in the Interest of A.J.H., Child v. Department of Family and Protective Services

Opinion issued January 15, 2019
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-18-00245-CV
———————————
IN THE INTEREST OF A.J.H., A CHILD
On Appeal from the 314th District Court
Harris County, Texas
Trial Court Case No. 2017-00233J
MEMORANDUM OPINION
In this accelerated appeal, appellant, E.H. (“Mother”), challenges the trial
court’s final decree, entered after a bench trial, terminating her parental rights to her
minor child, A.J.H. In three issues, Mother contends that the evidence is legally and
factually insufficient to support the trial court’s findings (1) that she knowingly
placed or knowingly allowed the child to remain in conditions or surroundings which
endanger the physical or emotional well-being of the child, or that she knowingly
engaged in conduct, or knowingly placed the child with persons who engaged in
conduct, that endangered the child’s physical or emotional well-being,1 (2) that she
failed to comply with the provisions of a court order that specifically established the
actions necessary to obtain the return of the child,2 and (3) that termination of her
parental rights is in the best interest of the child.3 She also argues in a fourth issue
(4) that the trial court abused its discretion by appointing the Department of Family
and Protective Services [“DFPS”] as the child’s sole managing conservator instead
of herself.4
BACKGROUND
The child, A.J.H., was born in 2015. Mother was not married and no father
was listed on his birth certificate. During the course of this proceeding, DNA testing
confirmed the identity of A.J.H.’s father, and the father’s parental rights were also
terminated in a separate trial. The father is not a part of this appeal, though his appeal
is also pending in this Court.
1
TEX. FAM. CODE ANN. § 161.001(b)(1)(D), (E)
2
TEX. FAM. CODE ANN. § 161.001(b)(1)(O)
3
TEX. FAM. CODE ANN. § 161.001(b)(2)
4
TEX. FAM. CODE ANN. § 153.131(a)
2
The July 2016 Hospitalization
On July 7, 2016, when A.J.H. was a year-and-a-half old, Mother took him to
Texas Children’s Hospital Urgent Care. According to medical records, A.J.H.
presented with vomiting, abdominal pain, and spots on his abdomen. Mother told
the medical professional that A.J.H.’s symptoms started on Sunday, July 3rd, after
eating a hamburger at McDonald’s and continued through the next day. When the
vomiting stopped, Mother noticed marks on his abdomen that looked like bruising,
his stomach was distended, he seemed uncomfortable, and he was unable to lie on
his stomach. A.J.H. also had pharyngitis and was strep-positive. The medical
records note a bruise on A.J.H.’s left ear, three “nonblanching spots that appears to
look like bruising” on his abdomen, and two “nonblanching spots that appears to
look like bruising” on his lower back. The Urgent Care report concluded that the
medical professional was “sending [A.J.H.] downstairs for further evaluation of
possible abuse due to multiple bruising found on abdomen, lower back and upper
left ear.”
A.J.H. was transferred to Emergency Care with notes that the treatments
recommended by his primary care physician were: “Medication for strep. R/O
physical abuse work up.” The Emergency Center notes report that, with regard to
the bruising, “Mother reports that he had fallen asleep on her coat which has wood
buttons and that she thinks he was sleeping on a button . . . . Mother reports that pt
3
has always seemed to bruise easily but it has been worse this week.” Again, bruises
on A.J.H.’s ear, abdomen, and back were noted, as well as hepatomegaly, or liver
swelling. The records include the following plan of care:
17 month old with vomiting, abdominal pain, low grade fever and easy
bruising, has +strep test, hepatomegaly on exam, concern for
coagulopathy, hepatitis, liver failure, possible abdominal injury,
malignancy, less likely to be TIP or HSP. Check cbc, liver panel,
amylase, lipase, easy bruising panel. Consider US or xray as indicated
by lab results.
An ultrasound was done of A.J.H.’s abdomen, and the medical records conclude:
US abdomen: Hepatomegaly. Possible focal area of fibrosis in the right
hepatic lobe. No discrete hepatic mass. Small volume ascites.
Gallbladder sludge. Nonspecific urinary bladder debris.
Spoke to GI, can discharge from GI perspective. Liver enzymes
elevated but liver function normal. Follow up in GI clinic as an
outpatient. Abdominal and ear bruise not visible anymore. Will treat
for strep throat. No concern for abuse at this time.
Discharge instructions dated July 8, 2016 provide: “Amoxicillin per script, follow
up in GI clinic. Return to EC if not drinking.” The discharge documentation portion
of the records provides in part:
Patient Teaching: Discharge instructions complete WITH medication
prescription review[.]
Discharge Teaching: Patient/Caregiver Verbalizes Understanding;
Provided copy of AVS [after-visit summary]; follow-up appointment
scheduled[.] Referral to GI[.]
4
The January 2017 Hospitalization
In January 2017, Mother left A.J.H. with her live-in boyfriend, Chester
Mosely, while she went to work. Mother usually left A.J.H. with her mother, but it
was cold outside, and she did not want to have to take A.J.H. on the bus to her
mother’s home. While Mother was at work, Mosely called and reported that A.J.H.
had minor burns. Mother said that she would look at it when she got home from
work. While Mother was on her way home from work, Mosely called again and
reported that A.J.H.’s skin was peeling off his buttocks. Mother called an
ambulance, and A.J.H was taken to Texas Children’s Hospital.
The Texas Children’s medical records stated that “when asked privately
[Mother] denies having concerns about abuse[.]” The hospital noted burns to
A.J.H.’s lower back, buttocks, perianal area, and scrotum, and that some blisters
were intact, but not on his buttocks. The hospital also noted “[h]yperpigmentation
concerning for bruising on torso, check [sic], behind L ear, and R inner thigh.” The
hospital concluding that there was a “partial thickness burn on buttock, partial
thickness burn on right forearm below elbow, elevated liver and pancreas test could
reflect injury to abdomen.” Texas Children’s then ordered A.J.H. transferred to the
burn unit at Memorial Hermann Hospital.
