in the Interest of M.H., II, a Child ( 2016 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-15-00263-CV
IN THE INTEREST OF M.H., II, A
CHILD
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FROM COUNTY COURT AT LAW NO. 1 OF PARKER COUNTY
TRIAL COURT NO. CIV-14-0611
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MEMORANDUM OPINION1
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After a bench trial, the trial court terminated both Mother’s and Father’s
parental rights to their son, M.H. On appeal, both Mother and Father attack the
legal and factual sufficiency of the evidence to support the trial court’s findings.
We affirm as to Father. We reverse and remand as to Mother.
1
See Tex. R. App. P. 47.4.
Background
M.H.’s Premature Birth and the CPS Investigation Soon Thereafter
M.H. was born in March 2014 by C-section. He was born premature at
thirty-two weeks. A normal term is forty weeks. M.H. did not leave the hospital
until slightly more than three weeks later, in mid-April 2014.
In April 2014, Marnie Rist, a Child Protective Services (CPS) investigator,
was assigned to investigate the case. Rist testified that the information received
by her as noted in the intake report concerned observations by hospital staff of
Father’s behavior with M.H. in the hospital room. Father was described as acting
aggressively towards the baby, engaging in “inappropriate dialect” towards the
baby, and leaving for long periods of time. The intake report also indicated that
Mother and Father were arguing in the hospital room.
Rist began her investigation by interviewing the parents. Regarding
Father’s language, Rist testified that Mother confirmed Father was trying to feed
M.H. and that Father told M.H. to “hurry up and eat you little shit.” Mother
expressed concerns about that language and did not like it. When Rist spoke to
Father about his language, Father responded that Rist was not going to tell him
how to talk to his baby. Rist testified that Father initially did not answer her
regarding whether there was anything wrong with talking to M.H. that way, but
Father later called her and explained that he was using that language as a term
of endearment.
2
Regarding the physical handling of M.H., Rist testified that the hospital
staff described Father as being “rough” with M.H. Rist noted that the baby was
very young and vulnerable. He was still in the NICU. Rist said both Mother and
Father denied that there was any reason for her concern. Rist, herself, did not
witness Father handling the baby.
When Rist asked Father about Mother and Father’s arguing in the hospital
room, Father responded that he and Mother argued like most couples, that is,
their arguing was normal and not excessive. Rist said she spoke with some of
the hospital staff about the arguments, and the hospital staff indicated the
arguing was sufficient to alarm them.
Rist also discussed drug use with the parents, although she did not see
any drugs nor did Father appear to be under the influence of any drugs. At the
hospital, Father initially denied any drug use but later admitted using “just about
everything” in the past but maintained that he was currently using only marijuana.
Father took a drug test that was positive for marijuana. Mother tested negative
for drugs.
Rist recommended that the parents go to Family Based Safety Services
(FBSS), and they agreed to counseling, parenting classes, and drug awareness
classes. Rist said she saw nothing in her contact with the parents to indicate
anything inappropriate or that reflected abuse or neglect at that time, but her
concerns were enough to refer the parents for services.
3
The FBSS worker testified that Mother and Father were cooperative. The
FBSS worker visited their home twice in May 2014. She had no concerns at that
time. Other FBSS workers went to see M.H. in June and July 2014.
Father’s Friend, C.S., and the Events of July 2014
C.S., an acquaintance of Father, had known Father about four years.
They had met when C.S.’s mother brought Father home to live with them
because Father had nowhere to stay. He had been sleeping in the parking lot
where C.S.’s mother worked. Father lived with them for about a year. C.S.’s
mother later kicked Father out because of concerns that he was doing drugs.
C.S. had seen Father smoke marijuana, and Father had told her that he
had used other drugs before she met him. She saw nothing to indicate he was
still using other drugs until after Father left her house, which she noticed because
there were times when “he was just not all there.” C.S. had seen Father get
angry but had never seen Father act out. C.S. had, on a couple of occasions,
seen Father respond with inappropriate anger given the situation. C.S. agreed
that Father had a “hair trigger.”
C.S. stayed in touch with Father after he left. She knew that he stayed
with friends “here and there,” and then got an apartment. She got him a job
where she worked and saw him on a daily basis for a while. C.S. said that he
worked there “temporarily,” and agreed that he was not able to keep any job very
long. C.S. did not remember how she met Mother but recalled that Father
introduced them and that Mother and Father were together. She knew they had
4
an apartment in Section 8 housing, that neither of them was working, and that
Mother was going to school.
C.S. learned about the baby before he was born; she recalled that both
Father and Mother were very excited. Mother was able to make all her
appointments with the doctor. C.S. visited them after the baby was home from
the hospital. She had no concerns about the baby before or after his birth until
the baby was about three months old.
On July 19, 2014, C.S. was on her way home from work when Father
messaged her, stating that he was leaving the house and that Mother had told
him he had to go because he had gotten too rough with M.H. C.S. testified that
she called Father, and Father explained that M.H. was not drinking properly, so
Father hit M.H. in the face with a towel, after which Mother told Father to leave.
C.S. testified that Father did not think he had been too rough with the baby. At
both Mother and Father’s request, C.S. then went to pick up M.H. with the idea of
keeping him for a couple days. C.S. testified that when she discussed the
incident with Mother, Mother concurred that Father had hit M.H. in the face with a
towel. C.S. said Mother thought Father was more aggressive than playful; Father
saw nothing wrong with his behavior.
C.S. kept M.H. the night of July 19, 2014. She picked M.H. up around 6:00
p.m. When C.S. took M.H. to her home that evening, C.S.’s mother, who was a
registered nurse, said that there was something wrong with M.H.’s breathing.
5
C.S. said she assumed M.H.’s breathing issues were because both Mother and
Father smoked in their home.
C.S. kept M.H. that night, but the next morning she called Mother and
Father around 7:00 a.m. and told them to take M.H. to the hospital and that, if
they were not prepared to take M.H. to the hospital, she would take M.H. to the
hospital without them. C.S. said that M.H. seemed to be having problems
breathing and had awakened in the middle of the night “kind of choking.”
Thinking that M.H. had a lot of phlegm, C.S. sat M.H. up, patted him on the back,
and put him in the swing so he could sit upright. Mother and Father took M.H. to
the Azle hospital with C.S. C.S. was present in the room with Mother and Father
and said M.H. seemed to have breathing problems; Mother and Father simply
stated that M.H. always made noises like that. The staff at the hospital said that
nothing was wrong with M.H. There were no concerns about abuse or neglect;
however, the hospital did not take any x-rays of M.H. C.S. then took Mother,
Father, and M.H. to their home. That was the last time C.S. saw Mother and
Father.
A couple of days later, Father called C.S. and accused her of doing
something to the baby. C.S. said Father complained that M.H. would not stop
crying. C.S. related that she told Father that she had done nothing to M.H. C.S.
denied injuring M.H. and said there was no possible way she hurt M.H. At trial,
C.S. testified she did not hurt M.H., she did not throw him, bounce him, drop him,
or hurt him in any way. That night was the only time she kept M.H.
6
On July 22, 2014, an investigator from the Department of Family and
Protective Services (the Department) interviewed C.S., and C.S. told the
investigator that Father had taken M.H. to Weatherford Regional Hospital, but
when the investigator called that hospital, she was told that the emergency room
there had not seen anyone with Father and M.H.’s last name. On the same day,
a worker from FBSS went to Mother and Father’s home to give them a drug test
and to deliver a mattress to them and, although the FBSS worker could hear a
TV in the house and heard what sounded like someone coming to the door, no
one answered the door. The FBSS worker also called Mother and Father’s
phone, but no one answered.
