COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-10-00186-CV

IN THE INTEREST OF M.W. AND 

J.B., CHILDREN

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FROM THE 323RD DISTRICT COURT OF TARRANT COUNTY

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MEMORANDUM OPINION1

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I. Introduction

In a single issue, Appellant Father complains that the evidence is legally 

and factually insufficient to support the trial court’s finding that termination of his 

parental rights is in M.W.’s best interest. See Tex. Fam. Code Ann. § 161.001(2) 

(Vernon 2009). We affirm.

 

1See Tex. R. App. P. 47.4.
2

II. Background

Mother, a methamphetamine user who was unable to stay ―clean,‖ 

executed voluntary affidavits of relinquishment of her parental rights before trial.

Father, incarcerated at the time of trial, appeared in person. J.B.’s alleged 

biological father appeared through his attorney.2

The trial court terminated Father’s parental rights, finding, among other 

grounds for termination, that there was clear and convincing evidence of 

endangerment and that termination of his parental rights was in M.W.’s best 

interest. See Tex. Fam. Code Ann. § 161.001(1)(D), (E), (L), (Q), (2) (Vernon 

Supp. 2010). This appeal followed.

III. Termination of Parental Rights

Because Father does not challenge any of the family code section 

161.001(1) grounds upon which the trial court based its termination order, we 

review only the trial court’s best interest finding under section 161.001(2).

A. Sufficiency Standards of Review

In reviewing the evidence for legal sufficiency, we must determine whether 

the evidence is such that a factfinder could reasonably form a firm belief or 

conviction that the best interest ground was proven. In re J.P.B., 180 S.W.3d 

570, 573 (Tex. 2005). We must review all the evidence in the light most 

 

2

The trial court terminated Mother’s parental rights based on the affidavits 

of relinquishment and the children’s best interest. It terminated J.B.’s alleged 

father’s parental rights based on constructive abandonment and J.B.’s best 

interest. J.B.’s father does not appeal, nor does Mother.
3

favorable to the finding and judgment. Id. This means that we must assume that 

the factfinder resolved any disputed facts in favor of its finding if a reasonable 

factfinder could have done so. Id. We must also disregard all evidence that a 

reasonable factfinder could have disbelieved. Id. We must consider, however, 

undisputed evidence even if it is contrary to the finding. Id. That is, we must 

consider evidence favorable to termination if a reasonable factfinder could, and 

disregard contrary evidence unless a reasonable factfinder could not. Id.

We must therefore consider all of the evidence, not just that which favors 

the judgment. Id. But we cannot weigh witness credibility issues that depend on 

the appearance and demeanor of the witnesses, for that is the factfinder’s 

province. Id. at 573, 574. And even when credibility issues appear in the 

appellate record, we must defer to the factfinder’s determinations as long as they 

are not unreasonable. Id. at 573.

In reviewing the evidence for factual sufficiency, we must give due 

deference to the factfinder’s findings and not supplant the judgment with our own. 

In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). Here, we must determine 

whether, on the entire record, a factfinder could reasonably form a firm conviction 

or belief that the termination of the parent-child relationship would be in the best 

interest of the child. Tex. Fam. Code Ann. § 161.001(2); In re C.H., 89 S.W.3d 

17, 28 (Tex. 2002). If, in light of the entire record, the disputed evidence that a 

reasonable factfinder could not have credited in favor of the finding is so 

significant that a factfinder could not reasonably have formed a firm belief or 
4

conviction in the truth of its finding, then the evidence is factually insufficient. 

H.R.M., 209 S.W.3d at 108.

B. Best Interest Factors

There is a strong presumption that keeping a child with a parent is in the 

child’s best interest. In re R.R., 209 S.W.3d 112, 116 (Tex. 2006). Prompt and 

permanent placement of the child in a safe environment is also presumed to be 

in the child’s best interest. Tex. Fam. Code Ann. § 263.307(a) (Vernon 2008). In 

addition to the factors set out in family code section 263.307(b), other 

nonexclusive factors that the trier of fact in a termination case may use in 

determining the best interest of the child include: 

(A) the desires of the child;

(B) the emotional and physical needs of the child now and in the 

future;

(C) the emotional and physical danger to the child now and in the 

future;

(D) the parental abilities of the individuals seeking custody; 

(E) the programs available to assist these individuals to promote 

the best interest of the child;

(F) the plans for the child by these individuals or by the agency 

seeking custody;

(G) the stability of the home or proposed placement;

(H) the acts or omissions of the parent which may indicate that the 

existing parent-child relationship is not a proper one; and

(I) any excuse for the acts or omissions of the parent.
5

Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976); see also Tex. Fam. Code 

Ann. § 263.307(b); R.R., 209 S.W.3d at 116.

