in the Interest of C.E., a Child

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-22-00285-CV
___________________________
IN THE INTEREST OF C.E., A CHILD
On Appeal from the 355th District Court
Hood County, Texas
Trial Court No. P2021009
Before Birdwell, Bassel, and Wallach, JJ.
Memorandum Opinion by Justice Wallach
MEMORANDUM OPINION
The jury heard evidence that infant C.E. (Carlo)1 was injured by intentional
trauma. The jury found that both his mother, B.K (Mother) and his father, C.E.
(Father), had endangered the child, that terminating Mother’s parental rights was in
Carlo’s best interest, and that terminating Father’s rights was not. In accordance with
those and other jury findings, the trial court terminated Mother’s parental rights based
on the termination grounds in Texas Family Code Section 161.001(b)(1)(D), (E), (O)
and (b)(2) and Section 161.003. See Tex. Fam. Code Ann. §§ 161.001(b)(1),(2),
161.003.
In two issues, Mother (1) challenges the legal and factual sufficiency to support
the jury’s findings and (2) argues that under Section 161.003, the trial court held the
trial prematurely. We will reverse. First, the evidence does not support the predicate
termination ground in Section 161.001(b)(1)(O). Second, the evidence does not
support a finding that Mother’s mental health conditions rendered her unable to care
for Carlo and thus does not support termination based on Section 161.003. Finally,
the evidence does not support a finding that Mother injured or that she otherwise
endangered Carlo and thus does not establish the termination grounds in Section
161.001(b)(1)(D) and (E).
1
We use an alias to identify the child and persons through whom the child
could be identified, and we identify family members by their relationship to the child.
See Tex. Fam. Code Ann. § 109.002(d); Tex. R. App. P. 9.8(b)(2).
2
Background
I. Department’s Case Opening, Order of Investigation, and Procedural History
The Department of Family and Protective Services opened its child-protective-
services case regarding Carlo after Mother took him to Cook Children’s Medical
Center in Fort Worth on February 25, 2021. According to Donna Wright, a pediatric
nurse practitioner with Cook Children’s CARE team, Carlo was admitted to the
hospital due to a subdural hematoma on both sides of his brain, a post-traumatic
seizure, retinal hemorrhages in his eye, “and [a] closed fracture of parietal bone of the
skull with subdural hemorrhage.” The CARE team determined that the injuries were
caused by an intentional act, and the hospital therefore notified the Department and
local law enforcement about Carlo’s injuries.
Both the Department and the Hood County Sheriff’s Office responded.
Investigators from each agency interviewed Mother and Father2 over the next week
and half:
Evening of Thursday, February 25–Morning of Friday, February 26
• Guy Reynolds, an investigator with the Hood County Sheriff’s Office,
interviewed Mother at the hospital in the late evening of February 25. Reynolds
recorded his conversation with Mother, and part of that recording was played
The Department investigators interviewed the parents in connection with this
2
child-protection case. Hood County Sheriff’s Office investigators interviewed them in
connection with a criminal investigation for child abuse.
3
for the jury.3 Father was not interviewed then; Reynolds went home after he
finished the interview because he was too tired to interview Father.
• Mother, however, had another interview after speaking to Reynolds. At around
1:30 a.m., she was interviewed by Brandi Dees, a special investigator with the
Department.
• Father woke up around 3 a.m. and deleted from his phone some pornographic
photographs that a friend had sent him in a WhatsApp group chat.
Friday, February 26
• Holly Mizer, a Department investigator who became the primary investigator
on the case, had a phone call with Mother and a brief phone call with Father.
• Nurse Practitioner Wright saw Carlo, and she spoke to Mother to get Carlo’s
history. Mother seemed “extremely distressed” and “overwhelmed by the
medical condition of [Carlo].”
Saturday, February 27
• Investigator Reynolds and Hood County Investigator George Zamarron met
with Father at his home for about thirty minutes. Unlike Reynolds’s interview
with Mother, he did not record this interview. Reynolds took cell phones from
Mother, Father, and Mother’s father (Grandfather), and extracted the phones’
data.
Monday, March 1
• Mizer and Zamarron interviewed Mother. In that interview, Mother told
Zamarron that Father had placed cameras inside the home earlier that month.
Mother also told Zamarron that Father was emotionally abusive and
controlling. Mizer noted that Mother did not show emotion during the
interview.
3
The recording is two hours long. The attorneys at trial did not specify what
part of the recording was played during trial.
4
• Around this date, the Department’s special investigator Dees interviewed
Father, with his attorney present; at trial, she could not remember the exact
date of the interview.
Wednesday, March 3
• Mother met with Mizer again, and the Department acted to remove Carlo from
his parents’ care.
Thursday, March 4
• Department investigator Mizer interviewed Father with Father’s attorney
present.
Friday, March 5
• Zamarron formally interviewed Father with Father’s attorney present.
Zamarron recorded this interview. Zamarron played the recording of this
interview for the Department’s attorney at some point before trial, but
Mother’s attorneys did not learn of the recording’s existence until Zamarron
testified.
The Department filed its petition for protection of a child, for conservatorship,
and for termination of both parents’ parental rights, and the trial court signed an
order authorizing Carlo’s removal from his parents. Mother and Father each filed a
cross-claim for termination of the other parent’s parental rights. The attorney ad litem
appointed to represent Carlo filed a counterpetition to terminate Mother’s parental
rights. 4 At trial, the Department dropped the termination ground that it had alleged
against Father.
The Department, Father, and Carlo’s attorney ad litem were aligned at trial, so
4
when discussing them collectively, we refer to them as the Department Parties.
5
The case was tried to a jury, which heard eight days of testimony. After hearing
testimony from Nurse Practitioner Wright, Mother, Father, Grandfather, law
enforcement officers, mental health care providers, caseworkers, and the parents’
acquaintances, the jury found that Mother
• had engaged in conduct, or had knowingly placed Carlo with persons who had
engaged in conduct, that endangered Carlo’s physical or emotional well-being,
see Tex. Fam. Code Ann. § 161.001(b)(1)(E);
• had knowingly placed Carlo in—or had knowingly allowed him to remain in—
conditions or surroundings that had endangered his physical or emotional well-
being, see id. § 161.001(b)(1)(D);
• had a mental or emotional illness or a mental deficiency that rendered her
unable to provide for Carlo’s physical, emotional, and mental needs, and the
illness or deficiency, in all reasonable probability, would continue to render her
unable to provide for Carlo’s needs until his eighteenth birthday, see id.
§ 161.003; and
• had failed to comply with the provisions of a court order that specifically
established the actions necessary for her to obtain Carlo’s return, see id.
§ 161.001(b)(1)(O).
The jury found that Father had engaged in conduct that had endangered Carlo’s
physical or emotional well-being or had knowingly placed Carlo with persons who had
engaged in endangering conduct. Finally, the jury found that the termination of
Mother’s parental rights was in Carlo’s best interest but that termination of Father’s
parental rights was not. The trial court accordingly found the predicate termination
grounds in Texas Family Code Section 161.001(b)(1)(D), (E), (O), and Section
161.003 existed with respect to Mother and that termination of her parental rights was
in Carlo’s best interest. Accordingly, the trial court terminated Mother’s parental rights
6
and appointed Father as Carlo’s sole managing conservator. Mother filed motions for
judgment notwithstanding the verdict and for new trial, which the trial court denied.
II. Facts Preceding the Investigation
The relevant facts of this case began with Mother and Father’s relationship, so
we summarize the history of their relationship through February 24–25, 2021, when
Carlo’s injuries manifested. Then, because the parties at trial focused on the parents’
actions on February 24–25, we summarize what each parent told the investigators and
the jury about the events of those two dates.
A. 2007 and 2016–2018
Mother and Father met in 2007 in veterinary school and had an on-again, off-
again romantic relationship. They lost touch for a few years and reconnected in
2017 while Father was living in New Jersey and Mother was living in Houston. Father
came to Texas periodically, however, to teach classes at a veterinary academy in
Arlington operated by Mishell Copley, who became Father’s friend. Coincidentally,
Copley knew Mother’s mother (Grandmother) and considered her a friend. Mother’s
parents lived in Arlington, and Mother sometimes came to stay with them.
In October 2017, before Mother reconnected with Father, she voluntarily
admitted herself to a hospital in Houston for psychiatric care. The impetus of the
hospitalization was a video that Mother had posted on Facebook. In that short video,
Mother, in obvious distress, appeared to believe that the world was ending, and she
encouraged people to gather with their loved ones; as noted by a psychologist who
7
evaluated Mother as part of this proceeding, Mother looked scared in the video but
not angry or violent. Mother told the jury that prior to the day that she recorded the
video, she had been having vivid dreams that the world was ending, and that day she
woke up believing the dream was true.
Before Mother had this breakdown, she suffered a number of stressful,
traumatic experiences. In 2016, her then-boyfriend attacked her and attempted to kill
her. In 2017, her mother was diagnosed with cancer, and her dog died of cancer. That
same year, Mother was working for the veterinary clinic of Dr. Vera Domnall when
Domnall was arrested for attempting to hire someone to kill her ex-husband. Domnall
then died by suicide. Those two events first left Mother working twelve-hour days as
the only remaining full-time veterinarian on staff at the clinic and ultimately left her
unemployed.
A physician who examined Mother in connection with her 2017 hospital
admission, Dr. Jamal Rafique, diagnosed her with “bipolar disorder manic with
psychosis.” Mother believed that the doctor had misdiagnosed her, and a few days
after her admission, she requested to be released. Someone (presumably affiliated with
the hospital) filed in a Houston trial court an application for temporary mental health
services. The application was accompanied by Dr. Rafique’s certificate of medical
examination in which he checked options on the form certificate stating that Mother
was likely to cause serious harm to herself and to others. He handwrote on the form
8
that Mother was psychotic, delusional, unable to sleep, had poor concentration, and
was unable to protect herself.
The trial court ordered that Mother be put into protective custody, that she be
examined by Dr. Rafique, and that a hearing be held to determine whether probable
cause existed for Mother’s immediate restraint. After the hearing, the court
determined that probable cause did not exist to believe that Mother presented a
substantial risk of harm to herself or others, and she was released against medical
advice pending a final hearing. After the final hearing, the court dismissed the case.
