in the Interest of J. D. G AKA J. G., Jr., A. E. G. J. AKA A. G. v. Department of Family and Protective Services , 570 S.W.3d 839 ( 2018 )

Opinion issued December 11, 2018
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-18-00578-CV
———————————
IN THE INTEREST OF J.D.G. AND A.E.G.J., Children
On Appeal from the 314th District Court
Harris County, Texas
Trial Court Case No. 2015-03930J
OPINION
After a two-month-old boy was hospitalized from injuries caused by his
father’s shaking him, the infant and an older sibling were removed from the family
home. Some 35 months later, the trial court entered an order terminating the
parental rights of both parents. The mother appeals, challenging (1) the sufficiency
of the evidence to support the trial court’s three predicate findings1 for termination
of her parental rights, best-interest determinations2, and appointment of the
Department of Family and Protective Services as the children’s managing
conservator; (2) the applicability and sufficiency of the evidence on an affirmative
defense relevant to one of the predicate findings against her,3 and (3) an
evidentiary ruling. 4
We affirm.
Background
A. Javier severely injures Andres
Early one Friday morning, Monica5 fed her two-month-old son, Andres,
placed him in bed with his father, Javier, and left the house to be at work by 5:00
1
See TEX. FAM. CODE § 161.001(b)(1)(D) (endangering conditions), (E)
(endangering conduct), (O) (failure to comply with court order containing
requirements for return of children).
2
See id. § 161.001(b)(2) (best interest).
3
See id. § 161.001(d) (“A court may not order termination under Subsection
(b)(1)(O) based on the failure by the parent to comply with a specific provision of
a court order if a parent proves by a preponderance of evidence that: (1) the parent
was unable to comply with specific provisions of the court order; and (2) the
parent made a good faith effort to comply with the order and the failure to comply
with the order is not attributable to any fault of the parent.”).
4
The father did not appeal termination of his parental rights. The record indicates
that he was deported from the country, but his current location is not established.
5
The parents, children, and other relatives will be referred to by pseudonyms
instead of initials for ease of reading.
2
a.m. Around 11:00 a.m., Javier called Monica at work to tell her something had
happened to Andres. He told her Andres had been crying, he held the baby, Andres
began to fall from his arms, he tried to grab Andres, and, in doing so, he “kind of
maybe shook” Andres. Javier told Monica that Andres turned purple and stopped
breathing and that he performed CPR on Andres to help him begin breathing again.
Javier assured Monica that Andres seemed fine at the time of the phone call. Javier
told Monica he was leaving for work and would drop Andres and his almost-two-
year-old brother, Jorge, at their aunt’s house.
The aunt, Celia, later stated Andres appeared normal to her when Javier
brought him to her house. She said Javier told her Andres had almost fallen earlier
that morning and Javier had to grab him by his feet to prevent the fall. Javier told
Celia to call him or 911 if anything appeared wrong with Andres while in her care.
Monica left work about 40 minutes later to pick the kids up from Celia’s
house. Monica later said that Andres appeared normal when she arrived and
continued to seem fine the next day. Neither Celia nor Monica saw any signs of
injury.
On Sunday, April 19, 2015—which was the second day after the incident—
Monica was back at work when she received a call from Javier around 9:00 a.m.
He told her that he had accidentally startled Andres, who then seemed unable to
cry or breathe. Javier told Monica that he was taking Andres to the hospital.
3
The hospital determined Andres had a subdural hemorrhage and difficulty
breathing. The medical staff intubated Andres and life flighted him to Memorial
Hermann Children’s Hospital. Tests revealed brain bleeding and seizure activity.
The medical staff noted that the findings were consistent with Shaken Baby
Syndrome. Andres was admitted to the hospital, where he received medical care
for two and one-half weeks. He then was transferred to Shriner’s Hospital, where
he remained another three weeks.
Andres ultimately was diagnosed with Shaken Baby Syndrome and complex
epilepsy with seizures. He was prescribed anti-seizure medications, but, by the
time the case reached trial, he was no longer on these medications. In a 2018 trial
report, DFPS stated that Andres did not have any developmental delays from his
injuries but still required physician monitoring due to his diagnosis.
B. DFPS investigation and pendency of conservatorship suit
1. 2015
Andres’s injuries occurred in mid-April 2015. Jorge was immediately
removed from the family home and placed with an adult relative, Julia. Both
parents were permitted supervised visits with Jorge at Julia’s home. Andres
remained in a medical facility until late May, when he also moved in with Julia.
Neither parent had a criminal record when Andres was injured. Both parents were
4
employed. The trial court ordered both parents drug tested; all test results were
negative.
Officer B. Andrade with the Houston Police Department interviewed Javier
on April 28, 2015—11 days after the incident. At first, Javier described a series of
events similar to what he had told Monica and Celia. Andrade told Javier his story
was not consistent with Andres’s injuries. Javier then said, “The truth is I shook
him.” Javier said that Andres had been crying that morning and acting “bipolar.”