The next day, July 23, 2014, Joy Hallum, a Department investigator, and
an officer with the Springtown Police Department went to Mother and Father’s
home and knocked several times. Eventually, Father answered the door and
explained that he and Mother had been asleep all day. When Hallum asked
about M.H., Mother and Father said that they had taken him to the hospital in
Weatherford for a staff infection but that no x-rays had been done. Hallum asked
Mother and Father to take M.H. to Cook Children’s Hospital immediately, and
they did so.
At Cook Children’s Hospital, the ER physician assigned to the case
ordered a full skeletal survey, x-rays, and CT scan; the results showed a broken
rib and what appeared to be fractures of both legs. Both Mother and Father told
the investigator that they did not know how the injuries occurred. Hallum
7
obtained authorization for removal by the Department and served notice to
Mother and Father that M.H. was being taken into the care of CPS at that time
and would be placed in a temporary foster home. The Department filed its
petition for emergency removal, appointment of the Department as temporary
managing conservator, and termination of Mother and Father’s parental rights the
next day.
The Medical Testimony Regarding the July 23, 2014 Hospital Visit
Dr. Jamye Coffman was a child-abuse pediatrician and the medical
director of the CARE team, which was the child abuse program at Cook
Children’s Hospital in Fort Worth. Dr. Coffman did not personally see or examine
M.H. at the time of M.H.’s visit to the emergency room but testified based on her
review of the medical records. The x-rays showed a healing fracture on the right
tenth posterior rib.
Dr. Coffman testified that something had happened to the rib within the
previous month that caused the fracture. She explained that there was callus
formation—bone formation—showing that the bone was healing. Because
everyone healed differently, she could not narrow down when the injury occurred.
Dr. Coffman estimated the fracture was a few weeks old—possibly two, four, or
even five weeks old. Because there was callus formation, Dr. Coffman said the
injury was not something that could have happened within the previous seven to
ten days.
8
Dr. Coffman testified part of her training was to look for an explanation for
the injury. The records reflected no explanation. The child was about four
months old at the time. Because a four-month old boy could not injure himself,
Dr. Coffman was concerned about the possibility of abuse. She explained that
rib fractures can occur at childbirth, but this fracture was not four months old; it
was only weeks old. Dr. Coffman could not say whether the rib fracture was an
accident or how it happened, but she stated rib fractures in infants did not
happen in the normal handling of a child. A rib fracture like M.H.’s would not be
accidental unless someone ran him over with a car, nor could it be from dropping
him unless it was from a second story window onto something with an edge like a
curb. That type of injury required direct pressure sufficient to break the bone. Dr.
Coffman said the force needed was significant. She acknowledged there was no
history of something like that happening. In her medical opinion, a rib fracture
without an explanation and with no history of major trauma was extremely
concerning for child abuse.
Dr. Coffman acknowledged that initially there were concerns by the ER
physician who saw M.H., so that physician ordered the initial x-rays and
concluded that M.H. had bilateral leg fractures as well.2 M.H.’s legs had “some
curvature to them, and what looked like some sclerosis so it could have been a
2
The removal affidavit by the ER physician, which was apparently written
and signed by him before the radiologist saw the x-rays, identified a broken rib
and “bilateral tibial buckle fractures.”
9
healing fracture.” However, the radiologist who later interpreted the x-rays
determined there were only “possible” fractures in the legs and called for a re-
evaluation in two weeks.
Dr. Coffman explained that when she followed up with a re-evaluation of
M.H. two weeks later and examined new x-rays of his legs, the curvature looked
exactly the same with the identical thickening of the bone in the legs. If there had
been trauma, she explained, then there would have been a visible change in the
callus; the absence of any change—the absence of any healing process—meant
there was no trauma. M.H.’s leg condition was dismissed as being a “normal
variation.” There were no leg fractures.
The Family Therapist’s Testimony
Jill Bounds, a family therapist with Lena Pope Home, has a master’s
degree in marriage and family counseling and is a licensed professional
counselor. Bounds testified that she started seeing Mother and Father in
January 2015. The Department was concerned about possible drug use,
possible domestic violence, possible child abuse regarding a broken rib, and
financial issues.
As far as Bounds knew, Mother and Father were passing their drug tests
and were saying that they were through with drugs, so she did not spend much
time on drug issues. Both Mother and Father denied any domestic violence, so
they did not explore those issues either. However, they did explore anger
management and how to express anger. Father admitted having trouble with
10
anger and admitted he had made holes in their apartment from losing his temper.
Bounds did not recall if Father admitted getting angry in front of M.H. She
testified that getting angry “like that” in front of a child and a spouse was not good
because it created a climate of fear.
Regarding financial issues, Bounds testified neither parent was working
when they came to see her, and Father expressed that his last job was really
hard and that he was really depressed. Bounds said, however, that within a few
months, both Mother and Father had jobs. Bounds was aware that they had free
housing, that they had a car, and that they both had been working recently, so
she concluded that, financially, things were getting better. Early on, Father
expressed concern about losing their free housing if he earned too much.
Bounds described Mother as always being very cooperative, open, honest,
and willing to work on anything in her life. Bounds described Father as, at least
in the beginning, being very cooperative, open, and genuine. In the last few
sessions, however, things changed. Father came to sessions wearing music
headphones and dark sunglasses, fell asleep, and acted like he absolutely did
not want to be there. Bounds considered the headphones disrespectful. Bounds
said Father participated but was not really engaged. During the last three or four
sessions, she described Father as somewhat more cooperative. Bounds said
that Father understood that the court ordered the counseling sessions as part of
his service plan. Neither Mother nor Father had yet completed their counseling.
But Bounds declined to say Father had failed. Bounds hoped that “after this,”
11
(apparently referring to the trial), Father would have a better attitude, cooperate
more, and be more engaged in the therapy process.
Regarding the child abuse concerns, Bounds recalled that Father
acknowledged that he and Mother got into an argument over how he fed the
child. Father said he wiped M.H.’s face too hard while feeding him, and Mother
“called him on it.” Both Mother and Father said that the argument escalated and
that both became irrational. Bounds said Mother and Father were ready to split
up over the argument, but Father called a friend and asked the friend to help with
the baby because they were arguing. Bounds did not recall any discussion of
any rough treatment of M.H. other than this one incident.
Bounds was aware that CPS became involved because M.H. had a broken
rib. Bounds discussed that with Mother and Father as well. She said that they
had concluded that a babysitter’s four-year-old child stepped on the baby’s ribs.
When asked why they thought that, Bounds responded, “That’s the only
conclusion they could come up with.” She said that Mother and Father asserted
that the four-year-old was in the same bed as the infant. Bounds characterized
Mother as believing Father. Nevertheless, on one occasion Mother had said she
was “not a hundred percent sure” whether Father was not responsible for the rib
injury.
Regarding the holes in the wall, Mother just said she was thankful that
Father had repaired them. Bounds said Mother and Father also described an
incident of reckless behavior when Father drove a car very fast and wrecked it.
12
Bounds said that Mother and Father reported that a friend was in the car and
challenged or dared Father to “punch it,” so Father “punched it,” and the car
flipped over three times. M.H. was not in the car at the time. Bounds said
Mother expressed concern about whether Father would have done it even if M.H.
had been in the car. Bounds elaborated, “In almost [a] playful, joking[ ] manner[,]
she said I know he would have done it had the baby been in the car. He thinks
before he acts sometimes.”3 Bounds agreed that at least part of Mother was
willing to admit there was a danger.
Bounds said, “I’ve been trained to look at a person’s actions and not so
much their words. And her actions have very much been that she’s going to
stand by her man.” When asked if Mother would stand by Father to M.H.’s
detriment, Bounds responded, “[I]n my opinion there’s enough question to cause
concern for the child.” Bounds said Mother had expressed concern that Father
could be a danger to the child but had also said she was going to stand by Father
and remain with him. When asked if Bounds thought Mother would consciously
disregard the dangers Father posed to the child to keep her relationship with
Father, Bounds answered, “In my opinion it seems as if yes, that is the case.”
