## COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH
NO. 02
- 11
- 00141
- CV

IN THE INTEREST OF H .N.H. ; J.L.H., JR.; AND J.N.H., THE CHILDREN

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FROM THE 362ND DISTRICT COURT OF DENTON COUNTY

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### MEMORANDUM OPINION 1

---------- I. I NTRODUCTION Appellant Mother appeals the trial court’s judgment terminatin g her parental rights to H.N.H.; J.L.H., Jr. ; and J.N.H. In nine points, Mother challenges the legal sufficiency of the findings under Texas Family Code section 161.001(1)(D), (E ), and (O) to support the termination of her parental rights to each of her three children. We will affirm

.

1 See Tex. R. App. P. 47.4.2 II. F ACTUAL AND P ROCEDURAL B ACKGROUND Mother and Father are the parents of H.N.H.; J.L.H., Jr.; and J.N.H. The children’s home life was somewh at convoluted: Mother and the children lived with Father and his significant other Kimberly, along with the children that Father fathered with Kimberly. The three adults expose d the children to homes that were dirty and had unsafe living conditions, incl uding domestic violence , which led to the removal of the children. The following factual background documents what the children endured before their removal , how Mother fared on her service plan after her children were removed, and the reasons why recomme ndations were made to terminate Mother’s parental rights to her children. A

. H.N.H.’s Health Issues 1. Lice Claire Ni eswiadomy testified that while s he was the school nurse at Evers Park Elementary, she saw H.N.H. in her office frequently over a two

- ye ar period beginning in September 2008

. Nieswiadomy agreed that H.N.H. had missed approximately twenty

- four days of school one year and twenty

- one days of school the following year and that most of those absences were due to her chro nic infestations of hea d lice. Nieswiadomy testified that H.N.H. came to school with head lice almost daily for two years and that this was the first time in her career that she had seen a child keep a head l ice infestation for two years. Nieswiadomy went over with Mother ―ma ny, many times‖ why lice was a problem a nd how to correct the problem. Nieswiadomy estimated that she went over the instructions with Mother sometimes weekly and sometimes every day and that she had talked to Mother about removi ng lice thirty or forty tim es. Because Nieswiadomy was aware from her conversations with Mother that3

Mother had an impediment to learning, Nieswiadomy told Mother how to treat the lice ―very, very simply and very, very clearly and repeatedly and gave th e directions to her verbally.‖ Nieswiadomy gave Mother combs and demonstrated how to use them, supplying her with oral and written instructions. Nieswiadomy always rechecked H.N.H. when she came back to school af ter Mother had treated her head; sometimes H.N.H. came with the active m edication still in her hair, and other times she came with solutions on her hair that N ieswiadomy could not identify. Nieswiadomy treated H.N.H. in the nurse’s office ―a lot of times‖ in an effort to keep her in the classroom; Nieswiadomy testified that H .N.H. would have missed more school if not for Nieswiadomy’s efforts. Nieswiadomy said that most parents solved a lice problem in a coupl e of days, but Mother did not. Nieswiadomy testified that Mother had put into practice her advice only ―[v]ery minim ally.‖ 2 Nieswiadomy said that Mother’s burden to care for her children was not alleviated because of her possible learning disability. Nieswiadomy opined that it was not a good parenting practice to allow a child to stay infested with head lice and th at it could be emotionally or physically damaging for a child to have chronic infestations of head lice. Nieswiadomy thought H.N.H. would not have a normal childhood because her peers and teachers did not look at her the same way as other children. Nieswia domy said that the lice infestation would subject H.N.H. to ridicule, which Nieswiadomy opined would have a lifelong impact.

2 The record includes petitioner’s exhibits 3, 4, and 5 showing that Mother took the children to Dr. Nuby to obtain lice treatment and that he was un able to eradicate the problem.4 2. Stomach Issues and Asthma Nieswiadomy testified that H.N.H. had chronic stomachaches and that she had battled problems with hunger and constipation, which probably contributed to her stomac haches. H.N.H. would ―very frequently‖ tell Nieswiadomy that she was hungry but would eat only a cracker. Nieswiadomy said that H.N.H. ―did not reall y like normal food very much.‖ Nieswia domy recalled that Mother said that she did not get up in time to feed H.N.H. and that she frequently brought H.N.H. to school late. On one occasion, Mother brought H.N.H. to school and said that she needed to eat, but the school cafeteria was already clo sed. Nieswiadomy testified that it was harmful for a child’s emotional and physical development to not feed her breakfas t and that a kindergartner needed to eat breakfast because she was growing and needed nutrition on a regular basis. Nieswiadomy agreed that this had occurred for two years.
Ni eswiadomy testified that H.N.H. had chronic respiratory problems and that her asthma w as not being properly treated. Nieswiadomy talked to Mother about how to treat H.N.H.’s asthma, and Mother responded that sh e was taking care of it. Nieswiadomy recalled that it took her quite a while to get asthma medication at school and that she had to call H.N.H.’s doctor to get the medication. 3. Hygiene Issues Nieswiadomy said that H.N.H. ―very f requently‖ came to scho ol dirty: she had a dirty face (covered with mud and dried mucous) , dirty hands, dirty arms, dirty legs, and filth and grime under her fingernails and toenails ; her clothes were typically dirty ; and her hair was dirty. Nieswiadomy said that H.N .H.’s hygi ene5

was ―very poor.‖ Nieswiadomy discussed H.N.H.’s hygiene with Mother, and sometimes H.N.H. came to school ―a little bit cleaner‖ after wards , but ―it was
never a regu lar thing that she was clean.‖ B

. H.N.H. Receives Burns Stephanie Kolb, an investiga tor for CPS, received a referral in December 2008 because H.N.H. had received burns to her legs and her hand from a space heater

. After Kolb investigated, she ruled the case ―reason to believe‖ for medical neglect due to the delay before Mother sought med ical care for H.N.H., ―reason to believe‖ for physical neglect due to the conditions of the home, and ―reason to believe‖ for neglectful supervision because Mother knew that the heaters in her home were hot to the touch and still allowed t he children to be around them. With regard to the medical neglect, H.N.H. received the bur ns around 10:30 a.m. when one of the children pushed H.N.H. into the heater while Mother was present

. A family member called for a welfare check on the home around 2:00 p.m. after hearing about the burns. When police responded to the home , they immediately called EMS. H.N.H. would not provide detailed information, so the Department of Family and Protective Services 3 had to rely on Mother’s explanation of the burns. The Departmen t questioned the validity of Mother’s explanation

— that one of the younger children in the home (age two or three) had pushed H.N.H. (age si x) into the heater. To the Department, the injuries did not equate to H.N.H. ’s having been pushed into the heater be cause she had injuries

3 We refer to the Texas Department of F amily and Protective Services interchangeably as ―the Department‖ and ―CPS.‖6

to her i nner leg, outer leg, and palm. One CPS worker said that ―even to this day, I still wonder how that happened because it’s almost like she had to straddle it when she fell and then it hit her on the other side.‖ H.N.H.’s burn s were second

- degree burns, requiri ng an overnight hospital stay. Kolb agreed that the four

- hour delay in receiving treatment for second

- degree burns to a small child was ―pretty significant.‖ 4 With regard to the ―reason to believe‖ for physical neglect , Kolb testified that a water heat er had broken two or three days prior to her visit and that the floors were still wet an d ―completely black from mud.‖ Kolb said that roaches were crawling on every wall, that there was rotten food in the kitchen, and tha t the environment wa s not safe for small children. Kolb sent the family , including Father and Kimberly who were living in the home, to Family

- Based Safety Services (FBSS) at the co nclusion of the investigation. Julissa Rodriguez, the FBSS caseworker as signed to Mother’s case , testified that both families participated in services and that Mother was asked to participate in homemaker services and was given a referral to MHMR. Rodriguez went to Mother’s home and talked to her about the concerns that led
t o the case being opened on her. Rodriguez talked to Mother about parenting tips, health and safety hazards inside the home, cleaning th e home, and dealing with lice. Rodriguez provided Mother with a lice removal kit and talked to her about putting sheets in the dryer to kill the lice and about cleaning the children

4 Kolb was aware that Mother had called some relatives and had attempted to treat H.N.H.’s burns with mayonnaise and possibly margarine and Neosporin, but Kolb testified that the b urns were ―very severe.‖7

and making sure that their sca lps did not have eggs or nits. Rodriguez observed that whenever she went to the home, the children had ―things‖ on their faces, and Rodriguez talked to Mother abo ut washing and hygiene iss ues. Rodriguez could not recall whether she ever saw the chil dren when they were not dirty. Every time that Rodriguez pointed out to Mother that the children were not clean, Mother had an excuse

— i.e., that they were eating, that she was ―fixing to‖ clean them, or that they had just finished eating. Mother completed the services and was dis charged from FBSS in May 2009. C

. Injury to Another Child in Household

1. Supervisor’s Testimony Stephanie Lopez, a supervisor in the in vestigative section of CPS, testified that CPS received a referral that the children had lice and that one of Kimberly’s children had sustained ―some pretty significant injuries.‖ It was unknown who had inflicted the inj uries on Kimberly’s child, so there was a subsequent referr al on Mother and her children. Lopez and Ashley Hambrick investigated the referral on April 12, 2010. Lopez interviewed one of Mother’s children who had lice and found that ―the lice was extremely active. You didn’t have to be c lose up. You could see it crawling in his hair.‖ Lopez discussed the lice problem with Mother, and Mother said that s he had been treating the lice. Lopez asked Mother to show her the lice medication, but Mother could not locate it. With regard to the injuries on Kimberly’s child’s face , Mother said that she had no idea how the injuries had occurred

