COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-11-00025-CV
IN THE INTEREST OF E.P.C.,
A CHILD
----------
FROM THE 323RD DISTRICT COURT OF TARRANT COUNTY
----------
OPINION
----------
On this court’s own motion, we submitted this case en banc to resolve the
conflict among opinions of this court as to whether former family code section
263.405(i) prohibits us from reviewing an issue that was properly preserved for
appellate review in the trial court in compliance with the rules of civil and
appellate procedure. As explained below, we reaffirm that former section
263.405(i) does not preclude our appellate review of those properly preserved
issues.
I. Introduction
Appellant J.B.C. (Father) appeals from the trial court’s judgment
terminating his parental rights to his daughter E.P.C. Father contends that the
evidence is legally and factually insufficient to support the trial court’s
endangerment and best interest findings. Appellant A.L.A. (Mother) appeals from
the trial court’s judgment appointing the Texas Department of Family and
Protective Services (the Department) as E.P.C.’s permanent managing
conservator. Mother argues in one issue that the evidence is legally and
factually insufficient to support the trial court’s best interest finding. We affirm.
II. Background
Father and Mother were married when E.P.C. was removed from them in
October 2009, and the couple remained together at trial in September and
October 2010.
Officer Loe Wiggins of the Fort Worth Police Department testified that she
was dispatched to an apartment complex at about 5:00 p.m. on October 5, 2009.
A maintenance man had found E.P.C., approximately ten and one-half months
old, alone in an apartment. The apartment manager had called Father, who had
stated that he was picking up Mother and would return shortly. He was delayed,
and the apartment manager called him again. The apartment manager also
called the police.
When Officer Wiggins arrived at the apartment complex office, Mother was
holding E.P.C., who was not crying, and Father had not yet arrived. Mother told
2
Officer Wiggins that she had been out looking for work since 10:30 a.m. and had
left E.P.C. with Father. She called Father to come pick her up, but E.P.C. was
not with Father when he arrived to pick up Mother. Father said that the baby had
finally gotten to sleep after crying all day, and he had not wanted to wake her, so
he left her in the apartment alone.
Officer Wiggins testified that she contacted the Department because
E.P.C. had been abandoned in the home. Officer Wiggins opined that leaving a
child who is not yet one year old alone in an apartment endangered the child’s
physical and emotional well-being. She admitted that she saw no visible injuries
on the child and that the child appeared healthy, clean, and free of disabilities.
Officer Wiggins also acknowledged that she did not visit the couple’s apartment.
Department investigator Callie Reynolds testified that the Department
received a call that same day, October 5, 2009, and that the allegation was that
E.P.C. had been left alone in the apartment for at least two hours. Father told
her that E.P.C. had fallen asleep, but he was not sure when. He did not want to
wake her, so he left her sleeping and drove to the Irving Wal-Mart, where Mother
had been grocery shopping. He also looked for some tires at Wal-Mart.
Reynolds testified that Father told her that he then received the call about the
baby, and he and Mother left Wal-Mart to go home. He dropped Mother off at the
apartment complex office while he went to the apartment to unload groceries.
Father told Reynolds that he worked nights but was home during the day
with E.P.C. He tested positive for amphetamines but denied any drug use or
3
being on any meds, and the Department did not send his oral swab to a
laboratory for further testing. Father told Reynolds that he was estranged from
his own mother, and Father and Mother told Reynolds that they had no family
members to whom they felt close.
Reynolds also testified about discrepancies in the parents’ stories: (1)
Mother had said that she called Father to pick her up at 3:00 p.m., not 4:00 p.m.;
(2) Mother had said that they were changing a tire when the manager called, but
Father had said that he was looking at tires at Wal-Mart; and (3) Mother had said
that she never leaves the child with Father and that “she didn’t have a life” and
never left the home, but Father claimed that he watched E.P.C. often. Reynolds
also testified that the apartment complex employees’ story differed from that of
the parents. The maintenance man found E.P.C. at 3:00 p.m. He waited until
3:15 p.m. in the apartment and then took her down to the office, and an
apartment manager contacted Father at that time. Police were called at 4:57
p.m. Mother arrived at the apartment office at 5:00 p.m.
Reynolds was concerned primarily because E.P.C. had been left alone but
also because Father showed absolutely no remorse. The Department removed
E.P.C. from her parents that night. Reynolds stated that Mother was very upset
about the removal but that Father appeared to be concerned only about whether
he would lose his job.
Reynolds took the baby back to her office, where they stayed for a couple
of hours. Reynolds was concerned about the baby’s small size for her age. But
4
E.P.C. did not appear to have been battered; there were no bruises, swelling, or
visible breaks. When changing E.P.C.’s diaper, Reynolds noticed that the bones
in the baby’s back were visible. Reynolds testified that E.P.C. was
developmentally delayed, in that she was not able to roll over or crawl despite
being over ten months old. She also could not push up. During that two-hour
period, E.P.C. gulped down two eight-ounce bottles of formula “as if she had not
eaten in a long period of time.” Reynolds admitted, however, that the baby had
been in the apartment office for at least six hours and that she did not know
whether E.P.C. had been fed during that time.
Reynolds testified that Mother appeared to be appropriately bonded to,
and appeared to show affection for, E.P.C. Reynolds further testified that she did
not believe that Mother had any part in the decision to leave E.P.C. alone in the
apartment.
Amanda Rogers, a Department investigator, testified that she
accompanied E.P.C. to her first medical visit at Cook Children’s Hospital on
October 6, the day after the removal. Rogers was concerned that E.P.C. was
very small for her age, and Rogers could feel some of E.P.C.’s ribs as she held
the baby during the medical assessment. Rogers said the bones were visible
when E.P.C. was unclothed. Additionally, Rogers, like Reynolds had the night
before, noted that E.P.C. was literally gulping her food, so they “continued to
allow her to eat, because she appeared [to be] still hungry.” Rogers was
concerned that E.P.C.’s hunger was not “just from her not eating for maybe that
5
morning or the night before” but was “maybe something that had been happening
more than once.” Rogers was also concerned that the baby so quickly formed “a
kind of bond” with her, a stranger. Rogers testified that the examining nurse
practitioner spoke to E.P.C.’s primary care provider, Dr. Goh, who told the nurse
practitioner that E.P.C.’s “growth and weight were on the downward trend as far
as where she should be for her age” but that they were not off the charts.
