Family Attorney Houston Texas

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					                   No. 07-0625

   IN THE SUPREME COURT OF TEXAS
                   AUSTIN, TEXAS
------------------------------------------------------------

  DEPARTMENT OF FAMILY &
  PROTECTIVE SERVICES,
                       Petitioner

                            v.

  ERICKA SHANETTE COLBERT,

                            Respondent
  ____________________________________

 PETITIONER’S BRIEF ON THE MERITS
  ___________________________________

     Petition Seeks Review of Decision by
Court of Appeals for the First District of Texas at
        Houston in No. 01-05-00127-CV
      (Petition Concerns Child: J.D.M.)
  ___________________________________

                  MIKE STAFFORD
                  HARRIS COUNTY ATTORNEY(#99999939)
                  By: Sandra D. Hachem
                  State Bar No. 088667060
                  Sr. Assistant County Attorney
                  2525 Murworth, Suite 300
                  Houston, Texas 77054
                  Telephone: (713) 578-3914
                  Facsimile: (713) 578-3995
                  ATTORNEY FOR PETITIONER,
                  DEPARTMENT OF FAMILY &
                  PROTECTIVE SERVICES
                  IDENTITY OF ALL PARTIES AND COUNSEL

ALL PARTIES TO THE TRIAL COURT’S ORDER:
     Petitioner: Department of Family & Protective Services
     Respondents: Erica Shanette Colbert and Jesse Davis Mosley, Sr.
     Attorney ad Litem for Child: Glenn Devlin
     Office of the Attorney General

THE NAMES AND ADDRESSES OF ALL TRIAL COUNSEL:

Trial Counsel for Petitioner,         Trial Counsel for Respondent,
Department of Family                  Erica Shanette Colbert
& Protective Services                 Reo Harris, Jr.
Angela M. Craven                      6450 Louetta, Suite 140
Assistant County Attorney             Spring, Texas 77007
2525 Murworth
Houston, Texas 77054

Trial Counsel for Attorney            No Counsel, Jesse Davis Mosley
Ad Litem for the Child                (No Attorney of Record)
Glenn Devlin                          Jesse Davis Mosley, Pro Se
11 West 15th Street                   Ferguson Unit 12120 Savage Dr.
Houston, Texas 77008                  Midway, Texas 75852

Trial Counsel for Office of Attorney General
Kathryn Diaz Garcia
5225 Katy Freeway, #400
Houston, Texas 77007

THE NAMES AND ADDRESSES OF ALL APPELLATE COUNSEL:

Appellate Counsel for Appellant                Appellate Counsel for Appellee
Erica Shanette Colbert                         Department of Family & Protective
William B. Connolly                            Services at First Court of Appeals
William B. Connolly & Associates               Lisa Rice Hulsey
2930 Revere, Suite 300                         Sr. Assistant County Attorney
Houston, Texas 77098                           1100 Congress Plaza, 15th Floor
                                               Houston, Texas 77002
Attorney Ad Litem for Child                    Sandra Hachem
Glenn Devlin                                   Sr. Assistant County Attorney
11 West 15th Street                            2525 Murworth
Houston, Texas 77008                           Houston, Texas 77054



                                        ii
                                             TABLE OF CONTENTS

                                                                                                                          PAGE

IDENTITY OF PARTIES AND COUNSEL ...................................................................... ii

TABLE OF CONTENTS ...................................................................................................iii

ABBREVIATIONS ............................................................................................................ iv

INDEX OF AUTHORITIES ............................................................................................... v

STATEMENT OF THE CASE ........................................................................................viii

STATEMENT OF JURISDICTION .................................................................................. ix

ISSUES PRESENTED ........................................................................................................ x

STATEMENT OF FACTS.................................................................................................. 1

SUMMARY OF THE ARGUMENT ................................................................................ 30

ARGUMENT .................................................................................................................... 33

         ISSUE NO. 1: Did the appellate court have authority to reverse and remand
         the trial court’s order that appointed the Department as sole managing
         conservator of the child, J.D.M., even though no assigned error was brought
         challenging the findings in support of the appointment of the Department as
         sole managing conservator and this issue was not preserved for review at the
         trial court?............................................................................................................. 33

         ISSUE NO. 2: Did the appellate court err in concluding that the court’s
         judgment did not appoint the Department as conservator on any legal basis
         independent of the court’s decision to terminate parental rights when the
         Department’s pleadings clearly sought conservatorship on legal bases
         independent of parental termination, the evidence supported the independent
         bases sought by the Department’s for appointment as sole managing
         conservator, and there were no findings of fact and conclusions of law? ..... 36

         ISSUE NO. 3 Did the appellate court err in its factual sufficiency review by
         omitting relevant evidence and inferences which a reasonable trier of fact
         could have considered in support of a firm belief or conviction that
         termination of Colbert’s parental rights was in the child’s best interest........ 39


                                                                iii
PRAYER FOR RELIEF .................................................................................................... 47

CERTIFICATE OF SERVICE.......................................................................................... 48

APPENDIX ................................................................................................... (ATTACHED)


                                              ABBREVIATIONS

         Clerk’s Record. In this brief, references to the Clerk’s Record in No. 01-04-

001232-CV (which pertains to D.N.C.) shall be abbreviated as “CR-1.” References to the

Clerk’s Record in No. 01-04-001233-CV (which pertains to T.L.J. and T.B.J.) shall be

abbreviated as “CR-2”. The Clerk’s Record in 01-05-00124-CV (which pertains to T.J.C.

and T.D.C.) shall be abbreviated as “CR-3.” The Clerk’s Record in No. 01-05-00126-CV

(which pertains to E.D.C.) shall be abbreviated as “CR-4”. The Clerk’s Record in No. 01-

05-00127-CV ( which pertains to J.D.M.) shall be abbreviated as “CR-5.”

         Reporter’s Record: The reporter designated 7 volumes of records. In this brief,

Volumes 1 through 7 shall be abbreviated and referenced respectively as RR-1, RR-2,

RR-3, RR-4, RR-5, RR-6 and RR-7. Reference to Petitioner’s Exhibits 1 through 10 shall

be abbreviated and referenced respectively as P-Ex 1, P-Ex 2, P-Ex 3, P-Ex 4, P-Ex 5, P-

Ex 6, P-Ex 7, P-Ex 8, P-Ex 9 and P-Ex 10. Unfortunately, the 10 exhibits that were

admitted (at volumes 4 through 7), containing over 1000 pages, were not stamped with

page numbers for easy reference. Nonetheless, this brief shall refer to the place where

support in an exhibit appears by counting the pages from the beginning of the exhibit and

referencing that number after the volume and exhibit number.




                                                           iv
                                         INDEX OF AUTHORITIES


CASES                                                                                                             PAGE

In re C.H., 89 S.W.3rd 17 (Tex. 2002)                                                                                  39

Colbert v. Dept. of Fam. & Prot. Servs., 227 S.W.3d 799 (Tex. App. – Houston
 [1st Dist.] 2006, pet. filed).............................................................................viii, 1, 2, 3, 33

In re E.A.W.S., No. 02-06-00031-CV, 2006 WL 3525367
 (Tex. App. – Fort Worth 2006, pet. denied)............................................................... ix, 33

In re J.A.J, 51 Tex. Sup. Ct. J. 107,
 2007 WL 3230169, *6 (Tex. 2007) ..................................................vii, viii, 30, 33, 34, 37

In re J.P.B., 180 S.W.3rd 570 (Tex. 2005)                                                                          40, 45

In re J.F.C., 96 S.W.3rd 256 (Tex. 2003) ..................................................................... ix, 40

In re J.L., 163 S.W.3rd 79 (Tex. 2005)                                                                                  34

In re J.R., 171 S.W.3rd 558 (Tex. App. – Houston [1st Dist.] 2005, no pet)                                              33

Holly v. Adams, 544 S.W.2d 367 (Tex. 1976)                                                                              41

Pat Baker v. Wilson, 971 S.W.2d 447 (Tex. 1998) ........................................................... 34

Worford v. Stamper, 801 S.W.2d 108 (Tex. 1990)                                                                          38

STATUTES

TEX. FAM. CODE ANN. §153.005 (Vernon 2002) ......................................... ix, 2, 30, 37

TEX. FAM. CODE ANN. §161.001 (Vernon Supp. 2006) ................................... ix, 38, 39

TEX. FAM. CODE ANN. §263.401 (Vernon 2002) ........................................................ 35

TEX. FAM. CODE ANN. §263.404 (Vernon 2002) .......................................................... 2

TEX. FAM. CODE ANN. §263.405 (Vernon 2002) ........................................ 2, 34, 35, 36

TEX. GOV’T CODE ANN. §22.001 (Vernon 1998)..............viii, ix, 34, 36, 37, 38, 39, 47


                                                             v
TEX. GOV’T CODE ANN. §311.016(3) (Vernon 2005) .......................................... 35, 36

RULES

TEX. R. APP. P. 33.1 ........................................................................................................ 36

TEX. R. APP. P. 38.1 ........................................................................................................ 36

TEX. R. APP. P. 44.1 ........................................................................................................ 34

TEX. R. APP. P. 56.1 .................................................... ………. vii, viii, 34, 36, 37, 38, 47




                                                              vi
                                     STATEMENT OF THE CASE

Nature of the Case:                      Appeal involves judgment for parental termination and
                                         conservatorship. Clerk’s Record [hereinafter “CR-5”] 226.

Trial Court:                             Honorable John F. Phillips of the 314th Judicial District
                                         Court, Harris County.1

Trial Court Disposition:                 On November 29, 2004, the trial court signed an order
                                         which terminated the parental rights of Ericka Shanette
                                         Colbert and Jesse Davis Mosley, Sr. to J.D.M., and
                                         appointed the Department as sole managing conservator of
                                         J.D.M.. CR-5 226.

Appellate Parties:                       Ericka Shanette Colbert is the only Appellant. CR-5 246.
                                         Appellee is the Department of Family & Protective
                                         Services.2 Glenn Devlin is the child’s attorney ad litem.
                                         Biological father, Jesse Davis Mosley, Sr., did not appeal.

Court of Appeals:                        First Court of Appeals, Houston District Panel: Sam
                                         Nuchia, Terry Jennings and Laura Higley. Justice Sam
                                         Nuchia was the author of the majority opinion. Justice
                                         Jennings authored a concurring/dissenting opinion.
                                         Justices Alcala and Keyes authored separate opinions
                                         dissenting from request for en banc reconsideration.

Citation:                                Colbert v. Department of Family & Protective Services,
                                         227 S.W.3d 799 (Tex. App. – Houston [1st Dist.] 2006,
                                         pet. filed).

Appellate Court Disposition: The appellate court reversed the trial court’s judgment on
                             December 21, 2006. Justice Terry Jennings filed a
                             concurring/dissenting opinion. On July 2, 2007, the court
                             denied a motion for en banc reconsideration with
                             dissenting opinions by Justice Evelyn V. Keyes and
                             Justice Elsa Alcala joined by Justice Jennings.

1
  Originally, this suit was filed in the 314th District Court and included Colbert’s four other children (D.N.C., E.D.C.,
T.L.J. and T.B..J.) under cause no. 2003-04414J. See Clerk’s Record of No. 01-05-0126-CV p. 5-32. However, in
December 2003, this case was severed from the other children, assigned cause no. 2003-04414J-C, and transferred
to Judge Frank Rynd, 309th District Court in Harris County which had cause no. 2003-14864. CR-5 pp. 26-27.
Judge Frank Rynd of the 309th District Court of Harris Court then consolidated cause no. 2003-04414J-C under his
cause no. 2003-14864 and assigned the case back to the 314th District Court. CR-5 pp. 17 and 14.
2
  The Department of Family & Protective Services shall be referred to in this brief as the “Department.”


                                                          vii
                          STATEMENT OF JURISDICTION

       This court has jurisdiction to consider this petition under TEX. GOV’T CODE

ANN. §22.001(a) (1), (2), (3) and (6) (Vernon 1988).           See also TEX. R. APP. P.

56.1(a)(1),(2),(3), (5) and (6). This court has jurisdiction under subparts (1) and (2) of

section 22.001(a) of the Government Code with respect to the Department’s first issue in

this petition, because the appellate court’s resolution on that issue involves a material

question of law that was decided contrary to a recent opinion of this court, justices of the

very court that issued the opinion in this case, as well as other courts of appeal. See In re

J.A.J, 51 Tex. Sup. Ct. J. 107, 2007 WL 3230169, *6 (Tex. 2007); Colbert v. Department

of Family & Protective Services, 227 S.W.3d 799, 819 (Tex. App. -Houston [1 Dist.]

