In the Interest of D.R., R.R., A.R., and J.R., Children v. the State of Texas ( 2023 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-23-00093-CV
___________________________
IN THE INTEREST OF D.R., R.R., A.R., AND J.R., CHILDREN
On Appeal from the 231st District Court
Tarrant County, Texas
Trial Court No. 231-713175-22
Before Sudderth, C.J.; Kerr and Wallach, JJ.
Memorandum Opinion by Justice Wallach
MEMORANDUM OPINION
The trial court terminated the parental rights of Appellants B.R. and D.T.
(collectively, Parents) to their adopted children, D.R. (Diego), R.R. (Ricky), A.R.
(Adan), and J.R. (Josh).1 In three issues, they argue that the trial court abused its
discretion by admitting hearsay evidence of abuse, that insufficient evidence supports
the predicate termination grounds as to Josh, and that insufficient evidence supports
the trial court’s best interest finding as to Josh.2 Because Parents did not preserve
their first issue and because sufficient evidence supports the trial court’s findings, we
affirm.
Background
In February 2022, the Department of Family and Protective Services filed a
petition for protection of a child, for conservatorship, and for termination of Parents’
parental rights as to the children. The Department also requested and received an
emergency order allowing it to take possession of the children.
At the time, the household consisted of seventeen-year-old C.R. (Craig),
sixteen-year-old Diego, fourteen-year-old Ricky, nine-year-old Adan, four-year-old
1
To protect the anonymity of the children associated with this appeal, we use a
pseudonym to refer to the children, their family members, and, where relevant, their
godparents and current placements. See Tex. Fam. Code Ann. § 109.002(d); Tex. R.
App. P. 9.8(b)(2).
2
Parents challenge the predicate termination grounds as to all the children, but
they contest the termination only as to Josh.
2
Josh, and four-year-old X.R. (Harry). Harry was a foster child who had been placed in
the home; all the other children had been adopted by Parents. Craig had been adopted
through a private adoption, but Diego, Ricky, Adan, and Josh had been placed with
Parents by the Department.
The Department became involved after receiving a report from Adan’s
godmother, W.H. (Winnie), that when visiting her and her spouse for the weekend of
February 4, 2022, Adan had begun crying and told her that B.R. had been hitting him
and had thrown him against a wall. When it was time for Adan to return home, he
began throwing up and pleaded with Winnie not to report what he had said because
B.R. had threatened him with being taken to juvenile detention and never seeing his
godparents again. Adan said that B.R. had told the children that he would kill them if
they said anything.
Several days later, Department investigator Antionne Cruz interviewed Adan at
his school. According to Cruz’s affidavit, which was attached to the Department’s
petition, the school’s principal told Cruz that the day before, Adan had asked to speak
to one of the school’s counselors. B.R. contacted the principal that day asking her
who had made a CPS report about Adan and told her that Adan should not be
questioned because he gets confused and tells lies.
Cruz then learned that Adan was in the school counselor’s office as a follow-up
from the previous day. The counselor reported that Adan had said that he was afraid
to go home. Cruz spoke to Adan, who told her that B.R. had said that if talked to CPS
3
“about bad things,” CPS would put him somewhere worse, and that if he told anyone
about how he was punished, B.R. would kill him. Adan said that he believed what
B.R. said because he had seen B.R. beat up Diego and hold Diego’s head underwater
in the backyard pool. He also stated that B.R. had once killed one of their dogs.3 Adan
told Cruz that B.R. hits him with a leather “flap” and a back scratcher, that he was
recently thrown into a wall, and that he had once been thrown into a glass shower
wall. He also said that he sometimes does not get to have dinner and has to go to bed
hungry. Cruz observed bruises on Adan at different stages of healing and scars on his
head, arms, and legs. She took pictures of the injuries.
Cruz’s affidavit included her notes about her investigation, and she further
included notes of five previous investigations by the Department, all of which had
been ruled out. The Department additionally included affidavits from Dr. Elizabeth
Peeler; Stacey Fox, who is the pastor of the church that Parents attended; and Karen
Parker, E.T. (Evelyn), and S.T. (Shea), who all attended the same church. Evelyn is
Diego’s godmother, and Shea is her spouse. Because they attended the same church,
Evelyn knew Parents before they adopted the children; at the time of trial, she had
known them for about five years.
3
Parents breed dachshunds.
4
Dr. Peeler stated in her affidavit that she had reviewed the photographs of
injuries to Adan. In her opinion, the injuries supported Adan’s disclosure and were
“concerning for child physical abuse.”
E.T. stated in her affidavit that Diego had been living with her and Shea ever
since an incident involving Parents’ pool, which Diego had told her involved B.R.’s
punching him and holding his head under the water because B.R. was unhappy with
how Diego had done some yard work. Diego managed to get away and went to Pastor
Fox’s house, which was nearby. She also reported having seen scratches and bruises
on Adan on several occasions.
Shea described injuries she had seen on Adan in the past. She further stated
that she had once visited the family and found Diego crying in his closet because of
B.R.’s yelling.
Parker stated that on multiple occasions, Craig and Diego had stayed with her
for a few days at Parents’ request due to “fighting and the house being torn up.”
Parker stated that both children had told her that B.R. threatened them, telling them
not to speak to CPS or to lie or else CPS would put them back into the foster system
where they would be “abused and raped and molested.” She stated that Josh had
regressed and was no longer potty trained, that she had seen bruising and marks on
the children at different times, and that she had been present when B.R. was yelling
and cussing at the children.
5
Pastor Fox stated that he had seen bruises and marks on Adan several times,
that he initially believed Parents’ claim that Adan was just clumsy, but he had begun to
suspect something else. Fox’s concerns had been allayed somewhat by the fact that
the children spent so much time staying with other people. Fox stated that twice
Diego had showed up at his door late at night with no shoes or shirt on, and that
when he called Parents to tell them that he had Diego, he was told that they had never
wanted him. While Diego stayed with Fox, Diego was not aggressive or disrespectful.
After the pool incident, Diego would not let Fox take pictures of his injuries. Fox
described B.R. as “unhinged,” “dangerous,” and “a pathological liar.”
During the pendency of the proceedings, Adan was placed with his godparents,
Winnie and her spouse, and Diego continued to stay with his godparents, Evelyn and
her spouse. Because of his health issues, Ricky was moved to a group home. 4 Josh,
however, was moved multiple times. He was initially placed at a home in Houston,
but because it was difficult to take him to Fort Worth for his visitations, he was
moved to a therapeutic foster home in Garland. His behavioral issues escalated at the
home, and he was placed in a psychiatric hospital. At Parents’ urging, his placement
was then changed to his godparents. He was removed from that home after he
4
The Department’s caseworker, Alyssa Dougharty, stated that because of
Ricky’s dialysis, he required a primary medical needs placement. See Tex. Admin. Code
§ 749.61 (stating that a child with “primary medical needs” “cannot live without
mechanical supports or the services of others because of life-threatening conditions”).
6
reported receiving physical punishments. The Department then placed him with
Evelyn, where his behavioral issues again led to placement in a psychiatric hospital.