Mother told Father about the 2017 hospitalization and said it was because of
stress. She disclosed that the doctor had diagnosed her with bipolar disorder, but she
told Father that she disagreed with that diagnosis.
In February 2018, Mother again submitted herself to voluntary hospitalization
for mental health services—this time for depression and suicidal ideation. According
to Mother, she went to the hospital because she “didn’t really have a doctor” or a
“complete package of care.” During her second hospitalization, she was treated by a
Dr. Nayeem, a psychiatrist, and she continued to see her for treatment. She also began
seeing a therapist. Dr. Nayeem diagnosed her with depression or post-traumatic stress
disorder (PTSD); testimony indicated that she may have also diagnosed Mother with
9
bipolar disorder,5 but Mother’s medical records from that hospitalization were not
introduced at trial.
Father moved to Granbury, Texas, in 2018 after purchasing a veterinary
practice there. Mother continued living and working in Houston.
B. 2019–2020
Father and Mother became engaged in 2019. Father initially had a good
relationship with Mother’s parents, but according to Father, that changed as
Grandmother became “more aggressive” toward him. Father claimed that when the
couple got engaged, Grandmother refused to look at the ring and was so upset about
the wedding that she fell and broke her arm. Mother, on the other hand, said that
when Grandmother became upset about the ring, it was because of Father’s reaction
when Grandmother had asked him when he and Mother were going to get engaged. It
was at Mother’s birthday party, and Father “pulled the ring out of his bag and then he
threw it across the bed at [Grandmother] and was like, I was going to propose this
weekend, but you are always in town and you ruin everything.” In January 2020,
Father joked with a friend about using Grandmother as target practice. In March
Mother’s current psychiatrist testified at trial about what Mother had told her
5
about her mental health issues in 2017 and 2018, and the doctor said that Mother had
reported that “she was diagnosed with bipolar in 2018.” Mother testified that it was
during her second hospitalization—which was in 2018—that she began seeing Dr.
Nayeem.
10
2020, Father texted a friend about visiting Grandmother and said that “god willing [I]
could hand[-]deliver coronavirus to that bitch.”
The couple originally planned to marry in September 2020, but the outbreak of
COVID-19 delayed their plans. The delay became a source of friction in the
relationship. Father wanted to not have the wedding in the middle of the pandemic,
but Mother wanted to get married before Grandmother died.6 Father claimed that he
would have been fine with a small courthouse wedding. Mother, however, did not like
that plan because she had already paid $10,000–15,000 in deposits for the wedding.
Father began having second thoughts about getting married. Father said that it was
around that time that his relationship with Grandfather began to sour.
In June 2020, Mother met with licensed professional counselor (LPC) Susan
Boles for a counseling session over the phone. According to Boles, Mother reported
concerns that her parents were trying to break up her relationship with Father and
that her parents had stolen one of her credit cards. Although Boles is not a licensed
marriage and family counselor, she also met with Mother and Father together for
several counseling sessions—once by Zoom and twice in the office.
When Mother told Father that she was pregnant, he was surprised, and he
testified that he could see how Mother might have perceived his reaction as “less than
supportive.” Mother said that when she told Father, he seemed shocked and angry
6
In April 2020, Grandmother had been given only a few months to live.
11
and told her not to tell anyone. In his testimony, Father agreed that it took him a few
days to be happy about it. Father testified that he had wanted to keep the news to
themselves because of a higher risk of miscarriage due to Mother’s age. He also asked
Mother to get an amniocentesis because , according to Mother, he “did not believe in
bringing a disadvantaged child into the world.”
After they told their families about the pregnancy in late September 2020,
Mother thought Father was fine with her telling everyone else, but he still wanted to
take more time before telling friends and coworkers. According to Mother, when they
had a baby shower, Father told his friends not to attend.
In addition to being a veterinarian, Father is also a doctor of pharmacy, and
before Mother became pregnant, Father had told her that if they were to have
children, some psychiatric medications could not be taken during pregnancy. Mother
testified that after she became pregnant, Father did not want her to take Celexa, an
antidepressant. Because he was a pharmacist, she trusted his opinion. Her therapist in
Houston knew that she was going to stop taking the Celexa and was fine with that
decision. Father testified that Mother told him that she had quit one of her
antipsychotic medications but denied that she had told him which one. Mother
testified that she never stopped taking another prescribed medication, Seroquel,7 but
there was some evidence at trial that she did stop that medication.
Seroquel is prescribed for bipolar disorder, for depression, and for sleep
7
problems.
12
In October 2020, Father bought a house from Krissy Burke and her husband,
and Krissy testified about the time she had spent around Mother and Father from the
time that they moved in until after Carlo’s birth. Mother moved in with Father after
he bought the house, and Krissy and her husband went to the house every week for
multiple weeks to help Mother learn how to use the lawn mower, pool equipment,
and other issues in the house. Mother referred to Father as her fiancé, but he referred
to Mother as his girlfriend. The Burkes found out two weeks before Carlo’s birth that
Mother was pregnant, and Mother told them that Father did not want her to tell
people. Krissy said that they went to the house so often to help Mother because they
“had concerns,” and she felt that there was “something off” about the couple’s
relationship and “just something said [Mother] needed help.” Thus, because they felt
that something was wrong with the relationship, they decided, “we’re just going to do
this. We’re going to take the time. If she asked us to come over, we’re going to help. I
fe[lt] like there’s something wrong.”
Father’s relationship with Grandfather continued to be contentious. In
December 2020, he texted a friend, “Truly that’s going to be when it goes really bad,
when the baby is born. They both think I’m going to allow [Grandfather] to be
around.” Father also “joked” with a friend about killing Grandfather and putting his
body in the clinic’s deep freezer.
13
C. January 2021
Carlo was born on January 2, 2021. Father did not take off from work while
Mother was in labor because of the costs of hiring a relief veterinarian, but he did
spend one night in the hospital with them. Father took no time off from work after
Carlo’s birth. He worked full days Monday through Friday, usually leaving the house
around 7:00 a.m. and returning home around 6:00–7:00 p.m., and he also worked
some on Saturdays and Sundays. That left Mother “carrying most of the load” in
caring for Carlo. Mother testified that Father had offered to hire a nanny to help but
he told her that payment for the nanny would have to come out of her salary, so
Mother declined.
LPC Boles had a final session with Mother in January 2021 for a mediation
with Mother, Father, and Grandfather about how to navigate Father’s and
Grandfather’s contentious relationship. The reason for the mediation was that Father
did not want Grandfather alone with Mother in the house with Carlo. The mediation
session was precipitated by Father’s threatening “to have it out with [Grandfather] on
the lawn.” At trial, Father did not deny that it was not just Grandfather’s presence at
the house that he wanted to ban—before Carlo’s birth, Father had said that he did not
want Grandfather around Mother or the baby at all. At the mediation, unlike in the
previous sessions with Boles, Mother did not seem to have any concerns about
Grandfather. According to Boles, the three agreed that Father would be at the house
if Grandfather were there with Mother and Carlo.
14
D. February 1–February 23, 2021
On February 6, 2021, Mother told Father that she wanted a separation, and she
took Carlo with her to the house of her friend Ilene Thomas and Thomas’s husband.
Mother explained that she left because the week before, on January 28—the day after
their mediation with Boles—Father had asked her to leave because he was angry that
she had let Grandfather come over. According to Mother, Father kicked Grandfather
out of the house and told Mother, “You and I have nothing. Get out of my house.”
She defused the immediate situation, but her anxiety began building about the state of
their relationship. Furthermore, Father had told her that she could not work at his
clinic anymore—which would require her to get a job thirty to forty-five minutes
away—but that she would also have to pick up Carlo from daycare, which was
something that would be logistically impossible if she were working elsewhere.
Mother said that the day she left, Father had come home in the early afternoon, and
when she tried to talk to him about her feelings and about what had happened the
week before, he just told her that she did not look well and should take a nap. She
suddenly “got a little fearful,” so she told him that she was going to the Thomases,
packed some things, and left. Father stated that Mother had left because she wanted
Grandfather to be able to come to the house when he was not there.
During the twenty-four hours after Mother left, Father texted Mishell Copley
about Mother: “F[--]k that bitch”; that Mother was “out. No coming back”; that he
was “done”; and that once a person had lost his trust, it could not be regained. Father
15
said at trial that his reference to losing trust in Mother was because he had found out
that when Mother was pregnant, she told her family about her pregnancy but did not
tell him that she had done so, and she and her family had let him believe that they did
not know. Mother told the jury that she had told Grandmother about the pregnancy
when Grandmother was days away from dying.
Mother said that she told Father how much anxiety she was having around this
time, but she conceded that she did not use the word “crisis” to describe her mental
state. Father denied that she had told him about her anxiety. Texts from Father
showed, however, that at least by February 8, he unquestionably knew that she was
having an issue with her mental health, which he planned to use to get custody. On
February 8, he texted a friend that he was in the office of a family law attorney and
that Mother had “[l]ost her mind. Literally, [I] think she’s in crisis. I’m going to ask
the court to order her to [a] mental hospital for an evaluation and to get her some
psychiatric help.” The next day, in texts to friends referring to Mother as “this bitch,”
he told the friends that Mother had told him that she wanted to move back in. He
then texted that if he kept “meeting her irrational thoughts/demands with reasonable
que[s]tions and requests that prevent her from whatever her plan is. . . . . . she’ll be in
a crisis mentally soon”; that he could “see her cycling through thoughts [and]
becoming flighty” and that he was “documenting the swings in t[h]oughts and rapid
cycling between them. . . she is going into crisis.” He also texted, “I am really starting
to believe and feel in control,” and “I’m letting her take all the rope she wants, she
16
will hang[ ]herself and end up in a psyc[h] ward long enough to give me a chance for
custody.” That same day, he texted Mother that he loved her.
Father testified that he and Mother continued to communicate while she was
with the Thomases but that when he had tried to schedule time to visit Carlo, she
canceled and blamed the Thomases, saying that they would not allow her to go see
him. Ilene Thomas agreed that such a statement was not strictly true because she and
her husband could not physically prevent Mother from leaving, but she believed that
Mother said that she was not “allowed” to go see Father because she knew that the
Thomases did not want her to go home and because Mother was afraid to go.
