Modified and Affirmed and Opinion Filed October 31, 2023
In The Court of Appeals Fifth District of Texas at Dallas No. 05-23-00582-CV
IN THE INTEREST OF C.D.M., J.L.M., AND H.N.P., CHILDREN
On Appeal from the 255th Judicial District Court Dallas County, Texas Trial Court Cause No. DF-21-16421
MEMORANDUM OPINION Before Justices Molberg, Carlyle, and Smith Opinion by Justice Molberg Appellant Father appeals the trial court’s order terminating his parental rights
to children C.D.M., J.L.M., and H.N.P.1 Father presents four issues in this appeal,
generally challenging the sufficiency of the evidence to support the trial court’s
order. The Department raises a cross-issue to correct a clerical error in the order of
termination. For the reasons explained below, we sustain the Department’s issue
and otherwise affirm the order of termination in this memorandum opinion. See
TEX. R. APP. P. 47.4.
1 Although Mother’s parental rights to the children were also terminated, she did not appeal to this Court. I. Background
This case involves the parent-child relationship between K.M. (Father) and
his children C.D.M. (C.), J.L.M. (J.), and H.N.P. (H.). At the time of the final
hearing in 2023, C. was seven, J. was five, and H. was two.
On October 7, 2021, the Department filed an original petition for protection,
conservatorship, and termination. An affidavit accompanying the petition stated the
Department received a referral on September 16, 2021, stating that J. had severe
eczema that Mother had been aware of for a month yet failed to seek medical
intervention. J. had “big giant open sores all over his body from head to toe.”
Daycare workers confirmed they previously informed the parents that J. needed to
be seen by a doctor but he had not been seen. After unsuccessfully trying to meet
with Mother and Father, the Department caseworker was contacted by Children’s
Medical Center in Dallas and informed J. had been admitted to the hospital on
October 3. Among other things, the caseworker learned Mother told the hospital
doctor that J. had not been to the doctor because they did not have transportation.
The affidavit also included information about Mother and Father’s history with the
Department from 2020 for reported domestic violence and drug use.
The trial court signed the ex parte order for emergency care and temporary
custody on October 7, 2021.2 Among other things, the court found there was a
2 Although proceedings regarding H. were initially separate from the case of J. and C., the two cases were eventually consolidated on December 16, 2021, when Father’s paternity of H. was established. Accordingly, we discuss C., J., and H. simultaneously for clarity. –2– continuing danger to the physical health or safety of C., J., and H. if returned to their
parents and appointed the Department as C., J., and H.’s temporary managing
conservator. The court extended the order on October 21, 2021, and November 4,
2021.
On December 7, 2021, the trial court signed a temporary order requiring
Mother and Father to participate in parenting classes, submit to drug tests, and follow
through with recommendations made by any service provider. Supervised visitation
was allowed at Department offices for one hour per week. The court appointed the
Department temporary managing conservator of J., while C. and H. were returned to
Mother. On May 12, 2022, and again on July 14, 2022, the trial court entered
permanency hearing orders requiring Mother and Father to submit to further drug
testing. On September 29, 2022, the trial court extended the dismissal date until
April 8, 2023.
The trial court entered an ex parte order for emergency care and temporary
custody of C. and H. on October 12, 2022; the Department was appointed temporary
managing conservator of C. and H. in addition to J. According to the Department’s
report to the court, the Department received a new referral when it was reported that
C., who reportedly had a black right eye, stated Mother struck him after he let H. fall
off the couch. A temporary order was entered and the parents were ordered to submit
to random drug testing, psychological evaluations, parenting classes, anger
–3– management, and individual counseling, and to follow through with any
recommendations made by any service providers.
On February 9, 2023, the trial court entered a permanency hearing order
before final order in which the court, among other things, found Mother and Father
had not demonstrated adequate compliance with their service plans.
Trial was conducted beginning April 6, 2023. Dr. Kristen Reeder, an
attending physician at the Referral and Evaluation of At Risk Children Clinic
(REACH) at Children’s Medical Center in Dallas, testified about her evaluation of
J. Dr. Reeder’s education included a “three-year subspecialty fellowship training
specifically in child abuse and neglect pediatrics,” and without objection, the
Department tendered her as an expert in her field. Dr. Reeder evaluated J. on
October 6, 2021, after he had been admitted to the hospital for a blood infection and
severe eczema and then referred to REACH due to concerns of possible neglect. Dr.
Reeder stated J. had “Meticillin-sensitive Staphylococcus Aureus bacteria growing
in his bloodstream that was most likely the result of the open wounds that he had on
his body from his eczema,” which he had from “head to toe.” She said J. was
physically very small and appeared sickly and inactive. Dr. Reeder stated that blood
infections can be life threatening. She learned from Mother that Mother was J.’s
primary caregiver; Father did not live with them at the time but visited occasionally.
Dr. Reeder saw J. about two weeks later and found he was still exhibiting similar
symptoms but said “his eczema was already showing some improvement.”
