Opinion
No. 08-02-00096-CV.
July 3, 2003.
Appeal from the 109th District Court of Andrews County, Texas (TC# 15, 508).
Hon. Allen R. Stroder HIrsh Stroder, L.L.P. 6010 Highway 191, Suite 230 Odessa, TX 79762, attorney for appellant.
Hon. Lana Shadwick Texas Department of Protective Regulatory Services 2525 Murthworth, Suite 2A27 Houston, TX 77054, attorney for appellee.
Before Panel No. 5: McCLURE, J., CHEW, J., and PRESLAR, C.J. (Ret.) PRESLAR, C.J. (Ret.)(Sitting by Assignment)
MEMORANDUM OPINION
This is an appeal from an order terminating the parental rights of Appellant T.F. to her four children, E.R.L., J.A.L., D.L.L., and Z.K.L. On appeal, T.F. challenges the legal and factual sufficiency of the evidence to support the statutory grounds for the trial court's judgment. We affirm.
FACTUAL BACKGROUND
T.F. is the mother of four children, three of whom are from her marriage to A.L. in 1993. Her eldest son E.R.L. was born October 28, 1993; her son J.A.L. was born September 7, 1994; her daughter D.L.L. was born September 16, 1996; and her son Z.K.L. by a different father was born September 20, 1999. The Texas Department of Protective and Regulatory Services ("Department") had its first contact with the family in 1995, after receiving a referral that the children had been left alone at home for two hours. From its investigation of the incident, the Department determined that there was "reason to believe" there had been negligent supervision of E.R.L. age two and J.A.L. age thirteen months. At the time, T.F. was separated from A.L. In November 1995, T.F. moved with the children to Omaha, Nebraska to live again with A.L. T.F. and A.L. divorced in Nebraska in 1996. In February 1996, Nebraska Child Protective Services ("Nebraska CPS") removed T.F.'s children from her and they remained in foster care for approximately a year and a half. Thereafter, Nebraska CPS placed the children with their father, who later gave the children to T.F.'s mother in Texas. In 1998, T.F.'s relatives returned T.F.'s children to her. In 1999, T.F. had a brief relationship with S.C., who fathered Z.K.L. In 2000, T.F. became involved with S.F., her current husband, who was living with her and the children and helping T.F. to raise all four children before the Department removed the children from their home in July 2000.
The Department's current involvement with the family began in March 2000, after receiving a referral alleging that J.A.L. had been physically abused. In the March incident, T.F. reportedly spanked J.A.L. with a "circle board" for wetting the bed. In its investigation, the Department found there were skin discolorations on all of the children. In April 2000, the Department received another referral, alleging that D.L.L. had bruises covering most of her buttocks. An investigator found that D.L.L.'s buttocks were black, fading to blue on the outer edges of the bruises. Both T.F. and S.F. denied making the bruises on D.L.L., though after further investigation, T.F. indicated to the Department that she and S.F. both utilized some physical discipline as far as spanking the children. The Department also discovered that T.F. and S.F. had begun disciplining the children by making them stand against the wall with their arms outstretched for three hours at a time and would spank them if their arms dropped.
As a result of its March and April investigations and upon discovering the family's involvement with CPS in Nebraska, the Department opened a family preservation case in the beginning of June 2000 and assigned a case worker to work with the T.F. and S.F. on appropriate methods of discipline and on their parenting skills generally. On July 7, 2000, the Department received an emergency report that T.F. had thrown D.L.L. against a window. Department investigators went to the home and noticed that three-year-old D.L.L. had dried blood on her nose. The Department found the boys, E.R.L. age six and J.A.L. age five, outside pulling weeds as a form of punishment. The boys said that they had not seen what had happened because they had been outside pulling weeds since breakfast. By the time the Department arrived at the home, it was four o'clock in the afternoon and over 100 degrees. The Department determined that T.F. had slapped D.L.L. in the nose and then had tried to change the child's clothing when blood from D.L.L.'s nose began to run on her clothing. In so doing, T.F. had thrown D.L.L. causing the child's left leg and thigh to hit the window, which was about eight inches above her bed. That day, T.F. voluntarily placed the children in the care of S.F.'s sister. The children remained with S.F.'s sister for approximately two weeks before the sister indicated to the Department that she could no longer care for them.