. Mother later said that Kimberly’s child had received the scratch on her face when she ran into the corner of the8

television. However, Mother’s son J.L.H. , Jr. said that Kimberly’s child had misbehaved and had received the injury when Mother took a toy truck that had a broken light on it and hit her with it. With regard to a bite mark and bruise on Kimberly’s child’s shoulder , Mother admitted that on e of h er children had caused it

. Lopez explained to Mother why a two

- to three

- week

- old injury that still had bruising concerned the Departmen t, and Mother had no response. Lopez talked to Mother about disciplining the children, and Mother said that she had w atched Kimberly’s children and that she had disciplined them as well as her own children with a belt. Mother did not mention when, where, or how often she used a belt to spank the children. 5 J.L.H., Jr. also mentioned to Lopez that Father and Mother f ou ght by throwing things at each other and by hitting

. J.L.H., Jr. said that Father had trie d to hit Mother, but she had moved out of the way and had ended up with only a scratch. J.L.H., Jr. also told Lopez that Father and Kimberly had fought. Lopez testi fied that the domestic violence in the home concerned the Department because it creates the risk of emotional or physical abuse of the children and because the children could be injured when the adults thr o w objects. Lopez told Mother that Kimberly could not li ve with Mother and her family. Lopez testified that if Father , Kimberly, and Mother were still living together in late November or early December 2010 , that would be inconsistent with good emotional and ph ysical health of the children.

5 Lopez made clear that she was not saying that Mother’s spankings of the children caused the injuries.9

Lopez summa rized the Department’s concerns as follows : Mother had a previous c ase
— the referral for H.N.H.’s burns

— in which she had worked in

home services; Mother was now involved in a new case with concerns of domestic violence; and a small child had received injur ies, with no explanation, on a vital part of her body. CPS was concerned about whether the injuries were received during a fight between the adults or whether one of the adults had inflic ted the injuries on the child. Based on the fact that Kimberly’s ch ild exhibited injuries and that the cause of those injuries could not be determined, the Department felt that there was a sufficient risk to the children’s safety and well

being and that they needed to seek the trial court’s perm ission to remove the childr en. Lopez thus submitted an affidavit to the trial cour t for removal of the children. 2. Investigator’s Testimony Ashley Hambrick, an investigator for CPS, testified that she was also involved in the investigation on April 12, 2010

. Hambrick went to the school to talk to H.N.H., who was seven at the time

. H.N.H. said that sometimes Father slept in the room with Mother and that sometimes he sl ept in the room with Kimberly. H.N.H. told Hambrick that nothing happened when she got in trouble at home but that Kimb erly was mean to her children. H.N.H. also told Hambrick that one of Kimberly’s children had a bite mark on her but did not know how she had received the bite. H.N.H. said that Mother sometimes spanked Ki mberly’s children with a belt. Hambri ck learned that Kimberly and Mother took turns watch ing each other’s children, so there was no way to determine who caus ed the injuries to the10

child. One child of Kimberly’s had a cut on her face and some bruises on her back, and neither Mother nor Kimber ly provided an explanation for the injuries. Hambrick made a referral to the District Attorney’s Office because there was a risk of physical abuse to the children and because there were unexplained
in juries on Kimberly’s children. Additionally, Mother h ad worked FBSS previously, and there was a concern regarding Mother’s lack of p rotectiveness of her children. Hambrick testified that she did not remove the children at that time, but she submitted affidavits to the trial court. D. CPS Remov es Children Mother’s children were ultimately removed on April 14, 2010, due to concerns of physical neglect and medical neglect. The physical neglect was related to the concern that Kimberly’s injured child , who lived in the same home as Mother’s children, was i nj ured by someone in the home. There was a moderate level of concern, not the most severe, based on the fact that no one could explain how t he child had received her injuries

. 6
E. Perspectives Given at Trial 1. CPS Caseworker’s Perspective

a. Servic es Dea Davis, Mother’s CPS caseworker, testified that w hen the new case was opened in April 2010, t he services that were offered to Mother included a psychological evaluation, in

- home homemaker trainer services, healthy relationships classes , and anger ma nagement classes. Davis later extended Mother’s services beyond those originally set up because CPS ―wanted to make

6 Kimberly later admitted that she had injure d her child.11

sure that [they] offered her all the services possible to help reassure the safety of her children if they were returned home to her. And it had been requested by the parent trainer, but also with some reservations of she wasn’t sure whether [Mother] would actually bene fit from the additional time.‖ Mother completed the homemaker training class, but the trainer was concerned that there wer e times during the course when Mother stopped making progress in that the house was not as clean or as well

- k ept as it had been previously. Mother successfully completed the anger management classes. Mother did not com plete counseling with Dr. Greer beca use Dr. Greer termi nated the counseling sessions. Other individual counseling sessions were offered with Mark Dittloff to help Mother deal with the stress of having a CPS case and with her children , and Mother attended most of those sessions

.

b. GED P rogram and Literary Class The services CPS offered to Mother during the course of the case, including a GED program , were intended to help Moth er establish her independence. They were encouraged so that Mother could develop a ―job skill‖ and move forward with DARS, which helped peo ple locate employment. DARS referred Mother to Denton ISD, but Mother did no t follow through at that time. In January, Davis reinitiated the idea of Mother’s obtaining her GED and had found a literacy program that Davis though t would benefit Mother. 7 Mother was eager to participate in the GED program but was hesitant about the literacy program , stating that she knew how to read and therefore did not need to take the literacy
program.

7 The GED course and a literacy class we re not ordered by the court.12 c. Employment and Income Davis had no knowledge of Mother ever holding a job. With no employment history, the Department was not very confident that Moth er could support her children, even though Mother was part of the Home and Community

Based Services, which Davis testified could help Mother find other resources in terms of j ob skills like cleaning homes. The Department was thus concerned that if the children were returned to Mother, she would not have the income to provide her children with all the necessities and to continue to pay for her home. But Davis testified that Mother received SSI and that her children might possibly be eligible for SSI, which could provide add itional income for the family.

d. Visits Mother was timely to her visits, but she missed several because Father had e ncountered car problems. He was the sole provider of her transportation to the visits. Mother was appropriate during the visits, and the children we re affectionate toward Mother. At the last visit prior to the termination trial, Davis noticed that H.N.H . gravitated more toward the foster father than Mother, but that was Davis’s only concern during all of the visits. 8

e. Stability of Housing Throughout the case, CPS was concerned about the stability of Mo ther’s housing

— because she had lived at four r esidences while the case was open

— and her relationships

— because of the unstable relationship between Mother, Kimberly, and Father

. Davis testified that CPS had set as one of its goals for

8 Davis had visited the children in their current placem ent, and they were doing well. All three children received play therapy , and H.N.H. and J.L.H. , Jr. received speech therapy.13

Mother to establish a consistent residence for at least six months, but M other never accomplished that. Mother had resided on South Wood Street for approximately two months 9 at the time of the trial, which did not allow for adequate time to review whether Mother could maintain a safe home for the children. It was the fi rst time that Mother had lived in a home without Father and Kimberly. Davis had visited Mother’s home on Wood Street and had found it to be suitable and appropriate; Mother had acquired the furniture and necessities for the children. f. Domestic Viole nce Davis was not personally aware of domestic violence in the home, other than the statements in the affidavit regarding what J.L .H., Jr. told a caseworker. J.L.H., Jr. reported witnessing violence in the home between the adults. 10 An incident in the hom e on August 12, 201 0, resulted in broken windows. The domestic violence caused concern for the best interest of the children. Davis had no concerns about whet her Mother loved her children. Davis was concerned, instead, about the stability in Mother’s h ousing and her continued relationship with Father and Kimberly. When asked about the specific concerns that she had about that relationship between t he three adults, Davis said,

9 In various places, t he record states that Mother was in her home either three weeks or three months at the time of the trial. However, the testimony reveals that Mother’s lease started on February 8 and that she moved in on February 15, 2011. The termination trial was on April 11, 2011. So Mother had been in her home for tw o months at the time of the termination trial.

10 CPS was also concerned that Mother’s young children had knowledge that Father rotated between Mother and Kimberly; thus, CPS did not approve of the sexual relationshi ps that had been taking place.14

It goes back to the beginning, when the initial referral came in and the dec ision to remove, that there was physical abuse in the home, and that either [Mother] or [Kimberly] would be possibly the perpetrator. So they were asked to split up at that point. And the concerns would be that her children would be in the home with someon e that w as physically abusive, as well. Davis did not think that Mother had the protective nature required to protect her children from further abuse; Davis thought that Mother would continue to choose her friendship and relationship over the safety of her children. 11 Moreover, Davis did not believe that Mother was an independent thinker because she had looked to her attorney for answers during the permanency conference and because the parenting homemaker had expressed concerns over Mother’s ability to t hink for herself.
g. CPS’s Goals At the outset of the case, CPS’s goal was family reunification. The goal changed to termination at the permanency hearing in September 2010 because the Department determined that Father and Kimberly were not making t he progress that the Department wanted to see and that Mother would continue the relationship with them even if their parental rights were terminated. 12 CPS was not willing to return the children if Mother was living with Father and Kimberly.