The Memorial Hermann Hospital records show that, upon admission, in
addition to the burn injuries, A.J.H. had vomited the day before, “after eating apple
5
juice.” He also had a scab on his left ear, an abrasion of his right ear, and a scab on
the scalp behind the right ear. An examination of the abdomen showed “no masses,”
but that A.J.H. “cries with palpation but is overall discomfort during examination.”
He also had “[h]yperpigmented, brown macules to [the] right abdomen.” In its
assessment, the medical personnel noted that “the burn appears to be an immersion
injury and [is] not consistent with the history provided of boyfriend bathing the
child.” There was no history of trauma to explain the marks on his cheek and
abdomen, and that “[i]injury to these areas are uncommon with normal child’s play
and are concerning for inflicted trauma.” A.J.H. also had “very high liver and
pancreatic enzymes” and “vomiting and a decreased appetite[.]” After reviewing
A.J.H.’s history and physical exam, among other things, a physician concluded:
This pattern of burn along with the provided history is very concerning
for non accidental trauma and we are concerned that the child’s elevated
liver enzymes and lipase may be the result of abdominal trauma and
recommend an abdominal CT for further evaluation. CPS is involved
and the child cannot be discharged prior to CPS disposition.
Accordingly, a CT scan was performed and the following information was
entered into A.J.H.’s medical records.
[A.J.H] received an abdominal CT today which showed a Grade 2 liver
laceration and abnormalities of his pancreas concerning for subacute or
chronic pancreatitis. Given his abdominal bruises and petechiae,
[A.J.H.’s] liver laceration is consistent with blunt force trauma to his
abdomen. His liver enzymes (AST/ALT) have trended down rapidly
from 1197/1907 to 89/107 within 3 days which likely implies recent
abdominal trauma. It is unclear at this time whether his pancreatic
abnormalities are due to recent or past trauma.
6
We reviewed medical records from the child’s ER visit to TCH on
7/7/16 after obtaining a medical release of information from mother.
[A.J.H] presented to TCH ER with his mother for vomiting and bruising
to his stomach. Bruises were noted on his abdomen, back, and left ear.
The child’s liver and pancreatic enzymes were also extremely elevated
at that visit (AST 693, ALT 1907, Amylase 240, Lipase 2076). An
ultrasound was obtained and reported as normal and the child was
discharged home with instructions to follow up with GI, though this
was never done.
[A.J.H.’s] burn injuries, facial and abdominal bruising and liver injury
provides substantial evidence for inflicted trauma. Based on our review
of his previous ER visit in July 2016, he had bruising and elevated
abdominal trauma labs that were concerning for possible physical
abuse. CPS and law enforcement are involved and we will
communicate these new findings with the family’s case worker. It is not
safe to return [A.J.H.] to his previous home environment as he may
have been subjected to more than one episode of trauma under the care
of his current caregivers.
....
[A.J.H.] must be placed into a safe environment as he is at high risk for
life threatening injury in the current environment.
DFPS Involvement and Criminal Charges against Mosely
DFPS took custody of the child, filed a suit for protection, and the trial court
signed an order placing A.J.H. in DFPS’s temporary managing conservatorship.
After a hearing on January 26, 2017, the trial court signed an order continuing
DFPS’s appointment as the child’s temporary managing conservator. The order also
required Mother to comply with DFPS’s family service plan and warned her that
failure to comply could result in the termination of her parental rights.
7
When A.J.H. was released from the hospital in February, he was placed in a
foster home in Galveston. The same month, DFPS provided Mother with a family
service plan. In March, the family service plan was approved by the court and made
a part of the trial court’s orders.
In June 2017, Mosely was charged with injury to a child in connection with
A.J.H.’s January 2017 burn injury.
In October 2017, the trial court signed an order establishing that, based on a
paternity test, one D.G. was A.J.H.’s biological father.
The Trial
On January 9, 2018, trial commenced. Before testimony began, DFPS offered
15 exhibits, including the removal affidavit, the transcript from the January 26, 2017
show-cause hearing, the February 17, 2017 family service plan, Mosely’s criminal
record, and A.J.H.’s medical records from the July 2016 and January 2017
hospitalizations. DFPS announced that the agency’s goal at that point was
reunification. The ad litem was not comfortable with that plan.
Micaya Pugh’s testimony
DFPS caseworker, Micaya Pugh, testified that, at the time of trial, A.J.H. was
three years old and was in a foster home that was meeting his physical and emotional
needs. He came under DFPS’s case due to burns and a liver laceration caused by
Mosely. Pugh testified that the child was discharged from the burn clinic in June
8
2017 and was “doing really great now.” He is in daycare now and is developing
normally.
Pugh testified that Mother had a family service plan that required her to
complete a psychosocial exam, parenting classes, counseling, independent living,
and a sustained job. According to Pugh, Mother did everything required by her
family service plan.
Pugh testified that, during DFPS’s investigation, it discovered the July 2016
hospitalization. Pugh acknowledged that the ad litem’s issue with returning the child
was that Mother did not follow up after learning of A.J.H.’s elevated liver enzymes
during the 2016 hospitalization.
Pugh testified that, when A.J.H was discharged from the hospital after the
burns, Mother remained in the home with Mosely for a short while before moving
out. She also discussed Mosely’s criminal record, including a juvenile charge for
capital murder with aggravated robbery (which was later reduced) and several
convictions for marihuana possession. She also acknowledged Mosely’s long
history of marihuana use.
Push testified that Mother had been living with her mother and sister, but that
two weeks before trial, she was able to move into her own apartment. She had
broken a lease when she moved out of the apartment with Mosely and found it
difficult to get another lease. She also testified that Mother had been working
9
consistently from 7 a.m. to 3 p.m., but that recently she was working longer hours
because someone at work had quit.
Pugh acknowledged that, after being afraid of men and bathtubs for a while,
A.J.H. was “a normal two-, almost three-year-old” and that he was “thriving” in his
foster home. The foster parents love him and want to adopt him. Pugh agreed that,
if Mother’s parental rights were terminated, it would be in A.J.H.’s best interest for
his foster family to adopt him.
