Opinion issued December 2, 2024
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-24-00417-CV ——————————— IN THE INTEREST OF R.R. AND R.R., Children
On Appeal from the 505th District Court Fort Bend County, Texas Trial Court Case No. 22-DCV-295409
OPINION
Appellant, C.R. (Mother), challenges the trial court’s termination of her
parental rights to her minor children, R.R. (Rose) and R.R. (Ryan).1 In three issues,
she argues that (1) her procedural due process rights were violated; (2) the trial
court abused its discretion in allowing nondisclosed expert witnesses to testify; and
(3) the evidence was legally and factually insufficient to support termination of her 1 Rose was born October 25, 2007. Ryan was born November 16, 2009. parental rights under the predicate grounds of endangerment pursuant to Texas
Family Code section 161.001(B)(1)(D) and (E).
We conclude that Mother waived her due process complaint, the trial court
did not abuse its discretion in admitting witness testimony, and the evidence was
sufficient to support the endangerment findings. Accordingly, we affirm.
Background
The Department of Family and Protective Services (DFPS) received
numerous referrals alleging that Mother was emotionally or physically abusing
Rose and Ryan, dating back to 2018. Several of the referrals were “ruled out” or
closed after the intake appointment. In the months leading up to the children’s
removal from Mother’s care, on May 23, 2022, DFPS received a referral alleging
emotional and physical abuse of both children. On June 9, 2022, DFPS received
additional referrals alleging physical abuse, emotional abuse, and medical neglect
of the children by Mother. In addition to reports that Mother had “punched,
slapped, and choked” the children, Ryan reported that “he did not want to live with
his mother and if he had to return to her care that he would kill himself.”
According to DFPS records, this prompted Ryan’s admission to a mental health
hospital, but Mother “left with him against medical advice.”
On July 8, 2022, DFPS received another referral alleging abuse. The report
detailed an incident that had occurred when police were called to the laundromat
2 where Mother, Rose, and Ryan were doing laundry. The report alleged that Mother
had “kicked [Rose] once in the stomach and once in the face,” resulting in bleeding
to Rose’s face and lip. The report also alleged that Mother struck Ryan and that she
“makes the children sleep on the floor at the motel.” A subsequent referral alleged
further details of physical abuse, emotional abuse, and neglect.
DFPS investigated these various referrals and ultimately filed its original
petition for protection of the children and termination of Mother’s parental rights
on July 26, 2022.2 DFPS created a family plan of service requiring, among other
things, that Mother obtain a psychological evaluation and that she maintain stable
housing and employment. Mother met with Dr. T. Maxwell to obtain the
psychological evaluation, and Dr. Maxwell provided a report that was filed with
the trial court on December 29, 2022. Dr. S. Profilet provided parent-coaching
services as part of DFPS’s reunification efforts and met with Mother and the
children on several occasions. She filed a report with the trial court on December
16, 2022, and corresponded with the children’s court-appointed special advocate
(CASA) ad litem. DFPS determined that reunification was not in the children’s
best interests and proceeded with the termination of Mother’s parental rights.
2 DFPS also sought to terminate the parental rights of the children’s father. The trial court ultimately ordered termination of his rights, but he is not a party to this appeal. 3 The bench trial on DFPS’s petition to terminate Mother’s parental rights
began on January 9, 2024, and was continued on March 8 and April 26, 2024. At
the time of trial, Rose was sixteen and Ryan was fourteen. Rose testified regarding
numerous incidents in which Mother abused her or Ryan or engaged in
inappropriate sexual behavior. Rose testified about a time that Mother dragged her
by her hair and punched her. Rose testified about another occasion on which
Mother found Rose watching pornography and responded by “whoop[ing]” her and
forcing her to undress. Rose testified that Mother “got a pen and stuck it inside of
[her],” asking, “[D]o you want this to happen to you[?]”
Rose testified about at least one occasion when Mother used inappropriate
sexual language that made Rose and Ryan uncomfortable. Rose testified that she
was sexually abused by her cousins, but Mother did not believe her. She also
testified that, when she was thirteen, she and Ryan tried to run away, resulting in
Mother beating her, punching her, and spitting on her.