These factors are not exhaustive; some listed factors may be inapplicable 

to some cases; other factors not on the list may also be considered when 

appropriate. C.H., 89 S.W.3d at 27. Furthermore, undisputed evidence of just 

one factor may be sufficient in a particular case to support a finding that 

termination is in the best interest of the child. Id. On the other hand, the 

presence of scant evidence relevant to each factor will not support such a 

finding. Id.

C. Evidence

At the time of the trial, M.W. was eight years old. Tonyia Brown, the 

Department of Family and Protective Services (DFPS) conservatorship worker, 

testified that M.W. and her younger brother J.B. were with the same foster family 

and doing well; M.W. was happy, enjoyed her school, had friends, and told 

Mother that if she could not go home, she would like to stay with the foster 

family—her third move since her removal. DFPS’s plan for the children was for 

them to be adopted together by the foster family. Brown recommended 

terminating the parents’ rights as in the children’s best interest.

At the time of trial, Father was incarcerated on his 2009 convictions for 

aggravated assault of a peace officer with a deadly weapon (twenty-five years’ 

confinement), unlawful possession of a firearm by a felon (ten years’ 

confinement) and possession of a prohibited weapon (twenty years’ 
6

confinement), on appeal at the time of the termination trial. Father’s earliest 

parole eligibility date was 2017. 

Father also testified that he had prior convictions for ―aggravated robbery 

of a dope dealer‖ in 2009, for which he received nine months’ time served and 

paid restitution; for possession of a controlled substance with intent to deliver in 

2002, for which he received two years’ confinement; and for DWI in 2000, for 

which he received two years’ community supervision, which was subsequently 

revoked for ―dirty UAs,‖ resulting in twelve days’ incarceration in county jail. 

Father stated that he had been diagnosed paranoid schizophrenic with manic 

depression, bipolar, ADHD, and dyslexia and that he took medication for these 

conditions. He added that his mental illness was the basis for his appeal from his 

criminal convictions.

A Child Protective Services (CPS) plan was developed for Father, but he 

did not complete any services while incarcerated. Father proposed his mother, 

V.W., and his father, G.W., as potential placements for M.W. He stated that he 

wanted V.W. to take M.W. and that he had no doubts that she could take care of 

M.W. If V.W. could not take M.W., then Father agreed that adoption was the 

best alternative, giving the following testimony:

Q. Okay. And if your appeal is not successful, how long do 

you think [M.W.] should wait in foster care for you to get out?

A. I don’t think she should wait.

Q. All right. You think she needs to be adopted and be able 

to move on with her life?
7

A. I don’t want to give my rights up.

Q. Okay. Even though you don’t want to give your rights up, 

what do you think is in [M.W.’s] best interest? What should happen 

to this kiddo who is eight years old? How long should she have to 

wait in foster care for you to get out?

A. I don’t believe she should have to wait in foster care if my 

mom was to get her.

Q. And if she’s not a placement option, if CPS or the Court 

says placement with your mother is not an option, then how long do 

you want [M.W.] to stay in foster care?

A. She would be an adult by the time I got out.

Q. Okay. So you think she ought to be freed for adoption or 

she should just be a foster kid until she gets to be 18?

A. I don’t know, ma’am. . . . Can you rephrase the question?

Q. Do you have an opinion on whether or not [M.W.] should 

stay in foster care and be a foster kid until she’s 18, or should she 

be adopted if that’s an option?

A. Adopted. 

G.W. was convicted of indecency with a child in 1989, which Brown 

testified would prohibit DFPS from recommending placement with him. The 

complainant was his teenaged stepdaughter. V.W. testified that she was living 

with G.W. when the offense occurred but that she did not recall how old the 

complainant had been. She added that she did not think that giving G.W. 

custody of M.W. would be a good decision. G.W. testified that he approved of 

V.W. as a placement for the children, that he goes to V.W.’s place of employment 

and talks with her almost every other day, and that he would be willing to forego 
8

unsupervised visits with the children if that meant V.W. could have them. G.W. 

added that one of the reasons he and V.W. had not gotten a divorce was the 

possibility of reconciliation. 