–4– Dr. Reeder reviewed Children’s records and learned that J. was first diagnosed
with eczema in the emergency room at Children’s in October 2017 when he was four
months old and he was eventually referred to the dermatology clinic at Children’s in
March 2018. The parents did not schedule J.’s first dermatology appointment until
June 10, 2019, but he was not brought in for the appointment and was instead seen
on June 14. Father and Mother were instructed to treat J. with Hydrocortisone, wrap
him in “wet wraps,” and Hydroxyzine, and they were to bring him back in for a
follow-up visit in six to eight weeks. Dr. Reeder said J. was not brought in again
until over a year later on August 19, 2020, and the parents either no-showed or
cancelled several appointments in the interim. At the August 2020 appointment, the
parents reported to the physician they had not been following J.’s prescribed
treatment and so they were again instructed to follow the same course and follow up
in six to eight weeks. They did not show up for J.’s next scheduled appointment on
November 11, 2020.
Dr. Reeder stated J. was next brought into Children’s for eczema-related
problems when Mother brought him to the ER on December 8, 2020. Mother was
again found to not be following the prescribed treatments and J. was again referred
to dermatology. J. was brought to the emergency room for a “crushed finger” in
February 2021 and was found to be “in distress from itching.” He was not brought
in for a follow-up appointment for the finger injury, and again missed a follow-up
dermatology appointment in May 2021.
–5– Dr. Reeder concluded Mother and Father failed to follow a minimum standard
of medical care for J. and this failure created a medical emergency for him. She
characterized their failure as “medical neglect,” which she said “may have resulted
in life threatening injuries or conditions.” Dr. Reeder stated her conclusion of
medical neglect was based upon J.’s clinical, physical state. She said it was “the
worst case of eczema” she had ever seen and required “significant, daily, chronic
care” that J. was not receiving; it was clear to her that the recommended treatments
were not followed and appointments were not kept. She said untreated eczema
caused J.’s blood infections and kept him from physically developing as a four-year-
old should. Dr. Reeder also described J.’s eczema as painful and itchy. She said if
J.’s blood infection continued to be untreated, it could have led to his death.
Mother testified her son C. was seven years old, her son J. was five years old,
and her daughter H. was two years old. She stated Father was the biological father
of the three children. Mother said the Department became involved with her family
in September 2021. She said Kassandra Rodriguez from the Department tried to
contact her regarding J.’s health and wanted to meet with her, but Mother said she
did not meet with Rodriguez and regarded her communications as threats, so she
“never really picked up the phone.” Mother did not want J. to have to deal with the
Department because “everybody had something to say about his eczema.”
Mother said she was living with her mother in Dallas in 2021 when the
Department was attempting to meet with her. Mother said she lived in Dallas with
–6– her mother from June 2017 until March 2021, at which point she said she moved to
Houston where she lived in an apartment provided by a friend she knew from high
school. Father lived with her and the three children in Houston. She said her mother
helped with J.’s medical care when they lived with her in Dallas. In Houston, Mother
said J. was treated by the pediatric practice MD Kids but she did not know the name
of any specific doctor who treated him. Mother said MD Kids was “a dermatology
clinic and a pediatric clinic.” She said she took him in “probably every four weeks”
but that it varied—she said J. “never missed a doctor’s or pediatric appointment.”
Mother testified she told Dr. Reeder about MD Kids, and she did not know why Dr.
Reeder would lie to the court in testifying that Mother did not provide this
information to her.
Mother said they moved back to Dallas following a car accident. Without
their vehicle, they “had no choice but to come back to Dallas.”
Mother stated she took J. to the emergency room in October 2021 after she
noticed “little bumps” with “puss coming out,” which she blamed on the changing
seasons. Mother met with the Department at the hospital, and the children were
taken into the care of the Department.
Mother had possession of C. and H. between November 2021 and August
2022, at which point they were removed on suspicion of abuse when C. went to
school with a black eye. Mother was arrested for injury to a child, a first-degree
felony—she was alleged to have punched C. in the eye—and that case was pending
–7– at the time of trial. She denied ever punching C. and said she did not know how C.
developed a black eye. Mother said C. had been at her mother’s house the night
before he went to school with the black eye, and when questioned whether if, in a
previous hearing, she stated C. came from her own house, Mother invoked her Fifth
Amendment rights. Mother was released on bond and one of her bond conditions
prohibited her from having any contact with minor children.
Mother said that if her rights were not terminated and the Department’s
involvement with her children ended, she was not certain where she wanted her
children to live. She was unaware of any relative or friend with whom the children
could be placed if the children were removed from the Department’s custody.
Mother testified she was aware a home study had been completed on her mother and
that it was denied.
Mother stated previously prescribed treatments did not help J.’s eczema, so
she went to Children’s but was provided the same medicine again. She said that
before taking him to Children’s in October 2021, she had been taking J. to different
doctors and emergency rooms “every two or three weeks.” Mother said she went to
different doctors because she was seeking “a better solution for his skin.” Mother
said she did not believe J.’s condition was dangerous or life threatening, but she said
it was painful. Mother said J.’s daycare was not administering his medicine as they
should and that she removed him from that daycare as a result.