At trial, the Department called the children’s caseworker, Cruz, Evelyn, and the
psychologist who was Josh’s doctor during part of the case. The Department did not
call Parker, Pastor Fox, or Shea to testify about the matters discussed in their
affidavits. Parents both testified in their defense, and they also called their respective
psychologists, two nurses who had cared for Josh and Ricky before their removal, and
Josh’s godmother.
At the conclusion of trial, the trial court found the predicate termination
grounds in Texas Family Code Section 161.001(b)(1)(D), (E), and (O) and that
termination was in the children’s best interest. Accordingly, the trial court terminated
Parents’ parental rights to the children.
I. Hearsay Evidence of Abuse
In Parents’ first issue, they argue that the trial court abused its discretion by
allowing hearsay evidence about the abuse against Adan and Diego. They specifically
complain about records from Alliance for Children regarding Adan and Diego, and
particularly the therapists’ notes contained within those records; Adan’s and Diego’s
medical records from Cook Children’s Medical Center; testimony about statements in
the records; and witness testimony about statements that Adan had made regarding
abuse against him and against Diego.
7
A. Standard of Review
We review for abuse of discretion a trial court’s rulings in admitting or
excluding evidence. Fleming v. Wilson, 610 S.W.3d 18, 21 (Tex. 2020). A trial court
abuses its discretion if it acts without reference to any guiding rules or principles—
that is, if its act is arbitrary or unreasonable. Low v. Henry, 221 S.W.3d 609, 614 (Tex.
2007); Cire v. Cummings, 134 S.W.3d 835, 838–39 (Tex. 2004). An appellate court
cannot conclude that a trial court abused its discretion merely because the appellate
court would have ruled differently in the same circumstances. E.I. du Pont de Nemours
& Co. v. Robinson, 923 S.W.2d 549, 558 (Tex. 1995); see also Low, 221 S.W.3d at 620. An
appellate court must uphold the trial court’s evidentiary ruling if the record shows any
legitimate basis for the ruling. Owens-Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35,
43 (Tex. 1998).
B. Analysis
We start with the two exhibits containing the Alliance for Children records for
Adan and Diego. Before trial, the Department filed notices of filing business records
as to the records. The Department also filed notices of business records affidavits as
to Adan’s and Diego’s medical records from Cook Children’s. Each notice stated that
the records had been served on Parents’ attorney. When the records were offered at
trial, Parents’ attorney objected, “I’m sure there are plenty of hearsay statements
contained within, and we have a hard time agreeing just to allow these records to
come in without being able to cross-examine the scribe or the provider.” But the
8
attorney did not point out any specific parts of the exhibits that contained the
objectionable hearsay statements.
“Hearsay within hearsay is not excluded by the rule against hearsay if each part
of the combined statements conforms with an exception to the rule.” Tex. R. Evid.
805. Regarding the Alliance for Children records, Parents did not object to the
sufficiency of the business records affidavits or otherwise object that the business
records exception did not apply. As for any additional layer of hearsay within the
records, Parents’ attorney’s objection that she was “sure there [we]re plenty of hearsay
statements” in the records failed to identify which parts of the records contained the
objectionable hearsay. The general objection was insufficient to preserve error as to
the records’ admission. See In re J.H., No. 02-22-00457-CV, 2023 WL 310187, at
*2 n.5 (Tex. App.—Fort Worth Jan. 19, 2023, no pet.) (mem. op.); L.M. v. Dep’t of
Fam. & Protective Servs., No. 01-11-00137-CV, 2012 WL 2923132, at *5 (Tex. App.—
Houston [1st Dist.] July 12, 2012, pet. denied) (mem. op.); Flores v. City of Liberty,
318 S.W.3d 551, 560 (Tex. App.—Beaumont 2010, no pet.).
As for the medical records, when the Department moved to admit them,
Parents relied on the same general objection that they had made to the therapy
records. 5 For the same reason that the objection was insufficient to preserve error as
5
When the Department moved to admit the second set of Alliance for Children
records, the trial court asked Parents if they had any objection, to which their attorney
responded, “I would just reiterate my—my previous objection about the hearsay
contained within.” For the next two sets of records, which were the medical records,
9
to admission of the therapist records, it was insufficient to preserve error as to
admission of the medical records. Further, on appeal, Parents do not argue that the
business records affidavit did not apply and do not tell us what parts of the medical
records were inadmissible as hearsay within hearsay. See Tex. R. App. P. 38.1(i).
Later in the trial, Parents did make a more specific objection when the
caseworker was asked to read aloud an excerpt from Adan’s therapy records regarding
statements that Adan had made to the therapist. At that time, Parents’ attorney stated,
“I understand these are in evidence[,] but I’ve made a hearsay objection and I would
like for the counselor to be here to talk about this” because the testimony was
“hearsay within hearsay within hearsay and with this witness just reading off, you
know, . . . what the child allegedly said to the counselor.”
The Department disputed the hearsay-within-hearsay argument, asserting that
the records were admissible under the business records exception and that Adan’s
statements in the records were admissible under the medical treatment exception. See
Tex. R. Evid. 803(4), (6); see also J.H., 2023 WL 310187, at *3 (upholding admission
under medical treatment exception of children’s therapist’s notes about what the
children had told the therapists about their abuse and stating that “[c]ourts may infer
Parents’ attorney articulated her objection as her “running hearsay objection.”
However, Parents did not ask the trial court to grant a running objection, and the trial
court never stated that it had granted one. Even assuming that Parents meant (and the
trial court understood them to mean) that they were making the same objection they
had made to the other records, the objection was still insufficient to preserve error.
10
from the record that the out-of-court declarant was aware that the statements were
made for purposes of medical diagnosis or treatment and that proper diagnosis or
treatment depended upon the veracity of such statements”). Parents responded that
the medical treatment exception did not apply because “we have no idea about
demeanor, about tone, nothing.”6 The trial court overruled the objection. The
caseworker then testified that the therapist’s note said that Adan had reported that
Parents “would throw him into the washer and walls, hit him, and not feed him.”
A successful challenge to the trial court’s evidentiary rulings generally requires
the complaining party to demonstrate that the judgment turns on the particular
evidence excluded. Interstate Northborough P’ship v. State, 66 S.W.3d 213, 220 (Tex. 2001)
(op. on reh’g). Here, the statements that the caseworker read aloud were from records
that had already been admitted. See In re T.D., No. 02-22-00215-CV,
2022 WL 11483054, at *6 (Tex. App.—Fort Worth Oct. 20, 2022, pet. denied) (mem.
op.). Further, the investigator, Cruz, had already testified without objection that Adan
had made similar statements to her about being thrown against the wall and
sometimes having food withheld from him. See Bay Area Healthcare Grp., Ltd. v.
McShane, 239 S.W.3d 231, 235 (Tex. 2007); Richardson v. Green, 677 S.W.2d 497,
6
When Parents made this argument, the trial court overruled the objection after
responding, “Okay. You could have brought them in, right?” On appeal, Parents
argue that the trial court improperly put the burden on them to bring the medical
providers to testify. However, we need not address this argument. As stated, the
records were already in evidence, and therefore there was no harm resulting from the
admission of the caseworker’s testimony about what the records contained.
