in the Interest of J. T., a Child

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

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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

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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

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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

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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

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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

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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;