11 Davis , how ever, agreed that it was possible that Mother might stay away from Father and Kimberly if the chi ldren were returned to Mother.

12 In September 2010, Davis had evidence of a continued relationship between Mother and Father. Despite Mother’s knowledge that removal was the goal of CPS, she continued to make contact on many occasions with Father and Kimberly. Davis testified that one of her coworkers, Veronica Tackett, saw Mother, Father , and Kimberly together at an AT&T store on February 8, 2011, despite Mot her ’s having been encouraged to stay away from Father and Kimberly.15 h. Depar tment’s Recommendation The Department was of the opinion that it was in the children’s best interest to terminate Mother’s parental rights because of Mother’s actions and inactions, specifically her past history with CPS, her continued relationship with
F ather and Kimberly, her continued attraction to Father , her inability to act independently of Father ’s approval , her failure to protect her children, her failure to maintain stable housing for six months, and her failure to gain independence so that she co uld support her children if they were returned to her

.

2

. Psychologi st’s Perspective 13 Mark Foster, a psychologist, testified that he met with Mother in May 2010 and conducted a ps ychological evaluation on her. Mother’s intellectual ab ilities fell in t he mild mental retardation range with an IQ of sixty

- five. 14 Mother’s performance IQ was seventy

- five

. Foster had mild concerns that Mother had tested lower than her actual IQ due to her emotional functioning and personality factors, and he believed that Mother’s actual IQ might be ―a little bit higher, but it’s not goin g to be significantly higher.‖ Foster testified that a person with an IQ similar to Mother’s might be able to benefit from services but probably would not benefit significantly; it depend ed

13 Although the Department did not move to terminate Mother’s parental rights based on mental illness, see Tex. Family Code Ann. § 161.003(a) (West 2010), we include the psychologist’s test imony because it is relevant to the endangering conduct finding.

14 Foster explain ed that ―IQ‖ refers to how fast a person learns and said that some people never get to more advanced, abstr act thought processes. F oster did not make a diagnosis of mild menta l retardation because that diagnosis canno t be made solely by an IQ score; he said only that Mother’s IQ score fell in that range.16

on the individual. When asked whether a person with an IQ of sixty

- five and a performance IQ of seventy

- five could complete services, Foster said that it would depend on whether the services were presented at her level an d the level of her motivation. Foster opined that it would be very difficult for Mother to successfully complete the services offered to her due to her mental abilities. Foster, however, testified that Mother’s IQ seemed to indicate that there may be meaningful changes in her behavior but that it would be considerably slower than most people, but Foster agreed that indic ated that Mother could change. Foster testified that [a]n IQ of 65 has very significant consequences in terms of parenting ability. What we know from research on IQ and parenting is [ ] that once an individual’s IQ reaches 60, regardless of how much you provide services to an individual, regardless of how much parenting classes and counseling and supportive services you provide, the individual is not able to. And of course, her IQ of 65 is above that, but it’s

-- it’s certainly in that range. What is more significant, perhaps, for day

- to

- day living is her verbal IQ of 59. Individuals with an IQ of 59

-- and this is also mirrored if you look under academic achievem ent with her reading and math skills, which fall generally between a second

- and third

grade level. Individuals with intellectual abilities and reading skills, so forth, at this level very often have difficulty following directions. They often have diff iculty administering medications. They often have difficulty following anything but the simplest instructions. They are at risk of being manipulated by others because they misunderstand what people are saying to them or that they’re not able to realize when someon e is taking advantage of them.
With IQs that are in the range of Mother’s, studies suggest that emotional maturity is also dela yed. For instance, individuals with Mother’s combination of personality characteristics ver y often seek out a relat ionship with a person who17

will take care of them and will surrender their personal boundaries in return for being taken care of. Such individuals are often prey for individuals who are looking for someone to take advantage of. Foster said that he often s aw increased levels of domestic violence with people who tested like Mother. Based on the testing , Foster concluded that Mother was an individual who

wa s very likely to present as immature, wa s likely to be emotionally very dependent, wa s likely to seek out relationships whe re others w ould take care of her, was at risk of being manipulated by others, and was likely t o have difficulty resolvin g conflict in a mature manner. Foster said that Mother’s emotions are very likely to influence her decision

maki ng and that her thought processes would be very compromised when she is upset. Foster expected Mother to have ― very poor frustration tolerance‖; the things most people take in stride, like the challenges of being a parent, would
po se more difficulty for M other. Foster testified that one of the risks to the children as a result of Mother’s poor frustration tolerance is inapp ropriate discipline practices. Foster said that children learn frustration tolerance primarily from their parents and that when such skills are not modeled effectively by parents, the children spend the rest of their lives trying to learn such skills and ―very often suffer defici ts throughout their lifespan.‖ Foster testified that it would be detrimental for a child to observe an unhe althy man

- and

- woman relationship in a household and that a polygamist

type relationship would affec t a child’s moral development. Foster testified that it is unlikely that Mother would be willing or able to change her relationship status fo r the benefit o f her children.18

Foster also testified that it would be detrimental to a child to observe domestic abuse and th at the way Mother treated Father or Father treated Mother

wa s something that the children would model in their p otential future relationships. Children who are raised in homes with domestic violence go between two extremes: (1) there are those who are very angry

— acting out and having trouble managing their emotions and dealing with authority figures, as well as their peers and (2) those who becom e hyper

- responsible

— walking around on eggshells because they are afraid of setting off a conflict between the parents. Foster testified that children are likely to act out with their siblings physically if there is ph ysical abuse in the household. Foster said that parents with Mother’s characteristics often have a hard time separating themselves from their child’s age

- appropriate behavior and view a child’s spilling his milk as the chil d trying to punish the parent. Because such parents are unable to sep arate their emotions from their de cision

- making, they often make ver y poor parenting decisions. Foster said that Mother can make parenting choices, but those choices are very often going to be made based on how she feels about the situation instead of the facts or de mands of the situation;
t ypically, the child’s needs are secondary, which creates a risk for the child. Foster testified that the following were not examples of a parent putting her children’s needs first: allowing a child to go to school hungr y; repeatedly exposing children to CPS; allo wing a child to receive second

- degree burns and not seeking medical attention for at least four hours; and failing to eradicate children’s head lice for almost two years

. Foster agreed that if a child received

s econd

- degree burns and if the parent had contacted family members for medical assistance, such act would const itute putting the child first. Foster19

similarly agreed that if a child is a picky eater and would not eat but the parent had packed a lunch for t he child, such act would const itute putting the child first. It did not surprise Foster that Mother was unable to keep her children free from head lice for over a year because not being able to follow through is typical for someone with an IQ similar to M other’s

. It did surprise Foster that Mother had not rid her children of head lice after instructions were provided thirty or forty times; Foster opined that another dynamic besides intelligence, like Mother’s choice to not take care of th e problem, had co me into play. Foster testified that people with IQs similar to Mother’s typically look on the bright side of things and often fail to learn from experience. When people are overly focused on the positive in their lives, they oft en do not make needed chan ges. The fact that Mother had a previous CPS case suggested that she had failed to learn from that experience. In light of the results from Mother’s psychological evaluation, Foster opine d that it would create significant risks t o return the children to Mother

.

3

. In - Home Parenting Provider ’s Perspective

a. Mop & Glo Incident Lit i tia Hickey testified that she had provided in

- home parenting services to Mother from July 2 010 until January 2011. When Hickey met with Mother , she revealed that H.N.H. h ad spilled Mop & Gl o on herself when she was one. The fact that a child was able to pour a poisonous substance all over her body indicated to Hickey that H.N.H. was not being properly supervised. Hickey testified that an average parent would have attempt ed to call poison control or20

another emergency contact when H.N.H. doused herself with Mop & Glo; in Hickey’s opinion, it was not reasonable that Mother did nothing. 15
b. H.N.H.’s Asthma Additionally, w hile H.N.H. was in foster care, CPS asked Mother for H.N.H.’s nebulizer because she had asthma, but Mother refused to provide it. Mother wanted to keep it at her house until the children were returned to her. Hickey did not believe that was appropriate parental behavior.

c. Relationship with Father and Kimberly and Domestic Violence Hickey testified that p art of the reason that Mother’s children were in CPS custody was because of Mother’s relationship with Father and Kimberly. Mother said that they were a ll friends who lived together. Mothe r thought that her relationship with Father was acceptable , and she had a difficult time trying to separate herself from him because she had been in a relationship wi th Father since she was very young and because he was the father of her three children. Mo ther relied heavily on Father , including for rides to her MHMR appointments, and appeared to believe whatever he told her, which Hickey saw as a problem. Mother told Hickey that her children came first, but Hickey did not see evidence of that; Mother conti nued to have a rel ationship with Father and Kimberly despite acts of domestic violence. Mother told Hickey that Kimberly had pulled her hair and that Mother had pushed Father when he ha d tried to break up the fight. Mother also admitted that during one fa mily violence incident, she left a handprint

15 Hickey assumed that Mother did not call poison control after H.N.H. doused herself with Mop & Glo because Mother did not tel l her that she had called poison control.21

on Father ’s chest. Police were called to the house, and Mother was given an opportunity to leave the home in lieu of being arrested