Eight days after the removal, Rogers visited Mother and Father’s home.
Rogers observed fourteen cans of baby formula but no baby food. The absence
of food concerned Rogers because of the child’s age, developmental level, and
size. On that same day, Rogers supervised a parent-child visit. She was
concerned that the child had “kind of a flat [a]ffect” when interacting with her
parents and felt that the baby was more attached to her, a virtual stranger, than
to her parents. Rogers testified that Mother would hand the child to Father but
that Father would quickly give the child back to Mother. Rogers also testified,
however, that Mother appeared to interact appropriately with the child.
Nicole Weber, another Department investigator, was also assigned to the
case the day after the removal. In her interview with Mother that day, Weber
learned that Mother had been raised by her grandparents and had little contact
with her parents. Mother had last spoken with her mother a few months before
the removal and has no contact with her father. Mother said that her father had
abused alcohol and drugs when she was a child and that he had been physically
and mentally abusive toward her, breaking her nose in one incident. She also
6
told Weber that there had been domestic violence between her parents during
her childhood and that they had a history of Department intervention. Weber
testified that there had been Department cases with Mother as the victim as
recently as 2006 and 2007 with her parents as the alleged perpetrators and 2008
regarding her relationship with Father.1 Weber also testified that Mother had
been removed from her parents and placed in foster care. Mother did not
indicate that she wanted E.P.C. placed with either of her parents.
Mother denied alcohol and drug abuse and any history of mental illness
and stated that she was not employed but was looking for a job. Mother told
Weber that she and Father had been married since February 2009. Mother said
that she had had a normal pregnancy and delivery and that E.P.C. had no
medical conditions. Mother also told Weber that she and Father had never left
E.P.C. alone before and that he occasionally watched the baby during the day
while she looked for work.
Weber testified that Father told her that he had been raised by his mother
and stepfather and denied being abused or neglected as a child, but Father
stated that he no longer had contact with his mother. Later, Weber testified that
Father had told her that he had suffered emotional abuse at the hands of his
mother when he was a child. He denied drug or alcohol abuse, domestic
1
At the time of the 2008 referral (which was later ruled out), Mother was
seventeen years old, and Father was forty years old. Mother and Father were
married in February 2009.
7
violence, and any mental health issues. He told her that he was employed as a
security guard, that he had known Mother his whole life, and that they had
married in February 2009.
P.C., the child’s former foster mother, testified that E.P.C. arrived at her
home about 11:30 p.m. on October 5, 2009. P.C. said that she took E.P.C. to the
doctor a few days later and that the baby weighed only 15.1 pounds. P.C. said
that “the doctor was very concerned because [E.P.C.] was underdeveloped and
underweight for someone her age.” P.C. described E.P.C.’s physical and
developmental health:
She seemed very thin at the time. . . . When you would hold
her up against your chest, you could feel her -- her spine and her
ribs were very prominent at the time. Her waistline was very small
also compared to some of the babies we had had in our home as
well.
....
She ate like a little pig. Excuse my language, but she was so
hungry. And she would just -- she loved everything that was given to
her, cereal, her fruits. It’s like she couldn’t get enough. And it
seemed like once we started giving her food, she just started to
blossom tremendously. Her teeth started coming in, her hair was
getting fuller, and she was getting much more active.
....
She was so starved for -- she -- she was so hungry, is what I mean
to say. It’s like she was -- she tried different things, different foods,
and seemed to like everything we offered her. And a few months
down the line, I believe it was in November, I will have to double
check, she started on table foods, and really progressed well.
....
8
When we first got her, she couldn’t even crawl. And the
doctor noticed that, because he set her up on the table and he was
looking at her. And she -- she was trying to get up, but it’s like she
didn’t quite have the energy to get up there or the strength to get up
there yet. And so he was -- he was quite concerned.
P.C. testified that Early Childhood Intervention Services (ECI) evaluated
E.P.C. on October 28, 2009, and then two therapists began treating her two or
three times a week, working with motor skills, balance, and crawling until the
following January. Included in E.P.C.’s records from the pediatrician’s office is
an October 28, 2009 document, titled “Home Health Certification and Plan of
Care,” that provides that his principal diagnoses of E.P.C. were “lack of
coordination,” “muscle weakness,” “failure to thrive,” “[u]nspecified delay in
development,” and “delayed milestones.” A month after her arrival in foster care,
E.P.C. could still wear a dress sized three to six months even though she was
almost twelve months old, but she was wearing clothes sized twelve to eighteen
months by the time she left. By the time E.P.C. left that foster home in mid-
February 2010, she had begun taking steps and had gained weight, at least four
pounds in the first two months.
E.P.C.’s medical records show that her weight at birth on November 21,
2008, was seven pounds and four ounces. At her three-month checkup, she
weighed twelve pounds and two ounces. At her six-month checkup, she weighed
fifteen pounds. At her nine month checkup, she still weighed fifteen pounds. On
October 12, 2009, a week after removal, she weighed fifteen pounds and one
ounce.
9
E.P.C. quickly gained weight once she was living in foster care. On
October 27, 2009, about three weeks after her removal, she weighed seventeen
pounds. On November 6, 2009, E.P.C. weighed seventeen pounds and six
ounces. On December 2, 2009, she weighed nineteen pounds and one and one-
half ounces. On January 11, 2010, she weighed twenty-one pounds and eleven
ounces. On March 3, 2010, she weighed twenty-four pounds and five ounces.
Finally, at her eighteen-month checkup, she weighed twenty-five pounds.