Rose also testified regarding her memories of previous investigations by
DFPS. She described an incident in which Mother punched her while on a call with
a DFPS caseworker. Rose testified that Mother coached her and Ryan about what
to say to caseworkers. Rose further testified that Mother did not teach her basic
things about caring for herself, like proper hygiene or haircare. She learned how to
care for herself by using the internet.
4 Ryan likewise testified about incidents of abuse and other inappropriate
conduct by Mother. He testified that Mother struck him repeatedly with a candy-
cane-shaped yard ornament on one occasion and with a belt on another occasion.
Ryan testified that he is gay, which caused Mother to threaten him and use slurs
against him. He stated that Mother told him that she would rather kill him than let
him grow up to be gay, and he believed her threats. Ryan testified that he and Rose
ultimately ran away to live with their father because of the way Mother abused
them.
Rose testified that, when she and Ryan returned from their father’s, Mother
forced them to remove their clothing. Mother told them that “voices” were telling
her to touch them inappropriately. Both Rose and Ryan testified that Mother
looked at their naked bodies and touched them, including touching their genitals.
Rose also testified regarding the events that led to her and Ryan being taken
into DFPS custody. She testified that the family was staying in a hotel, and Mother
asked about the time Rose and Ryan spent with their father. Mother became upset,
pulled Rose out of the bed, and “whoop[ed]” her. Mother kicked Rose after
throwing her to the ground, and then punched and choked her. Rose testified that
this resulted in injury to her cheek and lip. Rose reported this to the owner of the
laundromat where they did their laundry, and he called the police. Ryan testified
that Mother also struck him, but not as hard as Mother struck Rose.
5 Mother was charged with two counts of injury to a child related to the
incident described by Rose, and she remained in jail during DFPS’s initial
investigation into those allegations. Ryan had to be hospitalized for mental health
issues, and the children’s father and other relatives refused to have the children
placed with them because of their behavior and Mother’s mental health.
Rose and Ryan were placed in separate foster homes at the time of trial.
Rose testified that she was “doing great” in her foster home, her foster mother told
her she could stay as long as she needed, and she felt safe there. She was
participating in sports at school and making good grades and was making plans to
attend college in the future. Rose testified that she wanted to stay in her current
placement. Ryan also testified that he wished to remain in his foster placement,
where he felt safe. Both children testified that they wanted Mother’s parental rights
terminated because she was abusive and they felt unsafe with her.
Dr. Maxwell was called to testify regarding Mother’s psychological
assessment on the first day of trial in January 2024. Mother objected to DFPS’s
intention to present expert witness testimony from Dr. Maxwell and other
witnesses on the ground that DFPS had failed to designate its experts in a timely
manner. DFPS responded that Mother did not file a request for disclosure as
required by Texas Rules of Civil Procedure 194a and 195a, and thus, it was not
required to provide her with witness lists or expert designations. DFPS further
6 argued that Mother could not establish surprise or prejudice because she had
already met with Dr. Maxwell and Dr. Maxwell’s report was provided to the trial
court in December 2022. The trial court overruled Mother’s objections. Dr.
Maxwell went on to testify briefly the first day of trial. The bulk of her testimony,
including Mother’s cross-examination, occurred on the next trial day, March 8,
2024.
Dr. Maxwell testified that she evaluated Mother and diagnosed her with
Antisocial Personality Disorder (APD), and Mother also met the diagnostic criteria
for a general “unspecified psychosis” not due to a substance or known
physiological condition. Dr. Maxwell testified about the nature of APD generally:
It is a mental health disorder that is a personality style. It’s not like a mood disorder or a childhood disorder, it’s a personality that normally individuals won’t really get a diagnosis for until they are 18 years or older. And so, as a result it’s how the individual tends to process the world, interact within the world, and with others. And people with antisocial personality disorder, they tend to antagonize, manipulate, or treat others harshly or with callous indifferences and usually show no guilt or remorse for their behavior. Individuals with antisocial personality disorder often violate the law, becoming criminals. They may lie, behave violently or impulsively, and have problems with drugs or alcohol use. Because of these characteristics, people with this disorder typically cannot fulfill responsibilities related to family, work, or school.
Dr. Maxwell testified that Mother demonstrated traits such as hostility, significant
irritability and agitation, and aggression.
7 Dr. Maxwell testified about the impact someone with APD could have on
their children and the following exchange occurred:
[Maxwell]: A parent with this personality disorder will have a negative effect on their children and their children’s overall personality, self-esteem, and self-awareness, not only with their peers, but with relationships with other adults, et cetera.
