Texas Case Law
IN INTEREST OF M.J.F., 06-05-00113-CV (Tex.App.-Texarkana
[6th Dist.] 2006) IN THE INTEREST OF M.J.F., a Child. No.
06-05-00113-CV Court of Appeals of Texas, Sixth District,
Texarkana. Submitted: July 13, 2006. Decided: September 1,
2006.
On Appeal from the County Court at Law, Rusk County,
Texas, Trial Court No. 2003-12-583B-Ccl.
Before MORRISS, C.J., ROSS and CARTER, JJ.
MEMORANDUM OPINION
Memorandum Opinion by Chief Justice MORRISS.
There was considerable stress at the home of Michael Faison
and his wife, Sonja Faison. Michael and Sonja had resumed
living together as husband and wife after a separation,
during which separation Michael had fathered a child,
M.J.F., with Wreathye Guerrero. Part of the stress arose as
Sonja was thrust into the role of caring for M.J.F.,
another woman’s child.
December Faison, one of Michael and Sonja’s young
children, reportedly described an event occurring after
Michael and Sonja resumed living together. In this event,
when M.J.F. started crying, Sonja hit him repeatedly on the
head and kept hitting him until he quit crying and “went to
sleep.” While living with Michael and Sonja, M.J.F. was
once admitted to a hospital with multiple bruises, which
admission resulted in a $20,000.00 hospital bill.
M.J.F.’s mother, Wreathye, is not without her problems
either. Wreathye has had substance abuse problems. After a
year and a half of working with agency officials in dealing
with parenting issues, Wreathye still admits to using
alcohol and marihuana, and managed to achieve only thirteen
days’ sobriety immediately preceding the trial of this
case. The Texas Department of Family and Protective
Services (the Department), decided to seek to terminate
Wreathye’s parental rights because she drove while
intoxicated with M.J.F. in the car.
Michael and Wreathye each appeal the termination of their
parental rights to M.J.F. They each assert that the evidence
is legally and factually insufficient to support findings
that they respectively endangered M.J.F., that they
respectively placed him in dangerous conditions, and that
termination of their respective parental rights is in
M.J.F.’s best interest.
Based on our own extensive review of the evidence in the
record, we affirm the termination of Michael’s and
Wreathye’s parental rights to M.J.F. because we hold that:
(1) Legally and factually sufficient evidence[fn1]
supports the finding of the trial court that Wreathye
knowingly placed or allowed M.J.F. to be in conditions or
surroundings that endangered M.J.F.’s physical or emotional
well-being. See Tex. Fam. Code Ann. § 161.001(1)(D)
(Vernon Supp. 2006).
(2) Legally and factually sufficient evidence supports the
finding of the trial court that Michael knowingly placed or
allowed M.J.F. to be in conditions or surroundings that
endangered M.J.F.’s physical or emotional well-being. See
Tex. Fam. Code Ann. § 161.001(1)(D).
(3) Legally and factually sufficient evidence supports the
finding of the trial court that Wreathye engaged in conduct,
or knowingly placed M.J.F. with persons who engaged in
conduct, which endangered M.J.F.’s physical or emotional
well-being. See Tex. Fam. Code Ann. § 161.001(1)(E)
(Vernon Supp. 2006).
(4) Legally and factually sufficient evidence supports the
finding of the trial court that Michael engaged in conduct,
or knowingly placed M.J.F. with persons who engaged in
conduct, which endangered M.J.F.’s physical or emotional
well-being. See Tex. Fam. Code Ann. § 161.001(1)(E).
(5) Legally and factually sufficient evidence supports the
finding of the trial court that termination of Wreathye’s
parental rights to M.J.F. is in M.J.F.’s best interest. See
Tex. Fam. Code Ann. § 161.001(2) (Vernon Supp. 2006).
(6) Legally and factually sufficient evidence supports the
finding of the trial court that termination of Michael’s
parental rights to M.J.F. is in M.J.F.’s best interest. See
Tex. Fam. Code Ann. § 161.001(2).
The Evidence
In our evidentiary review which yielded the following
recitation of evidence, we have found no evidentiary
disputes which could not reasonably be resolved in favor of
termination by reasonable fact-finders. We also find no
fact-finder determinations based on credibility of
witnesses that we conclude were unreasonable. As to each
issue, we conclude a reasonable fact-finder could have
found the evidence clear and convincing in support of
termination. In light of the entire record, we conclude the
evidence allows the fact-finder reasonably to form a firm
belief or conviction supporting each element of proof
supporting termination.
Each statement recounted in this section of this opinion
— whether or not it is explicitly attributed to the
witness — is taken from the witness’ statements and
is not the opinion or conclusion of this Court.
A. Donald Winstead Testimony
Dr. Donald Winstead, a licensed psychologist in private
practice who devotes a large part of his practice to
families involved with Child Protective Services (C.P.S.),
testified at length.
Sonja admitted she had slapped her daughter, December.