. Hickey testified that such behavior is no t appropriate around children. d. Mother’s Cognitive Functioning Mother’s cognitive functioning was less than average, which raised concerns regarding her ability to understand what Hickey was trying to teach her. 16 It seemed that most of the time it was hard for Mother to understand what Hickey wa s trying to do for her. Hickey noted that Mother did not appear to understand that her current housing issue d id not help her show stability. Mother told Hickey in January 2011 that she was not sure why CPS had asked her to do ―all this s tu ff.‖ Mother made that statement, showing that she did not understand what CPS was doing, nine months after her childr en were removed in April 2010. Hickey testified that small children cannot afford a parent who ―just can’t get it.‖

e. Conditions of Home s When Hickey met with Mother in July 2010, Mother admitted that it was her fault that her children were in CPS custody because she shou ld have kept her home cleaner. Mother’s house was dilapidated, had a foul odor , and had a roach infestation. Hick ey thought that the foul odor in Mother’s house was attr ibutable to the old carpeting. Hickey said that when the old carpeting was removed, the odor was a little better, but there was always an odor in the home. There were three pets living in the house, and the re were roaches i n the animals’ food and
water. The pets inhibited Mother’s ability to keep the roach es and flies out of the

16 Hickey had observed that Mother could read on a low level but had to ask questions about the words.22

house. In August 2010, there were ―lots of flies‖ in the home ; Mother explained that was due to leaving the door open whi le she was giving the dog a bath. Hickey said that it was not an appropriate set of conditions for s mall children to be living in. In November 2010, Hickey observed Mother using a gas heater, an electric heater, and the oven to heat the home because ther e were broken windows that
were not allowing the heat to stay in. On several occasions, Hickey noticed that additional windows had been broken out. Mother explained to Hickey that a couple of the windows had been broken during her fight with Father and t hat a neighbor’s motorcycle had ―kick[ed] up rocks from the gravel drive way‖ and broken other windows. Hickey summarized that Mother had lived in the dilapidated ho me from July to December 2010. To Hickey’s knowledge, no one forced Mother to live in tho se circumstances. Mother told Hickey that she was going to fix the home and that the rent wo uld be reduced. Hickey saw Mother ’s father working on the home. Hickey encountered Mother’s landlord in November, and the landlord said that Mother owed $40 on h er November rent and a f ull month’s rent for December. The landlord then said that she was evicting Mother, Father , and Kimberly because they had not paid their rent and because they had stole n some tools and a lawn mower. Hickey urged Mother to find a b etter place to live, and Mother moved in with her mother 17 because sh e did not want to get evicted. Mother called Hickey a month before the termination trial and told he r that she had rented a house.

17 Hickey last visited Mother in January when Moth er was living with her mother. The h ome was clean but had roach es.23 f. Services As part of the homemaker services progr am, Hickey concentrated on housekeeping due to all the concerns with the home, but she also went over nutrition and cooking, personal hygiene, budgeting, stress management, hom e safety, and time management. Mother worked hard on the initial home and made it a lot cleaner, but the home it self was worn down. Although Mother init i ally ―was very adamant about getting her house cleaned up. Toward the end, it appeared that she wasn’t doing as much in light of cleaning.‖ On November 30, Hickey sent caseworker Davis an email that said that Mother loved her kids but that Hickey did not see that Mother had the ability to follow through with her services and gave the impression that she did not really care. Hickey noted that Mother’s behavior initially showed tha t she was benefitting from the services that Hickey was providing, but at the end of the services, she had not demonstrated that she had ―sufficiently benefitted‖ from the service s that Hickey had provided to her. Hickey said that Mother was still in
cont act with Father and Kimberly, that Mother was still relying on Father , that she was not implementing the things that Hickey had taught her through in

- home parenting and homemaker services, and th at the house was still a mess. So

a lthough Mother successful ly completed the homemaker services because she had made some improvements , Hickey did not believe that Mother had sufficiently alleviated the risk of abuse or neglect for her children based on wha t she had learned from Hickey. Hickey noted that Mother wo uld require a good support system and guidance to assist her with paren ting and maintaining her24

home. Hickey, however, was unaware of anyone in Mother’s family who was willing and capable of supporting her and guiding her. 18

4

. Mother’s Perspective

a. Parenting Mother testified that her children are ages four, six, and seven. Mother testified that age appropriate behaviors for a seven

- year - old child included watching television, hanging out with friends, playing outside, and going to the park ; that age appropriate behaviors for a six

- year - old child included playing outside, going to the park, and going to a birthday party ; and that age appropriate behaviors for a four

- year - old child included playing with toys, playing outside, going to the park, wat ching television, coloring in a colori ng book, and having free time. Mother did not understand the word ―vocabulary‖; when the question was rephrased, she said that her four

- year - old child could say anything, but she did not know whether he could make co mplete sentences. Mother said that she helped her seven

- year - old child with her homework when she was six and that her homework included words like ―I,‖ ―am,‖ ―do,‖ ―did,‖ ―be ,‖ and ―may.‖ With regard to the lice infestation, Mother testified that she h ad used the lice medicine on H.N.H.’s head and had combed it through her hair but t hat the medicine did not help. Mother testified that she knew she needed to wash the bed line ns and that she had done that. Mother had also been told that she needed to tr eat the cloth furni ture and the carpets for lice.

18 Lopez testified that Mother’s parents and sister had a history of involvement with CPS; they had referrals for drug use, the condition of the ir home s, and sexual abuse. The cases w ere ruled ―reason to believe.‖25

With regard to her children’s hygiene issues, Mother disagreed that her children were dirty when they were removed.

b. Relationship with Father and Kimberly Mother ha d been in a relationship with Fat her since she was sixteen years old, and she was twenty

- five years old at the time of the trial. Mother testified that Father wa s a good father because he ―did anything for his children,‖ including giving up the last of his money to buy them food. Mother testified that Father had never made her do anythin g that she did not want to do. Mother, Father , and Kimberly lived together for three years while Father and Mother were a couple. During that time, Kimberly had two children with Father , but Mother was not aware that Father and Kimberly were having sexual relations and was told after Kimberly’s children were born that they were Father ’s. Mother testified that she had heard that her children knew that Father slept with Mother one night and with Kimberly one night; Mother said that surprised her because she was not with Father at that tim e. Mother said that all she knew was that Father slept in the front room. Mother initially believed that her relationship with Father and Kimberly was appropriate for h er children , but Mother later a greed that it was not appropriate for her children to see their father living with another woman wit h whom he was having children. Mother allowed her children to live in that house and conti nue to see that for two years.
M other agreed that she never had any CP S issues until Kimberly moved
in

. Mother said that Kimberly never disciplined or laid a hand on Mother’s children when Mother was present, but Mother did not know whether Kimberly whipped Mother’s child ren when Mother was not there. Mother believed that her children wer e removed because of Kimberly.26

F rom the time the CPS investigation started, Mother knew that the living arrangements that she had for her children were not appropriate. Mother did not recall the fir st time that the Department told her that she needed to separate herself from Father and Kimberly; 19 she agreed that it could h ave been in April or May 2010. Mother said that she understood that she needed to stay away from Father and Kimberly in order to continue fighting to get her children back , and Mother testified that she would not go around Father or Kimberly. However, Mother agreed that as of February 2011, she was still riding in the car with Father and Kimberly, which was not complying with what the D epartment had asked her to do. Mother was in the car with Father and Kimberly in February 2011 when a car accident occurred

. Mother admitted that CPS had told her several times that the three of them could not be together. Mother said that was the only time that she had ridden with them and that her mother usually drove her wherever she needed to go. Mother agreed that she was with Father and Kimberly i n March when she saw D a vis ’s supervisor at the grocery store and that she knew that she was not supposed to be with Father and Kimberly. Mother said that she had not spoken
to Father and Kimberly ―this month, ‖ which was April 2011. Mother was aware that Father had relinquished his parental rights to her three children on the Friday before the ter mination trial started and that he could

no longer have contact with them. Mother testified that she was no longer with

19 Mother testified at one point that n o one told her that she could not be around Father, only that she was not s upposed to be around Kimberly.27

Father; she had broken up with him ―a long time ago.‖ However, Mother admitted that the Friday before the trial, she stood in the cour troo m next to Father and Kimberly. Mother, however, had not ridden with them; she had walked to the courthouse. Mother had a cell phone, and Father and Kimberly wer e on the contract with Mother. At the time of the termination trial, Mother had not gott en around to having Father and Kimberly rem oved from the cell phone plan. Mother agreed that if she had taken Father and Kimberly off her cell phone plan , it would have shown the judge that she was serious about not havi ng any more contact with them.

c. Domestic Violence Mother testified that the police came out to her home twice because of dom estic disturbances. Mother said that one incident was between her and Kimberly and that the other in cident did not involve Mother. Mother said that Kimberly started the fight that occurred in November before Father and Kimberly moved out

. Mother could not remember what she said to Kimberly that caused her to become aggressive, but Kimberly responded by calling Mother ―a dumb broad.‖ Mother then called Kimber ly ―a dum b broad‖ and went to her room. Mother initially told Kimberly ―not to lay a hand‖ on her, or Mother would call the police. Kimberly told Mother that she did not care, and then Kimberly chased Mother into her room, pushe d Mother, and pulled her h air. Mother then tried to defend herself. Mother called the police but then tried to cancel the call because ― everything just settled down.‖ Before it settled down, Father tried to break up the fight, and Mother pushed him. Father called the police. Th e police told Mother that she needed to leave because all of the28

arguments and fighting were directed at her. Mother believed that the incident constituted physical violence, not family violence. 20 The second domestic violence call involved an argument b etween Father’s mother an d Kimberly, and Kimberly left. Mother was not involved.