[DFPS]: And—
[Mother]: You want me to leave? Because I’ll leave.
THE COURT: Let’s stop for a second.
[Mother’s attorney]: Can I take a break?
(Bailiff interacting with mom)
THE COURT: Briefly. Do you need a moment, [Mother]?
[Mother]: I mean, yeah. This—this carrying on like this, and I know I didn’t do nothing, it’s frustrating to keep hearing me being—
THE COURT: This is how the adversarial system works.
[Mother]: Yeah. So I’m going to take a break.
THE COURT: Very good. It’s 11:18. Heidy, it’s 11:18. Five minutes.
After the break, the trial proceeded while mother waited in the cafeteria.
Dr. Maxwell testified that children of parents with APD would feel “afraid
and scared,” and “would live their life or lives in constant terror and they would
also tend to project how they feel about other adults and just be fearful.” Following
her evaluation of Mother, Dr. Maxwell had concerns about the children’s mental
health and recommended that they also be evaluated. She further recommended
8 that visitations not continue until the children could be evaluated and that any
visitation should be supervised “for the wellbeing of [Mother] as well as the
children.” Dr. Maxwell was concerned about the way Mother disciplined her
children. Dr. Maxwell testified that Mother did not interact appropriately during
the evaluation, telling Maxwell, “[D]on’t get close to me like that” or asking,
“Why you looking at me like that?” Dr. Maxwell stated that she had to
“deescalate” the situation. Dr. Maxwell further recommended that Mother see her
physician to obtain “psychotropic medication” and that she complete parenting
classes due to her “lack of awareness that something must have been wrong for
Child Protective Services to have her family in this unfortunate situation.”
Dr. Profilet served as a parent coach to Mother and the children. Mother
again objected that DFPS had not made the expert disclosures required by the
rules, and the trial court overruled her objections. Dr. Profilet testified that
Mother’s interactions with the children were impersonal. She did not express love
for them, and she did not want to talk with them. Dr. Profilet gave the example
that, during one of their sessions, Ryan stated that it was his birthday, but Mother
did not say anything or wish him a happy birthday. At another session, Mother
brought Ryan a birthday gift, but she also demonstrated a negative attitude toward
him and acted aggressively. Mother told Dr. Profilet that she was not interested in
learning anything about parenting. Dr. Profilet testified that Mother did not
9 demonstrate good parenting skills, and during one session, Dr. Profilet became
concerned that Mother might harm the children or the caseworker.
The reports completed by both Dr. Maxwell and Dr. Profilet were admitted
into evidence during the trial. DFPS also presented evidence of Mother’s criminal
history that included multiple convictions or arrests dating from 2021 back to 1998
for offenses like aggravated assault with a deadly weapon and assault causing
bodily injury. DFPS also presented evidence of the two injury-to-a-child offenses
that resulted in the children coming into DFPS care and were pending at the time
of trial.
The DFPS caseworker, K. Turnipseed testified regarding Mother’s family
plan of service, created by DFPS to address the concerns that resulted in the
children coming into DFPS custody. The requirements included maintaining stable
housing and employment, submitting to drug testing, taking parenting classes, and
fully cooperating in identifying and addressing her mental health issues.
Turnipseed testified that Mother did not follow all of the recommendations
regarding treating her mental health issues, nor did she complete or engage
appropriately in a parenting class. Turnipseed believed that Mother completed
some of the services without engaging appropriately in them.
Turnipseed testified that Mother did not help DFPS identify any potential
relative placements for the children. Mother admitted that she told her relatives that
10 the children had made false accusations against her, and so the relatives were not
willing to serve as temporary caregivers. Turnipseed testified that the children
were placed in separate foster placements and that they could remain in those
placements until they aged out of DFPS’s care.
The children’s CASA, T. Sledge, testified that Mother refused to talk to her.
Sledge testified that the children were agitated and fearful after spending time with
their Mother. She also believed that Mother was unstable and incapable of meeting
the children’s emotional needs or providing them with physical safety. Sledge
agreed with DFPS and the children that Mother’s parental rights should be
terminated.