When questioned by Mother’s attorney, Pugh agreed that DFPS had “no
evidence that suggests that Mom knew that the boyfriend had a propensity to harm
that child.”
Pugh also stated that Mother had attended “every one of [her scheduled]
visits” with A.J.H., and that he was “bonded not only with the mom but also the
grandmother.” Pugh concluded that she believed it was in A.J.H.’s best interest that
he be reunited with his mother.
When questioned by the trial court, Pugh stated that Mother was living with
Mosely at the time of the July 2016 hospitalization. Mother had initially told Pugh
that Mosely was never violent, but “[l]ater on, she did tell me that he had—they
would get in arguments, and he would get, like, a little violent with her.” Mother
claimed to know little about Mosely’s criminal record, but since he was apparently
out on bond for 60 days on a failure-to-stop-and-give-identification charge and
10
marihuana possession charge while he was dating Mother, Pugh acknowledged that
“[s]he very well could have been dishonest with me.” Pugh stated the Mother had
no criminal history and no CPS history.
Mother’s testimony
Mother testified that, when she took A.J.H. to the hospital in July 2016, he
was diagnosed with a stomach virus. She said that the hospital did not tell her that
A.J.H also had elevated liver enzymes. She stated that, she usually used her mother
and sister as babysitters, but she had left the child with Mosely “five times or so.”
She acknowledged that Mosely smokes marihuana, but that he “always does it
outside the house.” When asked why she left a child with someone who uses
marihuana on a regular basis, Mother replied, “I didn’t expect him to do it while my
child was in his care.”
Regarding Mosely’s criminal history, Mother testified that she only knew
about one offense: “It was something with robbery when he was 15.” She denied
knowing about his marihuana charge in March of 2016, even though they had been
together for several months by then. When confronted about the 60 days he was sent
to jail on the marihuana and failure-to-ID charges in March 2016, Mother
acknowledged that there was a period of time during which Mosely was gone for a
while, but she never asked him why. When he returned, they soon moved in
together.
11
About the follow-up after the July 2016 hospitalization, Mother testified that
the doctor said that he would call to follow up, which he did. Mother said that she
reported that A.J.H. was still not eating, and that her mother took A.J.H. back to the
hospital for a follow up because she was working.
Mother testified that she stayed with Mosely “only a few days” after A.J.H.
was burned because “she didn’t feel comfortable living there anymore.” She has not
visited Mosely since. She testified that she did not know that Mosely had a
propensity to harm her child before he suffered the burns. Mother denied any
knowledge that A.J.H. had problems in his abdominal area during both
hospitalizations. She claimed to have learned about the abdominal issues for the
first time at court and that she thought that the first hospitalization was caused by a
“stomach virus,” and the second was “just burns.”
Conclusion of First Day of Trial
At the conclusion of the first day of trial, the trial court stated:
But I don’t see—I mean, you know, there really isn’t any evidence that
I can point to that would say, well, she knew—she knew that the guy—
that leaving the child with him was a dangerous thing. But there’s a lot
of evidence, in my mind, that says that she should have known. She
simply didn’t ask questions. She didn’t want to know. She didn’t want
to know the man’s background. She didn’t—she wasn’t honest with
the caseworker about his propensity for violence. She didn’t tell the
truth, at first, about it. So she chose to ignore the possibility. So the
question really becomes is the should have known the same as that she
knows. And that’s really kind of the issue.
12
The trial court then recessed the case, stating that it needed to look at the
medical records and that it was “going to be very thorough in looking at those
records.”
On February 13, 2018, the trial resumed. DFPS re-offered Exhibit 12, the
Texas Children’s Hospital records, to include the complete medical records, not
just the excerpts offered previously. DFPS also provided expert testimony by Dr.
Michelle Ruda, a child-abuse pediatrician who had reviewed all of A.J.H.’s medical
records.
Ruda noted that A.J.H. presented at Texas Children’s Hospital in July 2016
for vomiting, at which time the ER physician noted elevated liver enzymes and
bruising to the child’s abdomen. Ruda testified that she would have been concerned
about physical abuse at that time and “would have consulted a social worker and
made a CPS report at the time.” She noted that no such CPS report was made. She
testified that “usually kids with abdominal injuries like that present right away” and
that “it does sound like they were acute injuries.” She noted that Mother was
recommended to follow up with a gastroenterologist after discharge, but that
Mother did not do so. She stated that a child with high liver enzymes “could
potentially get very sick,” and that a parent who did not follow up with a liver issue
“could be considered endangering the child’s welfare.”
13
Ruda testified that the abdominal injuries six months later, at the time A.J.H.
was burned, were very similar to the earlier liver issues. She would consider the
injuries to the abdominal area physical abuse and that a parent should notice those
types of injuries. She also testified that not noticing or pretending not to notice the
abdominal bruising could endanger the child’s life in not taking action.
Ruda acknowledged that an abdominal ultrasound was done in July 2016 and
that no injuries were found, but stated that “[u]ltrasound is not the best study to
look for abdominal injuries.” Ruda noted that the doctor’s differential diagnosis
indicated potential child abuse, but that no CPS referral was made, and that there
should have been one. Ruda concluded that the workup for July 2016 was “very
inadequate” and acknowledged that “there wasn’t any clear and convincing
evidence from [her] our part—from [her] perspective to conclude one way or the
other, based on the records at that time [July 2016], that there was an abuse on this
child[.]” Ruda concluded, “I would think there would be abuse on this kid but they
didn’t do the right test to look for the injury.” She noted that there was nothing in
the medical records to indicate that the hospital told Mother that the July 2016
incident was caused by “a virus.”
Conclusion of Second Day of Trial
DFPS stated “while [we] initially wanted to return this child, after further
discussion that [we] are in favor of termination at this point in time.” Counsel
14
stated that “[t]he doctor’s testimony is sufficient to rise to the level of clear and
convincing evidence that this child has been abused twice and Mom should have
known.” The trial court agreed, holding that “Mother’s parental rights are
terminated under 161.001(b)(1)(D), 1(E) and 1(O).”
