the course of her counseling, with DeLisle one week intending to reconcile with 

Timothy and the next week intending to move in with Massey. Although DeLisle relied on 

Carlisle for everything, Oliver testified that their relationship was unstable as well. They had 

problems getting along, and DeLisle talked about being abused by her mother as a child. Oliver 

was of the opinion that the kids should not be placed with DeLisle.

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 

DeLisle and Massey thirty minutes with each child separately rather than an hour with both 

children at the same time. However, after this initial improvement the interactions remained at

the same level.
7

In the time since CPS removed the children, DeLisle 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 there and moved into a camper trailer near a friend’s house. 

DeLisle 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 counselor at the Family Services Center, testified that DeLisle had made 

some progress in becoming more independent but admitted that this progress had been slow. 

DeLisle still depended on someone else for transportation, and providing for her children would 

be a struggle. Bates testified that she thought that DeLisle 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 DeLisle was providing for those needs before the children’s removal.

Gina Jameson, DeLisle’s parenting instructor, testified that she believed that DeLisle

could successfully parent the children with the right support system of ongoing parenting classes, 

support from the family service center, a good pediatrician, 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. Bill 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 qualified 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 rent 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 

DeLisle and Carlisle. DeLisle herself questioned whether she and Massey would have the 

money or mental abilities to care for the children. She agreed that the foster parents were taking 

good care of them and that the kids are mixed up now with two sets of parents.
8

The evidence is legally and factually sufficient for a reasonable juror to form a firm 

conviction that termination of DeLisle’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, DeLisle’s counsel objected three times 

to leading questions. The 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 DeLisle

and Carlisle.

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

a witness’s testimony. TEX. R. EVID. 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); Mega 

Child Care, Inc. v. Tex. Dep’t of Protective & Regulatory Servs., 29 S.W.3d 303, 308 (Tex. 

App.—[14th 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.

DeLisle 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.