W. W. v. Texas Department of Family and Protective Services

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-14-00590-CV

W. W., Appellant

v.

Texas Department of Family and Protective Services, Appellee

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 353RD JUDICIAL DISTRICT
NO. D-1-FM-13-001416, HONORABLE DARLENE BYRNE, JUDGE PRESIDING

MEMORANDUM OPINION

W.W. appeals from the trial court’s temporary conservatorship order, which modified

a final divorce decree that had named her the sole managing conservator of her two children, C.W.

and L.W., and instead named her temporary possessory conservator.1 After W.W.’s son C.W. made

an outcry that his stepfather had punched him in the face, the Texas Department of Family and

Protective Services removed the children from W.W.’s home on an emergency basis and placed the

children in foster care. When the trial court heard the Department’s ex parte application for

temporary orders (the “initial hearing”), instead of naming the Department temporary managing

conservator as the Department had requested, the court ordered the children placed with their

biological father, Z.W. (the “show-cause order”). At the later full adversary hearing, the trial court

1
We use initials to refer to appellant, her children, and their biological father. See Tex. Fam.
Code § 109.002(d).
modified the divorce decree and named Z.W. temporary sole managing conservator of the children

and W.W. temporary possessory conservator of the children. See generally Tex. Fam. Code

§§ 156.001-.409 (governing modification of prior orders concerning conservatorship, support, or

possession of and access to child); see also id. § 262.205 (governing suit by governmental entity for

possession of child not in entity’s possession).

In six issues on appeal, W.W. challenges the temporary decree of conservatorship on

both evidence-sufficiency grounds and various procedural complaints. Having reviewed the record

and concluded that W.W. has failed to demonstrate any reversible error, we will affirm.

BACKGROUND

This case arises in the context of an emergency removal by the Department of W.W.’s

children from their home without a court order. See id. § 262.104. The Department removed the

children from their home the day before it filed suit for their possession. See id. § 262.105. Under

these circumstances, the trial court in which suit has been filed is required to hold an initial hearing

on or before the first working day after the date the children have been taken into possession or the

first working day that the court is available and to render orders that are necessary to protect the

physical health and safety of the children. See id. § 262.106. After these temporary orders have been

issued, “unless the child has already been returned to the parent, managing conservator, possessory

conservator . . . or custodian entitled to possession,” the trial court must have a full adversary

hearing to determine whether the Department has presented sufficient evidence to justify keeping

the children in the Department’s temporary custody pending full litigation of the question of

permanent custody. Id. § 262.201 (emphasis added). In this case, the trial court had returned the

2
children to Z.W.’s possession after the initial hearing, so it determined that the adversary hearing was

governed by the requirements found in Section 262.205, which governs hearings when the children

are not in possession of the Department, and Section 153.002, which provides that the best interest

of the child shall always be the primary consideration of the court when determining issues of

conservatorship and possession.

W.W. and Z.W. had two children together, a son, C.W., and a daughter, L.W.2 After

they divorced, W.W. began living with K.S., and Z.W. remarried. When the Department removed

the children from W.W.’s home in connection with this case, C.W. was seven years old and L.W.

was five years old.

In April 2014, C.W. was at his father’s house for his visitation period when he made

an outcry to his stepmother (Z.W.’s wife) that K.S. had punched him in the face. At the time of

C.W.’s outcry, K.S. was on a four-year deferred-adjudication felony probation for felony injury to

a child based on his having previously choked, punched, and bit C.W., leaving visible bruises and

bite marks in January 2013. The Department had sought to terminate W.W.’s parental rights after

this abuse of C.W. by K.S., but it had dismissed the case after W.W. completed court-ordered

services (the “first CPS case”). At the close of that case, W.W. was not ordered, but was strongly

advised by the Department, not to allow the children to have unsupervised contact with K.S.