This appeal followed.
SUFFICIENCY OF THE EVIDENCE
In issues one through three, Mother challenges the sufficiency of the evidence
to support termination under (1) Family Code sections 161.001(1)(D) (endangering
conditions) and (E) (endangerment), (2) Family Code section 161.001(1)(O) (failure
to comply with court order), and (3) Family Code section 161.001(2) (finding that
termination of Mother’s parental rights was in child’s best interest).
Applicable Law and Standard of Review
A parent’s rights to the “companionship, care, custody, and management” of
his or her child is a constitutional interest “far more precious than any property
right.” Santosky v. Kramer, 455 U.S. 745, 758–59, 102 S. Ct. 1388, 1397 (1982); see
In re M.S., 115 S.W.3d 534, 547 (Tex. 2003). Therefore, we strictly scrutinize
termination proceedings and strictly construe the involuntary termination statutes in
favor of the parent. Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985). However, “the
rights of natural parents are not absolute” and “[t]he rights of parenthood are
accorded only to those fit to accept the accompanying responsibilities.” In re A.V.,
15
113 S.W.3d 355, 361 (Tex. 2003). Recognizing that a parent may forfeit his or her
parental rights by their acts or omissions, the primary focus of a termination suit is
protection of the child’s best interests. Id.
In a case to terminate parental rights by DFPS under section 161.001 of the
Family Code, DFPS must establish, by clear-and-convincing evidence, that (1) the
parent committed one or more of the enumerated acts or omissions justifying
termination and that (2) termination is in the best interest of the child. TEX. FAM.
CODE ANN. § 161.001. Clear-and-convincing evidence is “the measure or degree of
proof that will produce in the mind of the trier of fact a firm belief or conviction as
to the truth of the allegations sought to be established.” Id. § 101.007; In re J.F.C.,
96 S.W.3d 256, 264 (Tex. 2002). “Only one predicate finding under section
161.001(1) is necessary to support a judgment of termination when there is also a
finding that termination is in the child’s best interest.” A.V., 113 S.W.3d at 362.
In a legal-sufficiency review in a parental-rights-termination case, the
appellate court should look at all the evidence in the light most favorable to the
finding to determine whether a reasonable trier of fact could have formed a firm
belief or conviction that its finding was true. J.F.C., 96 S.W.3d at 266. We assume
that the factfinder resolved disputed facts in favor of its finding if a reasonable
factfinder could do so, disregarding all evidence that a reasonable factfinder could
have disbelieved or found to have been incredible. Id. If, after conducting a legal
16
sufficiency review of the record, we determine that no reasonable factfinder could
form a firm belief or conviction that the matter that must be proven is true, then we
must conclude that the evidence is legally insufficient. Id.
In conducting a factual-sufficiency review in a parental-rights-termination
case, we must determine whether, considering the entire record, including evidence
both supporting and contradicting the finding, a factfinder reasonably could have
formed a firm conviction or belief about the truth of the matter on which DFPS bore
the burden of proof. In re C.H., 89 S.W.3d 17, 25 (Tex. 2002). We should consider
whether the disputed evidence is such that a reasonable factfinder could not have
resolved the disputed evidence in favor of its finding. In re J.F.C., 96 S.W.3d at
266–67. “If, in light of the entire record, the disputed evidence that a reasonable
factfinder could not have credited in favor of the finding is so significant that a
factfinder could not reasonably have formed a firm belief or conviction, then the
evidence is factually insufficient.” In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006)
(quoting J.F.C., 96 S.W.3d at 266).
Sufficiency of the evidence of endangerment by environment or conduct
In her second issue, Mother contends that the evidence is legally and factually
insufficient to support the trial court’s termination of her parental rights under
Family Code section 161.001(1)(D) (endangering conditions) and (E)
(endangerment).
17
Section 161.001(1)(D) provides that a “court may order termination of the
parent-child relationship if the court finds by clear and convincing evidence . . . that
the parent has . . . knowingly placed or knowingly allowed the child to remain in
conditions or surroundings which endanger the physical or emotional well-being of
the child[.]” TEX. FAM. CODE ANN. § 161.001(1)(D). Section 161.001(1)(E) requires
the trial court to find by clear and convincing evidence that the parent has “engaged
in conduct or knowingly placed the child with persons who engaged in conduct
which endangers the physical or emotional well-being of the child[.]” Id.
§ 161.001(1)(E). “To endanger means to expose a child to loss or injury or to
jeopardize a child’s emotional or physical health.” Jordan v. Dossey, 325 S.W.3d
700, 723 (Tex. App.—Houston [1st Dist.] 2010, pet. denied) (internal quotation
omitted).
A child is endangered under subsection (D) when the environment creates a
potential for danger that the parent is aware of but disregards. Id. at 721; In re
M.R.J.M., 280 S.W.3d 494, 502 (Tex. App.—Fort Worth 2009, no pet.). Under
subsection (D), we examine evidence related to the environment of the child to
determine if the environment was the source of endangerment to the child’s physical
or emotional well-being. Ruiz v. Tex. Dep’t of Family & Protective Servs., 212
S.W.3d 804, 815 (Tex. App.—Houston [1st Dist.] 2006, no pet.); see also In re
D.J.J., 178 S.W.3d 424, 429 (Tex. App.—Fort Worth 2005, no pet.) (“The phrase
18
‘conditions or surroundings’ in section 161.001(1)(D) refers only to the acceptability
of the child’s living conditions and does not concern the conduct of the parents
toward the children.”). Although the parent need not have certain knowledge that an
actual injury is occurring, under subsection D, the parent must at least be aware of
the potential for danger to the child in such an environment and must have
disregarded that risk. In re A.S., 261 S.W.3d 76, 83 (Tex. App.—Houston [14th
Dist.] 2008, pet. denied).
Under subsection (E), the relevant inquiry is whether evidence exists that a
parental course of conduct endangered the child’s physical or emotional well-being.