–8– Appellant Father testified he was the biological father of J., C., and H. He
said he went to doctor appointments for J.’s eczema shortly after his birth, and he
took J. to the doctor when Mother was at work. He sometimes picked up J.’s
prescribed medicines, which he could not name, other than that one of them was
“Tramadol or something.” Father said they missed appointments at Children’s
because “we transferred to MD kids,” “because Children’s wasn’t really a big help.”
He believed Mother was giving J. his medicine, and he did not believe that J. was in
danger, though he stated he thought the blood infection was dangerous and said he
was concerned about the eczema. When questioned about what he did to make sure
the children were safe after he learned there were concerns about J.’s treatment,
Father said, “it was up to [Mother] and her mom to agree with it” and that he was
“not the type of person to argue with nobody.” Father testified he was caring for J.
when J.’s condition worsened in October 2021.
Father testified he completed a court-ordered parenting class. He said since
J. was in foster care, he had not been to any medical appointments or medical training
sessions, though he had completed “about seven” training sessions at Children’s,
MD Kids, or Parkland before then. He said he had not been offered any additional
training after J. entered foster care but he would be willing to attend additional
sessions to better understand how to care for J.
Between October 2021 and September 2022, Father said he missed just two
visits with J. But he admitted he told the Department caseworker that he was not
–9– going to visit the children because Mother was not allowed to visit the children after
her indictment resulting from the eye injury to C. He also said he could not visit
because he was in Houston.
After C. and H. were placed in foster care, Father was court ordered to
complete classes again. He said he did not complete his parenting class or anger
management because he “was stabbed five times” and hospitalized. After November
2022, Father said he had not completed parenting classes, a psychological
evaluation, anger management, or individual counseling. He said he had missed
“probably four” random drug tests. He said he tested positive for marijuana because
he “was around it,” but that he had not used it since “this stuff that happened.” Father
also had not seen Mother use marijuana since having children.
Father testified he worked as a waiter at IHOP and full-time as a trash
technician at a hospital. He said he had benefits and could make arrangements for
the children’s schooling and medical care. Father said he lived in Houston by
himself in an apartment and was planning for the children to move in with him.
Father stated he did not believe Mother hit C. in the eye because he believed she was
not “that type of person”—he believed Mother should be around their children
because she was “a good mom.”
Department caseworker Tanisha McQueen testified she had been in her job
for a year and a half. She had been assigned to the case involving C., J., and H. since
September 2022. At that time, J. was in foster care and C. and H. were still living
–10– with Mother. She said the nature of the referral that prompted the removal of C. and
H. was suspected physical abuse against C. by Mother. Mother told McQueen that
her grandmother took C. to school on the day of the incident, but Father told
McQueen that C. was with him on the date of the incident.
McQueen testified Mother completed parenting classes and a psychological
evaluation in March 2023. The evaluation yielded recommendations for Mother,
including a virtual psychiatric evaluation and virtual individual counseling. Mother
did not provide any documentation to McQueen that she completed the evaluation
or counseling. Mother was also asked to complete drug testing in October 2022 and
again in November, and she failed to submit to the testing. She was asked again in
December but did not submit to testing until January, which yielded a result positive
for marijuana. Mother again failed to complete drug testing in February and March
of 2023.
McQueen testified Mother’s mother was put forth as a placement for J., but
the grandmother specifically declined to be considered a placement home for C. or
H. The Department determined she would not be a suitable placement given that the
children were living in her home when they were removed and she was unwilling to
care for all three children. Further, McQueen testified the grandmother did not seem
to appreciate the extent of J.’s medical needs or the danger of C. being assaulted.
McQueen said the grandmother had not visited with the children since their removal.
–11– McQueen testified Father had not completed the services ordered by the court
in November 2022. She said he told her he did not complete his services because he
was working. The services, McQueen said, were virtual and could be scheduled at
his convenience. From September to December 2022, McQueen said Father visited
the children, but inconsistently: he would “visit once” and then “skip two or three
weeks, and then visit again.” McQueen said after January 2023, Father did not visit
the children. She said he was offered virtual visits, but he took advantage of just one
such visit. Father did not provide McQueen with any relative or friend placement
possibilities other than his sister, but he failed to provide her contact information and
later stated she would not be able to take in the children.
McQueen also testified about the needs of the children. She said C. was seven
years old and in first grade; he received behavioral therapy, speech therapy, and play
therapy, and an ADHD/autism assessment was pending. J. was five and in
kindergarten, and he received play therapy and behavioral therapy. He required
frequent dermatology and primary care visits. McQueen said since she had been
assigned the case, J. had not required any additional hospitalization and had not
visited the emergency room other than December 2022 when he needed to get a
medication refilled. She said he had not experienced any emergency circumstances
related to his eczema, and his skin was now “very clear” and he scratched himself
only when he was frustrated. McQueen said J.’s current treatment plan included
using sensitive detergent and soap, body oil, three different creams daily, and the
–12– drug Hydroxyzine for itching. McQueen said H. was two years old and had seasonal
allergies and required ear tube surgery after repeated ear infections.
McQueen testified the children had all been together in one foster home since
April 10, 2023. Their foster placement had indicated a desire to adopt the children
if Mother’s and Father’s parental rights were terminated.