Immediately after Javier shook him, Andres stopped crying but also stopped
breathing. Javier said that he shook Andres again to get a response. At the end of
the interview, Javier asked Andrade if anyone was going to tell Monica “what he
had done.” Andrade responded that Javier could tell Monica “when he was ready.”
It is not clear from the record when Monica learned what had occurred. The
DFPS caseworker, S. Butler, for example, testified that Javier had told Monica in
early May that he shook Andres, but she later testified that it was possible Monica
did not learn the truth until DFPS informed her in mid-May.
Once Julia learned in mid-May that Javier had admitted to law enforcement
that he had shaken Andres, she asked that supervised visits occur at DFPS’s offices
instead of her home. The trial court approved the change. Javier was arrested on
May 26. Andres was released to Julia’s care on May 27. Javier was released on bail
on June 9. DFPS then sought sole managing conservatorship over the children “due
5
to concerns with the safety of the children, and the parent’s inability to provide a
safe environment for the child[ren].” According to DFPS caseworker, Butler,
Monica was continuing “to assert that the father has no complicity in the injury and
that shaking the baby was just an accident.” At the adversarial hearing in July,
Butler testified that Javier and Monica continued to live together after Javier’s
release on bond.
The children’s pediatrician, Dr. Syed Rizvi, testified. He stated that Monica
had always been reasonably compliant with health care instructions.
When Monica testified, she clarified that Javier moved in with her when he
was released on bail one month earlier but that he was in the process of moving out
at the time of the hearing. She stated she was willing to end her relationship with
Javier to have her children returned to her care.
The trial court granted DFPS’s request for temporary orders naming DFPS
temporary managing conservator of the children, continuing the children’s
placement with Julia, and continuing supervised parent visits at DFPS offices.
In August, the court held a status hearing. DFPS announced a permanency
goal for family reunification. Monica and Javier were ordered to comply with
DFPS family service plans. Monica’s plan required her to attend eight weeks of
parenting classes, attend hearings and DFPS meetings, confirm with DFPS all
scheduled visits with her children, complete a psycho-social evaluation, timely
6
report changes in residence and employment to DFPS and the court, obtain and
maintain employment, and “obtain, pay for and maintain appropriate housing for
herself and child . . . [to be] demonstrated by providing a copy of a lease agreement
and through home visits by the caseworker.” The plan listed certain goals for
Monica, including understanding the serious nature of the situation that placed
Andres in danger, demonstrating an ability to change to provide her children with
adequate care and nurture, demonstrating a willingness and ability to protect her
children from harm, participating in therapy, demonstrating the ability to follow
medical advice for her children, and adequately following the safety plan to control
the risk of abuse or neglect. The court appointed Child Advocates as the children’s
guardian ad litem.
DPFS’s status report submitted to the court two months later states that
Javier and Monica were still living together, that Monica continued to describe
Andres’s injuries as an accident, and that Monica failed to inform DFPS once
Javier admitted to her that he shook Andres.6 The primary permanency goal in this
October report changed to family adoption, with a secondary goal of family
reunification. DFPS noted, though, that Monica was progressing in completing her
service plan.
6
As noted earlier, Jenkins’s testimony is unclear whether Javier admitted to Monica
that he shook Andres or if, instead, she learned that information directly from
DFPS.
7
2. 2016 and the start of trial
In April 2016, one year after the incident in question, the children’s
caregiver returned them to DFPS, indicating that she felt frustrated with “the
process” and no longer wanted to be responsible for the children. DFPS sought
court approval to transfer the boys to foster care and to continue supervised parent
visits. At the status hearing to approve the change, a new DFPS caseworker, Y.
Jenkins, testified that Child Advocates recently had made an unannounced visit to
Monica’s home and encountered Javier leaving the area by jumping a fence.
Jenkins testified that DPFS has ongoing concerns with Monica’s protective
capacity due to her continued contact with Javier.
The Child Advocates volunteer, J. Gonzalez, testified that when he made the
unannounced visit, he and his co-worker saw Javier jump a fence to leave the area;
Monica did not answer the door and instead walked directly to her car to leave; he
asked her about contact with Javier; and Monica said he was there only to bring her
money. Gonzalez, whom Monica allowed in the house, saw no evidence Javier was
living there. Monica denied he was living there. Monica testified that Javier was
simply leaving a money envelope on her porch and that Child Advocates happened
to arrive as he was leaving.
In June 2016, the court-appointed attorney ad litem recommended that the
children be moved to a different foster home due to inappropriate supervision of
8
the children by their current foster placement, as observed during a recent home
visit.
At a hearing one month later, the Child Advocates guardian ad litem testified
that he did not support family reunification, citing multiple reasons: the March
incident in which Javier jumped a fence leaving Monica’s home, concerns over a
lack of support system for Monica, concerns over whether Monica could
financially support the children if they were returned to her as she continued to rely
on Javier for financial assistance, and a statement by Monica during an earlier
court hearing declining to hold Javier responsible for Andres’s injuries. The
guardian ad litem testified that Monica had demonstrated that “she cannot protect
the child.” The final hearing date was extended to November 15.
In September, the children were moved to a different foster home.