When asked what danger Father posed to M.H., Bounds answered, “I believe he
does have an explosive, impulsive manner about him.” Bounds did not know
what CPS’s findings were regarding whether Father or Mother broke M.H.’s ribs.
3
Bounds appeared to mean, “He acts before he thinks sometimes.”
13
Bounds acknowledged that an unknown person possibly abused the child. She
added, however, that the unknown person was potentially Father.
Bounds said that in February 2015, Father reported that he spat on his
mother’s dead body and planned to spit on his father’s dead body once his father
was deceased. Bounds testified that in February 2015, both Mother and Father
reported that Father had left knuckle marks in the steel door of their apartment
when Father punched it while angry. Bounds also recalled that in February 2015,
Father stated that he would feel like he succeeded as a father if M.H. went to jail
one less time than he had.
The couple reported the car accident to Bounds in March 2015; the car
flipped three times; Mother was in the car and received a bump on her head.
Bounds testified that in March 2015, Mother reported that she was concerned
that Father was having difficulty controlling his anger and believed Father needed
to return to anger management. Bounds said Father declined additional anger
management classes because of his work schedule.
Bounds agreed that Father had impulse control problems. Bounds said,
“His behavior still concerns me for the safety of the child.” M.H.’s age, being only
a year old, increased the concern.
The Caseworker’s Testimony
Amanda Rodriguez, Mother and Father’s caseworker after M.H.’s removal,
said she discussed M.H.’s injury with Mother and Father. They indicated to her
that they believed M.H. was left in a pack-n-play with a four-year-old child, that
14
the four-year old stepped on M.H.’s rib, and that was how M.H.’s rib was broken.
Rodriguez said they explained that C.S. had M.H. and placed him in the pack-n-
play with her four-year old. Rodriguez did not remember if Mother and Father
told her how they knew that.
Rodriguez described instances she observed during visitation times, when
she thought Father was handling M.H. roughly. She said that on December 19,
2014, Father had M.H. on Father’s knees and was holding M.H. at the waist and
moving M.H. in a circular motion. Rodriguez said M.H. did not seem to be
stabilized, so she tapped on the window of the visitation room and asked Father
to stop because M.H. was too young to be doing that. On June 12, 2015, Father
placed M.H. on his legs and shook him; however, Rodriquez was not there for
that visit and had to rely on the notations of the person who had observed the
visit. When asked how Father responded to correction, Rodriguez said, “He
typically becomes defensive and doesn’t want us to tell him how to interact with
his child.” When asked how Father responded when told why his behavior was
dangerous, Rodriguez said, “Most of the time he’ll be defensive and then he’ll
just kind of not respond after a while. Just kind of ignore me.” Rodriguez said
that when she corrected Father, Mother did not speak up or try to stop Father.
Rodriguez complained that she could instruct them not to treat a very small child
that way, but they would continue to treat the child as they had before.
Rodriguez testified that was not good for the safety of the child. Rodriguez
15
acknowledged that Father’s handling never got to the point where his visitations
were stopped or where CPS had to call the police.
Rodriguez said the court signed an order to perform the services. Father
had to complete a drug and alcohol assessment; Rodriguez said Father
completed the assessment on August 18, 2014. However, Rodriguez added that
Father was referred to a one-day drug and alcohol awareness class in Granbury
and Father had not completed that class. Rodriguez said that Father’s failure to
complete that recommendation constituted a violation of the court order.
Both Mother and Father were required to have employment. Father
provided Rodriguez with two pay stubs, one from June 9 through June 22, 2015,
with a net of $337.50, and the other from June 23 to July 6, 2015, with a net of
$429.54. Rodriguez said that Father maintained employment but failed to show
stability in employment. Rodriguez added that she did not consider waiting until
shortly before trial to get a job to constitute successfully completing the service
plan. Trial was on July 24, 2015. Rodriguez acknowledged that Father had told
her that he did not have check stubs because he worked for cash, but she did not
know if he was, in fact, working.
Rodriguez said Mother had provided her with several pay stubs since
January and had grossed $2,420.40 for the year. Rodriguez said both parents
had to complete an MHMR assessment, and both had completed those on
September 30, 2014. Neither was referred for services. Both parents were
required to do parenting classes, and both had completed those.
16
Rodriguez testified that Father had to participate in anger management
counseling. Father had completed the required eight sessions and had said he
had continued going thereafter because the couple’s marriage improved while he
was attending them, but at some point Father stopped going to them. Rodriguez
did not consider Father to have completed his anger management because she
thought Father understood that he needed to keep going to classes. Rodriguez
acknowledged, however, that Father had finished his anger management class
and that she had a copy of his anger management certificate. Rodriguez said
that Mother had to go to domestic violence counseling, Mother did the domestic
violence intake, and Mother was not offered any additional services.
Rodriguez testified that Mother and Father attended visitations with M.H.
Father missed some visits because he said he was working, but Rodriguez said
Father did not provide her with pay stubs for some of the visits he missed.
Rodriguez went to Mother and Father’s home on January 12, 2015, and, except
for the fact they smoked, thought that their home was appropriate.
Regarding random drug testing, Rodriguez said she sent both Mother and
Father for a urinalysis on January 30, 2015. Mother went; Father did not.
Rodriguez sent both again on March 13, 2015; Father was positive for marijuana;
Mother was negative. Rodriguez sent them for a urinalysis on July 10, 2015;
Mother went and was negative, but Father did not go.
Rodriguez testified that both Mother and Father were required to do
individual counseling and that neither had completed that requirement.
17
Rodriguez said that the initial referral for counseling expired, so a second referral
was done on November 6, 2014, but Mother and Father waited until January 7,
2015, to start counseling. However, Rodriguez acknowledged that there was a
waiting list of four to six weeks at the Lena Pope Home; in Mother and Father’s
case, it had taken eight weeks. Rodriguez conceded the holidays in December
might have contributed to the delay.
Rodriguez said Mother never expressed to her a willingness to protect
M.H. from Father. Rodriguez said Mother worked her service plan better than
Father but even she had not worked it completely. Rodriguez testified that the
big concern was protecting M.H., but Mother had not done anything to help
Rodriguez believe that Mother would protect M.H. Rodriguez acknowledged that
Mother had expressed concerns about how Father treated M.H.; however,
despite the fact Rodriguez told Mother that the explanation that a four-year-old
caused M.H.’s injuries was not realistic, Mother persisted in believing Father did
not injure M.H. Rodriguez said that the only alternative explanation the parents
gave to explain M.H.’s injuries was not possible.
Rodriguez thought termination as to both parents was in M.H.’s best
interest. She explained that it was not known how M.H. was injured and that it
was not known who injured M.H. She also said that Father’s failure to complete
services left an issue regarding his anger. Additionally, Father’s positive drug
test and other instances of not showing up for drug tests indicated a substance
abuse issue in the home. Finally, Rodriguez said that Mother thought it was
18
possible Father had injured M.H. but was nevertheless not willing to protect M.H.
Rodriguez testified that both Father and Mother knowingly placed or knowingly
allowed M.H. to remain in conditions or surroundings that endangered his
physical or emotional well-being. Additionally, she said both Father and Mother
engaged in conduct or knowingly placed M.H. with persons who engaged in
conduct that endangered M.H.’s physical or emotional well-being.
Rodriguez said she was aware Father had basically raised himself from
the age of fifteen and thought that might have contributed to some of his
inappropriate actions. Rodriguez described Father’s demeanor as not talking
very much and as being defensive most of the time when he did talk. When
asked if Father seemed to love his child, Rodriguez answered, “He doesn’t seem
engaged in visitations.” She agreed, however, that Father’s personality was such
that he did not appear engaged outwardly. Rodriguez acknowledged that no one
ever admitted injuring M.H. However, she said the child was not in anyone else’s
care during the time frame that Dr. Coffman said the injury had occurred.