In re R.D., 955 S.W.2d 364, 368 (Tex. App.—San Antonio 1997, pet. denied).
Subsection 161.001(1)(E) asks whether “the endangerment of the child’s physical
well-being was the direct result of the parent’s conduct, including acts, omissions,
or failures to act.” In re M.T.W., 2011 WL 6938542, at *12 (quoting In re J.T.G.,
121 S.W.3d at 125). Termination under subsection (E) must be based on more than
a single act or omission—the evidence must demonstrate a voluntary, deliberate, and
conscious course of conduct by the parent. Jordan, 325 S.W.3d at 723; see also In
re T.T.F., 331 S.W.3d 461, 483 (Tex. App.—Fort Worth 2010, no pet.); see also In
re M.T.W., 2011 WL 6938542, at *12.
Because the evidence concerning these two statutory grounds for termination
is interrelated, an appellate court may consolidate its examination of the evidence
19
for both grounds. See In re M.T.W., 2011 WL 6938542, at *13; see also In re J.T.G.,
121 S.W.3d at 126.
Analysis
As Mother states in her brief, “the trial focused on whether [Mother] knew or
should have known Mosely was capable of severely harming [the child].” Mother
argues that “[o]n the face of this record no rational fact finder could form a firm
belief or conviction that [Mother] was aware that [Mosely] had a propensity for
injuring children.” Primarily, Mother argues that “the relevant [hospital records from
the child’s July 2016 hospitalization] reflect the doctors at TCH did suspect possible
child abuse; performed the required tests; and concluded [that] making a CPS
referral was not warranted,” noting that there was “[n]o concern for abuse at this
time.” Essentially, Mother argues that, because the hospital never told her that it
suspected child abuse and concluded that a CPS referral was “not warranted,” the
trial court had no basis for finding that Mother knew that leaving the child with
Mosely was dangerous.
However, this Court has held that “failure of a medical provider to identify
abuse does not establish that a parent does not know that child is in an endangering
environment.” In re L.M.M, 522 S.W.3d 34, 44 (Tex. App.—Houston [1st Dist.]
2017, pet. denied); see also In re J.P.B., 180 S.W.3d 570, 574 (Tex. 2005) (“While
it is true that Lonnie sought medical care for J.P.B. multiple times and that J.P.B.’s
20
doctors initially failed to diagnose the fractures, that evidence does not negate the
jury’s finding that Lonnie knowingly permitted J.P.B. to remain in a setting that was
dangerous to his physical well-being.”). Thus, we look to the remaining evidence to
determine whether it is sufficient to show that Mother was aware that leaving A.J.H.
with Mosely would endanger the child.
Upon admission to Texas Children’s in July 2017, Mother claimed that A.J.H.
became sick and began vomiting after eating a hamburger at McDonald’s. She had
no explanation for the bruises on his abdomen, back, and ear, other than that he had
fallen asleep on a jacket with wooden buttons and that “he bruises easily.” The trial
court found Mother’s statements unbelievable, noting that she had offered “three
excuses for why this kid is hurt.” As factfinder, the trial court was not required to
believe Mother’s statement that she didn’t know how A.J.H. received the bruises or
her explanations for his illness. See In re J.P.B., 180 S.W.3d 570, 574 (Tex. 2005)
(“It was within the [factfinder’s] province to judge [appellant’s] demeanor and to
disbelieve his testimony that he did not know how [the child] was injured.”).
Mother’s statement that A.J.H. “bruises easily” could be seen as a statement that she
had noticed bruising on the child in the past. However, at a show-cause hearing in
January 2017, while A.J.H. was still in the hospital after the scalding incident,
Mother testified that she did not even know about any bruises seen during the first
hospitalization, in direct contradiction of the medical records showing that she
21
discussed the bruises with the doctors and offered the “bruises easily” and “slept on
a wooden button” explanations.
Mother’s explanation about whether she knew to follow-up with a
gastrointestinal [GI] doctor after the child’s discharge in July 2016 also presents
credibility issues. Mother testified that she was told only that the child had a virus
and that the hospital would call to follow-up. She said that when the hospital called
to follow-up, she reported that A.J.H. was still not eating. She claimed that the
child’s grandmother took A.J.H. back to Texas Children’s Hospital to a follow-up
appointment. Mother denied any knowledge of abdominal issues or that she was
told to take the child to a GI doctor. Again, Mother’s testimony is contradicted by
the medical records. The discharge documentation portion of the records provides:
“Discharge Teaching: Patient/Caregiver Verbalizes Understanding; Provided copy
of AVS [after-visit summary]; follow-up appointment scheduled[.] Referral to GI[.]”
From this information, the trial court could have disbelieved Mother’s testimony that
she knew nothing about the need to follow-up regarding A.J.H.’s abdominal issues.
This documentation in A.J.H.’s medical records provides evidence that Mother was
told in an after-visit summary that she was being referred to a GI doctor, but that she
chose not to take him. The trial court could have also disbelieved Mother’s statement
that the grandmother took A.J.H. to a follow-up visit because the hospital records
show no such visit.
22
There was also evidence that, even after the child was severely burned while
in Mosely’s care, Mother refused to believe that Mosely could be responsible. The
medical records from the second hospitalization show that “when asked privately
[Mother] denies having concerns about abuse[.]” And, again, at the show-cause
hearing in January 2107, Mother testified, “I just don’t believe [Mosely] would do
anything intentionally to hurt [A.J.H.].” She also testified that, possibly, the child
turned on the scalding water himself, stating, “[W]hen I bathe [A.J.H] he usually
reach for the knob. And he know how to turn the knob hisself [sic].” So when—I
said that when [Mosely] left him unattended, maybe he did turn the knob. I don’t
know. I wasn’t there.”
Mother also provided prevaricating testimony regarding Mosely’s propensity
for violence and his criminal record. At the January 2017 show cause hearing,
Mother testified that “[Mosely] never intentionally harmed me or [A.J.H].”