Father’s mother, B.M., testified that Father did not live with her until he was
fifteen or sixteen years of age because she had relinquished her rights soon after
his birth, and he was adopted. B.M. adopted him when he was a teenager after
his former adoptive parents relinquished their rights. He told her that he had
been sexually abused during his childhood by members of his former adoptive
family, as a teenager in an incident at a lake, and during one of his multiple stays
at a mental hospital. B.M. also testified that she and Father had had a sexual
relationship for about twenty-five years, which ended only because he began a
dating relationship with Mother, his first cousin once removed on his mother’s
side. B.M. also testified that Father had hit her hard in the head and had pushed
a large wooden table into her abdomen near the beginning of his relationship
with Mother.
Quentin Dean Little testified that Father and Mother had lived in his house
from April 2008 until approximately June 2008. He testified that Mother, who was
pregnant, “was dirty. She never picked up anything, never cleaned up anything.
10
She always had to have somebody do it for her. She was waited on hand and
foot. . . . [I]t was a total mess.” He also testified that another friend, Patrick, lived
in the house at the same time. Patrick had Asperger’s syndrome. Little testified
that he saw Mother slap Patrick. Little testified that he would be concerned about
Mother’s ability to parent because Father always took care of everything and
because she “t[ook] care of nothing.” He further testified that she had been given
an orphaned baby rabbit to care for, that his wife had taught her how, that he
never saw Mother feed the baby rabbit, and that it died within two days. Little
also testified that, after E.P.C.’s birth, he had seen Mother and Father without
E.P.C. at Father’s worksite and at Wal-Mart as many as eight times.
Little testified that he had known Father and B.M. for approximately ten
years. Little also testified that he lived in B.M.’s house for approximately three
months and that B.M. told him about her prior sexual relationship with Father in
March 2009 or 2010 at her husband’s funeral. Little denied having any sexual
relationship with B.M., but he testified that Father approached him at B.M.’s
husband’s funeral and accused him of sleeping with B.M.
Julie Little, Quentin Little’s wife, testified that Mother “didn’t take care of
herself, [Father] was the one taking care of her. She wouldn’t get up and take a
bath, she wouldn’t help clean anything, she was taking things out of [Julie’s]
room and hiding them underneath the couch kind of like a child would do.” Julie
stated that Father would “make [Mother] get in the bathtub and he would bathe
her.”
11
Julie also testified that Mother neglected and mistreated animals:
[Mother would] just abus[e] my dog. I found, you know, I came
home one day and his ears were bleeding, and, of course, she had
been mean to him previously, and it’s like she claims she loved him,
but she would turn around and kind of be rough with him, and I had
to take him to the vet probably the next month because his ears
wouldn’t stop bleeding.
Julie admitted that she had not seen Mother hurt the dog but stated that the vet
had said that someone had kicked the dog in his ear, and Mother was the only
one at home with him. Julie confirmed that she had shown Mother how to take
care of the baby rabbit but that Mother would not feed it even though the bottle
“was right next to her where she was l[ying].”
Julie also testified that she saw Mother “pushing [Patrick] up against the
brick wall and beating on him. She smacked him in the face a couple of times
and then beat him in his chest and told him he was sorry and retarded and
stupid.” Julie stated that Patrick left about two weeks before Father and Mother
moved out because “he was terrified of [them]. They kept on calling him names
and [Mother] would claim he was googly-eyeing her, so [Father] would get all
offensive and tie him to a chair and make him sit in the corner or -- you know, it
was childish stuff.”
Linda Phillips, the Department caseworker, testified that she first met with
the parents eleven days after the removal and discussed the family service plan
with them. Phillips was concerned because the parents had to be told to allow
the child to drink juice during visitations and because although they brought a
12
blanket and some toys, they never brought food to the visits. When Phillips went
for a home visit, Mother would not let her see the master bedroom and told her
that E.P.C. had “no business” being in there.
Randy Waters, a Special Investigator with the Department, testified that he
interviewed Father privately after a parent-child visit. When Waters told Father
that he knew that Father had a Department history other than that involving
Mother, Father acknowledged that he had formerly been adopted. He told
Waters that he had been placed in two church homes as a child because his
adoptive family no longer wanted him. Waters testified that he had information
that Father had assaulted his first adoptive mother and had broken a window,
resulting in one of the church home stays. Father told Waters that the allegations
were not true. Father told Waters that his adoptive mother had thrown a knife at
him and had punched him in the mouth and that one of his adoptive parents had
knocked him out. When Waters asked Father about his stays at Terrell State
Hospital, Father said that the Department had sent him there after removing him
from his first adoptive home because the Department had no other place to put
him. Father denied that he had been placed there because he had hurt people
and pulled a knife on a child. He also denied that he had been sent to Terrell
another time for setting a fire and exhibiting physical violence toward a teacher.
After Father was discharged from Terrell, he was placed in a group home from
which he eventually ran away. He told Waters that he went back home for a few
13
days, his first adoptive mother pulled a knife on him, and then he met and began
staying with his birth mother, B.M.
Father denied to Waters that anyone had sexually abused him, except that
Father claimed that B.M. had reached into his lap and touched him one time.
Even though Father denied having a sexual relationship with his mother, he told
Waters that B.M. had told Mother that he and B.M. had engaged in a sexual
relationship because B.M. wanted to break up Mother and Father. Father also
told Waters that Little and B.M. had a sexual relationship, and he showed Waters
a picture of Little in a bed that Father claimed was B.M.’s.
Waters also interviewed Mother. She admitted that she had engaged in
self-mutilation, cutting, while still a minor and showed him scars on her left arm.
She denied purposely letting the baby rabbit die while living with the Littles. She
stated that she and Father had left E.P.C. with relatives in Arkansas for a couple
of weeks when the baby was two months old. Mother also told Waters that
E.P.C. was with a baby sitter when Mother was seen with Father at his worksite.