Father testified that Mother had called on February 9 to say that she wanted to
come back, and he told the jury that he was not for or against it but wanted to talk
more before they decided. However, other texts from Father showed that he had
already spoken to an employment attorney about how to end Mother’s employment at
the clinic and to a family-law attorney about how to gain custody of Carlo.
On February 10, Mother told Father that she would bring Carlo over that day
and asked if 2:30 p.m. would work. When he confirmed (saying “[c]an’t wait to see
you two”), she asked if she could leave Carlo with him so that she could go to a
doctor’s appointment, and he agreed. Father said that when she showed up at his
house, “[s]he could barely talk. Her voice was shaking. She was shaking so bad that I
had to grab the baby from her.” She told him that Grandfather was taking her to an
emergency room and that she would probably be hospitalized, and she asked if she
17
could come back to the house that night if not hospitalized. He told the jury that he
responded, “absolutely, I’ll help you through this.” Interestingly, that night he sent
Mishell a text stating, “The lawyer said it would look better if I let her in while in crisis
than to turn her away. The courts will see that I’m doing what’s best regardless of
what she has done” and that he “need[ed] to show [he’s] working with the situation.”
Mother testified that she simply wanted to get a doctor’s assessment when she
went to the ER that day, and she disagreed with Father’s description of her demeanor
when she had dropped off Carlo with him. Mother was asked about the fact that on
February 10, Grandfather texted a family member that Mother was going in crisis and
that she had said that she felt like she did “3 years ago,” but she denied that he was
referring to the episode that led to her previous hospitalizations. The ER doctor did
not see a need to hospitalize Mother; she was given a dose of Ativan for anxiety and a
prescription for future use, and she returned to Father’s house that night. Father was
apparently not too concerned with Mother’s condition because he went to work the
next day, leaving her alone with Carlo.
Around that time, Mother made a February 24 appointment with psychiatrist
Dr. Diana Ghelber, who had an office in Granbury. Mother wanted to transfer her
care from her Houston doctors because she felt like she was “going into crisis.”
At that time, Mother did not know that Father was planning the end of their
relationship. On February 14, the two exchanged gifts and cards and “said [they]
loved each other.” On February 17, Father texted a friend that Mother was “acting as
18
if nothing [had] occurred. . . . WTF is wrong with her” and that “[i]t may be her psyc
condition. . . . not sure. It may also be as simple as she’s a c[—]t and just wanted to
get her way to have her father over [to] the house.”
In early February, Krissy saw Father at his veterinary clinic,8 and as a result,
became concerned about Mother. When Krissy was there, she spoke to Father outside
the clinic from her car, and she asked him how he liked the community. He said that
he “f[--]king hated it. He hated the people. He hated being there.” She asked him
about parenting, and he said that he was tired; that he “had [Mother] on a . . .
schedule”; and that Mother was happier when he “allowed” her to do certain
activities, like going on a walk or do surgery at the clinic. Alarmingly to Krissy, Father
said that he felt like Mother was going to hurt Carlo, so Krissy offered to help. “At
that point[,] his demeanor completely changed entirely.” Father told Krissy that he
had put Mother “on a very strict eight-week lockdown for COVID because he was
very nervous about it, which [Krissy] found odd because he was in [her car] window
without a mask.” Krissy said it “blew [her] mind” that he would say that he was afraid
that Mother would hurt the baby and then not allow her to go to the house to help,
even though she had already been to the house multiple times. After that, she was not
8
She was at the clinic to have her dog seen by Father as a trade for utility bills
that Krissy and her husband had paid on the house that Father had purchased. Father
had not transferred some of the utility bills into his name right away, and because
Mother was pregnant, the Burkes paid the bills rather than having the utilities cut off.
Father agreed that the Burkes could bring their dog up to Father’s clinic as
reimbursement for those bills.
19
allowed to go by the house; any of the Burkes’ mail that was misdelivered to Father’s
house had to be retrieved from Father’s clinic.
Around this time, Mother had increasing anxiety. She texted Grandfather
multiple times between February 10 and February 22 telling him about her anxiety.
On February 18, she texted him that Father was “[a]lways angry about the staff or
work or the clinic or the day[,] and [her] anxiety when listening to that just buil[t].” On
February 22, she texted him, “Panic attacks last night about [she and Father] not being
together raising the baby.” The next morning she texted Grandfather that she had
endured “a few yucky anxiety[-]filled bouts last night” but that she had taken her
medications and felt “a little better.” On February 24, before her appointment with
Dr. Ghelber, she texted Grandfather that she “had major anxiety [that] morning more
than before but took deep breaths and fe[ll] back asleep.”
However, Grandfather was not worried about Mother’s mental health because
despite her texts mentioning anxiety, her texts sounded fine after she took her
medication every day. Grandfather had never seen Mother’s anxiety manifest into
anger or any kind of violence. Instead, her anxiety made her unable to sleep. Texts
from Mother to Grandfather around this period indicated that she was taking her
prescribed Seroquel; she was taking half at 8:00 p.m. to help her sleep and then the
other half at 4:00 a.m., when she got up to feed Carlo, so that she could sleep again
after that rather than “sit[ting] there with anxiety until 7:00 a.m.”
20
E. February 24–morning of February 25
On the morning of February 24, Mother had her previously-scheduled
appointment with Dr. Ghelber, who testified as an expert at trial. Mother had taken
Carlo with her to her appointment, and Grandfather met her there and stayed in
Mother’s car with Carlo during the appointment. He did not think that Mother looked
like she was in a crisis on the morning of February 24, and he saw nothing in her that
morning that gave him cause for concern.
Dr. Ghelber similarly did not find Mother to be erratic or someone who posed
an immediate danger to herself or who needed to be hospitalized. She described
Mother as seeming dysphoric, that is, “the opposite of happy.” She further stated that
she disagreed with Mother’s prior diagnosis of bipolar disorder. Her opinion was that
Mother had PTSD; generalized anxiety disorder; panic disorder; and major depressive
disorder, moderate. Dr. Ghelber stated that when a person is in an acute phase of
severe PTSD, that person’s symptoms “can be very extreme and sometimes can be
perceived as psychotic.” She explained that “one of the cardinal symptoms in PTSD is
nightmares,” that “nightmares reflect usually the trauma” of the patient, and that the
nightmares “are so intense and so disturbing that sometimes the person can get up
and not know[ ] if it is reality or if—they feel that this is their own reality until they
wake up completely.” Dr. Ghelber reported that Mother’s depression had reached
remission, that Mother had been doing very well since she had begun seeing her, and
21
that Mother talked about Carlo with appropriate emotion. Mother did not exhibit any
symptoms of PTSD at the time of trial.
After that appointment, Mother and Grandfather went to the post office,
where Grandfather again waited in the car with Carlo while Mother went inside. Carlo
was “[h]appy and playful.” They then went to the park for a while before going to the
grocery store. Carlo was still happy and playful. At the grocery store, Grandfather
once again stayed in the car with Carlo while Mother went inside. He fed Carlo while
waiting; Carlo “ate like a horse.” Grandfather did not notice any injuries on Carlo or
anything that would indicate that something was wrong with him. After the grocery
store, Mother then went home.
When they were at the park, Mother received an email from Father with a copy
of a cohabitation agreement. While Mother was staying with the Thomases, Father
had raised the issue of signing a cohabitation agreement, but Mother did not know
what that kind of agreement was like, so Father sent the sample agreement to show
her. At some point during the day, Mishell texted Father to say that Mother had asked
to work at his clinic, and he responded that “[s]he can f[--]k herself.”
The parties disagreed about what happened that evening after Father came
home from work, and we set out below what each told investigators and the jury.
First, the jury heard slightly different testimony about what time Father came home:
• Father’s statements. Father told Dees that he had arrived home around
7:15 p.m. and told the jury that he had come home around 7:00 p.m.
22
• Mother’s statements. Mother told Nurse Practitioner Wright that on February
24, she had come home around 4:30 p.m. and that Father had come home
around the same time. She told the jury that Father had come home around
7:00 pm.
Mother and Father told investigators and the jury different things about what
had happened when Father came home:
• Father’s statements. Father told Dees that when he arrived home, Mother was
sitting in a chair, and Carlo was screaming. He told the jury that Carlo “was
more fussy [than usual]. He was louder,” and he would not settle down. Father
denied that Carlo was typically fussy at night, but he acknowledged that the
night before, Carlo had cried for two hours. Mother was visibly upset and
asked Father to get a bottle for Carlo. When Father asked Mother where the
clean bottles were, Mother screamed at him to “just get the F’ing bottles.” She
then tried to feed Carlo, but he did not eat much.
• After Father ate dinner, he took Carlo to try and soothe him. He eventually
settled down, and then Father tried to talk to Mother. They talked for about an
hour, but she “became just kind of absent” and “kind of looked through
[him].” At one point, she stared off and said, “I just want to go to the Swiss
Alps and be pulled in a sled by horses in the snow.” On cross-examination, he
stated that he had finally made it clear to Mother that evening that he did not
want to marry her.
• Mother’s statements. Mother told Nurse Practitioner Wright that when she fed
Carlo around 7:00 p.m., he was a little fussy. Mother’s feeding log 9 noted that
she had fed him at 6:30. Mother told Reynolds that Carlo had begun getting
fussy around 6:30 or 7:00 p.m.
• Regarding Father’s assertion that she had said something about skiing in the
Alps, Mother noted February 24 was just after the severe winter storm that
year, but she did not remember making any statement about wanting to be in
the Alps. She disputed to the jury that she and Father had any disagreement
about the bottles or that she was angry. Instead, it was Father who was angry,
and the disagreement was about the cohabitation agreement. Mother was not
9
Since Carlo’s birth, Mother had kept a log of Carlo’s feeding times and what
he ate at each feeding.
23
happy about the cohabitation agreement example that Father had sent her
because it included a medical power of attorney and because the type of
agreement that he had sent her was one for when a relationship was ending.
When Father arrived home that day, she told him that she would not sign the
cohabitation agreement, and Father got “very irritated.” He raised his voice and
told her, “[N]o, you’re going to sign that. It’s non-negotiable.”
