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Smith v. Texas Department of Protective and Regulatory Services9/11/2003
in the floor, exposed wiring, holes in the bathroom, cigarette butts on the floor, clothes on the floor, trash on the floor, broken glass, the oven was open to heat the home, and the home had no heat otherwise. Harris also mentioned as safety concerns the proximity of the home to the highway and the fact that the door on the trailer did not have a lock.
Later that day, Webb picked up the two older girls from school. Harris, accompanied by law enforcement, went to Bobbie's house to pick up the three younger children. Bobbie was distraught and upset when Harris removed the kids. Carlos was incarcerated at the time. The notice for emergency removal that Harris left with Bobbie when she removed the children states that the reason for the removal was fire and safety hazards in the home, no cooperation with the Department, and neglectful supervision of the children. The children were taken to the Department's office. According to Harris, the children were dirty, improperly clothed, hungry, and very thin. The two older girls had very bad head lice. The children were cleaned up, fed, and taken to their placements.
The following day, February 23, the Department filed its original petition for protection of the children. On March 9, the trial court held a "fourteen-day" hearing and appointed the Department as temporary managing conservator of the children. The trial court also ordered paternity testing regarding the oldest child, S.R.H., and supervised visitation for the Smiths at the Department's office twice a month. The court ordered the Smiths to (1) submit to and cooperate fully in psychological evaluations, (2) attend and cooperate fully in counseling sessions, (3) attend, participate in, and successfully complete parenting classes and to submit a certificate of completion within seven days of completing the classes, (4) submit to and cooperate fully in drug and alcohol dependency assessments, (5) submit urine samples at times requested by the Department for analysis by a drug testing laboratory, and (6) comply with each requirement in the Department's service plan. The degree of the Smiths' compliance with the order is disputed. It is undisputed, however, that Bobbie failed to participate in S.R.H.'s paternity testing.
After the children's removal, caseworker Ellie Krueger was assigned to work on the Smiths' case. She testified at trial that the Department's main goal during the initial phase is to reunify the family and improve the situation. With that goal in mind, the first family plan was prepared in March 2001. The family plan required the Smiths to have a drug assessment and to refrain from criminal activity. They were also to attend anger management classes and parenting classes, receive psychological evaluations, receive individual counseling, and maintain stable employment and proper housing. Krueger was also concerned about Bobbie's depression and encouraged her to get medication to combat the depression. Because the Smiths did not appear to be making any progress in achieving their family service plan goals, in December 2001, the Department amended its petition and sought termination of Bobbie and Carlos's parental rights. A jury trial was held in July 2002, during which a jury heard from twenty different witnesses. The jury found that the Smiths' parental rights to all of their children should be terminated, and the trial court signed a judgment terminating the Smiths' parental rights. This appeal follows.
DISCUSSION
Preservation of factual sufficiency complaint
As a preliminary matter, the Department urges that the Smiths have failed to preserve their objection to the factual sufficiency of the evidence because they did not file a
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