NUMBER 13-08-00652-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
IN THE INTEREST OF J.T., A CHILD
On appeal from the 267th District Court of Jackson County, Texas.
MEMORANDUM OPINION Before Chief Justice Valdez and Justices Garza and Vela Memorandum Opinion by Justice Garza
This is an appeal from a final order terminating the parental rights of Lucy and
Robert, the mother and father of J.T.1 By two issues, Lucy argues that the State failed to
prove by clear and convincing evidence that she: (1) engaged in conduct or knowingly
placed J.T. in the care of others engaging in conduct which endangered the well-being of
J.T.; and (2) failed to comply with the court-ordered family service plan. See TEX . FAM .
CODE ANN . § 161.001(1)(E), (O) (Vernon 2008). By three issues, Robert contends that the
1 To protect the privacy of the m inor child, m other, and father, we refer to the m other as Lucy, the father as Robert, and the child by her initials. See T EX . F AM . C OD E A N N . § 109.002(d) (Vernon 2008); T EX . R. A PP . P. 9.8(b)(2). Both of the nam es we use for the m other and father are fictitious. See T EX . R. A PP . P. 9.8(b)(2). evidence supporting the trial court’s termination order is insufficient because: (1) his failure
to comply with the court-ordered family service plan was due to his incarceration; (2) his
conviction for injury to J.T. is not a final judgment; and (3) the testimony at trial suggests
that the injuries sustained by J.T. were accidental. See id. § 161.001(1)(E), (L), (O). We
affirm.
I. FACTUAL BACKGROUND
On May 18, 2007, J.T. was removed from the custody of Lucy and Robert by Texas
Department of Family and Protective Services (“TDFPS”) officials after an incident
transpired that nearly cost J.T. her life. Lucy and Robert were dating at the time of the
incident.2
On May 15, 2007, Lucy and Robert were staying at the Six Flags Motel in Victoria,
Texas. Lucy recalled that J.T. was “kind of cranky” when she tried to take J.T. out of her
car seat that evening. Robert instructed Lucy to leave J.T. in his care while Lucy took a
shower. Lucy testified that Robert seemed agitated, but he reassured her that he would
get J.T. to go back to sleep.
While she was in the shower, Lucy heard a loud cry emanate from the bedroom.
Lucy, still in the shower, asked Robert what had happened. Robert informed Lucy that he
was changing J.T.’s dirty diaper and that nothing out of the ordinary had occurred.
Apparently satisfied with Robert’s answer, Lucy completed her shower. Upon exiting the
bathroom, Lucy checked on J.T. and noticed that she was asleep and appeared fine. Lucy
checked on J.T. again at 11:00 p.m. and at one or two o’clock in the morning, and J.T.
appeared to be fine. Lucy then went to sleep. She was awakened by J.T.’s stirring at
about 3:00 a.m. Lucy stated that J.T. “kind of whined a little bit,” so she got up and
2 At the tim e of trial, J.T. was two years old.
2 proceeded to feed J.T. and give J.T. her medicine.3 Lucy did not recall any swelling or
bruising on J.T.’s body when she was feeding her. Once she finished feeding J.T., Lucy
burped J.T. and the following took place:
I was trying to burp her and she was kind of whining a little bit and I could hear him [Robert]. . . .
And he’s like, I got to get up in the morning, you know, so I walked into the bathroom with her and I’m burping her and the light’s off. I didn’t want to turn the light back on because I didn’t want her to get good and awake, so I was trying to burp her and she throws up all over the place, all over me, all over her, and big quantity of it, so I hit the light and I was just, I didn’t know what was going on, you know. I’ve never seen her throw up that much ever, so it was like everything she ate and everything prior to that, and I called him in there because her head was—it looked really weird to me, like it was really, it was swollen on the sides right here and I thought I was seeing stuff, so I called him in there.
Lucy then left J.T. in Robert’s custody and ran across the street to use a pay phone
at Walgreens. Lucy called her mother to inform her about J.T.’s condition. Lucy’s mother
arrived at the motel approximately twenty minutes later and drove J.T. and Lucy to the
nearby hospital. After an initial examination, J.T. was air-lifted to a San Antonio hospital
by helicopter. Lucy testified that at this time, J.T. was drowsy and her head was swelling.
Lucy testified that she never witnessed Robert mishandle J.T., but that Robert was
sometimes “a little harsh . . . [o]n his attitude towards her [J.T.].” Ultimately, Lucy admitted
that J.T. had been physically abused. When asked whether she could protect J.T. from
future abuse, Lucy believed that she could. However, when questioned whether she
protected J.T. when she was dating Robert, Lucy stated that she did not. Lucy stated that
she initially believed that J.T.’s injuries were the result of an accident, but that she no
longer believed that to be true.
With respect to her current living situation and employment status, Lucy testified
3 At the tim e of the incident, J.T. was taking m edication for congestion.
3 that: (1) she is “not exactly on [her] own just yet”; (2) she still lives with her mother and that
things would be easier if her mother “was in the picture”; and (3) she was not working at
the time of trial. On re-direct examination, Lucy admitted that she was aware that Robert
had previously been arrested for theft but no other crimes and that, prior to this incident,
she did not realize that anyone was abusing J.T. Lucy denied any responsibility for any
of J.T.’s injuries. Finally, Lucy testified that she smoked marihuana “off an[d] on when I
was a kid” and that she continued smoking marihuana until she was pregnant with J.T.4
Nancy Kellogg, M.D., a professor of pediatrics at The University of Texas Health
Sciences Center at San Antonio, reviewed J.T.’s medical records and stated that J.T. had
several injuries to her head and other parts of her body in different stages of healing. Dr.