Despite requesting a copy of Father’s lease, Father had not provided it to
McQueen because, he said, it was none of the Department’s business. McQueen
said Father told her on March 20, 2023, that Mother would be moving in with him
at his apartment in Houston. McQueen said Mother told her she was living with a
friend in Houston but that she would be moving in with Father. McQueen said if the
children were returned to Father, she was concerned Mother would be in the home.
Further, she said she had no way of knowing if Father was drug free given that he
had not taken drug tests he had been ordered to take. McQueen also questioned
whether Father and Mother could administer J.’s treatment plan given that they had
failed to do so previously, which they had never acknowledged. McQueen did not
believe Father had a “working understanding” of J.’s medical needs.
Caseworker Amber Waters testified she had worked for the Department for
two years, was previously assigned to C.’s case in October 2021, and worked on the
case until September 2022. Apart from “attendance issues at school,” Waters did
not report any issues with C. and H. living with Mother. Waters spoke on the phone
and texted with Father and saw him “from time to time when he would attend the
–13– parent/child visits.” She said Mother and Father did not consistently visit J. in
November and December 2021; they told Waters they were unable to do so because
of transportation issues or work. Waters attempted to give them bus passes but it
was difficult “to track them down” to do so. She said Mother and Father either
missed or arrived late three times in January 2022, three times in February 2022, and
in March, Mother missed one visit and Father missed three. She said that in April,
Mother and Father missed one visit. In the period stretching from May through
August 2022, Waters said the parents’ visitation was “spotty,” at times going several
weeks with no visit. She said there were times when J. was brought to the
Department office and the parents did not show up, and on such occasions, J. would
be confused and frustrated. Waters said she tried to work around the parents’
schedules, but they continued to miss visits. Waters said Mother seemed to miss
drug tests because she questioned why she needed to be drug tested at all. She said
Father also failed to test consistently.
Kassandra Rodriguez testified she was a child investigator with the
Department who had been assigned in September 2021 to investigate the reported
medical neglect of J. Rodriguez went to Mother’s address repeatedly over a two-
week period to make contact with her, but she was unsuccessful in reaching Mother.
Rodriguez eventually made contact with Mother over the phone and Mother told her
the other children were “out of town” but would not specify where. She eventually
made contact in person with Mother and J. at Children’s in Dallas
–14– Deborah Mays testified she was appointed as a special advocate in this case
in 2021. Mays said she would be concerned if J. were returned to Mother because
she previously neglected to adequately address his medical needs and J. continued
to need “a lot of attention.” Mays said J. was doing well at the time of trial “in terms
of his eczema” but that he still needed to be taken to his appointments and still
required treatments. She said Mother’s inability to make it to visits when the
children were in foster care gave her further reason to doubt Mother would “be able
to do the things medically that are needed as well.” Mays stated she had the same
concerns about Father because he had failed a drug test and she believed he put
Mother’s needs ahead of the children’s. She said all three children continued to have
a lot of needs. Mays said the Department had done its due diligence when it came
to finding a relative or fictive kin placement.
Mays testified C. stated Mother caused his black eye by striking him. By the
time Mays visited C. after this incident, his eye “had healed some, [but] not
completely.” She was concerned that Father and Mother’s mother did not seem to
believe or support C.
The attorney ad litem for the children reported to the trial court that she was
surprised the case got to point of the Department seeking termination because,
“given the amount of support that the parents had, [she] thought we would be able
to reunify the children with family.” But she believed it was time for the children to
have stability, and the only way she could see for that to happen would be to
–15– “terminate the rights of the parents so that these children can be able to be adopted
and finally achieve some stability.”
The Department admitted a family plan evaluation from November 2022 that
reflected that C. had a bond with his parents and loved them and had a very close
relationship with his siblings. C. also enjoyed living with his foster parents and was
“working on building a bond with” them. J. also reportedly “displayed a bond with
his parents when they visit him” and loved them, had a “very close relationship”
with his siblings, and built “a close relationship with his foster mother,” confided in
her, and “expressed a sense of safety and security within his foster family.” H.
reportedly had a bond with her parents and was “doing well in her placement” and
was “working on building a bond with her foster parents,” who supported her growth
and development.
After hearing the above evidence, the trial court reserved its ruling and
ordered the parents to submit to drug testing by the next day. The court informed
the parties and attorneys that once she got the results back, she would notify them
and also send out her ruling in the case. Father’s nail drug test results filed with the
trial court were positive for cocaine and marijuana. Mother’s urine drug test result
filed with the court was positive for marijuana.
Following a memorandum ruling, the trial court entered an order of
termination on April 6, 2023. The court found by clear and convincing evidence
that Mother knowingly placed or knowingly allowed the children to remain in
–16– conditions or surroundings which endanger the physical or emotional well-being of
the children, engaged in conduct or knowingly placed the children with persons who
engaged in conduct which endangers the physical or emotional well-being of the
children, and that termination of the parent-child relationship between Mother and
C., J., and H. was in the children’s best interest. Further, the court found by clear
and convicting evidence that Father knowingly placed or knowingly allowed the
children to remain in conditions or surroundings which endanger the physical or
emotional well-being of the children, engaged in conduct or knowingly placed the
children with persons who engaged in conduct which endangers the physical or
emotional well-being of the children of the children, and that termination of the
parent-child relationship between C., J., and H. and Father was in the children’s best
interest. The Department was appointed permanent managing conservator of the
children with the right to consent to the children’s adoptions.
