in the Interest of K.N.D., a Child

Opinion issued December 21, 2012

In The

Court of Appeals
For The

First District of Texas
————————————
NO. 01-12-00584-CV
———————————
IN THE INTEREST OF K.N.D., A CHILD

On Appeal from the 314th District Court
Harris County, Texas
Trial Court Case No. 2011-03002 J

DISSENTING OPINION

I respectfully dissent from the panel’s opinion, which reverses the trial

court’s termination of appellant A.D.’s parental rights to her minor child, K.N.D.

The panel concludes that the evidence was legally insufficient to support the

termination of A.D.’s parental rights under Texas Family Code section
161.001(1)(O).1 In my view, the majority misconstrues the plain language of the

Family Code, misapplies the standard of proof, and erroneously refuses to consider

major portions of the record evidence material to the proper disposition of this

case. I would apply the standard of proof required by the legislature in the Family

Code and by the supreme court of this state, and I would hold that the evidence is

legally and factually sufficient to support the termination of A.D.’s parental rights

based on the plain meaning and historical construction of subsection 161.001(1)(O)

and the trial court’s findings that A.D. violated Family Code subsection

161.001(1)(O) and that termination of her parental rights was in K.N.D.’s best

interest. I agree with the panel opinion to the extent that it holds that the evidence

was sufficient to support the trial court’s appointment of the Texas Department of

Family and Protective Services (“DFPS”) as sole managing conservator of K.N.D.

Background

I include the following fact section to supplement the facts recited by the

majority.

A.D.’s first child, S.L.A.D., was removed from her care after reported

incidents of medical neglect and neglectful supervision. DFPS provided A.D. with

a Family Service Plan at that time, but she did not complete it. A.D. eventually

agreed that she could not adequately care for S.L.A.D. and voluntarily relinquished

1
See TEX. FAM. CODE ANN. § 161.001(1)(O) (Vernon Supp. 2012).
2
her parental rights to S.L.A.D. The trial court held the hearing terminating A.D.’s

parental rights to S.L.A.D. on April 19, 2011, while A.D. was pregnant with

K.N.D., the child who is the subject of this appeal. The trial court signed the

decree terminating A.D.’s rights to S.L.A.D. on May 5, 2011, after K.N.D.’s birth.

Less than two weeks after the hearing terminating her rights to S.L.A.D, but

before the trial court entered the decree of termination regarding S.L.A.D., when

A.D. was thirty-seven weeks pregnant with K.N.D., A.D. was involved in a violent

encounter with a man who was either her roommate or her pimp. A.D. was taken

to the hospital as a result of this violence, where she gave birth to K.N.D. on April

28, 2011.

On April 29, 2011, the day after K.N.D.’s birth, according to caseworker

Candice Chandler, DFPS “received a referral concerning the Neglectful

Supervision of [K.N.D.] by her mother, [A.D.].” Chandler completed an

investigation, and on May 3, 2011, while K.N.D. was still in the hospital, DFPS

filed its “Original Petition for Protection of a Child, for Conservatorship, and for

Termination in Suit Affecting the Parent-Child Relationship” in the same trial

court that was considering termination of A.D.’s rights to S.L.A.D.

DFPS filed the affidavit of Candice Chandler in support of its petition.

Chandler averred that, on April 29, 2011, DFPS “received a referral concerning the

Neglectful Supervision of [K.N.D.] by her mother, [A.D.].” The affidavit provided

3
that A.D., “while 37 weeks pregnant, was involved in a domestic dispute with her

two roommates resulting in her falling down and going to the hospital.” Chandler

further stated,

Reportedly, the female roommate came to the hospital and informed a
nurse that both she and [A.D.] were prostitutes and the male
roommate was their pimp. It was reported that [A.D.] has a history
with the agency where her first child, [S.L.A.D.], was placed for
adoption because she could not care for the child.

Chandler recounted her investigation of the report, stating that she made

face-to-face contact with A.D. on May 2, 2011. A.D. told Chandler that the male

roommate was just a roommate and that he had brought the other female to the

apartment “a few weeks ago.” According to A.D., she was not involved in the

physical altercation between her two roommates, and, instead, “she felt dizzy and

fell down.” A.D. reported that she was being supported financially by K.N.D.’s

biological father, who resided in Florida, that she had given up her first daughter,

S.L.A.D., for adoption because she was not stable enough at that time to care for

her, but that at the time of the interview on May 2, 2011, three days before the trial

court entered the order terminating her rights to S.L.A.D., she had an apartment

and the means to care for K.N.D.

Chandler also spoke with the hospital social worker, Betty Fortson.

According to Fortson, A.D. reported that “she was being chased by the male

roommate and he stepped on her house shoe which caused her to fall,” and A.D.

4
“was being supported by the female roommate but did not mention in what

capacity exactly.”

Chandler continued her investigation by speaking to the “apartment worker,

Matilda,” about her account of the altercation. Matilda reported that A.D. came to

the apartment office and asked how she could have someone removed from her

apartment. When A.D. saw the male roommate approaching the office, she left

through the side door. Matilda saw the man chase A.D., and A.D. fell while the

man was chasing her, so Matilda called the police. Matilda also stated that “at

some point, the male roommate kicked [A.D.’s] door in because apartment

management had to have the locks changed.” The male roommate “was escorted

off the premises by the police and [A.D.] was taken to the hospital via ambulance.”

A.D. then called the apartment office the following day and gave permission for

the male roommate to have a key to the apartment.