Kellogg believed that J.T. had sustained at least four severe impacts to her head that could
not have been caused by accident. Based on the medical records, Dr. Kellogg informed
the trial court that J.T. had two skull fractures—one on the right and the other on the left
side of her head. When asked about how a ten-month old child could get two skull
fractures, Dr. Kellogg responded that two separate blows were the most likely explanation
and that the amount of force required to cause the skull fractures would have been very
severe. In fact, the skull fractures caused J.T.’s head to be partially dented, and the
fractures were diastatic in nature, meaning that the sutures that hold the cranial bones
together had split. J.T. also had a severe brain contusion, bruising on her left cheek, left
4 W ith respect to the last tim e Lucy abused drugs, the following exchange took place:
Q: [Counsel for the TDFPS] W hen did you— when was the last tim e you used [drugs]?
A: [Lucy] It’s been about two and a half years.
Q: That’s about when you were pregnant with [J.T.]?
A: Yes.
4 eye, and left ear, bruising of the abdomen, bruising of her back, and bruising to much of
her forehead. Dr. Kellogg stated that J.T. sustained massive bleeding to her head that
required numerous blood transfusions. In fact, J.T. lost about one-third of her blood
volume and without the blood transfusions, J.T. would have died.
Doctors also discovered that: (1) J.T. had a fractured tenth rib that was ten days to
three weeks old; and (2) a healing fracture on her left tibia that was a metaphyseal-buckle
fracture that was ten days to three weeks old. Dr. Kellogg testified that metaphyseal
injuries are most associated with abuse, especially concerning a child that is not yet
running and noted that:
It is not a common injury . . . . Well, the kind that she had is the, what we call a compression fracture, which means there was compression on the leg at the heel, the foot level, upward, which can happen in a few different ways. Either the child is forcefully slammed down onto a object or hoisted on the bottom, where somebody can take the foot or ankle and jam it upward, so it’s a longitudinal compressive type of force.
When questioned further about the characteristics of metaphyseal injuries, Dr. Kellogg
stated that: “[I]t’s a very unusual fracture. I mean, normal activity would not cause this.
This would be something that would result in pain to the child, so there is a good deal of
force that’s involved. . . .” Dr. Kellogg ruled out brittle bone disease and J.T.’s premature
birth as potential causes for the fractured rib and tibia. Based on her experience, Dr.
Kellogg believed that J.T.’s injuries were the result of physical abuse.
Officer Kevin Kroos, a detective with the Victoria Police Department, testified that
he was involved in the investigation of the suspected abuse of J.T. Officer Kroos recalled
conversations with Lucy in which she consistently stated that she was unaware of what had
happened to J.T. that evening. However, Officer Kroos stated that when he first spoke with
Robert, Robert denied having any knowledge about how J.T. was injured. Approximately
5 one week later, Robert changed his story and noted that the whole incident was an
accident—that J.T. had bitten him on the shoulder while he was holding her; that he jerked
her away; and that he dropped her and she fell to the floor and struck her head. Robert
never suggested that Lucy had abused J.T. On cross-examination, Officer Kroos
remembered that Lucy did not appear to be a caring person or overly emotional about the
injuries that J.T. had sustained. Officer Kroos believed that Lucy’s reaction to the incident
was abnormal.
Shirley Johnson, a licensed professional counselor, testified that Lucy had been a
client of hers since November 2007. The purpose of Lucy’s visits with Johnson was to help
Lucy with parenting skills. At the time of trial, Johnson had met with Lucy thirty-five times,
and Johnson noted that Lucy had made some progress with the parenting classes.
However, Johnson stated that she did not believe Lucy could care for J.T. on her own,
although she may be able to care for J.T. with adequate supervision. In speaking with
Lucy, Johnson learned that Lucy’s father had a history of physically abusing her mother.
Lucy also disclosed to Johnson that J.T.’s broken rib and tibia had occurred when J.T. was
in Robert’s care. Based on her interactions with Lucy, Johnson opined that Lucy and J.T.
did not have a bond and that Lucy was not mature enough to care for J.T.
Robert testified that at the time of trial, he was serving a thirty-year sentence for
injury to a child.5 Robert admitted that in the past he had: (1) made a terroristic bomb
threat to a middle school; (2) pleaded guilty to burglary of a vehicle; (3) pleaded guilty to
theft of property valued under $500; and (4) was placed on juvenile probation for carrying
5 Chris Canales, a patrol officer with the Victoria Police Departm ent, testified that Robert had som e outstanding warrants at the tim e Robert was first contacted about the incident and that Robert’s initial arrest pertained to the outstanding warrants. Robert was later indicted with injury to a child, a first-degree felony, based on the May 15, 2007 incident and was subsequently convicted and sentenced to thirty years’ incarceration for his participation in the incident. See T EX . P EN AL C OD E A N N . § 22.04(a)(1), (e) (Vernon Supp. 2008).
6 knives to school. Robert testified that when he first met Lucy, he was “doing a lot of
cocaine,” “popping pills,” and “smoking a lot of weed.” In addition, Robert admitted to
drinking a lot when he first met Lucy. However, once he met Lucy, Robert “stopped doing
everything except weed—marijuana.” Robert, however, contradicted himself when he
recalled that he and Lucy used to pop pills—“hydrocodone and Lortabs”—and smoke
weed. Unbeknownst to Lucy’s mother, Robert and Lucy stole the pills from Lucy’s mother’s
house. When asked about J.T.’s whereabouts when they abused drugs together, Robert
mentioned the following:
Most of the time we’d wait until she goes to sleep and we’d cut down a lot whenever we found out that she was pregnant. I still smoked because, you know, she was the one that was pregnant. She wanted me to hold back and, you know, don’t smoke around her because she would get contact and it would be bad for the baby and so most of the time I’d go outside and with the pills I only did that like maybe once every six months.