According to a DFPS report, the change was due to “allegations . . . made against
the previous home.”
On November 11, just before the scheduled November 15 hearing date,
DFPS submitted a permanency report to the court that changed the permanency
goal from family adoption to reunification with Monica, though not Javier. DFPS
reported that Monica had completed her psycho-social evaluation, parenting
classes, and individual therapy. She lived in her own apartment and provided a
9
copy of her lease agreement. She had shown proof of employment. DFPS
recommended that the court schedule the permanency hearing five months later.
Child Advocates did not share DFPS’s permanency goals. In its November
report to the court, Gonzalez recommended termination of both parents’ parental
rights. While noting that Monica had completed her service plan requirements, the
Child Advocates report expressed the ad litem’s concern that Monica “lack[ed]
protective capacity to care for the children” because she earlier stated she did not
believe Javier harmed Andres and because Javier was observed jumping the fence
on an unannounced Child Advocates visit. Although DFPS was willing to change
its recommendation to reunification with Monica after these two events were
known, Child Advocates believed this history continued to support termination,
even though Monica was successful in completing her family service plan and
participating in supervised visits with the children.
Trial began on November 15, 2016. Javier’s counsel noted that Javier’s
criminal matter had not yet resolved. DFPS announced that the current permanency
goal for Monica was reunification. A few exhibits were admitted, and DPFS
caseworker Jenkins provided four pages of testimony. She stated that Andres was
developmentally on target without any repercussions from the shaking incident.
When Jenkins was unable to provide precise answers to questions from the court,
DPFS requested to “step back” and gather additional information, and the trial
10
court agreed. No additional evidence or witness testimony was offered until 18
months later, in May 2018.7
3. 2017
In the interim, in February 2017, Child Advocates submitted a court report
again recommending termination of Monica’s parental rights. It listed the two
reasons discussed in the earlier report and elaborated that Monica had “not been
truthful in regards to her contact” with Javier or the fence-jumping incident. It
added as a third reason that Monica had been asked in an earlier permanency
hearing if she believed Javier harmed the children and she had answered, “No.”
Child Advocates also reported that, while Monica eventually conceded that Javier
“could have hurt the children,” she also had continued to rely on Javier for
financial support, which, in its view, indicated she was not protective of the
children or able to provide them a safe and stable environment.
7
Section 263.401 of the Family Code provides that the trial court’s jurisdiction ends
after one year unless the court “has commenced the trial on the merits” or grants
an extension. TEX. FAM. CODE § 263.401(a)–(b) (emphasis added). The extension
requires a finding that “extraordinary circumstances necessitate the child
remaining in the temporary managing conservatorship of the department and that
continuing the appointment of the department as temporary managing conservator
is in the best interest of the child.” Id. § 263.401(b). The parties may not extend
the deadlines by agreement or otherwise. Id. § 263.402.
These November 15 events commenced trial. There is no statutory requirement
that a commenced trial be completed within any specified period of time. This
trial—with four trial witnesses—lasted 18 months.
11
DFPS submitted a permanency report in June 2017—now two years after the
original incident—that changed the permanency goal from reunification with
Monica to unrelated adoption because Monica lacked “protective capacity.” It
noted that Andres and Jorge’s then-current foster care provider was willing to be a
permanent placement if the parents’ rights were terminated. DFPS described the
foster home favorably and noted that the children were bonded to their foster care
provider. In this report, DFPS recommended termination of Monica’s parental
rights under Subsection (O) because “she has failed to comply with the court order
to maintain no contact with the perpetrator of the case [Javier].”8 DFPS requested
the court schedule a permanency hearing six months later.
4. 2018 and the completion of trial
DFPS submitted another permanency report in March 2018—now almost
three years after the incident. It stated that Javier had pleaded guilty to the offense
of injury to a child and had received 10 years’ community supervision. It further
stated that, after the guilty plea, Monica had participated in a video call with Javier
during one of her supervised visits with the children. In DFPS’s view, her
participation in the call “diminishe[d] her protective capacities.” In May, DFPS
filed another report with the trial court that elaborated on the video call. According
8
We did not locate a court order in the appellate record that forbids Monica from
contact with Javier.
12
to DFPS, during the call, Monica told the boys to “blow kisses” to Javier. DFPS
also alleged that Monica had “allowed [Javier] in her home.”
DFPS’s reports stated that Monica had completed her family service plan,
including parenting classes and therapy. They further stated that Monica lived “in
her own apartment” and had provided DFPS with “a copy of her lease agreement.
Nonetheless, according to the DFPS reports, Monica continued to lack protective
capacities. The DPFS reports also were critical of Monica’s continued contact with
Javier and, on that basis, recommended termination of Monica’s parental rights
under Subsection (O).
DFPS later amended its petition and sought termination of Monica’s parental
rights to both boys on four bases: Subsection (D) (endangering conditions), (E)
(endangering conduct), (N) (constructive abandonment), and (O) (failure to comply
with court order). See TEX. FAM. CODE § 161.001(b)(1)(D), (E), (N), (O).