II. Discussion
In four issues, Father contends the evidence is legally and factually
insufficient to support the court’s findings under §§ 161.001(b)(1)(D) and
161.001(b)(1)(E), that the termination of Father’s parental rights is in the best
interest of the children, and to support the appointment of the Department as
managing conservator of the children.
–17– A. Standard of review
“Because the fundamental liberty interest of a parent in the care, custody, and
control of his child is one of constitutional dimensions, involuntary parental
termination must be strictly scrutinized.” In re C.V. L., 591 S.W.3d 734, 748 (Tex.
App.—Dallas 2019, pet. denied) (citing Troxel v. Granville, 530 U.S. 57, 65–66
(2000)). While we acknowledge the constitutional dimensions of parental rights, we
also recognize the imperative that the “emotional and physical interests of the child
not be sacrificed merely to preserve” those rights. In re C.H., 89 S.W.3d 17, 26
(Tex. 2002). The evidence supporting termination must be clear and convincing
before a court may involuntarily terminate a parent’s rights. Holick v. Smith, 685
S.W.2d 18, 20 (Tex. 1985). Clear and convincing evidence is the measure or degree
of proof that will produce in the mind of the fact finder a “firm belief or conviction”
as to the truth of the allegations. TEX. FAM. CODE § 101.007.
Termination of parental rights requires proof by clear and convincing
evidence that (1) a parent committed one or more of the enumerated statutory acts
in § 161.001(b)(1) of the family code, and (2) termination is in the best interest of
the child. See TEX. FAM. CODE § 161.001(b). Because the standard of proof is “clear
and convincing evidence,” the supreme court has held that the usual legal and factual
standards of review are inadequate. In re M.A.J., 612 S.W.3d 398, 405–06 (Tex.
App.—Houston [1st Dist.] 2020, pet. denied) (op. on reh’g) (citing In re J.F.C., 96
S.W.3d 256, 264 (Tex. 2002)).
–18– Instead, in conducting legal sufficiency review in a parental termination case,
we determine whether the evidence, viewed in the light most favorable to the finding,
is such that a reasonable factfinder could have formed a firm belief or conviction
that its finding was true. In re J.F.C., 96 S.W.3d at 266. “[L]ooking at the evidence
in the light most favorable to the judgment means that a reviewing court must assume
that the factfinder resolved disputed facts in favor of its finding if a reasonable
factfinder could do so.” Id. We consider all the evidence—not just the evidence
favoring the verdict—and we assume the factfinder resolved disputed facts in favor
of its finding if a reasonable factfinder could have done so. In re J.D.B., 435 S.W.3d
452, 462–63 (Tex. App.—Dallas 2014, no pet.). We also disregard all evidence a
reasonable factfinder could have disbelieved or found incredible. In re J.F.C., 96
S.W.3d at 266.
In factual sufficiency review in a parental termination case, we consider the
entire record, including evidence both supporting and contradicting the finding, and
determine whether a reasonable factfinder could have formed a firm conviction or
belief about the truth of the allegation. In re C.H., 89 S.W.3d at 25–26. We
“consider whether disputed evidence is such that a reasonable factfinder could not
have resolved that disputed evidence in favor of its finding.” In re J.F.C., 96 S.W.3d
at 266. We give due deference to the decisions of the factfinder because the
factfinder is the sole arbiter when assessing the credibility and demeanor of
witnesses and do not supplant the trial court’s judgment with our own. In re J.D.B.,
–19– 435 S.W.3d at 463. “If, in light of the entire record, the disputed evidence that a
reasonable factfinder could not have credited in favor of the finding is so significant
that a factfinder could not reasonably have formed a firm belief or conviction, then
the evidence is factually insufficient.” In re J.F.C., 96 S.W.3d at 266.
B. Subsections (D) and (E)
In his first two issues, Father challenges the trial court’s findings under family
code §§ 161.001(b)(1)(D) and 161.001(b)(1)(E). Because evidence relating to these
subsections is interrelated, we will consider these two issues together.
Parental rights may be terminated under § 161.001(b)(1)(D) if clear and
convincing evidence supports a finding that the parent “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
§ 161.001(b)(1)(D). Under § 161.001(b)(1)(E), parental rights may be terminated if
clear and convincing evidence supports a finding that the parent “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(b)(1)(E).
Both subsections (D) and (E) require proof of endangerment. In re J.D.B.,
435 S.W.3d 452, 463 (Tex. App.—Dallas 2014, no pet.). “‘Endanger’ means to
expose to loss or injury, or to jeopardize a child’s emotional or physical health, but
it is not necessary that the conduct be directed at the child or that the child actually
suffer an injury.” Id.; see also Tex. Dep’t of Human Services v. Boyd, 727 S.W.2d
–20– 531, 533 (Tex. 1987); In re C.V. L., 591 S.W.3d 734, 750 (Tex. App.—Dallas 2019,
pet. denied). Furthermore:
Specific danger to the child’s well-being may be inferred from the parent’s misconduct alone. A parent’s conduct that subjects a child to a life of uncertainty and instability endangers the child’s physical and emotional well-being. The specific danger to the child’s well-being may be inferred from parental misconduct standing alone.