Whenever she had [J.T.], we’d wait for her to fall asleep. It was almost at the end of the week and whenever her mom [was] willing to babysit, we would go to town, get groceries and rent movies and then whenever everybody was asleep[,] we’d go out and smoke. Never around [J.T.].
Robert was then questioned about J.T.’s fractured tibia to which he responded:
The leg—when I was changing her, again, when she was fresh home from the hospital, after she just had her, I lifted her legs up to change her and I lifted them up too high and I didn’t know how high you were supposed to lift them up and instead of putting them back towards her like she’s on her back[;] instead of lifting the legs making her feet go in the direction of her head like in a 90 degree angle, I lifted up to where her little butt came up and her ankles crossed like that and I had my hands like that and I didn’t know I did it wrong and apparently that was wrong.
I didn’t jerk or yank or anything, but just that fact alone that I grabbed her the wrong way would make me assume that it was probably me just being—
Robert later admitted that he physically assaulted Lucy. He stated that: (1) the
abuse started when Lucy was “a couple of months pregnant”; (2) he did not know how to
7 handle Lucy’s mood swings; and (3) he was frequently high. Robert further admitted that
he had: (1) punched Lucy in the cheek with a closed fist; (2) kicked her in the stomach;
and (3) put a towel around her neck and threatened to choke her. Furthermore, Robert
testified that he had previously slapped his mother out of anger.
With respect to the May 15, 2007 incident, the following exchange occurred:
Q: [Counsel for TDFPS] At any point while [Lucy] was in the shower did you bump [J.T.’s] head on any object?
A: [Robert] Yes. Whenever [Lucy] was in the shower, she had asked me why [J.T.] was crying and I told her because I’m changing her diaper and she said, okay, well, she’s crying very loud, and she’s crying real loud. Is she okay. I said, yeah. [Lucy’s] head is sticking out of the shower door because the shower and the bed where I was changing [J.T.] is real close.
After I got done changing [J.T.], I carried her right here on my right arm like where her legs are hugging my hip and I’ve got my arm behind her back. I’ve got the dirty diaper in my left hand and I go over to the restroom and I tell [Lucy], I was like, is—[Lucy] said, she does baby talk to [J.T.]—she’s like, what’s the matter baby, but she does it in baby talk and I said, see, there’s mom, say hi and [Lucy] is like, okay, well, I need to finish up. I was like all right.
Then when I go to close the door [Lucy] had just closed her shower door, and when I turned, I’ve still got the dirty diaper in my left hand I’ve got [J.T.] in my right and whenever I scoot [J.T.] up a little bit because she was kind of sliding a little bit that’s basically when she bit me and I jerked and the back left side of her head, more towards the side, hit the edge of the counter.
....
Whenever she hits I go to, when I jerk her back and she hits and I hear the pop around
8 the same time I hear the shower door close. I feel the loss of weight in my right hand and I swing my left hand to come behind the head. Well, that pamper has a little sticky thing on the sides and whenever you close the diaper you got to criscross [sic] it.
Well, the sticky part stuck to the inside of my hand between the index finger and the thumb so whenever I went to go scoop underneath her head, her head hit the pamper and, you know, she kept on sliding and I used my fingers to try to grip whatever I could, which was hair and she still kept on sliding so when she’s tumbling, on her way down, her back is leaning backwards and I missed her head so I let go of her legs while she’s almost about to be completely upside down and I try to scoop back up because I—I totally disregard my left arm at this point.
I scoop up like this to try to cradle her up to my chest and she just slides right through because I wasn’t quick enough. It happened pretty fast. Whenever she slid through, she landed on the ground with her head towards my side and her feet towards the other direction and her face is facing the restroom door. It would probably be, I think it was her left cheek, if I’m not mistaken.
Robert did not report the accident immediately and, instead, kept the information
about the accident to himself. After J.T. fell to the floor, Robert checked J.T.’s head for
bumps and her body for cuts, bruises, or bleeding. J.T. was not crying at this point. Robert
alleged that J.T.’s injuries were not caused by the accident that occurred on May 15, 2007,
and that he had never committed any violent acts towards J.T. Robert noted that he
enrolled in parenting classes and anger management classes that were available at the jail.
Julie Murphy, an investigator for the TDFPS, took over J.T.’s case in July 2007.
Murphy recalled that Lucy had complied with the family service plan “to some extent.”
However, Lucy had numerous “no-call no-shows” with the counseling service, and Lucy
9 refused to allow the parenting-homemaker provider to come to her mother’s house, which
resulted in a delay in services. Lucy disclosed to Murphy that her father sometimes stayed
at her mother’s house.6 In describing Lucy’s visits with J.T., Murphy stated that:
There was a lot of disconnection. It didn’t really seem like she [Lucy] had much of a connection to her child, like she didn’t know what to do with her. There was a lot of watching. [J.T.] would kind of do her own thing—play with toys—and she would just observe.
Murphy did not believe that there was an appropriate bond between Lucy and J.T.
Additionally, Murphy noted that parents generally have responsibility for the safety of their
own children.
Natalie Falcon, a caseworker with the TDFPS, became Lucy’s caseworker in
November 2007. Falcon informed both Lucy and Robert about their obligations under the
court-ordered family service plans. Pursuant to the family service plans, Lucy and Robert
were required to complete a drug and alcohol assessment, a psychological evaluation,
anger management classes, parenting classes, and individual therapy. They were also
required to: (1) register with the Work Force Solution organization to obtain stable
employment; (2) participate in parent-child visits; (3) maintain stable housing; (4) keep in
contact with the assigned caseworker; and (5) understand the severity and nature of the
injuries J.T. sustained.