Mother also testified. She denied having any mental health issues and denied
ever telling the children she heard voices telling her to touch them. She denied the
allegations that she abused the children. For example, Mother denied using any
slurs or threats against the children, but she admitted to disciplining them. She
admitted that she caught Rose watching pornography and was concerned, but she
denied putting a pen in Rose’s vagina.
Mother testified that she believed she completed all of her services. She did
not think there was anything she could do to improve her parenting skills, and she
believed that she completed therapy successfully because she learned conflict
resolution and coping techniques. Mother acknowledged that she had only visited
11 the children once or twice while the case was pending and that she refused some of
the parent-child visits while this case was pending because she wanted “to wait
until the truth is told.” On the occasions that she did visit Rose, Rose testified that
Mother brought her things like clothes and cosmetics, but Mother also threatened
to “whoop” her, leaving Rose to believe that Mother would beat her when Mother
regained custody. Ryan testified that Mother brought him clothes and other gifts
that she tried to take back after a disagreement. This resulted in an altercation with
Mother chasing him to get the clothes, and security being called. Mother admitted
that the police were called during this visit in November 2022.
Trial court terminated Mother’s parental rights under Family Code
subsections 161.001(b)(1)(D) and (E) and found that termination was in the
children’s best interest. This appeal followed.3
3 In a footnote in its appellate brief, DFPS points out that Mother’s notice of appeal was untimely. The trial court’s order was signed on May 8, 2024, and Mother’s notice of appeal was filed on June 4, 2024. Thus, the notice of appeal was not filed within twenty days after the judgment was signed, but it was filed within 15 days after the deadline. See TEX. R. APP. P. 26.1(b) (requiring notice of appeal in accelerated case to be filed within twenty days after the judgment is signed), R. 26.3 (providing that court may extend time to file notice of appeal if, within 15 days after deadline for filing, appealing party files its notice of appeal and accompanying motion). Because the notice of appeal here was filed within 15 days of the deadline for filing, we treat the notice of appeal as an implied motion for extension of time and exercise jurisdiction over this appeal. See Verburgt v. Dorner, 959 S.W.2d 615, 616–17 (Tex. 1997). 12 Notice of Witnesses
In her first issue, Mother contends that her due process rights were violated,
pointing to her objections at trial that DFPS failed to make a timely exchange of
exhibits and witness lists and failed to make a timely designation of its expert
witnesses. On appeal, Mother argues that this violated her due process rights, but
she did not raise this complaint in the trial court. See TEX. R. APP. P. 33.1(a)(1); see
also In re B.L.D., 113 S.W.3d 340, 349–50 (Tex. 2003) (discussing “[i]mportant
prudential concerns” behind rules on preservation of error generally in context of
termination cases). “Due process violations must be raised in the trial court for
them to be preserved on appeal.” In re F.E.N., 542 S.W.3d 752, 768 (Tex. App.—
Houston [14th Dist.] 2018), pet. denied, 579 S.W.3d 74 (Tex. 2019); Dreyer v.
Greene, 871 S.W.2d 697, 698 (Tex. 1993) (holding that failure to raise due process
and equal protection complaint in trial court waived that complaint on appeal and
stating, “As a general rule, a claim, including a constitutional claim, must have
been asserted in the trial court in order to be raised on appeal.”).
Objections at trial must comport with the issue raised on appeal, and an
objection regarding the admissibility of evidence does not preserve a complaint
that the litigant’s due-process rights were violated. See In re L.M.I., 119 S.W.3d
707, 711 (Tex. 2003) (addressing preservation of due process challenge and stating
that it must be apparent from context that appellant was attempting to raise due
13 process challenge); Benson v. Chalk, 536 S.W.3d 886, 895 (Tex. App.—Houston
[1st Dist.] 2017, pet. denied) (holding that party’s complaint on appeal must
comport with objection made in trial court).
Mother did not raise her due process complaint in the trial court, nor did she
make any argument that would have made it apparent to the trial court that she was
attempting to raise a due process challenge.
We overrule Mother’s first issue.
In her second issue, Mother argues that the trial court abused its discretion in
allowing nondisclosed expert witnesses to testify.
A. Standard of Review
We review the trial court’s decision to admit evidence for an abuse of
discretion. In re J.P.B., 180 S.W.3d 570, 575 (Tex. 2005). A trial court abuses its
discretion when it acts without regard for any guiding rules or principles. Low v.
