The parental rights of Marsha ll Morris, A.L .M.’s fathe r, were also terminated. Mor ris has 1 no t a pp e a le d f ro m th e te rm inatio n o f h is r ig hts
. Preec e states that “ the foster fathe r is a convicted felon,” pointing to testimony in which 2 Marsha ll Morris, A .L .M.’s fathe r, was asked if he had “found out that CPS a ctually place d [A.L .M.] wi th a c on vic te d f

e lon .” Th e De pa

rtme nt o bje c te d to that qu e sti on a s h e ars ay

and a ssumin g fa c ts no t in e vid e nc e , a

nd the tr ia l c ourt

su sta ine d th e ob

je c tio n. Mo rr is s a id t

hat he did no t pe rs on a lly know any thing a bout the foster fathe r “except that he’s the foster fathe r of my daug hter.” He did not believe the foster pa

rents we re a

n appropr iate plac ement for A.L .M., but said it was “[j] ust based on their appe ara

nce. I don’t know any

thing a bout either one of them per sonally .” 

### TEXA S C OU R T OF A PPEAL S, THIR D DIST R ICT , AT AU STIN

NO. 03-06-00098- CV

K at hy A . P r e e c e , A ppe lla nt

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

F ROM THE DISTRICT CO URT OF MCCULLOCH COUNTY , 198TH JUDICIAL DISTRICT

NO. 20041 13, H ONO RAB LE EMIL K ARL PRO HL, JUDGE P RESIDING

M E M O R

A N D U M O P I N I O N
After a b e n c h tr ia l, th e tr ia l c o u rt f o u n d th a t a p p e ll an t K a thy

A
. Pr e e c e ’ s p a renta l ri g hts to he r ch ild A. L .M . sho uld be te rm inate d. Pr e e c e a pp e a ls, arguin g that th e e vid e nc e is l e g a lly 1 and fa ctually

insufficient to support a f inding that ter

mination is i n the child’s best intere st. She contends that ter

mination was not in A.L .M.’s best interest because A.L .M. and her attorney ad litem opposed termination, h er fo s t er f ather has a c riminal rec ord, and Pree ce pr oposed an a lternative 2 place ment with one of A.L .M.’s half- sisters. We affir m the trial court’ s order
.2 F actual Summ ary I n Se pte mbe r 20 04 , the Te xas De pa rtme nt of F a mil y and Pr ote c tiv e Se rv ic e s f ile d it s orig inal petition seeking conser vatorship of A.L .M., who was bor n in April 1999. The De partment attache d an af

fidavit in which Susan Nea l, a Depa rtment ca seworker, a lleg ed that the De partment
re c e ive d a

re po rt in Jul y 20 04 that A.L .M .’ s f a the r, Ma rs ha ll M or

ri s, ha d f a ile d to re tur

n th e c hil d
a ft e r a vis it and sa id that he wo uld sh oo t A .L .M . a

nd him se lf if any on e tr ie d to take he r f ro m hi m. Both Morr is and Preec e we re a lleg ed to be using methamphetamine, a nd Preec e was alleg ed to be without a home or mea

ns of support. The D epar tment spoke to the pare nts, and Morris denie d making any

threats. Both par ents ag ree d to a safe ty plan under

which A.L .M. was plac ed with her materna l gr andmother, Ma ry L ouise Parker . The pa

rents also ag ree d to work with t he De partment
on re so lvi ngiss ue s in vo lvi ng su bs tanc e a bu se, ang e r, and

c hil d c us tod

y . Pr e e c e mov e d in

wi th A.L .M. and Parke r in Aug ust 2004, but was admitted to the Ker rville State Hospital on Aug ust 17; sh e wa s r e le a se d o n Se pte mbe r 4 and wa s d ia g no se d w ithma

jor de pr e ssi ve dis or de r “ re c ur re nt w ith psy chotic fe ature s,” substance depende nce, a nd hy perte nsion. After her rele ase, she lived in a tent and with var ious relatives. On Septe mber 19, M o rr i s , Preec e, and Par ker g ot into a disag ree ment
a bo ut A .L .M .’ s c are . T he po lic e we re c a lle d, and the po lic e c a lle d th e De pa rtme nt, and