d. Conditions of Houses Mother did not recall how filthy her home was when Ashley Hambrick, the CPS investigator, came before th e children were removed. Mother did not recall Hambrick’s telling her that the house had an odor because of the carpet. Mother said that she cleaned her house every day and that she bought bug spray to get rid of the cockroaches. Mother also tried to make repairs to get the rent reduced, but the landlords did not always he lp out like they had promised. Mother’s landlord Ms. Thorp accused Mother of stealin g a lawn mower and some tools. Mother said that Ms. Thorp had asked Kimberly to spray paint the l awn mower silver, and she did. The police investigated, and Kimberly took the law n mower to the police station. Mother had no convictions for theft at the time of the termination trial. Mother believed that she had moved fo ur times during this CPS case. Mother did not move every time that she was behind on rent to avoid being evicted, but she did move once or twice to avoid being evicted. Mother agree d that did not show stability. At the time of the termination trial, Mother had lived in her own home since February 15, 2011, and had signed a lease through July 31, 2011. It was a two

-

20 When asked about the fact that her children had reported that Mother and Father threw things at each other, Mother said that she and Father did not do that.29

bedroom, one

- bath home. The home was in better condition than the other homes that Mother had lived i n and did not require repairs. Mother had two beds in each bedroom, couches in the den, and a kitchen table. Mother testified that her home was appropriate.

e. Services Mother recalled that her service plan required her to have healthy relationships and to complete anger management classes , homema king services, and counseling. Mother testified that she had completed all of her services. Mother completed a healthy relations course through Friend s of Family and watched videos about domestic violence. Mother testified that she had lea rned in her anger management classes that when she becomes angry, she sh ould take a walk, read a book, listen to the radio, go to the park, go somewhe re quiet, or sit on the porch. Mother testified that she had completed the homemaker class and had learned ―a lot‖ from her parenting classes, including how to keep the stove a nd refrigera tor clean with soap and water. Mother testifi ed that she did not take Bar bra Haflich, who coordinated social services for Denton Independent School District, up on her offer to help her with parenting

- related issues because she was scared and did not know what to do. 21

21 Haflich testified that H.N.H.’s school contacted her because H.N.H. was not verbalizing in the classroom and was ―a litt le bit behind‖ the other kids. Haflich met with Mother and talked about how Haflich could help her, and Mother agreed to mee t Haflich at Evers Park Elementary to do individual work on parenting

- related issues in a voluntary program. Haflich called Mother a couple of times, but Mother never called her back.30

Mother started counseling with Dr. Greer around May 20, 2010, but t he counseling did not go well. Mother said that G reer said negative statements to her that made her uncomfortable , but Mother could not recall the negative
stat ements

. Mother was still attending counseling with Mark Dittloff at the time of the trial. Mother told Dittloff that she wanted more counseling because she felt like she was learning a lot fro m him. Mother said that she talked about her children in coun seling and about ho w to develop a support system. Mother said that her support system included her mother, father, and sister, who supported her financially but would not testify because they had prior CPS involvement. Mother’s suppo rt system did not like Father. Mother had learned during her counseling that her relationship wit h Father was not good for her. Mother agreed that it ha d taken time to learn that because she had been with him a long time. Mother had also learned that it was not a good enviro nment for Mother, Father, Kimberly, and Mother’s children to be living t ogether. Mother believed that she had abided by the portion of her service plan that had ordered her not t o engage in criminal activity. She said that an argument did not constitute criminal activity and that although the police were called in November when Kimberly attacked her , Mother was not ar rested. She said that the police told her to leave, and she agreed to le ave in lieu of being arrested. When Mother was asked whether it was important for a small child to have stabilit y, Mother asked what that was. Stability was explained as a child being able to rely on his mother and father every day, and M other said that was important. Mother testified that as of the time of the termi nation tr ial, she was in a stable home. However, Mother agreed that moving four times did not show her chil dren that her life was stable. Mother understood that the court orders31

required her to maintain a stable home for at least six months and that she had only been at her new address for two months at the time of the termination trial. Mother was not required to provide mone tar y support for her children. Mother bought them clothes, toys, and food totaling $30 each month whi le they were in CPS’s care. Mother said that she gave each child $1.50 at the last visit. Mother agreed that no t paying to support her children, in kind or in cash, did not show her chil dren that her life was stable. Mother completed her psychological evaluation May 25, 2010

. Mot her testifi ed that her IQ was sixty

- five. Mother did not recall that Dr. Foster, who had conducted Mother’s psychological exam, re commended that she go to MHMR. Mother said that she went to MHMR on her own because ― everyone ‖ was telling her to go. Mothe r went to MHMR in September 2010 and was told to return on December 2, 2010. Mother went back to MHMR on December 2, 2010, and told them that s he was living with her mother. She said that she spent her days cleaning the house and watching television with her children. Mother was told to come back for a psychological exam to see if she was eligible for services. Mother underwent the psychological exam on January 10, 2011. Mother received a letter dated January 24, 2011, stating that she had a diagnosi s of mental retardation and was eligible for services. 22

22 The letter in the record actually states that Mother ―does not meet th e criteria for Mental Retardation Services‖ and that the decision was made after a face

- to

- face interview was performed, records were reviewed, and testing was conducted.32

Mother underwent a se cond evaluation in March 2011. Around March 21, 2011, a representative from MHMR came to Mother’s house and gave her paperwork with a year

- long plan for her. 23 Mother requested services in employment assistance and ― home community. ‖ MHMR called to schedule appointments with Mother on days that she

a lready had appointments. Mother told MHMR that she was too busy to have extra appointments because she was attending therapy Tues days, Thursdays, and Saturdays every week. 24 Mother testified that she believed that MHMR understood her to say that she was busy all the time

. Mother said that not being willing to follow up on her MHMR issues did not show her children that she was stabl e. Mother agreed that she needed to demonstrate to CPS that she had learned from her services, and she said that she had shown CPS that she had developed healthy relat ionships and anger management. Mother testified that she had made positive changes for the benefit of her child ren in counseling with Dittloff

. Mother had also leased a house on her own and was living on her own. Mother said that she was a better parent now because ―[p]eople do change‖ and because she had ―learn ed a lot from then until now .‖

23 The ―Person Directed Plan‖ states that Mother was uncertain that she needed services ; she ―just wanted her kids back.‖

24 Mother said that she was going to therapy for a car acciden t that occurred on February 4. Before the accident occurred, Mother attend ed counseling every two weeks.33 f. Employment and Income Mother did not graduate from high school ; s he dropped out when she was in the eleventh grade because she had a baby. Mother recalled that she had a

one - day job in Lewisville that paid ten dollars an hour. Other than tha t, Mothe r has never worked

. Mot her received $674 per month i n SSI and $200 in food stamps. Mother’s rent was $550
, her electric bill was approximately $97 , and her part of the cell phone bill was $50 or $60 per month.
Dea Davis talked to Mother about w orking on her GED, and Mother enrolled in a GED class in January 2011 a nd was attending consistently. Mother was halfway through at the time of the trial, having completed thirt y of the sixty required hours. Mother said that she had ―an assistant coach‖ who was suppo sed to be helping her get a job

. Mother testified that she was trying to get a job and had applied at Express Personnel but tha t it had been a long time ago.

g. Visits Mother testified that she visited her children almost every week tha t she

w as scheduled for a visitation. Mother did not miss any visits while they were scheduled in Denton, but she had misse d two or three visits after they were moved to Lewisville because Mother lived in Denton and had a hard time find ing transportation to Lewisville. Mother admitted that she had received rides from Father, her mother, and her sister. 25 Mother missed visits when Father’s truck

25 Riding the bus was not an option for Mother; Mother had a fear of riding buses because when she was in ninth grade , she had ridden on a school bus that hit four or five cars and injured several people.34

broke down. 26 During the visits, Mother read books to the children, played with them, colored with them, talked with them, a nd asked how school was going.

h. Mother’s Request an d Plans Mother asked the trial court to return her children to her, if not on a permanent basis, at least on a monitored return because she had completed her services and had rented a n a ppropriate home. Mother wanted to show the court that she could take care of her children without Father and Kimberly. Mother testified that if her children were returned to her, H.N.H. would attend Tomas Rivera Elementary School, which was down the stre et from her house, but Mother had not looked into whether her home was in that school’s district. Mother also had not looked into dayca re for her other two children.

5

. Counsel or’s Perspective Mark Ditloff, a licensed professional counselor with the C ounseling Center of Denton, testified that he began meeting with Mother in October 2010 to help her improve her decision

- making. 27 In order to improve Mother’s decision

making, Ditloff talked to Mother about developing a support group made up of people who m she could ask questions about the development of her children and whom she could contact in emergenc ie s

. Mother talked about F ather as a

26 Mother agreed that it was not Father’s responsibility to transport her to her visits, but she still rel i ed on him for transportation.