Finally, Chandler spoke with the case worker assigned to S.L.A.D.’s case,

Jasmin Green. Green was not aware that A.D. was pregnant and thought that A.D.

was “a flight risk.” Green related that A.D. “will say that she will comply with

agency recommendations, but then will not make herself available once it is time

to work the services.” A.D. had “mental health issues and has not received any

treatment yet.” The affidavit also recounted A.D.’s history with child protective

services (“CPS”), including incidents of “medical neglect” and “neglectful

5
supervision” of S.L.A.D. that resulted in termination of A.D.’s parental rights to

S.L.A.D. at a hearing on April 19, 2011, i.e., nine days before K.N.D.’s birth.

Chandler also averred that A.D. had “an assault charge from 2009.”

The affidavit stated that DFPS sought conservatorship of K.N.D. “[d]ue to

concerns for the home environment, including but not limited to the domestic

violence in the home, along with [A.D.’s] prior unwillingness to work services

with the agency.” Chandler also cited the “instability of the home environment

and [A.D.] as a caregiver,” and stated that “[t]here is a concern for [A.D.’s] being a

flight risk. There is prior CPS history where she has moved before the

investigation could be completed and subsequent CPS history has been validated

warranting the removal of her other daughter [S.L.A.D.].”

That same day, May 3, 2011, the trial court entered its “Order for Protection

of a Child in an Emergency” and appointed a guardian ad litem for K.N.D.

On June 30, 2011, the trial court held a status hearing, and DFPS filed a

Family Service Plan listing specific requirements for A.D. to complete in order to

regain custody of K.N.D. The trial court held additional status hearings in October

2011 and February 2012.

A year after the trial court entered the emergency order, on May 1, 2012, the

trial court held the bench trial on the termination of A.D.’s parental rights to

6
K.N.D., and A.D. appeared through her attorney but did not appear in person.2

DFPS filed its permanency plan and progress report, which provided that K.N.D.’s

foster parents were willing to adopt her. The report also provided that A.D. had

completed her psychological assessment and individual counseling. It stated that

A.D. had informed DFPS that she was taking GED classes and parenting classes

but that she did not provide verification to DFPS. It further stated:

[A.D.] has obtained employment with Debok Home Healthcare where
she is employed as a home health provider. [A.D.] provided case
worker with a pay stub for April 2012. In regards to [A.D.] seeking
assistance for her past mental health diagnosis she completed a self-
reported screening at [the Mental Health and Mental Retardation
Authority of Harris County (“MHMRA”)] and was told that she does
not meet the criteria for assistance. Case worker has made a referral
for [A.D.] to have a psychiatric evaluation completed. [A.D.]
continues to be without stable housing at this time. She continues to
obtain residence with various partners without any consideration for
safety. She has not been able to demonstrate the knowledge acquired
in her parenting classes as she often has to be prompted to attend to
her child’s basic needs, such [as] checking and changing the child’s
diaper. Her past history along with her current lack of permanent
residence is of great concern as it previously resulted in her first born
being removed from her care for medical neglect.

The only witness at the trial was Jasmin Green, the case worker for both

S.L.A.D. and K.N.D. Green testified that A.D.’s rights to S.L.A.D. were

terminated when A.D. relinquished her rights “just before trial started on that

case.” Green testified that “a lady claiming to be a prostitute” came to the hospital

2
Green, the case worker, testified that A.D. was present at the hearing when the
trial court set the hearing for trial on May 1, 2012, and that the attorney for DFPS
“told everybody in front of [the trial court that] this would be on May the 1st.”
7
while A.D. was giving birth to K.N.D. and told the investigator and the hospital

social worker that A.D. was a prostitute and that they had gotten into a fight with a

pimp. She testified that A.D. claimed at the time that she had fought with a

roommate and was injured when she fell down. Given the inconsistencies in the

stories, DFPS investigated further by talking to the apartment manager of the

complex where the events occurred. DFPS learned that the person A.D.

represented as a roommate was not on the lease. The apartment manager saw this

man chase A.D. in the parking lot and saw him “stomping on [A.D.]—hitting

[A.D.]”

Green testified that, in both the prior case involving S.L.A.D. and the present

case involving K.N.D., there were instances of domestic violence. Green stated

that A.D. did not have stable living conditions or stable employment, which was a

concern of DFPS in both cases. Green specified that the only proof of employment

ever received by DFPS was an “intent to hire letter stating that [A.D.] would be

employed by a credit counseling service” and then a pay stub reflecting that A.D.

had been paid forty dollars by a home health care service. Green testified that

A.D.’s Family Service Plan required her to maintain stable employment. Green

stated that A.D. was not able to support K.N.D.

Green testified that A.D. was required to take domestic-violence counseling

because “she has a history of taking up with shiftless, marginal or criminal men.”

8
She stated that A.D. had “been involved with at least two men during the course of

this case.” A.D. was also required to do a psychiatric evaluation. She went to

MHMRA and provided a form to DFPS stating that she did not qualify for services

at that time. Green also testified that A.D. was supposed to complete her GED, but

she never provided any evidence that she tried to do so. Green stated that while

A.D. did take parenting classes, her visits with K.N.D. were not “appropriate.”

She testified that during those visits, A.D. “attempts to bond with her child. She’ll

play with her, but she does not meet her basic needs such as diapering, feeding.

She has to be prompted to do those things.” Green also testified regarding a

previous incident in which S.L.A.D. had “an emergency condition and abscess, an

injury that required surgery on the brain,” but A.D. was unavailable to give consent

because “she had gone to Florida in 2009 and didn’t come back until sometime in

2010.”

Green testified that she believed termination of A.D.’s parental rights was in

K.N.D.’s best interest and that DFPS’s goal was to have K.N.D. adopted. Green

testified that “the domestic violence, the fight, whether he was a pimp or a

roommate or whatever, endangered the child.” She further testified that DFPS was

concerned that “these behaviors have been going on for a long time, particularly

with the men, not having a job, and et cetera, that it could endanger [K.N.D.].”