V.W. testified that she and G.W. had been separated for seven years and 

that she planned to divorce G.W. when she had the money for it. At the time of 

trial, she lived with her boyfriend, who had a 1982 DWI conviction and a pending 

DWI charge. When asked whether she thought it was a positive influence for a 

nine-year-old child to live in a home ―where someone is married to someone else 

but living together and shacking up,‖ V.W. replied that she had a very loving 

family, had raised five children (but later said she had four children), and was a 

good mother and grandmother. Brown testified that V.W.’s boyfriend’s criminal 

history would prevent M.W.’s placement with V.W. and that V.W. had chosen to 

continue living with the boyfriend rather than evict him so that M.W. could stay 

with her.

V.W. claimed that she did not know M.W. was in CPS’s custody for six 

months because M.W.’s mother ―had a habit of running around different places 

and living different places, and we didn’t get to have contact with her.‖ She 

stated that the last time she had contact with M.W. was ―probably a year before 

this had occurred‖ because M.W.’s mother had been living in Louisiana with 

another man.3 She stated that she did not know the children were in danger 

 

3V.W. argued that it was not her fault that she had lost contact with M.W., 

stating, ―You’re cross-examining me like I’ve done something wrong, and 
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because she never witnessed M.W.’s mother do anything to her children and did 

not know, until she went to CPS to find out where M.W. was, that M.W.’s mother 

had a drug problem. V.W. stated she was willing to take both M.W. and J.B.

Brown stated that since she took the case in January 2010, V.W. had five 

months to offer her home as a potential placement for M.W., but she had not. 

V.W. disputed this, stating that she had always let CPS know that she was 

interested in having M.W. placed with her. However, V.W. admitted that she had 

never spoken with Brown and that the only person she talked with about 

placement at the April 22, 2010 review hearing was Father’s attorney.

V.W. also admitted that she was told that if her boyfriend left the residence, 

she could have visitation with M.W. and that he had not left the residence. She 

said she would not put him out until she was told she could get the children 

because he helped with her bills. However, she also testified that she no longer 

needed him to help her with her trailer payments because she had just received 

a raise. She stated that she had just become financially stable enough to adopt 

the children.

V.W. testified that Father was the only one of her children who was 

incarcerated, that he had been in prison this time for six years, and that the last 

time she had visited him had been six months earlier because of the seven-hour 

drive to the prison. She stated that she did not think there was anything Father 

 

[M.W.’s] mother was the one that kept moving her from Louisiana to different 

places.‖
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could have done, if he had been free, to keep M.W. from being placed in foster 

care ―because he wasn’t really allowed—we weren’t allowed to be a part of her 

life.‖ She replied, ―No, I don’t,‖ when asked whether she thought Father should 

have made sure he was free so that he could ensure M.W.’s safety and wellbeing.

D. Analysis

Father complains that DFPS did not meet its obligation to perform a 

background and criminal history check of relatives—specifically V.W.—as 

potential caregivers under family code section 262.114,4although he admits that 

 

4Section 262.114 states,

(a) Before a full adversary hearing . . . [DFPS] must perform a 

background and criminal history check of the relatives or other 

designated individuals identified as a potential relative or 

designated caregiver . . . . The department shall evaluate each 

person listed on the form to determine the relative or other 

designated individual who would be the most appropriate 

substitute caregiver for the child and must complete a home 

study of the most appropriate substitute caregiver, if any, before 

the full adversary hearing. . . . 

. . . .

(a-2) If the child has not been placed with a relative or other 

designated caregiver by the time of the full adversary hearing . . . the 

department shall file with the court a statement that explains:

(1) the reasons why the department has not placed the child with 

a relative or other designated caregiver listed on the proposed 

child placement resources form; and

(2) the actions the department is taking, if any, to place the child 

with a relative or other designated caregiver.
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this would not prevent the trial court from terminating his parental rights.

However, the record reflects that on December 18, 2009, a ―Child Caregiver 

Resource Form Report to the Court‖ was filed with the trial court, which states 

that the children were not placed with V.W. because ―[i]nsufficient information 

was provided to the department to complete background checks on [V.W.’s] live 

in paramour.‖ The report describes the actions taken by DFPS to place the 

children with V.W.:

A kinship referral was made for placement of [M.W.] and [J.B.] 

with [V.W.], paternal grandmother of [M.W.] Efforts were made to 

complete the home study, but the assigned contract provider was 

unable to meet with . . . [V.W.’s] paramour, [D.M.], in order to 

complete background checks and interview him for the home study. 