On the same day that C.W. made his outcry, C.W.’s stepmother reported it to the

Department, which began investigating. During an interview with a police detective and the

2
The facts recited herein are taken from the testimony and exhibits presented at the full
adversary hearing.

3
Department’s investigator, C.W. repeated that K.S. had punched him in the face. C.W. distinguished

this incident of punching from the prior 2013 incident of biting and also told the investigators that

he was attending his new school when the recent incident occurred, not the school he had been

attending when the 2013 incident occurred. C.W. and his younger sister L.W., who had also reported

seeing K.S. hit C.W., were taken to the Center for Child Protection for forensic interviews

approximately a week after the Department’s investigation began. The police detective testified that

C.W.’s statements in the forensic interview remained consistent with his statements to her and the

Department’s investigator during their interview and “never became more exaggerative, more

dramatic. . . . He brought up the last case very briefly and then he brought up this incident; indicated

that it happens quite often.” The detective testified to her impression that over a period of time,

C.W. was hit in more than one episode and that he indicated “this is something that happens quite

often and that he knew when [K.S.] was calling him over what’s going to happen, and that is what

scared him” and led to C.W. having problems sleeping at night because he thought K.S. was going

to come in and hit him.

The Department removed the children from W.W.’s home on what it asserted was

an emergency basis due to immediate danger on the same day that the forensic interviews of the

children and a medical examination of C.W. were conducted. See id. § 262.104. It then placed the

children in foster care. The day after the Department removed the children, it filed a petition seeking

modification of the prior orders of conservatorship and asking for temporary managing

conservatorship. See id. § 262.105. As mentioned above, at the initial hearing the trial court sua

sponte placed the children with Z.W. instead of naming the Department temporary managing

4
conservator. See id. § 262.106. At the subsequent full adversary hearing, the trial court named Z.W.

temporary sole managing conservator and W.W. temporary possessory conservator, finding that

“there was sufficient evidence presented under sections 153.002 and 262.205 of the Texas Family

Code and that it is in the best interest of the Children to place the Children with the Children’s father,

[Z.W.].” This appeal followed.

ANALYSIS

On appeal, W.W. raises six issues, complaining of both various “due-process”

violations and insufficient evidence supporting the trial court’s temporary decree of

conservatorship. The substance of several of W.W.’s “due-process” complaints is essentially an

evidentiary-sufficiency challenge—chiefly that the Family Code required the Department to explore

less restrictive options before removing the children from W.W.’s home and to make reasonable

efforts to return the children to W.W. after their removal. We first consider W.W.’s complaints of

procedural violations and then consider her challenges to the sufficiency of the evidence supporting

the trial court’s temporary decree of conservatorship, including her “due-process” arguments that the

Department did not satisfy the requirements of the Family Code.

“Due process” at the initial hearing

W.W. asserts that her “due-process” rights were violated because the trial court

changed the children’s placement sua sponte at the initial hearing in violation of

Paragraph 4(b) of the Travis County District Courts’ First Amended Standing Order in

child-protective-services cases (“DFPS Standing Order”). See Travis County District

5
Courts’ First Amended Standing Order (October 17, 2007), ¶ 4(b), available at

https://www.traviscountytx.gov/images/courts/Docs/StandingOrder_FirstAmended_CPS_CivilDi

strictCPS.pdf. Paragraph 4(b) provides that the Department may not modify a child’s placement that

has been previously approved by the trial court, except in an emergency, without first providing the

child’s attorney and guardian ad litem (if one has been appointed) with three days’ notice. See id.

W.W. argues that the trial court violated Paragraph 4(b) because (1) there was no emergency at the

time of the trial court’s order because the children had already been removed from her home and (2)

notice was not provided as required by Paragraph 4(b).

Paragraph 4(b) of the DFPS Standing Order does not apply in this case because the

Department removed the children from W.W.’s home under color of its authority to remove children

on an emergency basis to avoid immediate danger, which is an emergency modification of placement

that is instead governed by Paragraph 4(c). See id. at ¶ 4(c); see also Tex. Fam. Code § 262.106

(governing initial hearing after taking possession of child in emergency without court order).

“Emergency” is defined in Paragraph 4(c) as “(1) an immediate danger to the physical health or

safety of the child; or (2) an imminent, substantial risk of harm to the child or involving the child.”

See DFPS Standing Order at ¶ 4(c). The Department removed the children from W.W.’s home on

an emergency basis on the same day that it conducted forensic interviews of the children and a

medical examination of C.W. The day after the children were removed, the trial court heard the

Department’s application for temporary orders as required under Paragraph 4(c) of the DFPS

Standing Order, which governs emergency modifications of placement. See DFPS Standing Order

6
at ¶ 4(c); see also Tex. Fam. Code § 262.106(a). We conclude that Paragraph 4(c) governed the

initial hearing in this case.