In re C.V. L., 591 S.W.3d at 750 (internal citations omitted).
The primary distinction between the two subsections is the source of the
physical or emotional endangerment to the child: “subsection (D) addresses the
child’s surroundings and environment while subsection (E) addresses parental
misconduct.” Id. While subsection (D) refers to “the acceptability of a child’s living
conditions[,]” subsection (E) refers “to the parent’s conduct, as evidenced not only
by the parent’s acts, but also by the parent’s omissions or failures to act.” In re S.K.,
198 S.W.3d 899, 902 (Tex. App.—Dallas 2006, pet. denied). However, parental
conduct is of course relevant to a determination under subsection (D) regarding the
child’s environment. In re J.D.B., 435 S.W.3d at 463.
A voluntary, deliberate, and conscious course of conduct by the parent is
required for termination under (E)—it “must be based on more than a single act or
omission.” In re C.V. L., 591 S.W.3d at 750.
C. Analysis
Father argues the evidence is insufficient to support the finding under
subsection (D) because evidence showed Mother sought appropriate treatment for
–21– J.’s medical problems and that the children were with Mother, whom he believed
was appropriately caring for the children. He also argues insufficient evidence
showed Mother injured C. Father generally argues the subsection (E) finding is
unsupported by the evidence because the evidence showed Father supported J.’s
well-being and did nothing to harm any of the children.
As discussed above, the Department presented evidence that the children lived
in an environment in which Mother and Father failed to adequately address and treat
J.’s severe eczema to the point he had a blood infection that could have been life
threatening and required hospitalization. Mother and Father knew J.’s diagnosis
shortly after his birth in 2017 and thereafter repeatedly failed to follow and
consistently administer prescribed treatments and to show up for scheduled
appointments with J.’s doctors. Evidence showing Father was aware of the
seriousness of J.’s condition includes testimony that Father lived with Mother and
the children in Houston for much of 2021, up until shortly before J.’s hospitalization
in October 2021, Father’s testimony he was caring for J. before he was hospitalized,
and Father’s testimony that he was aware the eczema was bad and that he was
concerned about it. Despite this, Father testified he left things up to Mother and her
mother.
Evidence also showed C. had a black eye and that C. told others Mother
caused the black eye by striking him. Mother, her mother, and Father gave
conflicting stories about who had possession of C. around the time of the incident
–22– and could not explain the injury. See In re I.S., No. 05-19-00709-CV, 2019 WL
6696037, at *8 (Tex. App.—Dallas Dec. 9, 2019, no pet.) (mem. op.) (discussing
child’s unexplained injury as evidence supporting termination under (D) and (E)).
Mother was facing criminal charges and invoked her Fifth Amendment rights when
questioned about the alleged assault. Father did not believe C. because he believed
Mother to be a good mom.
Father points to his testimony that although J. missed his appointments with
Children’s, he was taken to appointments at MD Kids and that they were
appropriately caring for J. Other evidence contradicted his testimony. Dr. Reeder
testified that the parents reported in 2020 that they were not following J.’s prescribed
treatments, and moreover, J.’s poor condition in 2021 was evidence in itself that the
parents were not taking proper care of J. The trial court was the sole arbiter of the
credibility of the witnesses and the weight to give their testimony. See, e.g., In re
A.B., 437 S.W.3d 498, 503 (Tex. 2014) (appellate court must give “due deference to
the decisions of the factfinder, who, having full opportunity to observe witness
testimony first-hand, is the sole arbiter when assessing the credibility and demeanor
of witnesses”).
Though most of the parents’ acts and omissions put forth by the Department
relate directly to J., this does not make the evidence insufficient as to Father’s parent-
child relationship with C. or H. because, as stated above, “it is not necessary that the
conduct be directed at the child or that the child actually suffer an injury.” In re
–23– J.D.B., 435 S.W.3d at 463; Boyd, 727 S.W.2d at 533 (endangering acts need not be
committed in child’s presence, be directed at child, or cause physical injury to child).
Violent acts directed toward one child can endanger other children who are not the
direct victims of the acts in question and support termination of parental rights as to
the other children. See Dir. of Dallas Cnty. Child Protective Servs. Unit of Tex.
Dep’t of Human Servs. v. Bowling, 833 S.W.2d 730, 733 (Tex. App.—Dallas 1992,
no writ); In re T.L.E., 579 S.W.3d 616, 625 (Tex. App.—Houston [14th Dist.] 2019,
pet. denied). The courts of appeals have so held, “even if the other children were
not yet born at the time of the conduct.” See In re L.M.N., No. 01-18-00413-CV,
2018 WL 5831672, at *16 (Tex. App.—Houston [1st Dist.] Nov. 8, 2018, pet.
denied) (mem. op.). This is true in cases of medical neglect, too. See In re A.A.H.,
No. 01-19-00612-CV, 2020 WL 1056941, at *12 (Tex. App.—Houston [1st Dist.]