11
501 (Tex. 1984). 7 She further testified without objection that Adan had told her he
had once been thrown against a glass shower door. Thus, regardless of whether the
objected-to testimony from the caseworker about the records’ contents fell into any
hearsay exception, any error in admitting the testimony was harmless. See Bay Area
Healthcare Grp., 239 S.W.3d at 235; T.D., 2022 WL 11483054, at *6.
Parents further complain about Cruz’s testimony that Adan had alleged that
Diego was also a victim of abuse, and they argue that the hearsay exception relied on
by the Department at trial, Family Code Section 104.006, does not authorize a child’s
statements about abuse against another child. Parents did not, however, preserve their
complaint, as the following exchange shows.
Q. (By [the Department]) Now, when you talked to [Adan], did he
ever—did he make statements regarding abuse or neglect that occurred
with other household members?
A. Yes.
Q. And what other statements did he make regarding others being
abused or neglected?
[Parents]: I’m gonna object to the hearsay statement by a child.
7
Cruz had also testified without objection about a description of the abuse that
Adan had provided to a nurse, which the nurse had included in Adan’s medical
records. Parents also did not object when the caseworker testified that Adan and
Diego had “continued to be consistent in their counseling regarding their abuse and
neglect outcries.” Further, when Cruz read excerpts from Diego’s medical records,
Parents did not object to that testimony.
12
[The Department]: Judge, 104.006 doesn’t require that the abuse
or neglect that a child outcries to be subject to the child. They can make
outcries as to any abuse or neglect that occurs in the home.
[Parents]: And, Judge, he’s not asking—well, I don’t think he’s
laid the predicate for this round of questioning, right? And then also . . .
I think he’s asking for just, Well, tell me everything that he said. It’s not
specific as to any kind of outcry.
[Department]: Judge, I think this is very specific. I asked if she
was—that if he made statements regarding [Diego]—sorry. Strike that—
regarding any other household members being abused, and she said yes.
THE COURT: All right. Help her out a little bit with which child
we’re talking about.
[The Department]: Okay. I can, Judge.
Q. (By [the Department]) Who did he indicate was the recipient
of abuse or neglect in the home?
A. [Diego] R[.]
Q. Okay. And what did he say regarding [Diego]?
A. That he was beaten up and attempted to be drowned.
Q. Okay. Did you go into detail about that?
A. No.
Q. Did he indicate that this abuse happened once or more than
once?
A. More than once.
In summary, after the Department raised Section 104.006 as a hearsay
exception, Parents objected to a lack of predicate and a lack of specificity in the
question, but to the extent that the objection could be construed as asserting that the
13
statute does not allow a witness to testify about a child’s outcry of abuse against a
different child, they did not secure a ruling on it. Further, once the Department
elicited further testimony to clarify the other child about whom Adan had made an
outcry, Parents made no further objection to the applicability of Section 104.006 and
did not object to the trial court’s failure to rule on their initial objection. Accordingly,
they did not preserve their complaint for appeal.8 See Tex. R. App. P. 33.1 (requiring a
party to preserve complaint by objecting and by securing ruling on objection or
objecting to refusal to rule); Rushing v. Divine Homes, LLC, No. 02-21-00397-CV,
2023 WL 1859454, at *11 (Tex. App.—Fort Worth Feb. 9, 2023, no pet.) (mem. op.)
(noting that a party preserves error by objecting and obtaining a ruling, that if a trial
court refuses to rule, the party preserves error by objecting to that refusal, and that if
the trial court does not rule and the party does not object to the refusal to rule, error
is not preserved); see also In re K.H., No. 10-21-00073-CV, 2021 WL 4080261, at
*2 (Tex. App.—Waco Sept. 8, 2021, pet. denied) (mem. op.) (considering parent’s
complaint that child’s statements about drug use in the home were not reliable and
8
In part of their briefing for this issue, Parents complain that Section
104.006 did not apply to outcries by Diego that were reflected in the records because
Diego was older than twelve. See Tex. Fam. Code Ann. § 104.006. We do not address
that argument because Parents did not preserve their hearsay objection when the
records were admitted. In a single sentence of their brief, Parents complain that the
trial court “made no inquiry as to the circumstances that would have permitted the
use of the records in lieu of any of the children’s testimony.” They do not, however,
elaborate on what inquiry the trial court should have made but did not. To the extent
this sentence of their brief makes the same complaint as their “lack of predicate”
objection in the trial court, it is inadequately briefed. See Tex. R. App. P. 38.1(i).
14
therefore were not admissible under Section 104.006 and holding that the complaint
was not preserved because parent’s only Section 104.006 objection at trial was that the
statements did not concern abuse or neglect).
Finally under this issue, Parents complain that after the trial court allowed the
caseworker to read excerpts from the therapist records, “every [Department] exhibit
was admitted over objection without regard for reliability or relevance or authority.”
Parents do not tell us what the other exhibits were, what objection they had raised to
each exhibit, or where in the record we may find their objection, and they do not
explain why the trial court’s ruling on the objection was incorrect. Accordingly, to the
extent that Parents argue that the trial court abused its discretion by admitting the
Department’s other exhibits, the argument is inadequately briefed. See Tex. R. App. P.
33.1, 38.1(i). We overrule Parents’ first issue.
II. Endangerment Termination Grounds
In Parents’ second issue, they assert that, with respect to the termination of
their parental rights to J.R., the evidence at trial was insufficient to prove by clear and
convincing evidence the predicate termination grounds in Texas Family Code Section
161.001(b)(1)(D), (E), and (O), the grounds found by the trial court. 9 Parents do not
specify whether they are challenging legal or factual sufficiency, but because they
As previously noted, Parents do not contest the termination of their rights
9
regarding the other children, but they do contest the trial court’s endangerment
finding as to those children.
15
request that we reverse the trial court’s judgment and remand for further proceedings,
we assume that they challenge factual sufficiency. See Glover v. Tex. Gen. Indem. Co.,
619 S.W.2d 400, 401 (Tex. 1981). However, because evidence that is factually
sufficient is necessarily legally sufficient, In re A.N., No. 02-22-00036-CV,
2022 WL 2071966, at *2 (Tex. App.—Fort Worth June 9, 2022, pet. denied) (mem.
op.), our determination below that the evidence is factually sufficient means that the
evidence is also legally sufficient.
A. Standard of Review
When the Department seeks termination, it must prove two elements by clear
and convincing evidence: (1) that the parent’s actions satisfy one ground listed in
Family Code Section 161.001(b)(1); and (2) that termination is in the child’s best
interest. Tex. Fam. Code Ann. § 161.001(b); In re Z.N., 602 S.W.3d 541, 545 (Tex.
2020). 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.” Tex. Fam. Code Ann. § 101.007; Z.N., 602 S.W.3d at 545.
In determining the factual sufficiency of the evidence supporting the
termination of a parent–child relationship, we review the whole record to decide
whether a factfinder could reasonably form a firm conviction or belief that the
Department proved the predicate termination grounds. Tex. Fam. Code Ann.