2006, pet. filed); See also TEX. R. APP. P. 56.1(1) & (2). In particular, the first issue in

this petition concerns the appellate court’s decision to automatically reverse the court’s

decision to appoint the Department as J.D.M.’s conservator when it reversed the decision

as to parental termination even though no error was assigned in this appeal concerning

conservatorship. See Colbert, 227 S.W.3d at p, 801 (confirms three issues only

challenged parental termination); Id. at p. 816 (nonetheless reverses Department’s

appointment as conservator with reversal of parental termination). While this petition has

been pending, this court decided in In re J.A.J., 51 Tex. Sup. Ct. J. 107, contrary to the

decision at issue, that automatic reversal of conservatorship is not invoked absent

assigned error. As such, there is clear jurisdictional authority for this court to decide this




                                             viii
petition under Section 22.001(a) (2) and (6) of the Government Code. See also TEX. R.

APP. P. 56.1(1), (2), (5) and (6).

        Moreover, the second issue in this appeal presents an additional basis for

jurisdiction under Section 22.001(a)(2) of the Government Code, because it concerns the

appellate court’s apparent reasoning in support of automatic reversal of conservatorship

absent assigned error in a manner inconsistent with In re J.A.J, 51 Tex. Sup. Ct. J. 107. In

particular, the appellate court’s decision fails to recognize that the Department pled for

and obtained its request for managing conservatorship of D.N.C. on a statutory basis,

independent of its claim for parental termination, namely section 153.005 of the Family

Code.    Moreover, to the extent the appellate court may have reasoned that section

153.005 of the Family Code could not be the basis of the decision on conservatorship

without findings to that effect written in the court’s judgment, such reasoning would have

been inconsistent with this court’s decision in In re J.F.C., 96 S.W.3d 256, 276 (Tex.

2003) which confirmed that parental termination cases are subject to the rules of civil

procedure which may supply implied or deemed findings in support of a judgment.

        In addition, this court has jurisdiction under subpart (3) of section 22.001(a) of the

Government Code, because resolution of the legal issues in this petition will involve

appropriate interpretation of relevant statutory provisions in the Family Code. This is

particularly true with respect to the third issue in this petition, because evidence which

should have been acknowledged as relevant to the court’s finding under this subpart was

omitted from the court’s opinion.




                                              ix
                                ISSUES PR ESENTED


ISSUE NO. 1: Did the appellate court have authority to reverse and remand the

trial court’s order that appointed the Department as sole managing conservator of

the child, J.D.M, even though no assigned error was brought challenging the

findings in support of the appointment of the Department as sole managing

conservator and this issue was not preserved for review at the trial court?



ISSUE NO. 2: Did the appellate court err in concluding that the court’s judgment

did not appoint the Department as conservator on any legal basis independent of the

court’s decision to terminate parental rights when the Department’s pleadings

clearly sought conservatorship on legal bases independent of parental termination,

the evidence supported the independent bases sought by the Department for

appointment as sole managing conservator, and there were no findings of fact and

conclusions of law?



ISSUE NO. 3       Did the appellate court err in its factual sufficiency review by

omitting relevant evidence and inferences which a reasonable trier of fact could

have considered in support of a firm belief or conviction that termination of

Colbert’s parental rights was in the child’s best interest.




                                           x
                                          No. _________


                       IN THE SUPREME COURT OF TEXAS
                                       AUSTIN, TEXAS
                    ------------------------------------------------------------
                       [From No. 01-05-00127-CV – In re J.D.M.]

                    DEPARTMENT OF FAMILY &
                    PROTECTIVE SERVICES,
                                                              Petitioner
                                                v.

                    ERICA SHANETTE COLBERT,
                                                 Respondent
                         ________________________________

                     PETITIONER’S BRIEF ON THE MERITS
                      ___________________________________

TO THE HONORABLE JUSTICES OF THE TEXAS SUPREME COURT:

      Petitioner,   Department       of    Family     &     Protective     Services,   [hereinafter

“Department”], submits this Petitioner’s Brief on the Merits, pursuant to TEX. R. APP. P.

55.1, seeking review of the appellate court’s decision in Ericka Shanette Colvert v.

Department of Fam. & Prot. Servs., No. 01-05-00127-CV, 227 S.W.3d 799 (Tex. App. –

Houston [14th Dist.] December 21, 2006, pet filed) and would show as follows.

                                    STATEMENT OF FACTS

      The appellate court’s opinion correctly states the nature of this case. This appeal

concerns a judgment terminating the parental rights of Ericka Shanette Colbert

(hereinafter “Colbert”) to her seven children (D.N.C., J.D.M., E.D.C., T.L.J., T.B.J.,
T.D.C. and T.J.C.) in five separate cases.1 Colbert v. Dept. of Fam. & Prot. Servs, 227

S.W.3d 799, 801 (Tex. App. – Houston [1st Dist.] 2006, pet. filed). Also, as correctly

noted, this appeal involves three points of error by Colbert2 challenging the sufficiency of

the evidence in support of the court’s decision to terminate Colbert’s parental rights. Id;

Appendix, Tab 8. Nevertheless, the appellate court’s opinion fails to mention some

important facts that directly relate to the issues brought in this petition.

           In particular, the first issue brought in this petition for review concerns the

appellate court’s decision to reverse the order in the trial court’s judgments that appointed

the Department as the children’s sole managing conservator even though Colbert did not

preserve or assign that error for review. The majority opinion fails to mention that

Colbert never specifically complained of the court’s order appointing the Department as

conservator at trial; and, in this regard, her statement of appellate points, required under

section 263.405(b) of the Family Code, clearly did not include a complaint regarding

conservatorship. See CR-1 230; CR-2 297; CR-3 28; CR-4 113; CR-5 233. Also,

Colbert’s issues on appeal, like her statement of appellate points, urged no complaint or

issue concerning the Department’s appointment as conservator. See Appendix, Tab 8.

           In addition, in connection with the second issue, the appellate court’s majority

opinion fails to mention that the Department’s pleadings in each of the cases brought in

Colbert’s appeals requested managing conservatorship under sections 153.005 and

263.404 of the Family Code, which do not depend on a court’s finding about parental


1
    The five separate cases were not formally consolidated, but were tried together.
2
    None of the four fathers of these children sought to appeal the trial court’s judgment.


                                                             2
termination. CR-1 p. 245; CR-2 p. 54; CR-3 p. 7; CR-4 p. 76; CR-4 p. 5.3 Also, in

connection with the second issue for review sought in this case, the appellate court’s

opinion does not mention that Colbert did not request findings of fact or conclusions of

law after the bench trial to have the court specify the factual and legal bases for its

decision to appoint the Department as conservator. Although the majority opinion refers

to Section 161.207 of the Family Code as the statutory legal basis for the trial court’s

decision to appoint the Department as conservator,4 the opinion fails to acknowledge that

such basis was not pled by the Department and no findings issued stating that.

         Further, with respect to the evidence in support of the court’s decision to appoint

the Department as sole managing conservator, the appellate court’s opinion omits

important relevant facts. In particular, the opinion fails to acknowledge many facts that

establish Colbert’s bad choices over many years that exposed her children to an unstable

life and environments with people who routinely committed unsafe activities.

         Ericka Colbert was born in 1978. RR-5, P-Ex. 10 p. 94. Over the course of the

first 11 years of Colbert’s life, her mother (Joann Colbert) was convicted 4 times for

prostitution and 2 times for burglary of a habitation.                              RR-4, P-Ex 6, p. 4 (1980

prostitution conviction); RR-4 P-Ex 10 p. 7 (1981 prostitution conviction); RR-4 P-Ex 10


3
  With respect to the child, J.D.M., it is requested that the court take judicial notice that the original petition found in
CR-4 at p. 5 filed on May 23, 2003 regarding D.N.C., J.D.M., E.D.C., T.L.J. and T.B.J. under cause no. 2003-
04414J represents the controlling petition at trial for J.D.M. After the petition was filed, on December 23, 2003, the
314th severed the cause regarding J.D.M. under cause no. 2003-04414J-C and ordered that the clerk “make certified
copies of all documents in Cause Number 2003-04414J” for filing under that cause number with respect to J.D.M.
CR-5 p. 27. Subsequently, after it was discovered that the 309th District Court had continuing exclusive jurisdiction
over a case involving J.D.M., the 309th assigned its case to the 314th under its cause number 2003-14864. CR-5 14.
The 314th then consolidated the case involving J.D.M. (which it previously severed and assigned as No. 2003-
04414J-C) to be consolidated with and renumbered under the cause number of 2003-14864. CR-5 p. 17.
4
  Colbert, 227 S.W.3d at p. 816.


                                                             3
p. 29 (burglary conviction committed 10/25/85); RR-4 P-Ex 10 p. 33 (burglary conviction

committed 10/19/85); RR-4 P-Ex 6 p. 1 (prostitution conviction committed 2/2/89); RR-

4, P-Ex 10 p. 14 (prostitution committed 4/27/89). Her father also was in prison many

times. RR Vol. 7, P-Ex. 10 p. 492. Colbert’s grandmother took care of her while her

mother was in jail. RR-3, p. 6; RR Vol. 7, P-Ex 10 p. 492 (Colbert reported her

grandmother took care of her and her siblings). Colbert’s grandmother was physically

abusive. RR Vol. 7, P-Ex 10 p. 492.

      In 1990, when Colbert was 12 years of age, her mother (Joann) and Ferguson (the

man who later fathered Colbert’s first child, D.N.C.) were both convicted for possession

of cocaine. RR-4, P-Ex 3, p. 2 (Ferguson’s conviction on guilty plea); RR-4, P-Ex. 6 p.

20 (Joann’s conviction on guilty plea); RR-5, P-Ex 10 p. 94 (Colbert’s DOB 7/18/78);

RR-7, P-Ex 10 p. 493 (family assessment narrative). The following year, 1991, Colbert’s

mother was again convicted for a cocaine related crime and Marlos Ferguson was

convicted for carrying a concealed weapon. RR-4, P-Ex. 6, p. 10; RR-4, P-Ex 3, p. 5.

      According to Colbert, she did not meet Ferguson until he was 21 years of age and

she was 14 years of age. RR-7, P-Ex. 10, p. 493. She reported she began a relationship

with him apparently because “everyone was doing it, so why not try.” RR-7, P-Ex 10, p.

493. Colbert became pregnant by Ferguson and gave birth to D.N.C. on February 9,

1993. RR-5, P-Ex 10 pp. 50 and 90. When Colbert was 15 years old her grandmother

died, and Colbert, who was the oldest of 5 children, became responsible to care for

D.N.C. as well as her four younger siblings. RR Vol. 7, P-Ex 10, p. 492 and 493.

      Within a year after D.N.C.’s birth, Colbert met Jesse Mosley and became pregnant


                                           4
from him with her second child, J.D.M., who was born on July 15, 1994. RR-7, P-Ex 10,

p. 493; RR-5, P-Ex 10 p. 92. About six months before J.D.M.’s birth, Jesse Mosley

committed a murder involving a deadly weapon and later was sentenced to 35 years for

this crime. RR-4, P-Ex 4 p. 1; RR-7, P-ex 10 p. 493.

       About five months after J.D.M.’s birth, Colbert gave J.D.M. to Mosley’s father,

Kenneth Williamson. RR-2, p. 166. Colbert indicated she gave him J.D.M., because she

was young, already had a child (D.N.C.), her mom was strung out on drugs and she could

not get a place of her own. RR-2, p. 69. She allowed Kenneth to keep J.D.M. even after

she got her life together. RR-2, p. 70.

       In 1995, when Colbert was 17 years of age, she became pregnant and later gave

birth to E.D.C. on May 9, 1996. RR-7, P-Ex 10, p. 493; RR-5, P-Ex 10, p. 91. Colbert

identified the father of E.D.C. under different names, and at one point said it was Jerry

Willis and that he was in jail. RR-2, p. 23 (At termination trial, identified as James

Arthur); RR-4, P-Ex 7 p. 22 (At Jackson’s criminal trial, identified as James Allen); RR-

6, P-Ex 10, p. 162 (during 1998 interview identified him as Jerry Willis & in jail).