Sonja’s attitude toward corporal punishment suggests that
she might overuse that form of correction and that Sonja is
likely to be threatened by a child’s normal actions
striving for independence.
Sonja and Michael’s marriage was subject to many stresses,
including M.J.F. Winstead expressed “some concerns” that
keeping M.J.F. in Sonja and Michael’s home would be in his
best interest, if the issues that existed in the marriage
continued.
Winstead evaluated Michael and found that Michael had a
personality disorder, including narcissistic, antisocial,
and schizoid features. Michael was evaluated as being
acceptable on corporal punishment, appropriate expectations
of children, and empathy with children. Michael’s test
results were a concern in the area of being prone to role
reversal, that is, being too focused on the child meeting
his needs rather than the normal pattern. Michael also
showed a propensity to be threatened by children’s
assertion of independence. Because Michael had been abused
as a child, he has a higher chance of being an abuser.
Michael admitted prior substance abuse to Winstead, but
claimed three years’ sobriety. Michael acknowledged “a lot
of” past serious relationships. If Sonja injured M.J.F., it
would be important for Michael to accept that as fact.
Michael did not believe Sonja had injured M.J.F. Per
Winstead, if M.J.F. was a special needs child, parental
role reversal would create significant problems and
frustration risks.
Because Winstead had not seen M.J.F., Michael, or Sonja
recently, it is difficult to assess whether M.J.F. should
be placed in Michael and Sonja’s home, but if their
situation has not changed, i.e., if the problems persist,
it would concern Winstead to place M.J.F. in that home.
Winstead diagnosed Wreathye as a substance abuser. The
rough edges to Wreathye’s personality were pronounced
enough to suggest she may have a personality disorder. She
had obsessive compulsive and histrionic traits. Winstead
expressed having concerns about Wreathye’s ability to
protect M.J.F., given her substance abuse problem. When she
first started counseling with Winstead, Wreathye was not
fully ready to admit to having a drinking problem, but came
to a counseling session with alcohol on her breath. It is
very traumatic for a child to see his or her parent get
arrested for drunk driving. Substance abuse has a high
correlation with being a leading cause of child abuse. If
Wreathye continued to have problems with substance abuse,
Winstead would have a lot of concerns about placing M.J.F.
with her. Wreathye did not have a good support system in
place, as is needed for her to maintain her progress in
recovery from substance abuse.
On the other hand, Winstead testified that Wreathye
brought M.J.F. to Winstead’s office, at which time Winstead
observed that her interactions with M.J.F. were always
appropriate, she was attentive and concerned, and she did a
good job with M.J.F. Winstead also opined that, if Wreathye
could get past her substance abuse problems and progress on
her emotional issues, such as self-esteem and personality
matters, the rest of her parenting skills seem to be good.
Per Winstead, Michael struggles with self-centeredness and
the tendency to exploit or take advantage of others, and is
in a relationship to figure out what he can get for
himself.
On the other hand, Winstead indicated that Michael has
empathy and normal expectations for children. Though
Michael had been a serious drug abuser and had been
physically abused during childhood, he apparently had been
sober and dry for a few years. Michael had the strength to
remain sober and dry. Winstead further indicated that
Wreathye had the possibility of remaining sober and dry.
M.J.F. was developmentally delayed in his speech, motor
skills, and “things like that.”
Combine the factors of Sonja’s propensity to be angry
regarding her marital issues, her inappropriate attitude
toward corporal punishment, her past experience of actual
physical abuse of children in her care, and a child,
M.J.F., produced by Michael’s recent sexual relationship
with Wreathye while Michael and Sonja were married but
separated, and you have an explosive potential. All that
increased Winstead’s concern. Wreathye reported to Winstead
that Michael had been physically and emotionally abusive to
Wreathye during their relationship.
Wreathye was charged with driving while intoxicated
(D.W.I.), with M.J.F. as a passenger in the vehicle.
Winstead believes there are significant risks to M.J.F.’s
health and life for Wreathye to continue as his mother.
Once Michael decided to stay with Sonja, Winstead believes
that the risks Sonja poses to M.J.F. are effectively
imputed to Michael, so long as they are together. Michael
is thus exposing M.J.F. to known risks, which runs counter
to M.J.F.’s best interest.
Physical abuse in the presence of a child, even if not
directed at the child, endangers his or her well-being.
And, given Sonja’s prior abusive behavior and Michael’s
personality disorders, Michael might not have the strength
to protect M.J.F. from Sonja, causing concerns for M.J.F.’s
safety in that home.
Based on what Winstead has learned about Wreathye, there is
a significant probability that Wreathye will not be able to
“pull it together” and do what is needed to parent her
child. Even if M.J.F. is not adoptable, the alternative
prospects are preferable to being a child of either Michael
or Wreathye.