Lucy and Robert both reviewed the family service plans and according to Falcon,
Robert had not made any progress on his plan at the time of trial.7 Lucy, on the other
6 Robert testified that Lucy’s father was a violent m an who was addicted to pills and alcohol and had just been released from prison. Lucy’s m other confirm ed that her ex-husband stayed at the house on occasion; that he had previously physically assaulted her; and that he had drug and alcohol problem s.
7 Falcon testified that she believed that the jail where Robert was housed provided som e parenting classes for inm ates; however, Robert did not provide any docum entation to the TDFPS dem onstrating that he had attem pted to take advantage of those classes.
10 hand, completed a psychological evaluation and was participating in counseling. Lucy also
underwent a drug and alcohol assessment and was in the process of completing her
parenting courses. However, Falcon testified that the TDFPS did not consider Lucy’s drug
and alcohol assessment to be valid because it was premised primarily on self-reports of
drug and alcohol consumption by Lucy and because Robert stated that Lucy abused drugs
both before and after J.T.’s birth. Despite the TDFPS’s suspicions, all of Lucy’s drug
screens were negative. Lucy reported to Falcon that she had recently started working at
Olive Garden, but she quickly quit that job due to an injury and had not reported any other
employment since then.8 Lucy completed her anger management classes, but at the time
of trial, she had not obtained independent housing. Falcon noted that Lucy had
participated in all of her visits with J.T.; however, Lucy was regularly late for the
appointments. In participating in the visits with J.T., Falcon recalled that Lucy would simply
observe J.T. and did not seem to know how to play with J.T. appropriately. In addition,
Lucy invariably was accompanied by her mother on the visits, and Falcon stated that
Lucy’s mother interacted more with J.T.
Falcon testified that she was very concerned about Lucy’s ability to protect J.T. from
future abuse and that she did not believe Lucy and J.T. were bonded as mother and
daughter. Because Lucy is “very naive,” “immature,” and “more interested in getting her
way as opposed to the welfare of her child,” Falcon did not believe that Lucy could care for
J.T. properly.9 Based on these observations, the long-term goal of TDFPS was termination
8 Falcon noted that Lucy was not able to provide the TDFPS with paycheck stubs verifying that she had been em ployed by Olive Garden.
9 On one visit, Falcon observed that J.T. bum ped her head while in Lucy’s care.
11 of Lucy and Robert’s parental rights.10
Lucy’s mother testified on Lucy’s behalf and stated that she did not believe that J.T.
had a broken rib or leg or that Lucy posed a threat to J.T.’s physical or emotional well-
being. She did believe, however, that Robert had purposefully caused J.T.’s injuries. On
cross-examination, Lucy’s mother admitted that she used to work twelve to eighteen-hour
shifts at her job and that the house was not well maintained; however, she stated that she
no longer works, and she is determined to follow TDFPS directives and help Lucy raise
J.T.11 Lucy’s mother also noted that Lucy was hired by the YMCA in Victoria that morning.
Christine Hartley-Harvey, a program director for Reclamation Counseling Center,
a homemaker parenting service organization, testified that Lucy was one of her clients and
that she first met Lucy on June 2, 2008. Hartley-Harvey observed a visit between Lucy and
J.T. and noted that:
There was little to no bonding between [J.T.] and [Lucy]. [Lucy’s] affect was really flat. She showed no emotions. The child initiated—the child interacted more with [Lucy’s] mother . . . . Some of the safety issues were [Lucy] would hold [J.T.] up over her head like that and shake her and play with her and that was one of my concerns because with having the brain injuries—you don’t want to shake a child anyway—but having a brain injury you really don’t want to. Just—there was just a lot of different things that I noticed in that visit.
Hartley-Harvey also visited Lucy at her mother’s home to see if Lucy was able to
implement some of the parenting skills she claimed she had or should have learned.
Hartley-Harvey recalled that Lucy was “real inconsistent” and that “[s]he would look more
10 At the tim e of trial, J.T. resided with a relative. Kathy Cornett, a Court-Appointed Special Advocate (“CASA”) caseworker, recom m ended that J.T. be adopted by her current foster fam ily. Cornett also noted that she did not believe Robert’s account of how J.T. was injured and that J.T. would be safe living with Lucy or Robert.
11 Lucy’s grandm other also testified on Lucy’s behalf and stated that: (1) she has a close relationship with Lucy; and (2) she would be available to help Lucy raise J.T.
12 to her mother to discipline the child than she would herself.” At the time of trial, Lucy had
not completed her parenting classes, and Hartley-Harvey did not believe that Lucy had a
good understanding of what she was trying to teach her with respect to child safety and
parenting. In fact, although Lucy had been attending parenting classes for approximately
one year, Hartley-Harvey observed that “she’s still unable to implement a lot things” that
the program was trying to teach her. Hartley-Harvey testified that of the sixteen scheduled
visits with Lucy, Lucy missed or rescheduled eight. Hartley-Harvey believed that Lucy was
capable of understanding what she is taught; however, she was unwilling to learn
appropriate parenting skills. Finally, Hartley-Harvey raised concerns about Lucy’s mother’s
home, where Lucy planned to reside if the trial court had granted her custody of J.T.