Park e r s a id she could “no longe r deal with the situation.” Preec e and Mor ris told the Depar

tment that Parker ha d allowed another of her daug hters to c are for A.L .M., and that the other daug hter used dr

ug s around A.L .M. Nea l aver

red that the pare nts were unstable an d fo u gh t in front of A.L .M., causing her emotional stress.3 Nea l testified at trial that Preec e and her family called the Depa

rtment to repor

t that Mo rr is ha d thr e a te ne d to shoo t A.L .M . an d hims e lf if any on e tr ie d to tak e A. L .M . fr om h im. Mo rr is denied makingany

such threat and ag ree d to bring A.L .M. to a Department off ice; whe n he ar

rived, he dec lined to take a dr

ug test, saying he would test positive for marijuana . The De partment found that Morris had six arrests re lated to drugabuse a nd that Preec e had four, and Morr is told Neal that Preec e wa s using metha

mphetamine. A.L .M., who was f ive at the time, wa s p l ac ed wi t h her materna l gr andmother, w here she re mained unti l S eptember 2004, when Par ker w as no long er willing to be involved with the situation. Parker repor ted to the Depa

rtment that both pare nts were still using dr

ug s. Nea l hear d an audiotape of a phone call P ree ce ma de to Morris. Ne al said “it wa s Kathy Preec e ca lling and c ussing [Morris] out and threateningto burn his house down, and, of
course , we c ould hear

the child, [A.L .M.], scre aming in the backg round, so she wa s hear ing a ll this .” Shortly afte r this, the Depa

rtment remove d A.L .M. from Parke r’s c are and plac ed her in foster c are . L inda Key s, another D epar tment case worke r assig ned to this case, testified that she ha d s e e n Mor

ri s “on se ve ra l occ a sio ns ” g e t ang ry and “ ve ry ou t of co ntr ol. He ’l l y e ll. He ’l l sc re a m. He ’l l c ur se . H e ’l l th re a te n. ” Pr e e c e re pe a te dly tol d K e y s th a t sh e wa s a fr a id o f M or ri s, that Mo rr is
wa s phy sic a lly vio le nt tow ard s her , an d tha t she ha d c on c e rn s a bo ut A .L .M . b e ingaro un d M or ri s, bu t the n Pr e e c e “ wo uld c omp le te ly de ny that. V e ry

un re a lis tic in h e r m ann e r o f u nd e rs tand ingsa fe ty and protec tion.” Key s said that when Pre ece and Morr is were toge ther, they said they wer e happy and that ther e we re no c onflicts, but when they wer e sepa

rate d, they wo u l d b o t h “almost tattle on
eac h other,” relating tale s of i nfidelity , drug use, and stalking. The Depa rtment put Preec e in touch
w i t h a dr u g c o u n s e l o r , b u ts h e e v e n tu a l l y s t o p p e d a t t e n d i n g t h o s e a

p p o i n t m e n t s a l t o g e t h e r . K e ys4

sa id Pr e e c e “ is no t a re a l sta ble pe rs on . I be lie ve that sh e ha s me nta l he a lth iss ue s that are c ur re ntl y being addre ssed. She has illeg al druguse issues that are not be ing addre ssed. I believe she also has a proble m with alcohol. She has a me d i ca l condition, Hepatitis C, that I don’t think she’s g etting any treatment for.” K ey s was also c oncer ned bec ause Preec e had ref used for se vera l months t o take any drug tests, even thoug h it meant she could not have visitation wit h A.L .M.