Dr. Nichelle Wiggins, a clinical psychologist, testified that she performed
psychological evaluations of both parents. She testified that Father told her that
he was raised by his parents, grandparents, an aunt, and an uncle. He told her
that he had a typical childhood and denied any abuse or mental health issues.
Father also denied that he had ever exhibited assaultive or aggressive behavior.
Dr. Wiggins administered a series of tests, and she concluded that Father is
pretty intelligent but that he “is in a great deal of denial.” She described him as
14
“extremely defensive.” When asked if the knowledge that he had been in a
twenty-five-year incestuous relationship with his mother would concern her, she
replied,
That would certainly speak volumes to one’s -- the effect it would
have on his emotional functioning, the way he interacts with other
people in his relationships, like with his wife. It could impact his
parenting because of lack of boundaries that he had learned and
been modeled for him. It could affect him on so many levels and the
people that he comes in contact with, so certainly that would be
significant information.
She also stated that his marrying his first cousin once removed would go along
with his problem of “lack of boundaries.” She stated that, if left unresolved,
issues with boundaries and attachment in a parent could put a child at risk:
Well, you’ll see neglect, and severe neglect, so leaving a child home
alone would be an example of that. I’ve seen where children who
are neglected when there are severe attachment issues, they may
not develop at a healthy rate compared to other children their age
because they’re not receiving the stimulation, whether it’s emotional,
physical, or even nutritional-wise, so it can affect a child’s overall
well-being if there is neglect.
When asked if a parent experiencing such issues would fail to recognize
that a child was failing to thrive, she responded,
Now, that happens quite a bit with people who are in total denial.
Everybody else will see that child and say that child is just too thin,
and that person can’t see it, and it’s usually denial. That’s one of the
things I noticed in his psychological: Denial, minimization, and
repression, so when one uses those types of defenses on a regular
basis, it can keep them from seeing where there is a need to take
action and do something different, even if that means their child is
severely malnourished and too thin. They may not see it that way.
15
Wiggins administered the same tests to Mother. Wiggins concluded that
Mother was also in denial and repressing her feelings and that Mother tried to
present herself in a positive light. Wiggins stated that Mother’s physical
responses (turning red and crying) indicated that she “was not sharing everything
that was going on.” She testified that Mother was not sharing very much and that
“it’s difficult to help someone when they will not open up and allow you to help
them.” Wiggins said that while Mother spoke of being abused and eventually
disclosed that she had been sexually abused, Wiggins did not believe that
Mother had resolved those issues.
Wiggins said that Mother had never been able to live independently and
that she has dependent personality traits. Wiggins also testified that Mother’s
lack of structure has made it difficult for her to know how to impose structure and
had led to her making poor decisions that put her child and herself at risk.
Wiggins stated that Mother had a lack of insight and understanding that seemed
to contribute to her poor decisions. When asked whether her assessment was
consistent with a parent whose child has failure to thrive, Wiggins replied, “Sure.
For a young mother who doesn’t have someone there to help her and guide her,
sure. I mean, that’s not uncommon.” When asked whether a child would be safe
when parented by someone with unresolved child abuse and mental health
issues, Wiggins replied,
No, not -- if there is aggression towards animals, people, and that
person is not admitting that they have problems that they need to
address and want to address, then who is to say that a child would
16
not become a victim? I mean, I wouldn’t know, but the probability
does increase that abuse can happen or neglect if you have those
types of issues unaddressed.
Wiggins testified that Mother admitted that she had a limited support system.
Jessica Juarez, the CASA advocate, stated that she had seen E.P.C.
approximately twice a month since January 2010. Juarez testified that E.P.C. is
doing very well in her current foster home and is very healthy, sweet, content,
and easy-going. She is bonded with her foster family and comfortable in her
foster home. The foster parents would be interested in adopting her if she were
available. Juarez opined that the foster parents could meet E.P.C.’s needs and
provide her with a safe and loving home. Father and Mother did not testify.
After the bench trial, the trial court found that both parents (1) engaged in
conduct or knowingly placed E.P.C. with persons who engaged in conduct which
endangered her physical or emotional well-being and (2) knowingly placed or
knowingly allowed E.P.C. to remain in conditions or surroundings which
endangered her physical or emotional well-being. The trial court also found that
termination of the parent-child relationship between Father and E.P.C. would be
in the child’s best interest and terminated the parent-child relationship between
them. But the trial court found that termination of the parent-child relationship
between Mother and E.P.C. was not in E.P.C.’s best interest and denied
termination of that relationship. The trial court also found that the appointment of
either parent as E.P.C.’s managing conservator would not be in her best interest
because the appointment would significantly impair her physical health or
17
emotional development; found that the Department had “made a diligent effort to
locate . . . a relative of the parent and afford [him or her] a reasonable opportunity
to request appointment as managing conservator”; found that the appointment of
the Department as permanent managing conservator was in E.P.C.’s best
interest; and so appointed the Department.
III. Standards of Review
A parent’s rights to “the companionship, care, custody, and management”
of his or her children are constitutional interests “far more precious than any
property right.” Santosky v. Kramer, 455 U.S. 745, 758–59, 102 S. Ct. 1388,
1397 (1982); In re M.S., 115 S.W.3d 534, 547 (Tex. 2003). “While parental rights
are of constitutional magnitude, they are not absolute. Just as it is imperative for
courts to recognize the constitutional underpinnings of the parent-child
relationship, it is also essential that emotional and physical interests of the child
not be sacrificed merely to preserve that right.” In re C.H., 89 S.W.3d 17, 26
(Tex. 2002). In a termination case, the State seeks not just to limit parental rights
but to erase them permanently—to divest the parent and child of all legal rights,
privileges, duties, and powers normally existing between them, except for the
child’s right to inherit. Tex. Fam. Code Ann. § 161.206(b) (West 2008); Holick v.
Smith, 685 S.W.2d 18, 20 (Tex. 1985). We strictly scrutinize termination
proceedings and strictly construe involuntary termination statutes in favor of the
parent. Holick, 685 S.W.2d at 20–21; In re R.R., 294 S.W.3d 213, 233 (Tex.