9
 On cross-examination, Green testified that when she spoke to A.D. a month

before the trial A.D. did not verbally express any interest in having K.N.D.

returned. Green testified that A.D. told her that “she just became employed

working part time at a home health care firm and she’s currently residing with a

gentleman that she’s known for about six months.” Green conceded that the child

was not physically injured by A.D.’s actions.

K.N.D.’s guardian ad litem also questioned Green. Green again testified that

“the violence going on either with the pimp, boyfriend or friend in [A.D.’s]

apartment” would endanger the child. Green believed that A.D. had “gone through

the family service plan somewhat” but not “sufficiently enough to set aside the

potential endangerment of placing this child back with her.” Green testified that

DFPS intended to place K.N.D. for adoption with her current foster family, which

was the same family that had adopted her sibling, S.L.A.D. Green stated that

K.N.D. had bonded with her sister and the caretaker, and the foster family was

willing to adopt her. Green believed adoption by the foster family was in K.N.D.’s

best interest.

DFPS also presented several exhibits at trial, which were admitted without

objection,3 including: (1) the “Interlocutory Decree for Termination” of A.D.’s

3
A.D.’s attorney objected to DFPS’s exhibit 8, which was a record of the 2009
arrest for assault, which had later been dismissed. The trial court sustained the
objection.
10
rights to S.L.A.D. and the final decree terminating A.D.’s rights to S.L.A.D.

following her voluntary relinquishment of parental rights; (2) the Family Service

Plan for K.N.D.’s case and other orders relating to the plan; (3) an order requiring

A.D. to remain in the courtroom in order to take a drug test, which, according to

DFPS’s attorney, she “didn’t stick around for”; and (4) documents regarding a

prostitution arrest in Florida showing that A.D. paid the assessed fine.

DFPS sought termination of A.D.’s parental rights to K.N.D. under Family

Code subsections 161.001(1)(D), 161.001(1)(E), and 161.001(1)(O). The trial

court stated on the record, “As far as I understand, [A.D.] did not complete her

Court ordered service. . . .” A.D. did not challenge the trial court’s statement

regarding the court ordered service plan.

The trial court rendered its decree for termination on June 5, 2012. It

terminated A.D.’s parental rights to K.N.D., finding “by clear and convincing

evidence” that termination was in K.N.D.’s best interest and that A.D. had “failed

to comply with the provisions of a court order that specifically established the

actions necessary for [her] to obtain the return of this child . . . pursuant to

§161.001(1)(O), Texas Family Code.” It further found that appointment of A.D. as

K.N.D.’s managing conservator was not in K.N.D.’s best interest, and it appointed

DFPS as the sole managing conservator. The trial court did not make any findings

under subsections 161.001(1)(D) or (E).

11
 A.D. moved for a new trial, arguing that the evidence was legally and

factually insufficient to support the trial court’s conclusion that A.D. “failed to

comply with 161.001(1)(O), Texas Family Code.” A.D. provided an affidavit with

her motion for new trial in which she averred, “I am employed, have housing, took

my parenting class, submitted myself to MHMRA as directed by CPS and they

rejected me, and visited with my child.” The trial court denied the motion for new

trial and this appeal followed.

Sufficiency of the Evidence Supporting Termination

The panel majority concludes that “the record evidence is legally insufficient

to clearly and convincingly establish that the child was removed from her mother

‘under Chapter 262 for the abuse or neglect of the child,’ as is required to support

termination under the sole ground found by the trial court, section 161.001(1)(O).”

Slip Op. at 2. Other than the fact that “A.D. was a prostitute who was physically

abused by her pimp on one occasion,” the majority finds no evidence in the record

material to its decision. Slip Op. at 16.

I disagree with the majority’s recitation of the relevant evidence and its

application of the standard of proof. I would hold that the evidence was legally

and factually sufficient to support termination of A.D.’s parental rights to K.N.D.

12
A. Sufficiency of Evidence for Termination Under Subsection
161.001(1)(O)

In a case to terminate parental rights brought by DFPS under section

161.001, DFPS must establish, by clear and convincing evidence, (1) that the

parent committed one or more of the enumerated acts or omissions justifying

termination and (2) that termination is in the best interest of the child. TEX. FAM.

CODE ANN. §161.001 (Vernon Supp. 2012); In re C.H., 89 S.W.3d 17, 23 (Tex.

2002). “Clear and convincing evidence” is “the measure or degree of proof that

will produce in the mind of the trier of fact a firm belief or conviction as to the

truth of the allegations sought to be established.” TEX. FAM. CODE ANN. § 101.007

(Vernon 2008); In re J.F.C., 96 S.W.3d 256, 264 (Tex. 2002). “Only one predicate

finding under section 161.001(1) is necessary to support a judgment of termination

when there is also a finding that termination is in the child’s best interest.” In re

A.V., 113 S.W.3d 355, 362 (Tex. 2003).

The trial court terminated A.D.’s parental rights to K.N.D. under subsection

161.001(1)(O). This subsection provides that a court may involuntarily terminate a

parent’s rights to her child if the parent has

failed to comply with the provisions of a court order that specifically
established the actions necessary for the parent to obtain the return of
the child who has been in the permanent or temporary managing
conservatorship of the [DFPS] for not less than nine months as a result
of the child’s removal from the parent under Chapter 262 for the
abuse or neglect of the child.

13
TEX. FAM. CODE ANN. § 161.001(1)(O).

A.D. does not dispute that K.N.D. was in DFPS’s conservatorship for at

least nine months, nor does she dispute that she failed to comply with the

provisions of her Family Service Plan as adopted by the trial court in its May 17,

2011 order. Rather, A.D. argues—and the majority agrees—that the evidence is

insufficient to show that K.N.D. was initially removed from her due to “abuse or

neglect” under Family Code Chapter 262 and that this evidentiary insufficiency

requires reversal of the trial court’s judgment terminating A.D.’s rights to K.N.D.