Key s testified that A.L .M. has hepatitis C and that curr ently there is no treatment for
c hil dr e n w ithhe patit is C . H ow e ve r, A. L .M . h a d b e e n te ntativ e ly a c c e pte d int o a me dic a l st ud y in F or t Wor th f or a c hil dh oo d h e patit is tre a tme nt; if e ith e r of he r pa

re nts ha s c us tod

y , sh e pr ob a

bly wi ll not be ac cepte d into the prog ram. Morr is t o l d Key s that he had not see n proof that A.L .M. had hepatitis and he did not wa nt her to be “cut open” for the study
. At one point , Morris got ang ry and
s a i d , “ W h y d o yo ue v e n t e s t c h i l dr e n f o r H e p a t i t i s C ? [ A
. L
. M
. ] s h o u l dn ’ t h a v e b e e nt e s t e d
. ” K e ys
wa s “ a sto un de d” by

Mo rr is’ s r e a c tio n a

nd te sti fi e d th a t a ft e r Pr e e c e dis c los e d th a t sh e ha d h e patit is, it was standar d protocol to immediately test A.L .M. Key s testified that A.L .M.’s foster pare nts ha ve expressed an interest in adopting her. Key s said A.L .M. had a “ver y close re lationship” and wa s “ver y bonded” w ith her foster

family . At trial, a que stion was raised f or th e fi rst time as to whether A.L .M.’s foster f

ather had a c riminal
rec ord. Ther e wa s evidenc e that whe n he wa s ninetee n o r t we n t y y ear s old, about fiftee n y ear s
ear lier, he took some money from the c ash re g ister wher e he worked; he was charg ed with theft and repa id what he had taken. Key s discussed the situation with her super visor and stated that, if it was sh ow n th a t it

ha d “ be e n p ro pe rl y

re c tif ie d[,] .
. . it wou ld no t be so me thi ngthat w ou ld p re ve nt a foster pa rent fr om being licensed.” Key s testified that althoug h A.L .M., who was six y ear s old at5

the time of trial, loves her pare nts a nd would like to live with the m a g ain, she also knows that they have dr ug problems and ha s been a fra id living wit h them. A.L .M. was happy and “thr iving” in her foster home , and Ke y s said termination was in A.L .M.’s bes t interest bec ause she “has so much anxiety and so much hy

per- awa rene ss, and she ne eds a c hance to be in a stable home soon.” Asked whe ther it would be a ppropriate to pla ce A.L .M. with Tandus Riz os, one of Mo rr i s ’ s o l d e r d a

u g h t e r s , an d R i z o s ’ s h u s b an d an d c h i l dr e n , a s a d v o c a t e d b y P r e e c e an d Mo rr is, Key s said a home study showed that althoug h Riz os was a responsible a nd g ood pare nt to her own children, she and her

husband we re pla

nning to move a

nd there was “ a lot of instability .” F urther, Riz os has hepatitis A or B, but ha s not had any medical e x aminations in severa l y ear s. Finally , Riz os did not g et along with Pre ece , who made her f eel “ threatened,” and the De partment wor ried that she would not be willing or

able to kee p A.L .M. awa y from Morr is. Tandus Rizos was twenty -seve n at time of trial, had been marrie d for ten y ear s, and had two childre n. She testified that s he was willing to t ake c are of A.L .M., as her fathe r re quested, and said she a

nd her husba

nd had just moved and re nted a house near Houston. Riz os said that she ha d h e patit is B wh e n s he wa s ele ve n y e ars old , but ha d und e rg on e tr e a tme nt an d no long e r h a d it
. Riz os last saw A.L .M. in J uly 2005 and said A.L .M. was “pr etty excited to see” he r. She said she had a c lose relationship wi t h Morris and talke d to him every day . Riz os said that if she believe d Morris was using drug s, she would keep him a way from A.L .M. and that she would abide by a cour t
o rd er b arri n g h i m fr o m s ee i n g A. L
. M
. Ho we v er , R i z o s d i d n o t b el i ev e M o rr i s wa s u s i n g dru gs
curr ently or had a problem with drugaddiction.6 The De partment’s home study stated that R i z o s knew he r father ha d a history of domestic violence and drugabuse, but did not “see m to gr asp the se verity and the e x tent of the pr ob le m, a lmo st a s if

sh e do e s n ot w ant t o a dmi t to he rs e lf that he r f a the r i s an a dd ic t.” Th e ho me study conclude d that A.L .M. should not be placed w ith Rizos bec ause A .L .M. was “w ell attache d and bonded” to her foste r pare nts a nd “[p] lace ment in the Riz os’ home could be de trimental to the pr og re ss” A. L .M . h a d ma de be c a us e A. L .M . w a s un fa