       Three weeks after E.D.C.’s birth, Colbert began an “on and off” relationship with

Trenton Jackson [hereinafter “Jackson”]. RR-7, P-Ex 10, p 493. That same year, D.N.C.’s

father, Ferguson, received a 40 year aggravated robbery sentence. RR-4, P-Ex 3 p. 10.

       On June 3, 1997, Colbert gave birth to another child with Jackson, T.L.J.. RR-5, P-

Ex 10, pp. 91, 94, 212 and 701; RR-7, P-Ex 10 p. 493. Within 4 months of T.L.J.s birth,

Jackson committed a criminal offense involving cocaine. RR-4, P-Ex 5 p. 24.

       The following year, in the summer of 1998, Ericka gave birth to her fifth child


                                             5
(Tremain) and identified Jackson as the father. RR-7, P-Ex 10 p. 493; RR-4, P-Ex 7, p.

25. Tremain died when he was 12 days old and the cause of death was described by the

Department as “suspicious circumstances (Asphyxia)” but Colbert indicated, based on the

death certificate, that there had no been no determination of the child’s death. RR-6, P-

Ex 10 p. 383, and p. 167; RR-4, P-Ex 7 p. 25 and p. 55.

       The matter was referred to the Department. RR-6, P-Ex 10, p. 157. The

Department learned that Colbert was living in a motel room composed of 2 adults and 7

children (5 of the children were Colbert’s) with only one bed. RR-6, P-Ex 10 p. 160.

Tremain died on this single bed. RR-6, P-Ex 10 p. 160. D.N.C., who was 5 years old at

the time, told the Department she did not remember much, except that they woke up and

the baby was dead. RR Vol. 4, P-Ex 7 p. 26. The Department observed that E.D.C. had

old burn scars on his right shoulder and upper arm which Colbert explained occurred

when he sat down on a hot iron. RR-6, P-Ex 10 p. 165.

       Colbert told the Department that during this timeframe Tremain’s father (Jackson)

was on probation for selling drugs and her mother (Joann) was in jail for selling drugs.

RR-6, P-Ex 10 p. 162. Colbert admitted she had been involved with CPS before when

she was 14 years of age as a result of a drug raid at her aunt’s home, but she was unsure if

she had D.N.C. at the time. RR-6, P-Ex 10, p. 162. The Department determined that

Colbert had a history of unstable living arrangements and collateral information indicated

that she exposed her children to drug trafficking. RR-6, P-Ex 10 165.

       The Department interviewed Jackson on the same day as Colbert when he was

seen at Colbert’s motel. RR-6, P-Ex 10 p. 163. Jackson told the Department that he had


                                             6
problems between Colbert and his girlfriend and did not want to stay at her motel for fear

police would be called out due to fighting. Id. He said the motel was full of drugs. RR-6,

P-Ex 10, p. 163. He said he just came to visit his girlfriend. RR-6, P-Ex 10 p. 163. He

said that he was unemployed and denied any criminal history. RR-6, P-Ex 10 p. 163.

      Kenneth Williamson was interviewed a couple days later. RR-6, P-Ex 10, p. 164.

He said he had been caring for J.D.M., and Colbert had not visited J.D.M. for almost a

year. RR-6, P-Ex 10, p. 164. He told the Department that Colbert never had a stable

home, that there was drug trafficking around the children, the mother moved from place

to place and that he ended up getting J.D.M. several years previously because of fighting

and gun play in the home. RR-6, P-Ex 10, p. 164.

      Nonetheless, the Department did not take custody of Colbert’s children in 1998;

and, instead, provided long term monitoring through family preservation until December

2000. RR Vol. 6, P-Ex 10 p. 383 and p. 167. Colbert estimates she was with Jackson for

at least 9 months of that time frame, and stopped seeing him because he did not agree

with the way she lived her life. RR-2 pp. 30-31. During the Department’s involvement,

Colbert received services from a U of H project, her children received counseling,

Colbert completed parenting, and the Department helped Colbert secure a three bedroom

apartment with furniture. RR-6, P-Ex 10, p. 167. The final disposition by the Department

for the referral was “Unable to Determine-Risk Indicated.” RR Vol. 6, P-Ex 10 383.

      In the year after Tremain’s death, Colbert had her next child with Jackson, T.B.J.,

born on July 29, 1999. RR-5, P-Ex 10. p. 92 and 214. In October of 1999, a referral was

made to the Department alleging physical abuse by Colbert against her son, T.L.J., but an


                                            7
affidavit in the case indicates the Department concluded with the disposition “Unable to

Determine.” RR Vol. 6, P-Ex 10 383. That same year, Jackson went to jail on drug

related charges. RR-2, p. 32. Colbert was asked, since she had four children, after she

knew Jackson went to jail for such charges, was it safe to say that, knowing his habits she

chose to stay with him, and she replied, “yes.” RR-2, p. 32-33.

       On February 13, 2000, Jackson’s baby, T.J., was born.      RR-7, P-Ex 10, p. 924.

Colbert was not the mother. The mother was 17 years old. RR-6, P-Ex 10, p. 113.

       On July 18, 2001, Jackson committed another drug crime of delivery of cocaine

with a sentence of one year incarceration. RR-4, P-Ex 5, p. 11. About four months later,

Jackson committed a crime involving marijuana and was convicted. RR-4, P-Ex 5, p. 18.

       In April of 2003, several people lived with Colbert including her mother (Joann),

Kenneth Newman, Jackson, and her children (D.N.C., J.D.M., E.D.C., T.L.J. T.B.J.).

RR-5, P-Ex 9, pp. 7-9. Colbert knew Newman had a criminal record and drug problems.

RR-2, p. 38; RR-3 p. 16-17.

       On April 2, 2003, Jackson came to the house very late and brought his child T.J.

RR-5, P-Ex 9 p. 10. Colbert said she noticed bruises and scars on T.J. RR-4, P-Ex 7 p. 5.

Colbert said every time she got T.J. she was sick or had bruises and she would keep her

until she got well. RR-2, p. 65. She told Jackson the baby hated him and he needed to

get close to that child. RR-4, P-Ex 7, p. 44. Jackson confirmed that she told him that in a

later statement in which he referred to Colbert as “my gal.” RR-7, P-Ex. 10, p. 919.

        On April 4, 2003, Colbert said she was home all day and observed T.J. whining

that she wanted to go home. RR-4, P-Ex 7, p. 39. According to Colbert, she saw Jackson


                                            8
spank T.J. because she wet herself. RR-4, P-Ex 7 p. 8, 14 and 37. On April 5, 2003,

Colbert saw Jackson spank T.J. and bathed T.J. afterwards. RR-4, P-Ex. 7, pp. 10-11.

Colbert said she saw bite marks and bruises on T.J. when she bathed her. RR-4, P-Ex 7 p.

12; RR-2, p. 63-64; RR-7, P-Ex 10, p. 498; also see RR-2, p. 60-61. Colbert said she left

about 6 or 7 pm. RR Vol. 4, P-Ex 7, p. 53. According to Joann, Colbert was gone when

T.L.J. told her T.J. passed out. RR-4, P-EX 8, p. 13-14. T.J. was taken to a hospital and

Jackson was taken by police. RR-4, P-Ex 7, p. 16.

         The physical exam of 3 year old T.J. indicated T.J. had multiple contusions on her

body and face and a subdural hemotoma which were consistent with abuse. RR-4, P-EX

1 p. 34. A medical report also indicates Jackson’s abuse was not limited to T.J. as T.J.’s

mother reported that Jackson had been abusive to her. RR-4, P-Ex. 1, p. 32.

         In an interview of Jackson the same day as the incident, he said he used coat

hangers to spank the child and pushed her about 10 times, but claims he did not hit her

head. RR-7, P-Ex 10, p. 913.5 When asked who was there while he was hitting T.J.,

Jackson said, “My gal was there.” RR-7, P-Ex 10, p. 913; Attachment, Tab 18 (p. 5).

When Jackson described the incident, he indicated he began hitting her because she shit

on herself. RR-7, P-Ex 10, p. 914. He said he pushed her and said, “Get your ass in

there.” RR-7, P-Ex 10, p. 914. He indicated at one point when T.J. said she wanted to go

home, he said, “You IS at home! Wherever the fuck my home is, your goddam home so




5
 The transcription of Jackson’s interview on April 5, 2003 with HPD Juvenile Crimes appears almost at the end of
Petitioner’s Exhibit 10. It does not appear any reference is made to the evidence from this interview in the appellate
court’s opinion. A copy of it is included and attached to this brief under the Appendix at Tab 18.


                                                          9
quit asking me that shit.” RR-7, P-Ex 10, p. 915.6 He indicated T.J. fell when he pushed

her. RR-7, P-Ex 10, p. 916.

        Jackson also indicated at one point he told T.J., “Llook [sic.] at this ignant ass

girl!” I said, “This girl stupid just like her mamma.” RR-7, P-Ex 10 p. 913. He

indicated at that time, his “gal” was there, which a trier of fact could have reasonably

concluded was reference to Colbert. Id; See RR-4, P-Ex 7, p. 44 (Colbert confirmed she

told Jackson his baby hated him and he needed to get close to that child) (Appendix, Tab

17); RR-7, P-EX 10, p. 919 (Jackson said during his interview that his “gal” told him:

“you need to get closer to that girl. That little girl hates you.”) (Appendix, Tab 18).

        T.J. was officially pronounced dead 4 days after the incident on April 9, 2003.

RR-7, P-Ex 10, p. 935. The medical examiner noted a number of healing patterned

abrasions of grossly different ages. RR-7, P-EX 10, p. 937-38. The examiner declared

the cause of death as blunt force trauma to the head. R-4, P-Ex 5.p. 2.

        The matter was referred to the Department and an intake report indicates that

Jackson was interviewed by the Department. RR-5, P-Ex 10 p. 95. In one interview,

Jackson described other times when he spanked the children, including an incident when

the grandmother told him two of the children (J.D.M. and T.B.L.J) were humping and

doing explicit sexual intercourse and other sexual movements. RR-5, P-Ex 10 p. 95.

Jackson said he spanked the kids for that. RR-5, P-Ex 10 p. 95.

        D.N.C. was interviewed in May of 2003 and confirmed she saw her step sibling

6
  The appellate court’s opinion acknowledges Colbert’s children used crude language, and the opinion comments
“somewhat crude language is not a basis for terminating the parent-child relationship.” Colbert, 227 S.W.3d at p.
815. Nevertheless, the opinion does not comment on the crude and abusive language Jackson said he used toward


                                                       10
get a whipping for peeing on herself two times and that she was in the house. RR-7, P-Ex

10, p. 417. She indicated at one point the door was closed when T.J. was spanked and

when she came in she saw her step-sister on the floor not moving with a belt on the floor

next to her. RR-7, P-Ex 10 p. 417.

        Colbert was also interviewed. RR-7, P-Ex 10 p. 418. She denied being at the

house when Jackson spanked the children and when the ambulance was called. Id. She

did not believe Jackson caused the child’s death and believed the child died from injuries

she received when a ladder hit her in the head. Id. She described that Jackson spanked

the child 10 to 11 times with a belt and she told him not to spank the child more because

she would bruise. RR-7, P-Ex 10, p. 418. She indicated that Jackson had to be at his

mother’s house by 7:00 p.m. because it would violate his bond. RR-7, P-Ex 10 p. 419.

She stated her mom, Joann, posted his bond. RR-7, P-Ex 10, p. 419.

        On April 22, 2003, Jackson was released on bond under an order that conditioned

his release on the requirement that he remain at his residence from 7 pm to 9 am and not

be alone with children under 17 years of age. RR Vol. 5, P-Ex 10 p. 60. The Department

made note that Jackson was released on bond and indicated concern that Colbert might

not be protective. RR Vol.5, P-Ex 10 p. 95. As an apparent consequence of these

concerns, the Department signed a safety plan with Colbert and Joann in which they

agreed to ensure Jackson had no contact with the children until the criminal investigation

was completed. RR-7, P-Ex 10, p. 404 & p. 432. Nonetheless, Colbert allowed Jackson

to have regular contact with all of the children, and the Department removed the children


T.J. in the same home of these children.. See Appendix, Tab 18 (p.5)...


                                                        11
on May 27, 2003. RR-6, P-Ex 10 367; RR-7, P-Ex. 10, p. 404; RR-2, p. 34, 36 and 37.