The majority states, “[A]ssuming all facts that reasonably could have been

found by the trial court in support of its conclusion that removal had occurred ‘for

the abuse or neglect of the child,’ the fact that A.D. was a prostitute who was

physically abused by her pimp on one occasion is legally insufficient to establish

that A.D. abused or neglected her unborn child, or that the subsequent removal of

the child occurred because of such abuse or neglect.” Slip Op. at 16. First, this is

not the case, as shown by the recitation of the record above. Second, DFPS

produced clear and convincing evidence of A.D.’s abusive and neglectful behavior

that endangered both K.N.D. and her sibling S.L.A.D. and that had not been

corrected at the time of the termination trial in compliance with her court-ordered

Family Service Plan, and DFPS also produced clear and convincing evidence that

it was in K.N.D.’s best interest that A.D.’s parental rights be terminated.

14
 At trial, DFPS presented evidence that A.D. was involved in prostitution—a

criminal activity—in the form of the initial report made to DFPS, in which a

woman told DFPS that she and A.D. were prostitutes and that A.D. had been in a

violent fight with their pimp, and in the form of A.D.’s March 2010 citation in

Florida for prostitution. Criminal conduct on the part of a parent exposes a child to

substantial risk of harm. See Avery v. State, 963 S.W.2d 550, 553 (Tex. App.—

Houston [1st Dist.] 1997, no writ) (stating that past criminal conduct, before and

after birth, is relevant to showing of inability to parent).

DFPS further presented the testimony of Jasmin Green, A.D.’s caseworker,

that A.D. had a history of dating unsuitable men who posed a danger to her child.

Green also recounted the events leading to DFPS’s investigation of A.D.’s ability

to parent K.N.D. A.D. was injured in an altercation with her roommate or pimp

while she was thirty-seven weeks pregnant, which endangered K.N.D. The

violence A.D. was involved with immediately prior to K.N.D.’s birth did more

than threaten “metaphysical injury or the possible ill effects of a less-than-ideal

family environment.” Tex. Dep’t of Human Servs. V. Boyd, 727 S.W.2d 531, 533

(Tex. 1987). It exposed K.N.D. to loss or injury. See id.; see also Jordan v.

Dossey, 325 S.W.3d 700, 723 (Tex. App.—Houston [1st Dist.] 2010, pet. denied)

(“‘To endanger’ means to expose a child to loss or injury or to jeopardize a child’s

emotional or physical health.”); In re J.T.G., 121 S.W.3d 117, 125 (Tex. App.—

15
Fort Worth 2003, no pet.) (holding that abusive or violent conduct by a parent or

other resident of the child’s home supports conclusion that child’s surroundings

endanger his physical or emotional well-being).

Green also testified that, both at the time K.N.D. was removed from A.D.

and at trial over a year later, A.D. had no stable employment or residence and was

unable to provide for K.N.D. in any meaningful way. DFPS presented evidence

that A.D. had not cooperated with it during the pendency of termination

proceedings relating to S.L.A.D. and did not complete the Family Service Plan for

either S.L.A.D. or K.N.D. that attempted to help her gain employment and stable

housing. See TEX. FAM. CODE ANN. § 261.001(4)(B)(iii) (Vernon Supp. 2012)

(providing that neglect encompasses “the failure to provide a child with food,

clothing, or shelter necessary to sustain the life or health of the child, excluding

failure caused primarily by financial inability unless relief services have been

offered and refused”) (emphasis added); In re S.D., 980 S.W.2d 758, 763 (Tex.

App.—San Antonio 1998, pet. denied) (subjecting child to life of uncertainty and

instability endangers child’s physical and emotional well-being); In re V.V., 349

S.W.3d 548, 554 (Tex. App.—Houston [1st Dist.] 2010, pet. denied) (holding that

our citizenry accords parental rights “only to those fit to accept the accompanying

responsibilities”) (quoting A.V., 113 S.W.3d at 361).

16
 Finally, DFPS presented evidence of A.D.’s actions of medical neglect and

neglectful supervision of S.L.A.D., including an incident in which S.L.A.D. had

“an emergency condition and abscess, an injury that required surgery on the brain,”

but A.D. was unavailable to give consent for treatment because “she had gone to

Florida in 2009 and didn’t come back until sometime in 2010.” These facts are

clearly sufficient to show convincingly that A.D. had an ongoing pattern of abusive

or neglectful behavior that endangered both S.L.A.D. and K.N.D. and that she had

not corrected that behavior, as required by her Family Service Plan, so that

termination of her parental rights was in K.N.D.’s best interest.

The majority, however, disagrees that the evidence is legally sufficient to

support termination of A.D.’s rights to K.N.D. on several grounds, each of which I

would find erroneous.

First, the majority adds the requirement to subsection 161.001(1)(O) that

DFPS must prove at the termination trial by clear and convincing evidence,

excluding evidence from the court’s prior proceedings in the case, that the parent

whose rights it seeks to terminate committed specific acts of abuse or neglect

directed at the specific child at the time of the initial removal that justified removal

under Family Code Chapter 262. Nothing in the language of the Family Code or in

the Texas Supreme Court jurisprudence construing subsection 161.001(1)(O)

supports adding a hurdle to termination proceedings requiring DFPS to prove again

17
at the trial on termination that the child was actually removed from parental

custody under Chapter 262 for abuse or neglect. The Code provides that proof be

made at the time of the initial removal that removal was necessary because of the

parent’s abuse or neglect of the child and that it is in the child’s best interest that

she remain in the custody of DFPS for her own safety and protection. In requiring

that this be proved again, long after the fact, the majority defies both the plain

language of the Code and the proper construction of the Code as established by

supreme court precedent.