mil iar wi th Rizo s’ s ho me and he r c on ta c t w ith Riz os and her

family has bee n minimal. T h e De partment noted that the Riz oses had their own bu s in e s s an d , th e r e f

o r e , a f lu c tu a ti n g in c o me , an d

la c k e d c o n s is te n t m e d ic a l i n s u r an c e . Fur ther, Riz os was in close c ontact with Morris and the re a re no r estrictions o n h i s contac t with Ri zos’s children, “ [t ]herefor e he would have c ontact, communication, and acc ess with” A.L .M. in Riz os’s ho me . T he De pa

rtme nt b e lie ve d th a t Rizo s a nd he r hu sb and

“ se e m to be min imi zingthe se ve ri ty of [A.L .M.’s] medical condition,” did not “compre hend the se riousness of the disea se [or] t he extent and leng th of involvement nece ssary” for A.L .M. to participate in the F ort Worth medical study , and did not seem to want to trave l to Fort Worth “if t h er e ar e h ospitals here.” The De partment ha d
conce rns “a s to how Mrs. Riz os would protect [A.L .M.] from her fathe r and possibly her mother .” Me lod e e Hu g g ins , A .L .M .’ s c ouns e lor , te sti fi e d th a t if A. L .M . w e re sen t to liv e in Houston with Rizos, “ it would be devastating for her to be taken from the f oster par ents that she’s
curr ently with beca use she is ver

y bonded with them.” Hug g ins r ece ntly rec ommended that Morris’s visits wit h A.L .M. be stopped bec ause A .L .M. had come to believe that she would be g oing to live wi th h im s oo n a

nd tha t he wa s d oin g wh a t he ne e de d to do to re g a in c us tod y . Af te r h e r p are nts mis s visitations, A.L .M. acts out, and she r ece ntly had bee n “lying a

nd stealing ” af

ter a visit fell through.7

Hug g in said that althoug h A.L .M. wants to ha ve a relationship with her pare nts, H ug g ins believed it was in A.L .M.’s best intere st “t o l et h er m o v e on with her life.” She sa id A.L .M. “knows that when she g ets to be an a dult, . . . she can g o back a nd she ca n find them.” Mo rr is a dmi tte d th a t he ha d u se d ma ri jua na and me tha mph e tamin e in t

he pa st,
so me tim e s in A. L .M .’ s pr e se nc e , bu t de nie d u sin g dr ug s si nc e July

20 04 . M or

ri s to ok a dr ugte st during trial, which c ame ba ck positive for me thamphetamine, b ut h e d enied using methamphetamine since July

20 0 4 an d said he did not know why the test showed a

false positive. He denied t h re at en i n g t o s h o o tA. L
. M
. an d h i m s el f a n d

s ai d t h at al t h o u gh h e on ce b ra n d i s h eda gu nd u ri n g a fig ht, it was not loaded. In J anu ary 2005, he wa s arr ested for assaulting Preec e in the par king lot
a ft e r a n A lc oh oli c s A no ny

mou s me e tin g , b ut i n F e br ua ry he and Pr e e c e re un ite d. At

the tim e of

tr ia l, they had bee n separ ated f

or nine or te n months, but t hey wer e still on friendly

terms. Preec e testified that she was living in he r mother’s home, but that her home w as not suitable for A .L .M. Preec e wa nted A.L .M. to be placed wi t h M o rr i s and if that wa s not possibl e, with Riz os. Preec e said she lied w hen she told the police that Morris had thre atene d to shoot A.L .M., saying that she t ook her brother-in- law’s word for it and later found out it was not true. She also said that a se cond incident in which she told the pol ice that Morris had threatened to shoot her
was not tr ue and based on a lie told to her by her br other-in- law. Pree ce te stified that she had r efuse d to t a ke the la st s e ve ra l dr

ugte sts re qu e ste d b y

the De pa rtme nt, bu t sa id s he sto pp e d u sin g dr ug s in J uly 2004. A more r ece nt drug test g ave a positive result for methamphetamine, but she denied using drug s and said she w as told by her doctor that the pr escr iption drugs she was takingcould have led to t hat r e su lt.8 A.L .M.’s attorney