§ 161.001(b); In re A.B., 437 S.W.3d 498, 500 (Tex. 2014); In re C.H., 89 S.W.3d 17,
28 (Tex. 2002). If the factfinder reasonably could form such a firm conviction or
16
belief, then the evidence is factually sufficient. C.H., 89 S.W.3d at 18–19. The
factfinder is the sole judge of the witnesses’ credibility and demeanor. In re J.O.A.,
283 S.W.3d 336, 346 (Tex. 2009). Accordingly, we give due deference to the
factfinder’s findings and do not supplant them with our own. In re H.R.M.,
209 S.W.3d 105, 108 (Tex. 2006).
B. Analysis
We begin our analysis by setting out the witness testimony relating to the
allegations of abuse against Adan and Diego, the behavioral issues that Josh was
experiencing at the time of trial and the suspected causes of those issues, the
suggestion of abuse against other children in the household, and other matters
relevant to the termination grounds.
1. Testimony and Evidence Regarding Adan
Regarding Adan, the trial witnesses presented conflicting evidence about
whether Parents abused him while he was in their care. The evidence of abuse came
from witnesses testifying about Adan’s outcries and from photographs taken of
bruises and scarring on his body, as well as the therapy and medical records discussed
above. The evidence negating abuse came from Parents and several of their witnesses;
those witnesses testified that they had never seen any injuries on Adan that raised
concerns about abuse.
17
Investigator Cruz and caseworker Dougharty testified about what Adan had
told them about abuse in the home, as did Evelyn, Diego’s godmother and placement
at the time of trial.
• Cruz testified about her investigation in response to the outcry made by
Adan, who was nine years old at the time of her interview. When she spoke
to Adan at his school, he was “crying, shaking, [and] pacing the room,” his
eyes were swollen, and his hands were trembling.
• Adan had bruises on his arms and legs, and he said that his injuries were
because he had not cleaned up after a dog well enough, and B.R. had
thrown him against the wall of the laundry room.
• Adan told Cruz that when the family lived at a previous address, he had
been thrown against a glass shower door, which cut his head, but by the
time the Department had investigated the injury, 10 the shower door had
already been fixed.
• Adan also told Cruz that D.T. would yell at him, and B.R. would hit him.
Adan said that he was scared to go home because he was afraid of being
subjected to more abuse or being sent to a worse foster home.
10
According to Cruz’s removal affidavit, the Department had investigated after
a teacher reported seeing a large gash on Adan’s head; his hair covered the mark, but
the teacher saw it after checking his head when he hit it in class. Adan told the teacher
that his father had thrown him into a glass shower door and that he was not supposed
to tell his teacher. The teacher reported that since Adan’s formal adoption, his
teachers had “observed mood changes and [that Adan was] very emotional and fearful
of getting in trouble.” However, the teacher did not testify at trial, and thus the
teacher’s statements were not presented to the trial court. That case was ruled out
after Parents and other children in the house said that Adan had fallen into a kitchen
counter. However, in her removal affidavit, Cruz stated that in the investigation for
this case, D.T. said Adan had slipped and fallen in the shower. In her testimony, Cruz
was not asked about the details of that prior investigation or of the other
investigations done by the Department, and she did not mention D.T.’s new shower-
slipping story.
18
• B.R. came up to the school on the same day that Cruz interviewed Adan,
and Cruz spoke to him at that time. B.R. said that Adan’s injuries were from
playing outside; when another investigator spoke to D.T., he said that the
injuries came from riding a bike. Cruz did not believe Parents’ explanations
because Adan had bruising on his upper arms, which looked like grab
marks, but he had no cuts or scrapes.11 Cruz testified that when she
expressed that observation to B.R., he “got inches within [her] face and
leaned in” and asked her if she was going to believe a child over Parents.
• Dougharty, the caseworker, testified that Adan had been consistent
regarding his neglect and abuse outcries in his counseling sessions. She also
stated that in counseling, Adan had reported that his father had killed a dog
in front of him.
• Evelyn reported that she had previously seen scratches on Adan’s neck and
scars in his scalp area. Adan had also made an outcry to her that Parents had
hurt him by throwing him in the laundry room and that he was afraid of
them. He told her that if Parents found out that she knew about it, he
would get in trouble.
Parents’ testimony did not shed much light on Adan’s injuries. During D.T.’s
testimony, he was not asked to confirm or deny that any family violence against Adan
had occurred, and he did not offer any explanation for the injuries that Adan had at
the time of removal. B.R. denied injuring Adan, but like D.T., he did not provide an
explanation for the injuries that Adan had at the time of his removal.
Two former nurses for the children and Josh’s godmother testified that they
had never had concerns about the children:
11
Cruz’s removal affidavit stated that when it was pointed out to D.T. that the
bruises “were on the large muscle area of the thighs and calves as well his forearms
and biceps” and that he did not have any scrapes on his knees and elbows or
anywhere else, D.T. said it was because Adan had fallen on the sidewalk and not in
the street. D.T. did not testify about his sidewalk theory at trial, and Cruz was not
asked about it, and thus it was not presented to the trial court.
19
• Nancy Carlson was Josh’s home health nurse before he was removed from
Parents, and in that role, she was in the family’s home on weekdays from
approximately 6 a.m. to 6 p.m.
• She testified that none of the children had ever made an outcry to her of
abuse or neglect. She never noticed any bruising on the children except
when she would give Harry and Josh a bath, but the children explained
those as resulting from their biting each other.
• Nurse Carlson testified that she had never seen anything that she would
consider to be mistreatment of the children or that would make her
concerned for them. But she also testified that she once saw Diego hit Adan
and give him a black eye, so it is not clear that she would have been
concerned with an injury if she were told that it had been caused by one of
the other children.
• However, when the Department’s attorney showed her the pictures of the
injuries that Adan had at the time of his removal, she acknowledged that the
injuries were concerning. She was not asked to explain why she had not
noticed such injuries on him before his removal. Nurse Carlson did say,
though, that because she was focused on caring for medically fragile Josh,
she probably would not have noticed everything going on in the house.
• Latasha Traylor, a nurse who had provided weekend nursing care for Josh
and Ricky for about seven months in 2020, also testified about her
experiences with the family. Nurse Traylor usually worked from 7 a.m. to
7 p.m. After she stopped providing nursing care for the family, she kept in
touch, including attending the children’s birthday parties.
• Nurse Traylor further testified that none of the children had ever made
outcries of abuse to her.
• As part of her job, she bathed Josh, and sometimes before she left for the
day, she told Adan to go take his shower, too. On those occasions, she
would see Adan with his shirt off, and she never noticed any bruises on
him.
• When the Department’s attorney showed her the pictures of the injuries on
Adan at the time of his removal, she stated that if she saw all those injuries
on a child, as a mandatory reporter, she would have to make a report.
20
• C.H. (Cathy), Josh’s godmother, testified that she never noticed any bruises
on the children and that the children never made any outcries to her.
• Kathy Partridge, Parents’ former neighbor, testified that she never had any
concerns about the care that Adan was receiving. Partridge had lived across
the street from Parents and was frequently around Adan before his removal
because he attended the same school as her grandson, who lived with her,
and she gave Adan rides to and from school. She once saw some bruises on
Adan, but he told her that they came from falling off his bike.
Several witnesses testified about their opinion on Adan’s truthfulness:
• B.R. claimed that Adan “ha[d] been manipulated and lied so much to to
where he doesn’t know the truth anymore” and that Adan had been told to
say that he was being abused.
• Cathy claimed that Adan “lied a lot.”