After finding no suitable placement with relatives, the Department decided to initiate this action and seek temporary managing conservatorship of all four children. At the time, the Department's primary concern was that the pattern of discipline was escalating to the point where there was a serious risk of injury to the children. In late July, the trial court appointed the Department as temporary managing conservator of the children and they were placed in a foster home where they remained for almost a year. After initiating this action, the Department also developed a family service plan with T.F. and S.F. to work towards family reunification. The service plan included participation in psychological evaluations, family and individual counseling, and parenting classes. T.F. and S.F. cooperated with the Department in fulfilling these requirements of their service plan.
As part of the reunification plan for the family, the Department began allowing supervised visits between T.F., S.F., and the children. After the first unsupervised visit, the children were observed acting out sexually in the foster home. During this time, the children alleged that they were sexually abused by T.F. The Department conducted an investigation into the allegations, but did not reach any conclusive determination and continued to work towards reunification. However, based on the sexual abuse allegations, the Department arranged for counseling with Terry Valero, a therapist with specialization in sexual abuse. In March 2001, Ms. Valero began seeing the children, T.F., and S.F. for individual and family counseling sessions. During the summer of 2001, the Department decided to make a recommendation to the trial court that some of the children start to be phased back into the home to see if the Department's support services to T.F. and S.F. were sufficient to allow them to provide a safe environment for the children. E.R.L., the eldest child at age seven was not included in the reunification plan because there had been incidents in which E.R.L. sexually abused his sister D.L.L. and had also manipulated J.A.L. into trying to perpetrate D.L.L. The Department decided and the counselor also recommended that E.R.L. be removed from his siblings and E.R.L. was placed in High Sky Children Ranch.
The Department began phasing T.F.'s children back into the home on August 13, 2001. J.A.L. was the first child to be placed back in T.F.'s and S.F.'s care. In November, D.L.L. was brought back into the home and Z.K.L. was returned in December. While working on reunification, the Department had explained to T.F. and S.F. that during reunification, the Department and the court would be monitoring the process closely to see if they were utilizing appropriate parenting techniques with the children. During this time period, the Department was monitoring how the children were doing and the assigned case worker was in contact with relatives, the children, and their therapist Ms. Valero. As they were being phased back in, the children, T.F., and S.F. continued to have therapy sessions with Ms. Valero.
During November and December of the phasing period, Ms. Valero expressed some concern about the welfare of the children if they were to continue to remain in the home. The Department also received numerous phone calls that the excessive discipline was continuing. S.F. indicated to the caseworker that he felt T.F.'s discipline was becoming somewhat excessive and admitted that he had begun spanking the children again. There were also indications that they were using "time-outs" in a manner the Department considered excessive. T.F. told the Department that they had placed J.A.L. in time-out for a day and a half for receiving a low grade at school and only allowed him to leave his room in order to use the restroom or to eat. The Department became concerned that T.F. and S.F. had reverted back to physical discipline and Ms. Valero continued to have numerous concerns as far as T.F.'s and S.F.'s parenting ability. In December 2001, the Department decided to remove the children from the home and place them back into foster care. A big factor in their decision was the inappropriate and excessive disciplining of the children. The Department also decided that it was not in the best interests of the children to continue its efforts to reunify the children with T.F. and altered its permanency plan for the children to adoption. At the termination proceeding held on January 24, 2002, the Department sought termination of the parental rights of all the parents of the children and introduced additional evidence which we discuss in detail later in this opinion. After hearing all the evidence, the trial court ordered the termination of the fathers' and T.F's parental rights to all four of her children. This appeal now follows.
The father of E.R.L., J.A.L., and D.L.L. voluntarily relinquished his parental rights during the termination proceeding. The trial court also terminated the parental rights of Z.K.L.'s father. Only the mother's parental rights are at issue in this appeal.
DISCUSSION Termination of Parental Rights
In her sole issue for review, T.F. challenges the legal and factual sufficiency of the trial court's findings that: (1) she knowingly placed or knowingly allowed her children to remain in conditions or surroundings that endangered the children within the meaning of Section 161.001(1)(D) of the Texas Family Code and (2) that she engaged in conduct and knowingly placed the children with persons who engaged in conduct with endangered the physical and emotional well-being of the children within the meaning of Section 161.001(1)(E) of the Texas Family Code. On appeal, T.F. does not challenge the trial court's finding that termination is in the children's best interest.