App.—Fort Worth 2009, no pet.).
18
In proceedings to terminate the parent-child relationship brought under
section 161.001 of the family code, the petitioner must establish one ground
listed under subsection (1) of the statute and must also prove that termination is
in the best interest of the child. Tex. Fam. Code Ann. § 161.001 (West Supp.
2012); In re J.L., 163 S.W.3d 79, 84 (Tex. 2005). Both elements must be
established; termination may not be based solely on the best interest of the child
as determined by the trier of fact. Tex. Dep’t of Human Servs. v. Boyd, 727
S.W.2d 531, 533 (Tex. 1987); In re D.T., 34 S.W.3d 625, 629 (Tex. App.—Fort
Worth 2000, pet. denied) (op. on reh’g).
Termination decisions must be supported by clear and convincing
evidence. Tex. Fam. Code Ann. § 161.001; see also id. § 161.206(a). Evidence
is clear and convincing if it “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.” Id.
§ 101.007 (West 2008). Due process demands this heightened standard
because termination results in permanent, irrevocable changes for the parent
and child. In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002); see In re J.A.J., 243
S.W.3d 611, 616 (Tex. 2007) (contrasting standards for termination and
modification).
In evaluating the evidence for legal sufficiency in parental termination
cases, we determine whether the evidence is such that a factfinder could
reasonably form a firm belief or conviction that the grounds for termination were
proven. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005). We review all the
19
evidence in the light most favorable to the finding and judgment. Id. We resolve
any disputed facts in favor of the finding if a reasonable factfinder could have
done so. Id. We disregard all evidence that a reasonable factfinder could have
disbelieved. Id. We consider undisputed evidence even if it is contrary to the
finding. Id. That is, we consider evidence favorable to termination if a
reasonable factfinder could, and we disregard contrary evidence unless a
reasonable factfinder could not. Id.
We cannot weigh witness credibility issues that depend on the appearance
and demeanor of the witnesses, for that is the factfinder’s province. Id. at 573,
574. And even when credibility issues appear in the appellate record, we defer
to the factfinder’s determinations as long as they are not unreasonable. Id. at
573.
In reviewing the evidence for factual sufficiency, we give due deference to
the factfinder’s findings and do not supplant the judgment with our own. In re
H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). We determine whether, on the entire
record, a factfinder could reasonably form a firm conviction or belief that the
parent violated subsections (D) or (E) of section 161.001(1) and that the
termination of the parent-child relationship would be in the best interest of the
child. Tex. Fam. Code Ann. § 161.001; C.H., 89 S.W.3d at 28. If, in light of the
entire record, the disputed evidence that a reasonable factfinder could not have
credited in favor of the finding is so significant that a factfinder could not
20
reasonably have formed a firm belief or conviction in the truth of its finding, then
the evidence is factually insufficient. H.R.M., 209 S.W.3d at 108.
IV. Father’s Appeal
Father argues in one issue that the evidence is legally and factually
insufficient to support the trial court’s endangerment and best interest findings.
A. Father’s Statement of Points for Appeal
In 2008, in an en banc decision, this court held that former family code
section 263.405(i) is “void as a violation of the separation of powers provision of
the Texas constitution.” In re D.W., 249 S.W.3d 625, 645 (Tex. App.—Fort
Worth) (en banc), pet. denied, 260 S.W.3d 462 (Tex. 2008) (per curiam).
Specifically, we held in D.W. that section 263.405(i)
is void because it violates the Separation of Powers Clause of the
constitution to the extent that it forecloses our power to review
issues properly preserved for appeal because the statute unduly
interferes with our substantive power as an appellate court to rehear
and determine issues on the merits that were decided in the court
below.
Id. at 640; see also In re A.J.M., No. 02-11-00137-CV, 2012 WL 2877457, at *1
(Tex. App.—Fort Worth July 16, 2012, no pet. h.) (op. on reh’g) (en banc). 2
Thus, if an issue was properly preserved for appellate review in the trial court in
compliance with the rules of civil and appellate procedure, section 263.405(i)
2
Section 263.405(i) was repealed effective September 1, 2011, but it
technically applies in this case because the trial court signed the judgment before
September 1, 2011. Litigants whose parental rights are terminated by final
orders rendered on or after that date need no longer file statements of points.
21
unconstitutionally interferes with our constitutionally conferred power to review
the issue on the merits on appeal. D.W., 249 S.W.3d at 640, 645; see A.J.M.,
2012 WL 2877457, at *1.
In this case, Father’s first issue is properly before us. Father was not
required to raise his legal and factual sufficiency complaints in the trial court to
preserve them for appellate review because the case was tried to the bench.
See Tex. R. App. P. 33.1(d) (“In a nonjury case, a complaint regarding the legal
or factual insufficiency of the evidence . . . may be made for the first time on
appeal in the complaining party’s brief.”). Thus, this court’s holdings in A.J.M.
and D.W.—that former section 263.405(i) violates the Separation of Powers
Clause of the Texas constitution—require that we address Father’s legal and
factual sufficiency challenge on its merits. See A.J.M., 2012 WL 2877457, at *1;
D.W., 249 S.W.3d at 640, 645.
B. Endangerment Findings
We turn now to Father’s legal and factual sufficiency challenge to the trial
court’s endangerment and best interest findings.
1. Statutory Endangerment
“Endanger” means to expose to loss or injury, to jeopardize. Boyd, 727
S.W.2d at 533; In re J.T.G., 121 S.W.3d 117, 125 (Tex. App.—Fort Worth 2003,
no pet.). Under section 161.001(1)(E), the relevant inquiry is whether evidence
exists that the endangerment of the child’s physical well-being was the direct
result of the parent’s conduct, including acts, omissions, or failures to act. See
22
J.T.G., 121 S.W.3d at 125; see also Tex. Fam. Code Ann. § 161.001(1)(E).
Additionally, termination under (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. J.T.G., 121 S.W.3d at 125; see Tex. Fam. Code Ann.