Mar. 5, 2020, pet. denied) (mem. op.) (evidence of medical neglect of one child was
sufficient to show endangering environment and conduct as to another child because
“it is not necessary that the conduct be directed at the child that is the subject of the
suit or that that the child actually suffer injury”).
Given all of this, we conclude a reasonable factfinder could have formed a
firm belief or conviction that Father knowingly allowed the children to remain in
conditions or surroundings which endanger the physical or emotional well-being of
the children, and engaged in conduct or knowingly placed the children with persons
who engaged in conduct which endangers the physical or emotional well-being of
–24– the children. We also conclude the disputed evidence a reasonable factfinder could
not have credited in favor of the two findings under subsections (D) and (E) is not
so significant that a factfinder could not have reasonably formed a firm belief or
conviction as to their truth. Accordingly, we conclude the evidence is legally and
factually sufficient to support the trial court’s predicate act findings under
§ 161.001(b)(1).
D. Best interest
Father also challenges the trial court’s finding that terminating Father’s
parent-child relationship with the children was in the children’s best interest. Under
§ 161.001(b)(2), the trial court must find by clear and convincing evidence that the
termination of the parent-child relationship is in the best interest of the child. TEX.
FAM. CODE § 161.001(b)(2). Though a strong presumption exists that remaining
with a parent is in the child’s best interest, see TEX. FAM. CODE § 153.131(b), In re
R.R., 209 S.W.3d 112, 116 (Tex. 2006) (per curiam), the prompt and permanent
placement of the child in a safe environment is also presumed to be in the child’s
best interest, see TEX. FAM. CODE § 263.307(a), In re K.S.L., 538 S.W.3d 107, 115
(Tex. 2017).
We look to certain non-exclusive factors enumerated by the supreme court in
Holley v. Adams in determining the child’s best interest. 544 S.W.2d 367, 371–72
(Tex. 1976). These 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
–25– 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 which may indicate that the existing parent-child
relationship is not a proper one; and (9) any excuse for the acts or omissions of the
parent. Id. at 372.
Evidence is not required on all of these factors to support a best interest
finding, In re S.R., 452 S.W.3d 351, 366 (Tex. App.—Houston [14th Dist.] 2014,
pet. denied), or to put it differently, the absence of evidence on some of these factors
does not preclude a best interest finding, “particularly if undisputed evidence shows
the parental relationship endangered the child’s safety,” In re N.T., 474 S.W.3d 465,
477 (Tex. App.—Dallas 2015, no pet.). Indeed, “evidence relating to one single
factor may be adequate in a particular situation to support a finding that termination
is in the best interests of the child.” In re K.S., 420 S.W.3d 852, 855 (Tex. App.—
Texarkana 2014, no pet.).
A trial court may infer that past endangering conduct may recur if the child is
returned to the parent in making its best interest determination. See In re L.N.C.,
573 S.W.3d 309, 318 (Tex. App.—Houston [14th Dist.] 2019, pet. denied).
Evidence relevant to § 161.001(b)(1) termination grounds may also be relevant to
the question of the child’s best interest. In re C.V.L., 591 S.W.3d 734, 753 (Tex.
–26– App.—Dallas 2019, pet. denied). However, the question of a child’s best interest is
not equivalent to a finding of endangerment: “‘best interest’ is a term of art
encompassing a much broader, facts-and-circumstances based evaluation that is
accorded significant discretion.” In re Lee, 411 S.W.3d 445, 460 (Tex. 2013).
E. Analysis
The children did not testify at trial, and no one testified about their desires.
However, the family plan evaluation admitted into evidence reflected that J. and C.
loved their parents, all three children were bonded to their parents, and that all three
children were building bonds with their foster family, which was reportedly
providing safety and stability for them.
Evidence showed J. had significant physical needs relating to continued
treatment for his eczema and that he was also going to behavioral and play therapy.
J. used multiple creams for his skin and took medicine to prevent itching. C. also
had significant needs, requiring various therapies and had a pending evaluation for
autism and ADHD.
Evidence relating to the emotional and physical dangers to the children largely
overlaps with the evidence discussed above under subsections (D) and (E), and it is
also pertinent to Father’s parental abilities and whether any acts or omissions
indicate the existing parent-child relationship is not a proper one. When the children
were previously subject to Father’s care, J.’s eczema was not treated properly and
evidence showed C. reported that Mother assaulted him. J. and C. both required
–27– frequent transportation to therapy and other appointments, and evidence showed
Father did not always provide it.
Additional evidence was presented on the parenting abilities and plans for the
children of those seeking custody of the children, as well as the stability of the
proposed placements. After the children were removed, Father inconsistently visited
them and visited them only twice in 2023. He did not complete court-ordered
services including parenting classes, psychological evaluation, anger management,
drugs tests, or individual counseling. Father’s plan was for the children to live with
him in his apartment in Houston, but evidence also showed he planned to live with
Mother despite concerns of physical abuse. The Department’s plan was for the
children’s foster family to adopt them, and evidence showed this was the foster
family’s intent if Mother’s and Father’s parental rights were terminated.