However, Mother also gave conflicting statements to DFPS about Mosely’s
tendency toward violence. During the caseworker’s testimony, the following
exchange took place:
Q: But did you ask her if the boyfriend had a violent nature or temper,
anything like that?
A: Yes, I did ask her—
Q: What did she tell you?
A:—that multiple times throughout the case. And, at first—
23
Q: Well I’m just talking about this period when you’re first meeting
her.
A: Okay. So, at first, nothing. She told me he didn’t have any kind of
violent—
Q: Did she ever change her mind about that?
A: Yes. Later on, she did tell me that he had—they would get in
arguments, and he would get, like, a little violent with her.
Based on Mother’s conflicting statements regarding Mosely’s propensity for
violence, the trial court could have believed Mother’s statement that appellant got
“a little violent with her” when they argued and disbelieved her statement that
Mosely never intentionally harmed her.
The same prevarication is shown in Mother’s testimony about Mosely’s
criminal record. Mother admits that she knew about “something with robbery when
[Mosely] was 15,”5 but she denied knowledge of any other criminal convictions.
However, the record shows that in March 2016, the month before he moved in with
Mother, Mosely was arrested again for failure to ID and possession of marihuana,
and sentenced to 60 days’ confinement. Mother claimed that she was aware that
Mosely was gone for a period of time before they moved in together, but she never
asked him where he was and took him back right away when he showed up again.
5
The record shows that the initial charge was for capital murder, which was reduced
because Mosely “gave up” another offender.
24
The trial court could have disbelieved Mother’s protests that she was unaware of
Mosely’s conviction and confinement during the month before they moved in
together. Mother claims, however, that even if she were aware that Mosely had been
convicted of marihuana possession, that would not put her on notice that that he had
a propensity for violence. If, however, she was untruthful about her knowledge of
Mosely’s criminal convictions, that would reflect on her credibility in general.
Here, there was sufficient evidence that Mother knew that leaving A.J.H. with
Mosely would endanger the child. Twice the child was taken to the emergency room
with vomiting and abdominal bruises, but, even after the second injury, in which the
child was also scalded, Mother claimed that Mosely was not violent and that it was
an accident. Mother’s claim that she did not know that Mosely was violent was in
direct contravention of her statement to the caseworker that, when they argued,
Mosely would become violent with her.
When confronted with A.J.H.’s bruises at the July hospital visit, Mother gave
several incredible reasons for them, and later she claimed not to remember that he
had any bruises at all. Mother then did not follow up with the recommended GI
doctor, which could have revealed the source of A.J.H.’s July abdominal issues. She
claimed to not know about his abdominal issues, even though the child’s discharge
information says that she was so informed. Based on Mother’s statements, many of
which conflicted with the medical records, the trial court could have concluded that
25
Mother knew of Mosely’s propensity for violence, but left A.J.H. with him as many
as five times, including the time he was scalded and ultimately removed from the
home.
In sum, we conclude that a reasonable factfinder could have formed a firm
belief or conviction that Mother had endangered A.J.H. and/or left him in
endangering conditions. Likewise, the disputed evidence that a reasonable factfinder
could not have credited in favor of the finding was not so significant that a factfinder
could not reasonably have formed a firm belief or conviction that Mother had
endangered A.J.H. and/or left him in endangering conditions. Accordingly, we hold
that the evidence is legally and factually sufficient to support the trial court’s
termination findings under subsections (D) and (E).
We overrule issue Mother’s first issue. In light of our disposition, we need
not address her second issue, in which she argues that the evidence is legally and
factually insufficient to terminate her parental rights under subsection (O). See A.V.,
113 S.W.3d at 362. (“Only one predicate finding under section 161.001(1) is
necessary to support a judgment of termination when there is also a finding that
termination is in the child’s best interest.”)
Sufficiency of the evidence regarding best interest of the child
In issue three, Mother contends that there is legally and factually insufficient
evidence that termination of her parental rights was in the best interest of the child.
26
As a matter of public policy, “the best interest of a child is usually served by
maintaining the parent-child relationship.” J.F.C., 96 S.W.3d at 294. Despite this
important relationship, the Texas Supreme Court has held that “protection of the
child is paramount” and “the rights of parenthood are accorded only to those fit to
accept the accompanying responsibilities.” A.V., 113 S.W.3d at 361.
Appellate courts examine the entire record to decide what is in the best interest
of the child. In re E.C.R., 402 S.W.3d 239, 250 (Tex. 2013). There is a strong
presumption that the best interest of a child is served by preserving the parent-child
relationship. In re R.R., 209 S.W.3d 112, 116 (Tex. 2006). In assessing whether
termination is in a child’s best interest, the courts are guided by the non-exclusive
list of factors set forth in Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976).
These factors include (1) the desires of the child, (2) the emotional and physical
needs of the child now and in the future, (3) the emotional and physical danger to
the child now and in the future, (4) the parental abilities of the individuals seeking
custody, (5) the programs available to assist these individuals to promote the best
interest of the child, (6) the plans for the child by these individuals or by the agency
seeking custody, (7) the stability of the home or proposed placement, (8) the acts or
omissions of the parent that may indicate that the existing parent-child relationship
is not proper, and (9) any excuse for the acts or omissions of the parent. Id. “[T]he
State need not prove all of the factors as a condition precedent to parental
27
termination, ‘particularly if the evidence was undisputed that the parental
relationship endangered the safety of the child.’” In re C.T.E., 95 S.W.3d 462, 466
(Tex. App.—Houston [1st Dist.] 2002, pet. denied) (quoting In re C.H., 89 S.W.3d
17, 27 (Tex. 2002)).
The Texas Family Code also provides a list of relevant considerations:
§ 263.307 Factors in Determining Best Interest of Child
(a) In considering the factors established by this section, the prompt and
permanent placement of the child in a safe environment is presumed to
be in the child’s best interest.