§ 161.001(1)(E). It is not necessary, however, that the parent’s conduct be
directed at the child or that the child actually suffer injury. Boyd, 727 S.W.2d at
533; 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).
2. Discussion
Father admittedly left ten-month-old E.P.C. alone in the apartment while he
drove to pick up Mother from the store. The evidence is conflicting as to how
long E.P.C. was alone in the apartment, but Reynolds testified that the apartment
maintenance worker found E.P.C. at 3:00 p.m. and that Mother arrived at the
apartment office at 5:00 p.m. There is also evidence that Father shopped for
tires after leaving E.P.C. alone and that an hour and a half passed between the
time of the first call to Father and the time Mother arrived at the apartment office
to retrieve E.P.C. Reynolds also testified that Father showed no remorse about
leaving E.P.C. alone and appeared to worry more about possibly losing his job.
Father’s act of leaving ten-month-old E.P.C. alone in the apartment endangered
E.P.C.’s physical well-being. 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,
23
no pet.) (stating that “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”). Moreover, the trial court heard additional conflicting evidence that
Mother and Father had been seen in public without E.P.C. as many as eight
other times. See In re H.R., 87 S.W.3d 691, 698–99 (Tex. App.—San Antonio
2002, no pet.) (holding evidence legally sufficient and noting, among other things,
that the appellant left the child in the care of a nine-year-old cousin while she
went out drinking).
In addition to leaving E.P.C. unsupervised, the trial court heard evidence
that E.P.C. was very small for her age and that the bones in her back were
visible. Mother mentioned having occasionally used a baby sitter to watch
E.P.C., but Mother and Father were E.P.C.’s primary caregivers. Mother and
Father had taken E.P.C. to the doctor regularly, but her “growth and weight were
on the downward trend as far as where she should be for her age,” even though
they were not off the charts. E.P.C. weighed only fifteen pounds and one ounce
a week after removal. E.P.C. gained two pounds in the next two weeks and a
total of four pounds in the two months after removal. E.P.C. also gained another
two pounds by January 2010. The medical records reflect that shortly after
removal, E.P.C. was diagnosed with muscle weakness, lack of coordination,
delayed milestones, unspecified delay in development, and failure to thrive. See
In re T.T.F., 331 S.W.3d 461, 484 (Tex. App.—Fort Worth 2010, no pet.)
24
(discussing child’s failure to thrive diagnosis and holding sufficient evidence
supported endangerment finding under subsection (E)).
Father attempts to separate and minimize the distinct acts of leaving
E.P.C. unattended and not providing her with sufficient nutrition, but Father’s
arguments merely point to conflicts in the evidence. We must leave the
resolution of those conflicts to the factfinder. See id. (citing J.P.B., 180 S.W.3d at
573). Moreover, Father’s argument actually highlights that the Department
presented evidence that E.P.C. was exposed to a course of conduct while living
with Father, not a single act or omission, that course of conduct involving both
the failure to provide E.P.C. with proper nutrition and leaving her home alone on
numerous occasions.
Viewing all the evidence in the light most favorable to the termination
judgment, and disregarding all contrary evidence that a reasonable factfinder
could disregard, we hold that the evidence is legally sufficient to support a
factfinder’s firm conviction or belief that Father engaged in conduct that
endangered E.P.C.’s physical or emotional well-being. See Tex. Fam. Code
Ann. § 161.001(1)(E); J.P.B., 180 S.W.3d at 573; In re S.G.S., 130 S.W.3d 223,
238 (Tex. App.—Beaumont 2004, no pet.). Likewise, giving due deference to the
factfinder, we hold that the evidence is also factually sufficient to support the trial
25
court’s finding that Father engaged in conduct that endangered E.P.C.’s physical
well-being.3 We therefore overrule this part of Father’s sole issue.
C. Best Interest Finding
There is a strong presumption that keeping a child with a parent is in the
child’s best interest. In re R.R., 209 S.W.3d 112, 116 (Tex. 2006). Prompt and
permanent placement of the child in a safe environment is also presumed to be
in the child’s best interest. Tex. Fam. Code Ann. § 263.307(a) (West 2008). In
determining the best interest of the child, the trier of fact in a termination case
may use the following factors:
(A) the desires of the child;
(B) the emotional and physical needs of the child now and in the
future;
(C) the emotional and physical danger to the child now and in the
future;
(D) the parental abilities of the individuals seeking custody;
(E) the programs available to assist these individuals to promote
the best interest of the child;
(F) the plans for the child by these individuals or by the agency
seeking custody;
(G) the stability of the home or proposed placement;
3
Along with a best interest finding, a finding of only one ground alleged
under section 161.001(1) is sufficient to support a judgment of termination. In re
E.M.N., 221 S.W.3d 815, 821 (Tex. App.—Fort Worth 2007, no pet.). We thus
need not address the trial court’s section 161.001(D) finding. See id.; see also
Tex. R. App. P. 47.1.
26
(H) the acts or omissions of the parent which may indicate that the
existing parent-child relationship is not a proper one; and
(I) any excuse for the acts or omissions of the parent.
Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976) (citations omitted).
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. C.H., 89 S.W.3d at 27. Furthermore, undisputed evidence of just
one factor may be sufficient in a particular case to support a finding that
termination is in the best interest of the child. Id. On the other hand, the
presence of scant evidence relevant to each factor will not support such a
finding. Id.
E.P.C. is too young to have expressed any desire concerning the
termination of Father’s parental rights. Mother and Father had taken E.P.C. to
the doctor regularly for checkups, and she did not have any visible injuries and
was clean and appropriately dressed at the time of removal. However, Father
admittedly left ten-month-old E.P.C. alone in the apartment, and Reynolds
testified that Father showed no remorse for having done so. In addition, E.P.C.
was diagnosed with failure to thrive and was noted to have muscle weakness,
lack of coordination, unspecified delay in development, and delayed milestones.