B. Wreathye Guerrero Testimony
Wreathye admitted that she has had multiple episodes of
being arrested, being assaulted, or having crimes committed
in the presence of her children, including M.J.F. There
were multiple times Wreathye had been drinking alcohol when
she appeared at a hospital. There were other drugs she used
habitually, including benzodiazepines. Wreathye’s record is
replete with examples of her abusing alcohol or marihuana
and of missing counseling and rehabilitation meetings.
Wreathye has violated the terms of court orders and service
plans.
On the other hand, Wreathye testified that she is attentive
to M.J.F. and has brought him things he needs. She says she
and M.J.F. bonded together well.
Drugs and alcohol have had a powerful hold on Wreathye so
that she has had a difficult time turning loose of them.
Wreathye feels she can offer M.J.F. a home and take care of
him appropriately. She does not believe it is in M.J.F.’s
best interest for her parental rights to be terminated.
Even while this case has been going on, while Wreathye has
been under scrutiny, she has had lapses and used drugs and
alcohol. Although knowing for some time that she needs to
obtain an Alcoholics Anonymous sponsor, Wreathye has not
obtained one, except that, for a short time, she got a
fellow A.A. attender to be her sponsor, notwithstanding
that he was also in treatment for alcohol abuse.
Wreathye admitted in her trial testimony given June 28 that
she last used an intoxicating substance June 15, thirteen
days earlier, at which time she used marihuana.
C. Michael Faison Testimony
Michael admitted he has been convicted for felony delivery
of marihuana. That conviction occurred before his marriage
to Sonja. Sonja knew of it.
Michael indicated that he did not find out about Sonja’s
involvement with C.P.S. until he got involved with C.P.S. in
Rusk County.
Michael testified that, right after Michael and Sonja
resumed living together, Wreathye was arrested for public
intoxication outside Michael’s trailer, and as a result,
Michael took M.J.F.
Sonja had told Michael that she had accidentally “grazed”
M.J.F.’s eye with the telephone receiver and that
young[fn2] Michael had dropped M.J.F. Michael told Katy
Wady, a C.P.S. caseworker, that things at the Faison home
were stressful because of the situation which included
taking care of an infant child produced by an extramarital
affair. Michael’s best recollection is that he reported
M.J.F. falling from bed and M.J.F. getting “grazed” by the
telephone receiver.
When Michael saw Wreathye intoxicated on October 25, she
was one of two possible drivers at the time, and she was
apprehended by police for public intoxication. On a
different occasion, Wreathye appeared at Longview Regional
Hospital and, in a way, Michael agreed with the doctors’
opinion that Wreathye was intoxicated at that time. For a
time, Michael did not realize that Wreathye’s alcoholism
posed a problem for her parenting of M.J.F., but then he
realized it did.
Michael does not believe the hematomas on M.J.F.’s body
were caused by Sonja. If Michael retained parental rights
to M.J.F., M.J.F. would live with Michael and Sonja in
their home. After the injury to M.J.F. requiring
hospitalization, there was a $20,000.00 hospital bill.
Michael has been sober, or clean, since the end of 2001.
In 1998, Michael sold marihuana to an undercover
policeman. Michael was using drugs when he and Sonja
married and when they separated. Before 2001, he had been
heavily into “hard drugs” since approximately 1984.
In 2003, Sonja decided to reunite with Michael, and
Michael, recognizing his obligation to his estranged wife,
chose her over Wreathye. Back in the home environment,
though it was stressful, the other kids “took to” M.J.F.,
and he did well. Though M.J.F. sustained some bumps, from
the accident with the telephone receiver and from the other
children picking him up, he was not abused.
Michael became concerned about M.J.F. because of his
enlarged head and his unusual behavior, and took him to see
a doctor. M.J.F. was taken by air flight to Dallas for
medical evaluation. Michael was stressed out. He talked
with the doctors, support staff, and “everyone.” C.P.S.
came later and took the children.
Before the children were removed, when Wreathye was
arrested, she had left her car in front of Michael’s house
with M.J.F.’s car seat still inside. Michael retrieved the
car seat, but had to take it apart to adjust the straps
because they did not properly connect.
Michael does not believe Sonja caused any injuries to
M.J.F. It would be unjust to require him to get a divorce
from Sonja unless she is proven to have hurt M.J.F. Michael
is willing to forego temporary custody pending the outcome
of Sonja’s criminal proceeding, which he believes will be
an acquittal. Michael does not believe it would be fair to
terminate Wreathye’s parental rights. While separated from
Sonja, Michael tried to help support M.J.F. Recently,
Michael has been doing his best to stay “clean” (drug
free), notwithstanding that he had been an addict. Michael
did not know about an instance in which C.P.S. investigated
possible abuse by Sonja against her children in Houston.
M.J.F. was born with an enlarged head. That may have been
related to Wreathye’s history of drinking.
Michael saw M.J.F. fall off the bed at Wreathye’s house,
hurting himself. M.J.F. has also fallen off the bed in
Michael and Sonja’s house. Michael knows of four different
occasions in which M.J.F. fell or was dropped.