Paragraph 4(c) provides that (1) in the event of an emergency, the Department may

modify a previously approved placement without first obtaining approval of other parties or the

court; and (2) if an emergency modification of a child’s placement occurs, the Department must seek

leave of the district court to approve the change in placement not later than three business days after

the emergency modification if the child has no attorney or guardian ad litem. In this case, the

hearing was held ex parte, which is specifically permitted by the Family Code. See Tex. Fam. Code

§ 262.106(b). Paragraph 4(c) likewise does not contain any notice requirement related to the

subsequent request by the Department for leave of court to approve the emergency placement. See

DFPS Standing Order at ¶ 4(c). Consequently, we conclude that neither the local rule nor the statute

was violated based on W.W.’s lack of notice of the initial hearing. And to the extent that W.W. is

complaining that the absence of notice gives rise to some “due-process” violation beyond this, we

observe that the show-cause order contemplated “only a temporary interruption of custody to

be followed by proper notice, appropriate pleadings, and a full hearing.” Page v. Sherrill,

415 S.W.2d 642, 646 (Tex. 1967). The order did not violate due process of law. See id.

Finally, to the extent W.W.’s complaint is that the trial court sua sponte placed the

children with their father, as opposed to some other caregiver, we find no reversible error. At the

hearing, the trial court was charged with rendering “orders that are necessary to protect the physical

health and safety” of the children. Tex. Fam. Code § 262.106(a). The Department presented

evidence in the form of a sworn affidavit by the Department’s investigator. See id. § 262.106(b)

7
(“[P]roof may be by sworn petition or affidavit if a full adversary hearing is not practicable.”). The

affidavit included allegations related to C.W.’s 2014 outcry, K.S.’s prior conduct, W.W.’s denial that

physical abuse was occurring, and W.W.’s pattern of continuing to leave the children unsupervised

with K.S. despite K.S.’s prior conduct. Based on this proof, the trial court issued the show-cause

order, which directed the parents to appear at a show-cause hearing twelve days later to determine

whether the Department should be named temporary managing conservator. The order also placed

the children with their father, who was already a possessory conservator under the final divorce

decree. Nothing in either the DFPS Standing Order or Section 262.106 precluded the court from

placing the children with a possessory conservator instead of the Department at the initial hearing.3

Having determined that the initial hearing was conducted in accordance with the Family Code and

the Travis County District Courts’ local rule, we overrule W.W.’s fifth issue.

“Due process” at the adversary hearing

After the show-cause order was issued, W.W. requested a full adversary hearing under

Family Code Sections 262.201 or 262.205. See id. §§ 262.201 (requiring full adversary hearing no

later than 14th day after date child is taken into possession by governmental entity unless extension

granted or child has already been returned to person entitled to possession and temporary order has

been dissolved), .205 (governing suits by governmental entity to obtain possession of child not

already in its possession). At the hearing, W.W. was represented by counsel, as were K.S., Z.W.,

3
In fact, if the initial hearing is not timely held, the statute contemplates that “the child shall
be returned to the parent, managing conservator, possessory conservator, guardian, caretaker, or
custodian who is presently entitled to possession of the child.” Tex. Fam. Code § 262.106
(emphases added).

8
and the children, and the court heard testimony from W.W., K.S., and Z.W., in addition to the police

investigator, the Department’s investigator, and a CASA supervisor.

W.W. contends that her “due-process” rights were violated when conservatorship,

visitation, and child support were changed at the adversary hearing because the trial court should

have applied a “totality of the circumstances” analysis to determine that C.W.’s “uncorroborated”

outcry and W.W.’s prior conduct in past CPS cases did not suffice to support the children’s

removal from her home, relying on Gates v. Texas Department of Protective & Regulatory Services,

537 F.3d 404 (5th Cir. 2008). The test applied by the Fifth Circuit in Gates is not applicable here.

There, the Fifth Circuit was determining whether the Fourth Amendment rights of children seized

from their homes had been violated. See id. at 427-30. W.W. has not raised a Fourth Amendment

challenge on the children’s behalf here. We will consider W.W.’s assertion that C.W.’s outcry and

W.W.’s prior conduct were insufficient to support the order together with her other challenges to the

sufficiency of the evidence. We overrule W.W.’s sixth issue.