Mother and Father both said that Father had taken care of Carlo for a few
hours in the evening, but they disagreed about whether she had gone to bed then:
• Mother’s statements. Mother told Dees that she began feeding Carlo around
8:00 p.m. because he was fussy, and she gave him to Father to finish feeding
him. She told Reynolds and the jury that Carlo was fussy while Father was
caring for him around 8 or 8:30 p.m., but Father told her that Carlo was fine
and to go to bed.
• Father’s statements. Dees, Mizer, Reynolds, and Zamarron did not testify about
what Father said, if anything, about caring for Carlo around that time or if he
was fussy. Father told the jury that while he was holding Carlo, he noticed that
the baby started screaming whenever he was moved.10 Mother went to take her
bath but was not in the bathroom for long, and when she came out, she kept
“hovering over” Father and fussy Carlo.
Mother said that she got out of bed around 10:00 p.m. when she heard Carlo
make an unusual scream, and Father told the jury that there was no unusual scream:
• Mother’s statements. Mother told the jury that after Father took over caring for
Carlo, she took a bath, took her Seroquel, and went to sleep, but she woke up
around 10 or 10:30 p.m. when she heard Carlo make a scream he had never
made before. To Wright, Dees, and Mizer, she described the scream as
‘bloodcurdling,” although she told the jury that she used the adjective
“bloodcurdling” only after Dees suggested that term when Mother was trying
to describe the sound. When Mother took Carlo to the pediatrician the next
10
Father also told the jury that “this startle response was going on,” like when
“we’re falling asleep, you kind of jump.” However, Dr. Watts testified that what
Father described was something that babies do “from the day they’re born” and is not
a symptom of injury.
24
day, however, she did not tell the pediatrician, Dr. Shannon Watts, about a
scream. Mother told the jury that she did not mention a scream to Dr. Watts
because she had no idea that Carlo had been injured in that way, i.e., she did
not think it was relevant.
• Mother told the jury that when she checked on Carlo after the scream, Father
was on the couch holding him, and he said that she did not have to get up
every time Carlo cried and that Carlo was “manipulating” them. Father told her
to go back to bed, so she did, and Carlo seemed to settle down.
• Father’s statements. Father disputed Mother’s statement that she went to bed
around 8:00 p.m. and said that Mother finally went to bed around 10:00 p.m.
Father told Dees that Carlo was crying around that time, but he told the jury
that Carlo did not make a “bloodcurdling” scream. Carlo finally fell asleep, and
Father put him in his swing about 11:30 p.m. Father fell asleep on the couch.
Mizer said that Father mentioned Mother’s getting up at some point but did
not volunteer any information about Carlo’s making an unusual scream. None
of the investigators testified to asking Father about a scream.
Both parents agreed that Mother had gotten up at some point to feed Carlo
and had let Father sleep, that she had woken him up again at some point so that she
could sleep more, and that she had woken up before Father went to work. However,
they disagreed somewhat about the time that these events occurred, and only Mother
testified that Carlo had vomited after eating:
• Father’s statements. Father told the jury that Mother had woken him up around
2:30 a.m. and had told him to go to bed to sleep. Father slept until around
4:45 a.m., when Mother woke him up. He said that she told him that Carlo had
been fussy overnight, and Father suggested that maybe he was colicky; they
gave him some gas drops, and Mother went to sleep. That settled Carlo down,
and Father put him back in his swing to sleep. Mother got up again around
6:30. She seemed fine, and Father went to work. Father texted Mishell that
Carlo had been screaming when he had walked in the door the night before,
“screamed non-stop” all night, and was screaming when Father left at 6:45 a.m.
However, he told the jury that what he said in the text was not true and that
Carlo was not screaming when he left.
25
• Mother’s statements. Like Father, Mother told the jury that she had woken up,
had gone into the living room, and had woken up Father to tell him to go to
bed. In contrast to Father, however, she said that she had woken up around 1
or 1:30 a.m. She told Wright and Dees the same thing. Carlo was in his swing,
where he liked to sleep. She told the jury that because Carlo was getting fussy
again, she changed his diaper and fed him, but he vomited everything back out.
She had also told Wright and Mizer about the vomiting. She changed his
clothes and tried to settle him, but he would only settle down while held. She
woke Father again around 4:30 a.m. so she could sleep more. After they gave
Carlo gas drops, she slept again and woke up around 6:30 or 7:00 a.m. Father
left for work by 7:15.
That same morning, Father sent Mishell a text saying that he needed Mother to
work that week to show that she had returned from maternity leave and that he had a
termination letter ready for her, which he expected would “also throw her into crisis.”
Because Father was not around Carlo after he left for work that morning, the
evidence of what Mother and Carlo did in the morning and early afternoon on
February 25 came primarily from testimony by Mother and Grandfather. Mother
texted Grandfather to say that Carlo had been fussy; Carlo was not normally fussy in
the mornings. Mother told Wright and the jury that when she fed Carlo at 8:00 a.m.,
he was fussy; to Wright, she described it as “inconsolable.” She gave him Tylenol, and
after that, he fell asleep on her chest. At 10:00 a.m., Mother fed Carlo again and then
took him for a walk. During the walk, she noticed his leg was twitching, so she called
the pediatrician, Dr. Watts, to make an appointment for that afternoon. She was at the
pediatrician’s office by 2:00 p.m.
Dr. Watts testified that Mother seemed appropriately concerned about Carlo.
Mother told Dr. Watts that Carlo had vomited his entire bottle after a 1:00 a.m.
26
feeding. Based on that information and Carlo’s leg twitching, Dr. Watts was
concerned that Carlo could be having a seizure, so she told Mother to take him to the
emergency room for evaluation.
Mother and Father took Carlo to Cook Children’s together. According to
Mother, when the doctor told them that the CT scan showed fractures, she asked
Father if something had happened the night before when he had been caring for
Carlo, and Father became “really agitated,” his face turned red, and he “just
immediately got on his phone and just went away from me.” When he walked back to
her, he told her that the hospital would call child protective services and take the baby
into foster care. Because of COVID-19 protocols, only one parent was allowed to stay
at the hospital that night, and they agreed that Mother would stay.
Mother asked Father to bring her psychiatric medications to her at the hospital.
He did not do so. Because he was also unresponsive to her requests to let
Grandfather pick up her medications and bring them to her, she obtained emergency
refill prescriptions from her doctor so that Grandfather could have them filled and
bring them to her.
III. The Investigation
Special investigator Brandi Dees testified about her interviews with the parents.
In her interview with Mother, she learned that only Mother, Father, and Grandfather
had been alone with Carlo on February 24 and that only Mother and Father had been
alone with him on February 25. Mother blamed Father for Carlo’s injuries. She told
27
Dees about hearing Carlo scream around 10 p.m. while Father was caring for him. She
also told Dees about Carlo’s vomiting in the middle of the night and said that was
unusual.
Mother told Dees that Father had placed cameras in the house, but Father told
Dees that they were not activated. Dees did not investigate whether that was true, but
she told Zamarron about them. Dees testified that in a near fatal or fatal child-abuse
case, it is normal for law enforcement to secure a warrant to “review a residence,” and
she knew of no reason why that did not happen in this case. In Father’s interview
with Dees several days after Mother’s interview, he also told her that he had recently
bought some cameras for inside the house but had not yet set them up.
Mizer testified that as an investigator, when the Department receives a report
of abuse or neglect, her job is to “determine if that abuse or neglect is occurring or
not occurring and . . . if the family needs ongoing services or if we need to intervene.”
In the beginning of her investigation of this case, she was more concerned about
Father than about Mother, but that changed over time as she gathered more
information.
In Mother’s interview with Mizer, she said that Father had attacked Carlo, but
she could not define what she meant by “attack.” She also said that she had been held
hostage by Father. She gave a timeline of her activities on February 24 but did not
mention going to her psychiatrist appointment. Mizer discounted Mother’s statement
about Carlo’s vomiting in the night because “there’s no evidence of vomiting that’s
28
been presented to the Department,” but Mizer acknowledged that Mother had told
her about vomiting. Mizer’s response was that Father did not disclose that there was
any soiled clothing or vomit in the house, that is, because Father did not volunteer
any statement about vomiting, she rejected Mother’s statement. She admitted that she
did not ask Father if Carlo had vomited or if he had seen evidence of it. Mizer further
stated that she was concerned that Mother was not taking her psychiatric medications
because Father had not brought them to the hospital for Mother. She did not follow
up to see if anyone else had brought them to Mother and did not review Mother’s
pharmacy records.
When Mizer later went to Father’s home, she saw the cameras, but she did not
inspect them or take any other action regarding them. She left them for law
enforcement to deal with because the Department has “nothing to do with warrants,
seizures, any of that.”
Investigators Reynolds and Zamarron also testified. When Reynolds went with
Zamarron to Father’s home on February 27, he saw two of the three cameras, and
Father told them that the cameras were not operational.
Zamarron testified that he did not collect the cameras at that interview because
he was told by Father that they had never been set up. Zamarron collected three D-
Link brand cameras the next time he went to the house. Only two of the cameras
were out in view; Father said the other camera was broken but retrieved it for
Zamarron. The cameras did not have SD cards installed. The cameras had the ability
29
to upload videos to cloud storage, but Zamarron waited until a week before trial to
obtain a subpoena for D-Link.11 The footage from the cameras could also be saved to
a user’s phone through a mobile phone application. Zamarron did not find any saved
videos in the data retrieved from Father’s phone, and on the seventh day of trial, he
took the stand again and told the jury that D-Link had responded to the subpoena
and had reported that it had no cloud-stored recordings from Father’s cameras
because he had not subscribed to that service. However, Zamarron had also obtained
a subpoena for the criminal investigation into Carlo’s injuries but had not yet received
a response.
The cameras may not have been operational when Carlo was injured, but they
had been activated by the time that Zamarron met with Father. Father’s friend
Michael Soltero, who testified that he had flown to Texas on February 26 to be with
Father, told the jury that when he arrived, he set up all three of Father’s cameras, and
Father’s phone was receiving notifications from the cameras. He did not install SD
cards in the cameras.
Zamarron also testified about information recovered from Mother’s, Father’s,
and Grandfather’s cell phones. That information showed that Mother had at some
point deleted some texts that she had sent to Grandfather, but Zamarron was able to
Zamarron apparently requested a subpoena for this civil case as well as a
11
subpoena in connection with his criminal investigation. It is unclear from the record
how the information requested under each differed.