There is also evidence that E.P.C. had “kind of a flat [a]ffect” when interacting
with her parents at a visitation eight days after removal, bonded easily with
strangers, became very attached to each of her foster families, and excelled
27
since being placed into foster care. The trial court also heard testimony that
Father only interacted briefly with E.P.C. at visitations and would quickly give the
child back to Mother. Father completed his service plan, but there is evidence
that he was not particularly forthcoming during the process and should have
learned more than what he did from working services.
In addition, Father is estranged from his mother, and there is evidence that
he may have engaged in an incestuous relationship with his mother for twenty-
five years. Father denied having had any such relationship with his mother, but
the trial court heard evidence that Father physically confronted Quentin Little,
accusing him of having an intimate relationship with his mother, and that Father
told Julie Little about the incestuous relationship before she learned of the
relationship from B.M. The trial court also heard testimony that Father had
physically assaulted his mother as recently as 2008, that Father has a history of
physically assaultive behavior, and that he was exposed to sexual and physical
abuse as a child.
Father, however, represented to Dr. Wiggins that he had a typical
childhood, denying any abuse or mental health issues. Dr. Wiggins testified that
Father is intelligent but that he is extremely defensive and has a “great deal of
denial.” She also described how Father’s relationship with B.M. “could affect him
on so many levels,” including problems with a lack of boundaries and attachment
disorders. Dr. Wiggins opined that Father had not dealt with these issues and
that they could lead to his failure to recognize neglect—such as leaving a child
28
home alone or failing to feed and nurture the child—and prevent him from
bonding with his own children.
Viewing the evidence in the light most favorable to the finding and
judgment, we conclude that the evidence is such that the factfinder could
reasonably form a firm belief or conviction that termination of Father’s parental
rights is in E.P.C.’s best interest. See J.P.B., 180 S.W.3d at 573. We also
conclude, viewing all the evidence in a neutral light, that the factfinder could
reasonably form a firm conviction or belief that termination is in E.P.C.’s best
interest. See H.R.M., 209 S.W.3d at 108. We therefore hold that the evidence is
legally and factually sufficient to support the trial court’s best interest finding, and
we overrule the remainder of Father’s sole issue.
V. Mother’s Appeal
In one issue, Mother contends that the evidence is legally and factually
insufficient to support the trial court’s finding that the appointment of the
Department as E.P.C.’s permanent managing conservator is in the child’s best
interest.
A. Applicable Law
The Supreme Court of Texas has explained,
Section 153.002 provides that the primary consideration in
determining issues of conservatorship and possession of and access
to the child is always the child’s best interest. Section 153.005
authorizes the appointment of a managing conservator, and
provides that the managing conservator must be “a parent, a
competent adult, an authorized agency, or a licensed child-
placement agency.” The Code creates a rebuttable presumption
29
that a parent will be named a child’s managing conservator, unless
the court finds that such appointment would not be in the child’s best
interest “because the appointment would significantly impair the
child’s physical health or emotional development.” . . .
....
. . . [T]he quantum of proof required to support a termination
decision differs from the level necessary to support a
conservatorship appointment. Termination decisions must be
supported by clear and convincing evidence. Due process compels
this heightened standard because terminating the parent-child
relationship imposes permanent, irrevocable consequences. On the
other hand, a finding that appointment of a parent as managing
conservator would significantly impair the child’s physical health or
emotional development is governed by a preponderance-of-the-
evidence standard. These differing proof standards, in turn, affect
the method of appellate review, which is more stringent for
termination decisions than for those regarding conservatorship. In
evaluating the factual sufficiency of evidence supporting termination,
an appellate court must consider “whether the evidence is such that
a factfinder could reasonably form a firm belief or conviction about
the truth of the State’s allegations.” Legal-sufficiency review is
similarly heightened when parental rights have been terminated.
Conservatorship determinations, in contrast, are subject to review
only for abuse of discretion, and may be reversed only if the decision
is arbitrary and unreasonable. Because different standards apply,
evidentiary review that results in reversal of a termination order may
not yield the same result for a conservatorship appointment. As we
have said, a “finding that must be based on clear and convincing
evidence cannot be viewed on appeal the same as one that may be
sustained on a mere preponderance.”
J.A.J., 243 S.W.3d at 614–16 (citations omitted).
In light of this recent explanation by the Supreme Court of Texas of the
different standards of review for termination and conservatorship, we decline
Mother’s entreaty that we apply a heightened standard to the trial court’s
30
conservatorship determination in this case. Instead, as we explained a few years
ago,
The trial court has wide latitude in determining the best
interests of a minor child. We will reverse the judgment of the trial
court only when it appears from the record as a whole that the court
has abused its discretion. A trial court abuses its discretion if it acts
arbitrarily and unreasonably or without reference to guiding
principles. An abuse of discretion does not occur as to factual
matters as long as some evidence of a substantive and probative
character exists to support the trial court’s decision. Legal and
factual sufficiency are not independent grounds for review in
conservatorship cases, but they are relevant factors in deciding
whether an abuse of discretion occurred. In determining whether
there has been an abuse of discretion because the evidence is
legally or factually insufficient to support the trial court’s decision, we
engage in a two-pronged inquiry: (1) Did the trial court have enough
information upon which to exercise its discretion; and (2) did the trial
court err in applying its discretion? The traditional sufficiency review
comes into play with regard to the first question. With regard to the
second question, we determine, based on the elicited evidence,
whether the trial court made a reasonable decision.
....
A court’s primary consideration in any conservatorship case
shall always be the best interest of the child. Courts may use the
nonexhaustive list of Holley factors to determine the child’s best
interest. . . .
In re W.M., 172 S.W.3d 718, 724–26 (Tex. App.—Fort Worth 2005, no pet.)
(citations omitted). Because the Holley factors are set forth above, we do not
repeat them here, but we apply them in deciding whether the trial court abused
its discretion by finding that the appointment of the Department as E.P.C.’s
permanent managing conservator is in E.P.C.’s best interest. See id. at 725–26.