“Due process” related to removal of the children

In her third issue, relying on Family Code Section 262.1015, W.W. asserts that the

Department violated her “due-process” rights by removing the children from her home without first

exploring alternatives to removal, such as removal of K.S. from the children’s residence or

placement with a family member of K.S.’s who was approved for placement during W.W.’s first

CPS case.4 W.W. argues that Section 262.1015 required the Department to explore the alternative

4
W.W. provides no legal authority to support her argument that her “due-process” rights
were violated because the Department did not place the children with K.S.’s relative who had been

9
option of removing K.S. from her home instead of removing the children. However, the plain

language of Section 262.1015 provides the Department with discretion to make such a

determination:

If the department determines after an investigation that child abuse has occurred and
that the child would be protected in the child’s home by the removal of the alleged
perpetrator of the abuse, the department shall file a petition for the removal of the
alleged perpetrator from the residence of the child rather than attempt to remove the
child from the residence.

Tex. Fam. Code § 262.1015 (emphasis added). In this case, the Department determined that an

immediate danger to the children existed in W.W.’s home, based on C.W.’s outcry and on the

Department’s post-investigation concerns that physical abuse had continued after the first case, that

W.W. had continued to be unprotective of the children despite the findings in the previous case, and

that she was leaving the children unsupervised with K.S. Thus, it removed the children without a

court order.

While the Family Code does give the district court “broad authority to protect

children short of separating them from their parents and placing them in foster care,” In re Texas

Dep’t of Family & Protective Servs., 255 S.W.3d 613, 615 (Tex. 2008), in a case in which removal

has already occurred, the Code only requires the court to find “sufficient evidence to satisfy a person

of ordinary prudence and caution that: . . . reasonable efforts have been made to prevent or eliminate

approved for placement with the children during the first CPS case. As we explain, the Family Code
provides the Department with discretion to determine whether the children’s removal from the home
is necessary, see Tex. Fam. Code § 262.104 (allowing Department to take possession of child
without court order), and also provides the district court with the power to subsequently review the
Department’s actions, see, e.g., id. §§ 262.105, .107, .201, .205.

10
the need to remove the child[ren] from the child[ren]’s home.” Tex. Fam. Code § 262.205(b)(1);

see also id. § 262.107(a)(3) (at initial hearing court must be satisfied that reasonable efforts,

“consistent with the circumstances and providing for the safety of the child,” were made to prevent

or eliminate need for removal of child taken in possession without court order). Due process does

not require the Department or the district court to do more than the Family Code requires, and

therefore, we overrule W.W.’s third issue. To the extent that W.W.’s argument can also be

construed as a challenge to the sufficiency of the evidence supporting the trial court’s implied finding

under Section 262.205(b)(1) that the Department made reasonable efforts to prevent or eliminate the

need to remove the children from W.W.’s home, we will consider that assertion together with her

other challenges to the sufficiency of the evidence supporting the conservatorship order.

In her fourth issue, W.W. similarly argues that her “due-process” rights were violated

when the Department failed to make reasonable efforts “to enable the child to return home,” relying

on Family Code Section 262.201(b)(3) and asserting that the Department did not present sufficient

evidence under Section 262.201(b)(3) to support that it made reasonable efforts to return the children

to her after their removal. The Department, however, contends that Section 206.201 does not

provide the applicable standard here because the children had already been placed with their father,

making Section 262.205 the section that governed the full adversary hearing in which the

Department sought to remove W.W. as sole managing conservator.5 Compare id. § 262.201

5
The Department argued at the adversary hearing that because W.W.’s children with Z.W.
had been returned to their father and the Department was no longer seeking custody of them, the
hearing for those children was “a temporary orders hearing under [Chapter] 153 [of the Family Code
in which] the standard is preponderance of the evidence and . . . the issue to be resolved is best
interest [of the children].” The adversary hearing concerned not only W.W.’s children with Z.W.,

11
(establishing requirements for full adversary hearing when child has not been returned to parent

entitled to possession and temporary order has not been dissolved) with id. § 262.205 (establishing

requirements for hearing in suit by Department requesting possession of child). After argument

by counsel at the hearing about whether the hearing had been conducted under Chapter 153 or

Chapter 262, the trial court stated in the temporary decree of conservatorship its finding “that there

was sufficient evidence presented under sections 153.002 and 262.205 of the Texas Family Code and

that it is in the best interest of the Children to place the Children with the Children’s father, [Z.W.].”

