### 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. 03-13-00293- CV

T. W. and C. N., Appellants

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 ASTROP CO UNTY, 423 RD JUDICI AL DISTRICT NO. 12- 1522 6, H ONO RAB LE CHRI STO P HER DARROW DUGGAN, JUDGE P RESIDING

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

After a bench t rial, t he trial court terminated t he parental rights of appel l an ts T.W. and C.N. to their children, A.N., their daug hter born in May 2005, and D.N., their son born in May 2012. On appea l, T.W. and C.N. raise a single issue challeng ing the sufficie ncy of the evidenc e that termination is in the children’s be st interest. We aff irm the trial cour

t’s order of termination.

F actual Summ ary Father C.N. was incar cer ated at the time of trial and had been since about November 2011, shortly befor e D.N. was born. T.W. has a total of six children and her older four children had alre ady been remove d from her car e and place d with T.W.’s mother befor e the remova l of A.N. andD.N. When D.N. was born, both he and mother T.W. tested positive for coca ine. The Depa rtment 1 place d A.N. and D.N. with T.W.’s aunt, but they wer e remove d less than a wee k later beca use T.W. and her aunt g ot into a phy sical figh t wh en the children wer e prese nt, the aunt violated the safe ty plan, and the a

unt reporte d that she did not know wher e D.N. w as or who ha d him. The Depa rtment next place d both children with fost er pare nts Cherie W. and her husband, giving T.W. wee kly visitations. Cherie testified that A.N. was well- b eh av ed at first but that her behavior quickly g rew impossibl e to ha ndle and that she would kick and scre am when she was tol d no or t old to do something she did not want to do. A.N.’s “w orst day s” were usually the two day s following a visit with T.W. but Cherie also said that if T.W. mis sed a visit, A.N. “w ould g et ang ry , too. So she was—she just was in a fit.” Cherie testified that afte r about two months, she and her husband asked the Depa rtment to r emove A.N. beca use her behavior was “out of control.” A.N. was briefly place d in another fos t er h o m e, and then spent two wee ks in a psy chiatric hospital befor e being moved to a residential treatment cente r, wher e she was living at the time of trial. Cherie testified that althoug h the family had to ha ve A.N. remove d, they wer e still in contac t with her, spoke to her on the phone fre quently , visited her, and had her come to their house for holiday s. Cherie thought that A.N. could lear n to corr ect her behavior “with a lot of counseling ” and a “strong , consistent home,” and s h e s ai d she m aintained a relationship with A.N. “[ b]ecause Ilove her . Irea lly , rea lly love her .”

T.W.’s one-y ear -old daug hter was hospitaliz ed in 1997 afte r being shot in the leg while in 1 her mother’s car e; in 1998, the Depa rtment deter

mined that T.W. was addicted to cra ck coca ine and neg lecting her two children; in 2001, T.W. g ave birth to her third child, who tested positive for coca ine, barbiturates, and amphetamines and showed signs of withdrawa l; and in 2002, T.W. g ave birth to her four

th child, who also tested positive for c ocaine and showe d signs of withdrawa l. 2D.N. had lived with Cherie and her husband since shortly afte r his birth, and Cherie

testified that at the time of trial, he was thriving and showed no medical problems. She said when he was initially place d in their home, he was g oing throug h withdrawa l and “[h] is whole littl e body would tremble. He ’d swea t. I mean the baby

would sweat, like ever

y hour I ’d have to chang e his diaper .” Be ing held stopped his body from shaking , but he would start to shake ag ain whene ver he

was put down. The constant shaking ease d afte r about four wee ks and beca me intermittent instead of constant, a

nd it finally stopped afte r t wo or three months. Although D.N.’s doctors did not see any medical issues at the time of trial, they also cautioned that issues relate d to drug addiction ca n arise “ until he’s may

be four or seve n.” Cherie and her husband wanted to adopt D.N. When asked if they might adopt A.N., she answe red, “We love [A.N.] , and if [A.N.] can g et the help that [A.N.] needs, we would consider that. But rig ht now at this time wher e she’s at in her state o f mind I can’ t help her. I need her to have mor e help be fore I

can c ommit t o her.” T h e r a p is t G r a c ie Ro mo w o r

k e d a t A

. N

. ’ s r e s id e nti a l tr e a

tm e nt c e nte r . A

. N

. w a s p la c e d at the ce nter be cause of her ag g ression and se lf-har

ming, and Romo said that A.N. threw fre quent tantrums, kicked, bit, hit, threw furni t u re , and tried to run awa y and that she hear s voices that “tell her to run” or that are “ang el voices.” A.N. has been diag nosed as having ADHD, oppositional defia nce, a nd ag g ression, and she took a mood stabiliz er, a n ADHD medication, and melatonin to help her sleep. A.N. was rec eiving counseling two or three times a wee k and had made prog ress in controlling he r temper and learning to calm herself. However , Romo said that A.N.’s beha vior

wo rsened in the evening , when her medications “run out.” She was also g etting treatment for