      The Department initially placed the children with Colbert’s mother (Joann). RR

Vol. 4, P-Ex 7 p. 27-28. Nevertheless, the Department objected to Joann being around

the children once they found out about her criminal record. RR-3 7. The children were

taken from placement with Joann in December of 2003 and moved into foster homes.

RR-2, p. 45; RR-6, P-Ex 10 p. 379.

      The next month, in January of 2004, nine months after the death of T.J., Colbert

gave birth to twins, and Jackson was the father. RR-4, P-Ex 7, p. 19. The twins were

allowed to remain with her with the Department monitoring. RR Vol. 4, P-Ex 7 p. 19-20.

      In April of 2004, Colbert was called as a defense witness for Jackson at his

criminal trial. RR Vol. 4, P-Ex 7 p. 4. Colbert testified when T.J. first came to her home,

around April 3, 2003, she only saw minor little bruises and scars on her. RR Vol. 4, P-Ex

7 p. 5. When confronted with pictures of the child, she admitted there were bite marks on

T.J.’s inner thighs but claimed those were already there before the incident. RR Vol. 4,

P-Ex 7 p. pp. 11-12. She claimed she saw the bite marks when she bathed her after she

arrived. RR Vol. 4, P-Ex 7 p. 12. Colbert testified that she had complained to Jackson

before about bruises she had seen on T.J. RR Vol. 4, P-Ex 7 p. 13.

      She further testified that she saw Jackson spank T.J. with a belt once on Friday,

and T.J. was okay afterwards. RR Vol. 4, P-Ex 7 p. 6-7. She said she saw Jackson spank

T.J. a second time on Saturday and she bathed her afterwards. RR Vol. 4, P-Ex 7 p. 10-

11. She said she sat down on a couch next to T.J. after the spanking and she was okay.

RR Vol. 4, P-Ex 7 p. 14. After talking with her, Colbert testified that she left to take a


                                            12
cousin home. RR Vol. 4, P-Ex 7 p. 15-16. When she returned to the house, T.J. was at

the hospital and Jackson was in a police car. RR Vol. 4, P-Ex 7 p. 16.

       On cross-examination at the criminal trial, Colbert admitted she told D.N.C. she

had a big mouth and that she should keep it shut. RR Vol. 4, P-Ex 7 p. 30 and p. 55 (on

redirect, she said she told her that because a CPS worker told her she talked too much).

When asked if D.N.C. had a hard time coping with T.J.’s death, she said, “when she was

at home, she didn’t have no problem with it.” RR Vol. 4, P-Ex 7 p. 31. Colbert also

admitted after the incident D.N.C. and some of the other children were required to sleep

in the master bedroom where T.J. was beaten. RR Vol. 4, P-EX 7 p. 31. When asked if

she knew D.N.C. had nightmares about having to sleep in that room, Colbert testified that

D.N.C. told her she told CPS that so she could go home. RR Vol. 4, P-Ex 7 p. 31-32.

       Colbert further testified that T.J. was not scared of Jackson, but later admitted that

T.J. always whined since she was little that she did not want to be around Jackson. RR

Vol. 4, P-Ex 7 p. 41 and p. 42. She also knew that T.J. had bit Jackson in the face. RR

Vol. 4, P-Ex 7 p. 43. She also admitted she had told Jackson that the baby hated him and

he needed to get close to the child. RR Vol. 4, P-EX 7 p. 44.

       Colbert also testified of an excuse she suggested to homicide of a possible cause of

T.J.’s death. RR Vol. 4, P-Ex 7 p. 45. She said it was very hot in the house and that she

believed the baby passed out in her bedroom. RR Vol. 4, P-Ex 7 p. 45. She explained the

baby got hot, fell, hit the coffee table, had a seizure and died. RR Vol. 4, P-Ex 7 p. 48.

       When Colbert was asked how hard Jackson spanked T.J., she said that he did not

hit her hard and that he maybe hit her 7 or 8 times on her bottom while she was standing.


                                             13
RR Vol. 4, P-Ex 7 p. 51. She indicated the spankings were like bare taps. RR Vol. 4, P-

Ex 7 p. 52. She indicated that Jackson told T.J. to go to a corner. RR Vol. 4, P-Ex 7 p.

52. She said this occurred around 6 or 7 pm. RR Vol. 4, P-Ex 7, p. 53.

       Joann, Colbert’s mother, was also called at the criminal trial by Jackson’s

attorney. RR Vol. 5, P-Ex 8 p. 4. During the criminal trial, she stated that she and her

daughter had come regularly for the hearings involving Jackson and that she supported

Jackson. RR Vol. 5, P-Ex 8 p. 26. She said that she supported Jackson, because she did

not believe he did that to his baby. RR Vol. 5, P-Ex 8 p. 49. When asked if she was at a

prior hearing in which it was discussed that Jackson had beaten the child to death and was

a threat to the other minor children, Joann said, “I can’t recall.” RR Vol. 5, P-Ex 8 p. 27.

Joann testified that Kenneth Newman had not been living in her home since April of the

prior year. RR Vol. 5, P-Ex 8 p. 51. Joann said she never heard Jackson say a curse word

to his children. RR Vol. 5, P-Ex 8 p. 59.

       Kenneth Newman was called as a witness at Jackson’s criminal trial by the State’s

attorney. RR Vol. 5, P-Ex 9 p. 4. He said he had known Jackson for 8 or 9 years, and

characterized him as Colbert’s boyfriend. RR Vol. 5, P-Ex 9 p. 6. He said he did not see

Jackson spank T.J. but heard it going on every day while the child was there. RR Vol. 5,

P-Ex 9 p. 11. He told Colbert and Joann that Jackson was spanking the child two or three

times a day, but clarified that they knew Jackson was spanking T.J. RR Vol. 5, P-Ex 9 p.

30. He said nobody did anything, because it was his child. RR Vol. 5, P-Ex 9 p. 31.

       On the day of the incident, Newman indicated he believed it was getting worse

and the baby was getting beaten harder and he knew something bad was happening. RR


                                            14
Vol. 5, P-Ex 9 p. 78 and 79. Newman said there had been a lot of pressure put on him by

Colbert and Colbert was still defending Jackson. RR Vol. 5, P-Ex 9, p. 27. Contrary to

the testimony of Joann, Newman stated that he was not out of the Colbert’s home until

the prior Monday and had been at the house from the time of the incident until that time.

RR Vol. 5, P-Ex 9 p. 42. Newman saw a connection between him coming down to testify

at the criminal trial and being put out of the Colbert home RR Vol. 5, P-Ex 9 p. 59.

Contrary to Colbert’s testimony, Newman testified that Colbert was in the home when

Jackson was beating T.J. and she had all the knowledge he had. RR Vol. 5, P-Ex 9 p. 56.

       The Department took custody of the twins after Jackson was convicted for

murdering T.J. RR-4, P-Ex 5; CR-3 2. The Department changed its plan about

reunification, because Colbert minimized Jackson’s role in T.J.’s death and her criminal

trial testimony contradicted earlier statements. RR-2, p. 217-18; RR Vol. 6 P-Ex 10 378.

Even after his conviction, Colbert said Jackson did not do it. RR-2, p. 218-20.

       In May of 2004, a therapist reported that Colbert was more accepting of the fact

that Jackson was responsible for T.J.’s injuries, but the therapist also reported Colbert

said she did not support Jackson through his arrest and trial. RR-6, P-Ex 10, p. 178. Also,

as late as August 2004, the caseworker noted that Colbert continued to assert that Jackson

did not hurt the child. RR-2, p. 221-222.

       In July of 2004, it was reported that D.N.C. was in a safe placement with a foster

parent trained and licensed to care for abused and neglected children. RR Vol. 6 P-Ex

10 380. D.N.C. was prescribed Zoloff and is in therapy twice a month. RR Vol. 6, P-Ex

10 380. She was making progress in her oppositional and aggressive behavior. RR Vol.


                                            15
6, P-Ex 10 380. She also passed the third grade. RR Vol. 6, P-Ex 10 380.

       The Department’s five suits against Colbert with respect to all seven of her

children were tried together on November 18, 2004.           RR-2, p. 4.     The reporter’s

transcription of the witness testimony is contained at volumes 2 and 3. Ten exhibits were

admitted, without objection, at the commencement of the trial and these exhibits are

contained in volumes 4, 5, 6 and 7 of the record. RR-2, p. 16 and 21.

       Colbert was the first witness to testify at the trial. RR-2 pp. 9-115. She stated that

CPS got involved with her after the death of her baby (Tremain) because of her living

conditions. RR-2, p. 25. She said that the Department had her get a GED, and helped her

get housing and furnishings. RR-2, p. 28.

       Colbert said that she did not know that Jackson was selling drugs until he went to

jail for it in 1999, and knew he went to jail twice. RR-2, p. 32. Nonetheless, she admitted,

since she had four other children with him after that, it was safe to say she chose to stay

with him, notwithstanding his drug habit. RR-2, p. 33.

       Colbert said at the time of the incident involving T.J., Jackson was living with her

as well as her mother (Joann), her mother’s fiancé (Kenneth Newman), and her kids. RR-

2, p. 35 and 37. Colbert said her mom, Kenneth and Jackson had criminal records. RR-

2, p. 37-39. She knew that Jackson’s record included cocaine possession and selling.

RR-2, p. 39. Colbert admitted she allowed her children to be around Kenneth whom she

knew had a criminal record, but claimed she did not know what type criminal record.

RR-2, p. 38-39. Colbert said that Newman moved out in April 2004. RR-2, pp. 77-78.

       Colbert admitted after the Department got involved with her with respect to T.J.’s


                                             16
death she agreed with the Department not to have Jackson around the kids. RR-2, p. 34

and p. 37. Nonetheless, she said she did not do that and Jackson was in her home for

about two weeks before the Department found out. RR-2 p. 43. Colbert said she let

Jackson remain, because she did not believe he did it. RR-2, p. 37. Colbert said the

Department removed the children after they found out he remained. RR-2, p. 43.

       Colbert said that while she was participating in services with the Department, she

did not have contact with Jackson because he went to jail after violating a pretrial order.

RR-2, p4-46. Colbert said she did not testify on Jackson’s behalf but admitted she was

called as a witness by Jackson’s attorney. RR-2, pp. 47-48.

       When asked how T.J. died, Colbert said she did not know. RR-2, p. 48. She

admitted in her prior testimony she testified that it could have happened that T.J. fell and

hit her head when she was standing in a corner because it was hot. RR-2 p. 49. Colbert

said it would surprise her if Jackson said he disciplined T.J. by taking a wooden hanger

and spanking her hand. RR-2, p. 52; See RR-7, P-Ex 10 p. 912 (Jackson confirms in

interview he used coat hangers to spank T.J. in the hand); RR-7, P-Ex 10 p. 913 (Jackson

confirmed his “gal” was there at the time). Colbert stated when T.J. was spanked, D.N.C.

was in her room, her mother was at work and her mother’s fiancé was outside. RR-2, p.

72. Colbert said she bathed T.J. after the spanking. RR-2, p. 60.

       When asked if she saw any marks on T.J.’s body during the bath, she said, “I

wasn’t really paying attention.” RR-2, p. 60. She admitted, however, that she had

indicated in evaluation before that she saw marks on the child’s body. RR-2, p. 60-61.

When confronted with pictures, Colbert said the only mark she really saw was the one on


                                            17
T.J.’s head. RR-2, p. 61. In later testimony, she admitted to seeing bite marks. RR-2, p.

63. She explained that Jackson told her the marks were from playing rough with her

cousins. RR-2, p. 64. When asked about the bruise on T.J.’s eye, Colbert said: “The

bruise on her forehead? The stairs hit her.” RR-2, p. 110-11.

       In later testimony, Colbert said a lot of stuff came out in Jackson’s criminal trial

and indicated she had not seen bruises on her like that. RR-2, p. 79. She claimed that

they must have happened when she was gone. RR-2, p. 79. Colbert claimed she learned

everything about the incident concerning T.J. second hand and did not hear Jackson’s

taped confession. RR-2, p. 86.

       Colbert said she had already been away from the house for approximately two

hours when the ambulance came for T.J. RR-2, p. 82. She said she talked to T.J. before

she left, and nothing was wrong. RR-2, p. 83. Colbert said Jackson told her the child

passed out, and she believed him. RR-2, p. 79.