Rodriguez related that after the family group conference in August 2014, a
home study was completed on A.L. and C.L. C.L. was Mother’s sister. A.L. was
C.L’s husband. The home study was denied because A.L. and C.L. did not have
financial stability or stable housing. There were also concerns about their
protectiveness of M.H. because they did not believe either Mother or Father was
responsible for M.H.’s injuries. Rodriguez said there was also an aunt from
Oregon who called, but when she returned the aunt’s call, the aunt never called
19
back. Besides A.L., C.L., and this aunt, Mother and Father did not ask Rodriguez
to look at anyone else for placement.
Rodriguez had observed Mother during supervised visits and found her to
be a loving and attentive parent. Rodriguez said her main problem with Mother
was that Mother had knowledge that Father had been rough with M.H. but
continued to stay with Father. But Rodriguez denied ever telling Mother that
Mother needed to separate from Father. Rodriguez said Mother had been
cooperative and had never been argumentative that she could recall.
Rodriguez said that after Father tested positive for drugs in March 2015,
she asked him to complete a packet for quitting marijuana. She said that Father
responded by tossing the packet at her and telling her that he was not going to
complete it unless it was ordered by the court. She said Father was not trying to
deal with his issues.
Rodriguez said Father fell asleep during visits with M.H. a couple of times.
Rodriguez testified that during visits Father would frequently have his phone out
and would be texting. Once when M.H. made a mess while being fed and when
Mother had mentioned that they needed to clean the mess up, Father responded
that “CPS needed to stop being lazy and do some work. And he didn’t give a shit
about their complaints either.” Rodriguez said that although the Department had
offered services with the hope of Father becoming a better parent, she did not
believe Father had made any progress. Rodriguez said that although Mother
was generally respectful toward her and responsive to her, Father was not.
20
Rodriguez said she had checked Father’s CPS history and determined he
was an alleged perpetrator in 2008. She said the Department found reason to
believe Father had sexually abused his stepbrother. Rodriguez thought Father’s
stepbrother was about four at the time. There were other children in the home at
the time, and Father’s father told Father that he had to leave the residence.
Rodriguez said she was not aware whether the case against Father had been
dismissed after Father took a lie detector test. On the other hand, Rodriguez
said that she was aware that the four-year-old made an extremely specific outcry.
Father said things that concerned Rodriguez. For example, Father said he
would go to prison if his rights were terminated. Rodriguez testified at length
about the hazards Mother faced by remaining with Father. Rodriguez said,
I explained to them that the rib that was broken, and I
explained to them that it would have to be an excessive amount of
force placed directly on that rib to fracture the rib. And that it wasn’t
plausible that a four[-]year[-]old did that. So the concern was that
one of them injured the child, and that if neither of them would
confess, then it would likely result in termination of both of their
parental rights because one of them was likely to be the perpetrator
and the other one would not have been protective of the other parent
[sic].4
Rodriguez maintained that she made that clear to Mother and Father very early,
probably from the time she gave them their service plans. Rodriguez said that
the Department had to look at the parents as one parental unit. Rodriguez
4
Rodriguez appears to have meant that if one parent was the perpetrator
and the other parent remained with the perpetrator, the other parent would not be
protective of the child.
21
continued, “It’s explained to them in the beginning that if they are going to remain
together, that they are seen as a unit. And so one person not completing
services will directly impact the other person.” Yet Rodriguez denied ever
specifically telling Mother that she would have to leave Father. Even if Mother
now said that she was willing to leave Father, Rodriguez’s position was that it
would make no difference: “She’s had plenty of time to leave him.” Rodriguez
asserted that Mother was aware she should leave Father because, in counseling,
Mother stated that was what her attorney told her. Rodriguez elaborated,
I made it clear that there’s an unknown perpetrator. And that if
there is an unknown perpetrator and nobody comes forward, and
they’re saying that either it was this four[-]year[-]old or them and the
four[-]year[-]old is not plausible, then it must be one of them. And if
she knows in her mind that it wasn’t her, which would only leave one
person, and she still hasn’t left him, and she can’t—she hasn’t
proven that she can be stable individually from him, then—I mean, I
haven’t had time to assess her individually because she has not
made that choice despite her attorney telling her that that would be
in her best interest.
Rodriguez said, “There’s an unknown perpetrator. I’m not sure which one it is.”
Rodriguez explained to Mother and Father that it was medically impossible for
the babysitter’s four-year-old to have caused the broken rib, and she said that
their only response was that they did not know. Rodriguez stated that if the
parents came up with a response other than the four-year-old today, that would
be first time she heard a different explanation. Their only explanations were that
either C.S. or C.S.’s four-year-old did it.
22
Father’s Testimony
Father testified that he was cleared of the child molestation charges
against his stepbrother and that the case was dismissed. Father said he
despised his parents and spat on his mother’s grave for putting him through the
molestation ordeal. Father acknowledged having issues because of the way he
grew up. He described his upbringing as “[p]retty difficult.” Father said he raised
himself from the age of fifteen and that he had been homeless. He described
himself as impulsive and as sometimes acting in a manner that took other people
aback.
Father testified that he loved M.H. and would not do anything to hurt him.
Father denied ever doing anything to hurt M.H. and, more specifically, denied
ever doing anything that could have caused M.H.’s rib injury. He denied ever
punching, throwing, or dropping M.H. Father said the nurses at the hospital
misread his intentions. He maintained that he called his son a “little shit” in a
joking manner. Father admitted falling asleep a couple times during visits. He
said it was due to his work.
Father admitted he had anger management issues. But he denied ever
taking his anger out on M.H. or on Mother. Father denied ever engaging in
domestic violence against Mother. He denied ever popping M.H. in the face with
a towel or rag. It was before M.H. was born, Father said, that he would let out his
frustrations by putting holes in walls or by denting a steel door.
23
Father said he loved Mother. Father did not want to leave Mother, and he
asserted Mother did not want to leave him. However, if it meant Mother could get
M.H. back, Father said that he and Mother would most likely separate. Father
testified that he would separate from Mother for M.H.’s sake.
Father asserted that he would not admit doing something he did not do.
He said the only other persons who had access to M.H. were Mother and C.S.
Father agreed that C.S. had M.H. for only twelve hours. Father said the doctor
was wrong when the doctor said that the injury had to have happened a couple
weeks before C.S. took M.H. for the night. Father said (if the doctor was right)
the only other person who could have injured M.H. was Mother, and Father said
he knew Mother did not hurt M.H. because he trusted her. Father said he knew
he did not injure M.H. Father acknowledged that five other people cared for M.H,
but he thought C.S. was the one who injured M.H. and asserted that no one else
could have done it.
When asked if his hair was pink or hot pink, Father responded that it was
red. Father did not think that his hair affected his employability. If his hair
became an issue, Father said he would shave his head. Father said he worked
in the oil fields until M.H.’s removal. After the removal, Father said he quit his job
because he was depressed and was not functioning properly at work.
Father acknowledged his attitude adjustment was an on-going thing. He
did not, however, think that that made him a bad father or that it was a reason to
terminate his parental rights. Father acknowledged being impulsive. When
24
asked if rolling the car would have affected M.H. if M.H. had been in the car or if
either Father or Mother had been killed, Father answered, “Yes,” but when asked
if the court should consider his rolling the car, Father answered that his parental
rights should not be terminated on “what if’s.”
When asked if he had a problem with authority, Father answered, “Very
much so.” Father said his problem with authority did not affect his
employer/employee relations. Father denied that a boss or employer was a
person who had authority over him. Father said not having a job would not affect
his ability to provide for M.H. Father explained that there were always food
stamps and government-subsidized housing.