(b) The following factors should be considered by the court and the
department in determining whether the child’s parents are willing and
able to provide the child with a safe environment:
(1) the child’s age and physical and mental vulnerabilities;
(2) the frequency and nature of out-of-home placements;
(3) the magnitude, frequency, and circumstances of the harm to
the child;
(4) whether the child has been the victim of repeated harm after
the initial report and intervention by the department;
(5) whether the child is fearful of living in or returning to the
child’s home;
(6) the results of psychiatric, psychological, or developmental
evaluations of the child, the child’s parents, other family
members, or others who have access to the child’s home;
(7) whether there is a history of abusive or assaultive conduct by
the child’s family or others who have access to the child’s
home;
28
(8) whether there is a history of substance abuse by the child’s
family or others who have access to the child’s home;
(9) whether the perpetrator of the harm to the child is identified;
(10) the willingness and ability of the child’s family to seek out,
accept, and complete counseling services and to cooperate
with and facilitate an appropriate agency’s close supervision;
(11) the willingness and ability of the child’s family to effect
positive environmental and personal changes within a
reasonable period of time;
(12) whether the child’s family demonstrates adequate parenting
skills, including providing the child and other children under
the family’s care with:
(A) minimally adequate health and nutritional care;
(B) care, nurturance, and appropriate discipline consistent
with the child’s physical and psychological development;
(C) guidance and supervision consistent with the child’s
safety;
(D) a safe physical home environment;
(E) protection from repeated exposure to violence even
though the violence may not be directed at the child; and
(F) an understanding of the child’s needs and capabilities;
and
(13) whether an adequate social support system consisting of an
extended family and friends is available to the child.
TEX. FAM. CODE ANN. § 263.307.
29
For purposes of determining legal sufficiency, we consider those factors that
support the finding that termination was in the child’s best interest. Yonko v. Dep’t
of Family & Protective Servs., 196 S.W.3d 236, 243 (Tex. App.––Houston [1st Dist.]
2006, no pet.). If the evidence is legally sufficient, we then balance the factors
presented in the legal sufficiency argument against the evidence that undercuts any
finding that termination is justified under the statute. C.T.E., 95 S.W.3d at 467. We
consider whether disputed evidence is such that a reasonable factfinder could not
have resolved that disputed evidence in favor of its finding. J.F.C., 96 S.W.3d at
266. If, after considering the entire record, the disputed evidence that weighs against
termination is so significant that a factfinder could not reasonable have formed a
firm belief or conviction that termination was justified, then the evidence is factually
insufficient to support termination. Id. A court of appeals should detail in its opinion
why it has concluded that a reasonable factfinder could not have credited disputed
evidence in favor of termination. Id. at 266–67.
Desires of the Children
A.J.H. was too young at the time of trial to express his desire. However, there
was testimony that he was bonded with Mother and Grandmother. “Where the
evidence of the parent’s failures is not overwhelming, the desires of the child weigh
against termination of parental rights.” Yonko, 196 S.W.3d at 245. Nevertheless, we
note that the child’s young age may weigh in favor of the best-interest finding. See
30
In re J.M.T., 519 S.W.3d 258, 270 (Tex. App.––Houston [1st Dist.] 2017, pet.
denied) (citing TEX. FAM. CODE ANN. § 263.307(b)(1)). This factor is neutral at best
or weighs in favor of termination given the child’s vulnerable age.
Emotional and Physical Needs of and Danger to the Children
The same evidence that supports the trial court’s findings regarding
subsections (D) and (E), as detailed above, is also relevant to a sufficiency review
of the best-interest finding. C.H., 89 S.W.3d at 28 (holding same evidence may be
probative of both § 161.001(b)(1) and best-interest grounds). We also note that,
even though Mother is no longer living with Mosely, her parental behavior of leaving
her child with a dangerous caregiver would likely pose a danger to the child in the
future. See Castorena v. Tex. Dep’t of Protective and Regulatory Servs., No. 03-02-
00653-CV, 2004 WL 903906, *10 (Tex. App.—Austin Apr. 29, 2004, pet. denied)
(“[A] fact finder may infer that past conduct endangering the well-being of a child
may recur in the future if the child is returned to the parent.”). This factor weighs in
favor of termination.
Parental Abilities of the Mother
Here, there was evidence that Mother cared for the child and sought
emergency care for him when he was sick. She also worked a full-time job to support
him. However, on several occasions, she left him with Mosely, a man whom she
knew was “a little violent” with her when he was angry with her. As such, she
31
knowingly permitting A.J.H. to remain in a setting that was dangerous to his well-
being. This factor weighs in favor of termination.
Programs Available to the Mother
Mother was offered and completed parenting classes as a part of the family
plan that DFPS gave her. This factor weighs against termination.
Plans for the Children by DFPS
There was testimony that A.J.H. was doing very well in his foster home and
that the foster parents wished to adopt him. He was developing normally and the
foster family was meeting all of his needs. A.J.H. was no longer afraid to take baths
and was becoming very vocal and thriving, whereas before he was quiet and would
not talk when something was wrong. This factor weighs in favor of termination.
Mother’s Acts or Omissions
Mother’s failure to protect A.J.H. from Mosely is detailed above, and this
factor weighs in favor of termination.
Excuses for Mother’s Acts or Omissions
Mother offered no excuse for leaving A.J.H. with Mosely, other than that it
was cold out and she did not want to take him on the bus. Mother also defended
Mosely and claimed that she did not believe that he would intentionally hurt A.J.H.
Even when the child was scalded while in Mosely’s care, Mother suggested that the
32
child might have turned on the hot water himself. This factor weighs in favor of
termination.
Our review of the Holley and statutory factors above shows that, viewing the
evidence in a light favorable to the trial court’s findings, a factfinder could have
formed a firm belief or conviction that it was in A.J.H.’s best interest to terminate
the Mother’s parental rights. See In re J.F.C., 96 S.W.3d at 266. Likewise, the
disputed evidence that weighs against termination is not so significant that a
factfinder could not reasonably have formed a firm belief or conviction that
termination was in A.J.H.’s best interest. As such, the evidence is legally and
factually sufficient to support the best interest finding.