Hartley-Harvey was concerned that there was:
trash everywhere; clothes strewn everywhere; lighters sitting around; coins—just things that little kids can get into and get hurt with. She’s been able to correct a lot of that. The outside is really overgrown. There’s been a dead skunk in the driveway right there where I get out of the car. There’s been a dead possum. I’d be concerned about snakes because the grass is so tall right in the proximity of, you know, the home.
II. PROCEDURAL BACKGROUND
On May 18, 2007, the Texas Department of Family and Protective Services filed its
original petition for termination of Lucy’s and Robert’s parental rights. After a home study
was conducted, J.T. was placed with Lucy’s sister’s family. Later, the TDFPS filed copies
of the family service plans issued to both Lucy and Robert.
Subsequently, on October 13, 2008, the trial court conducted a final hearing on the
termination of Lucy’s and Robert’s parental rights. On November 5, 2008, the trial court
signed a termination order stating that the trial court had found by clear and convincing
evidence termination was in J.T.’s best interest and that: (1) Lucy endangered the physical
13 and emotional well-being of J.T. and had failed to comply with the family service plan; and
(2) Robert had endangered the physical and emotional well-being of J.T., knowingly
engaged in conduct that resulted in a criminal conviction and imprisonment which
prevented him from caring for J.T. for not less than two years, and failed to comply with the
family service plan. See id. § 161.001(1)(E), (L), (O), (2).
On November 14, 2008, Lucy filed a motion for new trial and statement of points,
alleging that there was insufficient evidence to support the trial court’s grounds for
termination and findings that termination was in the best interest of J.T. See id. §
263.405(b), (i) (Vernon 2008) (providing that a party appealing a final order in a termination
case must file a statement of points within fifteen days of the trial court’s signing of the final
order and that appellate courts may not consider any issue not specifically presented in the
statement of points); see also In re K.C.B., 251 S.W.3d 514, 515 (Tex. 2008) (“As a
prerequisite to appellate review, the Texas Family Code requires a party whose parental
rights have been terminated to timely file with the trial court a statement of points on which
the party intends to appeal.”).
On November 19, 2008, Robert filed his motion for new trial and statement of points
asserting that: (1) his conviction for injury to a child was not a final conviction because it
had been appealed; (2) the evidence established that the injuries sustained by J.T. were
accidental; and (3) he was unable to comply with the family service plan because he was
incarcerated. See TEX . FAM . CODE ANN . § 263.405(b), (i); see also In re K.C.B., 251
S.W.3d at 515. The trial court denied Robert’s motion for new trial and allowed Lucy’s
motion for new trial to be overruled by operation of law. See TEX . R. CIV. P. 329b(c).
Robert also requested findings of fact and conclusions of law. On November 25, 2008, the
trial court issued findings of fact and conclusions of law, in which it made thirty-two findings
14 of fact and seventeen conclusions of law pertaining to both Lucy and Robert. This appeal
ensued.
III. TERMINATION OF PARENTAL RIGHTS
Involuntary termination of parental rights involves fundamental constitutional rights
and divests the parent and child of all legal rights, privileges, duties and powers normally
existing between them, except for the child's right to inherit from the parent. Holick v.
Smith, 685 S.W.2d 18, 20 (Tex. 1985); see In re D.S.P., 210 S.W.3d 776, 778 (Tex.
App.–Corpus Christi 2006, no pet.). Termination must be supported by clear and
convincing evidence. In re J.L., 163 S.W.3d 79, 84 (Tex. 2005); In re D.S.P., 210 S.W.3d
at 778. This intermediate standard falls between the preponderance of the evidence
standard of civil proceedings and the reasonable doubt standard of criminal proceedings.
In re G.M., 596 S.W.2d 846, 847 (Tex. 1980); In re C.S., 208 S.W.3d 77, 83 (Tex.
App.–Fort Worth 2006, pet. denied). It is defined as 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." TEX . FAM . CODE ANN . § 101.007 (Vernon 2008); see
In re C.H., 89 S.W.3d 17, 25 (Tex. 2002).
Before terminating parental rights, the trial court must find that the parent committed
an act prohibited by section 161.001(1) of the Texas Family Code and that termination is
in the best interest of the child. Id. §§ 153.002 (Vernon 2002), 161.001; see In re J.L., 163
S.W.3d at 84; see also Liu v. Dep't of Family & Protective Servs., 273 S.W.3d 785, 790
(Tex. App.–Houston [1st Dist.] 2008, no pet.). When considering whether parental
termination is in the child's best interest, the following non-exhaustive list of factors should
be considered: (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
15 the future; (4) the parenting abilities of the parties seeking custody; (5) the programs
available to assist the parties seeking custody; (6) the plans for the child by the parties
seeking custody; (7) the stability of the home or proposed placement; (8) the acts or
omissions committed by the parent which may indicate that the existing parent-child
relationship is not proper; and (9) any excuse for the acts or omissions committed by the
parent. Holley v. Adams, 544 S.W.2d 367, 372 (Tex. 1976). The party seeking parental
termination is not required to prove all nine factors. See In re C.H., 89 S.W.3d at 27
(providing that these considerations are not exhaustive, "or that all such considerations
must be proved as a condition precedent to parental termination") (emphasis in original);
In re J.R.S., 232 S.W.3d 278, 284 (Tex. App.–Fort Worth 2007, no pet.) ("These factors
are not exhaustive; some listed factors may be inapplicable to some cases; other factors
not on the list may also be considered when appropriate.").
IV. ENDANGERMENT AND SECTION 161.001(1)(E) OF THE FAMILY CODE
Endangerment means to expose to loss or injury, to jeopardize. Tex. Dep’t of
Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987); In re J.T.G., 121 S.W.3d 117,
125 (Tex. App.–Fort Worth 2003, no pet.); see also In re M.C., 917 S.W.2d 268. 269 (Tex.