Accordingly, we construe W.W.’s fourth issue as challenging the sufficiency of the evidence

supporting the trial court’s implied finding under Section 262.205(b)(2) that “allowing the child to

remain in the home would be contrary to the child’s welfare,” and we will consider it together

with her other challenges to the sufficiency of the evidence supporting the temporary

conservatorship order.

Sufficiency of the evidence supporting the temporary conservatorship order

In her first two issues, W.W. asserts that the evidence is factually and legally

insufficient “to support the Department’s removal of the children from W.W.” At the hearing, the

trial court considered whether to remove W.W. as sole managing conservator under Family Code

Sections 153.002 and 262.205. W.W. frames her evidentiary challenge only in terms of whether the

but also her child with K.S., who remained in the Department’s custody and had been placed in
foster care with paternal relatives at the time of the adversary hearing, so the Department argued the
hearing for that child’s possession was a Chapter 262 hearing. In its order related to C.W. and L.W.,
the trial court found that sufficient evidence had been presented under both sections 153.002
and 262.205.

12
Department presented sufficient evidence to support a statutory basis for removal, asserting that

C.W.’s “uncorroborated” outcry and W.W.’s past conduct were insufficient. W.W. does not assert

that the Department failed to show either that there had been a material change in circumstances or

that modification would be in the best interest of the children. See id. §§ 153.002 (best interest of

child shall always be court’s primary consideration in determining conservatorship issues),

156.101(a)(1)(A) (establishing grounds for modification of conservatorship order). Accordingly, we

only address whether the Department presented sufficient evidence to satisfy the requirements of

Section 262.205. See id. § 262.205; see also In re J.A.J., 243 S.W.3d 611, 616 (Tex. 2007)

(conservatorship decisions are governed by preponderance-of-the-evidence standard).

Because “[w]e give wide latitude to a trial court’s decision on custody, control,

possession, and visitation matters,” we review a trial court’s conservatorship determinations for

abuse of discretion and may reverse “only if the decision is arbitrary and unreasonable.” In re J.A.J.,

243 S.W.3d at 616 (citing Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982)); see also

Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990) (per curiam) (trial court abuses its discretion

when it acts without reference to any guiding rules or principles). When we review conservatorship

modification under an abuse-of-discretion standard, legal and factual sufficiency are not independent

grounds of error; instead, they are relevant factors in deciding whether the trial court abused its

discretion. Zeifman v. Michels, 212 S.W.3d 582, 587 (Tex. App.—Austin 2006, pet. denied). When

determining whether the trial court abused its discretion, we consider (1) whether the trial court had

sufficient information upon which to exercise its discretion, i.e., the traditional sufficiency review,

and (2) if it had sufficient information, whether the trial court erred in its application of discretion.

13
Coburn v. Moreland, 433 S.W.3d 809, 823 (Tex. App.—Austin 2014, no pet.); see Lindsey

v. Lindsey, 965 S.W.2d 589, 592 (Tex. App.—El Paso 1998, no pet.).

When, as here, no findings of fact or conclusions of law were requested or filed, it

is implied that the trial court made all the findings necessary to support its judgment. Worford,

801 S.W.2d at 109. We will uphold its judgment on any legal theory supported by the evidence. Id.

An abuse of discretion does not occur where the trial court bases its decisions on conflicting

evidence. Davis v. Huey, 571 S.W.2d 859, 862 (Tex. 1978). Furthermore, a trial court does not

abuse its discretion if there is some evidence of a substantive and probative character to support the

court’s decision. Coburn, 433 S.W.3d at 823. The trial judge is in the best position “to observe and

assess the witnesses’ demeanor and credibility, and to sense ‘the forces, powers, and influences’ that

may not be apparent from merely reading the record on appeal.” In re A.L.E., 279 S.W.3d 424, 427

(Tex. App.—Houston [14th Dist.] 2009, no pet.). Therefore, we defer to the trial court’s resolution

of underlying factual issues and any credibility determinations that may have affected those

resolutions, and we may not substitute our judgment for the trial court’s judgment on these matters.

George v. Jeppeson, 238 S.W.3d 463, 468 (Tex. App.—Houston [1st Dist.] 2007, no pet.).