Accordingly, we overrule Mother’s third issue.
SOLE MANAGING CONSERVATORSHIP
In her fourth issue, Mother contends the evidence is legally and factually
insufficient to support the appointment of DFPS as sole managing conservator of the
child.
The Family Code creates a rebuttable presumption that a parent will be named
the child’s managing conservator unless the court finds that such appointment would
not be in her best interest “because the appointment would significantly impair the
child’s physical health or emotional development.” TEX. FAM. CODE ANN.
§ 153.131(a). However, the Family Code also provides: “If the court terminates the
33
parent-child relationship with respect to both parents or to the only living parent, the
court shall appoint a suitable, competent adult, [DFPS], or a licensed child-placing
agency as managing conservator of the child.” Id. § 161.207(a); see also In re
S.M.G., No. 01-17-00056-CV, 2017 WL 2806332, at *8 (Tex. App.—Houston [1st
Dist.] June 29, 2017, pet. denied) (mem. op.) (“When the parents’ parental rights
have been terminated, Family Code section 161.207 governs the appointment of a
managing conservator.”); In re M.M.M., No. 01-16-00998-CV, 2017 WL 2645435,
at *17 (Tex. App.—Houston [1st Dist.] June 16, 2017, no pet.) (mem. op.) (parental
presumption applies only when parental rights not terminated).
In this case, the trial court appointed DFPS as sole managing conservator of
A.J.H. after terminating Mother’s parental rights. Termination of parental rights and
appointment of a non-parent as sole managing conservator are two distinct issues,
requiring different elements, different standards of proof, and different standards of
review. Compare TEX. FAM. CODE ANN. § 161.001, with id. § 153.131(a); see also
In re J.A.J., 243 S.W.3d 611, 615–17 (Tex. 2007). Unlike the standard of proof for
termination of parental rights, the findings necessary to appoint a non-parent as sole
managing conservator need only be established by a mere preponderance of the
evidence. See TEX. FAM. CODE ANN. § 105.005; In re J.A.J., 243 S.W.3d at 616.
Likewise, the standard of review for the appointment of a non-parent as sole
managing conservator is less stringent than the standard of review for termination of
34
parental rights. In re J.A.J., 243 S.W.3d at 616; In re A.C., 394 S.W.3d 633, 644
(Tex. App.—Houston [1st Dist.] 2012, no pet.). We review a trial court’s
appointment of a non-parent as sole managing conservator for an abuse of discretion.
In re J.A.J., 243 S.W.3d at 616; Earvin v. Dep’t of Family & Protective Servs., 229
S.W.3d 345, 350 (Tex. App.—Houston [1st Dist.] 2007, no pet.). Therefore, we
reverse the trial court’s appointment of a non-parent as sole managing conservator
only if we determine that the appointment is arbitrary or unreasonable. In re J.A.J.,
243 S.W.3d at 616; Earvin, 229 S.W.3d at 350. We view the evidence in the light
most favorable to the trial court’s decision and indulge every legal presumption in
favor of its judgment. Earvin, 229 S.W.3d at 350. A trial court abuses its discretion
by ruling without supporting evidence. Ford Motor Co. v. Garcia, 363 S.W.3d 573,
578 (Tex. 2012).
An order terminating the parent-child relationship divests a parent of all legal
rights and duties with respect to the child. See TEX. FAM. CODE ANN. § 161.206(b).
Here, having made termination findings on the predicate grounds found in Family
Code section 161.001(b)(1) and best interest, the trial court was required under
section 161.207 to appoint DFPS, or another permissible adult or agency, as the
child’s managing conservator. See In re L.G.R., 498 S.W.3d 195, 207 (Tex. App.—
Houston [14th Dist.] 2016, pet. denied); see also In re S.M.G., 2017 WL 2806332,
35
at *8 (when parental rights terminated section 161.207 controls appointment of
managing conservator).
As discussed above, the evidence is legally and factually sufficient to support
the trial court’s termination of Mother’s parental rights to the children. See In re S.R.,
452 S.W.3d 351, 359 n. 3 (Tex. App.—Houston [14th Dist.], 2014, pet. denied) (“A
trial court does not abuse its discretion in appointing [DFPS] as conservator of the
children where the evidence is sufficient to support termination of parental rights.”).
Because we have overruled Mother’s challenge to the portion of the trial court’s
order terminating her parental rights, the order has divested her of her legal rights
and duties related to the child. See TEX. FAM. CODE ANN. § 161.206(b); In re L.M.N.,
No. 01-18-00413-CV, 2018 WL 5831672, *25–26 (Tex. App.—Houston [1st Dist.]
Nov. 8, 2018, no writ); E.A. v. Tex. Dep’t of Family & Protective Servs., No. 03-15-
00811-CV, 2016 WL 1639847, at *4 (Tex. App.—Austin Apr. 21, 2016 pet. denied).
Mother now lacks standing to challenge the appointment of DFPS as the children’s
permanent managing conservator. See L.M.N., 2018 WL 5831672, at *26; In re
C.E.C., No. 05-17-01482-CV, 2018 WL 3062454, at *8 (Tex. App.—Dallas June
21, 2018, no pet.) (mem. op.); In re D.K.W., Jr., No. 01-17-00622-CV, 2017 WL
6520439, at *5 (Tex. App.—Houston [1st Dist.] Dec. 21, 2017, pet. denied) (mem.
op.); see also Quiroz v. Dep’t of Family & Protective Servs., No. 01-08-00548-CV,
2009 WL 961935, at *11 (Tex. App.—Houston [1st Dist.] Apr. 9, 2009, no pet.)
36
(mem. op.) (refusing to address parent’s complaint evidence insufficient to support
DFPS’s appointment as sole managing conservator when evidence sufficient to
support termination of parent’s rights).
Accordingly, we overrule Mother’s fourth issue.
CONCLUSION
We affirm the trial court’s judgment.
Sherry Radack
Chief Justice
Panel consists of Chief Justice Radack and Justices Higley and Lloyd.
37