The natural right that exists between parents and their children is one of constitutional dimension. Wisconsin v. Yoder, 406 U.S. 205, 233, 92 S.Ct. 1526, 1542, 32 L.Ed.2d 15 (1972); see also Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985). For this reason, statutes authorizing involuntary termination are construed in favor of the parent and any effort by the State to terminate the relationship is strictly scrutinized. Holick, 685 S.W.2d at 20. Section 161.001 of the Texas Family Code sets forth the statutory grounds upon which the court may involuntarily terminate a parent-child relationship. Tex.Fam. Code Ann. § 161.001 (Vernon 2002). Relevant to this appeal, Section 161.001 allows termination if the parent has:
(D) knowingly placed or knowingly allowed the child to remain in conditions or surroundings which endanger the physical or emotional well-being of the child;
(E) engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangers the physical or emotional well-being of the child.
Tex.Fam. Code Ann. § 161.001(1)(D), (E).
In addition to establishing one or more of the grounds under Section 161.001(1), the petitioner must establish that termination is in the best interest of the child. Tex.Fam. Code Ann. § 161.001(2). Both the grounds for involuntary termination and the best interest of the child must be proved by clear and convincing evidence. Tex.Fam. Code Ann. § 161.001; see In re C.H., 89 S.W.3d 17, 25 (Tex. 2002). Clear and convincing evidence is defined as the degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established. Tex.Fam. Code Ann. § 101.007 (Vernon 2002); In re C.H., 89 S.W.3d at 25. In this case, the trial court found the evidence sufficient on both of the alleged grounds. On appeal, T.F. does not challenge the trial court's finding that termination was in the best interest of the children. Therefore, we will affirm if legally and factually sufficient evidence supports either of the two grounds upon which her rights were terminated.
Standards of Review
The Texas Supreme Court recently clarified the appellate standards of review to be applied to legal and factual sufficiency challenges in light of the clear and convincing evidence burden of proof in termination proceedings. In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002) (legal sufficiency); In re C.H., 89 S.W.2d at 25 (factual sufficiency). "The distinction between legal and factual sufficiency when the burden of proof is clear and convincing evidence may be a fine one in some cases, but there is a distinction in how the evidence is reviewed." In re J.F.C., 96 S.W.3d at 266.
In reviewing the legal sufficiency of the evidence in a parental rights termination, an appellate court looks at 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. Id. at 266. In order to give appropriate deference to the fact finder's conclusions, the reviewing court must assume that the fact finder resolved disputed facts in favor of the finding if a reasonable fact finder could do so. Id. This does not mean that a court must disregard all evidence that does not support the finding, as this could skew the analysis of whether there is clear and convincing evidence. Id. If, after conducting its legal sufficiency review of the evidence, the appellate court determines that no reasonable fact finder could form a firm belief or conviction that the matter which must be proven is true, then it must conclude that the evidence is legally insufficient. Id.
When an appellate court reviews a challenge to the factual sufficiency of the evidence in a parental rights termination, it must determine whether the evidence is such that a fact finder could reasonably form a firm belief or conviction about the truth of the State's allegations. In re C.H., 89 S.W.3d at 25; In re J.F.C., 96 S.W.3d at 266. The reviewing court should consider whether disputed evidence is such that a reasonable fact finder could not have resolved that disputed evidence in favor of its finding. In re J.F.C., 96 S.W.3d at 266. If, in light of the entire record, the disputed evidence that a reasonable fact finder could not have credited in favor of the finding is so significant that a fact finder could not reasonably have formed a firm belief or conviction, then the evidence is factually insufficient. In re J.F.C., 96 S.W.3d at 266. The reviewing court should detail in its opinion why it has concluded that a reasonable fact finder could not have credited disputed evidence in favor of the finding. Id.