Section 262.205 provides as follows:

After the hearing, the court may grant the request to remove the child from the
parent, managing conservator, possessory conservator, guardian, caretaker, or
custodian entitled to possession of the child if the court finds sufficient evidence to
satisfy a person of ordinary prudence and caution that:

(1) reasonable efforts have been made to prevent or eliminate the need to remove
the child from the child’s home; and

14
 (2) allowing the child to remain in the home would be contrary to the
child’s welfare.

Tex. Fam. Code § 262.205(b). Taking the requirements in order, we return to W.W.’s argument that

the Department did not make reasonable efforts to prevent or eliminate the need to remove the

children from W.W.’s home. See id. § 262.205(b)(1). The Department’s investigator attested in the

affidavit submitted in connection with the initial hearing that when she first interviewed W.W. after

C.W.’s outcry, W.W. indicated that she still does not believe that K.S. abused C.W. the first time

and that she wanted to know why C.W. “sees their life differently than how their life really is.”

W.W. admitted at the hearing that she continued to allow K.S. “minimal” unsupervised access to the

children against the Department’s advice, despite the fact that the first suit had been based on K.S.’s

abuse of C.W., leading to K.S.’s pleading guilty to criminal charges. W.W.’s disbelief of C.W. led

the Department to be concerned about the children’s safety if they remained in her home.

Further evidence was presented at the full adversary hearing related to the

Department’s efforts to put a safety plan in place for the children. The Department’s investigator

testified that W.W. at first refused to agree to a safety plan until she retained legal counsel. Then she

and K.S. stated they would agree to a safety plan that prohibited unsupervised contact between K.S.

and the children and discussion of the allegations with the children, but they ultimately did not sign

it because the Department would not agree that the Department and law enforcement could not come

to speak to the children.6 They also refused to consent to forensic interviews of the children and a

6
W.W. testified that they signed a safety plan, but abuse of discretion does not occur where
the trial court bases its decisions on conflicting evidence. Davis v. Huey, 571 S.W.2d 859, 862
(Tex. 1978).

15
medical examination of C.W. by the Dell Children’s Hospital CARE team, which specializes in

examining children who may have been abused. Although W.W. had C.W. examined by his

pediatrician, she did not sign a release to allow the pediatrician to talk to the Department. The

Department had to get a court order to have the children forensically interviewed and to have the

medical examination performed at Dell.

After the interviews, the investigator contacted W.W. again and asked her to place

the children out or agree to a safety plan and she again refused to agree to anything without talking

to legal counsel. However, the investigation had been underway for a week at this point, and she still

had not retained counsel. W.W. requested that instead the children be allowed to remain in the home

and K.S. would leave. The Department’s investigator explained to her that the Department had

safety concerns with her ability to protect the children because she refused to have K.S. leave the

home after the last case and because she did not believe C.W. then or when he made his outcry this

time. W.W. did not offer to have the children placed with the relative that they had stayed with

during the first CPS case until after the emergency removal of the children had occurred.

Considering this substantive and probative evidence, we conclude that the trial court did not abuse

its discretion because there was evidence sufficient to satisfy a person of ordinary prudence and

caution that the Department made reasonable efforts to prevent or eliminate the need to remove the

children from W.W.’s home. See id.; see also City of Keller v. Wilson, 168 S.W.3d 802, 828 (Tex.

2005); Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986).

Much of the evidence supporting the Department’s original decision to remove the

children from W.W.’s home also supports the trial court’s implied finding that allowing the

16
children to remain in W.W.’s home would be contrary to the children’s welfare. See Tex. Fam.

Code § 262.205(b)(2). The evidence related to W.W.’s belief that C.W. had not been hit, her

unwillingness to participate in the Department’s investigation, and her refusal to have K.S. leave the

home before the Department was ready to execute the children’s emergency removal is all relevant

to that finding. In addition, the trial court heard evidence from the police detective and the

Department’s investigator about the emotional effect on C.W. of K.S.’s abuse and also watched the

videos of C.W.’s and L.W.’s forensic interviews.