ad litem stated that his position was that “the par ents’ rig hts not be te rm inate d a t thi s tim e , bu t th e De pa rtme nt r e ma in t

he mana g ingc on se rv a tor , a nd that sh e wo uld
rema in in foster ca

re w hich would allow for a future modification” if either Pre ece or Morris “ g et the ir liv e s b a c k to g e the r. ” A. L .M .’ s c ourt -a pp oin te d r e pr e se ntativ e re c omm e nd e d that th e pa re nts ’ rig hts be terminated a

nd that A.L .M. be plac ed for adoption.
Discussion A par ent’s rights t o her children may be terminated only if the De partment prove s and the trial court finds by clea r and convincing evidenc e (1) that the pare nt ha s eng ag ed in c onduct set
o u t a s s tatuto r

y g r o u n d s f o r te r mi n a ti o n , an d

( 2 ) th at te r

mi n a ti o n is in th e c h il d ’ s b e s t in te r e s t. T e x. F a m. Cod e Ann. § 1 61 .0 01 (We st Su pp . 2 00 5) ; In re C.H. , 89 S.W .3d 17, 23 (Tex. 2002). Evidence is clear and convinc ing if

it produces in the f

act- finder’ s mind “a firm belief or conviction as to t he truth of the State’s a lleg ations” supporting termination. C.H. , 89 S.W .3d at 25. I n revie wing the leg al s ufficie ncy of t he evidence, we consider all of the e vidence in the light most favor able to the finding and ask w hether

a re asonable trier of fac t c ould ha ve formed a firm belief or conviction as to the truth of the finding
. In re J .F .C. , 96 S.W .3d 256, 266 (Te x . 2 0 0 2 ). W e re view the f actua l
su ff ic ie nc y of the e vid e nc e by

vie wi nga ll o f t

he e vid e nc e and ask in g wh eth e r a re a so na ble fac t-finder

could have resolved disputed e vidence in favor o f i t s fi nding. Id . I f a re a so na ble fac t-finder

could have resolved a

ny evidentiar

y disputes so as to form a f

irm belief as to the truth of the State’s alleg ations, the evidenc e is fac tually sufficie nt. Id .; C.H. , 8 9 S. W.3 d at 25 . We mus t maintain appropr iate def

ere nce to the tr ial cour t ’s role as fac t-finder by assuming that it resolved9

evidentiar y conflicts in favor of its finding when rea sonable to do so and by disreg ardingevidenc e that it could have disbelieve d. J .F .C. , 96 S.W .3d at 266-67. Some of the fa ctors we consider in de termining a child’s best interests are: the child’s wishes; her e motional and phy sical nee ds now and in the future; e motional or phy sical dang er to the
c hil d n owand in t

he futur e ; th e pa

re nti nga bil iti e s o f t

he pa rt ie s se e kin g c us tod

y ; pr og ra ms a va ila ble to help those parties; plans f or t he child by

the par ties seekingcustody ; the stability of the propose d place ment; the paren t ’s co nduct indicating that the par ent-c hild relationship is im proper ; and any excuses for the pa

rent’s c onduct. Holley v . Adams , 544 S.W .2d 367, 372 (Tex. 1976). Permane nce is a “c ompelling c onsideration” in e valuating a child’s pr esent a n d fu t ure ne eds. In re T.D .C. , 91 S.W .3 d 86 5, 873 ( Te x. Ap p. —F or t Wor th 2 00 2, pe t. d e nie d) ; se e Le hm an v . Ly c om ing Cou nty Children’s Servs. Age ncy , 458 U.S. 502, 513 (1982) (c hildren nee d stable, long -term r elationships with car etake rs). A f

act- finder ma

y compar e the pare nt’s and the De partment’s pla ns for a child and may consider the possible conseque nces of a decision not to terminate. See D .O. v. Tex as Dep’t of Hu ma n S e rv s. , 851 S.W .2d 351, 358 (Tex. App.—Austin 1993, no writ). Al tho ug h th e re wa s e vid e nc e that A .L .M . lo ve d h e r p are nts and ho pe d to re tur