27 Mother attended eleven sessions and missed three; two of the absences occurred when the time s and date s w ere changed, and Mother confused the times.35

person that she could turn to , 28 but Ditloff did not see any follow

- through from Mother regarding developing a proper support group. Ditloff went over with Mother the results and recommendations from he r psychological evaluation, including whether she understood the findings regarding her IQ. Ditloff thought Mother was confused at times about why CPS was involved in h er life; she understood the specifics, but she did not understand why the circumstances led to the children’s removal. As they talked, Mother seemed to appreciate the risks that he r children had been placed in. By January 2011, Mother used the counseli ng sessions for maintenance; she came to the sessions with situations from her life and discussed th e decisions that she had made. Although Ditloff heard only Mother’s side of the situations, he thought that there were times when Mother had made positive decisions. For instance, Mother went to MHMR to seek employment assistance and had compl eted most of her service plan. However, Ditloff said that Mother’s decision

- making did not go in the right direction when it related to dealing with her Court

- Appoint ed Special Advocate worker. Ditloff talked to Mother about how she needed to be able to get along with her CASA worker, but Mother eventually stopped talking with the CASA worker. Other times , Mother delayed finding proper housing, continued to have cont act with someone who had pu t her children at risk, and faile d to seek out ways to support her children financially

. The planned topic for the February 8 session was supposed to be Mother’s house and how she could make sure that it was appropriate for he r children

. B ut

28 Mother had listed Father as her emergency contact when she reporte d for c ounseling with Ditloff.36

because Mother had been involved in a car accident, 29 the topic shifted to discus sing the pain that she was in. Throughout the counseling sessions, Ditloff never s aw Mother interact with her children, so he could not evaluate her parentin g skills. Ditloff, however, testified that over time, Mother had developed more thought processes , and getting her children back was ―usually the paramount issue in how she c hose to make those decisions.‖ Mother also became more comfortable using resourc es for her situation and was using those resources to h elp her make better decisions. Ditloff opined that Mother had tried to improve her decision

- making and to deal with and change the situations that had led t o the removal of her children.
B ased on w hat Mother had told Ditloff, he believed that she had removed the risk
t hat she posed to her children. Ditloff believed that Mother was getting things in place

— i.e., a house

— so that she would have the opportunity to care for her children, but Ditloff agre ed that there was more to caring and protecting child ren than having a clean house. Ditloff testified that Mother needed more counseling and that Mother wanted more counselin g.

6

. CASA Volunteer’s Perspective

a. Condition of Homes Andrea Calloway, a CASA volunteer who was ass igned to the case in April 2010 , met with Father ’s mother and learned that the condition that the children were in at the time of the removal was a normal occurrence for the m

. Calloway

29 Ditloff was not aware that Mother was with Father during the car accident.37

first visited Mother’s home on Mocki ngbird Street on May 21, 2010. When she walked into Mother’s house, she detected a ―really bad odor‖ that ―smelled a lot like dog and smoke and just a combination of things.‖ The living room was ―picked up,‖ but the carpeting wa s very, very dirty and soiled. The k itchen ―looked pretty decent.‖ One of the bedrooms was filled with Kimberly’s belongings, another room had pallets on the floor and either a twin bed or futon, and the master bedroom contained a king

- sized bed and a twin matt ress propped against the wall. Calloway visited Mother’s second home and found that it was worse than the one on Mockingb ird. Calloway said that the odor ―was far worse‖ and that the boys’ bedroom had a ―very, very powerful‖ urine odor that made Calloway ― a little ill. ‖ Mothe r told Calloway that they had a dog, but that did not explain all the odors; Calloway told Mother that she needed to rip out the carpet and sanitize the room. Calloway observed roaches and other bugs in the homes and testified that those kinds of pests ca rry diseases and create a risk of physical h a rm for children. Calloway testified that Mother had reached agreements with most of her landlords that she would perform repairs on the homes in exchange for lowered rent, but Mother did not complete the repai r s and was subject ed to eviction. Three or four times during the case, Calloway offered to take Mother apartment hunting or house hunting, but Mother would not go because she would not be able to stay with Kimberly and Father

. With regard to the home Mo ther rented before the termination trial, Calloway said that it was appropriate. Calloway had spoken with M other’s landlord who said that M other had signed a six

- month lease. C alloway, however,38

did not believe that Mother would be able to maintain her ho me because her disability i ncome barely covered the rent. Calloway said that Mother, Kim, and Father with their combined income of $3,000 could not pay their bills without the
children in the house , so CASA was concerned how Mother could provide for three children on $674. 30 In her report, Calloway noted that ―CASA questions [Mother’s] ability to maintain a safe and su itable home for her children.‖ Calloway explained that CASA’s concern was that Mother went from one place to another four times during the case and that the places were not appropriate for the children because the houses were in very poor conditio n and were ―very, very dirty.‖ Calloway testified that the instability in housing created emotional harm for the children and that she believed th at Mother’s children had fears regarding the ir permanent and forever home. b. Relationship with Father and Kimberly , Anger Management, and Domestic Violence Calloway testified that Mother did not regard her relationship with Kimberly and Father as unus ual; Mother did n ot see anything wrong with it. But Calloway disapproved of the sexual relationship that Father had with Kimberly and Mother while t he children were living there. Calloway said that when women are being shared by a man, it creates a very ch aotic and violent environment. She said, ―There’s so much competition between the two women for the affections of this

30 Calloway noted in her report that CASA had grave concerns about Mother’s ability to manage her money effectively. Calloway learned that Father was the pa yee on Mother’s SSI card, but Calloway did not know whether Father was still controlling Mother’s finances at the time of the termination trial.39

man that the children get pushed aside and neglected, and it’s hard on th em emotionally.‖ Calloway talked to Mother about anger mana gement when Mother became upset after Father had abandoned her at the CPS office in June and told her tha t he did not want her anymore. Calloway took Mother home , told her that she needed to get away from Father and Kimberly , and offered her help to do th at. Calloway later went back to the home on Mockingbird to perform an unannounced visit and saw Mother, Father , and Kimberly leaving together. After Mother completed anger management in June or July 2010, there was another incident of domestic violence in August 2010, which indicated to Calloway that Mother had not learned anything in her anger management class. Mother called Calloway on November 7, 2010, which was the day after one of th e domestic violence incidents. Mother told Calloway that the previ ous night, Father had kicked her out, had pulled her hair, had kicked down the door, had broken a window, and had punched a hole in the wal l, and the police were called. Calloway was concerned about the family violence between Father , Kimberly, and Mothe r, which occurred more often than just the two domestic disturbances that the police responded to. The children told Calloway that there was ―a lot of screaming and yelling, throwing things, [and] hit ting‖ and that it scared them. Calloway testified that family violence in the home created a risk of physical or emotional abuse for the children and that the children were at risk of physical or emotional harm whenever they sa w family violence in the home. Calloway was also worried about th e children’s healt h and safety because Kimberly had proven to be violent with children and that she sometime s cared for Mother’s children.40

Calloway said that the relationships the children observed in the home affected their future development as young men and women beca use the children mimicked the behaviors demonstrated by the adults, who served as the children’s role models; it also affected the way that the children perceived how they should trea t members of the opposite sex. Calloway testified that she believed that the type of behavior that the family engaged in was harmful for the chi ldren and was not appropriate. Although Mother had not lived with Father and Kimberly since December 2010, Calloway did not believe that Mother had ended her relationship with Father

. Calloway had received information from CPS that Mother had been seen with Father and Kimberly since Mother had moved into he r own home. Calloway

was also aware that Mother was with Father as recently as th e Friday afternoon prior to the termination tri al. Thus, Calloway had not seen anything that would indicate to her that Mother, Father , or Kimberly had alleviated the risk of harm to the children.

c. Support System Calloway interviewed Mother’s extended family and did not believe that they would be sufficient to support Mother and her three children; Calloway said that ―[t]heir heart is in the right place, but they’re afraid of [ Father ] ‖ and that they were raising some of their other grandchildren. Early in the case, Mother rejected joint custody with a paternal aunt and uncle who were willing to help her manage her money and maintain a home; Calloway said that Mother did not give a reason for not wanting to move to San Antonio to take advantage of their help. Calloway further testified that she k new that the aunt had kidney problems and that this was a concern with CPS as far as placement.41 d. Services Calloway talked to Mother about her services and told her that it was very important to complete all of her services. Calloway told Mother tha t it was not enough to ―

just check the boxes ‖ ; CASA expected to see a significant change in her lifestyle and behaviors in order for a recommendation to be made that her children should be returned to her. 31 Calloway said that it does a parent no good
to w ork the services if she do es not learn anything. Mother completed First Step, but Calloway did not believe that Mother had benefitted from the program. Calloway testified that after Mother had completed the program, ―the home got worse‖; there was even more damage to the home due to domestic violence (i.e., windows were broken out), and the home was dirty (i.e., the floors were covered in grit such that Calloway made a ―crunch‖ noise walking across the floor).
A referral was made for Mother to attend De nton County Friends of the Family so that Mother would extricate herself from Father and Ki mberly

. Mother did not benefit from that service, and her participation did not sufficiently alleviate the risk of abuse to her children. Mother had not refrained from engaging in criminal activity; she had engaged in domes tic violence in November 2010. Calloway , however, was not aware that Mother had walked away from Kimberly, nor was Calloway aware that Mother had to use self

- defens e to get out of the situation.