D. Rita DeShannon Testimony
Rita DeShannon was with the Rusk County Child Advocacy
Center in 2004 when she interviewed December Faison and
young Michael Faison, the two children of Michael and
Sonja. DeShannon does not remember two children from the
same family both blurting out information, at the very
beginning of their interviews, about mama hitting “the
baby,” as December and young Michael did when they were
interviewed. The fact that December spontaneously used the
slang “weed” for marihuana in her interview enhances the
believability of her claim of marihuana use by Michael.
E. Kelly Smith Testimony
Kelly Smith, a self-employed, licensed professional
counselor contracting with C.P.S. and with the Children’s
Advocacy Center, testified that, in Smith’s play therapy
and counseling sessions with December starting in May 2004,
Smith noticed evidence in December’s play that indicated
violence in Michael and Sonja’s home. December told Smith
that, once when M.J.F. was crying, Sonja hit him repeatedly
on the head and kept hitting him until he quit crying and
“went to sleep.” Before hearing that story, Smith knew that
Sonja had injured M.J.F., but had not discussed that with
December. December’s revelation seemed to Smith spontaneous
and not coached. In Smith’s play therapy and counseling
sessions with young Michael, he also exhibited evidence of
a great deal of violence in his home environment. And young
Michael talked about the violence in his home. Young
Michael told essentially the same story about M.J.F.’s
crying and Sonja hitting him repeatedly to make him stop
crying. According to young Michael, the source of violence
in the home was Sonja. Smith does not recall young Michael
and December ever mentioning whether Michael was present
when Sonja was violent in the home.
Young Michael’s depictions of violence and his aggression
were extreme. December drew, and played out, violence and
aggression quite a bit. A child who is raised in an abusive
and violent home tends to grow up to be an abusive adult.
December said that, on different occasions, she was
“whipped” with an extension cord that left bruises and
marks on her, which, in Smith’s opinion, would be difficult
for a father or stepfather not to notice. So, it would not
be in the best interest of the children for them to be
taken care of by Michael. December drew pictures of
violence and anger and played out, with dolls, scenarios of
violence.
F. Amanda Prewitt Testimony
Amanda Prewitt, a social worker employed by the
Department, testified that she saw M.J.F. at the time of
his discharge from the hospital and noticed that he was
small, slender, and pale, with a large head — a head
which had a large lump, bump, or protruding area.
Wreathye did some, but not all, of the things to comply
with her family service plan. She did some work, but did
not continue it. Wreathye maintained her housing, but she
did not comply with the counseling requirements.
During monitored visits with the children, there were
arguments between Sonja and Michael in the presence of the
children.
Michael, in conversations with Prewitt about M.J.F.’s
injuries, maintained his belief that Sonja was not
responsible for abusing M.J.F., that he knew Sonja had a
C.P.S. history and that she might hurt an older child, but
not a seven-month-old baby, such as M.J.F. Michael knew
that, sometimes when he came home from work and M.J.F. had
been in Sonja’s care, M.J.F. would have a cut, a red mark,
or such, and was crying. Michael knew Sonja was stressed
from all the marital issues they were having, trying to put
the relationship back together, taking care of someone
else’s child — many stresses.
The Department recommends that parental rights to M.J.F.
be terminated and that he be adopted. That would be in the
best interest of M.J.F.
M.J.F. was injured only at Michael and Sonja’s home, not
while in Wreathye’s possession.
Per Prewitt, Michael knew of Sonja’s proclivity to injure
a child. But Prewitt has no reason to doubt the truth of
Michael’s claim that he did not know of Sonja’s C.P.S.
history in Houston until M.J.F. was removed from the home.
Because Wreathye could have learned of Sonja’s C.P.S.
history only by Michael telling her, she could not have
known any earlier.
When Wreathye came to visit M.J.F., she was one of the few
parents Prewitt recalled who came with toys on her own, and
also brought diapers, wipes, videos, and the like.
Wreathye demonstrated a good relationship with M.J.F. and
took excellent care of him during those visits. During
Wreathye’s visits with M.J.F., M.J.F. seemed to improve
markedly. Except for her substance abuse problems, Wreathye
appears to be a good mother.
The Department’s intent to work with Wreathye ended with
her arrest for D.W.I., and M.J.F. was taken as a result. It
is because of that D.W.I. that the Department seeks to
terminate Wreathye’s rights.
During a six-week period, M.J.F. was in the presence of at
least six caretakers.
A different foster parent, a Mrs. Berry, reported December
as saying that Sonja would hit “the baby” on the hand, and
if it continued crying, then on the “butt,” and if it
continued crying, would “pop” it on the back of the head.
December reportedly cried and asked Mrs. Berry not to
report that to Michael because he would tell Sonja, and
December would “get it.”
One reason M.J.F. blossomed might be that he was receiving
additional help, not just his contact with Wreathye.
Even while under scrutiny, Wreathye has not performed to
the minimal standards of a parent.