Henry, 221 S.W.3d 609, 614 (Tex. 2017). And, even if we conclude that the trial
court erred in admitting the complained-of evidence, we may not reverse the trial
court’s order unless we conclude the evidentiary error probably caused the
rendition of an improper judgment or probably prevented the appellant from
properly presenting the case to the court of appeals. See TEX. R. APP. P. 44.1(a); In
re E.A.K., 192 S.W.3d 133, 148 (Tex. App.—Houston [14th Dist.] 2006, pet.
denied).
14 B. Analysis
At trial, Mother objected to the expert testimony of Dr. Maxwell and Dr.
Profilet, asserting that DFPS did not comply with the requirements of Texas Rule
of Civil Procedure 195. DFPS points out that Mother made no requests for
disclosure, as required by Rules 194a and 195a, and, thus it was not obligated to
provide a witness list or to designate expert witnesses in the absence of any request
that it do so.
Mother cited Rule 195 both in the trial court and on appeal. However, Rule
195 governs “discovery regarding testifying expert witnesses in suits not governed
by the Family Code.” TEX. R. CIV. P. 195 (emphasis added). The Texas Legislature
enacted Family Code chapter 301, creating discovery procedures for actions under
the Family Code and excepting such suits from the then-existing general discovery
rules set out in the Texas Rules of Civil Procedure. See TEX. FAM. CODE § 301.001
(providing chapter 301 applies to civil action brought under Family Code); id.
§ 301.002 (providing that chapter 301 “may not be modified or repealed by a rule
adopted by the supreme court”); see generally id. §§ 301.001–.108 (providing
discovery procedures for suits under Family Code, including provisions requiring
request for disclosure and procedures governing discovery regarding testifying
expert witnesses).
15 Rules of Civil Procedure 194a and 195a were adopted in order to implement
and codify the provisions of Family Code chapter 301. See TEX. R. CIV. P. 194,
cmt. 2023; id. R. 194a, cmt. 2023; id. R. 195, cmt. 2023; id. R. 195a, cmt. 2023.
Rules 194a and 195a thus apply to requests for disclosures and discovery regarding
testifying expert witnesses in suits governed by the Family Code. Id. R. 194a,
195a.
Rule 194a.1 provides:
No later than 30 days before the end of any applicable discovery period, a party may obtain disclosure from another party of the information or material described in Rule 194a.2 by serving the other party the following request: “Under Rule 194a, you are requested to disclose, within 30 days of service of this request, the information or material described in Rule [state rule, e.g., 194a.2, or 194a.2(a), (c), and (f), or 194a.2(d)-(g)].”
TEX. R. CIV. P. 194a.1. Rule 194a.2 provides the specific content subject to the
disclosure set out in Rule 194a.1, including information about testifying experts.
See TEX. R. CIV. P. 194a.2(f) (providing that party may request disclosure of
information about testifying experts, including names, subject matter of testimony,
and resume and biography).
Rule 195a.1 limits permissible methods for obtaining discovery regarding
testifying experts in suits governed by the Family Code:
A party may request another party to designate and disclose information concerning testifying expert witnesses only through:
(a) a disclosure request served under Rule 194a.1; or
16 (b) a deposition or report permitted by this rule.
TEX. R. CIV. P. 195a.1.
It is undisputed that Mother failed to make a disclosure request as required
by Rule 194a.1, nor does she point to any deposition or report sufficient to satisfy
the requirements of Rule 195a.1. Thus, we conclude that the trial court did not
abuse its discretion in overruling Mother’s objections to DFPS’s purported failure
to disclose the identities of its expert witnesses. See id.; see also In re J.P.B., 180
S.W.3d at 575 (reviewing trial court’s decision to admit or exclude evidence at
termination trial for abuse of discretion); Low, 221 S.W.3d at 614 (holding that
trial court abuses its discretion when it acts without regard for any guiding rules or
principles).
We further conclude that Mother cannot show that the evidentiary ruling
here probably caused rendition of an improper judgment. See TEX. R. APP. P.
44.1(a)(1). DFPS pointed out that both Dr. Profilet and Dr. Maxwell provided
services to Mother in connection with her DFPS service plan, so they were known
to Mother prior to the start of trial. Dr. Profilet’s and Dr. Maxwell’s expert reports
were filed with trial court and provided to all parties in December 2022, more than
a year before trial commenced on January 9, 2024. Finally, the anticipated expert
witnesses were identified, at the latest, when the final trial started on January 9,
2024. On that first day of trial, Dr. Maxwell provided some testimony, but the trial
17 was continued until nearly two months later, on March 8, 2024. Thus, Mother had
nearly two months to prepare before conducting her cross examination of Dr.