31
B. Discussion
Reynolds testified that Mother appeared to be appropriately bonded to and
to show affection for E.P.C. Rogers similarly testified that Mother appeared to
interact appropriately with the child. The trial court also heard testimony that
Mother successfully completed her service plan and that Mother did not have any
part in the decision to leave E.P.C. alone in the apartment. However, Mother
does have responsibility for E.P.C.’s failure to thrive diagnosis because the
evidence establishes that Mother was one of E.P.C.’s primary caretakers.
There is also evidence of Mother’s occasionally callous behavior toward
others. Quentin Little testified that he saw Mother slap Patrick, the man with
Asperger’s syndrome who was living at the Littles’ home when Mother and
Father lived there, and Julie Little testified that she had seen Mother push, hit,
and verbally abuse Patrick. In addition, there is evidence that Mother allowed a
baby rabbit to die after begging the Littles to keep it and promising to care for it
and that Mother abused the Littles’ family dog.
Mother has also not ever been able to live independently and has
dependent personality traits, and her lack of structure causes her to make poor
decisions that put herself and her child at risk. Dr. Wiggins opined that Mother’s
condition was consistent with someone whose child had been diagnosed as
failure to thrive. Mother is not close with her family and does not have anyone
other than Father to help her care for the child. She also has been the victim of
physical and mental abuse through her childhood. Mother also admitted having
32
self-mutilated. Dr. Wiggins testified that Mother has not addressed the issues
from her childhood and that she has repressed those feelings.
The evidence presented to the trial court is obviously conflicting, but we do
not resolve the conflicts, for that is within the factfinder’s province. We thus hold
that the trial court had sufficient information upon which to exercise its discretion
and did not abuse its discretion by naming the Department as E.P.C.’s
permanent managing conservator. See W.M., 172 S.W.3d at 725. We therefore
overrule Mother’s sole issue.
VI. Conclusion
Having overruled Father’s and Mother’s respective issues, we affirm the
trial court’s judgment.
ANNE GARDNER
JUSTICE
EN BANC
DAUPHINOT, J., filed a concurring opinion.
WALKER, J., filed a concurring opinion, in which GABRIEL, J., joins.
DELIVERED: August 30, 2012
33
COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-11-00025-CV
IN THE INTEREST OF E.P.C.,
A CHILD
----------
FROM THE 323RD DISTRICT COURT OF TARRANT COUNTY
----------
CONCURRING OPINION
----------
I agree with the majority’s conclusion that the trial court did not abuse its
discretion by appointing the Texas Department of Family and Protective Services
as E.P.C.’s permanent managing conservator. I further agree that the trial
court’s judgment should be affirmed. But for the reasons expressed in my
dissenting and concurring opinion in In re A.J.M.,1 I believe that J.B.C. (Father)
forfeited his conclusory sufficiency issue.
In his sole issue, Father contends that the evidence is legally and factually
insufficient to support the trial court’s endangerment and best interest findings.
In his timely-filed statement of points, Father stated,
A new trial should be granted to [Father] because the evidence is
legally and factually insufficient to support this Court’s judgment.
Specifically, the evidence is legally and factually insufficient to
support this Court’s judgment in that the State produced insufficient
evidence to justify the termination of [Father’s] parental rights.
Former section 263.405(i) provided that “a claim that a judicial decision is
contrary to the evidence or that the evidence is factually or legally insufficient is
not sufficiently specific to preserve an issue for appeal.”2 Based on the
reasoning of my
1
See No. 02-11-00137-CV, 2012 WL 2877457, at *12–14 (Tex. App.—Fort
Worth July 16, 2012, no pet. h.) (op. on reh’g) (en banc) (Dauphinot, J.,
dissenting and concurring).
2
Act effective Sept. 1, 2005, 79th Leg., R.S., ch. 176, § 1, 2005 Tex. Gen.
Laws 332, 332 (adding subsection (i), requiring statement of points, to section
263.405 of the family code), repealed by Act effective Sept. 1, 2011, 82nd Leg.,
R.S., ch. 75, §§ 5, 8, 2011 Tex. Gen. Laws 348, 349 (deleting subsection (i) but
noting that former section 263.405, including subsection (i), is still in effect for
final orders rendered before September 1, 2011).
2
dissenting and concurring opinion in In re A.J.M.,3 I believe that Father forfeited
his issue.
LEE ANN DAUPHINOT
JUSTICE
DELIVERED: August 30, 2012
3
See 2012 WL 2877457, at *12–14.
3
COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-11-00025-CV
IN THE INTEREST OF E.P.C.,
A CHILD
----------
FROM THE 323RD DISTRICT COURT OF TARRANT COUNTY
----------
CONCURRING OPINION
----------
I concur in the majority opinion’s disposition of this appeal. For the
reasons set forth in my concurring opinion in In re A.J.M., No. 02-11-00137-CV,
2012 WL 2877457, at *10–12 (Tex. App.—Fort Worth July 16, 2012, no pet.) (op.
on reh’g) (en banc) (Walker, J., concurring), I would hold that Father waived his
sole issue on appeal by not including that issue in his statement of points and
also by not making an as-applied challenge to former Texas Family Code section
263.405(i). See Act effective Sept. 1, 2005, 79th Leg., R.S., ch. 176, § 1, 2005
Tex. Gen. Laws 332, 332 (adding subsection (i), requiring statement of points, to
section 263.405 of the family code), repealed by Act effective Sept. 1, 2011,
82nd Leg., R.S., ch. 75, §§ 5, 8, 2011 Tex. Gen. Laws 348, 349 (deleting
subsection (i) but noting that former section 263.405 remains in effect for final
orders rendered before September 1, 2011). Accordingly, I would affirm the trial
court’s termination order. Because the majority opinion affirms the trial court’s
termination order on different grounds, I respectfully concur.
SUE WALKER
JUSTICE
GABRIEL, J., joins.
DELIVERED: August 30, 2012
2