G. Judith Ward Testimony
Judith Ward, the guardian ad litem for M.J.F. and an
assistant program manager for East Texas Court Appointed
Special Advocates, recommends termination of the parental
rights of both parents to M.J.F. As to Wreathye, it is
because, after a year and a half, she still admits to using
alcohol and marihuana, and at the time of trial had
maintained only thirteen days’ sobriety. Ward believes it
is a terrible risk to put a child with someone with that
kind of record. As to Michael, after a year and a half, he
continues to be in denial about Sonja’s problems. He gives
insufficient or unbelievable reasons for M.J.F.’s injuries.
He has not provided M.J.F. a safe environment. Michael has
not been cooperative with CASA. He is argumentative and
angers easily. Ward opines that it is in M.J.F.’s best
interest for Wreathye’s and Michael’s parental rights to be
terminated and for M.J.F. to be placed for adoption.
On the other hand, Ward testified that Wreathye has
cooperated with CASA and has done all they asked of her,
except remaining sober. When Wreathye got M.J.F. back, he
blossomed. She was “wonderful.”
Although Wreathye cooperated and was otherwise a good
parent, she had the D.W.I. with M.J.F. in the car and put
him in danger again. That was a great disappointment.
CASA approves of Lawrence and Terry Gower as prospective
adoptive parents, because of an impressive lifestyle and the
fact that they have current experience in dealing with
their own child that does not hear or speak. That is a plus
because of M.J.F.’s challenged condition.
H. Faye Hubbard Testimony
Fay Hubbard, a supervisor with the Department, testified
that Michael’s parental rights to M.J.F. should be
terminated because he cannot or has not provided M.J.F. a
safe environment, permanency, protection, or nurture.
Hubbard testified that the following risk areas were met:
M.J.F. is five years old or younger or otherwise unable to
protect himself; M.J.F. is physically or mentally impaired
or needs special care; Wreathye and Michael were
“unwilling/unable to protect the child”; Wreathye and
Michael “significantly lack child development knowledge”;
Wreathye and Michael have “unrealistic expectations of
child or frequently fail to understand the child’s needs”;
Wreathye and Michael “significantly lack parenting skills to
meet the child’s behavioral or developmental needs”;
Wreathye and Michael “lack impulse control”; Wreathye and
Michael are “unable to cope appropriately with stress”;
Wreathye and Michael have a “history of drug/alcohol
abuse”; a “caregiver [was] abused/neglected as [a] child”;
a “caregiver [is] so self-centered or needy that his/her
needs are put above the child’s”; a “child [has]
experienced significant separation from the primary
caregiver”; a child was “scapegoated, rejected, humiliated,
or treated differently by a caregiver”; M.J.F. “suffered
physical injuries or sexual abuse”; abuse or neglect
“require[d] immediate medical care”; “[a]ctual or potential
harm [was] severe”; a “child [was] born addicted or exposed
to drugs or alcohol”; there has been “a prior abuse or
neglect investigation”; “a child” has been “inadequately
supervised or left with inappropriate caregiver”; a “child
[has] been removed from home by [a] protective agency”; a
“prior incident resulted in a severe outcome”; incidents
are “escalating in severity”; more people are “becoming
involved, either as victim or perpetrator”; the family is
“experiencing recent significant stress”; behaviors of some
“household member endanger[s] the child”; the family is
“isolated or supported by extended family”; the social
relationships of caregiver are “primarily negative”;
Michael has a history of abusing a spouse; Wreathye has
“been [a] victim of spousal abuse”; Wreathye has a “history
of criminal involvement”; Michael “promote[s] violence”;
Wreathye and Michael “deny, seem unaware of, or take
allegations less seriously than [the Department]”; Wreathye
and Michael are “unmotivated/unrealistic about change”; and
Wreathye and Michael “offer implausible explanations,
attempt to deliberately mislead [the Department], or refuse
to disclose important information.”
According to Hubbard, termination would be in M.J.F.’s
best interest, based on the totality of the situation.
Michael is still unable to provide a protective
environment. The Department’s recommendation of termination
and adoption seeks to get M.J.F. into a safe, secure, and
stable environment. Wreathye is not going to be able to
parent.
I. Megan Crim Testimony
Megan Crim, a conservatorship worker with the Department,
testified that, after the monitored return of M.J.F. into
Wreathye’s possession was found to be unsafe, Crim and
Prewitt went to retrieve M.J.F. from Wreathye. Wreathye’s
D.W.I. with M.J.F. in the car is conduct which endangers
the physical well-being of M.J.F. One condition of
Wreathye’s service plan was to attend Alcoholics Anonymous
or Narcotics Anonymous meetings, which she did
sporadically. Part of Wreathye’s service plan required her
to get at least a part-time job. Crim had no record that
Wreathye ever got a job. Since M.J.F. was removed from
Wreathye’s possession, he has progressed well.