Second, even if DFPS did have to prove again at the termination trial that the

child was properly removed and placed in the custody of DFPS because of acts of

abuse or neglect by the parent, the majority opinion would still be erroneous

because of its constricted view of probative evidence. The majority states that the

fact that the procedures outlined in Family Code Chapter 262 for the involuntary

removal of an abused or neglected child were followed in this case does not imply

that K.N.D. was subjected to abuse or neglect. It further states that “even if the

child was subjected to abuse or neglect, that fact alone does not establish that any

particular parent was responsible for such abuse or neglect.” Slip Op. at 12–13.

The majority’s self-constricted view of the probative evidence ignores the

procedures for removal of a child as set out in the Family Code. It also ignores the

records from prior proceedings in this case. The prior proceedings plainly show

18
that DFPS followed the procedures set out in Chapter 262 and obtained judicial

findings at the time of removal that the removal was justified by A.D.’s neglect

and abuse of K.N.D. and that it was in K.N.D.’s best interest that she remain in the

custody of DFPS for her own safety. The prior proceedings further show that the

court established a Family Service Plan setting out the steps necessary for A.D. to

correct her behavior and to regain custody of K.N.D., which A.D. did not

complete. The majority also ignores the trial court’s right to take judicial notice of

its own files.

The majority further restricts its conception of the probative evidence by

requiring that proof of “abuse or neglect” relevant to termination under subsection

161.001(1)(O) must be limited to proof that, immediately prior to removal of the

child from that parent, the specific parent whose rights are sought to be terminated

committed specific acts directed at the specific child whose best interests are at

issue. This requirement, however, which has been adopted by this Court in recent

termination cases, directly contradicts the requirements for proof of abuse or

neglect set out in Family Code Chapter 262 for use under section 161.001 and

approved by the Texas Supreme Court.

In this case, the majority’s severely constricted view of the probative

evidence causes it to ignore entirely the material evidence introduced by DFPS at

the termination trial establishing A.D.’s ongoing pattern of conduct that posed

19
specific threats of danger to K.N.D. should she be returned to A.D.’s custody on

the ground that this behavior had not yet directly caused specifically identified

harm to K.N.D.

Finally, the majority ignores all of the material evidence of abuse, neglect,

and child endangerment posed by A.D.’s ongoing pattern of behavior testified to

by DFPS at the termination hearing in support of its argument that A.D. had not

corrected the abusive and neglectful behavior that originally endangered K.N.D.

In short, it ignores A.D.’s pattern of behavior that led to imposition of her Family

Service Plan for K.N.D., the evidence that she failed to complete the plan by

correcting that behavior, and, thus, the evidence on which the trial court based its

conclusion that termination was in K.N.D.’s best interest and that A.D.’s parental

rights should be terminated.

I address each of these grounds for my dissent below.

B. Construction of Section 161.001(1)(O) as Requiring Proof at the
Termination Hearing of Specific Acts of Abuse or Neglect Directed at
the Specific Child that Justified Involuntary Removal Under Family
Code Chapter 262

In order to obtain termination of a parent’s rights to a child under subsection

161.001(1)(O), the majority requires that DFPS must prove by clear and

convincing evidence at the termination trial that the child was involuntarily

removed from the parent’s custody by DFPS for specific acts of abuse or neglect

directed at that specific child. See Slip Op. at 13–15. The addition of this
20
requirement to the proof required to support termination under subsection

161.001(1)(O) makes no sense in light of the many safeguards in the Family Code

which require proof, at the time of removal, that the child is abused or neglected,

that removal from the parent’s custody is necessary for the safety of the child, that

proper procedures for removal are followed, and that it is in the best interest of the

child to be taken into and remain in DFPS’s custody at that time.

The majority opinion first erroneously states that, although Chapter 262

authorizes the involuntary removal of a child when “there is an immediate danger

to the physical health or safety of the child,” the trial court’s findings justifying

involuntary removal “do not necessarily imply that the removed child was

subjected to abuse or neglect” or “that any particular parent was responsible for

such abuse or neglect.” Slip Op. at 12–13. This claim is contradicted by the

language of Chapter 262, which permits involuntary removal only when the child

is in immediate danger. In the context of Chapter 262, such a circumstance can

only occur as a result of abuse or neglect. The record in this appeal demonstrates

that DFPS followed the procedures set out in Chapter 262 to involuntarily remove

K.N.D. from A.D.’s custody and that the trial court made the appropriate findings

to remove K.N.D. from A.D.’s custody for abuse or neglect and to place her in the

custody of DFPS. Thus, the majority’s conclusion that it cannot infer that K.N.D

was removed for abuse or neglect is also contradicted by the record, which fully

21
permits a rational inference that K.N.D. was removed for abuse or neglect and,

indeed, logically requires that inference.

Chapter 262 sets out the procedures in a suit by a governmental entity to

protect the health and safety of a child. TEX. FAM. CODE ANN. §§ 262.001–

262.309 (Vernon 2008 & Supp. 2012). Section 262.101 allows a governmental

entity to file a petition requesting permission to take possession of a child under

certain circumstances. It provides:

An original suit filed by a governmental entity that requests
permission to take possession of a child without prior notice and a
hearing must be supported by an affidavit sworn to by a person with
personal knowledge and stating facts sufficient to satisfy a person of
ordinary prudence and caution that:

(1) there is an immediate danger to the physical health or
safety of the child or the child has been a victim of neglect or
sexual abuse and that continuation in the home would be
contrary to the child’s welfare;

(2) there is no time, consistent with the physical health or
safety of the child, for a full adversary hearing under Subchapter
C; and

(3) reasonable efforts, consistent with the circumstances
and providing for the safety of the child, were made to prevent or
eliminate the need for the removal of the child.