1996). Under subsection (E), the relevant inquiry is whether evidence exists that the
endangerment of the child’s physical well-being was the direct result of Robert’s conduct,
including acts, omissions, or failures to act. See TEX . FAM . CODE ANN . § 161.001(1)(E); see
also In re S.M.L., 171 S.W.3d 472, 477 (Tex. App.–Houston [14th Dist.] 2005, no pet.) ("[A]
child is endangered when the environment or the parent's course of conduct creates a
potential for danger which the parent is aware of but disregards."); In re J.T.G., 121 S.W.3d
at 125. Additionally, termination under subsection (E) must be based on more than a
single act or omission; a voluntary, deliberate, and conscious course of conduct by the
16 parent is required. In re J.T.G., 121 S.W.3d at 125; see TEX . FAM . CODE ANN . §
161.001(1)(E). However, it is not necessary that the parent’s conduct be directed at the
child or that the child actually suffer injury. Boyd, 727 S.W.2d at 533; In re J.T.G., 121
S.W.3d at 125. The specific danger to the child’s well-being may be inferred from parental
misconduct standing alone. Boyd, 727 S.W.2d at 533; In re R.W., 129 S.W.3d 732, 738
(Tex. App.–Fort Worth 2004, pet. denied). To determine whether termination is necessary,
courts may look to parental conduct occurring both before and after the child’s birth. In re
D.M., 58 S.W.3d 801, 812 (Tex. App.–Fort Worth 2001, no pet.).
Stability and permanence are paramount in the upbringing of children. See In re
T.D.C., 91 S.W.3d 865, 873 (Tex. App.–Fort Worth 2002, pet. denied). A fact finder may
infer from past conduct endangering the well-being of the child that similar conduct will
recur if the child is returned to the parent. See In re D.L.N., 958 S.W.2d 934, 941 (Tex.
App.–Waco 1997, pet. denied), disapproved on other grounds by In re J.F.C., 96 S.W.3d
256 (Tex. 2002) and In re C.H., 89 S.W.3d at 17.
V. STANDARD OF REVIEW
In reviewing the legal sufficiency of the evidence supporting parental termination,
we must "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." In re J.L., 163 S.W.3d at 85. We must assume that the trier of fact
resolved disputed facts in favor of its finding if it was reasonable to do so. Id. We must
also consider undisputed evidence, if any, that does not support the finding. Id. at 86.
In reviewing the evidence for factual sufficiency, we must give due deference to the
fact finder’s findings and not supplant the judgment with our own. In re H.R.M., 209
S.W.3d 105, 108 (Tex. 2006). We must determine whether, on the entire record, a fact
17 finder could reasonably form a firm conviction or belief that the parent violated the relevant
conduct provision of section 161.001(1) and that the termination of the parent-child
relationship would be in the best interest of the child. In re C.H., 89 S.W.3d at 28. If, in
light of the entire record, the disputed evidence that a reasonable fact finder could not have
credited in favor of the finding is so significant that a fact finder could not reasonably have
formed a firm belief or conviction in the truth of its finding, then the evidence is factually
insufficient. In re H.R.M., 209 S.W.3d at 108.
VI. ROBERT ’S ARGUMENTS ON APPEAL
By his third issue on appeal, Robert asserts that the evidence adduced at trial was
insufficient to support the trial court’s termination of his parental rights. Specifically, he
alleges that the injuries sustained by J.T. on May 15, 2007 were accidental and that he did
not engage in conduct that endangered the physical or emotional well-being of J.T. See
TEX . FAM . CODE ANN . § 161.001(E).
A. Endangerment of J.T.’s Physical or Emotional Well-Being
At trial, Robert testified that all of the injuries that J.T. sustained were accidental;
however, Robert’s testimony was belied by: (1) the fact that he changed his story about
the May 15, 2007 incident when he was interviewed by Officer Kroos; and (2) the testimony
of Lucy, Lucy’s mother, and Dr. Kellogg. Dr. Kellogg stated that the injuries that J.T.
sustained were so severe that they could not have been accidentally caused and that J.T.
nearly died as a result of the injuries. Based on her medical training and experience, Dr.
Kellogg opined that J.T. had been physically abused. Lucy and Lucy’s mother recounted
Robert’s past history of family violence, and both stated that they believed that Robert had
intentionally harmed J.T. Besides his own self-serving testimony, the record does not
contain any other evidence supporting Robert’s contention that J.T.’s injuries were caused
18 accidentally.
Furthermore, the testimony at trial establishes that Robert repeatedly engaged in
physical altercations with family members, including the punching, kicking and choking of
Lucy while she was pregnant. See Spangler v. Tex. Dep’t of Protective & Regulatory
Servs., 962 S.W.2d 253, 260 (Tex. App.–Waco 1998, no pet.) (holding that the fact finder
may consider the alleged abuse of another relative in considering whether a parent’s
conduct endangers a child and noting that it is not required that the alleged physical abuse
occur in the presence of the child); In re B.R., 950 S.W.2d 113, 119 (Tex. App.–El Paso
1997, no writ) (same); Lucas v. Dep’t of Protective & Regulatory Servs., 949 S.W.2d 500,
503 (Tex. App.–Waco 1997, writ denied) (holding that a parent’s abuse of a spouse can
suffice to support termination of the abuser’s parental rights); see also In re E.A.G., No. 14-
01-01046-CV, 2002 Tex. App. LEXIS 8104, at *15 (Tex. App.–Houston [14th Dist.] Nov.