       Colbert said her twins were ten months old and Jackson never had contact with

them because he was incarcerated. RR-2, 112. Colbert said her children, J.D.M. and

D.N.C., have nightmares and that D.N.C. said it was because of what happened to T.J.

RR-2, p. 76. Colbert said that that D.N.C. had been receiving therapy in CPS care and

admitted the therapist was helping D.N.C. deal with some of the problems that occurred

in Colbert’s household. RR-2, p. 99. Colbert said her other children were doing okay

regarding the incident. RR-2, p. 77.

       Colbert admitted she knew T.L.J. had been hospitalized for two and a half weeks

and had attempted to jump from a second floor window before; however, she attempted


                                            18
to explain his behavior by saying that D.N.C. dared him to jump. RR-2, p. 105 and 106.

Colbert said that J.D.M. lived the majority of his life with his grandfather. RR-2, p. 69.

She said that J.D.M. was at her home at the time of the incident involving T.J. because

she told him he was old enough to decide for himself whether to stay with her. RR-2, p.

70. Colbert said the reason she believed J.D.M. felt he needed to protect the other

children from harm was because he had been taught that since he was young. RR-2, p. 92.

       Colbert claimed she had not used physical discipline on her children for six years.

RR-2, p. 54. Colbert said that E.D.C. failed kindergarten, D.N.C. was 2 years behind in

school while living with her and her children had problems in school. RR-2, p. 71-72.

       Colbert said she loved her children with all her heart and soul. RR-2, p. 84. She

testified that if she got her children back she would keep all their fathers away from them.

RR-2, p. 84. Colbert said she had a three-bedroom home and the Department had seen

her home. RR-2, p. 102 & 103. She said she decided with her mother, when the kids

come home that her mom would move out. RR-2, p. 102. She said she had a GED and

nurse’s aid’s license. RR-2, p. 84. She said she earned $7 an hour or $280 a week. RR-2,

p. 87-88. She said there are agencies that can help her with her children and indicated

she would contact them if she had her kids. RR-2, p. 88.

       Brenda Hornady was the second witness to testify. RR-2, p. 116. She is a licensed

professional counselor with a master’s degree in counseling and a Texas license. RR-2, p.

116. She got involved after Community Counseling asked her to take the case upon a

Department referral. RR-2, p. 116.

       She assessed T.B.J. in August 2003 and began seeing E.D.C., D.N.C. and T.L.J. in


                                            19
October. RR-2, p. 117. Brenda said she never saw J.D.M. and knew he lived outside of

his mother’s home. RR-2, p. 149.

       She said most of the problems identified were pre-CPS. RR-2, p. 119. Brenda said

the children had agreed not to talk about the incident involving T.J. and would say, “We

can’t talk about this.” RR-2, p. 132-33. Brenda said the children talked about being

physically disciplined. RR-2, p. 133. They said they would get whippings. RR-2, p. 133-

34. In particular, T.B.J. and T.L.J. said they would get whippings. RR-2, p. 132. They

did not say who gave the whippings. RR-2, p. 134.

       With respect to D.N.C. she diagnosed her with post traumatic stress disorder,

major depressive disorder. RR-2, p. 122. Her diagnosis was then amended to traumatic

stress disorder, ADHD, and borderline mental retardation. RR-2, p. 123. Brenda said that

D.N.C. verbalized the fact she was having nightmares, and she was afraid because of the

death of her stepsister. RR-2, p. 123.

       Brenda concluded that a lot of D.N.C.’s behaviors stemmed from attention getting.

RR-2, p. 124. For example, she admitted in therapy that she said a lot of untrue things to

the worker just to get attention. RR vol. 2, p. 124. Brenda said this came about because

D.N.C. felt badly about what happened and felt like it was her fault. RR-2, p. 124. When

asked if she felt badly about what happened to T.J., Brenda said, “No – about the children

being taking into CPS custody.” RR-2, p. 124. “She felt like it was her fault.” RR-2, p.

124. The other kids verbalized that it was her fault. RR-2, p. 125. Brenda said that she

had concerns about D.N.C. testifying at trial, because she wanted to come home, and with

everything hinging on D.N.C. the stress might be too much. RR-2, p. 136-37.


                                           20
      Brenda said she had opportunity to go to the home environment. RR-2, p. 126.

She observed there were a lot of people in the home of Colbert and her mother. RR-2, p.

127. She said the house was orderly, but there was chaos because children were always

present. RR-2, p. 127. Brenda said she could not make an assessment of the home,

because she did not know what went on when she was not there. RR-2, p. 128.

      Brenda said after working with the children for over a year, she did not have an

opinion as far as parental termination, but thought the children could deal with it if her

rights were terminated. RR-2, p. 129. Brenda stated that the children were very much

bonded to their mother. RR-2, p. 130. Brenda indicated that the children had been getting

some of what they needed in their home, but they had to have structure, stability and

consistency in their lives in order to function well. RR-2, p. 130. She said it was not

optional, they needed that. RR-2, p. 130.

      The third witness to testify was Kenneth Williamson, J.D.M.’s paternal

grandfather. RR-2, p. 166. He said that J.D.M. was 10 years old and currently lived with

him. RR-2, p. 166. Kenneth said he lived with him from when he was about 5 months

old until he was 8 or 9. RR-2, p. 167. Kenneth said when he was 5 months old he did not

like the environment that J.D.M. was living in because of the traffic and atmosphere.

RR-2, p. 167. Kenneth had suspicion there was drug trafficking in Colbert’s home. RR-

2, p. 168. Kenneth said Colbert and her biological brother lived there at the time. RR-2,

p. 168. Kenneth did not have first hand knowledge but had been told about altercations

or about police coming out. RR-2, p. 169. Kenneth said Colbert would visit J.D.M. one

or two hours in his home. RR-2, p. 170. Kenneth said J.D.M. always saw Colbert as a


                                            21
mother figure and described their bond as close. RR-2, p. 170.

      Kenneth said that he believed Colbert loved all her kids, but made bad choices in

her life. RR-2, p. 171. When J.D.M. was 8 or 9, in 2002, he wanted to be with his sisters

and brothers and his mother. RR-2, p. 171. J.D.M. did not want to deprive him of that

and allowed him to go back to his mother. RR-2, p. 172.

      The fourth witness was David Cooney, the guardian ad litem for the children who

had been on the case since August of 2003. RR-2, p. 180. He went to family visits,

looked at the history, criminal histories, talked to relatives, etc. RR-2, p. 81. With the

relatives they visited, he found most had limited resources to take on five to seven

children. RR-2, p. 182. When he first got involved the goal of CPS was family

reunification, and Child Advocates initially backed that. RR-2, p. 187-88.

      When David first started the case, the five children were at home with their mom

and maternal grandmother. RR-2, p. 182. Also, Kenneth Newman was still in the house.

RR-2, p. 182. David said they began to have concerns because both Kenneth and the

grandmother in the home had extensive criminal records. RR-2, p. 182. They did not

believe they were appropriate to be watching the children. RR-2, p. 183. Also, David

was very concerned that the mother would never admit, or, at least, would minimize the

role Jackson played in the death of T.J. and did not acknowledge any responsibility to

protect the child. RR-2, p. 183. When Colbert was told D.N.C. was having nightmares

or suicidal thoughts, Colbert dismissed that by saying D.N.C. was just making that up

because she wanted to go home. RR-2, p. 184. Nevertheless, at that time, D.N.C. was

home with the maternal grandmother. RR-2, p. 184.


                                            22
       David also said Colbert never admitted there were bruises on the child. RR-2, p.

184. Nevertheless, in the 4C’s evaluation she indicated she saw bruises. RR-2, p. 184-

85. David also had concern because Colbert had another child die in the home, in 1998,

and had been given 28 months of family services in which parenting was involved and in

which she said she had too many children too early in life.                RR-2, p. 185.

Notwithstanding, she gave birth to T.B.J. the next year. RR-2, p. 185.

       David felt the services given to Colbert had not been effective. RR-2, p. 185. For

example, she indicated she needed to get her life in order to take care of four children

who she fathered from men who were out of the picture and wound up in prison.

Nonetheless, she continued to lead that lifestyle. RR-2, p. 186. David said to the extent

that Jackson became such a big part in her life, he believed she continued the same

lifestyle. RR-2, p. 186. David said that Colbert received the same sort of services in 1998

that she received for the current case. RR-2, p. 187.

       David said that Child Advocates began to believe parental termination was the

appropriate plan for the children in December 2003 after they researched and found out

more information about the situation at home. RR-2, p. 188. Also, at a PPT, it was

revealed that Newman was still living in the home. RR-2, p. 188. David said he believed

the children loved their mom, but they did not show affection in the way that he thought

small children would. RR-2, p. 190-91.

       In May of 2004, David spoke with the mother and “she was still denying that she

thought Trent, Sr. had any – had caused the death of the baby.” This was after the

criminal case had been finalized. RR-2, p. 191. David believes Colbert still minimized


                                             23
and didn’t take responsibility for what she should have done for T.J. RR-2, p. 192.

      David said he believed the children were adoptable. RR-2, p. 193. David said he

believed their behavior was good with the foster parents. RR-2, p. 194. Nevertheless, he

indicated the children indicated some defiant behaviors. RR-2, p. 194-95. David said the

children have not talked about anything from their home and, in fact, TB would say, “I’m

not supposed to talk about that.” RR-2, p. 195. David said the children’s school work

improved. RR Vo. 2, p. 210.

      The fifth witness to testify at trial was, Adrienne Aiken, the Department

caseworker for all seven children. RR-2, p. 216. She said the twins were together in a

legal risk placement. RR-2, p. 216. T.L.J. and E.D.C. were together in a private foster

home, T.B.J. was in a private foster home, and D.N.C. was in a private foster home. RR-

2, p. 216-17. Adrienne said that the Department’s initial plan was for reunification. RR-

2, p. 217. She indicated the Department changed its plan upon incidents that happened

over time and Colbert’s continued minimization of the role of Jackson and the mother’s

role. RR-2 , p. 217. In particular, during the criminal trial, statements the mom made in

the previous year were contradicted. RR-2, p. 217-18.

      Adrienne said that Colbert told her the same thing that he told David, indicating

even after the criminal conviction came down that Jackson did not do it. RR-2, p. 218.

She also noted that the grandmother’s belief was the same. RR-2, p. 218-19. Specifically,

Adrienne recalled the following conversation:

      When [TLJ] asked the question of his mother was Big Trent going to be in
      jail for a long time, did he – and then Trent – [TLJ] made the statement – he
      said, “When my daddy killed that baby.”


                                           24
              And they stopped him and said – and the grandmother said, “Do you
       believe that’s what happened.?”

              And he said, very emphatically, “Yes, I do.”

               And the grandmother said, “Well, you know how you can change
       that thought?”

RR-2, p. 219. Adrienne indicated this was after the criminal trial in May. RR-2, p. 220

[L11-14]. This is confirmed in a CPS Monthly Summary in Petitioner’s Exhibit 10. RR

Vol. 7, P-Ex 10, p. 421. In the summary, it adds T.L.J. looked at his grandmother after

the above comment and said, “Two Wrongs don’t make a right.” RR-7, P-Ex 10, p. 421.

       Adrienne said she does not believe Colbert thinks Jackson killed TJ. RR-2, p. 228.

Adrienne indicated the mom still “continued to maintain all along that Trent did not kill

the baby.” RR-2, p. 220. As late as August, four months after the criminal trial, and nine

months after therapy, she was still sticking to her story that he did not do this to the child.

RR-2, p. 221 and p. 222. She said at the current termination trial, during Colbert’s

testimony, was the first day she had heard her admit that Jackson could have hurt T.J.

RR-2, p. 220. Adrienne said that this concerned her, because if Colbert did not believe he

did it given all of the evidence, she would have concern for the safety of the children and

what they would be exposed to. RR-2, p. 221. Adrienne said she did not believe the mom

had made a great deal of progress in her nine months of therapy. RR-2, p. 22.

       Adrienne said since she had been on the case she had been to all of the mom’s

visits with the children. RR-2, p. 223. She said that the children love their mother. RR-2,

p. 223. Nonetheless, she did not see a big bond, because there was not a lot of nurturing.

RR-2, p. 223. She believed the children had more excitement in seeing their grandmother


                                              25
than their mother. RR-2, p. 223. She said the mother was not nurturing to the children.