On the other hand, Crim noted that Wreathye attended
seventeen meetings in April. A “monitored return hearing
order” dated October 19, 2004, indicates that, at that
time, Wreathye had demonstrated adequate and appropriate
compliance with the service plan as of that date, and says
the same thing about Michael. The order says that Wreathye
was willing and able to provide M.J.F. a safe environment
and that return of M.J.F. to Wreathye was in the child’s
best interest. The only subsequent development was
Wreathye’s D.W.I. event with M.J.F. in the car.
J. Rick Sirls Testimony
Rick Sirls, a substance abuse counselor with the Woodbine
Treatment Center, testified that he ordered a drug test of
Wreathye, and she had admitted to smoking marihuana and
drinking alcohol. This was on an occasion when he smelled
alcohol on her. The test came back positive for alcohol,
but not for marihuana. The clinic tested Wreathye twice
more at later dates, but both tests proved negative for
“all substances.” Not getting an A.A. sponsor after some
delay would be a matter of concern for Wreathye’s chances
for success.
On the other hand, Sirls opined that, with a positive
support network, Wreathye ought to have good chances to
stay clean and sober.
K. Terry Gower Testimony
Terry Gower, the foster mother in possession of M.J.F. at
the time of trial, testified that she has a natural child
who is deaf and blind at age thirty-four. When M.J.F. came
into the Gowers’ home, M.J.F. was afraid of everything,
except Gower’s eighty-year-old mother, to whom he went
readily. M.J.F. has some unusual fears that they are
working on, including a terrible fear of the garage, and a
terror of even ankle-deep water. He is developmentally
delayed. In January, when M.J.F. came into Gower’s care, he
had few or no language skills, and even now he has only
around fifty words, which is “far behind.” He was walking.
He was not walking well or climbing stairs by himself. He
had motor skills problems. On Tuesdays, a lady from
“E.C.I.” comes out and works with M.J.F. for forty-five
minutes. In the approximately five months since M.J.F. has
been with Gower, M.J.F. is quite different, more confident,
more friendly and open, showing no remaining fear of
people. He talks to everybody, not being understood, and
everybody loves him. He is learning sign language and uses
it with his words. There are other foster children that
play well with him and mother him. Gower would like to
adopt M.J.F.M.J.F. is catching up and making great strides.
But he still has limited vocabulary and is far behind
normal children his age. Gower understands some of his
words, but others not without his sign language
accompanying them. Though M.J.F. was in a very regressed
condition when he joined the Gower family, since that time
he is making remarkable progress. M.J.F. is a special needs
child and likely will remain so. As such, stability,
routine, and dependability are extremely important to his
best interest. Gower and her husband are willing to provide
long-term care for M.J.F. with or without adoption. Gower
and her husband are reimbursed $23.00 per day for M.J.F.’s
care expenses, but whether they get that reimbursement
really does not matter to them.
(1) Legally and Factually Sufficient Evidence Supports the
Finding of the Trial Court that Wreathye Knowingly Placed
or Allowed M.J.F. to be in Conditions or Surroundings that
Endangered M.J.F.’s Physical or Emotional Well-Being
One of the substantive grounds for termination of
Wreathye’s parental rights to M.J.F. urged by the State and
found by the trial court is that Wreathye has “knowingly
placed or knowingly allowed [M.J.F.] to remain in
conditions or surroundings which endanger [his] physical or
emotional well-being. . . .” See Tex. Fam. Code Ann.
§ 161.001(1)(D). The evidence recited above is such
that a reasonable fact-finder could form a firm belief or
conviction that Wreathye knowingly placed M.J.F., or allowed
him to be placed, in at least two types of endangering
conditions or surroundings, (a) Wreathye’s substance abuse
or criminal violations and (b) Michael’s potential for
physical and emotional abuse.
The evidence is uncontested that Wreathye continued, until
just a few days before trial, to engage in substance abuse,
even in M.J.F.’s presence. While there is no direct
evidence in the record that Michael abused M.J.F., there is
evidence that Wreathye was an abuse victim at Michael’s
hands and knew of his tendency to be abusive.
The evidence is legally and factually sufficient to support
the finding that Wreathye knowingly placed or allowed
M.J.F. to be placed in conditions or surroundings that
endangered his physical or emotional well-being. See Tex.
Fam. Code Ann. § 161.001(1)(D).
(2) Legally and Factually Sufficient Evidence Supports the
Finding of the Trial Court that Michael Knowingly Placed or
Allowed M.J.F. to be in Conditions or Surroundings that
Endangered M.J.F.’s Physical or Emotional Well-Being
The State urged and the trial court also found that Michael
had “knowingly placed or knowingly allowed [M.J.F.] to
remain in conditions or surroundings which endanger [his]
physical or emotional well-being. . . .” Tex. Fam. Code
Ann. § 161.001(1)(D). The evidence recited above is
such that a reasonable fact-finder could form a firm belief
or conviction that Michael knowingly placed M.J.F., or
allowed him to be placed, in three types of endangering
conditions or surroundings, (a) Sonja’s physical abuse, (b)
Wreathye’s substance abuse or criminal violations, and (c)
physical violence and emotional turmoil in Michael and
Sonja’s home.