On May 24, 2018—two and one-half years after DFPS was named managing
conservator of the children—the last three trial witnesses testified.9 J. Leal testified
that she had replaced Jenkins as the DFPS caseworker in October 2017. She
testified that Monica was continuing to describe Andres’s injuries as an accident
and to defend Javier by describing his conduct as not intentional.
9
See infra n.7.
13
Leal confirmed there had been only two known incidents of contact between
Monica and Javier since the case had begun three years earlier: the March 2016
fence-jumping incident and the February 2017 video call. From these events, Leal
expressed a belief that Monica was continuing to have contact with Javier, who, by
the time of trial, had been deported.
Leal further testified that Monica was no longer living in the apartment she
previously rented. She had moved out earlier that month and moved in with a
cousin. Leal asserted that Monica had never been the named lessee where she lived
during the pendency of the suit.
Leal testified that termination of Monica’s parental rights was in the
children’s best interest because, “within time frames, Mom is not able to protect
the children from the father,” “she still believes that the incident was an accident,”
and she is not “able to have stable housing.” Leal testified that this evidence
indicated that Monica could not “provide basic needs for the children.”
Leal testified that the single-parent foster placement, in contrast, had
“always been on top of” the children’s needs and that the foster parent was well
bonded with the children. Leal testified that the foster placement was effectively
dealing with the children’s emotional reactions to visits with Monica, which she
described as Jorge expressing a desire not to visit with Monica and Andres having
post-visit nightmares. Leal testified that it would be “very detrimental for the boys”
14
to leave their then-current foster home because they were “very bonded” to their
caregiver and “thriving.”
The Child Advocates representative, Gonzalez, testified next. In his view,
Monica had not been truthful about her contact with Javier. On the day he observed
Javier jumping the fence, Monica told him that Javier had been at her home only
15 minutes, but Javier told him that he had been there for three hours.
Gonzalez testified that termination of Monica’s parental rights was in the
children’s best interest because of Monica’s lack of protective capacity. He
explained that Monica had never been able to effectively answer his question of
how she might identify whether a future partner was abusing her children.
Monica was the last trial witness. She requested that pictures be admitted
from one of her supervised visits with the boys. The pictures were admitted; they
show various bruises and marks on the boys’ bodies. Monica said that the boys
appeared to have been “beaten” while in DPFS’s care. She could not provide an
exact date the pictures were taken, and there were no follow up questions of any
witnesses about the photographs or the injuries depicted. However, we note that an
earlier DFPS report stated that the children had been moved from a foster home
based on non-specific “allegations.”
Monica testified that she had had no contact with Javier since the single
video call. She said that she answered Javier’s call that day because she thought he
15
was calling to say goodbye before his deportation. She testified that it had been a
“mistake” to accept his call. And she stated that she now knew to “always put the
children first” and that she would protect them.
Monica was asked about her housing. She testified that she had recently
moved in with a female cousin because her previous home had had a problem with
its air conditioner. She offered a lease into evidence, but the trial court sustained
DFPS’s objection that the lease was irrelevant because Monica’s name was not
listed on it.
At the conclusion of trial, the court terminated the parental rights of both
parents. The court found by clear and convincing evidence that Monica had met
the grounds for termination under three predicates: Subsection (D) (endangering
circumstances), Subsection (E) (endangering conduct), and Subsection (O) (failure
to comply with a court order setting forth requirements for return of children). See
TEX. FAM. CODE § 161.001(b)(1)(D), (E), (O). The court also found by clear and
convincing evidence that termination of Monica’s parental rights was in the
children’s best interest. See id. § 161.001(b)(2).
Monica appealed.
Termination of Monica’s Parental Rights
Monica challenges the legal and factual sufficiency of all predicate findings
and the best interest finding.
16
A. Standard of review
A parent’s rights to the “companionship, care, custody, and management” of
his or her children are constitutional interests “far more precious than any property
right.” Santosky v. Kramer, 455 U.S. 745, 758–59 (1982); see In re M.S., 115
S.W.3d 534, 547 (Tex. 2003). A termination decree is final, irrevocable, and
permanently divests the parent of all legal rights, privileges, duties, and powers
with respect to the parent-child relationship except for the child’s right to inherit.
Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985). We strictly scrutinize termination
proceedings and strictly construe the involuntary termination statutes in favor of
the parent. Id. However, “the rights of natural parents are not absolute” and “the
rights of parenthood are accorded only to those fit to accept the accompanying
responsibilities.” In re A.V., 113 S.W.3d 355, 361 (Tex. 2003). Recognizing that
parents may forfeit their parental rights by their acts or omissions, the primary
focus of any termination suit is protection of the child’s best interest. Id.Due to the severity and permanency of the termination of parental rights, the
State must prove its case by clear and convincing evidence. See TEX. FAM. CODE.
§ 161.001(b); In re J.F.C., 96 S.W.3d 256, 263–64 (Tex. 2002). “‘Clear and
convincing evidence’ means the measure or degree of proof that will produce in
the mind of the trier of fact a firm belief or conviction as to the truth of the
allegations sought to be established.” TEX. FAM. CODE § 101.007. This is an
17
intermediate standard that falls between “preponderance of the evidence” used in
ordinary civil proceedings and “reasonable doubt” used in criminal proceedings.