30
see the content of those messages in the data extracted from Grandfather’s phone.
Nothing in those deleted messages indicated a potential suspect to Zamarron.
Zamarron did not seem concerned, however, by the fact that Father’s phone also had
missing data. The data extraction performed on Father’s phone showed that it had no
cookies12 stored on it for the four-month period between December 2020 and March
2021, that is, from around the time that Mother moved into his new house with him
to the time that the investigation began. The phone extraction performed had no way
of showing what those deleted items were. When asked, Zamarron said that he had no
opinion on or thoughts about why there were no cookies for that period. Asked if it
caused him concern, he replied, “I don’t know how technology works, so I wouldn’t
know.”
Zamarron told the jury that when he interviewed Mother, she said that she had
not noticed any injuries on Carlo. Reynolds, however, testified that Mother said that
she thought that she had noticed swelling on his head; Dr. Watts testified that Mother
did not ask her to check Carlo’s head for swelling.
Mizer testified that the Department ultimately ruled out physical abuse by
Father and found “reason to believe” as to Mother. Mizer stated that some of the
reasons that the Department had concluded that Mother was responsible were the
12
Because the data extraction could not show what those missing cookies were,
there was no way to know the sites with which any missing cookies would have been
affiliated.
31
fact that she was the primary caregiver, the timing of Carlo’s symptoms, and the fact
that Mother did not show enough emotion during the investigation. Additionally,
Mizer believed that Mother was more focused on asserting Father’s responsibility for
the injuries rather than on Carlo’s injuries.
IV. Caseworker Testimony, Personal Acquaintance Testimony, and Mother’s
Emails
Jada Green, a permanency specialist with Our Community Our Kids
(OCOK), 13 testified about what she had observed during the case proceedings. Green
testified that Father was open to correction and that his parenting skills had improved
through the course of the case but that Mother was defensive and that her parenting
skills had not improved. As an example of Mother’s defensiveness, Green told the
jury about Mother’s reaction to the visitation records that Green had completed after
each visit, documenting her observations. The form has a space for the parent to
provide feedback, and Mother frequently used that space to disagree with Green’s
assessment. Green stated that Mother’s and Green’s description of the visits were so
different as to “come across as two different visits.” Green stated that in one visit,
Mother allowed Carlo to play with a plastic food storage bag. After he put it in his
mouth twice, Green went into the room and told Mother to remove the bag because
it was a choking hazard. Mother, on the other hand, testified that she had already
OCOK is a private entity that contracts with the Department to provide
13
permanency and conservatorship services to parents and children.
32
taken the bag from Carlo and had put it away before Green came in the room. Green
also testified that during multiple visits, Mother let Carlo play with a long necklace
that she had worn that day despite being told that the necklace was a choking hazard.
She acknowledged that Mother never left Carlo alone with the necklace.
Green also stated that before he became more mobile, Carlo cried frequently
and intensely during Mother’s visits, and Mother did not seem to know how to
comfort him. However, Green did not offer Mother corrections or suggestions during
the visits because at some point Mother’s attorney had asked Green to speak to
Mother only through her attorney, who was not present at the visits.
Becky Bollinger, Carlo’s guardian ad litem, testified that she has seen no safety
concerns during either parent’s visits, but she noted that Carlo had cried a lot during
the visits from early summer to December 2021 and that Mother did not have the
ability to soothe him. In Bollinger’s opinion, Carlo was afraid of Mother. Bollinger
also stated that in her conversations with Mother, Mother mostly talked about herself.
Carlo’s attorney ad litem Clayton Bryant introduced over twenty emails that
Mother had sent to him on the first several days of trial. The main theme of the
emails was Mother’s opinions about Father, Bryant, the Department, and their case.
The emails accused law-enforcement officers of negligence in their investigations,
particularly with respect to the cameras that had not been immediately seized from
Father’s house; said that the Texas Rangers were investigating that negligence; accused
Bryant of colluding together with the Department against her; claimed that the trial
33
was not going well for the Department, Father, and the ad litem and taunted him that
their case was falling apart; stated that Father was being investigated in New Jersey for
practicing medicine without a license; called Bryant a bully and declared that she
would set up a fund for other parents that he bullied; said that he, Father, and the
Department could not “rehab” the lies of Zamarron, Mizer, and Reynolds; and
asserted that “God’s TRUTH will prevail.”
In addition to the testimony of the caseworkers and the guardian ad litem,
Mother and Father both had personal acquaintances testify. Father’s witnesses
testified that they had never known him to be violent or abusive, and Mother’s
witnesses said the same thing about her. Louellen Wills-Agbedo, a coworker of
Mother’s until 2020, testified that before Carlo’s injury, Mother had confided in her
that Father was at times verbally and emotionally abusive. Krissy testified that in her
opinion, Father was responsible for Carlo’s injuries.
Mother also presented testimony from Rev. Kristin Burrow, a chaplain at the
hospital where Carlo was treated. Burrow, who is a trained victim’s advocate, visited
Mother after receiving a referral that Mother was tearful and having trouble sleeping.
Burrow testified that when she met with Mother, Mother struck her as someone who
was “deeply traumatized” and was trying to make sense of what happened. Burrow
further testified that nothing in Mother’s reactions seemed odd or strange and nothing
caused her to be concerned that Mother could have injured Carlo.
34
Standard of Review
For a trial court to terminate a parent–child relationship, the party seeking
termination 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. Both legal and factual sufficiency turn on the clear-and-convincing
standard; the distinction between the two “lies in the extent to which disputed
evidence contrary to a finding may be considered” in answering the question. In re
A.C., 560 S.W.3d 624, 630 (Tex. 2018).
In our legal sufficiency analysis, we “look at all the evidence in the light most
favorable to the finding,” assuming that the factfinder resolved disputed facts in favor
of its finding if a reasonable factfinder could have done so and disregarding all
evidence that a reasonable factfinder could have disbelieved. Z.N., 602 S.W.3d at 545;
A.C., 560 S.W.3d at 630–31. Factual sufficiency review, on the other hand, “requires
weighing disputed evidence contrary to the finding against all the evidence favoring
the finding” to determine if “in light of the entire record, the disputed evidence a
reasonable factfinder could not have credited in favor of a finding is so significant that
the factfinder could not have formed a firm belief or conviction that the finding was
35
true.” A.C., 560 S.W.3d at 631; see In re J.O.A., 283 S.W.3d 336, 345 (Tex. 2009)
(“When the factual sufficiency of the evidence is challenged, only then is disputed or
conflicting evidence under review.”). If we determine that no reasonable factfinder
could form a firm belief or conviction that the party seeking termination proved the
specific grounds for termination or that the termination of the parent–child
relationship would be in the child’s best interest, 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.
Discussion
I. Termination Grounds
Mother’s first issue challenges the legal and factual sufficiency of the evidence
to support the findings on the termination grounds and the best-interest finding.
A. Subsection (O) Sufficiency
Subsection (O) authorizes termination when a parent has “failed to comply
with the provisions of a court order that specifically established the actions necessary
for the parent to obtain the return of the child who has been in the [Department’s]
permanent or temporary managing conservatorship.” Tex. Fam. Code Ann.
§ 161.001(b)(1)(O). There is no evidence that Mother failed to comply with any court
order. Green and Green’s permanency supervisor both testified that Mother did
everything that she had been asked to do during the case. Consequently, the evidence
36
is legally insufficient to support termination on this ground. We sustain this part of
Mother’s first issue.
B. Subsection (E) and Section 161.003 Sufficiency
1. Establishing Termination under Subsection (E) or Section
161.003
Section 161.003 authorizes a trial court to terminate a person’s parental rights if
the court finds, among other things, that “(1) the parent has a mental or emotional
illness or a mental deficiency that renders the parent unable to provide for the
physical, emotional, and mental needs of the child” and “(2) the illness or deficiency,
in all reasonable probability, proved by clear[-]and[-]convincing evidence, will
continue to render the parent unable to provide for the child’s needs until the 18th
birthday of the child.” Id. § 161.003(a).
Section 161.001(b)(1)(E) focuses on the parent’s behavior and permits
termination when the parent has engaged in conduct that endangers the child’s
physical or emotional well-being. Id. § 161.001(b)(1)(E). “Endanger” in this context
means “to expose to loss or injury, to jeopardize.” In re M.B., No. 02-15-00128-CV,
2015 WL 4380868, at *12 (Tex. App.—Fort Worth July 16, 2015, no pet.) (mem. op.).
(first citing Tex. Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987), and
then In re J.T.G., 121 S.W.3d 117, 125 (Tex. App.—Fort Worth 2003, no pet.)). The
relevant inquiry under Subsection (E) is “whether evidence exists that the
37
endangerment of the child’s physical well-being was the direct result of the parent’s
conduct, including acts, omissions, or failures to act.” Id.Subsection (E) “requires not just a single act or omission but rather a voluntary,
deliberate, and conscious course of conduct.” In re J.B., No. 02-21-00239-CV,
2021 WL 6144074, at *21 (Tex. App.—Fort Worth Dec. 30, 2021, pet. denied) (mem.
op.) (citing J.T.G., 121 S.W.3d at 125). However, the parent’s conduct need not be
directed at the child or actually cause the child injury; “[t]he specific danger to the
child’s well-being may be inferred from parental misconduct standing alone.” M.B.,
2015 WL 4380868, at *12. Courts may consider a parent’s conduct that occurred
outside the child’s presence or after the child’s removal by the Department. In re M.S.,
No. 02-20-00147-CV, 2020 WL 6066400, at *4 (Tex. App.—Fort Worth Oct. 15,
2020, no pet.) (mem. op.); In re R.S., No. 02-15-00137-CV, 2015 WL 5770530, at
*6 (Tex. App.—Fort Worth Oct. 1, 2015, no pet.) (mem. op.).
2. Evidence Related to Mother’s Mental Health
Because Father and the Department heavily rely on evidence related to
Mother’s mental health to argue that the evidence established endangering conduct
and the termination ground under Section 161.003, we first discuss the evidence
related to her mental health. The evidence undisputedly established that Mother has
several diagnosed mental health conditions. However, as we explain, insufficient
evidence shows that because of those mental health conditions that Mother endangered
Carlo or that because of those conditions Mother was unable to care for Carlo at the
38
time of trial and would continue to be unable to care for him until his eighteenth
birthday.