Endangerment by Parental Conduct or Omission
To support a finding under paragraph (E) of Section 161.001(1), the evidence must show that the parent engaged in a course of conduct which endangered the children's physical or emotional well-being. See Tex.Fam. Code Ann. § 161.001(E); Texas Dep't of Human Servs. v. Boyd, 727 S.W.2d 531, 534 (Tex. 1987). For purposes of Section 161.001(1)(E), "endanger" means to expose to loss or injury; to jeopardize a child's emotional or physical health. Boyd, 727 S.W.2d at 533; Doyle v. Texas Dep't of Protective Regulatory Servs., 16 S.W.3d 390, 394 (Tex.App.-El Paso 2000, pet. denied). While "endanger" means more than a threat of metaphysical injury or the possible ill effects of a less-than-ideal family environment, it is not necessary that the conduct be directed at the child or that the child actually suffers injury. Boyd, 727 S.W.2d at 533; see In re M.C., 917 S.W.2d 268, 269 (Tex. 1996). Under Section 161.001(1)(E) the danger to the child must arise solely by the parent's conduct established by the parent's actions or by the parent's failure to act. Doyle, 16 S.W.3d at 394.
In addition to the evidence previously discussed, the State called several witnesses to testify concerning the alleged physical and emotional endangerment of the children by T.F.'s conduct or failure to act. Randa Foster, the family's next-door neighbor and relative, testified about the July 2000 incident which led to the children's initial removal. On July 7, 2000, Ms. Foster was outside doing yard work near the fence of T.F. and S.F.'s trailer home. Ms. Foster was getting some boards when she heard some screaming. When she looked up, she saw T.F. throwing D.L.L. towards the window and saw D.L.L. hitting it pretty hard. D.L.L.'s buttocks hit the window frame and her leg hit the glass of the window. Ms. Foster saw T.F. throw D.L.L. violently onto the bed and take off the child's pants. Ms. Foster also saw T.F. grab D.L.L.'s left arm and wrist and yank her up. Ms. Foster did not see anything else after that, but did hear a lot of stomping and D.L.L. screaming. J.A.L. and E.R.L. were in the backyard pulling weeds and Ms. Foster surmised that they had been out there a pretty long time because she herself had been outside for two hours on what she recalled for a very hot summer day. Ms. Foster had never seen this before and remarked that she had never seen them outside except for that one time because they were usually in the house.
In July 2000, all four children were placed into foster care with Teresa Culberson and her family in Odessa, Texas. When the children arrived, Ms. Culberson noted that E.R.L. was very aggressive, would fly into fits of rage, and would scream and fight with J.A.L. Ms. Culberson also observed that E.R.L. was very introverted and would avoid physical contact with people. J.A.L. was also very introverted and antisocial. J.A.L. indicated to Ms. Culberson that he always felt like he was a bad person who needed to be punished and spanked. When D.L.L. first arrived, she was out of control, screaming, hollering, and a bit wild, but during the course of her time with the foster family, Ms. Culberson began to see improvement in D.L.L.'s and the other children's behavior. Ms. Culberson recalled, however, one disturbing incident with D.L.L. in which D.L.L. was play acting with a doll in her room. Ms. Culberson observed D.L.L. throw her doll on the bed and start "beating the tar out of her." Ms. Culberson asked D.L.L. what she was doing and told her not to hit things like that and in reply, D.L.L. said "that's what happen when me be bad to mommy, I have to spank you like that."
Ms. Culberson recalled that from the beginning, the three older children were constantly worried about ten-month-old Z.K.L. getting some food. They would ask the Culbersons if they were going to feed Z.K.L. and would walk over and give him food. They continued to do this for a while, even after Ms. Culberson explained that Z.K.L. would be cared for. It took a few months before the three children would actually sit down at the table to eat, rather than stand. Anytime food dropped from the kitchen table, the three children would go into a panic and freak out. They would look at each other with expressions that conveyed their terror. Ms. Culberson had the impression that the children thought they were going to be punished because food had fallen on the floor. One time, J.A.L. dropped some food and E.R.L. told him, "you're going to have to eat it." J.A.L. started screaming and crying, and said "I don't have to eat that, I don't want to." E.R.L. told Ms. Culberson that they were made to eat the food that fell on the floor. While in her care, the children never exhibited the behavior of purposely throwing food on the floor.
Ms. Culberson testified about her impression of the children's visits with T.F. and S.F. Ms. Culberson recalled that E.R.L. age six did not want to go to the visits. On the first scheduled visit, E.R.L. refused to go even though he had not seen his mother in a week. When it was time for the second scheduled visit, he held onto a chair and refused to go. He had also threatened to run away if he was made to go back to his mother. J.A.L. would have nightmares and wet the bed after his visits. During her time in Ms. Culberson's care, D.L.L. had nightmares continuously and would wet the bed. When they would return from their visits, the children would be out of control, just running wild. Ms. Culberson would then sit them down and explain the rules and then they would get back into the routine.