State v. Addington, 588 S.W.2d 569, 570 (Tex. 1979).
This heightened burden of proof results in a heightened standard of review.
In re S.R., 452 S.W.3d 351, 358 (Tex. App.—Houston [14th Dist.] 2014, pet.
denied). Under this heightened standard, the “distinction between legal and factual
sufficiency lies in the extent to which disputed evidence contrary to a finding may
be considered.” In re A.C., No. 17-0477, 2018 WL 5304691, at *4 (Tex. Sept. 10,
2018). When the legal sufficiency of the evidence supporting the termination of
parental rights is challenged, “the reviewing court cannot ignore undisputed
evidence contrary to the finding, but must otherwise assume the factfinder resolved
disputed facts in favor of the finding.” Id. Evidence is legally sufficient if, viewing
the disputed and undisputed evidence in this manner, “a reasonable factfinder
could form a firm belief or conviction that the finding was true.” Id.; see In re
J.O.A., 283 S.W.3d 336, 344 (Tex. 2009); In re J.F.C., 96 S.W.3d at 265–66. If,
after conducting a legal sufficiency review of the record evidence, the court
determines that no reasonable factfinder could have formed a firm belief or
conviction that the matter to be proved was true, the court must conclude that the
evidence on that matter is legally insufficient. In re J.O.A., 283 S.W.3d at 344–45;
In re J.F.C., 96 S.W.3d at 266.
18
The reviewing court does not assume the factfinder resolved all disputed
facts in favor of its finding during a factual-sufficiency review; instead, the
reviewing court weighs the disputed evidence. In re A.C., 2018 WL 5304691, at
*4; see In re J.O.A., 283 S.W.3d at 345; In re J.F.C., 96 S.W.3d at 266. “In a
factual-sufficiency review, the appellate court must consider whether disputed
evidence is such that a reasonable factfinder could not have resolved it in favor of
the finding.” In re A.C., 2018 WL 5304691, at *4. “If, in light of the entire record,
the disputed evidence that a reasonable factfinder 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, then the evidence is factually insufficient.” In re J.F.C.,
96 S.W.3d at 266.
We give due deference to the factfinder’s findings, and we cannot substitute
our own judgment for that of the factfinder. In re H.R.M., 209 S.W.3d 105, 108
(Tex. 2006) (per curiam). The factfinder is the sole arbiter when assessing the
credibility and demeanor of witnesses. Id. at 109. We are not to “second-guess the
trial court’s resolution of a factual dispute by relying on evidence that is either
disputed, or that the court could easily have rejected as not credible.” In re L.M.I.,
119 S.W.3d 707, 712 (Tex. 2003).
A single predicate finding under Section 161.001(b)(1) of the Family Code
is sufficient to support a judgment of termination when there is also a finding that
19
termination is in the child’s best interest. In re A.V., 113 S.W.3d at 362. Thus, if
multiple predicate grounds are found by the trial court, we will affirm on any one
ground because only one is necessary for termination of parental rights. See In re
T.G.R.-M., 404 S.W.3d 7, 13 (Tex. App.—Houston [1st Dist.] 2013, no pet.).
B. Subsection (E) predicate finding on child endangerment by conduct
Section 161.001(b)(1)(E) of the Family Code provides that parental rights
may be terminated if the parent has “engaged in conduct or knowingly placed the
child with persons who engaged in conduct which endangers the physical or
emotional well-being of the child.” TEX. FAM. CODE § 161.001(b)(1)(E). Within
the context of Subsection (E), endangerment encompasses “more than a threat of
metaphysical injury or the possible ill effects of a less-than-ideal family
environment.” Tex. Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex.
1987). To “endanger” means to expose a child to loss or injury or to jeopardize a
child’s emotional or physical health. Id.; see In re M.C., 917 S.W.2d 268, 269
(Tex. 1996).
It is not necessary to establish that a parent intended to endanger a child to
support termination under subsection (E). See In re M.C., 917 S.W.2d at 270. Nor
is it necessary to establish that the parent’s conduct was directed at the child or
caused actual harm; rather, it is sufficient if the parent’s conduct endangers the
child’s well-being. See Walker v. Tex. Dep’t of Fam. & Protective Servs., 312
20
S.W.3d 608, 617 (Tex. App.—Houston [1st Dist.] 2009, pet. denied). The
endangering conduct does not have to occur in the child’s presence. Id. The
conduct may occur before the child’s birth and either before or after the child’s
removal by DFPS. Id. A parent’s past endangering conduct may create an
inference that the past conduct may recur and further jeopardize the child’s present
or future physical or emotional well-being. See In re D.M., 58 S.W.3d 801, 812
(Tex. App.—Fort Worth 2001, no pet.). “As a general rule, conduct that subjects a
child to a life of uncertainty and instability endangers the physical and emotional
well-being of a child.” In re R.W., 129 S.W.3d 732, 739 (Tex. App.—Fort Worth
2004, pet. denied).