• Partridge, on the other hand, described Adan as a child whom she could
trust. She stated that she generally assumed that what he told her was true
and that he had never given her a reason to believe that he was a child who
lied.
Witnesses also testified about an allegation that Adan had made to Cruz of
sometimes being denied food.
• Adan reported to Cruz that on several occasions dinner had been withheld
from him. Cruz said that Parents denied withholding food from Adan, and
B.R. denied it when he testified at trial.
• Nurse Carlson said that she made breakfast for everyone every weekday
morning, so Adan never went without that meal, and that “they had stuff
for lunch.” She further stated that D.T. would make dinner for the family.
• Nurse Traylor stated that she had also prepared meals for the months that
she was there—although it was unclear from her testimony if she had
prepared food for the whole family or just for Josh and Ricky—and that she
had never noticed any children being excluded from meals. She noted that
she had encouraged Adan to eat something for breakfast because he was “a
little bit on the small side” and needed encouragement to eat.
21
In addition to the above testimony, Adan’s medical records contained his
statements to the medical staff who saw him when he was removed from Parents’
care. Those medical records contained the following summary of what Adan and his
godmother Winnie told the medical staff at the time of his removal:
[Winnie] typically had weekend visitations with [Adan] once a month.
Stated during these visitations she often noticed bruises[,] but [Adan]
always had an excuse. Still, she became increasingly concerned. From
12/26–2/06[,] the adoptive family would not allow [Winnie] to pick up
[Adan] as she normally would have[,] which she was told was due to sick
symptoms and concerns about Covid-19 exposure. When she arrived to
pick him up on 2/11[,] [Adan] “did not look well[”;] on the drive home
he burst into tears and told her everything, including how he had just
been kicked and thrown against the wall and onto the washing machine
moments earlier. [Winnie] stated the weekend of 2/11–2/13[,] [Adan]
was “a wreck[”]; he was emotional and even vomited a few times
because he was anxious and scared he would get sent back to the home.
He had bruising to his left arm, buttocks, and both legs[,] but he was not
complaining of any pain and did not receive any medical care. [Adan]’s
last exposure to the home was 2/11.
Adan also reported that “[D.T.] would do the yelling and [that B.R.] was the one
[who] physically abused him.”
The medical records included notes from Adan’s physical exam. Adan had a
scar on his head resulting in hair loss; Adan said that the scar was from being thrown
into a glass shower. Medical staff further noted bruising on his knees, which he said
came from being pushed to the ground, and hyperpigmentation on his lower legs,
which he said came from being hit with a leather “flap.” The staff described the
injuries as “consistent with the history provided, suspicious for child physical abuse.”
22
Further, in Adan’s therapy records, his therapist made notes in multiple
sessions about Adan reporting abuse by Parents, including his being thrown into
walls, being hit, and sometimes not being fed. He further reported domestic violence
between Parents. The therapist also noted in one session that Adan had become upset
when he had accidentally encountered Parents on the way to a family visit.
The therapy records also included a worksheet filled out by Adan; the
worksheet explained what “trauma” means and what kind of events can be traumas,
and Adan wrote that “[b]eing physically abused” and “[b]eing verbally abused” were
traumas that had happened to him. On another worksheet, he identified Parents as to
blame for his abuse because “th[e]y did it.”
2. Testimony and Evidence Regarding Diego
The parties presented conflicting evidence about whether Diego or Parents
were violent in the home. The Department’s witnesses asserted that Diego was the
victim, not the perpetrator, of abuse.12 Cruz testified that Adan had told her that
Diego also received abuse from Parents. Dougharty stated that like Adan, Diego had
12
The trial court took judicial notice of the CASA report filed before trial. That
report noted that when the CASA interviewed Diego, his face “displayed fear, and he
immediately spoke up to say he did not want to go back.” The report further stated
that Ricky had also indicated that he did not want to return to Parents, and his
caregiver said that he had “shown a great deal of anxiety about having to interact with
[Parents] again.” However, the CASA did not testify. See In re C.F., 576 S.W.3d 761,
774 (Tex. App.—Fort Worth 2019, no pet.) (noting that a trial court may take judicial
notice of the contents of its file, but it may not take judicial notice of the truth of any
factual allegations contained in its file).
23
been consistent in his abuse outcry in his counseling sessions. Evelyn described a time
at church when she had seen B.R. push Diego “hard” and then scream at him. Evelyn
further stated that since Diego came into her and Shea’s care, he had not had
behavioral issues at school, had never needed to be counseled or treated for any
violent incidents, and had not been in trouble at school for fighting. Additionally,
Diego’s counseling and medical records included notes about abuse that he had
reported.
Parents, on the other hand, testified that Diego was the aggressor who had
attacked D.T. and B.R. at different times. B.R. produced photographs of injuries to
his knee and wrist that he contended were from the day of the pool incident, as well
as a picture of injuries to D.T. that B.R. said were caused by Diego. Nurse Carlson
stated that she would not be alone in the home with Diego because if he did not get
his way, “he would just go off on it and, I mean—he was violent.” She also stated that
she had once seen Diego hit Adan. B.R. asserted that CPS had investigated the pool
incident and that Parents had been cleared.13
13
The Department did not introduce any records from that investigation. Cruz’s
emergency removal affidavit stated that abuse had been ruled out because, although
Diego stated that B.R. had hit him, “a sibling and both parents stated that [Diego]
attacked [B.R.].” The sibling was not identified in the affidavit. There is no evidence
of whether that sibling or any of the other siblings were asked about the incident after
their removal from Parents’ home. Cruz did testify, however, that Adan said in his
outcry to her Diego had been abused in the home and “attempted to be drowned.”
24
3. Testimony Regarding Josh
• Cruz tried to interview Josh in her investigation, but he would not talk to
her. At the time, he had delayed speech.
• Dougharty explained that while Josh was with Parents, he had a feeding
tube called a G-button. However, when Josh was examined upon his
removal from Parents’ care, doctors determined that his feeding tube should
be removed.
• Dougharty had no concerns with how Parents engaged with Josh during
visits, and she stated that he enjoys the visits. However, she further stated
that Josh had been defecating on himself after visits. Further, he had made
outcries of seeing one of Parents’ dogs, Butter Bean, killed in the house.
Dougharty acknowledged that Butter Bean is still alive. But she further
explained that when Josh is shown pictures of dogs, he calls many of them
Butter Bean.
• Dougharty stated that when Josh came into care, he had difficulty with
understanding basic vocabulary. Dougharty further stated that Josh has
ongoing behavioral issues in school, “such as hitting other peers,” and
“some inciden[ts] where he’s pulled pants down of other students and laid
on top of them. He’s [also] hit and kicked teachers, bit teachers, [and] bit
other students.” However, “in the home, he does well,” and “[t]hey’ve been
getting him regulated,” and “overall[,] he is a very happy kid.”
• Evelyn stated that she had previously seen Josh with a black eye and with
bruising on his arms and legs.
The Department also called a psychologist, Dr. Brendel Doss, to testify about
Josh. She was Josh’s psychologist from September 2022 until January 2023. Dr. Doss
testified about Josh’s current behavioral issues and symptoms.