RR-2, p. 223. She said she had seen them move up to her and try to get her attention and

get totally ignored. RR-2, p. 223. She saw D.N.C. demand attention or ask questions and

the mother would not answer the questions. RR-2, p. 223. She indicated some of the

questions had to do with the mother and the mother’s relationship with Jackson, but

Colbert indicated she should not have to be answering those type questions. RR-2, p. 224.

       Adrienne stated that she believed there was overwhelming evidence to show that

the child was abused in Colbert’s presence, according to what they know, and she

believed she failed to be protective. RR-2, p. 230. Adrienne testified that she believed

the mom’s rights should be terminated, because she believed all the children had been

physically abused and emotionally neglected. RR-2, p. 239. She said they see the results

of that on an ongoing basis through the therapists and with her visits with the children.

RR-2, p. 239. Adrienne said the way the children socialize tell her a great deal about

what they had been exposed to. RR-2, p. 240. For example, she had seen the children

respond in negative ways; such as by telling their teachers to “kiss my butt” and other

graphic language. RR-2, p. 241.      She noted that T.L.J. was placed in a hospital after

threatening to kill a child at school. RR-2, p. 241.

       Adrienne said the children had verbalized some of their nightmares. RR-2, p. 241.

They talk about the fact of being afraid that they’re going to be hurt. RR-2, p. 241. They

talk about nightmares about the baby dying. RR-2, p. 241-42. She indicated D.N.C.,

T.L.J. and E.D.C. had nightmares concerning those kinds of things. RR-2, p. 242.

       When the child’s attorney was questioning Adrienne, he commented that they had


                                             26
not heard anyone say that the mother physically abused the children herself. RR-2, p.

243. Adrienne disagreed and said, “I’ve heard it from the children” and qualified she

meant a whipping with a belt. RR-2, p. 243.

      Adrienne visited Colbert’s home but determined she had not gotten appropriate

housing and she saw no proof that she had a job that has income. RR-2, p. 246. She was

concerned about the emotional well-being of the children if they had to go back to the

house where the death occurred. RR-2, p. 247. Adreinne said she believed the children

were adoptable. RR-2, p. 227.

      The sixth witness to testify was Kenneth Newman after the defense rested. RR-2,

p.251. He stated that he was not currently living with Colbert. RR-2, p. 253. He said that

he moved out in January. RR-2, p. 254. He said that he lived there about a year. RR-2, p.

254. He said that he was Colbert’s mother’s ex-boyfriend. RR-2, p. 254. He was at the

house because he was Colbert’s mother’s boyfriend. RR-2, p. 254.

      Kenneth said that Colbert was not at the home when the ambulance arrived for T.J.

RR-2, p. 254. He believed Colbert had been gone for two or three hours. RR-2, p. 254.

He said that T.J. was alright when Colbert left. RR-2, p. 255. Kenneth said he heard the

baby crying after Colbert left when Jackson was spanking or beating the baby. RR-2, p.

255. Kenneth said he did not do anything because Jackson told him it was his child and

he disciplined the way he wanted. RR-2, p. 256.

      When asked if he believed Jackson beat the child to death, Kenneth said he did not

see it but thought it was the cause of it. RR-2, p. 256. Kenneth said in the year he lived

with Colbert he did not see her whip the children. RR-2, p. 256. He initially said Colbert


                                           27
was not a good mother but then changed his answer and said she was a good mother. RR-

2, p. 256. He said that Jackson was not a good father. RR-2, p. 256.

       Kenneth said that every day the baby was there, Jackson spanked T.J. RR-2, p.

258. Kenneth initially said that Colbert wasn’t there most of the time, but then when

asked whether she was there any of the times, he said she was. RR-2, p. 259.

       Kenneth stated that he had concern when he saw T.J.and Jackson always locked

behind the door. RR-2, p. 262. He also had concern about her being spanked for no

reason. RR-2, p. 262. He said he could hear the licks even though the locked door. RR-

2, p. 262-63. He said he could hear the child crying. RR-2, p. 263.

       Kenneth said he is no longer the boyfriend of Colbert’s mom because he felt like

his criminal background wouldn’t get the grandkids back and he did not want to be the

cause of them not getting them back. RR-2, p. 265. Kenneth said he was together with

Colbert’s mom for eight years, but they were through at the trial. RR-2, p. 265.

       Kenneth said if Colbert testified she put him out because he was still doing drugs,

that would be true. RR-2, p. 266. Nonetheless, Kenneth said he was not doing the drugs

in the house. RR-2, p. 267. When asked how long he had been doing drugs that she was

aware, Newman responded “I’d been doing drugs awhile.” RR-2, p. 269.

       The seventh witness to testify was Joann Colbert, the mother of Colbert and

grandmother of the children at issue. RR-3, p. 5. She said she raised Colbert and is

helping her raise her children. RR-3, p. 5. She said she has been living with Colbert for 3

years. RR-2, p. 6. Joann said the children have been fed and clothed and Colbert was a

good mother. RR-3, p. 6. She said that Colbert would not whip her children. RR-3, p. 7.


                                            28
Joann said she wanted her grandchildren back very badly RR-3, p. 11.

      Joann said she was there when the incident occurred in which T.J. died. RR-3, p.

8. She said that Colbert had nothing to do with it and was not even home. RR-3, p. 8.

She believed Colbert had been gone about two or three hours before the ambulance came.

RR-3, p. 9. Joann said she saw Jackson talking or disciplining T.J. during the time

Colbert was gone. RR-3, p. 9. Nevertheless, she indicated she was working night shifts

and when she would get home she maybe took a bath and went straight to sleep. RR-3, p.

13. She said she never knew Jackson was whipping T.J. RR-3, p. 12.

      When asked if she believed Jackson did it, Joann said, “yes.” RR-3, p. 14. Joann

said she believed that Jackson did it because Kenneth told her he did it. RR-3, p. 24.

Joann said in the year that she lived with Kenneth before trial, she never talked to him

about the incident. RR-3, p. 24-25.

      Joann also said that she was aware Jackson sold drugs prior to coming back and

living in their home. RR-3, p. 15. When asked if she thought that was appropriate for

Colbert to then let this man back in if he’s a drug dealer, JoAnn responded, “no.” RR-3,

p. 15. Joann said that Jackson told her he did not sell drugs anymore. RR-3, p. 15.

      Joann said that she was aware CPS did not want Colbert to have Jackson around

the children when he was criminally charged. RR-3, p. 15. She admitted her daughter

was not protective by allowing Jackson to continue to be around the kids. RR-3, p. 15-16.

Joann also said she did not think it was okay for her daughter to allow Kenneth to remain

in the home when she knew he had drug problems. RR-3, p. 16.

      Joann said she never heard Jackson use bad language with the children. RR-3, p.


                                            29
20. Joann said she did hear him tell T.J. to “shut up” the day “that the accident happened”

and heard T.J. cry. RR-3 p. 22. Nevertheless, she believed the baby was crying because

he was fussing at her to shut up. RR vol 3, p. 22. Joann said she never heard Jackson

physically discipline the child. RR-3, p. 22.

                              SUMMARY OF ARGUMENT

       The first two issues brought in this petition concern an important legal question

which has been the subject of numerous inconsistent appellate decisions, and which this

court recently resolved during the pendency of this proceeding in In re J.A.J., 51 Tex.

Sup. Ct. J. 107, 2007 WL 3230169, *6 (Tex. 2007). Namely, the present case involves

the legal question of whether reversal of parental termination invokes automatic reversal

of an order granting the Department’s appointment as managing conservator when no

assigned error is brought challenging conservatorship. This court decided in In re J.A.J.

that an order granting conservatorship, absent assigned error, is not automatically

reversed with reversal of parental termination. Such holding then is inconsistent with the

resolution in the present case and at issue in the first two issues of this request for review.

       Moreover, in connection with the second issue in this petition, this court clarified

in In re J.A.J. that when a court grants parental termination, the court’s decision to grant

conservatorship to a non-parent under section 153.005 of the Family Code is a claim for

relief with elements and standards of proof independent of parental termination. This is in

conflict with the resolution reached in the appellate court’s opinion of this case which

apparently determined its disposition on parental termination had a dependent connection

to the court’s decision on conservatorship. Therefore, because this appeal presents issues


                                              30
on a material legal question of law which this court decided in conflict with the appellate

decision at issue in this case, there is jurisdiction and need for this court to review this

case and correct the error in the appellate court’s decision.

       Moreover, the third issue presented in this petition concerns the appellate court’s

errors in its factual sufficiency review to support its reversal of the court’s decision that

parental termination was in the best interest of J.D.M. Namely, in the section reciting the

evidence relevant to the trial court’s finding on best interest, the appellate court’s opinion

omits a large amount of relevant evidence and disregarded proper inferences and

credibility conclusions that the trier of fact could have been reached based on such

evidence to support a firm belief or conviction that termination of Colbert’s parental

rights was in J.D.M.’s best interest.

       There are many examples of omitted evidence. Comparing the statement of facts

above against the opinion of the appellate court indicates the appellate court’s opinion

applied an improper review of the factual sufficiency of the evidence by omitting

important evidence relevant to the trial court’s best interest finding. Nevertheless, the

most egregious example is the exclusion of Jackson’s statements to law enforcement on

the day he was arrested for abusing T.J. and which appeared in Petitioner’s Exhibit 10.

This statement is included under Tab 18 of the appendix to this brief. This statement

reveals that Jackson made clear Colbert was with him during his abuse against T.J.,

something which another member of the household, Kenneth Newman, also confirmed.

       In his statement, Jackson describes how he used the wooden part of a coat hanger

to pop his 3 year old daughter, T.J., in her hands, pushed her about 10 times into a


                                             31
bathroom calling her an “ignant ass girl” “stupid just like her mamma,” and importantly

confirmed that his “gal” was with him during this abuse. The reference to his “gal”

obviously was a reference to his girlfriend (Colbert) whom he was living with at the time

and this became crystal clear when Colbert testified at Jackson’s criminal trial. At his

criminal trial, Colbert confirmed that she told Jackson that his baby daughter T.J. hated

him and he needed to get close to that child,7 and that was the same statement that

Jackson said during his interview was told to him by his “gal.”

          Moreover, Jackson’s statement reveals that he was verbally abusive. He admitted

he talked to his child T.J. in a “wrong way,” and said that when she fussed about wanting

to leave Colbert’s place, he told her, “You’re- you’re goddamn ass ain’t going home! . . .

Wherever the fuck my home is, your goddam home so quit asking me that shit.” The

appellate court’s opinion acknowledges that the Colbert’s children said cuss words and

opined that was of no consequence; however, no comment is made about Jackson’s cuss

words which he admitted he said around at least one of his children in Colbert’s home.

          The appellate court’s factual sufficiency review is subject to this court’s

jurisdiction, because the omissions of evidence as well as disregard for proper inferences

indicates the appellate court applied factual sufficiency review in a manner inconsistent

with the manner this court indicates must apply. Moreover, by excluding evidence and

inferences that confirmed Colbert allowed people into her home around her children who

committed jeopardizing activities and inappropriate behaviors, the appellate court’s

review appears to misinterpret what supports a court’s finding that termination is in a

7
    Appendix, Tab 17.


                                             32
child’s best interest. The appellate court’s misconstruction of the statutory meaning of

best interest is something this court has jurisdiction to review and which is very important

to the proper development of this State’s law in protecting abused and neglected children.

It is, therefore, respectfully requested that this court grant this request for review and

reverse the appellate court’s decision.

                                          ARGUMENT

ISSUE NO. 1: Did the appellate court have authority to reverse and remand the
trial court’s order that appointed the Department as sole managing conservator of
the child, J.D.M., even though no assigned error was brought challenging the
findings in support of the appointment of the Department as sole managing
conservator and this issue was not preserved for review at the trial court?

       The opinion of the court of appeals in this case decides, inconsistent with a recent

decision of this court, as well as other courts of appeals, that reversal of the order that

terminated Colbert’s parental rights automatically invoked reversal of the court’s order

appointing the Department as conservator even though Colbert made no challenge to the

court’s order on conservatorship by assigned error on appeal. See In re J.A.J., 51 Tex.

Sup. Ct. J. 107 (Tex. 2007); Colbert v. Dept. of Fam. & Prot. Servs., 227 S.W.3d 799,

816 (Tex. App – Houston [1st Dist.] 2006, pet. filed); In re J.R., 171 S.W.3d 558, 579

(Tex. App. – Houston [14th Dist.] 2005, no pet.). See also In re E.A.W.S., No. 2-06-

00031-CV, 2006 WL 3525367 at *18 n. 55 (Tex. App. – Fort Worth 2006, pet. denied).