DFPS argues that Monica engaged in endangering conduct when she failed
to obtain medical attention for Andres between the first incident, on April 17,
2015, when he stopped breathing, and the second incident two days later. Monica
makes several arguments in response. First, she argues that there is no evidence
Javier had a history of violence or aggression that would have reasonably
supported any suspicion that Javier might have harmed the children if left in his
care. Nor, she argues, is there any evidence that he or she had ever harmed the
children. Second, she argues that all evidence indicates she had been at work when
Javier shook Andres, Javier had lied to her about harming Andres, and Andres had
appeared to be in good health when she and Celia saw him later that day.
21
But there also is evidence that Javier called Monica at work at 11:00 a.m. on
the day Andres was injured and told her that Andres had stopped breathing, turned
purple, and required CPR to begin breathing again. Officer Andrade’s notes from
his interview of Monica on April 20, 2015 recount her description of Javier’s
statements during their call. Monica told Andrade that Javier had said that Andres
“could not breath or cry and became purple and pale.” Javier also had told her that
he had performed CPR on Andres to get him to begin breathing again.
Andres was two months old when this event occurred. By her own
description of Javier’s phone call, Monica understood that Andres had stopped
breathing long enough to turn purple and required CPR intervention to regain
necessary respiration. Despite knowledge of these serious developments, Monica
did not take Andres to the local hospital, urgent care facility, or the medical office
of his pediatrician, Dr. Rizvi, for evaluation.
A reasonable factfinder could have formed a firm belief that a reasonable
parent would have obtained medical care for an infant who had stopped breathing
and required CPR to be revived.10
10
Cardiopulmonary resuscitation is an emergency medical technique used when
someone’s breathing or heartbeat has stopped. The record indicates that Javier was
familiar with CPR because he had performed it on Jorge at some point in the past.
The record is silent on the extent of Monica’s knowledge of CPR or the proper
medical care that should follow its use. “Basic” first aid instruction requires that a
CPR trained rescuer call 911 for emergency assistance within two minutes of
beginning CPR. See, e.g., https://www.mayoclinic.org/first-aid/first-aid-cpr/basics/
22
The failure to provide appropriate medical care for a child may constitute
endangering conduct under Subsection (E). See In re J.I.G, No. 01-18-00023-CV,
2018 WL 3233874, at *8 (Tex. App.—Houston [1st Dist.] July 3, 2018, no pet.)
(mem. op.) (concluding that parent’s “failure to provide appropriate medical care
constituted endangering conduct for purposes of subsection E”); In re H.M.O.L.,
No. 01-17-00775-CV, 2018 WL 1659981, at *13 (Tex. App.—Houston [1st Dist.]
April 6, 2018, pet. denied) (mem. op.); Smith v. Tex. Dep’t of Fam. & Protective
Servs., No. 01-09-00173-CV, 2009 WL 4359267, at *8 (Tex. App.—Houston [1st
Dist.] Dec. 3, 2009, no pet.) (mem. op.); Wyatt v. Dep’t of Fam. & Protective
Servs., 193 S.W.3d 61, 68 (Tex. App.—Houston [1st Dist.] 2006, no pet.). This is
true even if the parent did not cause the need for the medical treatment. Smith,
2009 WL 4359267, at *7.
Thus, a reasonable factfinder could have formed a firm belief that Monica’s
failure to obtain a medical evaluation or any medical care for her infant son, whom
she had been told had stopped breathing, met the standard for endangering
conduct, even if the factfinder accepted that Monica did not know what caused
Andres to stop breathing. See Wyatt, 193 S.W.3d at 68 (concluding that medical
art-20056600. Monica did not pursue any medical care for two-month-old Andres
until two days later, after Javier reported that Andres had stopped breathing again.
23
neglect supported finding of endangerment of physical and emotional well-being
of child).
Because the record contains legally and factually sufficient evidence to
support the trial court’s predicate finding under Subsection (E), we overrule
Monica’s second issue. Because we have concluded there was sufficient evidence
to support the Subsection (E) finding, we do not reach Monica’s challenge to the
trial court’s findings under Subsections (D) and (O).11 We turn next to the best
interest finding.
C. Best interest finding
In addition to a predicate violation, DFPS must establish by clear and
convincing evidence that termination is in the child’s best interest. TEX. FAM.
CODE § 161.001(b)(2). There is a strong presumption that the child’s best interest
will be served by preserving the parent-child relationship. In re J.F.C., 96 S.W.3d
at 294; see TEX. FAM. CODE § 153.131(b). Because of the strong presumption that
maintaining the parent-child relationship is in the child’s best interest and the due
process implications of terminating a parent’s rights without clear and convincing
evidence that termination is in the child’s best interest, “the best interest standard
11
Because we did not reach the issue challenging termination under Subsection (O),
we also do not reach Monica’s fourth issue challenging the trial court’s ruling to
exclude evidence related to that basis for termination, i.e., the lease Monica
attempted to admit into evidence to demonstrate she had appropriate housing, or
Monica’s fifth issue, raising a defense to termination under Subsection (O).