Maxwell and the other experts and before she was required to present her own
defense as the trial continued on March 8 and April 26, 2024. Mother has not
identified, either at trial or on appeal, any way that she was prejudiced by the trial
court’s ruling here, and the record demonstrates that she participated extensively at
trial, including by vigorously cross-examining DFPS’s witnesses.
We overrule Mother’s second issue.
Sufficiency of the Evidence
In her third issue, Mother contends that the evidence was legally and
factually insufficient to support the trial court’s endangerment findings.
To terminate parental rights pursuant to Family Code section 161.001, DFPS
has the burden to prove by clear and convincing evidence: (1) one of the predicate
grounds in subsection 161.001(b)(1) and (2) that termination is in the best interest
of the child. TEX. FAM. CODE § 161.001(b). Here, Mother does not challenge the
sufficiency of the evidence to support that trial court’s finding that termination is in
the children’s best interest, only the predicate endangerment findings. Clear and
convincing evidence requires “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
18 established.” Id. § 101.007. The standard for reviewing legal and factual
sufficiency of the evidence to support these findings reflect the elevated burden of
proof. See In re A.C., 560 S.W.3d 624, 630 (Tex. 2018).
“In conducting a legal-sufficiency review, the reviewing court cannot ignore
undisputed evidence contrary to the finding, but must otherwise assume the
factfinder resolved disputed facts in favor of the finding.” Id. at 630–31. “Evidence
is legally sufficient if, viewing all the evidence in the light most favorable to the
fact-finding and considering undisputed contrary evidence, a reasonable factfinder
could form a firm belief or conviction that the finding was true.” Id. at 631.
Reviewing the factual sufficiency of evidence “requires weighing disputed
evidence contrary to the finding against all the evidence favoring the finding,” and
so we “must consider whether disputed evidence is such that a reasonable
factfinder could not have resolved it in favor of the finding.” Id. “Evidence is
factually insufficient if, in light of the entire record, the disputed evidence a
reasonable factfinder could not have credited in favor of a finding is so significant
that the factfinder could not have formed a firm belief or conviction that the
finding was true.” Id. We give due deference to the fact finder’s findings, and we
cannot substitute our own judgment for that of the fact finder. In re H.R.M., 209
S.W.3d 105, 108 (Tex. 2006); see In re J.O.A., 283 S.W.3d 336, 346 (Tex. 2009)
(holding that factfinder is sole judge of witnesses’ credibility and demeanor).
19 “To affirm a termination judgment on appeal, a court need uphold only one
termination ground—in addition to upholding a challenged best interest finding—
even if the trial court based the termination on more than one ground.” In re N.G.,
577 S.W.3d 230, 232 (Tex. 2019) (citing TEX. FAM. CODE § 161.001(b)).
Nevertheless, “due process and due course of law requirements mandate that an
appellate court detail its analysis for an appeal of termination of parental rights
under section 161.001(b)(1)(D) or (E) of the Family Code” when the trial court’s
order of termination contains findings on those grounds. Id. at 237.
B. Law on Endangerment
Subsection 161.001(b)(1)(D) allows a trial court to terminate a parent’s
rights if the court finds by clear and convincing evidence 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). Subsection (E) allows a trial court to
terminate a parent’s rights if the court finds by clear and convincing evidence 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).
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 M.C., 917 S.W.2d
20 268, 269 (Tex. 1996) (per curiam) (holding that “endanger” means to expose child
to loss or injury or to jeopardize child’s emotional or physical health); In re S.R.,
452 S.W.3d 351, 360 (Tex. App.—Houston [14th Dist.] 2014, pet. denied). A
finding of endangerment requires more than the threat of metaphysical injury or
possible ill effects from a less-than-ideal family environment, but DFPS does not
have to prove that the conduct was directed at the child or that the child suffered an
actual injury. In re E.N.C., 384 S.W.3d 796, 803 (Tex. 2012).