Michael denies knowing of Sonja’s abusive behavior and
claims she was not actually abusive. One could argue that
his denials concerning his knowledge are undisputed. But
there is evidence that could have been believed by a
reasonable fact-finder that Sonja was guilty of physical
abuse, including numerous injuries to M.J.F. while in her
care, reports by December and young Michael confirming
Sonja’s abusive behavior against M.J.F., the other
children’s fears of retribution for reporting that abuse,
and December being “whipped” with an extension cord, an
event which, in the opinion of witness Smith, would be
unlikely to escape Michael’s notice. A reasonable
fact-finder could have disbelieved Michael’s protestations
that he knew nothing about Sonja’s abusive behavior.
Likewise, a reasonable fact-finder could have concluded
also that Michael knew of physical violence and emotional
turmoil in his own home.
There is no real dispute that Michael knew about
Wreathye’s continued substance abuse, at least sometimes in
M.J.F.’s presence.
The evidence is legally and factually sufficient to support
the finding that Michael knowingly placed or allowed M.J.F.
to be in conditions or surroundings that endangered
M.J.F.’s physical or emotional well-being. See Tex. Fam.
Code Ann. § 161.001(1)(D).
(3) Legally and Factually Sufficient Evidence Supports the
Finding of the Trial Court that Wreathye Engaged in Conduct,
or Knowingly Placed M.J.F. with Persons Who Engaged in
Conduct, Which Endangered M.J.F.’s Physical or Emotional
Well-Being
The second substantive ground for termination of
Wreathye’s parental rights to M.J.F. is that she “engaged
in conduct or knowingly placed [M.J.F.] with persons who
engaged in conduct which endangers [his] physical or
emotional well-being. . . .” See Tex. Fam. Code Ann.
§ 161.001(1)(E). The evidence recited above is such
that a reasonable fact-finder could form a firm belief or
conviction that Wreathye had engaged in endangering
conduct, including (a) substance abuse in M.J.F.’s presence
and also while pregnant with M.J.F., (b) driving while
intoxicated with M.J.F. in the car, and (c) driving M.J.F.
without a properly adjusted car seat.
The evidence is legally and factually sufficient to support
the finding that Wreathye engaged in conduct, or knowingly
placed M.J.F. with persons who engaged in conduct, which
endangered M.J.F.’s physical or emotional well-being. See
Tex. Fam. Code Ann. § 161.001(1)(E).
(4) Legally and Factually Sufficient Evidence Supports the
Finding of the Trial Court that Michael Engaged in Conduct,
or Knowingly Placed M.J.F. with Persons Who Engaged in
Conduct, which Endangered M.J.F.’s Physical or Emotional
Well-Being
The second ground for termination of Michael’s parental
rights to M.J.F. is also that Michael “engaged in conduct
or knowingly placed [M.J.F.] with persons who engaged in
conduct which endangers [his] physical or emotional
well-being. . . .” Tex. Fam. Code Ann. § 161.001(1)(E).
The evidence recited above is such that a
reasonable fact-finder could form a firm belief or
conviction at least that (a) Michael allowed Sonja to care
for M.J.F., notwithstanding his knowledge of her violent
tendencies, and (b) Michael allowed Wreathye to care for
M.J.F. notwithstanding his knowledge of her ongoing
substance abuse.
The evidence is legally and factually sufficient to support
the finding that Michael engaged in conduct, or knowingly
placed M.J.F. with persons who engaged in conduct, which
endangered M.J.F.’s physical or emotional well-being. See
Tex. Fam. Code Ann. § 161.001(1)(E).
(5) Legally and Factually Sufficient Evidence Supports the
Finding of the Trial Court that Termination of Wreathye’s
Parental Rights to M.J.F. is in M.J.F.’s Best Interest
In addition to finding a substantive basis for terminating
parental rights, such as we address above, the trier of fact
must have found, as it did, that termination of Wreathye’s
parental rights to M.J.F. is in M.J.F.’s best interest. See
Tex. Fam. Code Ann. § 161.001(2). There is a strong
presumption that the best interest of the child is served
by keeping custody with the natural parent. See In re D.M.,
58 S.W.3d 801, 814 (Tex.App.-Fort Worth 2001, no pet.). The
parents’ rights, however, are not absolute; protection of
the child is paramount. In re A.V., 113 S.W.3d 355, 361
(Tex. 2003).
A nonexclusive list of factors established by the Texas
Supreme Court helps measure the best interest of the child:
(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 stability of the home or proposed placement, (g) the
acts or omissions of the parent, which may indicate that
the existing parent-child relationship is not a proper one,
and (h) any excuse for the acts or omissions of the parent.
See Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976).
Best interest, however, does not require proof of any
unique set of factors, nor does it limit proof to any
specific factor. See In re H.R., 87 S.W.3d 691, 700
(Tex.App.-San Antonio 2002, no pet.). Much of the evidence
touches on a number of these factors.