None of the multiple mental health providers who testified at trial said that
Mother’s mental health conditions endangered Carlo, made her unable to provide for
his needs at the time of trial, or would in all reasonable probability continue to render
her unable to provide for his needs until his eighteenth birthday. See Tex. Fam. Code
Ann. §§ 161.001(b)(1)(E), 161.003. The Department, Father, and Carlo’s attorney ad
litem relied on the diagnosis of bipolar disorder by Dr. Rafique, a mental health
professional who did not testify at trial, but (1) that diagnosis was disputed by both
testifying mental health providers qualified to diagnose a mental health disorder and
(2) assuming that diagnosis was nevertheless correct, no mental health professional
provided any testimony about any behaviors of Mother—whether stemming from
bipolar disorder or a different condition—that made her unable to meet Carlo’s needs
then or in the future or that endangered Carlo. Although Boles, a licensed
professional counselor who is not authorized to diagnose patients, said that Mother
displayed some unspecified behavior consistent with a bipolar-disorder diagnosis,
Boles said nothing about Mother’s behavior endangering Carlo or rendering her
unable to care for him until his eighteenth birthday.
The Department in its brief points to Dr. Ghelber’s testimony that Mother
showed some symptoms of postpartum depression (PPD) on February 24 and that
“[s]ometimes moms, they have obsessive thoughts to hurt the baby, but they do not
39
have intentions to hurt the baby.” However, the context in which Dr. Ghelber made
these statements was quite clear, and equally clear is that her statements do not
support the implication of the Department’s brief. Rather, Dr. Ghelber was explaining
why she had asked Mother certain screening questions in her initial evaluation, and
Dr. Ghelber said that asking new patients and new parents about obsessive thoughts
was standard practice. As Dr. Ghelber explained, a patient with obsessive-compulsive
disorder or PPD could have obsessive, unwanted thoughts about hurting her baby,
but those thoughts do not correlate with any actual urge to hurt the baby.14 Dr.
Ghelber never testified that Mother had such obsessive thoughts or that Mother’s
PPD symptoms included thoughts about hurting Carlo, and Dr. Ghelber did not say
that Mother had displayed any symptoms that made her a danger to him or unable to
care for him. The PPD symptoms that Dr. Ghelber had observed in Mother were
restlessness, fatigue, guilt, and helplessness, and Dr. Ghelber stated that those
symptoms were “[v]ery common” for new mothers to experience. Thus, the
Department’s reliance on this testimony is misplaced.
The psychologist who performed the court-ordered psychological evaluation of
Mother during the case, Dr. Mara-Lysa Anthony, testified that Mother has a strong
need to be liked, which others are likely to take advantage of; that Mother did not
The presentation of OCD can involve intrusive, unwanted thoughts that the
14
person does not wish to act on. Am. Psychiatric Assoc., Diagnostic & Statistical
Manual of Mental Disorders (5th ed. 2013), Westlaw DSM5THS2H6.
40
demonstrate attitudes that are considered to be a higher risk for child mistreatment;
and that there was nothing concerning on her personality assessment. Dr. Anthony
did not diagnose Mother with bipolar disorder because the evidence that Dr. Anthony
had did not support that diagnosis. She stated that she was surprised that the
Department was seeking termination based on mental health grounds because nothing
in the report that she had submitted to the Department spoke to Mother’s being a
danger to herself, to others, or to a child. She further explained that the general public
has a bias that people who have significant mental health issues would have other
problems like criminal activity or would be bad parents, but that is not necessarily the
case.
Dr. Anthony agreed that a person “could potentially be” dangerous if the
person has bipolar disorder and does not go to therapy, does not take prescribed
medications, has panic attacks, and cannot tell what triggers those panic attacks. She
did not, however, testify that this hypothetical situation existed in this case or that
Mother was at risk to exhibit this potential danger. Dr. Anthony stated that she
believed that Mother was managing her mental health. Further, the only evidence in
this case about Mother’s therapy was that she did go to therapy, and she sought help
and medication for her panic attacks.
Finally, as part of her service plan, Mother attended therapy with Tamu
McKinney, a licensed clinical social worker. McKinney was specifically asked if a
41
parent’s having a bipolar diagnosis was enough on its own to support having a child
removed from the parent, and McKinney testified that it was not.15
The Department also relied on lay evidence about Mother’s mental conditions,
but that evidence was not sufficient to establish either Section 161.003 or endangering
conduct from her mental health conditions. First, the Department introduced
testimony from one of Mother’s former coworkers in Houston, who stated that after
Mother’s 2017 bipolar diagnosis, Mother told her that she did not believe she needed
to take her medication. However, the coworker did not testify about what medication
Mother did not believe she needed to take, nor did the coworker testify that Mother
did not actually take her medication or that Mother exhibited any signs of someone
who needed medication but was not taking it. That same former coworker also
testified that she had never known Mother to be violent or hateful toward people.
The Department Parties also repeatedly played the 2017 Facebook video and
asked witnesses about it. However, Dr. Ghelber testified that she believed that
Mother’s delusions that were displayed in the video were caused by “a very severe
form of PTSD” resulting from the sequence of trauma that she had experienced
leading up to the episode and that Mother no longer had any symptoms of PTSD. No
witness testified that Mother had ever had another episode like that one, that she had
15
During the Department’s attorney’s questioning of McKinney, the attorney
suggested that having a mental health diagnosis was, on its own, sufficient under the
law to terminate parental rights. That is not the law. See Tex. Fam. Code Ann.
§ 161.003.
42
such an episode in February 2021, or that in reasonable probability she would have
another one in the future. Grandfather’s texts to family members around February 10,
2021, said that Mother was feeling like she had three years before, but there is no
evidence that she actually reached the point she had back then. Father testified that
during the time that they had Carlo in their home, he never saw Mother have an angry
outburst that would lead him to believe that Carlo was at risk of harm, and when he
first learned of Carlo’s injuries, he believed it must have been Grandfather who was
responsible.
Maggie Ray, Green’s permanency supervisor at OCOK, testified that Mother
“tends to cycle in and out of crisis, sometimes without a trigger that we can
necessarily see” and that the cycle made her unstable and “could lead to similar
circumstances that we’re in now.” However, there was no evidence that Mother
“cycled in and out” of mental health crises between February 2018 and February
2021, there was no evidence that Mother had ever acted violently or displayed any
violent tendency in any previous mental health crisis or showed an inability to care for
her child, and Ray did not explain how Mother’s mental health conditions made her
likely to injure Carlo or be unable to care for him until his eighteenth birthday. Ray
also acknowledged that she had never spoken with Mother’s psychiatrist to ask her
opinion about Mother’s mental state around the time of Carlo’s injury.
The attorney ad litem introduced the emails that Mother had sent him during
trial (discussed more below), and in Father’s brief he describes those emails as
43
revealing Mother’s “psychotic nature” and showing that she was “untethered from
reality,” 16 but they do not show the kind of delusion that can be seen in the Facebook
video. No witness with knowledge of mental health conditions testified about what
those emails showed about Mother’s mental health conditions.
As for mental health conditions besides bipolar disorder with which Mother
had been diagnosed—depression, panic disorder, generalized anxiety disorder, and
PTSD—no trial evidence indicated that these conditions rendered Mother unable to
care for Carlo, were what had led to Carlo’s injuries, or otherwise endangered him. No
witness testified to ever having seen her be violent, even when under a lot of stress,
even during her breakdowns in 2017 and 2018, and, again, there was no evidence that
she ever had the kind of break from reality that she had in 2017 that led to her
hospitalization. It was undisputed at trial that she was having increased anxiety around
the time of Carlo’s injury, but there was no clear and convincing evidence that her
having that anxiety made her more likely to be violent or unable to care for Carlo.
When she feared that her anxiety was such that she needed immediate mental health
care, she appropriately secured medical care for herself and put Carlo in Father’s care.
16
In the context of Father’s brief, in which he relies heavily on Mother’s
diagnoses to argue endangerment, Father’s use of the word “psychotic” and the
phrase “untethered from reality” cannot be construed as invoking a lay meaning of
those words. Rather, Father attempts to portray the emails as evidence of her mental
health conditions. However, we could only guess if that is in fact the case because
none of the multiple mental health experts who testified made such an assessment
about Mother or the emails.
44
No mental health professional testified that Mother’s mental health would prevent her
from meeting Carlo’s needs until his eighteenth birthday.
The strongest evidence presented by the Department Parties about Mother’s
potential issues due to her mental health conditions was some evidence that Mother
did not take one of her medications during pregnancy. Mother provided contradictory
statements about which of her medications she had stopped taking during pregnancy;
she testified that she had stopped taking the antidepressant Celexa because Father had
requested that she do so and because her doctor had authorized her to stop. Dr.
Ghelber also stated that Mother said that she had stopped taking her Celexa during
the pregnancy at Father’s request. However, she told Mizer and Dees that it was her
Seroquel that she had stopped taking during her pregnancy because of Father.
Regardless of what medication she stopped taking during the pregnancy, there was no
clear-and-convincing evidence that she was not taking Seroquel after Carlo’s birth and
around the time of his injury, and there was some evidence—her text messages to
Grandfather and her medication list in the hospital records at Carlo’s birth—that she
was taking it then.
As for not taking Seroquel after Carlo was removed, the Department Parties
also put on testimony about Green’s suspicion that Mother may not have taken one
of her medications at one point after Carlo’s removal. Green did periodic pill counts
at Mother’s visits, and once Mother had more pills than Green expected her to have
based on the refill date. When Green alerted Mother to the discrepancy, Mother called
45
her pharmacist and put the phone on speaker so Green could hear about how her
prescriptions were filled, but Mother hung up the call mid-conversation. Green did
not specify which medications she had reviewed, and she could not remember how
many more pills were in the bottles. Green’s suspicions were mere speculation and
not enough to establish endangering conduct or Mother’s inability to care for her
child. 17
There is evidence, discussed below, that Mother showed questionable judgment
at various points while this case was pending, but the evidence did not sufficiently link
that behavior to her diagnoses. No expert made that link, and neither did any party
with knowledge of how Mother behaves when her mental health conditions are not
adequately treated. Although we can consider the displays of questionable judgment
along with other behaviors in our endangering-conduct analysis, we will not tie that
behavior to her mental health diagnoses when the evidence does not authorize us to
do so.