Mother’s Testimony
Mother testified that she was twenty-one at the time of trial and had
married Father in 2013. Mother denied causing M.H.’s injuries, denied shaking
M.H., denied ever seeing M.H. fall, and denied squeezing M.H.
Mother said M.H. was born in March 2014 and was delivered by C-section.
M.H. left the hospital in mid-April. Until C.S. took everyone to the hospital,
Mother asserted M.H. did not have any health complications. Mother’s sister,
C.L., babysat M.H. almost every weekend, and Mother’s mother would visit and
watch M.H. Mother’s other sister, C.T., helped with M.H. as well.
Mother denied that Father had ever been abusive towards her or towards
M.H. Regarding the face-wiping incident, Mother said Father was wiping milk off
M.H., and M.H. started crying, so she asked Father to be more gentle. Mother
25
denied that Father was necessarily wiping too roughly and maintained that the
problem was that, because he was a “preemie,” M.H. had very sensitive skin.
Mother said a verbal fight followed. Father called a friend, C.S., and M.H. spent
that night with C.S. Mother thought C.S. left with M.H. around 7:30 and returned
with M.H. around 8:00 or 8:30 the next morning. They went to the Azle hospital
that day and were discharged after a few hours.
Mother said M.H. began crying every time she tried to move him, so her
mother took them to a second hospital in Weatherford. Mother thought M.H. was
constipated. Mother said that the doctor said M.H. looked fine and to put some
cream on M.H. Mother said that the cream seemed to help, and M.H. seemed
fine. Nothing was said at the second hospital about M.H.’s crying, and no x-rays
were done.
Mother said that on July 23, 2014, around 9:00 or 10:00 in the morning,
someone knocked on the door, Father answered, and an officer and a CPS
investigator came inside. They got a ride from a neighbor and went to Cook
Children’s, where M.H. got CAT scans and x-rays. They were at the hospital all
day, and M.H. was not released to their care. Mother testified that when they
saw M.H. that next Friday, M.H. looked happy and healthy.
Regarding whether Father injured M.H., Mother said, “Well, I can’t see him
hurting his kid. I see the way he is with his kid, I can tell he loves his kid. I can’t
see him physically harming his kid. And they have no evidence against him.”
Mother testified that she did not know who harmed M.H. However, Mother said,
26
to keep M.H., she would leave Father. Mother testified that she could provide a
good home for M.H., that she had a job, and that she qualified for some public
assistance. Mother said her mother and sisters would help support her. Mother
testified that Father acted first and thought later most of the time and
acknowledged that, depending on the situation, that type of thinking could put
M.H. in harm’s way.
Mother denied M.H. was exhibiting symptoms on July 19, 2014, and
denied that he was sensitive to the touch. Mother testified that M.H. did not show
any symptoms of discomfort until after they got him back from the hospital.
Mother thought that if Dr. Coffman was correct, M.H. should have exhibited some
symptoms after the injury and before July 19. Mother thought the injury occurred
while M.H. was with C.S. because that was when M.H. started showing
symptoms of being harmed.
Mother acknowledged that when CPS took her child, she started crying
because she felt she had failed to protect him. Something had happened that
she was not aware of. Mother said she did not think she was being treated fairly;
she asserted that the Department was blaming her because it had no one else to
blame. Mother did not understand why the Department had concerns about her
ability to protect M.H. if she remained with Father.
27
The Trial Court’s Findings on Termination and
the Parties’ Grounds of Error
The trial court terminated Mother’s parental rights after finding that Mother
had knowingly placed or knowingly allowed the child to remain in conditions or
surroundings that endangered the physical or emotional well-being of the child
and that termination of the parent-child relationship between Mother and the child
was in the child’s best interest. See Tex. Fam. Code Ann. §§ 161.001(b)(1)(D),
161.001(b)(2) (West Supp. 2015).5 In two grounds of error, Mother argues that
the evidence is legally and factually insufficient (1) to support the finding that she
knowingly placed or knowingly allowed the child to remain in conditions or
surroundings that endangered the emotional or physical well-being of the child
and (2) to support the finding that termination of her rights was in the child’s best
interest.
The trial court terminated Father’s parental rights after finding two grounds.
First, that Father had engaged in conduct or knowingly placed the child with
persons who engaged in conduct that endangered the physical or emotional well-
being of the child, and second, that Father had failed to comply with the
provisions of a court order that specifically established the actions necessary for
5
Formerly Tex. Fam. Code Ann. §§ 161.001(1)(D), 161.001(2). See Act of
Mar. 19, 2015, 84th Leg., R.S., ch. 1, § 1.078, sec. 161.001, 2015 Tex. Sess.
Law Serv. 1, 18–19 (West) (codified at Tex. Fam. Code Ann.
§§ 161.001(b)(1)(D), 161.001(b)(2)).
28
Father to obtain the return of the child. See Tex. Fam. Code Ann.
§§ 161.001(b)(1)(E), (O) (West Supp. 2015).6 Father does not contest either of
these findings. The trial court also found that termination of the parent-child
relationship between Father and the child was in the child’s best interest. See id.
§ 161.001(b)(2) (West Supp. 2015).7 In a sole ground of error, Father maintains
that the evidence is legally and factually insufficient to support the finding that
termination of his parental rights was in the child’s best interest.
Standard of Review
We strictly scrutinize termination proceedings and construe involuntary
termination statutes in favor of the parent. In re E.N.C., 384 S.W.3d 796, 802
(Tex. 2012); In re E.R., 385 S.W.3d 552, 554–55 (Tex. 2012); Holick v. Smith,
685 S.W.2d 18, 20–21 (Tex. 1985). Parental rights, although constitutional in
dimension, are not absolute. See In re A.B., 437 S.W.3d 498, 503 (Tex. 2014).
Termination decisions must be supported by clear and convincing
evidence. Tex. Fam. Code Ann. §§ 161.001(b) (West Supp. 2015),8 161.206(a)
6
Formerly Tex. Fam. Code Ann. §§ 161.001(1)(E), (O). See Act of Mar.
19, 2015, 84th Leg., R.S., ch. 1, § 1.078, sec. 161.001, 2015 Tex. Sess. Law
Serv. 1, 18–19 (West) (codified at Tex. Fam. Code Ann. §§ 161.001(b)(1)(E),
(O)).
7
Formerly Tex. Fam. Code Ann. § 161.001(2). See Act of Mar. 19, 2015,
84th Leg., R.S., ch. 1, § 1.078, sec. 161.001, 2015 Tex. Sess. Law Serv. 1, 18–
19 (West) (codified at Tex. Fam. Code Ann. § 161.001(b)(2)).
8
Formerly Tex. Fam. Code Ann. § 161.001. See Act of Mar. 19, 2015, 84th
Leg., R.S., ch. 1, § 1.078, sec. 161.001, 2015 Tex. Sess. Law Serv. 1, 18 (West)
(codified at Tex. Fam. Code Ann. § 161.001(b)).
29
(West 2014). Evidence is clear and convincing if it “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.” Id. § 101.007 (West 2014). “[C]onjecture is not enough.”
E.N.C., 384 S.W.3d at 810. Therefore, to justify termination of a parent-child
relationship, the Department must establish by clear and convincing evidence
that the parent’s actions satisfy one ground listed in family code section
161.001(b)(1) and that termination is in the best interest of the child. Tex. Fam.
Code Ann. § 161.001(b); E.N.C., 384 S.W.3d at 803. Both elements must be
established; termination may not be based solely on the best interest of the child
as determined by the trier of fact. Tex. Dept. of Human Servs. v. Boyd, 727
S.W.2d 531, 533 (Tex. 1987); In re C.D.E., 391 S.W.3d 287, 295 (Tex. App.—
Fort Worth 2012, no pet.). We need not exhaustively detail the relevant evidence
supporting the termination decision if we are affirming the fact-finder’s decision.