3incontinence , encopr esis, and rec urr i n g urinary trac t infec tions, and the treatment cente r was

working on her toilet training

. A.N. was about a y ear behind in school but was making prog ress. Romo believed it could be one or two y ear s befor e A.N. no longe r neede d intensive psy chiatric and psy cholog ical intervention. Romo could not say exactly why A.N. did not display her curr ent arr ay of behavior befor e she was remove d from T.W.’s car e, but althoug h she acknow ledg ed that remova l from home can be a trauma that cause s children stress, she did not attribute all of A.N.’s problems to her being remove d from T.W.’s car e. Romo said A.N. has happy memories from her foster family and has talked in thera

py abo u t b ei n g phy sically abused by her mother. Romo knew of only one phone visitation betwee n A.N. and T .W., and said A.N. fr equently calls Cherie

. T.W. testified that the night she g ave birth to D.N., she went to a party wher e she had an alcoholic drink into which som eone had put coca ine but said that was the only time during her preg nancy that she used coca ine or alcohol. Tests s h o we d , h o weve r, t hat t here had been ongoing

u s e of coca ine during the preg nancy . When A.N. was an infant, T.W. left a court-or dere d drug treatment prog ram ear ly , and she last attended an NA meeting about three months befor e trial. Two of T.W.’s drug tests, a urinaly sis and a hair follicle test, came back positi ve for coca ine us e about one month befor e trial, and T.W. testified that she intends to ge t sober, say ing, “ I ’m fixi ng to start NA/AA, I don’t hangwith the non-positive people, I hangwith—Ig o to churc h. . . . Ig o[] to like a fa mily member if I

have a problem and w ant[] to talk it out.” T.W. testified that she had never had a job and that she g ot food stamps and disability benef its beca use she is deaf in one ear . She had not g raduated from high school or attempted to ear n her G.E.D., nor did she have a driver’ s license. She missed ten of fiftee n schedule d visitations with

4A.N. beca use she lacke d transportation or g ot lost when she attempted to attend. She testified that she had spoken to A.N. on the phone fiftee n times since A.N. was remove d from her car e, althoug h that fre quency was disputed by other witnesses. She said she visited D.N. four or five times, and her last visit was five months before trial.

T.W. denied that A.N. had mental health or behavior al problems and said that A.N.

never threw temper tantrums while in T.W.’s car e. T.W. also testified that she did not know about A.N.’s medical or dental care befor e her remova l beca use A.N. mostly lived wi t h T

. W

. ’s mother. T

. W

. testified that A.N. had been toilet trained since she was five and that she was not havi n g problems using the toilet befor e her remova l. T.W. admitted that A.N. had never had a stable home and that A.N., T.W., and C.N. moved from home to home or fre quently stay ed with T.W.’s mother. C.N. and T.W. had been to get her about fiftee n y ear s, and T.W. testified that C.N. slapped and choked he r and that she called the pol ice six or seven times. Despite that violence, T .W. testi fied that C.N. was a g ood fathe r.

C.N. was s erving a six y ear sentenc e for burg lary , had alre ady serve d eig hteen months, and was wa iting on a pa role de cision at the time of trial. He had a c riminal rec ord dating back to 1991 for burg lary , assault, coc aine possession, deliver y of a controlled substance, evading

arr est, and tampering with e vidence

. Asked about his c riminal history and whether he wa s “g oing to do that ever ag ain,” he answe red, “I ’m g oing to try not to.” C.N. was in the proce ss of ear ning his G.E.D., had a job rea dy to start as soon as he was rele ased, and planned to live with family until he saved some money . C.N. wanted his sister to car e for the children until he was rele ased from prison, but she never attended any hear ings or filed any paper work in an attempt to have the children place d with her. C.N. had not a cce ssed any service s during his incarc eration.