• First, Josh had been exhibiting “encopresis, which is basically issues not
being able to use the restroom where he’s supposed to; and uresis, which
means he was urinating on himself.” Dr. Doss opined that Josh’s problems
with bathroom functions indicated a past lack of supervision, neglect, and a
lack of training.
25
• Second, Josh exhibited signs of pervasive neglect, meaning that the neglect
happened over a long period of time, not just during the last year that Josh
had spent in foster care.
• As examples of pervasive neglect, Dr. Doss stated that Josh did not know
words that children his age should know and did not play with toys in an
age-appropriate manner. She described him as “act[ing] more like a 2- to 3-
year-old . . . than a 4-, 5-, or 6-year-old.”
• In her opinion, Josh does not have autism, and thus his issues did not stem
from that type of neurodivergence. Further, the behaviors suggesting a
neglectful environment could not have been the result of a recent
environment “because the behaviors for neglect are still pervasive. And they
would have had to occur at different points for him not to understand how
to play with toys, for him not to have—for the lack of word knowledge that
he has.” She explained, “Those occur at ages, you know, zero up to
6 months, 1, 2, 3, or 4. They don’t happen magically at 5 and a half. So that,
to [her], point[ed] significantly to a long-term neglectful environment, not a
recent one.”
• Dr. Doss did acknowledge, however, that it can be distressing for a child to
be moved so many times in one year.
• Dr. Doss stated that Josh had also shown what she described as “practicing
behavior”: He once yelled at his guardian in the car, in loud aggressive tone,
“Say you love your family; say it; say you love your family.” Dr. Doss stated
that this behavior showed that he had been “trained to do this to display a
certain type of connection and care” and that it was “indicative of a highly
controlled environment where he[ was] not able to freely express
information or emotion.”
• In addition to the above behaviors, Dr. Doss stated that Josh had also
shown “anxiety; agitation; verbal and physical aggression; noncompliance
with instructions. . . . Some destruction of property, some sexual behavior.”
• Dr. Doss also expressed concerns of exposure to physical abuse that had
manifested itself in therapy sessions. Josh had attempted to spank Doss
during play, and she stated that he is “very aggressive and can be very
violent in his play things.” She said that Josh had indicated that “daddy” had
whooped him, and Josh has threatened to harm teachers, other children at
school, and himself. He has also exhibited self-harm; his current
26
hospitalization involved his holding a pair of scissors to his throat after
visitation.
In addition to discussing Josh’s behavioral issues, Dr. Doss talked about her
concerns with Josh being returned to Parents’ care. Regarding Josh’s visits with
Parents during the case, Dr. Doss believed that they did more harm than good.
• Dr. Doss asked Josh about his visits with Parents, but he never said that he
looked forward to them, and he did not talk about them. On one occasion,
he said he liked the visits, but he then said that he liked leaving. Josh never
expressed fear of Parents, but he also never expressed any excitement at the
idea of returning to them.
• Further, during the period in which she was treating Josh, after nearly every
visit with Parents, he had an episode of defecating on himself. He also was
“agitated, irritable,” and usually had an outburst when he got back to
school.
• Dr. Doss acknowledged that Josh had outbursts at school nearly every day
regardless of whether he had visitations, but she stated that on the days on
which a visitation was scheduled, “his behavior was above and beyond his
daily problem behaviors, and the defecation occurred directly after
visitation.”
• Dr. Doss participated in a family Zoom meeting, during which she
developed concerns because the call “was particularly adversarial,” and
Parents did not ask how they could help Josh. She acknowledged that the
reason that Parents were adversarial was because of some visits that had
been canceled, and she further acknowledged that she did not participate in
the entire meeting because she had to leave early.
• At some point, Dr. Doss wrote a letter to the caseworker asking that
visitation with Parents be stopped because she was concerned that the visits
were traumatizing to Josh.
In summary, Dr. Doss did not believe that it would be in Josh’s best psychological
interest to return home. In her opinion, despite the potential for distress to a child
27
from moving foster homes, it would still be better for Josh to remain in the
Department’s care than return to Parents because some of his placements could be
helpful, safe environments.
Parents presented testimony to controvert Dr. Doss’s testimony about the
source of Josh’s behavioral issues. Parents, the two nurses, and Josh’s godmother all
testified that Josh had no issues before he was removed from Parents’ care. 14
• Nurse Carlson described Josh as “a very fragile kid with a severe heart
condition[ and] feeding issues” necessitating a type of feeding tube. She was
surprised to learn that Josh no longer requires home nursing care and that
doctors had determined that he did not need a feeding tube.
• Nurse Traylor, on the other hand, said that she was not surprised that Josh
no longer needed a feeding tube or the same level of nursing care that he had
while he was with Parents because during her time with them, “[y]ou
wouldn’t think there was a physical issue going on with him.” However, she
followed this statement up by saying that it was “very surprising.”
• Nurse Carlson stated that Josh did not have the kind of behavioral problems
he seems to have now. Nurse Traylor also testified that she had never
noticed any bad behavior by Josh.
• Josh’s godmother Cathy also testified that before his removal, Josh had
stayed with Cathy and her husband every other weekend, and she had never
noticed any behavioral issues with Josh before his removal.
14
Regarding the timing of Josh’s issues with bathroom functions, we note that
the affidavit of Karen Parker, which the Department had attached to its emergency
removal affidavit, indicated that Josh had begun to regress on his potty training while
still living with Parents. However, the Department did not call her as a witness or
introduce her affidavit at trial, and no trial witness testified to that fact. Thus, the only
evidence at trial was that Josh did not have problems with bathroom functions before
the removal.
28
• According to Cathy, after Josh’s removal, he became a “totally different
kid.” When he was temporarily placed with her and her husband, he was
“sad all the time,” and several times he hurt one of her dogs by choking it.
• She acknowledged that Josh’s temporary placement with her lasted only
three months and that he was removed because of an allegation by Josh that
her husband had spanked him; she disagreed with the characterization of
spanking, though, saying that her husband had “batted him one time.”
• D.T. testified that Josh was a very normal, happy kid with no behavioral
issues before he went into the Department’s care and that he had no
behavioral issues during their visits; D.T. described Josh as very loving to
Parents during their visits. B.R. similarly testified that at their visits, Josh
was always happy to see them and tells them how much he missed them,
that he was terrified when they leave him, and that when he was with them,
he did not have the behavioral issues that he has now.
• Regarding Josh’s allegation of violence against one of the Parents’ dogs,
Parents’ veterinarian had testified at a previous hearing in the case and had
not expressed any concerns about the way they handle their dogs.
• B.R. testified that he had noticed some scratches and bruises on Josh during
some visits, and during their first visit, Josh whispered to him, “Dad, that
big man pickled my butt,” which he considered to be an outcry of abuse.
4. Testimony Regarding the Other Children
The Department also put on testimony regarding Ricky, Craig, and a child who
had previously been placed with Parents.
• Cruz testified about a previous investigation by the Department when
Ricky, who was twelve at the time, had shown up to a dialysis appointment
with a black eye and strangulation bruising around his neck. According to
Cruz’s removal affidavit, at that time, B.R. said that Ricky fell while chasing
a cat. At trial, Cruz testified that during her investigation for this case, she
asked B.R. about that incident, and he repeated the same explanation that
Ricky had tripped over a fence chasing a cat. However, when she asked
Ricky about it, he said that he had run into a doorknob.