Although at the time of trial M.J.F. was incapable of
making his desires known, there is considerable evidence as
to his emotional and physical needs, the emotional and
physical dangers to him, the relative parenting abilities
of Wreathye and the Gowers, the relative stability of the
homes of Wreathye and the Gowers, and acts and omissions of
Wreathye.
Of course, the same evidence that supports the substantive
findings against Wreathye also weigh in favor of the finding
in the trial court. But, in addition, the record contains
a diagnosis that Wreathye has personality defects that
impact her parenting suitability. The undisputed evidence
that M.J.F. is especially vulnerable and has special needs,
arising from his disabilities, strengthens the finding that
termination is in his best interest. While there is
contrary evidence, it is neither so voluminous, nor is it
of a quality or type, such that it would mandate a contrary
finding on M.J.F.’s best interest. Finally, there is
substantial evidence that the Gowers would make good
alternative parents for M.J.F.
There is legally and factually sufficient evidence to
support the finding that termination of Wreathye’s parental
rights to M.J.F. is in M.J.F.’s best interest. See Tex.
Fam. Code Ann. § 161.001(2).
(6) Legally and Factually Sufficient Evidence Supports the
Finding of the Trial Court that Termination of Michael’s
Parental Rights to M.J.F. is in M.J.F.’s Best Interest
In addition to finding a substantive basis for terminating
Michael’s parental rights, the trier of fact must have
found, as it did, that termination of Michael’s parental
rights to M.J.F. is in M.J.F.’s best interest. See Tex.
Fam. Code Ann. § 161.001(2). The same guidelines and
factors apply here as in dealing with the same issue as to
Wreathye’s parental rights.
Although M.J.F. is currently incapable of making his
desires known, there is considerable evidence as to his
emotional and physical needs, the emotional and physical
dangers to him, the relative parenting abilities of Michael
and Sonja as well as the Gowers, the relative stability of
the homes of Michael and Sonja and the Gowers, and
Michael’s acts and omissions along with some excuses
offered for those acts or omissions.
As we noted in Wreathye’s case, the evidence that Michael
was guilty of substantive violations authorizing
termination also weigh in favor of the finding that
termination of Michael’s parental rights would be in
M.J.F.’s best interest. The evidence tending to support or
subvert a finding of best interest as to Michael is similar
to that supporting or subverting such a finding as to
Wreathye. There is also evidence that Michael, too, has
been diagnosed with personality defects, which impact on
his parenting abilities.
There is legally and factually sufficient evidence to
support the finding that termination of Michael’s parental
rights to M.J.F. is in M.J.F.’s best interest. See Tex.
Fam. Code Ann. § 161.001(2).
Because there is legally and factually sufficient evidence
to support all findings necessary to the judgment, we
affirm the judgment of the trial court.
[fn1] In conducting a legal sufficiency review in a
parental termination case, we are to examine all the
evidence in the light most favorable to the finding to
determine whether a reasonable trier of fact could have
formed a firm belief or conviction that its finding was
true. In doing so, we must assume that the fact-finder
resolved disputed facts in favor of its finding if a
reasonable fact-finder could have done so. We should
disregard all evidence that a reasonable fact-finder could
have disbelieved or found to have been incredible, but not
all evidence that does not support the finding. We should
consider undisputed facts that do not support the finding,
or risk distorting the analysis of whether there is clear
and convincing evidence. In re J.P.B., 180 S.W.3d 570, 573
(Tex. 2005); In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002).
We are to consider all of the evidence, not just that which
favors the verdict. J.P.B., 180 S.W.3d at 573; see City of
Keller v. Wilson, 168 S.W.3d 802, 817 (Tex. 2005). We defer
to the fact-finder’s determinations which depend on witness
credibility, except to the extent those determinations are
unreasonable. J.P.B., 180 S.W.3d at 573; Sw. Bell Tel. Co.
v. Garza, 164 S.W.3d 607, 625 (Tex. 2004).
In a factual sufficiency review, we are to give due
consideration to evidence that the fact-finder could
reasonably have found to be clear and convincing. J.F.C.,
96 S.W.3d at 267; In re C.H., 89 S.W.3d 17, 25 (Tex. 2002).
We must determine whether the evidence allows the
fact-finder to reasonably form a firm belief or conviction
about the truth of the allegations supporting termination.
J.F.C., 96 S.W.3d at 267. We should consider whether
disputed evidence is such that allows a reasonable
fact-finder to resolve the disputed evidence in favor of
the finding. If, in light of the entire record, the
disputed evidence not reasonably credited in favor of the
finding is so significant that it would not allow a firm
belief or conviction supporting the finding, then the
evidence is factually insufficient. Id. In our opinion we
must detail why we conclude the evidence is factually
insufficient, if we so conclude. Id.
[fn2] To distinguish Michael Faison, the parent, from
Michael Faison, the son, we refer to the son as young
Michael.