24
does not permit termination merely because a child might be better off living
elsewhere. Termination should not be used to merely reallocate children to better
and more prosperous parents.” In re W.C., 98 S.W.3d 753, 758 (Tex. App.—Fort
Worth 2003, no pet.); see In re E.N.C., 384 S.W.3d 796, 809 (Tex. 2012).
A factfinder may consider a number of factors to determine the child’s best
interest, including the child’s desires, the child’s present and future physical and
emotional needs, the present and future emotional and physical danger to the child,
the parental abilities of the people seeking custody, programs available to assist
those people in promoting the child’s best interest, plans for the child by those
people or by the agency seeking custody, the acts or omissions of the parent that
may indicate that the existing parent-child relationship is not appropriate, and any
excuse for the acts or omissions of the parent. Holley v. Adams, 544 S.W.2d 367,
371–72 (Tex. 1976).
The absence of evidence on some factors does not preclude a factfinder from
reasonably forming a strong conviction or belief that termination is in the child’s
best interest. In re C.H., 89 S.W.3d 17, 27 (Tex. 2002). The absence of evidence
cannot be used as if it were clear and convincing evidence supporting a termination
finding. In re E.N.C., 384 S.W.3d at 808. In some cases, undisputed evidence of
only one factor may be sufficient to support a finding that termination is in the
child’s best interest; in other cases, there could be “more complex facts in which
25
paltry evidence relevant to each consideration mentioned in Holley would not
suffice” to support termination. Id. Our “best interest” analysis is not limited to
these Holley factors; other factors may be considered. Holley, 544 S.W.2d 372.
“A best-interest analysis may consider circumstantial evidence, subjective
factors, and the totality of the evidence as well as the direct evidence.” In re E.D.,
419 S.W.3d 615, 620 (Tex. App.—San Antonio 2013, pet. denied). “A trier of fact
may measure a parent’s future conduct by his past conduct and determine whether
termination of parental rights is in the child’s best interest.” Id.
1. Children’s desires
DFPS caseworker Leal testified that the children experienced negative
emotional reactions related to their visits with Monica. Jorge verbally expressed
that he did not want to visit Monica. Andres would experience nightmares after his
visits. These children are young, and their desires have not been clearly expressed;
however, this evidence tends to indicate that the children do not hold a desire to
return to their mother’s care.
2. Children’s present and future physical and emotional needs and
danger
An October 2015 DFPS report states that Jorge had developmental delays
when he first entered DFPS care. He was nonverbal and did not exhibit age-
appropriate motor skills. These delays may have been related, to an extent, to
Jorge’s premature birth, but a November 2016 DFPS report states that Jorge had
26
shown notable improvement with intervention and therapy, especially after moving
to his second foster home. There is also evidence Jorge would benefit from
continued therapies. Likewise, Andres will require continued medical management
related to his diagnosis of Shaken Baby Syndrome and related epileptic seizure
activity.
The degree to which Jorge improved while in DFPS’s care and receiving
therapy would support a rational factfinder’s determination that Jorge’s physical
needs were not being fully met before he entered DFPS care. Further, a rational
factfinder could have reasonably determined that Monica’s past inability to meet
Jorge’s developmental needs is indicative of her inability to provide for his
physical developmental needs in the future. See In re J.M.T., 519 S.W.3d 258, 271
(Tex. App.—Houston [1st Dist.] 2017, pet. denied) (considering special needs of
child and evidence foster parent was actively meeting those needs in best-interest
analysis).
3. Parenting abilities of people seeking custody
There is evidence that Monica failed to realize the seriousness of an infant’s
turning purple and requiring CPR. Further, there was evidence indicating that
Jorge’s developmental delays were not being adequately addressed before DFPS’s
involvement and the implementation of various therapies.
27
Leal testified that the then-current foster placement wanted to become a
permanent placement for Jorge and Andres. Leal said that the foster care provider
had “always been on top of” the children’s medical and emotional needs.
Additionally, she was well bonded with the children. In Leal’s professional
opinion, it would have been “very detrimental for the boys” to leave her care,
where they had been “thriving.”
4. Available programs for conservators to promote best interest of
children
Monica successfully completed the programs DFPS required of her. This
demonstrates a willingness to accept opportunities to develop parenting skills and
address therapeutic needs. See In re J.I.T., No. 01-17-00988-CV, 2018 WL
3131158, at *20 (Tex. App.—Houston [1st Dist.] June 27, 2018, no pet. h.) (mem.
op.).
5. Monica’s and DFPS’s plans for the children
Monica’s testimony was brief on this topic. She stated that she lived with her
cousin in her cousin’s apartment and, if the children were returned to her, her
cousin “can rent this apartment to me.” She did not testify about the children’s
futures beyond meeting their basic housing needs.