Furthermore, the assigned CPS caseworker, Pamela Gillinger, met 

with [V.W.] face to face in November, and requested identifying 

information for [D.M.] However, [V.W.] reported that she did not 

have his identifying information, and provided a phone number 

instead. Pamela Gillinger attempted to contact [D.M.] by phone and 

left messages requesting the information. Ms. Gillinger has also 

attempted to contact [V.W.] again in December to get contacting 

 

(b) The department may place a child with a relative . . . if the 

department determines that the placement is in the best interest 

of the child. . . . 

(c) The department shall consider placing a child who has previously 

been in the managing conservatorship of the department with a 

foster parent with whom the child previously resided if:

(1) the department determines that placement of the child with a 

relative or designated caregiver is not in the child’s best 

interest; and

(2) the placement is available and in the child’s best interest.

Tex. Fam. Code Ann. § 262.114 (Vernon Supp. 2010).
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information for [D.M.] by leaving messages on her voice mail with no 

return call. [Emphasis added.] 

V.W. testified that CPS had come to her house and described an argument 

she had had with CPS before Christmas, stating,

I wasn’t aware that I was turned down on the home visit. I 

didn’t hear anything after that. It was just—it got to the point where 

when we talked about [M.W.] coming to my house for Christmas, 

which we still have gifts and everything for that, and we talked about 

that. Then I was called in Ms. Gillinger’s office, and I don’t 

remember the other lady’s name—her supervisor—came in the 

office, too, and then she was coming in and she was going, well, 

how do I know that you’ll do this and do that or something? I can’t 

remember what we were talking about, and then I told Ms. Bailey at 

that time, I’ve raised five children successfully and never had a child 

case against me, so I don’t know why you’re acting like that, that 

I’m—you know, that I’m going to do something at that point, and 

then she said, well, I have to get it okayed, and then I’ll contact you 

back if you’re able to have your grandchildren. I had the whole 

family at my house Christmas waiting for that phone call. I never got 

that phone call.

Gillinger was no longer with CPS by the time of trial, but Brown testified that V.W. 

―was supposed to have had the children during the Christmas holiday and did not 

pick the children up for their visit, and we have not heard from her.‖ The trial 

court had the responsibility to determine the witnesses’ credibility. See J.P.B., 

180 S.W.3d at 573.

Furthermore, during his testimony, Father agreed that adoption would be 

the best alternative for eight-year-old M.W. if V.W. could not take her, and the 

trial court could have reasonably agreed after hearing Father’s testimony about 

his numerous convictions, his mental health problems, and the length of his 

prison sentences, and after hearing about Father’s failure to work any of his CPS 
13

service plan while incarcerated. See In re M.R., 243 S.W.3d 807, 821 (Tex. 

App.—Fort Worth 2007, no pet.) (recognizing parent’s failure to comply with 

service plan may be factor, among others, supporting best interest finding).

The trial court could have also found that placement of M.W. with V.W. 

would not be in M.W.’s best interests: V.W. had been unwilling to give up her 

boyfriend and his financial support in order for M.W. to be placed with her while 

the termination case was pending. And the trial court could have formed a firm 

conviction or belief that adoption by her foster parents was safer for M.W. than to 

place her with V.W., as V.W. had lived with G.W. at the time he committed 

indecency with a child with his stepdaughter, had failed to maintain contact with 

M.W. for a year prior to M.W.’s removal, and had continued to live with her 

boyfriend despite remaining married to, and having almost daily interaction with, 

G.W. Finally, Brown testified that M.W.’s preference, if she could not be with her 

mother, was to stay with the foster family, and that M.W. was happy and was 

doing well with the foster family. See Holley, 544 S.W.2d at 371–72.

Based on our review of the entire record, we conclude that the trial court 

could reasonably have formed a firm belief or conviction that termination of 

Father’s parental rights to M.W. was in M.W.’s best interest. See J.P.B., 180 

S.W.3d at 573; C.H., 89 S.W.3d at 28. Therefore, we hold that the evidence is 

legally and factually sufficient to support the trial court’s best interest finding. We 

overrule Father’s sole issue.
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IV. Conclusion

Having overruled Father’s sole issue, we affirm the trial court’s judgment.

PER CURIAM

PANEL: MCCOY, GARDNER, and WALKER, JJ.

DELIVERED: January 6, 2011