31 Calloway admitted that the court

- ordered service plan did not require Mother to benefit from the services, o nl y to complete them.42

At the temporary hearing, the Department did not ask Mother to pay money in child support because they believed that wo uld be setting her up to fail. The Department, instead, requested that M other provide in

- kind support. Calloway observed that Mother u sually brought food to the visits and that during the visits that occurred near the children’s birthdays , Mother brought some clothing and to ys. Calloway did not believe that the support Mother had provided for the children was ―anywhere close to remotely adequate to support three children,‖ nor did she believe that Mother had done her best to support her children while they were in CPS ’s care. Calloway summarized that Mother had completed anger management classes , a healthy relations class through Frien ds of the Family, a psychological examination, and homemaker classes; had not been convicted of a crime; had appropriate visits with her children; and had participat ed in counseling through MHMR. Mother had not lived in her home for six months as required under the plan, but her home at the time of the termination trial was suitable.

e. CASA’s Recommendation and Plan Calloway did not believe that Mother could appr opriately parent her children. As a result, Calloway asked the trial court to terminat e Mother’s parental rights to her three children because CASA believed it was in the children’s best interest. 32

32 Calloway noted that t he children were in a foster home with parents w ho were willing to adopt them.43 7

. Attorney Ad Litem ’s Perspective The attorney ad litem for the children testified that this case is really unfortunate because I don’t think [Mother] is a bad person at all. I have no doubt she loves her kids. My concern, though , is for

-- is her ability to properly care for and protect her kids. And all we have to go by is the track record. I kept listening for something that would assure me so I could assure the court that that she could properly care f or he r kids. I haven’t been able to find one. And we have the Spic and Span incident [sic] and we had the 2008 burn incident and we had the January referral and then the March remov al. And I heard her saying that she was blaming [Kimberly] for the removal of her kids, but that’s just not the case. We heard her testify the kids weren’t dirty when they were removed, and we all know that’s not true. And I do have to say that I admire her for being here, representing herself. I mean, everybody else has abandoned her but she’s here, and I admire that about her. But

-- and I kept looking for every alternative to termination, but I haven’t been able to find it. So for the safety of the kids, I would have to join with CASA and CPS and recommend termination.
F

. Trial Court’s Disposition After hearing the above testimony, the trial court found by clear and convincing evidence that Mother had knowingly placed or knowingly allowed the ch ild ren to remain in conditions or surroundings that endangered the physical or emotional well

- being of the child ren , that Mother had engaged in conduct or knowingly placed the child ren with persons who had engaged in conduct that endangered the physical or emotional well

- being of the child ren , and that44

termination of the parent

- child relationship between Mother and H.N.H.; J.L.H., Jr.; and J.N.H. was in the child ren ’s best interest. 33
III. L EGALLY S UFFICIENT E VIDENCE TO S UPPORT E NDANGERMENT F INDINGS In her first , second, fourth, fifth, seventh, and eighth points , Mother argues that there is legally insufficient evidence to establish the termination grounds under family code section 161.00 1(1)(D) and (E) for each of her three children

. The Department argues that there was ample evidence to support the trial court’s conduct and environment findings because the trial court was entitled to find that Mother endangered her three children by failing to maintain safe and stable
hous ing, by participating in domestic violence, by engaging in and continuing inappropriate relationships , by failing to adequately and appropriately care for her children by herself , and by failing to establish a support system to assist her.

A. Burden of Proof and Standards of Review A pa rent’s rights to ―the companionship, care, custody, and management‖ of her children are constitutional interests ―far more precious than any property right.‖ Santosky v. Kramer , 455 U.S. 745, 758

– 59, 102 S. Ct. 1388, 1397 (1982);
In re M.S. , 115 S.W.3d 53 4, 547 (Tex. 2003). ―While parental rights are of constitutional magnitude, they are not absolute. Just as it is imperative for courts to recognize the constitutional underpinnings of the parent

- child relationship, it is
also essential that emotional and physical interests of the child not be sacrificed

33 The trial court also terminated Father’s parental rights to H.N.H.; J.L.H., Jr.; and J.N.H., but Father did not appeal.45

merely to preserve that right.‖ In re C.H. , 89 S.W.3d 17, 26 (Tex. 2002). In a termination case, the State seeks not just to limit parental rights but to erase them permanently

— to divest the parent and c hild of all legal rights, privileges, duties, and powers normally existing between them, except for the child’s right to
inherit. See Tex. Fam. Code Ann. § 161.206(b) (West 2008) ; Holick v. Smith , 685 S.W.2d 18, 20 (T ex. 1985) . We strictly scrutinize ter mination proceedings and strictly construe involuntary termination statutes in favor of the parent.
Holick , 685 S.W.2d at 20

– 21; In re R.R. , 294 S.W.3d 213, 233 (Tex. App.

— Fort Worth 2009, no pet.). In proceedings to terminate the parent

- child relationsh ip brought under section 161.001 of the family code, the petitioner must establish one ground listed under subsection (1) of the statute and must also prove that termination is in the best interest of the child. Tex. Fam. Code Ann. § 161.001 (West Supp.
2 01 1 ); In re J.L. , 163 S.W.3d 79, 84 (Tex. 2005). Both elements must be established; termination may not be based solely on the best interest of the child as determined by the trier of fact. Tex. Dep’t of Human Servs. v. Boyd , 727 S.W.2d 531, 533 (Tex. 19 87) ; In re D.T. , 34 S.W.3d 625, 629 (Tex. App.

— Fort Worth 2000, pet. denied). Termination decisions must be supported by clear and convincing evidence. Tex. Fam. Code Ann. § 161.001; see also § 161.206(a) (West 2008). Evidence is clear and convincing if it ―will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be46

established.‖ Id. § 101.007 (West 2008). Due process demands this heightened standard because termination results in permanent, irrevocable changes for the parent and child. In re J.F.C. , 96 S.W.3d 256, 263 (Tex. 2002); see In re J.A.J. , 243 S.W.3d 611, 616 (Tex. 2007) (contrasting standards for termination and modification). In evaluating the evidence for legal sufficiency in p arental termination cases, we determine whether the evidence is such that a factfinder could reasonably form a firm belief or conviction that the grounds for termination were
proven. In re J.P.B. , 180 S.W.3d 570, 573 (Tex. 2005). We review all the
eviden ce in the light most favorable to the finding and judgment. Id. We resolve any disputed facts in favor of the finding if a reasonable factfinder could have
done so. Id. We disregard all evidence that a reasonable factfinder could have
disbelieved. Id. We consider undisputed evidence even if it is contrary to the finding. Id. That is, we consider evidence favorable to termination if a reasonable factfinder could, and we disregard contrary evidence unless a
reasonable factfinder could not. Id.
We ca nnot 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 defer
to the factfinder’s deter minations as long as they are not unreasonable. Id. at
573.47 B. Law on Endangerment Endangerment means to expose to loss or injury, to jeopardize. Boyd , 727 S.W.2d at 533; In re J.T.G. , 121 S.W.3d 117, 125 (Tex. App.

— Fort Worth 20 03, no pet.); see also In re M.C. , 917 S.W.2d 268, 269 (Tex. 1996). To prove endangerment under subsection (D), the Department had to prove that Mother knowingly placed or allowed her children to remain in conditions or surroundings that endangered thei r physical or emotional well

- being. See Tex. Fam. Code Ann. § 161.001(1)(D); In re J.A.J. , 225 S.W.3d 621, 625 (Tex. App.

— Houston [14th Dist.] 2006) (op. on reh’g), judgm’t aff’d in part, rev’d in part , 243 S.W.3d 611 (Tex. 2007). Subsection (D) focuses on the suitability of the child ren ’s living
conditions. J.A.J. , 225 S.W.3d at 626. Thus, under subsection (D), it must be
the environment itself that causes the child ren ’s physical or emotional well

- being to be endangered, not the parent’s conduct. Id. at 627. Under subsection (E), the relevant inquiry is whether evidence exists that the endangerment of the child ren ’s physical well

- being was the direct result of Mother’s conduct, including acts, omissions, or failures to act. See J.T.G. , 121
S.W.3d at 12 5; see also Tex. Fam. Code Ann. § 161.001(1)(E). Additionally, termination under subsection (E) must be based on more than a single act or omission; a voluntary, deliberate, and conscious course of conduct by the parent is required

. J.T.G. , 121 S.W.3d at 125; see Tex. Fam. Code Ann. § 161.001(1)(E). It is not necessary, however, that the parent’s conduct be
directed at the child ren or that the child ren actually suffer injury. Boyd , 72748

S.W.2d at 533; J.T.G. , 121 S.W.3d at 125. The specific danger to th e child ren ’s
well

- being may be inferred from parental misconduct standing alone. Boyd , 727 S.W.2d at 533; In re R.W. , 129 S.W.3d 732, 738 (Tex. App.

— Fort Worth 2004, pet. denied). As a general rule, conduct that subjects child ren to a life of uncertainty and instability endangers the child ren ’s physical and emotional well

being. See In re S.D. , 980 S.W.2d 758, 763 (Tex. App.

— San Antonio 1998, pet. denied). To determine whether termination is necessary, courts may look to parental conduct occurring both before and after the child ren ’s birth s

. In re D.M. , 58 S.W.3d 801, 812 (Tex. App.