In summary, there is no evidence that Mother had another breakdown that was
like the ones she had in 2017 and 2018; no clear-and-convincing evidence showed that
around the time of Carlo’s injuries or afterwards, Mother was suicidal or had the kind
of detachment from reality that she displayed in 2017. Mother’s mental health
Further, as we note below, although there was testimony that the Seroquel
17
helped Mother sleep, there was no testimony about how her behavior was affected
when she did not take the medication.
46
conditions did not disappear after her 2018 hospitalization, and Mother thus
presumably at least occasionally displayed behavior related to those conditions.
However, the evidence did not establish how the conditions usually affected her
behavior. There was no evidence, for example, of how she behaves while medicated
versus unmedicated, how she usually acts while manic (or if she does experience
manic episodes), or how her depression or anxiety typically manifests in her behavior.
Thus, to find that Mother’s mental health conditions rendered her unable to care for
Carlo, the jury had to speculate, without supporting evidence, that whatever
undesirable behaviors Mother demonstrated, they must have been due to her mental
health conditions.
Whether from an expert or a lay witness, no clear-and-convincing evidence
showed that, due to a mental health condition, (1) Mother had ever presented any danger
to herself or anyone else since her previous hospitalizations, around the time of
Carlo’s February 2021 injury, or after, or (2) she was unable to care for Carlo at that
time and probably would be until his eighteenth birthday. See, e.g., In re A.B.,
412 S.W.3d 588, 654–55 (Tex. App.—Fort Worth 2013) (stating that a bipolar
diagnosis is not enough alone to show endangerment and that the party seeking
termination must show actual endangering conduct), aff’d, 437 S.W.3d 498 (Tex.
2014). We do not hold that expert testimony is always required to establish the ground
in Section 161.003 or to link a mental health diagnosis with an endangering course of
conduct, but there must at a minimum be some competent evidence within the
47
factfinder’s knowledge or understanding of how the mental health diagnosis leads to
the concerning behavior. 18 See In re A.L.M., 300 S.W.3d 914, 929 (Tex. App.—
Texarkana 2009, no pet.).
In summary, although Mother had previously been diagnosed as having bipolar
disorder, since October 2017, there is no evidence that the trial court at the time or
any health care practitioner since had found her to be a danger to herself or others.
The 2017 Facebook video showed no indication that Mother’s behavior is violent
when she is in crisis. No mental health care practitioner or person acquainted with
Mother described how, if she has bipolar disorder, it affected her when not well-
controlled. No mental health care practitioner or person acquainted with Mother
described how her other diagnosed mental health conditions trigger behavior that
make her a danger to herself or others when the conditions are not well-controlled.
When Mother felt that she was going into crisis, she appropriately had the other
parent care for her child, and she sought medical care. No witness testified to ever
seeing Mother seem angry in a way that made the person fear that she could be
violent, even when under stress. We sustain the part of Mother’s first issue
challenging the Section 161.003 finding, and we hold that the evidence is legally
18
To be clear, we do not hold that Mother’s actions were unrelated to or
unaffected by her mental health conditions. However, to the extent her mental health
conditions caused or were relevant to the behavior described by other witnesses, the
Department and Father failed to show that link by clear-and-convincing evidence.
48
insufficient to establish that Mother’s diagnosed mental health conditions endangered
Carlo.
3. The Department Parties’ Other Endangering-Conduct Evidence
The Injuries
There was no direct evidence of who caused Carlo’s injuries. Mother, Father,
and Grandfather all denied that they were responsible. Because there was no direct
evidence, the Department Parties relied primarily on two categories of circumstantial
evidence to establish the culprit: evidence about Mother’s mental health conditions
and evidence about when the injuries occurred. We have already rejected the
sufficiency of the evidence to show that Mother’s mental health conditions made her
a danger to Carlo. None of the testifying mental health practitioners testified that
Mother presented a danger to herself or to others. The psychological evaluation
performed by Dr. Anthony did not indicate that Mother was a threat to Carlo, and
Dr. Anthony testified that given the results of her evaluation, she was surprised the
Department was moving to terminate on the basis of Mother’s mental health
conditions. No other witness testified to witnessing Mother behave violently toward
Carlo or toward anyone else.
As for evidence about when Carlo’s injuries occurred, as noted above, Nurse
Practitioner Wright testified that the trauma to Carlo probably happened within the
week before he was brought to the hospital. She stated more specifically that it
probably occurred “at some point around” February 24 or 25, 2021, because that is
49
when Carlo displayed the signs that Wright described as consistent with Carlo’s
injuries—seizures, vomiting, eating less than normal, and fussiness and irritability in a
baby who is not usually fussy. She explained that with a baby who cannot report
problems, “[t]he only things that we’re able to look at is . . . when a baby or a child is
doing something that is not normal for him. . . . [T]hat is when we know that at some
point around that time is when he would have been injured.”
However, she also said that with a seven-week-old baby, onset of symptoms is
“quite often difficult” to see because “a seven-week-old doesn’t do much of anything
but [lie] there and eat and is only awake for a short time, so it can be difficult to tell if
something—if they’re in pain or if they have increased intracranial pressure.” She
further testified that it is impossible to determine the specific time at which an injury
to a child occurs and that, because people bleed at different rates, the injury could
have been as much as a week before Carlo was seen in the ER.
To say that Carlo must have suffered trauma around February 24–25 for his
symptoms to have appeared around that time required expert causation testimony. See
Guevara v. Ferrer, 247 S.W.3d 662, 667 (Tex. 2007) (discussing the requirement of
expert testimony to prove the nature of and causal connection between physical
conditions and an occurrence); Henderson v. State, 77 S.W.3d 321, 324–25 (Tex. App.—
Fort Worth 2002, no pet.) (holding that doctor’s testimony about cause of child’s fatal
brain injury was a matter of “clinical medicine” expertise). In Texas, a registered nurse
is not authorized to make a “medical diagnosis,” see Tex. Occ. Code Ann.
50
§ 301.002 (stating that “professional nursing” and “vocational nursing” do not include
acts of medical diagnosis); 22 Tex. Admin. Code § 217.11(3) (stating that a nurse shall
provide nursing care by “making nursing diagnoses that serve as the basis for the
strategy of care” and “developing a plan of care based on the assessment and nursing
diagnosis”), and thus is not qualified to medically diagnose the causation of a patient’s
injuries. See Esquivel v. El Paso Healthcare Sys., Ltd., 225 S.W.3d 83, 90 (Tex. App.—El
Paso 2005, no pet.); Pace v. Sadler, 966 S.W.2d 685, 689–90 (Tex. App.—San Antonio
1998, no pet.). Wright is an advanced practice nurse, and an advanced practice nurse
may provide aspects of medical care but only when properly delegated that duty, such
as under a protocol or other written authorization by a supervising physician. See
22 Tex. Admin. Code § 221.13(d); Simonson v. Keppard, 225 S.W.3d 868, 873 (Tex.
App.—Dallas 2007, no pet.); Simonson, 225 S.W.3d at 877 (O’Neill, J., dissenting).
Wright did not testify about her authorization from a supervising physician to
diagnose patients or her authority to determine from the patient’s condition if or
when an injury occurred. Without expert testimony, the jury could not link the
appearance of Carlo’s symptoms to the timing of the event that caused the injury. See
Guevara, 247 S.W.3d at 667. Excluding Wright’s testimony about the probable time
frame for Carlo’s injury, the jury was left with her testimony that the radiologist and
the neurologist who saw Carlo at Cook Children’s agreed19 that Carlo’s injury would
have occurred sometime within the week before Carlo’s presentation at the ER.20
19
Mother did not make a hearsay objection to Wright’s testimony about what
51
Wright’s testimony also failed to raise a fact issue on the timing of Carlo’s
injury because when circumstances are consistent with multiple possibilities, and
nothing shows that one is more probable than the other, no fact can be inferred from
the evidence. See Wright v. Wal-Mart Stores, Inc., 73 S.W.3d 552, 555 (Tex. App.—
Houston [1st Dist.] 2002, no pet.); see also Jelinek v. Casas, 328 S.W.3d 526, 536 (Tex.
2010). Based on Wright’s testimony, the February 24–25 time frame for Carlo’s injury
is no more probable than any other time in the week before he was seen in the ER on
February 25, and it is equally likely that something occurred before the two-day time
period on which the Department Parties focused at trial and in the investigation. The
evidence did not exclude, or even address, any event or anyone who was around Carlo
prior to February 24 or to February 25—the day the parents took Carlo to the ER.
Even in looking into the February 24–25 time frame, the record shows inconsistencies
in the facts as to what symptoms developed, when they developed, and how they were
the radiologist and neurologist said.
20
The causation testimony of an unqualified witness is no evidence. Snodgrass v.
Hillcrest Baptist Med. Ctr., No. 07-11-00401-CV, 2013 WL 5915230, at *3 (Tex. App.—
Amarillo Oct. 31, 2013, pet. denied) (mem. op.) (stating that an unqualified witness’s
opinion on causation is not based on reasonable medical probability and is mere
speculation amounting to no evidence); see also Leitch v. Hornsby, 935 S.W.2d 114,
119 (Tex. 1996) (stating opinion testimony on causation that is incompetent due to
witness’s lack of qualifications has no probative value, constituting no evidence on a
no evidence challenge on appeal). However, even if we consider Wright’s testimony
on the question, the only definitive aspect of this part of her testimony was that the
injuries would have occurred sometime within the week before Carlo was taken to the
ER on February 25.
52
reported. For these reasons, the evidence is legally insufficient to find that Mother—
or any other specific person—caused Carlo’s injuries.
Having rejected Mother’s mental health conditions and the Department Parties’
allegations that Mother injured Carlo as bases to establish endangering conduct under
Subsection (E), we now consider whether other evidence supports the finding.