In July and August of 2000, Dr. Martin Salazar, a clinical psychologist, performed the initial psychological evaluations for T.F., S.F., and the two older boys, E.R.L. and J.A.L.
T.F. indicated to Dr. Salazar that she had been physically, emotionally, and sexually abused throughout her childhood. T.F. also indicated that Z.K.L.'s father had been physically abusive to her and that she had lived with another man who had also been physically abusive. In his diagnostic assessments, Dr. Salazar determined that T.F. displayed mild signs of depression produced by life stressors, which in this case was a result of the children being removed and her involvement with the Department. Dr. Salazar was concerned about her behavior and coping skills, as well as how she would react if she became involved in a highly distressed situation. Dr. Salazar's evaluation also indicated a trouble with T.F. being emotionally close to someone. Based on his evaluation, Dr. Salazar recommended counseling to help her deal with personal and parenting issues. In his opinion, given T.F.'s current state of functioning, there might be a risk of abuse to the children if they were returned without T.F. going through these support services. In subsequent counseling with Dr. Salazar, T.F. admitted that she overdisciplined some of the children.
Dr. Salazar testified that his psychological evaluation of S.F., T.F.'s live-in boyfriend and now husband, indicated that S.F. had difficulty controlling his anger and was experiencing a mixed anxiety depressed mood. Like T.F., S.F. showed symptoms of depression and anxiety brought on by life stressors from his current involvement with the Department. Initially, S.F. denied any kind of abusive behavior towards the children. However, S.F. later stated that he did spank the children, but that T.F. was a little more severe in her disciplining of the children. Like T.F., S.F. had suffered emotional and physical abuse in his childhood. Dr. Salazar recommended parenting classes and counseling for S.F. as well.
The psychological evaluations for E.R.L. and J.A.L. revealed that E.R.L. missed his mother and S.F., but did not want to return home because "his mom's mean." E.R.L. also told Dr. Salazar that S.F. would spank them, but that his mother would be a little more severe and slap them. In Dr. Salazar's opinion, E.R.L. displayed mild signs of anxiety and depression and had mixed emotions about his parents. J.A.L. mainly appeared depressed and angry more than anything else. Like his brother, J.A.L. had mixed feelings about his parents. J.A.L. indicated to Dr. Salazar that he was scared of his parents because they spanked him. During subsequent counseling sessions, the children continued to express some fear of returning to their mother because of being spanked. In conclusion, Dr. Salazar opined that it appeared the parents were using excessive discipline, including spanking them on a regular basis, extended time-outs, yelling, and other extreme disciplinary methods, that were emotionally detrimental to the children's development. Dr. Salazar testified that such treatment causes serious emotional problems in a child, such that he becomes depressed, withdrawn, will act out, and become aggressive himself. This is particularly true if it is frequent and not balanced with love and affection.
From May through June of 2001, Dr. David Koch, a clinical psychologist, performed follow-up psychological evaluations of T.F., S.F., and the children because the Department was working with T.F. and her now husband, S.F., on possible reunification with her children. In T.F.'s evaluation, she had told Dr. Koch that she and S.F. had used physical discipline and had spanked the children. T.F. also expressed concern that S.F. had carried it too far and indicated to Dr. Koch that she did not know how to tell him to stop when she thought that he had gone too far with this physical disciplining of the kids. T.F. was concerned about the level to which it had escalated and did not know how to tell him to stop being so rough with the boys. As a result of T.F.'s evaluation, Dr. Koch recommended parenting classes with some specific goals in terms of child discipline. One of these goals was to eliminate physical discipline because it had been misused in the past and had become a problem area. From his psychological evaluation of S.F., Dr. Koch determined that S.F. had impulse control problems and a tendency to act out in a physical manner. During the course of the evaluation, S.F. admitted to spanking the children perhaps harder than he should have and that one of the children had bruises as a result of spanking. As with T.F., Dr. Koch recommended S.F. participate in parenting and counseling services and eliminate physical discipline from their management of the children as this method apparently has not been effective and could get out of hand.