While both subsections (D) and (E) focus on endangerment, they differ
regarding the source and proof of endangerment. In re J.I.G., No. 01-18-00023-
CV, 2018 WL 3233874, at *8 (Tex. App.—Houston [1st Dist.] July 3, 2018, no
pet.) (mem. op.) (citing In re A.S., 261 S.W.3d 76, 83 (Tex. App.—Houston [14th
Dist.] 2008, pet. denied)). Subsection (D) “focuses on the child’s environment and
may be utilized as a ground for termination when the parent has ‘knowingly placed
or knowingly allowed the child to remain in conditions or surroundings which
endanger the physical or emotional well-being of the child.’” In re J.W., 645
S.W.3d 726, 749 (Tex. 2022) (quoting TEX. FAM. CODE § 161.001(b)(1)(D)); see
In re J.T.G., 121 S.W.3d 117, 125 (Tex. App.—Fort Worth 2003, no pet.) (holding,
in context of subsection (D)’s focus on child’s living environment, that parental
conduct is relevant to child’s environment). The child’s “environment”
encompasses the suitability of the child’s living conditions and the conduct of
21 parents or others in the home. In re S.R., 452 S.W.3d at 360. Inappropriate,
abusive, or unlawful conduct by a parent or other persons who live in the
children’s home can create an environment that endangers the physical and
emotional well-being of children as required for termination under subsection (D).
In re E.J., No. 14-23-00387-CV, 2023 WL 8043686, at *9 (Tex. App.—Houston
[14th Dist.] Nov. 21, 2023, no pet.) (mem. op.) (citing In re M.R.J.M., 280 S.W.3d
494, 502 (Tex. App.—Fort Worth 2009, no pet.)). “As a general rule, conduct that
subjects a child to a life of uncertainty and instability endangers the physical and
emotional well-being of a child.” In re R.W., 129 S.W.3d 732, 739 (Tex. App.—
Fort Worth 2004, pet. denied). A single act or omission may support termination
under subsection (D). In re E.J., 2023 WL 8043686, at *9 (citing Jordan v. Dossey,
325 S.W.3d 700, 721 (Tex. App.—Houston [1st Dist.] 2010, pet. denied)).
Subsection (E) requires evidence that the endangerment was the result of the
parent’s conduct, including acts, omissions, or failures to act. In re S.R., 452
S.W.3d at 360; In re J.I.G., 2018 WL 3233874, at *8; In re J.T.G., 121 S.W.3d at
125. Termination under subsection (E) must be based on more than a single act or
omission; the statute requires a voluntary, deliberate, and conscious course of
conduct by the parent. In re S.R., 452 S.W.3d at 360. “While endangerment often
involves physical endangerment, the statute does not require that conduct be
directed at a child or that the child actually suffers injury; rather, the specific
22 danger to the child’s well-being may be inferred from parents’ misconduct alone.”
Id. at 360 (citing Boyd, 727 S.W.2d at 533).
“Because subsections D and E both concern endangerment and the evidence
on each may overlap in some respects, we address both of these predicate findings
together.” In re S.R., 452 S.W.3d at 359–60.
C. Analysis
Both Rose and Ryan testified that Mother repeatedly abused them. “Direct
physical abuse is clearly conduct that endangers a child.” In re G.P., 01-16-00346-
CV, 2016 WL 6216192, at *11 (Tex. App.—Houston [1st Dist.] Oct. 25, 2016, no
pet.) (mem. op.); In re L.E.M., No. 02-11-00505-CV, 2012 WL 4936607, at *14
(Tex. App.—Fort Worth Oct. 18, 2012, no pet.) (mem. op.) (holding that children’s
statements of physical abuse by parents was sufficient to support endangerment
finding); see also In re R.S.-T., 522 S.W.3d 92, 110 (Tex. App.—San Antonio
2017, no pet.) (“Domestic violence, want of self-control, and propensity for
violence may be considered as evidence of endangerment.”). In addition to the
children’s testimony regarding Mother’s physical abuse, both children also
testified that they felt unsafe with Mother. Rose testified that Mother made
inappropriate sexual remarks to her, and Ryan testified that Mother used slurs and
derogatory language toward him.