A.B., 437 S.W.3d at 500.
Legal Sufficiency
In evaluating the evidence for legal sufficiency in parental termination
cases, we determine whether the evidence is such that a fact-finder could
reasonably form a firm belief or conviction that the challenged ground for
termination and best interest were proven. See In re J.P.B., 180 S.W.3d 570,
573 (Tex. 2005). We review all the evidence in the light most favorable to the
finding and judgment. Id. We resolve any disputed facts in favor of the finding if
a reasonable fact-finder could have done so. Id. We disregard all evidence that
30
a reasonable fact-finder could have disbelieved. Id. We consider undisputed
evidence even if it is contrary to the finding. Id. That is, we consider evidence
favorable to termination if a reasonable fact-finder could, and we disregard
contrary evidence unless a reasonable fact-finder could not. See id. “A lack of
evidence does not constitute clear and convincing evidence.” E.N.C., 384
S.W.3d at 808.
We cannot weigh witness credibility issues that depend on the appearance
and demeanor of the witnesses because that is the fact-finder’s province. J.P.B.,
180 S.W.3d at 573–74. And even when credibility issues appear in the appellate
record, we defer to the fact-finder’s determinations as long as they are not
unreasonable. Id. at 573. If we determine that no reasonable fact-finder could
form a firm belief or conviction that the grounds for termination or best interest
were proven, then the evidence is legally insufficient, and we must generally
render judgment for the parent. In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002);
see Tex. R. App. P. 43.3.
Factual Sufficiency
We are required to perform “an exacting review of the entire record” in
determining whether the evidence is factually sufficient to support the termination
of a parent-child relationship. A.B., 437 S.W.3d at 500. In reviewing the
evidence for factual sufficiency, we give due deference to the fact-finder’s
findings and do not supplant the trial court’s findings with our own. In re H.R.M.,
209 S.W.3d 105, 108 (Tex. 2006). The inquiry to be made in a factual sufficiency
31
review is whether all of the evidence, when viewed in a neutral light, is such that
a fact-finder could reasonably form a firm belief or conviction about the truth of
the allegations. In re C.H., 89 S.W.3d 17, 25 (Tex. 2002); In re X.R.L., 461
S.W.3d 633, 639 (Tex. App.—Texarkana 2015, no pet.); In re A.B., 412 S.W.3d
588, 607 (Tex. App.—Fort Worth 2013) (op. on reh’g), aff’d, 437 S.W.3d 498
(Tex. 2014); In re J.L.B., 349 S.W.3d 836, 846 (Tex. App.—Texarkana 2011, no
pet.).
If, in light of the entire record, the disputed evidence that a reasonable fact-
finder could not have credited in favor of the finding is so significant that a fact-
finder could not reasonably have formed a firm belief or conviction in the truth of
its finding, then the evidence is factually insufficient. H.R.M., 209 S.W.3d at 108.
If we reverse on factual sufficiency grounds, then we must detail in our opinion
why we have concluded that a reasonable fact-finder could not have credited
disputed evidence in favor of its finding. J.F.C., 96 S.W.3d at 266–67. While we
are encouraged to detail the evidence when we affirm, we are not required to do
so. A.B., 437 S.W.3d at 507; In re D.A., No. 02-14-00076-CV, 2014 WL
3778234, at *20 (Tex. App.—Fort Worth July 31, 2014, no pet.) (mem. op.)
(noting that we are not required to detail all the evidence when affirming on
factual sufficiency grounds). We must, however, still state the “basic reasons” for
our decision. See Tex. R. App. P. 47.1, 47.4; Gonzalez v. McAllen Med. Ctr.,
Inc., 195 S.W.3d 680, 681–82 (Tex. 2006).
32
Father’s Sole Ground of Error
Best Interest9
In Father’s sole ground of error, he maintains that the evidence is legally
and factually insufficient to support the findings that termination of his parental
rights was in the child’s best interest. We review the entire record to determine
the child’s best interest. In re E.C.R., 402 S.W.3d 239, 250 (Tex. 2013). The
same evidence may be probative of both the grounds and best-interest
determinations. C.H., 89 S.W.3d at 28; see E.C.R., 402 S.W.3d at 249.
Nonexclusive factors that the trier of fact in a termination case may use in
determining the best interest of the child include: (A) the desires of the child; (B)
the emotional and physical needs of the child now and in the future; (C) the
emotional and physical danger to the child now and in the future; (D) the parental
abilities of the individuals seeking custody; (E) the programs available to assist
these individuals to promote the best interest of the child; (F) the plans for the
child by these individuals or by the agency seeking custody; (G) the stability of
the home or proposed placement; (H) the acts or omissions of the parent that
may indicate that the existing parent-child relationship is not a proper one; and (I)
any excuse for the acts or omissions of the parent. E.N.C., 384 S.W.3d at 807
(citing Holley, 544 S.W.2d at 371–72); see E.C.R., 402 S.W.3d at 249 (stating
9
Because we are holding that the Department failed to establish grounds
on Mother, we need not address her sufficiency challenges attacking best
interest. See Tex. R. App. P. 47.1. To successfully terminate, the Department
had to prove both at least one predicate ground and best interest. See Holley v.
Adams, 544 S.W.2d 367, 370 (Tex. 1976).
33
that in reviewing a best interest finding, “we consider, among other evidence, the
Holley factors”). These factors are not exhaustive, and some listed factors may
be inapplicable to some cases. C.H., 89 S.W.3d at 27. Furthermore, undisputed
evidence of just one factor may be sufficient in a particular case to support a
finding that termination is in the best interest of the child. Id. On the other hand,
the presence of scant evidence relevant to each factor will not support such a
finding. Id. That is, “[a] lack of evidence does not constitute clear and convincing
evidence.” E.N.C., 384 S.W.3d at 808.
Dr. Coffman’s testimony showed that M.H.’s rib fracture occurred a week
or more before July 23, 2014. If true, this meant neither C.S. nor her four-year-
old child were responsible for M.H.’s rib fracture, because C.S. had M.H. for only
the night of July 19 and 20, 2014. The trial court was within its discretion to
believe Dr. Coffman. The fact-finder is the sole judge of the credibility of the
witnesses and the weight to be given their testimony; the fact-finder may choose
to believe one witness and disbelieve another. See City of Keller v. Wilson, 168
S.W.3d 802, 819 (Tex. 2005).
Additionally, Dr. Coffman’s testimony showed that the amount of force
necessary to break M.H.’s rib had to be significant. She described the force
necessary to break the rib as running over the child with a car or dropping the
child out of two-story building onto an object with an edge. As a baby, M.H. was
not capable of injuring himself in this manner. Mother and Father’s explanation—
34
that a four-year-old stepping on M.H. broke M.H.’s rib—did not remotely come
close to the tremendous amount of force necessary to break M.H.’s rib.
There was no evidence of any accident, minor or major, involving M.H. Dr.
Coffman’s testimony effectively showed that if an accident did not account for the
broken rib, the only other plausible explanation was abuse. As there was no
evidence of any accident, the trial court was within its discretion to believe that
the broken rib was the product of abuse. See id. The question then became one
of determining who had access to the baby.
The other evidence established that the only other persons who could
have caused the injuries were Mother and Father. As between Mother and
Father, the evidence showed that Father angered quickly or, as one witness
described it, Father had a “hair trigger”; Father was impulsive to a reckless
degree, as evidenced by the car accident prompted by nothing more than a dare;
and Father was the only source of the extreme violence needed to break M.H.’s
rib, as shown by the fact that Father was capable of putting holes in walls and
dents in steel doors with his fists. Nothing indicated Mother had the
temperament to injure M.H., and nothing indicated Mother was capable of the
tremendous violence needed to break a rib. Father, on the other hand, when
angry, was capable of punching holes in walls and denting steel doors with his
knuckles. Father denied hurting M.H.; however, it was within the trial court’s
discretion not to believe him. See id.