From March to December of 2001, Ms. Terry Valero, a licensed professional counselor, provided weekly individual and family counseling to T.F., S.F., and the children. It was Ms. Valero's understanding that one of the issues the Department was dealing with was inappropriate disciplining by the parents and the possible emotional impact on the children. T.F. and S.F. regularly participated in the counseling with "no-shows" only in the last month of counseling. In their sessions, T.F. and S.F. gave contradictory explanations for the weed pulling incident, one of the initial allegations for children's removal. T.F. told Ms. Valero that she was not to blame because it was S.F.'s idea that the children do weed pulling as punishment for playing in a vehicle that had been parked outside. S.F., on the other hand, agreed that the children's punishment was weed pulling, but stated that they were being punished because he had found E.R.L. on top of D.L.L. sexually acting out. Ms. Valero discussed the weed pulling incident with the boys and they told him that they were not given water nor allowed to return inside. Ms. Valero concluded that the children were quite affected by this incident and were afraid it was going to happen again.
During the sessions, T.F. shared with Ms. Valero her perception of how the children felt about her. T.F. stated that she believed the children were probably afraid of her because of the spankings and harsh punishments in the past. T.F. indicated that in the past, she had engaged in other forms of discipline, in addition to the spankings, that might be deemed excessive. T.F. admitted to having had them stand against the wall with their arms out for thirty minutes. T.F. indicated to Ms. Valero that she had learned different or alternative ways of discipline from the parenting classes. During the counseling sessions with S.F., S.F. told Ms. Valero that he had excessively harmed one of the children as far as spankings that caused bruising. At one point, S.F. told Ms. Valero that "there is no excuse for me spanking [D.L.L] to the point of bruising her." Ms. Valero also recalled that T.F. had expressed concern about S.F.'s violent tendencies and felt he was too excessive in the spanking. Ms. Valero also discussed with T.F. her prior history of drug and alcohol abuse, as well as physical abuse of the children by her former husband A.L., the older children's biological father. As far as the parents making progress in the area of discipline, Ms. Valero recalled seeing more behavioral modification toward the children, but no progress in their insight and judgment in disciplining the children. In her experience with the family, T.F. and S.F. would resort to punishment immediately without thinking.
Ms. Valero observed that the children seemed very detached and would hesitate when approaching their mother. She did not see any attachment between T.F. and the children. Rather, in her opinion, T.F. had a needy personality and was constantly asking the children for what she called "loving," which meant demanding hugs and kisses when the children hesitated. During the nine months of counseling, Ms. Valero did not see any improvement in attachment or bond. Ms. Valero recalled that T.F. was very irritable and angry toward J.A.L. and that there was no warmth or nurturing in their relationship. T.F. was warmer and friendlier with the other children.
In Ms. Valero's sessions with E.R.L., E.R.L. expressed fear because of all the spankings that the children had received from his mother and S.F. with belts, a paddle, and their hands. E.R.L. also stated that they were made to stand against the wall with their hands out for a long time and if they put their hands down, they would get a spanking. E.R.L. also mentioned that the children were stealing food at some point when they lived with T.F., as well as having to drink water out of the toilet. Ms. Valero testified that D.L.L. would tell her over and over that she did not want to go home. When Ms. Valero would ask J.A.L., he would become evasive and not respond or just shrug his shoulders. J.A.L. was the first of the children to go back home. When Ms. Valero explained to J.A.L. that he was going home, J.A.L. expressed no excitement. When Ms. Valero asked him if he wanted to go home, J.A.L. did not answer, which concerned Ms. Valero. In Ms. Valero's contact with D.L.L., she noted that D.L.L. expressed fear of her mother. Before D.L.L. returned home, Ms. Valero asked her if she had any worries about going home or whether she was afraid of anything. D.L.L.'s immediate response was "don't want mamma touching my privates." D.L.L. had told Ms. Valero this concern on several occasions throughout the year and knew that D.L.L. was very concerned that her mother would do this again. D.L.L. was also fearful of pain.