23 The DFPS caseworker, Turnipseed, testified that Mother refused some
visitations, expressing that she wanted “to wait until the truth is told” before seeing
the children, and Mother herself acknowledged that she only visited the children a
few times. In one of the visitations that Mother did attend, she had an altercation
with Ryan that resulted in security being called. Dr. Profilet observed negative
interactions between Mother and the children. Despite Dr. Maxwell’s diagnosis
that she has APD, Mother also denied that she had any need to address her mental
health issues or improve her parenting. See In re S.R., 425 S.W.3d at 363
(untreated mental illness are factors court can consider in determining whether
parent endangered children); In re C.W.M.P., No. 14-20-00571-CV, 2021 WL
244865, *7 (Tex. App.—Houston [14th Dist.] Jan. 26, 2021, pet. denied) (mem.
op.) (holding that missed visitations and failure to complete court-ordered service
plan may constitute evidence supporting endangerment finding because such
conduct subjects children to instability and uncertainty, which endangers them).
Finally, DFPS presented evidence of Mother’s extensive criminal history,
including the pending charges for injury to a child she allegedly committed against
the children. A parent’s criminal conduct that exposes her to the possibility of
incarceration can negatively impact a child’s living environment and emotional
well-being. In re A.A.H., No. 01-19-00612-CV, 2020 WL 1056941, at *10 (Tex.
App.—Houston [1st Dist.] Mar. 5, 2020, pet. denied) (mem. op.).
24 Thus, we conclude that DFPS presented clear and convincing evidence that
Mother “knowingly placed or knowingly allowed the child[ren] to remain in
conditions or surroundings” and “engaged in conduct or knowingly placed the
child[ren] with persons who engaged in conduct which endangers the physical or
emotional well-being of the child[ren].” See TEX. FAM. CODE § 161.001(b)(1)(D),
(E); In re A.C., 560 S.W.3d at 630–31 (setting out standard for legal sufficiency
review).
Mother argues that evidence of her mental health issues, standing alone, was
insufficient to support the trial court’s endangerment findings. She argues that
“[b]iases, assumptions, and stereotypes distorted the portrayal of [Mother’s]
‘mental health issues,’ creating a gross injustice resulting in unfair treatment.”
While mental illness alone is not grounds for terminating the parent-child
relationship, untreated mental illness can expose a child to endangerment and is a
factor courts may consider. In re S.R., 452 S.W.3d at 363. Here, the trial court
considered evidence of endangerment that went beyond evidence of Mother’s
mental illness. The evidence of Mother’s criminal history and the testimony of
both children regarding Mother’s abusive treatment provided support for the trial
court’s finding that Mother endangered the children. See id.
Mother further contends that she completed the services assigned to her in
the family plan of service and that she did not abuse the children or engage in a
25 pattern of domestic violence, asserting that the “children recanted and lied about
abuse and neglect throughout the case.” Mother also argues that she “was the only
person who testified at trial that was actually present on the day of the removal”
and that “the officer who believed the allegations that Mother ha[d] abused her
children and subsequently arrested her” did not testify.
The trial court, however, was permitted to consider the testimony of the
children themselves and weigh that against Mother’s testimony. These issues
implicate the weight and credibility of the children’s testimony of abuse and
Mother’s credibility in denying the allegations. We defer to the trial court as the
factfinder to resolve these issues. See In re A.B., 437 S.W.3d 498, 503 (Tex. 2014)
(holding that factfinder had “full opportunity to observe witness testimony first-
hand” and was “the sole arbiter when assessing credibility and demeanor of
witnesses”); In re H.R.M., 209 S.W.3d at 108 (holding that reviewing court must
give due deference to fact finder’s findings and cannot substitute its own judgment
for that of fact finder); see also In re A.C., 560 S.W.3d at 361 (holding that in
factual-sufficiency review, appellate courts weigh “disputed evidence contrary to
the finding against all the evidence favoring the finding,” and “must consider
whether disputed evidence is such that a reasonable factfinder could not have
resolved it in favor of the finding”).
26 Considering the entire record, we conclude that the disputed evidence that
the trial court could not have credited in favor of the finding is not so significant
that the trial court could not have formed a firm belief or conviction that its
findings pursuant to subsections (D) and (E) were true. See In re A.C., 560 S.W.3d
at 361.
We overrule Mother’s third issue.
Conclusion
We affirm the trial court’s final order terminating Mother’s parental rights to
both children.
Richard Hightower Justice
Panel consists of Justices Kelly, Hightower, and Guerra.