TEX. FAM. CODE ANN. § 262.101 (Vernon 2008) (emphasis added).

Section 262.102(a) allows a court to issue an emergency order authorizing

possession of a child if it makes findings consistent with the terms of section

262.101. Id. § 262.102(a) (Vernon 2008) (allowing court to “issue a temporary
22
restraining order or attachment of a child in a suit brought by a governmental

entity” if it finds “immediate danger” to physical health or safety of child, there is

no time for a full adversary hearing, and reasonable efforts were made to prevent

need for removal of child) (emphasis added). And section 262.104 allows an

“authorized representative” of DFPS to take possession of a child without a court

order in certain emergency situations, including when “there is an immediate

danger to the physical health or safety of the child.” Id. § 262.104(a)(1) (Vernon

2008) (emphasis added).

Regardless of whether the child was removed under section 262.102 or

section 262.104, section 262.201(a) requires a full adversary hearing within

fourteen days after the date the child was taken into possession by the

governmental entity unless the child has already been returned to the parent. Id.

§ 262.201(a) (Vernon Supp. 2012). Section 262.201(b) then provides:

At the conclusion of the full adversary hearing, the court shall order
the return of the child to the parent . . . unless the court finds sufficient
evidence to satisfy a person of ordinary prudence and caution that:

(1) there was a danger to the physical health or safety of
the child which was caused by an act or failure to act of the
person entitled to possession and for the child to remain in the
home is contrary to the welfare of the child;

(2) the urgent need for protection required the immediate
removal of the child and reasonable efforts, consistent with the
circumstances and providing for the safety of the child, were
made to eliminate or prevent the child’s removal; and

23
 (3) reasonable efforts have been made to enable the child
to return home, but there is a substantial risk of a continuing
danger if the child is returned home.

Id. § 262.201(b) (emphasis added). If the court makes the findings required by

subsection (b), it must issue “an appropriate temporary order under Chapter 105”4

and provide other information and notice not relevant here to the parents and other

interested parties. Id. § 262.201(c).

In addition, section 262.102 provides, with respect to the removal of the

child from a parent’s custody:

In determining whether there is an immediate danger to the physical
health or safety of a child, the court may consider whether the child’s
household includes a person who has:

(1) abused or neglected another child in a manner that
caused serious injury to or the death of the other child; or

(2) sexually abused another child.

Id. § 262.102(b) (emphasis added). And, section 262.201, like section 262.102,

provides that, “[i]n determining whether there is a continuing danger to the

physical health or safety of the child, the court may consider whether the

household to which the child would be returned includes a person who . . . has

4
Family Code Chapter 105 provides procedures for “Settings, Hearings, and
Orders.” See TEX. FAM. CODE ANN. §§ 105.001–105.009 (Vernon 2008).
Specifically, section 105.001 outlines the requirements for temporary orders made
before a final order. Id. § 105.001.
24
abused or neglected another child in a manner that caused serious injury to or the

death of the other child.” Id. § 262.201(d)(1) (emphasis added).

Neither Chapter 262 nor section 161.001(1)(O) specifically defines “abuse”

or “neglect.” See TEX. FAM. CODE ANN. §§ 161.001, 262.001–262.309; In re C.B.,

376 S.W.3d 244, 249 (Tex. App.—Amarillo 2012, no pet.). However, Chapter

261, titled “Investigation of Report of Child Abuse or Neglect,” contains

definitions of both terms. See TEX. FAM. CODE ANN. § 261.001(1), (4). Although

these definitions expressly apply to Chapter 261, these definitions “inform our

application of those terms under Chapter 161.” C.B., 376 S.W.3d at 250.

Family Code sections 261.001(1) and (4) define the terms “abuse” and

“neglect” in many ways that require a showing that the child was harmed or

exposed to a substantial risk of immediate harm. See TEX. FAM. CODE ANN.

§ 261.001(1), (4); In re J.S., No. 01-11-00062-CV, 2011 WL 5116472, at *5 (Tex.

App.—Houston [1st Dist.] Oct. 27, 2011, no pet.) (mem. op.). Specifically, section

261.001(1) defines abuse as including, among other things, “mental or emotional

injury to a child that results in an observable and material impairment in the child’s

growth, development, or psychological functioning” and “the genuine threat of

substantial harm from physical injury to the child.” TEX. FAM. CODE ANN.

§ 261.001(1)(A), (C).

25
 Section 261.001(4) defines neglect as including, among other things, “the

leaving of a child in a situation where the child would be exposed to a substantial

risk of physical or mental harm, without arranging for necessary care for the child”

and “the failure to provide a child with food, clothing, or shelter necessary to

sustain the life or health of the child, excluding failure caused primarily by

financial inability unless relief services had been offered and refused.” Id.

§ 261.001(4)(A), (B)(iii). These definitions are not exhaustive. See TEX. GOV’T

CODE ANN. § 311.005(13) (Vernon 2005) (stating that term “includes” is term of

enlargement and not of exclusive enumeration); C.B., 376 S.W.3d at 249 & n.10

(citing Government Code section 311.005(13) and concluding enumerated acts and

omissions are not exhaustive).

In addition, Texas Supreme Court case law, through its definition of child

endangerment, is instructive on what constitutes abuse or neglect under Chapters

262 and 161 of the Code. See Boyd, 727 S.W.2d at 533 (holding that “endanger”

“means more than a threat of metaphysical injury or the possible ill effects of a

less-than-ideal family environment, [but] it is not necessary that the conduct be

directed at the child or that the child actually suffers injury. Rather, ‘endanger’

means to expose to loss or injury; to jeopardize”) (internal citations omitted); see

also In re J.O.A., 283 S.W.3d 336, 345 (Tex. 2009) (reaffirming Boyd’s holding

that endangering conduct is not limited to actions directed toward child).