The dissent to the appellate court’s opinion points out that such disposition was

inconsistent with prior opinions of that same court and disagreed with the majority

decision’s disposition to reverse on unassigned error. Id. at p. 819.

       This court’s recent opinion in In re J.A.J. supports the conclusion of the dissent in


                                             33
this case and confirms that the majority opinion’s disposition was in error.              It is,

therefore, respectfully requested that this court grant this petition to correct that error.

Because this case presents an issue in which this court and justices of the courts of

appeal disagree on an important point of law, this court has authority under TEX.

R. APP. P. 56.1(1)(2) and (5) to grant review in this case and correct the error at

issue. See also TEX. GOV’T CODE ANN. §22.001(a)(1)(2) and (6) (Vernon 2004).

Moreover, review should be granted under TEX. R. APP. P. 56.1 (6), because the

appellate court failed to correctly decide a question of State law, namely application

of TEX. R. APP. P. 44.1, as well as legal precedent of this court, when the appellate

court reversed the trial court’s judgment concerning managing conservatorship on

unassigned error. See In re J.A.J., 51 Tex. Sup. Ct. J. 107; Pat Baker v. Wilson, 971

S.W.2d 447, 450 (Tex. 1998) (“It is axiomatic that an appellate court cannot reverse a

trial court's judgment absent properly assigned error.”); TEX. R. APP. P. 44.1(a)

(indicates appellate court’s authority to reverse is limited to “error complained of”).

       Moreover, review and correction is respectfully requested with respect to the

appellate court’s reversal of conservatorship in this case for another reason.             The

appellate court’s disposition constitutes incorrect construction and application of the law

concerning preservation of error under Section 263.405(b) of the Family Code. As noted

by this court in In re J.L., 163 S.W.3d 79, 82 (Tex. 2005), the Family Code provides

special appellate procedural requirements in section 263.405 of the Family Code for

appeals in parental termination cases. TEX. FAM.CODE § 263.405(a). In re J.L. 163

S.W.3d 79, *82 (Tex.,2005). In particular, Section 263.405 of the Family Code provides


                                             34
special appellate requirements that apply whenever there is an appeal of an order

rendered under Subchapter E of Section 263 of the Family Code. TEX. FAM. CODE

ANN. §263.405(a) (Vernon 2002). The order in this case became subject to Subchapter

E of Chapter 263 when the Department was named temporary managing conservator in

2003. See TEX. FAM. CODE ANN. §263.401 (Vernon 2002); RR-6, P-Ex 10 p. 317.

           One of the requirements applicable to the appeal has to do with presentation of

timely appellate complaints after judgment is rendered:

           Not later than the 15th day after the date a final order is signed by the trial
           judge, a party intending to appeal the order must file with the trial court a
           statement of the point or points on which the party intends to appeal. The
           statement may be combined with a motion for new trial.

TEX. FAM. CODE ANN. §263.405(b) (Vernon 2002) (emphasis added).8 This provision

indicates a party who intends to appeal “must” file a statement of the party’s points on

appeal within 15 days of judgment and file those points with the trial court. According to

Section 311.016 of the Government Code, “must” creates or recognizes “a condition

precedent.” TEX. GOV’T CODE ANN. §311.016(3) (Vernon 2005). As such, the use of

the word “must” indicates the legislature created a condition precedent to an appellant’s

right to raise points for appeal. Colbert complied with this requirement by filing a

statement of points challenging parental termination, but did not raise any point

challenging the order on conservatorship. CR-5 233. Accordingly, Colbert did not meet

the condition precedent for complaint about conservatorship under section 263.405(b).

           Notably, the time requirement imposed by section 263.405(b) is wholly

8
    Subsequent to the filing of this suit, in 2005, the legislature added a subpart (i) that clarified that an appellate court



                                                              35
irreconcilable with the general procedure used in a regular civil appeal which does not

require a party to state their appellate points until the party files their brief and may even

allow sufficiency complaints to be stated for the first time on appeal. See TEX. R. APP.

P. 38.1; TEX. R APP. P. 33.1(d). Nevertheless, with this obvious irreconcilable conflict,

the Code Construction Act indicates section 263.405(b) stands as a special law that is an

exception to the general law on the timing of appellate complaints. See TEX. GOV’T

CODE ANN. §311.026(b) (Vernon 2005). Since Colbert did not comply with that time

requirement with respect to challenging conservatorship, the appellate court erred in

essentially accepting an untimely challenge to the order on conservatorship on Colbert’s

behalf at a time unauthorized under Section 263.405(b) of the Family Code. It is

appropriate to consider review of this issue pursuant to TEX. R. APP. P. 56.1(3),

because this issue necessarily involves proper construction of section 263.405(b) of

the Family Code. See also TEX. GOV’T CODE ANN. §22.001(a)(3) (Vernon 2004).

ISSUE NO. 2: Did the appellate court err in concluding that the court’s judgment
did not appoint the Department as conservator on any legal basis independent of the
court’s decision to terminate parental rights when the Department’s pleadings
clearly sought conservatorship on legal bases independent of parental termination,
the evidence supported the independent bases sought for the Department’s
appointment as sole managing conservator, and there were no findings of fact and
conclusions of law to indicate otherwise?

        The second issue in this petition seeks review based on the reasoning which the

appellate court apparently9 used in deciding that conservatorship is automatically


could not consider a point not presented in a timely filed statement of points. TEX. FAM. CODE ANN. §263.405(i)
(Vernon Supp. 2006).
9
  The appellate court’s opinion does not actually state its reasoning in support of reversing conservatorship with
respect to the five older children, but it appears the reasoning must have been the same as what was given for
reversal of the Department’s conservatorship of the twins. Colbert, 227 S.W.3dat p. 816.


                                                       36
reversed with a judgment for parental termination. As such, this issue is essentially

further part of the first issue identified in this petition. In this connection, this court’s

opinion in J.A.J. 51 Tex. Sup. Ct. J. 107 addressed the reasoning that this issue concerns

and indicates the reasoning of the appellate court below conflicts with it.

       The Department’s suit in this case, as in J.A.J., sought managing conservatorship

under Section 153.005 of the Family Code. CR-4 p. 5. This court’s opinion in In re J.A.J.,

51 Tex. Sup. Ct. J. 107, 2007 WL 3230169, holds that a Department’s request for

conservatorship under section 153.005 of the Family Code is a request for relief with

elements and standards of proof distinct and separate from the Department’s request for

parental termination. 2007 WL 3230169 *4. As such, this court held, consistent with a

number of appellate courts, that these are two distinct issues. Id. *5. Because they are

distinct issues, this court determined that a challenge concerning conservatorship cannot

be construed to be subsumed in a parent’s challenge to parental termination to

automatically invoke reversal of the trial court’s decision on conservatorship absent

assigned error. 2007 WL 3230169 *3. Because this case presents an issue decided by

the court below differently than the appellate court below and involves an error of

law on an important issue of law that should be corrected, this court has authority

under TEX. R. APP. P. 56.1(1) (5) to grant review to correct it. See also TEX.

GOV’T CODE ANN. §22.001(a)(1)(2) and (6) (Vernon 2004).

       In addition, although not discussed in J.A.J., an additional point of review

concerns the absence of findings of fact and conclusions of law.              Essentially, the

appellate court indicated the absence of express written findings in the judgment


                                             37
indicated conservatorship could only have been granted under section 161.207 of the

Family Code, which would be an inseparable consequence of the court’s decision to grant

parental termination. Colbert, 227 S.W.3d at p. 816. Nonetheless, there were no findings

of fact or conclusions of law issued on this bench trial. TEX. R. CIV. P. 299a indicates

findings of fact are not supposed to be in the court’s judgment, and, in the absence of

findings of fact and conclusions of law in a bench trial, this court in In re J.F.C., indicated

the rules of procedure (including Rule 299a) must be applied to supply any omitted

implied elements of a legal theory that the court could have found under the evidence.

See also Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990). In this case, the

appellate court only recognized section 161.207 of the Family Code as a basis for the

court’s order on conservatorship even though that was not the basis pled for

conservatorship and no findings or conclusions of law were issued supporting that

conclusion. See Colbert, 227 S.W.3d at p. 816. In so doing, the appellate court failed to

recognize the court’s implied findings in support of the court’s decision to grant the

Department’s request for conservatorship under section 153.005 of the Family Code,

which should have been implied applying the rules of procedure, consistent with this

court’s decision in In re J.F.C..     Because the appellate court’s opinion bases its

reasoning in support of reversing this case by failing to apply the rules of procedure

concerning implied findings in conflict with this court’s decision In re J.F.C., this

court has authority to consider this petition to resolve this conflict under TEX. R.

APP. P. 56.1(2). See also TEX. GOV’T CODE ANN. §22.001(a)(2) (Vernon 2004). It

is also requested that this court consider this petition pursuant to TEX. R. APP. P.


                                              38
56.1(5) and (6), because correct development of the procedural law as applied to

child protection cases involves important questions of state law that have not been

fully addressed by this court and correction in this case will provide important

development of this State’s jurisprudence in an important area of State law. See

also TEX. GOV’T CODE ANN. §22.001(a)(6) (Vernon 2004).

ISSUE NO. 3 Did the appellate court err in its factual sufficiency review by
omitting relevant evidence and inferences which a reasonable trier of fact could
have considered in support of a firm belief or conviction that termination of
Colbert’s parental rights was in the child’s best interest?

       The third issue in this brief has to do with the appellate court’s failure to consider

important relevant evidence and inferences, including improper resolution of credibility

issues, in its factual sufficiency review as to the trial court’s best interest finding under

Section 161.001(2) of the Family Code which should have been considered. This court

does not have jurisdiction to conduct a factual sufficiency review, but this court has

explicitly noted that it does have jurisdiction to ensure that the courts of appeals adhere to

the proper legal standard of review. In re C.H., 89 S.W.3d 17, 28-29 (Tex. 2002) (citing

Jaffe Aircraft Corp. v. Carr, 867 S.W.2d 27, 29 (Tex.1993)). In particular, in In re C.H.,

89 S.W.3d 17, 22 (Tex. 2002), this court granted review because the appellate court’s

opinion left out critical evidence in its factual sufficiency review and this court found

such review could not purport to support a factual insufficiency decision. As can be seen

in comparing the statement of facts outlined above against the appellate court’s opinion,

the omission of critical evidence is a major problem in this case. Numerous critical facts

were left out of the appellate court’s analysis in this case and, as will be discussed below,



                                             39
these omitted facts indicate the appellate court erred in its factual sufficiency review by

failing to state facts that overwhelmingly supported the trial court’s decision. Because the

appellate court’s factual sufficiency analysis decided a factual sufficiency point in a

manner in conflict with an important point of law announced by this court concerning

proper factual sufficiency review in In re C.H., there is authority under TEX. R. APP. P.

56.1(2) for this court to grant review in this case and resolve that conflict. See TEX.

GOV’T CODE ANN. §22.001(a)(2) and (6).

       Moreover, review should be granted in this case to address the factual sufficiency

analysis in the appellate court’s opinion which indicates a lack of deference to proper

conclusions and inferences that the trier of fact could have reached in support of the trial

court’s decision on best interest. In In re J.P.B., 180 S.W.3d. 570 (Tex. 2005), this court

clarified that the higher standard of review applicable to a parental termination case does

not alleviate the requirement that an appellate court give due deference to the trier of fact

in a legal sufficiency review. This court did not specifically address the deference due in

a factual sufficiency review in that case, but in In re J.F.C. this court indicated that the

difference between factual and legal sufficiency review does not have to do with altering

deference. 96 S.W.3d 256, 266 (Tex. 2002). In particular, in a legal sufficiency review,

the primary focus is on the evidence in favor of the finding at issue disregarding all

evidence that a reasonable factfinder could have disbelieved or found to have been

incredible. In a factual sufficiency review, however, the court’s focus is wider: to the

“entire record.” For an appellate court to find factually insufficient evidence on this

wider record, the court must find that the disputed evidence that a reasonable factfinder


                                             40
could not have credited in favor of the finding is so significant that a factfinder could not

reasonably have formed a firm belief or conviction. In re J.F.C., 96 S.W.3d at pp. 266 -

267. Review of this case is respectfully requested to correct the appellate court’s error in

failing to apply the factual sufficiency standard consistent with this court’s directives on

deference indicated by this court. Because there appears to be a conflict with the legal

holding of this court and the court below on the proper deference applicable in factual

sufficiency review, there is authority under TEX. R. APP. P. 56.1(2) for this court to

grant review in this case to correct that decision and provide a proper development of the

law in this area. See TEX. GOV’T CODE ANN. §22.001(a)(2) and (6).