The emails and other similar evidence
As we stated above, the emails that Mother sent to the attorney ad litem during
trial do not indicate the kind of break from reality that Mother had in 2017. The
subject, tone, and wording of the emails did reflect anger and contempt toward the
attorney ad litem, Father, and the Department. Further, sending the emails displayed
questionable judgment on Mother’s part, given that Mother knew her parental rights
were at stake and that her mental state was at issue in the trial. The Department
Parties also produced other evidence of Mother’s questionable judgment while the
case was pending. Specifically, Grandfather had hired a private investigator during the
case, and Mother gave that investigator the address of Carlo’s first foster family (prior
to Father’s parents becoming the foster parents) and asked him to go to the house.21
At trial she acknowledged that she had also talked with the PI about “maybe driving
by [Green]’s house.” Cf. In re C.V.L., 591 S.W.3d 734, 752 (Tex. App.—Dallas 2019,
21
Grandfather testified that the PI was asked to gather information about who
might be staying at the home, although the context of his testimony suggested that he
was referring to when Carlo was staying with his second foster family, Father’s
parents.
53
pet. denied) (holding that although evidence showed that the father’s behavior was
“unquestionably an exercise of poor judgment,” it was not, standing alone, sufficient
to show endangerment).
However, questionable judgment aside, those acts do not rise to the level of a
conscious course of conduct of endangering behavior. Cf. id. Further, the emails do
not establish the kind of mental state that would probably subject Carlo to uncertainty
and instability or would otherwise endanger his physical or mental well-being, even if
they show Mother behaving in a manner that some might characterize as “difficult.”
Cf. In re E.N.C., 384 S.W.3d 796, 803 (Tex. 2012) (quoting the statement in Boyd,
727 S.W.2d at 533, that “endanger” as used in Section 161.001 “means more than a
threat of . . . potential ill effects of a less-than-ideal family environment”). No mental
health professional opined that the emails raised any concern about Mother’s mental
stability or a risk that Mother might endanger her child. A parent’s negative or even
hostile attitude toward the Department, caseworkers, and the termination proceedings
does not, on its own, show endangerment, particularly when, as here, the parent has
completed all services ordered in the case.
Mother’s defensiveness
The jury also heard Mother’s own testimony in which she displayed
defensiveness, at times to an excessive degree. For example, Mother was asked about
Grandfather’s text to her brother in February 2021 stating that Mother had said that
she was feeling like she had “3 years ago”—around the time of a previous
54
hospitalization. Rather than acknowledge what Grandfather had texted and address
why he might have said it, Mother suggested that perhaps he could have meant to say
“tears” instead of “years.” She also regularly made written disagreements with Green’s
visit summaries, and her relationship with Green became so contentious that her
attorney asked Green to communicate with Mother only through the attorney.
However, as we stated above, a parent’s attitude toward caseworkers and the
termination proceedings is not evidence that, by itself, shows endangering conduct.
4. Conclusion
The Department Parties relied primarily on Carlo’s injury and Mother’s mental
health conditions to establish endangering conduct under Subsection (E). However,
the evidence was legally insufficient to support a finding that Mother injured Carlo or
that her mental health conditions endangered his physical or emotional well-being. As
for the other evidence that the Department Parties presented at trial to support a
Subsection (E) finding—evidence about Mother’s defensive or hostile interactions
with caseworkers, her emails, and her use of a private investigator—none of it was
evidence from which a reasonable factfinder could form a firm belief or conviction
that, as a direct result of that conduct by Mother, Carlo’s physical or emotional well-
being was endangered. The record is therefore legally insufficient to support the
finding under Subsection (E) by clear-and-convincing evidence. We sustain this part
of Mother’s first issue.
55
C. Endangering Environment under Subsection (D)
Next under Mother’s first issue, we must consider whether the evidence was
sufficient to establish the termination ground in Section 161.001(b)(1)(D). Under that
ground, a person’s parental rights may be terminated if the person knowingly placed
or knowingly allowed their child “to remain in conditions or surroundings [that]
endangered the [child’s] physical or emotional well-being.” Tex. Fam. Code Ann.
§ 161.001(b)(1)(D). Under Subsection (D), we must examine the evidence related to
the child’s environment before the child’s removal to determine if the environment
was the source of the endangerment to the child’s physical or emotional well-being.
J.T.G., 121 S.W.3d at 125; see also In re M.H., No. 02-15-00263-CV, 2016 WL 489780,
at *17 (Tex. App.—Fort Worth Feb. 5, 2016, no pet.) (mem. op.). The conduct of a
parent in the home can create an environment that endangers the physical and
emotional well-being of a child. J.T.G., 121 S.W.3d at 125. A parent’s parental rights
may not be terminated under this subsection if the parent was unaware of the
endangering environment. M.H., 2016 WL 489780, at *17.
Because the evidence was insufficient to support a finding about who caused
Carlo’s injuries, the finding under this subsection cannot be based on Mother’s
injuring him. If the evidence supported a finding that Father or Grandfather caused
Carlo’s injuries, and if Mother had reason to suspect that Father or Grandfather might
cause that kind of harm, then that could be evidence to support a finding under
Subsection (D). See Tex. Fam. Code Ann. § 161.001(b)(1)(D). But even if the jury had
56
believed that Father or Grandfather caused the injury, there is no evidence on which it
could base a finding that Mother had any reason to believe that either of them would
do such a thing.
Mother took Carlo to see Dr. Watts upon noticing his leg twitching. On the
same day, she took him to the ER on Dr. Watts’s advice. There is no evidence that
she knew someone else had endangered Carlo on an earlier date and that she had
delayed seeking medical treatment or had allowed that person to be around him after
that endangerment.
There is no other clear-and-convincing evidence that Carlo’s environment was
endangering to him because of anything Mother did or did not do. There was no
evidence that Mother had ever been violent. There was no evidence that Father or
Grandfather or anyone else had been violent toward Mother or Carlo and that she
nevertheless let that person around Carlo. See, e.g., In re M.G.P., No. 02-11-00038-CV,
2011 WL 6415168, at *12 (Tex. App.—Fort Worth Dec. 22, 2011, pet. denied) (mem.
op.) (holding that record did not establish that the mother had a pattern of being
involved in abusive relationships and of exposing her children to domestic violence);
see also In re A.D., No. 12-17-00334-CV, 2018 WL 6191116, at *3 (Tex. App.—Tyler
Nov. 28, 2018, no pet.) (mem. op.) (holding that Department failed to present any
evidence that parent was aware that children were being placed in a dangerous
environment or living conditions). None of the evidence about Mother’s behavior
57
after removal can support a Subsection (D) finding, even if we believed that her
conduct after removal could create an endangering environment.
Further, because the evidence was insufficient to find that Mother’s mental
health conditions prior to removal were such that she was a danger to Carlo, a
Subsection (D) finding cannot be based on her having those mental health
conditions.22 LPC Boles testified that she thought Mother was trying to manipulate
how Father felt about her parents, but that conduct, if true, is not enough to establish
endangerment. In summary, the evidence was legally insufficient to show an
endangering environment under Subsection (D) by clear-and-convincing evidence.
Because we have held that the evidence was insufficient to establish any of the
termination grounds on which the trial court based its judgment, we do not consider
the part of Mother’s first issue challenging the best-interest finding. However, we do
address Mother’s argument under this issue regarding conservatorship. Mother asserts
in one paragraph that no or insufficient evidence exists to not name her as managing
or possessory conservator.23
22
There was some evidence that prior to Carlo’s presentation at the ER, Father
was attempting to trigger a mental health crisis in Mother, and he left Carlo in
Mother’s care after telling Krissy Burke that he was afraid that Mother might harm the
baby, but the Department did not seek to terminate Father’s parental rights at trial
under Subsection (D) or on any other basis.
23
In the single paragraph in which Mother addresses conservatorship, she did
not mention the standard of proof applicable to the issue. The standard of proof for
conservatorship decisions is preponderance of the evidence. See Tex. Fam. Code Ann.
§ 105.005.
58
The record indicates that the Department Parties’ suits were primarily focused
on terminating Mother’s parental rights and that Mother’s focus was on preserving
her parental rights and on terminating Father’s. As a consequence, the record was not
adequately developed as to whether Mother should have any conservatorship rights at
all if her parental rights were not terminated, and although the jury found that Father
should be named as sole managing conservator,24 it did not address possessory
conservatorship. Cf. In re F.E.N., 579 S.W.3d 74, 77 (Tex. 2019) (stating that remand
was necessary when record did not support termination and record was not
adequately developed as to conservatorship). The trial court’s judgment likewise
terminated Mother’s rights and did not separately address conservatorship as to
Mother. Accordingly, we will remand the case to the trial court to determine whether,
in light of this court’s opinion, Mother should be named as a conservator. See id. at 75.
(noting that “[t]he underlying proceeding and this appeal demonstrate the difficulties
that may arise when issues of termination and conservatorship are joined and litigated
in a single proceeding); see generally Tex. Fam. Code Ann. §§ 153.131,
153.191 (addressing appointment of parent as managing or possessory conservator).
24
The jury was asked to decide whether Father or the Department should be
the managing conservator of the child only if it answered “Yes” to the predicate
termination grounds as to Mother and also found that termination of Mother’s rights
was in the child’s best interest. The jury was asked to choose whether Mother or
Father or both should be managing conservator only if it answered “No” to either the
predicate grounds or to best interest as to Mother and if it also answered “No” on
either the predicate grounds or to best interest as to Father.
59
II. Timeliness of Trial under Section 161.003
Mother’s second issue challenges the Section 161.003 finding in the trial court’s
judgment. When the Department asserts this section as a basis for termination, the
termination hearing cannot be held “earlier than 180 days after the date on which the
suit was filed.” Id. § 161.003(c). The termination trial was held more than 180 days
after the Department filed its original petition but less than 180 days after it filed its
amended petition adding Section 161.003 as a termination ground. Mother argues that
because trial was held less than 180 days from the day that the Department filed a
pleading with Section 161.003 as a ground, the trial court erred by terminating on the
basis of this section. Although the issue is a matter of first impression for this court,
we do not address it because we have reversed the judgment as to the Section
161.003 finding. See Tex. R. App. P. 47.1.
Conclusion
Having sustained Mother’s first issue, which is dispositive of the appeal, we
reverse the trial court’s judgment terminating Mother’s parental rights and remand the
case to the trial court for further proceedings addressing conservatorship.
/s/ Mike Wallach
Mike Wallach
Justice
Delivered: January 12, 2023
60