26
 Here, the evidence is clear that K.N.D. was removed from A.D.’s custody on

an emergency basis under Family Code Chapter 262 due to immediate danger to

her physical health or safety if she remained in A.D.’s custody. Indeed, DFPS

received on the day after K.N.D.’s birth a referral concerning the Neglectful

Supervision of [K.N.D.] by her mother [A.D.]” based on the altercation that

resulted in K.N.D.’s birth. That initial report was followed by a DFPS

investigation that revealed numerous facts supporting removal. It is also clear that,

at every stage of the proceedings, the appropriate evidence was taken, and the trial

court made findings and entered orders in accordance with procedures specified by

the Family Code to provide for the protection and safety of K.N.D.5

DFPS filed a petition for protection of K.N.D., as allowed by Family Code

section 262.101, on May 3, 2011, less than a week after K.N.D. was born.

Caseworker Candace Chandler provided the required affidavit, detailing the

5
The Texas courts have long recognized that “[a] parent’s interest in the accuracy
and justice of the decision to terminate his or her parental status is . . . a
commanding one.” In re M.S., 115 S.W.3d 534, 547 (Tex. 2003) (quoting
Lassiter v. Dep’t of Soc. Servs., 452 U.S. 18, 27, 101 S. Ct. 2153, 2160 (1981)).
However, the child also has a substantial interest in the proceedings. Id. “Indeed,
the Family Code’s entire statutory scheme for protecting children’s welfare
focuses on the child’s best interest.” Id. (citing TEX. FAM. CODE ANN. §§
153.002, 161.001(2), 263.306(4), (5)). The statutory scheme thus comports with
“[t]he public policy of this state [which] is to . . . provide a safe, stable, and
nonviolent environment for the child.” In re A.V., 113 S.W.3d 355, 361 (Tex.
2003) (quoting TEX. FAM. CODE ANN. § 153.001(a)(2)). Thus, although
termination can result in a parent’s loss of her legal relationship with the child, the
primary focus is on protecting the best interest of child. Id.

27
incident of violence that lead to A.D.’s hospitalization, A.D.’s prior involvement

with DFPS, and other concerns regarding A.D.’s ability to parent K.N.D. that were

raised by Chandler’s investigation. On that same day, the trial court entered an

emergency order allowing DFPS to take custody of K.N.D., finding that “the child

has been removed pursuant to §262.104, Texas Family Code.” See TEX. FAM.

CODE ANN. § 262.104. In this May 3, 2011 order, the trial court also made the

findings required by section 262.102 for emergency removal of a child pursuant to

a court order, specifically, that there was “a continuing danger to the physical

health and safety of [K.N.D.] if returned to the parent” and that the “nature of the

emergency and the continuing danger to the welfare of the child make efforts to

allow the child to remain with or return to [A.D.] impossible or unreasonable.” See

id. § 262.102(a).

On May 17, 2011, the trial court held an adversary hearing as required by

section 262.201. See id. § 262.201(a). Chandler and A.D appeared at this hearing,

along with a “foster agency representative” and K.N.D.’s guardian ad litem. The

record does not contain a transcript of this hearing. However, the trial court

entered an order that same day finding that

there is sufficient evidence to satisfy a person of ordinary prudence
and caution that: (1) there was a danger to the physical health or
safety of the child which was caused by an act or failure to act of the
person entitled to possession and for the child to remain in the home is
contrary to the welfare of the child; (2) the urgent need for protection
required the immediate removal of the child and makes efforts to
28
 eliminate or prevent the child’s removal impossible or unreasonable;
and (3) notwithstanding reasonable efforts to eliminate the need for
the child’s removal and enable the child to return home, there is a
substantial risk of a continuing danger if the child is returned home.

See id. § 262.201(b), (c). This order named DFPS K.N.D.’s temporary managing

conservator, but it did allow A.D. visitation with K.N.D. Thus, the trial court

specifically found danger to K.N.D.’s physical health or safety caused by “an act

or failure to act” of A.D., as “the person entitled to possession.”

A.D. did not challenge these findings at the time the trial court made them or

at any other time in the year that this case was pending in the trial court. At trial,

she did not present an argument regarding the sufficiency of the evidence

supporting the trial court’s May 17, 2011 removal of K.N.D. from her custody.

Nor did she object to the sufficiency of the evidence to show that K.N.D. was

properly removed either at trial or in her motion for new trial.

I would conclude from this undisputed record evidence that the procedures

for involuntary removal were followed in this case and that the evidence in the

record was legally and factually sufficient to show that K.N.D. was properly

removed from A.D.’s custody under Chapter 262 for abuse or neglect and that

temporary custody of K.N.D. was properly awarded to DFPS pending A.D.’s

completion of her Family Service Plan and final hearing on termination. See D.F.

v. Tex. Dep’t of Family & Protective Servs., No. 08-12-00068-CV, 2012 WL

5463025, at *7–8 (Tex. App.—El Paso Nov. 7, 2012, no pet. h.) (holding that
29
evidence was sufficient that child was removed under Chapter 262 for “abuse or

neglect” when record contained evidence that parent made no effort to contact

child left at shelter and trial court made findings of immediate danger to child’s

physical health or safety in emergency temporary order); In re C.M.C., No. 14-12-