The police detective who first interviewed C.W. with the Department’s investigator

testified that C.W. told her when K.S. gets mad at him, he does not feel safe and that he had not told

his mother about K.S. hitting him because she would tell him he was lying. C.W. described his

perfect life as not being bullied at home. Both the detective and the Department’s investigator

commented that C.W.’s demeanor during his interview was that he was very distressed when talking

about being hit—his head was lowered and he said he wanted to cry. During both the police

interview and his forensic interview, C.W. stated when asked about getting hurt at home, “I like to

keep that inside my head.”7

The trial court also heard evidence from other witnesses from which it could have

concluded that remaining in W.W.’s home would be contrary to the children’s welfare. When asked

at trial about her feelings for K.S. and whether she would continue to keep K.S. out of her home even

if she never knows exactly what happened to C.W., W.W. stated “I am a logical person who can see

7
In connection with a discussion of what kind of therapy C.W. would be required to
participate in, the trial judge commented on being struck by “how sad C.W. is that his mother
doesn’t believe him” after viewing the video of the forensic interview.

17
that if someone is saying they’re being hit, but there’s no signs of that, then there—then someone

is not being hit.” She further indicated that based on C.W.’s allegations, she would expect to have

seen or heard something to alert her to K.S.’s abuse.8 The trial court also heard testimony from the

CASA supervisor that CASA had serious concerns about W.W.’s ability to be protective of the

children even if K.S. was not in the home. CASA also had concerns about C.W.’s emotional safety

if he were to be placed with W.W. and recommended that C.W. receive significant therapy with a

trauma-focused therapist, as well as C.W. and W.W. attending therapy together. The Department’s

investigator also testified to her opinion that if the children were to be returned home, they would

be at risk for continued physical abuse and W.W. did not have the ability to keep them protected.

W.W. contends that the “outcry of a seven year old without any corroborating

evidence” is factually and legally insufficient to support removal of W.W. as managing conservator,

but she provides no legal authority in support of this argument. Moreover, L.W. corroborated that

K.S. had punched C.W. in the face. The trial court acknowledged “that there’s some inconsistencies

in [L.W.]’s recitation and [C.W.]’s,” but it ultimately found “[C.W.]’s testimony to be credible.”

In addition, we note that the testimony of a single credible witness is sufficient to support

termination of parental rights, which is subject to a heightened standard of proof as compared to

modification of conservatorship. See In re E.A.G., 373 S.W.3d 129, 140-43 (Tex. App.—San

Antonio 2012, pet. denied) (upholding termination based on credible testimony of single witness);

8
W.W. also argues that past parent conduct alone is not a sufficient statutory basis for
removal, but W.W.’s continuing disbelief of C.W. is indicative that she might not continue to keep
K.S. out of her home.

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see also In re J.A.J., 243 S.W.3d at 616 (contrasting standards for termination and modification of

conservatorship order).

W.W. also argues that because there was no visible injury to C.W. and no adult saw

any injury, the evidence is factually and legally insufficient. C.W. told the police detective and the

Department’s investigator, as well as the forensic interviewer, that he had no mark from the punch.

The police detective testified that a child can be physically abused without the abuse leaving a

physical mark. Moreover, the Department’s investigator testified that C.W.’s evaluation at Dell did

not occur until 11 days after C.W.’s outcry. The Dell CARE team informed the Department’s

investigator that it was not surprising that no injuries were found given the amount of time that had

passed since the outcry.9

We conclude that the Department presented some evidence of a substantive and

probative character that supported the court’s decision. See Coburn, 433 S.W.3d at 823.

Consequently, the trial court did not abuse its discretion because there was evidence sufficient to

satisfy a person of ordinary prudence and caution that allowing the children to remain in W.W.’s

home would be contrary to their welfare.10 See Tex. Fam. Code § 262.205(b)(2); see also City of

Keller, 168 S.W.3d at 828; Cain, 709 S.W.2d at 176. Therefore, we overrule W.W.’s first, second,

and fourth issues.

9
We note that K.S. told the Department’s investigator that C.W. had had a bruise on his face
within the month before the interview that the family believed came from a soccer game.
10
In addition, we note that the Department ultimately placed the children with their
noncustodial parent, which was proper under the statute. See Tex. Fam. Code § 262.205(e)(1).

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 CONCLUSION

Having concluded that sufficient evidence supports the trial court’s order modifying

conservatorship and that W.W.’s “due-process” rights were not violated, we affirm the trial

court’s order.

__________________________________________

Cindy Olson Bourland, Justice

Before Justices Puryear, Pemberton, and Bourland

Affirmed

Filed: March 13, 2015

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