29
• Dougharty stated that at some point during the case, Parents’ visits with
Ricky were stopped because of “incidents that were occurring in the visits
and [Ricky] not feeling safe.”
• D.T. was also asked about A.D., a previous foster child who had been in
Parents’ care. D.T. denied that she had been removed because of an
allegation that he or B.R. had pushed her. He asserted that she had been
removed after Parents had “placed her in the psych unit and [given a] 24-
hour notice on her” and that the allegation was one that had been “put
against [them] after she was removed.”
5. Testimony and Evidence Regarding Parents
The parties also put on evidence regarding Parents, their ability to care for Josh
if he were to be returned to them, and their compliance with their service plan.
• D.T. stated that they plan to keep Josh in therapy if he is returned to them,
and they have a room set up for him in their new home.
• D.T. said that Parents had done everything that the Department has asked
of them. Dougharty also discussed Parents’ service plan and stated that
Parents had completed their classes.
• Cruz stated that B.R. believed that he and D.T. were being discriminated
against for being in a same-sex relationship. B.R. also testified to that belief,
which he said was reflected in an interaction he had at one point with an
investigator in the case.15 B.R. stated that Dr. Doss was against Parents
because they are a gay couple. When it was pointed out that Dr. Doss is also
in a same-sex relationship, as is Evelyn, he stated that “[i]t’s totally different
for women.”
• Dougharty testified that Parents had not provided her with personal bank
statements despite her requesting them and had not provided her with
documentation verifying their income from dog breeding.
15
According to Cruz’s testimony, that investigator had accompanied her to
interview Adan after his outcry.
30
• Cruz acknowledged that the Department had conducted five previous
investigations of Parents, and all had been ruled out by the Department.
Parents used their own counselors for the counseling services that were
required under their service plan, and both Parents’ therapists testified at trial.
Katherine Weber, D.T.’s psychologist, testified about her impression of him and the
purpose of her treatment of him.
• Receiving anger management was one of D.T.’s services under his service
plan, but Dr. Weber did not feel that D.T. has anger issues.
• D.T. was diligent in his therapy, and nothing had ever been brought up in a
session that made her worry about him or B.R. engaging in family violence.
She had not observed any inappropriate angry behavior from him.
• She acknowledged that D.T. had told her that B.R. “can get emotional and
yells.” But she reported that D.T. had told her that Parents do not use
corporal punishment.
• Dr. Weber admitted that she had not been made aware of the full extent of
Adan’s outcry until several months into D.T.’s therapy sessions. She
acknowledged that she probably would have viewed D.T. differently if she
had seen the removal affidavit from the start of treatment of D.T.
Bryan Duncan, B.R.’s psychologist, testified after Dr. Weber.
• Dr. Duncan began therapy with B.R. in December 2021, before the
Department removed the children.
• As Dr. Weber had said regarding D.T., Dr. Duncan did not believe that
B.R. met the criteria for an anger management course. However, as an anger
management course was one of his services, Dr. Duncan had worked with
B.R. to make as much progress “as could be made considering.”
• Dr. Duncan was aware of the allegations of abuse and neglect against B.R.,
and he agreed that the allegations in the affidavit were concerning for anger
management. However, he never had any interactions with B.R. that would
indicate any difficulty in controlling anger.
31
• Dr. Duncan agreed that first impressions can color a doctor’s impression of
a client. However, he did not believe that reading the affidavit before
treating B.R. would have changed his initial first impression. But if he had
known about the allegations at the start, he would have asked B.R. different
questions at intake, and depending on how he answered the questions, that
could have affected his treatment.
6. Application
In summary, regarding Adan, Parents testified that they had never abused any
of their children, and the two nurses testified that they never saw any injuries on the
children that were unexplained or concerning. The nurses further testified that they
fed all the children breakfast every day and that the children had food for lunch.
Josh’s godmother also testified that she never saw any reason to be concerned about
the children and that Adan “lied a lot.” Parents’ therapists both stated that they did
not believe that their clients had anger issues or needed anger management classes.
On the other hand, the Department put on testimony that Adan made an
outcry of abuse to the Department’s investigator, that he repeated his outcry to the
medical staff at Cook Children’s, and that throughout his therapy after removal, he
consistently maintained those allegations. Evelyn testified that Adan had made an
outcry of abuse to her and had told her that he would get in trouble with Parents if
they found out that she knew about it. The Department also produced photographs
of injuries on Adan at the time of his removal; one of the nurses conceded that the
injuries looked concerning, and the other testified that if she saw injuries on a child
32
like the ones in the photograph, she would have a duty to report them. Those
photographs included bruising to Adan’s upper arms that looked like grab marks.
Neither parent provided any explanation for those injuries during the
investigation other than that Adan had fallen playing outside or riding his bike, and
neither parent addressed the injuries during trial. Diego was not living with the family
at the time Adan received those injuries, so even if the trial court had found that
Diego was aggressive and had episodes of violence against Adan, Diego was not the
source of Adan’s injuries in the photographs. In their brief, Parents describe the idea
that Diego coached Adan to lie as a “compelling . . . notion,” but they cite to no
evidence of any such coaching, and we have found none in the record.
“[E]ndangering conduct is not limited to actions directed towards the child.”
J.O.A., 283 S.W.3d at 345. This court has previously held that “[e]xposing a child to
family violence endangers a child’s physical or emotional well-being and is sufficient
to support an endangerment finding.” In re M.M., No. 02-21-00185-CV,
2021 WL 5227177, at *6 (Tex. App.—Fort Worth Nov. 10, 2021, no pet.) (mem.
op.).16 Thus, if a parent abuses a child, that conduct can support an endangerment
finding as to another child. In re W.J.H., 111 S.W.3d 707, 716 (Tex. App.—Fort
16
Adan’s outcry was that D.T. would yell, but only B.R. committed the physical
abuse against him. Because exposing a child to violence in the home is endangerment,
if only one parent commits physical abuse, but the other parent does nothing to
protect the child, both parents have endangered the child. M.M., 2021 WL 5227177, at
*6.
33
Worth 2003, pet. denied). Based on the record, the trial court could have formed a
firm belief or conviction that Parents abused Adan, and, accordingly, the evidence is
factually sufficient to support such a finding. See A.B., 437 S.W.3d at 500 (setting out
factual sufficiency standard). It was the trial court’s duty to resolve the conflicts in the
evidence, and the trial court could have found the evidence of Adan’s outcries to be
credible, despite the evidence to the contrary.
Adan was consistent in his outcries with Cruz, his therapist, and the medical
staff who treated him upon removal. His story was consistent with the photographs
of his injuries. Josh’s godmother said that Adan “lied a lot,” but a neighbor who took
Adan to and from school every day said that he was a child she could trust. Although
Parents offered controverting evidence about Diego’s claims of abuse, whether Josh’s
behavioral problems were due to neglect and abuse in their care, and whether Adan
was ever denied dinner, and they denied ever injuring Adan, they offered no
competing explanation at trial for the injuries that Adan had when he made his outcry
and no controverting evidence of how he had received those injuries. The trial court
heard the explanations that they had given to Cruz in her investigation—that he fell
playing outside and that he fell off his bike—but the trial court did not have to find
those explanations credible. Adan’s medical records stated that his injuries were
consistent with abuse. The two nurses testified that they never saw anything that
raised a question about abuse in the home, but one of the nurses had not been in the
home since 2020, and the other had apparently not noticed the injuries on Adan at the
34
time of his removal. Based on the record, even if the trial court did not believe that
Parents had physically abused Diego or any of the other children aside from Adan, the
trial court could have found that Parents abused Adan.