— Fort Worth 2001, no pet.).
C. Evidence Is Legally S ufficient to Support Endangerment Findings In determining whether the evidence is legally suffici ent to support termination of Mother’s parental rights pursuant to subsection (D) or (E), we look at whether Mother (1) knowingly placed or knowingly allowed her children to remain in conditions or surroundings that endangered their physical or emotional

w ell

- being or (2) engaged in conduct or knowingly placed her children with persons who engaged in conduct that endangered t he i r physical or emotional
well

- being. See Tex. Fam. Code Ann. § 161.001(1)(D), (E). The Department’s
brief focuses on th e following acts or omissions by Mother that it contends support termination of Mother’s rights under (D) and (E): failing to maintain safe and stable housing, partici pating in domestic violence, engaging in and continuing inappropriate relati onships, failing to ade quately and appropriately
care for her children by herself , and failing to establish a support system to assist49

her. We will examine all of the evidence in the record, focusing on the se allegations

. T he places that Mother chose for her family to live ex hibited unsafe living
conditions for children . The homes had roaches, flies, terrible odors, and broken
windows that made heating difficult

. Rotten food was also found left out in the
kitchen at one of the houses. This is some evidence that Mother knowi ngly placed or knowingly allowed her children to remain in conditions or surroundings that endangered their ph ysical or emotional well

- being. See In re K.M.B. , 91 S.W.3d 18, 24

– 25 (Tex. App.

— Fort Worth 2002, no pet.) (holding that evidence that Mother exp osed children to homes with roaches and lice problems, animal feces, terrible odors, and general filth supported environmental endangerment finding). Additionally, the record demonstrates that the children had witnessed
domestic violence and inappropriate relationships

. The children lived in a house
with three adults and witnessed the three adults screaming, yelling, hitting, and throwing things. The CASA volunteer testified that this behavior scared the children, and CPS was concerned that one of the ch ildren could be injured. The
record contains evidence that Mother had used a toy truck to hit one of Kimberly’s children and had spanked her children and Kimberly’s children with a
belt . Although there is no evidence that Mother physically abused her ow n children, Mother often allowed Kimberly to watch Mother’s children, and Kimberly admitted to causing the injuries on her child that led to the removal of all of the50

children in the house

. Moreover, the children knew that Father slept with Mother
some ni ghts and with Kimberly some nights ; yet, Mother did not seem to understand the impropriety of the living arrangements

— even after CPS’s repeated warnings

— and continued to live with Father and Kimberly for approximately eight months after Mother’s children w ere removed

. Mother also continued to associate with Father and Kimberly up until a month before the termination trial and had not removed them from her cell phone plan at the time
of the termination trial. This is some evidence that Mother’s conduct, as well as the conduct of those she exposed her children to, endangered them. See In re
M.R. , 243 S.W.3d 807, 819 (Tex. App.

— Fort Worth 2007, no pet.) (holding that evidence of exposing a child to domestic violence supports an endangerment finding).
The re cord also demonstrates that Mother was unable to adequately provide f or her children. Mother ha d virtually no employment history and ha d only recently worked towards obtaining her GED. Mother depended on Father and Kimberly to help provide her and her ch ildren with basic necessities, including food and housing. Mother brought in

- kind support in the form of food and gifts to the visits, but Calloway did not believe that the support Mother had provided for the children was ―anywhere close to remotely adequ ate to support
three children

. ‖ N or did Calloway believe that Mother had done her best to support her children while they were in CPS care. After living at four different residences during the time the case was pending, Mother ren ted her own home51

approxi mately two mon th s before the termination trial. B ut the record revealed
that Mother’s finances would make it almost impossible for her to continue to live
there and that the children had fears regarding their permanent and forever
home . This is some evid ence that Mother’s conduct, including omissions, endangered her children’s physical or emotional well

- being and that Mother exposed her children to an unstable environment that endangered her children’s physical or emotional well

- being. See In re T.C. , No . 10

- 10

- 00207

- CV, 2010 WL 4983512, at *4

– 5 (Tex. App.

— Waco Dec. 1, 2010, pet. denied) (mem. op.) (holding that although there were recent developments that showed improvements in mother’s stability, the trial court could reasonably have determined that any evidence of improvement was short

- lived and outweighed by the extent of her prior history; thus, the evidence supported that mother, by living in fifteen locations among other things, had engaged in conduct that endangered
the child’s physical and emotion al well

- being). The record also demonstrates that Mother was unable to properly care for
her children. Mother did not seek treatment for H.N.H. when s he received
second

- degree burns

. After a concerned relative called in a referral, police
respo nded and immediately called EMS. The four

- hour delay that occurred
before H.N.H. received treatment for second

- degree burns , which required an overnight hospital stay, was ―pretty significant.‖ The record also contains no evidence that Mother sought treatment for H.N.H. when she poured Mop & Glo on herself at age one. Mother failed to get up in time to feed H.N.H. before she52

went to school, which resulted in stomachaches and which the record revealed
could harm H.N.H.’s physical and emotional development. Mother failed to treat H.N.H.’s asthma, and all of the children were dirty. Due to Mother’s verbal IQ, the record revealed that she was likely to have trouble following directions, like those for asthma and lice medication, which created significant risks to her
children. Moreover, the record is replete with evidence that Mother had failed to properly treat and eradicate lice in her children’s hair for approximately two
years. Furthermore, Mother failed to establish a proper support system to help
her care for her children. This is some evidence that Mother’s conduct, including omissions, endangered the children’s physical or emotional well

- being. See In re
S.H.A. , 728 S.W.2d 73, 87 (Tex. App.

— Dallas 1987, writ ref’d n.r.e.) (holding that evidence that parents did not properly feed child and did not seek app ropriate
medical treatment for child was some evidence to support jury’s findings that parents had engaged in conduct which endangered child’s physical or emotional
well

- being). Viewing all the evidence in the light most favorable to the termination judgment and disregarding all contrary evidence that a reasonable factfinder could disregard, we hold that some evidence exists that will support a factfinder’s
firm conviction or belief that Mother violated subs ections (D) and (E). We thus hold that the evidence is legally sufficient to support termination of Mother’s parental rights to H.N.H.; J.L.H., Jr.; and J.N.H. under subsections (D) and (E).
See Tex. Fam. Code Ann. § 161.001(1)(D), (E); K.M.B. , 91 S.W.3d at 24

– 2553

(holding evidence legally sufficient to support trial court’s 161.001(1)(D) finding because evidence showed that Mother exposed children to homes with roaches and lice problems, animal feces, terrible odors, and general filth); In re S.K. , 198
S. W.3d 899, 906

– 07 (Tex. App.

— Dallas 2006, pet. denied) (holding evidence legally sufficient to support trial court’ s 161.001(1)(E ) 34 finding because evidence
showed that children were dirty regularly and often had lice, that parents exhibited limited parenti ng skills and did not understand issues involved in children’s developmental needs, and that CPS had seen no changes in parents’ pattern of behavior through course of case); see also In re Z.A.S. , No. 02

- 11

- 00040

- CV, 2011 WL 3795231, at *15

– 16 (Tex. App.

— F ort Worth Aug. 25, 2011, no pet. ) (mem. op.) (holding evidence legally sufficient to support trial court’s 161.001(1)(D) and (E) findings because evidence showed that Mother, among other things, had moved frequently, had limited employment, and had chosen homes with unsafe living conditions for children); In re J.G.K. , No. 02

- 10

- 00188

- CV , 2011 WL 2518800, at *39

– 41 (Tex. App.

— Fort Worth June 23, 2011, no pet. ) (mem. op.) (holding evidence legally sufficient to support trial court’s 161.001(1)(D) and (E) fin dings because evidence showed that Mother , among other things, had failed to seek medical treatment for child, had moved

34 Although the S.K. opinion cites section 161.001(1)(D), it is clear from the context

— which states that ―Mother engaged in conduct and Father knowingly placed the children with a person who engaged in conduct which endangered the physical or emotional well

- being of [the children]‖

— that section 161.001(1)(E) is the subsection that was intended.54

frequently, had limited employment, and had exposed her children to domestic
violence ); In re T.H. , No. 02

- 07

- 00464

- CV, 2008 WL 4831374 , at *4

– 5 (Tex. App.

— Fort Worth Nov. 6, 2008, no pet.) (mem. op.) (holding evidence legally sufficient to support trial court’s 161.001(1)(D) and (E) findings because evidence showed that father had engaged in conduct that subjected his children to a life of instability and uncertainty, including living at more than five residences over five years and living in residences that were ―genuinely dirty‖ and in disarray; had used illegal drugs; had engaged in domestic violence; and had exhibited anger issues)

. 35
We therefore overrule Mother’s first, second, fourth, fifth, seventh, and eighth points. Because termination based on one subsection of section 161.001(1) will support termination, we need not address Mother’s third, sixth, and ninth points challenging t he termination of her parental rights based on section 161.001(1) (O). See Tex. Fam. Code Ann. § 161.001(1); Tex. R. App. P. 47.1 ( requiring ap pellate co urt to address only issues necessary to final disposition of the appeal).

IV. C ONCLUSION

35 Although Mother claims that the evidence is insufficient to support the termination of her parental rights to J.L.H., Jr. and J.N.H. because ―there is virtually no mention of [the m] throughout the entire proceedings,‖ Mother’s argument fails because all of the children were exposed to the unstable and unsafe living conditions, domestic violence, and lice.55

Having disp osed of every point necessary for final disposition of this appeal, we affirm the trial court’s judgment terminating Mother’s parental rights to
H .N.H.; J.L.H., Jr.; and J.N.H.

SUE WALKER JUSTICE
PANEL: WALKER, MCCOY, and MEIER, JJ.
DELIVERED : Januar y 12, 2012