       Now turning to the opinion, this portion of the brief identifies specific examples of

the appellate court’s omissions and lack of deference in its review of the factors

applicable to the court’s determination that termination of Colbert’s rights was in the

children’s best interest under Holley v. Adams, 544 S.W.2d 367, 372 (Tex. 1976). The

most significant example of deficiencies in the appellate court’s analysis concerns its

evaluation with respect to emotional and physical danger to the children. The opinion

expressly decides that the only danger at issue here with respect to Colbert was Colbert’s

failure to recognize Jackson’s responsibility for T.J.’s death and Newman’s presence in

the home, and that these really can’t be seen as a danger anymore because neither

Newman nor Jackson are in Colbert’s home and the children’s therapist determined

Colbert made “good” progress in acknowledging Jackson’s role in the murder. Colbert,

227 S.W.3d at p. 812. There is an overwhelming amount of evidence which the appellate

court’s opinion fails to acknowledge with respect to these conclusions which proves that


                                             41
the appellate court’s analysis on this issue was erroneous.    Moreover, it is clear it was

erroneous because the opinion did not do what this court indicates must be done: state all

the relevant evidence and give due deference to the trier of fact’s conclusions.

       The most egregious example of excluded evidence in the appellate court’s analysis

on this point is the exclusion of any reference to Jackson’s statements to law enforcement

on the day he was arrested for abusing T.J. and which appeared in Petitioner’s Exhibit 10.

This statement is included under Tab 18 of the appendix to this brief. Examination of

this statement reveals sufficient proof to a reasonable trier of fact that Colbert was well

aware of Jackson’s abuse against T.J. Because Colbert allowed Jackson to remain in the

home with her children even after this event occurred, this was significant evidence of

endangerment before the trier of fact.

       In his statement, Jackson describes how he used the wooden part of a coat hanger

to pop his 3 year old daughter, T.J., in her hands, pushed her about 10 times into a

bathroom calling her an “ignant ass girl,” “stupid just like her mamma,” and importantly

confirmed that his “gal” was with him during this abuse “and no one else.” RR-7, P-Ex

10 p. 912 and p. 913 (emphasis added); Appendix, Tab 18 p. 4 and 5. The reference to

his “gal” obviously was a reference to his girlfriend (Colbert) whom he was living with at

the time and this became crystal clear when Colbert testified at Jackson’s criminal trial.

At his criminal trial, Colbert confirmed that she told Jackson that T.J. hated him and he

needed to get close to that child,10 and that was the same statement that Jackson said

during his interview was told to him by his “gal.” RR-7, P-Ex. 10, p. 919 (“my gal asked




                                            42
me-she’s like you need to get closer to that girl. That little girl hates you.”)(Tab 18 p. 11).

           Moreover, Jackson’s statement reveals that he was verbally abusive to this three

year old child. He admitted he talked to his child T.J. in a “wrong way,” and said that

when she fussed about wanting to leave Colbert’s place, he told her, “You’re- you’re

goddamn ass ain’t going home! . . . Wherever the fuck my home is, your goddam home

so quit asking me that shit.” RR-7, P-Ex 10 p. 915; Appendix, Tab 18 at p. 7. The

appellate court’s opinion acknowledges that the Colbert’s children said some “crude

language” and opined that was of no consequence (227 S.W.3d at p. 815); however, the

appellate court’s opinion makes no comment about Jackson’s crude and verbally abusive

language which he said around at least one of his children in Colbert’s home.

           Besides the direct evidence from Jackson regarding Colbert’s presence during

abuse, there was also evidence from another member of Colbert’s household, Kenneth

Newman, which the appellate court’s opinion did not consider. Kenneth Newman

testified that he told Colbert and Joann that Jackson was spanking the child two or three

times a day, but clarified that they knew he was spanking T.J. RR Vol. 5, P-Ex 9 p. 30.

He said nobody did anything, because it was his child. RR Vol. 5, P-Ex 9 p. 31. On the

day of the incident, Newman indicated he believed it was getting worse and the baby was

getting beaten harder and he knew something bad was happening. RR Vol. 5, P-Ex 9 p.

78 and 79. Also, contrary to Colbert’s testimony, Newman testified that Colbert was in

the home when Jackson was beating T.J. and she had all the knowledge he had. RR Vol.

5, P-Ex 9 p. 56.

10
     Appendix, Tab 17.


                                              43
       Also, even though Colbert claimed she got all her information about Jackson’s

abuse second hand, Colbert admitted every time she got T.J. she was sick or had bruises

and she would keep her until she got well. RR-2, p. 86 and p. 65. Nevertheless, the

appellate court’s opinion makes no mention of her admission of that fact. If Colbert

knew about bruises and sickness before this event that required her to attend to this child,

could not a reasonable trier of fact have reached a firm belief or conviction that there was

sufficient evidence that Colbert was well aware of the abuse?

       In addition, during interviews after Jackson was charged with killing T.J., he told

the Department of other times he spanked or beat Colbert’s children. RR-5, P-Ex 10, p.

95.   In one incident, he described that he spanked J.D.M. and T.B.L.J. after the

grandmother told him they were humping and doing explicit sexual intercourse motions.

RR-5, P-Ex 10, p. 95.       Also, in a report by a hospital that admitted T.L.J. for

psychological testing in April 2004, when T.L.J. was 6 years old, it discloses significant

information about this child’s life with Colbert and Jackson in a section of the report

entitled, “IDENTIFYING INFORMATION”:

       [T.L.J.] has been physically abused by his biological father. In addition, his
       biological father gave the child alcohol. He has experienced emotional
       abuse perpetrated by his biological family, and according to the patient, by
       the people at school. . . . Although he denies current suicidal ideations, this
       child does have a history of suicide attempt, during which he jumped out of
       a second story window.

RR-6, P-Ex 10, p. 266. Also, the report includes the following conclusion: “This child

appears to have experienced a lifelong history of chaos, instability, abuse, and trauma.”

RR-6, P-Ex 10, p. 268. Because both T.B.J. and T.L.J. disclosed to their therapist that



                                             44
they would get whippings, the above information appears to have been corroborated and

indicates that T.B.J. also was abused. RR-2, p. 132.

       Moreover, another important piece of evidence disregarded in the appellate court’s

opinion concerns the conclusion of the medical personnel who saw T.J. upon admission

and after she died. The medical notes concerning T.J. after her admission in the hospital

state she had “multiple contusions on body and face and subdural hematoma on CT scan

– consistent with abuse.” RR-4, P-Ex 1, p. 34. The medical examiner who examined T.J.

after death noted T.J.’s musculosketal system had “contusions of grossly different ages.”

RR-7, P-EX 10, p. 93-38. Also, the child’s upper back reveal multiple healing patterned

abrasions similar to the ones seen on the chest as well as bruising. RR-7, P-Ex 10, p.

937. Even though Colbert testified that she would take care of T.J. until she was healed

from her bruises and sickness, a reasonable trier of fact could have inferred that she

nonetheless permitted this child to remain in an endangering situation and allowed her

other children to be around the perpetrator. See In re J.P.B., 180 S.W.3d 570, 574 (Tex.

2005) (even though father said he would take child to get medical treatment after

receiving abusive treatment, it was reasonable to conclude he allowed the child to remain

in that endangering circumstance to support finding of endangerment).

       Moreover, there is other evidence in the record the appellate court disregarded that

establishes Colbert maintained a continuous pattern of exposing her children to persons

involved in dangerous criminal activity throughout their lives and there is little to suggest

this dangerous pattern has been alleviated.       The father of Colbert’s first child was

convicted for cocaine possession and carrying a concealed weapon just a couple of years


                                             45
before the child’s birth and received a 40 year aggravated robbery sentence after her

birth. RR-4, P-Ex 3, p. 2; RR-4, P.Ex 6, p. 10, RR-4, P-Ex 3, p. 5, RR-R, P-Ex 3, p. 10.

J.D.M.’s father, Mosley, was sentenced to murder with a deadly weapon. RR-4, P.Ex 4,

p. 1. Colbert admitted E.D.C.’s father (identified as Jerry Willis, James Arthur or James

Allen) was in jail. RR-6, P-Ex 10, p. 162). Then there’s Jackson, apparently Colbert’s

longest relationship. He maintained a pattern of criminal activity of illegal drug activities

and finally murder of a child in her home. RR-2, p. 32-33; RR-4, P-Ex 5, p. 24; RR-6, P-

Ex 10, p. 162; RR-2, p. 32; RR-4, P-Ex 5, p. 11; RR-4, P-Ex 5, p. 18; RR-4, P-Ex 5, p.4.

       Besides the evidence that Colbert remained in relationship with men involved in

criminal activity and admitted she was aware of illegal drug activities by her most recent

boyfriend, there is also evidence that Colbert probably had exposed her children to drug

activity in her home. Though there was evidence Colbert put her mother’s boyfriend,

Kenneth Newman, out of her home before the trial of this case because of drug use, when

asked how long he had been doing drugs that she was aware, he responded “I’d been

doing drugs awhile.” RR-2, p. 266 and 269. Also, in 1998, Kenneth Williamson told the

Department he assumed care for Colbert’s child J.D.M. and indicated Colbert never had a

stable home, moved from place to place and there was drug trafficking around the

children. RR-6, P-Ex 10, p. 164; See also RR-6, P-Ex10, p. 165. Considering this

evidence, as well as all of the aforementioned evidence, that indicated Colbert was well

aware of the abuse going on by her live-in boyfriend, there was more than sufficient

evidence to support the trial court’s finding that she had a pattern of exposing her

children to endangering circumstances.


                                             46
       It is appropriate to consider review of this issue pursuant to TEX. R. APP. P.

56.1(3), because this issue necessarily involves proper construction of the meaning of

subpart (2) of Section 161.001 of the Family Code in deciding what evidence would

be relevant under a sufficiency review involving such subpart.              See also TEX.

GOV’T CODE ANN. §22.001(1)(3) (Vernon 2004). Moreover, it is appropriate to

consider review of this issue under TEX. R. APP. P. 56.1(a)(5) and (6), because the

appellate court committed an error of law in omitting certain relevant evidence and

better development of the law on what constitute relevant sufficient evidence under

this statute would correct improper review under subpart (2) of section 161.001(1)

of the Family Code and be important to this State’s jurisprudence. See also TEX.

GOV’T CODE ANN. §22.001(6) (Vernon 2004).

       PRAYER FOR RELIEF: Department of Family & Protective Services requests

that this court grant review in this case, reverse the appellate court’s order that reverses

the trial court’s judgment appointing the Department as the child’s sole managing

conservator, reverse the appellate court’s order that reverses the trial court’s judgment for

parental termination as to J.D.M., and remand this matter to the appellate court, with

proper instructions requiring the court to conduct a factual sufficiency review that

includes all relevant evidence in support of the court’s finding under Section 161.001(2)

of the Family Code and for such other and further relief to which the Department may be

entitled in law or in equity.




                                             47
                                   Respectfully submitted,

                                   COUNTY ATTORNEY
                                   MIKE STAFFORD
                                   By:
                                   ______________________________
                                   Sandra D. Hachem (# 08667060)
                                   Sr. Assistant County Attorney
                                   P. O. Box 20130
                                   Houston, Texas 77225-0130
                                   (713) 578-3914 PHONE
                                   (713) 578-3995 FAX
                                   Attorney for Appellee, Department of
                                   Family & Protective Services

                             CERTIFICATE OF SERVICE

       I hereby certify that on this the 19th day of November, 2007, a true and correct

copy of the foregoing Petitioner’s Brief on the Merits was sent to all parties to this appeal

by sending a copy of this petition by certified mail, return receipt requested to the parties

as follows:

              Appellant, Ericka Colbert
              c/o William Connolly
              2930 Revere, Suite 300
              Houston, Texas 77098

              and

              Attorney Ad Litem for the Child, J.D.M.
              Glen Devlin
              111 West 15th Street
              Houston, Texas 77008


                     ___________________________________
                     Sandra D. Hachem


                                             48

				
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