Parents argue that Diego clearly lied about the pool incident because Parents’
photographs showing some injuries to B.R. proved that Diego was the aggressor in
that incident. Regardless of whom the trial court believed to the be aggressor in the
pool incident, the trial court could nevertheless have found that Parents abused Adan.
Because the evidence was sufficient to support a finding of abuse against Adan, the
evidence was sufficient to support a finding of endangerment as to Josh. 17 See In re
A.C., 560 S.W.3d 624, 631 (Tex. 2018) (noting that “[i]n 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”). We overrule Parents’
second issue.
III. Best Interest
In Parents’ third issue, they argue that the evidence was factually insufficient to
demonstrate that the termination was in Josh’s best interest under Texas Family Code
Section 161.001(b)(2).
17
For the same reason that the evidence was sufficient to support the
endangerment finding as to Josh, it was also sufficient to support the endangerment
findings as to the other children.
35
A. Standard of Review
Although we generally presume that keeping a child with a parent is in the
child’s best interest, In re R.R., 209 S.W.3d 112, 116 (Tex. 2006), the best-interest
analysis is child-centered, focusing on the child’s well-being, safety, and development,
A.C., 560 S.W.3d at 631. In determining whether evidence is sufficient to support a
best-interest finding, we review the entire record. In re E.C.R., 402 S.W.3d 239,
250 (Tex. 2013). Evidence probative of a child’s best interest may be the same
evidence that is probative of a Subsection (b)(1) ground. Id. at 249; C.H., 89 S.W.3d at
28; see Tex. Fam. Code Ann. § 161.001(b)(1), (2).
We also consider the evidence in light of nonexclusive factors that the
factfinder may apply in determining the child’s best interest: (A) the child’s desires;
(B) the child’s emotional and physical needs, 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 child’s best interest; (F) the plans for the child by these individuals or, if
applicable, by the agency seeking custody; (G) the stability of the home or proposed
placement; (H) the parent’s acts or omissions indicating that the existing parent–child
relationship is not a proper one; and (I) any excuse for the parent’s acts or omissions.
Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976); see E.C.R., 402 S.W.3d at
249 (stating that in reviewing a best-interest finding, “we consider, among other
evidence, the Holley factors” (footnote omitted)); In re E.N.C., 384 S.W.3d 796,
36
807 (Tex. 2012). These factors are not exhaustive, and some listed factors may not
apply to some cases. C.H., 89 S.W.3d at 27. Furthermore, undisputed evidence of just
one factor may be sufficient to support a finding that termination is in the child’s best
interest. Id. On the other hand, the presence of scant evidence relevant to each factor
will not support such a finding. Id.
B. Analysis
Parents testified that they had a room set up for Josh at home, that they would
keep him in counseling, and that he loved them and wanted to come home with them.
See Tex. Fam. Code Ann. § 263.307(b)(5) (providing that trial court may consider
whether a child is fearful of living in or returning to the child’s home); Holley,
544 S.W.2d at 371–72 (considering child’s desires and plans for the child by
individuals seeking custody). Further, D.T. testified that because of the nature of
Parents’ work as dog breeders, they do not have an 8–5 schedule and are home during
the day, and so they would be available to take Josh to school in the morning and pick
him up in the afternoon. Dougharty testified that she saw nothing concerning in
Parents’ visits with Josh. Dr. Doss testified that Josh does not talk about the visits
other than to say that he enjoys them and enjoys leaving, but his saying that he enjoys
leaving is not by itself enough to show that he did not enjoy the visits. She stated that
his defecating on himself immediately after the visits is a sign of trauma, but she did
not explain why it could not be a sign of having to leave Parents at the end of the visit
rather than a sign that seeing Parents was traumatic for him. She did opine, however,
37
that Josh’s behavioral issues were caused by pervasive neglect in Parents’ home. See
Holley, 544 S.W.2d at 371 (considering parental abilities of individuals seeking
custody).
Regarding Parents’ parental abilities, while the children were in Parents’ care,
nurses made breakfast and lunch for the children every day; the nurses took care of
Ricky and Josh during their shifts; the nurses often made sure that the younger
children had their baths for the day; a neighbor took Adan to school and picked him
up every day, and the children’s respective godparents regularly kept them for
weekends. In other words, many of the regular daily duties of a parent were taken care
of by people other than Parents. There was scant testimony about what Parents’ roles
were in caring for the children before removal other than one nurse’s testimony that
D.T. usually made dinner for the family and Partridge’s testimony that one of the dads
took “the older boy” to high school in the mornings. See Tex. Fam. Code Ann.
§ 263.307(b)(12) (providing that trial court may consider parent’s demonstration of
adequate parenting skills); Holley, 544 S.W.2d at 371 (considering parental abilities of
individuals seeking custody). Further, Dougharty testified that Parents had never
provided her with bank statements, despite her asking for them, and she had not
received any verification of their income. See Holley, 544 S.W.2d at 371 (considering
stability of the home).
Regarding Josh’s behavioral issues, the trial court had conflicting evidence
about whether they were the result of his stay in foster care, but most of the evidence
38
was that the issues arose after removal. Parents, the two nurses, and Cathy all said he
did not have behavioral issues before his removal. The Department relied only on Dr.
Doss’s testimony to establish that the behavioral problems were the result of
persistent neglect before removal and presented no witnesses who could testify about
Josh’s behavior before removal. Dr. Doss did not explain if persistent neglect before
removal could have been the cause of behaviors that began only after removal.
The trial court could have believed that Josh’s multiple placements throughout
the case had been distressing or even traumatic for him. See Tex. Fam. Code Ann.
§ 263.307(b)(2) (stating that trial court may consider frequency and nature of out-of-
home placements). On the other hand, as noted, the trial court could have found that
Adan’s outcries of abuse were credible. See id. § 263.307(b)(7), (12)(E) (providing that
courts may consider whether there is a history of abusive or assaultive conduct by the
child’s family or others who have access to the child’s home and whether parent has
adequate skills to protect child from repeated exposure to violence although violence
may not be directed at the child); In re E.S., No. 02-20-00407-CV, 2021 WL 2149627,
at *9 (Tex. App.—Fort Worth May 27, 2021, pet. denied) (mem. op.) (considering
history of violence in the home as part of best-interest analysis). That abuse also
endangered Josh and was evidence that the parent–child relationship was not a proper
one. See Holley, 544 S.W.2d at 372.
39
Based on the record, the trial court had factually sufficient evidence from
which it could form a firm conviction or believe that termination was in Josh’s best
interest. We overrule Parents’ third issue.
Conclusion
Having overruled Parents’ three issues, we affirm the trial court’s judgment.
/s/ Mike Wallach
Mike Wallach
Justice
Delivered: September 14, 2023
40