n to the ir c ar e , A
. L
. M
. w a s s ix y e ar s o ld a t th e ti me o f tr ia l an d e v e n a t th a t a g e r e c o g nized that her pare nts had drugabuse pr oblems. She was prese nt dur ing fig hts be tween her pare nts and could be hear d scre aming in the backg round of one abusive and threatening call made to Morr is by Preec e. Rizo s te sti fi e d th a t sh e wa nte d a nd wa s a ble to c are fo r A .L .M . a

nd that she wo uld

pr ote c t A .L .M
. from her pare nts if she was or dere d to do so. Howeve r, the De partment re commended a g ainst that p l ac em en tb ec au s e o f c o n ce rn s t h at R i z o s wo u l d n o tex cl u d e A
. L
. M
. ’s p ar en t s fr o m co n t ac twith her,10

did not recog nize th e s ever ity of A.L .M.’s medica l condition and did not seem willing to make a drive to F ort W o rt h t o o b t ain medica l treatment, a nd lacke d consistent health insuranc e. F urther, A.L .M. was unfa

miliar with Riz os and h er fa m i l y , and the Depar tment believed it would hurt her pr og re ss to upr oo t her fr om he r sta ble fo ste r hom e . T he De pa rtme nt i nte nd e d to ke e p A .L .M . w ith her f oster par ents, who m ight be willing to adopt her. A.L .M. had thrived in that plac ement and ha d bonded with her

foster pa rents, and she was tentatively acc epted into a medical study throug h which sh e c ou ld g e t a

ne w tre a tme nt f

or he patit is C. Ne ith e r M or ri s, Pr e e c e , n or

Rizo s se e me d to compre hend the severity

of A.L .M.’s hepatitis , and both Morris and Pre ece rec ently tested positive for methamphetamine but denied usingthe drug . Preec e had r efuse d to take any drug tests for
sever al months before trial eve n though that ref usal meant she did not g et to visit A.L .M. Preec e had stopped seeingher drug counselor and t he Department did not believe she was menta lly stable. She h a d a p a t t e r no f r e u n i t i n g an d b r e a k i n g u

p w i t h M o r

r i s , w h o c o u l d

g e t“ o u to f

c o n t r o l ” w h e na n g r

y, and she would acc use hi m of phy sically abusing her a

nd then re cant he r alleg ations. Although the re
wa s evidenc e that A.L .M.’s foster f ather might have a cr iminal recor d from about f ifteen y ear s
ear lier, the De partment looked into it and did not believe that the char g e, if disposed of, would bar him fr om b e inga

fo ste r p are nt. None of the profe ssionals assigne d to A.L .M.’s ca se opined that she should be place d with Riz os. A.L .M., a six -y ear -old child, wished to be r eunited with her pare nts some day , and her attorney ad li tem asked that she be left i n her curre nt place ment with a possibilit y for r eunification in the future. H oweve r, the De partment’s c asew orker s, her c ounselor, a nd her c ourt-appointed repr esentative all believed te rmination and adoption was in her best interest. Ba sed on this recor d,11

and c on sid e ri ngA. L .M .’ s me dic a l c on dit ion , th e sta bil ity and bo nd ingof

he r f os te r p la c e me nt, Pr e e c e ’s me nta l in sta

bil ity and su bs tanc e a bu se pr ob le m, t

he Dep art me nt’ s c on c e rn s a bo ut a place men t w it

h Ri zo s an d h e r f

a mi ly , an d Pr e e c e ’ s r e f

u s a l to u n d e r g o f

u rth e r dr u g te s ti n g a t the
e xpe ns e of he r vis itatio n wi th A. L .M ., we ho ld that the e vid e nc e is bo th le g a lly and factua lly
su f f ic ie n t to s u

p p o rt a f in d in g th a t te r

mi n a ti o n is in A
. L
. M
. ’ s b e s t in te r e s t. We o v e r r ule Pree ce’ s sole issue on appe al and a ffirm the tria l court’s orde r of ter mination.

__________________________________________ David Pury ear , J ustice Be fore Chief J ustice L aw, Justi ces Pury ear and Waldrop Affir med Filed: August 30, 2006