DFPS caseworkers testified that the boys’ foster placement wanted to be a
permanent placement for the boys. It is unclear if this testimony signaled that the
placement would seek to adopt the boys or only that she would permanently foster
28
the boys. Regardless, the DFPS caseworker testified that it anticipated the
placement would be permanent. Further, according to the DFPS caseworker, the
foster placement had achieved a well-bonded relationship with the children, was
meeting their needs, and was providing an environment that allowed them to
thrive. This foster placement offered the ability to provide a safe, permanent home
for the boys.
6. Monica’s acts or omissions that may indicate that the existing
parent-child relationship is not a proper one and any excuse for
those acts or omissions
Monica’s failure to appreciate Andres’s urgent need for medical care when,
at only two months of age, he had stopped breathing, is evidence indicating that the
parent-child relationship was not a proper one. See In re J.S.G., No 14-08-00754-
CV, 2009 WL 1311986, at *9–10 (Tex. App.—Houston [14th Dist.] May 7, 2009,
no pet.) (mem. op.) (determining that medical neglect of child supported
conclusion that termination was in best interest of child). Further, the status of
Jorge’s developmental delays while under her care compared to his improvements
after transitioning to foster care, further suggests that the parent-child relationship
was not proper because she was not fully providing for his needs.
Monica relies on evidence that Javier lied to her about how Andres was
injured and on the lack of evidence indicating that Javier had ever injured either
boy in the past or had engaged in any act of family violence. She argues that,
29
combined, these reasonably support her acceptance of Javier’s initial explanation
of what had occurred while Andres was in his care. But Monica admitted to
Andrade that Javier had told her by phone that Andres had stopped breathing,
turned purple, and required CPR. Even if Monica was reasonable in initially
believing Javier’s explanation of events, that does not negate the obvious need for
medical evaluation following an episode of infant CPR. A reasonable factfinder
could conclude that Monica’s understanding of the reason Andres stopped
breathing did not excuse her failure to obtain medical care for him.
7. Conclusion on best interests
All but one of these Holley factors weighs, at least marginally, in DFPS’s
favor. After weighing the evidence as it relates to the Holley factors, we conclude
there is legally and factually sufficient clear and convincing evidence to support
the trial court’s best interest finding in favor of termination. Therefore, we overrule
Monica’s sixth issue. Having overruled her second issue with regard to the trial
court’s findings under Subsection 161.001(b)(1)(E) and this issue on best interests,
we affirm the trial court’s decree terminating Monica’s parental rights to Jorge and
Andres.
30
D. Conservatorship in light of termination
In her seventh issue, Monica argues that there was legally and factually
insufficient evidence to support the trial court’s order appointing DFPS as
managing conservator of the children.
When the parental rights of all living parents of a child are terminated, the
trial court must appoint a “competent adult, the Department of Family and
Protective Services, or a licensed child-placing agency as managing conservator of
the child.” TEX. FAM. CODE § 161.207(a); see In re D.K.W., Jr., No. 01-17-00622-
CV, 2017 WL 6520439, at *5 (Tex. App.—Houston [1st Dist.] Dec. 21, 2017, pet.
denied) (mem. op.). Conservatorship determinations are reviewed for an abuse of
discretion and will be reversed only if the decision is arbitrary and unreasonable. In
re J.A.J., 243 S.W.3d 611, 616 (Tex. 2007); In re A.C., 394 S.W.3d 633, 644 (Tex.
App.—Houston [1st Dist.] 2012, no pet.).
An order terminating the parent-child relationship divests a parent of legal
rights and duties with respect to the child. See TEX. FAM. CODE § 161.206(b). Once
we overrule a parent’s challenge to an order terminating her parental rights, the
trial court’s appointment of DFPS as sole managing conservator may be considered
a “consequence of the termination.” In re D.K.W., Jr., 2017 WL 6520439, at *5
(quoting In re A.S., 261 S.W.3d 76, 92 (Tex. App.—Houston [14th Dist.] 2008,
pet. denied)).
31
Because we have overruled Monica’s challenge to the portion of the trial
court’s order terminating her parental rights, the order has divested Monica of her
legal rights and duties related to Jorge and Andres. See TEX. FAM. CODE
§ 161.206(b); In re D.K.W., Jr., 2017 WL 6520439, at *5. Therefore, Monica does
not have standing to challenge the portion of the order appointing DFPS as the
boys’ conservator. Id.; see E.A. v. Texas Dep’t of Fam. & Protective Servs.,
No. 03-15-00811-CV, 2016 WL 1639847, at *4 (Tex. App.—Austin Apr. 21,
2016, pet. denied) (mem. op.) (affirming termination of mother's parental rights
and holding that mother, who had been divested of her legal rights to child, could
not challenge conservatorship determination). We overrule Monica’s seventh issue.
Conclusion
We have concluded that sufficient evidence supports the trial court’s
predicate finding under Subsection (E), best-interest finding, and order termination
of Monica’s parental rights. Because the termination of Monica’s parental rights is
upheld, she does not have standing to challenge the designation of DFPS as the
children’s managing conservator.
Therefore, we affirm.
Harvey Brown
Justice
32
Panel consists of Justices Keyes, Massengale, and Brown.
Justice Brown, concurring, joined by Justice Keyes.
33