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Smith v. Texas Department of Protective and Regulatory Services9/11/2003
a course of conduct that endangered their children, we need not determine whether the evidence relating to compliance with the trial court's order is also clear and convincing. We nevertheless find the evidence relevant as it relates to the best interests of the children, which we discuss below. We overrule the Smiths' first two issues.
Best interest of the children
By their third and fourth issues, the Smiths argue that the evidence is factually insufficient to establish that termination is in the best interest of the children. See Tex. Fam. Code Ann. § 161.001(2). Factors to be considered by a court in determining the best interest of a child include: (1) the desires of the child; (2) the emotional and physical needs of the child now and in the future; (3) the parental ability of the individuals seeking custody; (4) the programs available to assist these individuals to promote the best interest of the child; (5) the plans for the child by these individuals or by the agency seeking custody; (6) the stability of the home or proposed placement; (7) the acts or omissions of the parents that may indicate that the existing parent-child relationship is not a proper one; and (8) any excuse for the acts or omissions of the parent. Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976). The court is not required to consider all of the listed factors or any unique set of factors; it may also consider additional factors. Id. at 372.
The children did not testify at the trial, and thus, did not disclose their desires. As for their physical and emotional needs, each of the children's counselors and foster parents testified at trial. Carolyn Garner, S.R.H. and C.C.S.'s counselor, had been counseling the two girls from September 2001 through May 2002. Throughout their course of therapy, the girls never indicated that they had been abused or neglected by their parents. S.R.H. was also attending group therapy to address her prior sexual abuse. According to Fowler, her foster parent, S.R.H.'s needs include continued therapy to address her sexual abuse, dental care, and vision care. Both girls need maintenance to prevent the lice problem, and continued assistance with their schoolwork.
Gene Hartin, C.A.S.'s counselor, testified that he has seen C.A.S. more than fifty times for counseling; he began seeing C.A.S. when he was about five years old. His initial observations of C.A.S. were that he lacked basic communication skills and experienced developmental delays. After about eighteen months, Hartin has noticed considerable progress. C.A.S. speaks clearly now and has improved his ability to express himself. Hartin opined that C.A.S.'s early life was "somewhat like living in a large closet with very little stimulation and interaction with others," making it difficult for him to learn how to express himself. Hartin further opined that all the therapy in the world would not help C.A.S. without exposure to "as much activity, to as much human interaction, to as much family interaction, to as much eating around the supper table, people reading to him when he goes to bed. Constant conversation with him." C.A.S. also takes Adderall to help him pay attention in school.
C.R.S. has special needs related to her cerebral palsy and respiratory problems. Specifically, C.R.S. needs continued therapy, speech therapy, and medication for her seizures. Her therapy is currently being provided everyday by her rehabilitative foster parent, Leming. An early intervention program provided someone to show Leming how to administer that therapy, but Leming testified that C.R.S.'s parents could also administer therapy if shown the proper techniques. C.R.S. also sees a neurologist for her seizures, an ear, nose
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