Ms. Valero had some reservations about the children's safety with respect to the Department's decision to place the children back into the home. Her role in the family's case was to continue monitoring the placement through on-going counseling sessions after the children returned home. Ms. Valero found several indicators that led her to believe the children were receiving excessive discipline again. D.L.L. was being spanked for bed wetting and the time-outs for J.A.L. were getting long. On one occasion, J.A.L. was put in time-out for two days for bringing home a bad grade. Ms. Valero began seeing a pattern, which to her indicated that the mentality for extreme punishments was still there and beginning to escalate. Ms. Valero became concerned that this pattern was escalating to the point where punishments would turn into abusive behavior and she saw a high risk of abuse to the children. During this time, T.F. and S.F. indicated that they were having fights over how to deal with the children. In October 2001, during an individual session, S.F. expressed concern about leaving the children alone with his wife. S.F. told Ms. Valero that he did not trust her and was afraid that she would beat the children or hurt them in some way because of her anger toward them. S.F. also indicated that her punishments were too harsh and that she was being hateful towards the children.
Based on Ms. Valero's concerns and other information, the Department in December 2001 decided to ask the court for permission to remove the children and place them back into their care. Ms. Valero supported their decision and was concerned that if they were not removed, they would be subjected to additional emotional or perhaps physical abuse. According to Ms. Valero, T.F. and S.F. were continuing their prior pattern and the same mentality with regard to discipline in which punishments were gradually escalating to more harsh measures.
After the children came back into care, Ms. Valero continued to have weekly sessions with the children. D.L.L. came back very different, very aggressive and angry. In her sessions, D.L.L. would take on a demanding personality in which she called herself "mommy" and put Ms. Valero in her role as D.L.L. In her role playing, D.L.L. would threaten Ms. Valero with in her words, "butt bustings" and she indicated in her play that food was removed from her because she did not listen or was a bad girl. D.L.L. would also "put" Ms. Valero in her room so to speak and immediately turn out the lights and shut the door. D.L.L. would then tell Ms. Valero, "f___ you, you're stupid, you're ugly, I'm sick of you." Ms. Valero recalled that D.L.L. did this on two occasions. On the second occasion, D.L.L. passed by Ms. Valero, slapped her on the shoulder, and said, "I'm sick of you." During doll play, D.L.L. would say to her doll, "I was nice to you when you were little, when you were a little baby, but not now." To Ms. Valero, D.L.L. was exhibiting symptoms of post-traumatic stress. In Ms. Valero's opinion, D.L.L. had been emotionally abused because she had never said those words before in her prior sessions. D.L.L.'s demeanor had significantly worsened since she had first started seeing her. Based on her training and experience, Ms. Valero believed that the child had been subjected to excessive discipline from which she was likely to develop emotional problems. From her sessions with J.A.L. after he was placed in care, Ms. Valero noted that J.A.L.'s demeanor remained very flat, that he is numb emotionally, and as a form of protection refused to feel anything.
T.F. testified at the termination proceeding and denied that her ex-husband physically or emotionally abused her, though he did hit their children with his hand and a belt. T.F. did not recall seeing any bruising from his disciplining of the children. T.F. also denied using drugs while pregnant with any of her children or drinking alcohol after finding out that she was pregnant with her second child. On cross-examination, T.F. expressed her love for her children and her desire to have the children back. T.F. also asked the court to give her a chance to continue working with the Department on the parenting skills she needs to take care of the children.
In the present case, the State's evidence showed that T.F.'s conduct during the course of the Department's intervention was such that the Department and Ms. Valero feared for the children's emotional well-being and believed that there was a significant risk of physical abuse because T.F. had resumed her excessive disciplining methods. Viewing all the evidence in a light most favorable to the trial court's finding, we conclude that a reasonable trier of fact, in this case the trial court could have formed a firm belief or conviction that its finding as to whether T.F. engaged in conduct that endangered her children's physical or emotional well-being, was true. See In re J.F.C., 96 S.W.3d at 266. Therefore, we conclude the evidence was legally sufficient to support the trial court's finding under Section 161.001(1)(E) of the Texas Family Code. Furthermore, after carefully reviewing the entire record, we conclude the evidence was factually sufficient to support the trial court's finding under Section 161.001(1)(E) because the trial court as fact finder could reasonably form a firm belief or conviction about the truth of the State's allegations. In re C.H., 89 S.W.3d at 25. Only one finding alleged under Section 161.001(1) is necessary for a judgment of termination. In re S.F., 32 S.W.3d 318, 320 (Tex.App.-San Antonio 2000, no pet.). Because we have concluded that the evidence is legally and factually sufficient to support the trial court's findings under Section 161.001(1)(E), we need not address the sufficiency of the evidence under Section 161.001(1)(D).
We affirm the trial court's judgment.