Considering the above evidence in light of the Holley factors, we conclude a
reasonable factfinder could have formed a firm belief or conviction that termination
of the parent-child relationship between Father and the children was in the children’s
best interest, and that any evidence contradicting that finding was not so significant
so as to preclude a factfinder from reasonably forming a firm belief or conviction of
the finding. Although some evidence showed the children were bonded to their
parents, the factors of emotional and physical needs and dangers, parenting abilities,
the stability of the home, and acts or omissions of the parents indicating the parent-
child relationship is improper all weigh in favor of the trial court’s best interest
–28– finding. Consequently, we conclude legally and factually sufficient evidence
supports the trial court’s finding, and we overrule Father’s third issue.3
F. Managing conservator
In his final issue, Father contends the evidence is insufficient to support the
appointment of the Department as managing conservator. We reject this argument
because we concluded above that sufficient evidence supports the trial court’s
termination order. As we have explained previously,
In the case before us, “we have overruled appellant’s challenge to the termination, and the trial court’s appointment of the Department as sole managing conservator may be considered a ‘consequence of the termination pursuant to Family Code section 161.207.’” Further, Mother “provides no authority for the proposition that she is a ‘suitable, competent adult’ as contemplated by section 161.207(a) or that the presumption in section 153.131(a) applies to a parent whose parental rights have been terminated under Chapter 161.” Accordingly, Mother’s challenge to the trial court’s appointment of the Department as sole managing conservator, rather than Mother, “is without merit.”
In re N.T., 474 S.W.3d at 481 (internal citations omitted); In re S.O., No. 05-22-
01019-CV, 2023 WL 2237084, at *17 (Tex. App.—Dallas Feb. 27, 2023, no pet.)
(mem. op.).
Moreover, Father lacks standing to challenge the trial court’s appointment of
the Department as managing conservator of the children. If the court terminates the
3 Father argues the drug tests ordered by the trial court at the end of the bench trial were not evidence properly before the court and cannot support the order of termination. Although we find this argument inadequately briefed, see TEX. R. APP. P. 38.1(i), because we find the evidence to be sufficient without considering the final drug tests, the resolution of this issue is unnecessary to the final disposition of the appeal and we do not reach it. TEX. R. APP. P. 47.1. –29– parent-child relationship with respect to both parents, “the court shall appoint a
suitable, competent adult, the Department of Family and Protective Services, or a
licensed child-placing agency as managing conservator of the child.” TEX. FAM.
CODE § 161.207(a). An order terminating the parent-child relationship divests the
parent of all legal rights and duties with respect to the child. Id. § 161.206(b).
Because we have overruled Father’s challenge to the termination of his parental
rights to the children, he has been divested of his rights and duties related to the
children. Therefore, we conclude Father does not have standing to challenge the
portion of the order appointing the Department as conservator of the children. See
In re R.B., No. 05-21-00043-CV, 2021 WL 2943927, at *15 (Tex. App.—Dallas
July 9, 2021, no pet.) (mem. op.); In re E.M., No. 05-18-01161-CV, 2019 WL
1449791, at *9 (Tex. App.—Dallas Apr. 1, 2019, no pet.) (mem. op.); In re J.D.G.,
570 S.W.3d 839, 856 (Tex. App.—Houston [1st Dist.] 2018, pet. denied). We
overrule Father’s final issue.
G. Department’s cross-issue
The Department urges us in a cross-issue to correct a typographical error in
the trial court’s order of termination. The order identifies H. as having a middle
name beginning with “D” rather than one beginning with “N.” The Department
points out that the record is clear that H.’s middle name begins with “N.” We agree.
When we have the necessary information to do so, we may correct clerical errors in
the judgment. See TEX. R. APP. P. 43.2(b); In re A.B., 458 S.W.3d 207, 210 (Tex.
–30– App.—Dallas 2015, pet. denied). Accordingly, we delete H.’s middle name
“D*****” in the order of termination and replace it with the correct middle name
beginning with “N” as identified in the Department’s October 7, 2021, original
petition.
III. Conclusion
As modified, we affirm the trial court’s order terminating Father’s parental
rights to the children.
230582f.p05 /Ken Molberg/ KEN MOLBERG JUSTICE
–31– Court of Appeals Fifth District of Texas at Dallas JUDGMENT
IN THE INTEREST OF C.D.M., On Appeal from the 255th Judicial J.L.M., AND H.N.P., CHILDREN District Court, Dallas County, Texas Trial Court Cause No. DF-21-16421. No. 05-23-00582-CV Opinion delivered by Justice Molberg. Justices Carlyle and Smith participating.
In accordance with this Court’s opinion of this date, the May 22, 2023 order of termination is MODIFIED as follows:
H.N.P.’s listed middle name of “D*****” is replaced with H.N.P’s correct middle name, “N*****”, as reflected in the Department’s October 7, 2021 Original Petition for Protection of a Child.
It is ORDERED that, as modified, the trial court’s order of termination is AFFIRMED.
Judgment entered this 31st day of October, 2023.
–32–