35
The crux of this case was the danger to M.H.’s physical or emotional
wellbeing now and in the future. Although the evidence was clear and convincing
that Father was the person who injured M.H, Father refused to admit it. Father
preferred to cast the blame on C.S. or C.S.’s four-year-old child when other
evidence showed that was not possilble. Father’s response to the injury of his
child was one of avoidance of responsibility.
Father acknowledged having anger management issues at trial, but Father
refused to continue anger management counseling. Mother had even
complained about Father’s failure to continue anger management counseling. To
the extent of Father took corrective measures to address his anger management,
he failed to fully assuage concerns. The fact-finder could have reasonably
concluded that Father’s anger issues remained unresolved.
Viewing all the evidence in the light most favorable to the finding of best
interest and resolving any disputed fact in favor of that finding, we hold that a
fact-finder could have reasonably formed a firm belief or conviction that best
interest was proven and, therefore, that the evidence was legally sufficient. See
J.P.B., 180 S.W.3d at 573. Giving due deference to the fact-finder’s finding, we
hold that based on the entire record, a fact-finder could have reasonably formed
a firm conviction or belief that best interest was proven; we hold that the
evidence was factually sufficient. See H.R.M., 209 S.W.3d at 108; C.H., 89
S.W.3d at 25. We overrule Father’s sole ground of error.
36
Mother’s First Ground of Error
Grounds under Section 161.001(b)(1)(D)
In her first ground of error, Mother argues that the evidence is legally and
factually insufficient to support the finding that she knowingly placed or knowingly
allowed the child to remain in conditions or surroundings that endangered the
emotional or physical well-being of the child. Mother is attacking the trial court’s
finding under subsection (D) of section 161.001(b)(1). See Tex. Fam. Code Ann.
§ 161.001(b)(1)(D). Under subsection (D), courts examine the time before the
child’s removal to determine whether the environment of the home posed a
danger to the child’s physical or emotional well-being. In re L.E.S., 471 S.W.3d
915, 925 (Tex. App.—Texarkana 2015, no pet.).
“Endanger” means to jeopardize or to expose to loss or injury. Boyd, 727
S.W.2d at 533; In re J.T.G., 121 S.W.3d 117, 125 (Tex. App.—Fort Worth 2003,
no pet.). Under subsection (D), it is necessary to examine evidence related to
the environment of the child to determine if the environment was the source of
endangerment to the child’s physical or emotional well-being. J.T.G., 121
S.W.3d at 125. A child is endangered under subsection (D) when the
environment creates a potential for danger to which the parent “knowingly”
subjects the child. See, e.g., In re T.H., 131 S.W.3d 598, 603 (Tex. App.—
Texarkana 2004, pet. denied) ("[E]ven if clear and convincing evidence
supported the trial court's finding that the environment posed a danger to T.H.'s
well-being, the Department failed to show that [the father] knowingly placed or
37
allowed T.H. to remain in such an environment."); In re B.S.T., 977 S.W.2d 481,
485–86 (Tex. App.—Houston [14th Dist.] 1998, no pet.), disapproved on other
grounds, C.H. S.W.3d at 25–26 (finding legally insufficient evidence to support
termination under subsection D because there was no evidence that father knew
his children were in an endangering environment); In re J.R., 171 S.W.3d 558,
571 (Tex. App.—Houston [14th Dist.] 2005, no pet.) (holding evidence insufficient
to show Mother knowingly allowed children to remain in endangering
environment when she moved in with sex offender and record failed to show she
knew of conviction for sex offense).
Inappropriate, abusive, or unlawful conduct by persons who live in the
child’s home or with whom the child is compelled to associate on a regular basis
in his home is a part of the “conditions or surroundings” of the child’s home under
section 161.001(b)(1)(D). See In re W.S., 899 S.W.2d 772, 776 (Tex. App.—Fort
Worth 1995, no writ) (stating that “environment” refers not only to the
acceptability of living conditions but also to a parent’s conduct in the home).
Parental and caregiver illegal drug use and drug-related criminal activity supports
the conclusion that the children’s surroundings endanger their physical or
emotional well-being. See In re S.D., 980 S.W.2d 758, 763 (Tex. App.—San
Antonio 1998, pet. denied).
We focus on whether, at the time of the removal, Mother had “knowingly
placed or knowingly allowed” M.H. to remain in conditions or surroundings that
endangered his emotional or physical well-being. There was evidence showing
38
that, even before the removal, Mother was aware Father was capable of fits of
explosive violence. Mother was aware of the holes punched into walls. Mother
had witnessed Father handling M.H. roughly enough to complain about it and
enough to threaten to leave him precisely for that reason. Viewing the evidence
in the light most favorable to the judgment, we hold that the evidence is legally
sufficient to show that Mother knowingly placed or knowingly allowed M.H. to
remain in conditions or surroundings that endangered M.H.’s physical well-being.
See J.P.B., 180 S.W.3d at 573 (setting out standard for legal sufficiency). We
overrule Mother’s first issue to the extent she complains about the legal
sufficiency of the evidence. The remaining question is whether the evidence was
factually sufficient.
A great deal of other evidence attenuated or raised questions about what
Mother knew precisely before the removal. According due deference to the fact-
finder’s findings, for the reasons set out below, we nevertheless hold that a
rational trier of fact could not have found that the evidence, when viewed in a
neutral light, was clear and convincing that Mother knowingly placed or knowingly
allowed M.H. to remain in conditions or surroundings that endangered the
emotional or physical well-being of M.H. See H.R.M., 209 S.W.3d at 108; C.H.,
89 S.W.3d at 25.
Although Father punched holes in the walls and dented steel doors with his
knuckles, Mother did not equate the violence Father directed at these inanimate
objects with danger to herself or to M.H. There was no evidence of domestic
39
violence between Mother and Father. The family therapist did not know if Father
engaged in this conduct in front of M.H. or Mother. The family therapist did not
even know if Father put the holes in the walls before M.H. was born. Mother
made it clear that the idea of Father hurting M.H. was, to her, unthinkable.
Although we might question her judgment for purposes of best interest,
especially after the additional evidence provided by the trip to Cook Children’s
Hospital, the evidence showed Mother had a blind spot to the danger Father’s
anger and violence posed to both her and their child.
Mother had complained about Father’s rough handling of M.H. But the
other evidence showed that the rough handling was not enough to cause hospital
staff, the caseworker, or other Department monitors to physically separate Father
from M.H., and, despite the rough handling, there was no evidence the
caseworker sought to stop any visits between Father and M.H. Father’s rough
handling of M.H. certainly raised concerns, but whatever the line is between
cause for concern and actual endangerment, the hospital staff, the caseworker,
and the Department monitor showed by their actions that Father had not crossed
it. The evidence showed Mother, when alone with Father, spoke up to protest
Father’s rough handling of M.H. Mother’s protests may have been the subject of
the arguments at the hospital that the staff complained about, and Mother’s
protests were what prompted Father to call C.S. on July 19, 2014. We hesitate
to fault Mother for how she handled Father when the caseworker handled
Father’s behavior in the same way—with an admonishment to stop. The
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evidence showed that Father was recalcitrant to any admonishments, whatever
their source. During visits, when the caseworker instructed Father to change his
behavior, the caseworker faulted Mother for not also instructing Father to modify
his behavior. Under those circumstances, however, Mother’s admonishment
would have been redundant, and, given Father’s temperament, might have
served only to antagonize him. Mother’s failure to add her admonishment on top
of the caseworker’s admonishment carries little weight as evidence of a failure to
protect, especially where, when alone, Mother had shown the ability to speak up.