14, 2002, no pet.) (mem. op.) (“It is self evident that parents perpetrating violence towards
certain members of the family threaten the emotional development and well-being of any
child.”).
Moreover, Robert admitted that he regularly abused illegal drugs before and after
J.T.’s birth. See In re D.C., 128 S.W.3d 707, 715-16 (Tex. App.–Fort Worth 2004, no pet.)
(holding that a parent’s illegal drug use “supports the conclusion that the children’s
surroundings endangered their physical or emotional well-being”); see also In re A.B., 125
S.W.3d 769, 776 (Tex. App.–Texarkana 2003, pet. denied ) (holding that substance abuse
“lends itself to an unstable home environment”). In his testimony, Robert recognized that
using drugs around a child would be harmful and emphasized that he and Lucy never
abused drugs in the presence of J.T. However, a parent’s actions or failures to act need
not have been specifically directed at the child or have actually injured the child or even
19 constituted a concrete threat of injury to the child in order to support a finding of
endangerment. In re M.J.M.L., 31 S.W.3d 347, 350 (Tex. App.–San Antonio 2000, pet.
denied). Instead, “the statute is satisfied by showing that parental conduct simply
jeopardized the child’s physical or emotional well-being.” Id. at 351.
In reviewing the evidence in the light most favorable to the trial court’s finding, we
conclude that there is legally sufficient evidence to support the trial court’s finding that
Robert engaged in conduct that endangered the physical or emotional well-being of J.T.
constituting a violation of section 161.001(1)(E) of the family code. See TEX . FAM . CODE
ANN . § 161.001(1)(E); see also In re J.L., 163 S.W.3d at 85-86. In addition, we further
conclude that a reasonable fact finder could have formed a firm belief or conviction in the
truth of the trial court’s finding of endangerment; thus, the evidence supporting the trial
court’s finding is factually sufficient to support the trial court’s finding of a section
161.001(1)(E) violation. See In re H.R.M., 209 S.W.3d at 108.
B. Best Interest Grounds
Our inquiry, however, does not end with a finding that Robert violated section
161.001(1)(E) of the family code. We must also determine whether the termination of
Robert’s parental rights was in the best interest of J.T. See TEX . FAM . CODE ANN . §§
153.002, 161.001(2); see also In re J.L., 163 S.W.3d at 84. The evidence adduced at trial
indicated that Robert had an extensive history of: (1) family violence; (2) drug abuse; and
(3) engaging in various criminal offenses. Robert admitted that he had accidentally injured
J.T. on several occasions, resulting in severe head injuries and broken bones. Robert is
currently serving a thirty-year prison term, thus undermining the stability of the home.
Cornett testified that: (1) J.T. is doing well in her current placement; (2) she recommends
that J.T.’s current foster parents adopt her; and (3) J.T. has specialized needs—heart
20 problems requiring additional treatment. Based on the facts presented to the trial court,
we conclude that a trier of fact could have formed a firm belief that termination of Robert’s
parental rights was in J.T.’s best interest. See TEX . FAM . CODE ANN . §§ 153.002, 161.001;
see also Holley, 544 S.W.2d at 372.
Because “[o]nly 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,” In re A.V., 113 S.W.3d 355, 362 (Tex. 2003), we need not address
Robert’s remaining issues on appeal pertaining to sections 161.001(1)(L) and
161.001(1)(O) of the family code. See TEX . R. APP . P. 47.1; Perez v. Tex. Dep’t of
Protective & Regulatory Servs., 148 S.W.3d 427, 434 (Tex. App.–El Paso 2004, no pet.);
In re L.M., 104 S.W.3d 642, 647 (Tex. App.–Houston [1st Dist.] 2003, no pet.); see also
In re C.C., No. 13-07-00541-CV, 2009 Tex. App. LEXIS 2239, at *24 (Tex. App.–Corpus
Christi Apr. 2, 2009, no pet.) (mem. op.). Accordingly, we overrule all of Robert’s issues
on appeal.
VII. LUCY’S ARGUMENTS ON APPEAL
By her first two issues on appeal, Lucy argues that the evidence adduced at trial
was insufficient to support the trial court’s finding that she endangered the physical or
emotional well-being of J.T. See TEX . FAM . CODE ANN . § 161.001(1)(E). Lucy specifically
asserts that: (1) she did not have personal knowledge about how J.T. was injured; (2) she
was very protective of J.T. and looked after J.T.’s physical well-being; (3) she never
observed Robert mishandle J.T. in any way; and (4) the record is unclear as to whether
Robert’s injuring of J.T. was intentional or accidental.
At trial, Lucy testified that she had not abused drugs for about two-and-a-half-years,
21 leading up to and possibly including her pregnancy with J.T. In determining whether
termination is necessary, we may look to Lucy’s conduct both before and after J.T.’s birth.
See In re D.M., 58 S.W.3d at 812. Lucy admitted that she regularly abused drugs prior to
becoming pregnant. Robert testified that he and Lucy regularly smoked marihuana and
“popped pills” after J.T. was born. See Toliver v. Tex. Dep’t of Family & Protective Servs.,
217 S.W.3d 85, 101-02 (Tex. App.–Houston [1st Dist.] 2006, no pet.) (holding that a
parent’s drug abuse endangers the child’s physical and emotional well-being and can
support the termination of the parent’s parental rights); see also In re M.R., 243 S.W.3d
807, 821 (Tex. App.–Fort Worth 2007, no pet.) (stating that evidence of a parent’s unstable
lifestyle can support termination); In re D.C., 128 S.W.3d at 715-16 (concluding that a
parent’s illegal drug use “supports the conclusion that the children’s surroundings
endangered their physical or emotional well-being”); In re A.B., 125 S.W.3d 769, 776 (Tex.