5Acc ording to C.N., the police wer e called about three times due to domestic violence

betwee n him an d T

. W

. , n o t s ix or seven times as T.W. had testified, and up until his rec ent incar cer ation, he “pre tty much raised” A.N., with help from T.W.’s mother. C.N. denied that A.N. had any mental health problems befor e the Depa rtment took custody of her. C.N. testified that T.W. had u s ed co caine during her preg nancy with D.N. and that they had foug ht about it a “couple of times,” but he never called the Depa rtment or soug ht other help. C.N. had not seen A.N. since just befor e he w as inca

rce rate d and had ne ver me t D.N., althoug h he sent him a birthday car d. Marjorie Proutt, A.N.’s teac her in 2011 and 2012, testified that A.N. had “g ood and bad day s,” “didn’t like the word no,” and was toilet trained while in Proutt’s class. She testified that A.N. would y ell, tap or sit on her desk, lag behind, ref use to sit, or challeng e other students if they looked at her. Proutt made acc ommodations to lessen A.N.’s disruptive influence but said, “I didn’t

see the prog ress that she should have made, beca use other things was in the way . But I believe that she could have mastere d more than what she [di d], but it was just something there that was keeping her f rom g rabbing

it and taking on with it.” A thera pist who worke d with T.W. during the pendenc y of this case testified that the positive drug tests about two months befor e trial raised his conce rns about her “impulsive decision making .” He said her decision to use coca ine “say s that she made an impulsi ve decision, that place d her a nd her c hildren at risk.” He sa id T .W. did well in he r work on protec tive pare nting c oncepts, but her impulsive decision-makingwas a n “ong oing issue” that he believed “is an ar ea that would place children c onsistently at risk.”

6Dallas Skeens, a Depa rtment case worke r, testified that aside from failing two rec ent drug tests, missing two-thirds o f t h e s chedule d visitations with A.N., and not attempting to find a job, T.W. larg ely

complied with the re st of the requirements set out by the s ervic e plan. Skeens testified that C.N. had not completed any require d service s, but Skeens did not know what service s

wer e available while C.N. was incar cer ated. Skeens had conce rns about C.N.’s level of interest in obtaining custody of the children. He believed termination was in the children’ s best interests beca use the pare nts had not shown they can “provide even close to the ty pe of s t able, structure d environment, espec ially that [A.N.] needs, that [D.N.] may need as he g rows up if he develops any specia l needs, based on his exposure to coca ine at birth. And I think that the most suitable thing for b o t h ch ildren is to be adopted leg ally and perma nently , maintain a stable environment wher e we would have mor e assur ance that they would rec eive a ll the service s that they need.” Skeens was very satisfi ed wi t h the car e A.N. had been rec eiving in her residential cente r, and he believed she neede d continuing counseling and intervention in a secur e setting. The Depa rtment hoped that A.N. would eventua lly be place d in a less-re strictive environment and be adopted, and if at all possible, the Depa rtment wanted A.N. to be place d with D.N. I f D.N.’s foster family is not willing or able to adopt A. N. at t h e time she is able to move to a less-re strictive environment, the D epar

tment will look for another f oster plac ement nea

rby

. D.N.’s g uardia

n ad litem tes tified that D.N. was thriving in foster car e and that she did not believe T.W. could provide a safe and hea lthy

environment for

him. A.N .’s g uardia

n ad litem testified that D.N.’s foster family loves A.N., talks to and visits her, and wants her to g et the help she needs, a nd that A.N. under stands that she has to lea rn to control her behavior

. A.N.’s g uardia n ad

7litem did not believe T.W. or C.N. could provide the stable, structure d environment A.N. needs, was

conce rned that T.W. would not stay sober, and did not believe T.W. understood A.N.’s specia l needs. She testified that it was in A.N.’s best interest for T.W.’s and C.N.’s pare ntal rig hts to be terminated

so she could g et the trea

tment she needs to become a doptable. A.N. testified both that she wanted to return to her mother and that she wanted to live with Cherie and her brother, and she testified that she wa s worrie d that her mother would use drug s.

Discussion Both T.W. and C.N. appea l, arguing that the evidenc e is leg ally and fac tually insufficient to support a finding that termination was in the children’ s best interests. They contend that the Depa

rtment did not rebut the strong pre s u mption that a child is best serve d by the prese rvation of the pare nt-child rela tionship. See In re K

. C

. M. , 4 S.W .3d 392, 393-95 (Tex. App.—Houston [1st Dist.] 1999, pet. denied)