Father “punched it” in a car on a dare and ended up flipping the car three
times. Father did this while Mother was in the car with him. Mother prophesied
that Father would have engaged in the same conduct even if M.H. had been in
the car. This car accident, however, was in March 2015, after the removal.
Mother did not have the benefit of the insight this incident provided into Father’s
impulsiveness and recklessness until after the removal. Her failure to recognize
the danger Father’s impulsiveness and recklessness posed even after this
incident might raise questions about best interest, but best interest is not what we
currently are deciding. This March 2015 incident is not evidence of what Mother
knew before July 23, 2014.
To determine whether a parent knowingly placed or knowingly allowed a
child to remain in circumstances that posed a danger to the child, we are to
examine the time prior to removal in determining whether the environment of the
home posed a danger. See L.E.S., 471 S.W.3d at 926 (“In evaluating
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termination under ground (D), . . . we are to examine the time prior to . . . removal
to determine whether the environment of the home posed a danger to [the
child’s] physical or emotional well-being.”). Subsection D is not a basis for
terminating parental rights if the parent was unaware of the endangering
environment. See T.H., 131 S.W.3d at 603 (“[E]ven if clear and convincing
evidence supported the trial court’s finding that the environment posed a danger
to T.H.’s well-being, the Department failed to show that [the father] knowingly
placed or allowed T.H. to remain in such an environment.”); B.S.T., 977 S.W.2d
at 485 (finding legally insufficient evidence to support termination under
subsection D because there was no evidence that the father knew his children
were in an endangering environment).10
Mother said she observed no symptoms from M.H. before July 19, 2014.
There was no testimony about how a baby would react to a broken rib like the
one M.H. experienced. Common sense would suggest M.H. would have shown
intense pain and discomfort. On the other hand, C.S. described M.H.’s problems
on the night of July 19, 2014, as breathing issues caused perhaps by Mother’s
and Father’s smoking. During the middle of the night, C.S. thought M.H. was
10
However, a parent need not know for certain that the child is in an
endangering environment; awareness of such a potential is sufficient. See In re
S.M.L., 171 S.W.3d 472, 477–78 (Tex. App.—Houston [14th Dist.] 2005, no pet.);
In re C.L.C., 119 S.W.3d 382, 392 (Tex. App.—Tyler 2003, no pet.) (“It is
sufficient that the parent was aware of the potential for danger to the child in such
environment and disregarded that risk.”); In re Tidwell, 35 S.W.3d 115, 119–20
(Tex. App.—Texarkana 2000, no pet.).
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choking, but she thought it might be due to phlegm. The doctors at the Azle
hospital said nothing was wrong with M.H. on July 20, 2014. Even on July 23,
2014, when M.H. was taken to Cook Children’s Hospital, M.H. had no observable
injuries or bruising and, until after the x-rays were taken, no one could say
definitively whether M.H. was injured. In short, there was a great deal of
evidence showing that although something was apparently wrong with M.H.,
whatever was wrong with him was not immediately recognizable as a broken rib
or, for that matter, even as some sort of physical abuse.
Father attributed M.H.’s behavior after July 19, 2014, to something C.S.
had done to M.H. during the night of July 19 and 20, 2014. The x-rays from July
23, 2014, however, exculpated C.S. They identified the injury, identified the force
necessary to cause the injury, and placed the injury well before C.S. had M.H. in
her possession. The x-rays from July 23, 2014, however, were not available to
Mother until after the trip to Cook Children’s Hospital, and from Cook Children’s
Hospital, M.H. was not thereafter released to Mother and Father’s care. Before
the trip to Cook Children’s Hospital, as noted above, Mother had a plausible
basis for not knowing about the injury and, as discussed here, assuming there
was an injury, a plausible basis for suspecting C.S., not Father, was the cause of
it. There was a rational basis for concluding Father lied to Mother about injuring
M.H. in the first place and thereafter lied to Mother about C.S. being the person
who caused M.H.’s injuries. If Father admitted injuring M.H., Father risked his
relationship with Mother, risked his parental rights with M.H., and risked a
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criminal indictment for injury to a child. See Tex. Penal Code Ann. § 22.04(a)
(West Supp. 2015). Mother testified that she believed Father’s denials of
responsibility for M.H.’s injury. The evidence developed after the removal made
Mother’s continued belief in Father untenable. Her continued belief in Father,
despite the evidence, might be a factor when considering best interest, but the
evidence developed after the removal cannot be used retroactively to show what
Mother knew before the removal. See L.E.S., 471 S.W.3d at 926.
Regarding Father’s drug usage, he tested positive twice for marijuana—
once when M.H. was first born—so Mother could not plead ignorance. The
evidence was, therefore, clear and convincing that he was using marijuana, but
whether he was still using anything stronger was speculation. C.S. suspected
that, based upon his appearance, perhaps he had used harder drugs after
leaving her home. Father told an investigator that his use of other drugs was in
the past. Similarly, Father told the family therapist that his use of all drugs was a
thing of the past. A positive drug test in March 2015 belied that assertion, at
least with respect to marijuana. However, the family counselor said marijuana
was “a concern, not abusive.” She further stated that marijuana made some
people mellow while making other people, although not many, angry. There was
no evidence regarding whether marijuana mellowed Father or agitated him.
Possession of marijuana is admittedly illegal in Texas. See Tex. Health & Safety
Code Ann. §§ 481.121(a) (defining offense), 481.121(b)(1) (providing that
possession of two ounces or less is Class B misdemeanor) (West 2010).
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However, without more, we are not prepared to say that smoking marijuana
invariably rises to the level of endangerment under subsection (D). Breaking the
law is not tantamount to endangering a child.11 A parent’s going to jail repeatedly
might destabilize a child’s life, but there was no evidence Father was going to jail
repeatedly for possessing or smoking marijuana.
We hold that based on the entire record, a fact-finder could not reasonably
form a firm conviction or belief that Mother knowingly placed or knowingly
allowed M.H. to remain in conditions or surroundings that endangered his
emotional or physical well-being. See H.R.M., 209 S.W.3d at 108; C.H., 89
S.W.3d at 25. We hold that the evidence, when viewed in a neutral light, is
factually insufficient to support the trial court’s finding of endangerment by
Mother. We sustain Mother’s first issue to the extent it complains of the factual
insufficiency of the evidence.
11
Father turned twenty-one after M.H.’s birth and a few months before the
events of July 2014. By comparison, if Father had admitted drinking beer before
his twenty-first birthday, that too would have been illegal. See Tex. Alco. Bev.
Code Ann. §§ 106.01 (West 2007) (defining “minor” as a person under twenty-
one), 106.05 (West Supp. 2015) (setting out the offense), 106.071(b) (West
Supp. 2015) (providing that first offense is Class C misdemeanor). Although
possessing a beer under the age of twenty-one will, with some exceptions listed
in section 106.05 of the statute, be illegal, it is not impossible to imagine a
scenario where a twenty-year-old parent could responsibly drink a beer without
endangering a child.
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Conclusion
Having overruled Father’s ground of error, we affirm the trial court’s
judgment as to him. Having sustained Mother’s first ground of error to the extent
she attacks the factual sufficiency of the evidence, we reverse the trial court’s
judgment as to the termination of her parental rights and remand the cause to the
trial court for further proceedings consistent with this opinion as to her.
/s/ Anne Gardner
ANNE GARDNER
JUSTICE
PANEL: GARDNER, GABRIEL, and SUDDERTH, JJ.
GABRIEL, J., filed a concurring and dissenting opinion.
DELIVERED: February 5, 2016
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