App.–Texarkana 2003, pet. denied) (holding that substance abuse “lends itself to an
unstable home environment”). Robert’s testimony, however, is somewhat undermined by
the fact that all of Lucy’s drug screens taken after J.T. was removed tested negative for
illegal drugs. Though, we do note the trial testimony demonstrated that Lucy’s drug
screens were based on her own self-reporting of drug use and, therefore, the results were
suspect.
In addition, Lucy testified that Robert kicked her, punched her, and choked her at
various points in time while she was pregnant and after J.T. was born. Evidence that a
parent did not remove a child from, or allowed the child to remain in, a home in which there
was violent conduct supports termination under section 161.001(1)(E). See In re H.C., 942
S.W.2d 661, 665 (Tex. App.–San Antonio 1997, no writ); see also In re S.M.L., 171 S.W.3d
at 477; In re L.S., 748 S.W.2d 571, 575 (Tex. App.–Amarillo 1988, no writ) (terminating a
22 mother’s parental rights for allowing children to remain in surroundings in which sexual
abuse was occurring)). In explaining why she stayed with Robert despite the obvious
physical abuse, Lucy blamed herself for agitating Robert and stated that she loved him.
Regardless, Lucy was well aware of Robert’s tendency to abuse drugs and engage in
physical violence. Yet, she chose to continue to allow Robert access to J.T., thus
endangering the physical and emotional well-being of J.T. See In re H.C., 942 S.W.2d at
665; see also In re S.M.L., 171 S.W.3d at 477; In re M.J.M.L., 31 S.W.3d at 351; In re L.S.,
748 S.W.2d at 575.
The testimony adduced at trial also demonstrated that at the time of trial, Lucy had
not found independent housing, and that if Lucy’s rights were not terminated, she planned
to reside at her mother’s home. Lucy, her mother, and Robert all noted that Lucy’s father
occasionally stayed at the house with Lucy and her mother. Lucy’s mother and Robert
both stated that Lucy’s father was physically abusive and had drug and alcohol problems,
which could potentially endanger J.T.’s physical or emotional well-being. See In re
M.J.M.L., 31 S.W.3d at 351; see also In re J.L.W., No. 02-08-00179-CV, 2008 Tex. App.
LEXIS 8710, at **9-10 (Tex. App.–Fort Worth Nov. 20, 2008, no pet.) (mem. op.) (holding
that the evidence was legally and factually sufficient to support the trial court’s finding of
termination when the evidence revealed that returning the child to the mother would risk
the child’s emotional and physical well-being because of the couple’s past history of
domestic abuse and because of the mother’s inability to care for her children).
In reviewing the evidence in the light most favorable to the trial court’s finding, we
conclude that the evidence is legally sufficient to support the trial court’s finding that Lucy
engaged in conduct that endangered the physical or emotional well-being of J.T.
constituting a section 161.001(1)(E) violation. See TEX . FAM . CODE ANN . § 161.001(1)(E);
23 see also In re J.L., 163 S.W.3d at 85-86. We further conclude that a reasonable fact finder
could have formed a firm belief or conviction in the truth of the trial court’s finding of
endangerment; therefore, the evidence supporting the trial court’s finding of a section
161.001(1)(E) violation is factually sufficient. See In re H.R.M., 209 S.W.3d at 108.
The record contains conflicting evidence as to whether Lucy actually partook in
illegal drug usage after J.T. was born. Regardless, Lucy allowed J.T. to be in contact with
Robert, an individual who continuously abused drugs and physically abused Lucy, thus
endangering J.T.’s physical and emotional well-being. Furthermore, Falcon testified that
Lucy was “naive,” “immature,” and not capable of caring for J.T. on her own. In addition,
several caseworkers stated that they did not observe a bond between Lucy and J.T.
Hartley-Harvey noted that she had been working with Lucy for approximately one year and
that Lucy refused to implement many of the parenting techniques she was taught. All of
the caseworkers indicated that Lucy regularly missed or rescheduled visits with J.T., which
suggests that Lucy did not consider these proceedings to be serious in nature. Moreover,
Lucy admitted that she did not protect J.T. in the past, and she believed that she required
her mother’s assistance in caring for J.T. Lucy also admitted at trial that she had not found
stable employment. Lucy’s mother, however, testified on the following day that Lucy was
able to obtain employment at the YMCA in Victoria. No evidence was produced to
corroborate Lucy’s mother’s assertion. Cornett stated that J.T. was doing well in her
current placement and recommended that J.T.’s current foster parents adopt her. Based
on the foregoing, we conclude that a trier of fact could have formed a firm belief that
termination of Lucy’s parental rights was in J.T.’s best interest. See TEX . FAM . CODE ANN .
§§ 153.002, 161.001; see also Holley, 544 S.W.2d at 372.
24 As was the case with Robert, because “[o]nly 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,” In re A.V., 113 S.W.3d at 362, we need not
address Lucy’s remaining issues on appeal pertaining to sections 161.001(1)(L) and
161.001(1)(O) of the family code. See TEX . R. APP. P. 47.1; Perez, 148 S.W.3d at 434; In
re L.M., 104 S.W.3d at 647; see also In re C.C., 2009 Tex. App. LEXIS 2239, at *24.
Accordingly, we overrule all of Lucy’s issues on appeal.
VIII. CONCLUSION
Having overruled all of Lucy’s and Robert’s issues on appeal, we affirm the
termination order signed by the trial court.
________________________ DORI CONTRERAS GARZA, Justice
Memorandum Opinion delivered and filed this the 16th day of July, 2009.