. T.W. asser ts that “[b] ut for the one positive drug test for coca ine

. . ., [T.W .] would still have the ability to reg ain custody of her children.” C.N. asser ts that the Depa

rtment did not attempt to help him eng ag e in service s duri n g h i s i n car cer ation and essentially ignor ed him dur ing the pendenc y of the case . Both pare nts note that A.N. did not show any behavior problems bef

ore be ing taken into the Depa rtment’s custody

. D.N. was born addicted to coca ine, as we re t wo of T.W.’s older children. T.W. denied using cocaine while preg nant ot her than having one drink laced with coca ine t he night she went into labor, but tests run in the hospital upon D.N.’s birth showed usag e well bey ond that level. She has a history of usag e dating back to when A.N. was an infant; she failed a drug test two months befor e trial; and at the time of trial, she last attended an AA or NA meeting three months befor e trial 8but said she was g oing to start attending ag ain. T.W. miss ed ten of fiftee n visitations with A.N.,

missed many of her thera py sessions, does not have and had made no eff orts to find em p loy

ment, had not attempted to get a G .E.D., and ha s a longhistory of i nstability in her livi ng arr ang ements. Alarming ly , despite all the evidenc e of A.N.’s mental health issues, T.W. test i fi ed t h at A.N. had no such issues and never had behavior problems while in T.W.’s car e. However , A.N.’s teac her in the 2011-2012 school y ear testified that A.N. was disruptive, did not respond well when told “n o ,” and neede d specia l acc ommodations, and Cherie testified that A.N.’s behavior

worsene d afte r she ha d a visit with T.W . or if T.W. canc eled a visit, which she fre quently did. C.N. has a t we n t y -y ea r criminal hi story and was incar cer ated at the t ime D.N. was born. He hoped to be rele ased on parole , but parole was not a cer tainty at the time of trial. C.N. was g iven a c opy

of the ser vice plan w hile he wa s incarc eration, but there is no evidenc e that he a sked whether any service s wer e available to him. Fur ther, he knew that T.W. was abusing coca ine while preg nant with D.N., did not seek help to g et her to stop, and did not make arr ang ements for A.N. and D.N. to stay

with someone other tha

n T.W. while he was inca rce rate d. Both children’ s guardia

ns ad litem and A.N.’s therap i s t opined that it was in the children’ s best interest for the pare nts’ rig hts to be terminated. T.W.’s thera pist testified that T.W.’s impulsi ve decision making would place children at ri s k

. D. N. was thriving in foster car e, and Cherie said she and her husband hoped to adopt him. She also testified that they wer e still in close contac t w ith A.N

. and would be open to the possibili ty of adopting her. The Depa rtment intended to keep A.N. in her curr ent place ment at the treatment cente r while she rec eived mental health car e and lear ned to control h er behavior , at which point they hoped to move her to a less restric tive

9en v i ro n m ent and eventua lly to arr ang e for her to be adopted. The Depa rtment and D.N.’s foster pare nts w anted to ke ep the siblings close to eac h other. A.N . testified both that she wanted to live with her mother a

nd that she wa

nted to live with D.N. and Cher ie. I t was for the trial court to consider the evidenc e and make cre dibilit y deter minations, and we will not second- g uess those decisions. See In re J.P.B. , 180 S.W .3d 570, 573 (Tex. 2005) ; In re R.D.S. , 902 S.W .2d 714, 716 (Tex. App.—Am arillo 1995, no writ). When we evalua te the evidenc e in light of the fac tors set out in Holley v. Adams , particula rly considering the Depa

rtment’s plans for the children; the children’ s curr ent place ments and needs; C.N.’s long criminal history and

uncer tain future; and T.W.’s drug abuse, inability to attend v isitations and thera py appointments, and ref usal to rec og nize A.N.’s mental health needs, we hold that leg ally and fac tually sufficie nt evidenc e supported the trial court’s finding that termination was in the children’ s best interest. See

2 544 S. W

. 2 d 3 67, 371-72 (Tex

. 1976); see also In re D.M. , 58 S.W .3d 801, 814 (Tex. App.—For t Worth 2001, no pet.) (evide nce of pare nt’s “inability to maintain a lifesty le fre e fr o m arrests and incar cer ations” is rele vant to best interest deter mination); In re M.D.S. , 1 S.W .3d 190, 199-200 (Tex. App.

— Am ar i l l o 1999, no pet.) (inca rce ration standing alone does not amount to endang ering conduct, b u t i t i s rele vant to issue of endang erme nt and to child’s need for curr ent and future stability and perma

nence ). We overr

ule the pare nts’ sole issue on appea l and aff irm the trial court’s order of termination.

See In re J.F.C. , 96 S.W .3d 256, 265-66 (Tex. 2002) (discussi ng leg al and fac tual 2 sufficie ncy

revie w in termination ca ses). 10__________________________________________ David Pury ear , J ustice Be fore J ustices Pury ear , Rose and Goodwin Affir med Filed: Oc tober 21, 2013

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