00186-CV, 2012 WL 3871359, at *4 (Tex. App.—Houston [14th Dist.] Aug. 30,

2012, no pet. h.) (mem. op) (holding, in termination of father’s rights, that

evidence was sufficient to support finding children were removed for abuse or

neglect when previous decree reflected trial court made findings that children were

removed from mother under Chapter 262 for abuse or neglect); L.Z. v. Tex. Dep’t

of Family & Protective Servs., No. 03-12-00113-CV, 2012 WL 3629435, at *7–8

(Tex. App.—Austin Aug. 23, 2012, no pet.) (holding evidence sufficient to show

child was removed under Chapter 262 for abuse or neglect when “undisputed

evidence” showed Family Service Plan stated reason for involvement with family

was two referrals alleging neglectful supervision and physical abuse, caseworker

testified to basis of referrals, and “the record contain[ed] the trial court’s temporary

order following an adversary hearing, which appointed [DFPS] as temporary

managing conservator and included the findings required by section 262.201 of the

[F]amily [C]ode”); In re S.N., 287 S.W.3d 183, 190 (Tex. App.—Houston [14th

Dist.] 2009, no pet.) (finding evidence relating to proceedings held pursuant to

Chapter 262, including caseworker affidavit and trial court’s order finding danger

30
to physical health and safety of children, sufficient to support trial court’s finding

that children were removed under Chapter 262 for neglect).6

C. Constrictions on Probative Evidence

The majority, however, disregards the record of prior proceedings before the

trial court, which clearly and convincingly shows that all procedures were properly

followed and that K.N.D. was removed from the custody of A.D. and placed in the

custody of DFPS, by court order, for her own protection. Citing the language of

section 161.001(1)(O) and a developing line of cases from this Court, discussed

below, the majority holds that, to terminate A.D.’s parental rights to K.N.D. under

6
To the extent the majority would require not merely that the prior orders be
entered into evidence at the termination trial but also that the underlying evidence
supporting those orders be entered into evidence, I answer that it is the appellant’s
burden to bring forward a sufficient record to show the error committed by the
trial court. F.A.B. v. Dep’t of Family & Protective Servs., 01-10-00930-CV, 2012
WL 5310024, at *6 (Tex. App.—Houston [1st Dist.] Oct. 25, 2012, no pet. h.)
(mem. op.) (citing Nicholson v. Fifth Third Bank, 226 S.W.3d 581, 583 (Tex.
App.—Houston [1st Dist.] 2007, no pet.)). A.D. did not present us with a record
of the initial May 17, 2011 hearing at which the trial court made its findings
supporting removal of K.N.D. under Chapter 262 for abuse or neglect. Therefore,
we must presume that the evidence in the missing record supports the trial court’s
findings. See, e.g., Legere v. Legere, No. 03-12-00046-CV, 2012 WL 3793164, at
*4 (Tex. App.—Austin Aug. 29, 2012, no pet.) (mem. op.) (presuming that
missing record support finding that husband produced required financial
information and “any other finding that would support the district court’s child-
support determinations”) (citing DeSantis v. Wackenhut Corp., 793 S.W.2d 670,
689 (Tex. 1990)); In re Guardianship of Winn, 372 S.W.3d 291, 298 (Tex. App.—
Dallas 2012, no pet.) (“Without a reporter’s record of the July 7, 2009
guardianship proceeding, we must presume the evidence supports the probate
court’s finding.”); Sandoval v. Comm’n for Lawyer Discipline, 25 S.W.3d 720,
722 (Tex. App.—Houston [14th Dist.] 2000, pet. denied) (presuming omitted
portions of record supported judgment).

31
subsection 161.001(1)(O), DFPS had to prove K.N.D.’s removal under “Chapter

262 for abuse and neglect” all over again at the final termination hearing. None of

the evidence of prior proceedings counts toward this determination.

The majority states,

For section 161.001(1)(O) to apply to the removal of a child under
chapter 262, the surrounding circumstances must establish that
removal occurred “for the abuse or neglect of the child.” The
termination of parental rights pursuant to section 161.001(1)(O) can
only be authorized upon clear and convincing evidence of such
circumstances. See, e.g., In re A.A.A., 265 S.W.3d 507, 515 (Tex.
App.—Houston [1st Dist.] 2008, pet. denied). The sparse record in
this case did not include clear and convincing circumstances that
K.N.D. was removed because she had been abused or neglected by her
mother.

Slip Op. at 13–14. Not only does the majority introduce this evidentiary

requirement into subsection 161.001(1)(O) termination proceedings and exclude all

evidence of prior proceedings as probative, it also severely restricts the new

evidence it is willing to count as evidence of abuse and neglect—again in

contravention of both statutory definitions of “abuse or neglect” and supreme court

precedent. A.D. argues that “the specific child in question had to have been

removed from the specific parent for that specific parent’s abuse or neglect of that

specific child. . . . Evidence of prior abuse or neglect of a sibling does not support

termination under § 161.001(1)(O).” The majority agrees and states that the only

“facts that reasonably could have been found by the trial court in support of its

conclusion that removal had occurred ‘for the abuse or neglect of the child’” is
32
“the fact that A.D. was a prostitute who was physically abused by her pimp on one

occasion. . . .” Slip Op. at 16. Finding “sparse” evidence of abuse and neglect that

satisfies its criteria, and ignoring all else, it holds that DFPS failed to prove abuse

or neglect of K.N.D. by clear and convincing evidence. Slip Op. at 13–14.

In making the statement that the record regarding K.N.D.’s removal for

abuse or neglect is “sparse,” the majority erroneously considers only (1) evidence

of acts of neglect or abuse directed by A.D. specifically at K.N.D. prior to

K.N.D.’s removal at birth and does not consider (2) any proof appearing in the

record from prior proceedings, which was before the trial court, (3) the trial court’s

findings with respect to A.D. and K.N.D., or (4) any acts incorporated by statute

and precedent in the concepts of “abuse,” “neglect,” and “endangerment” of a

child. Nor does it consider any of the acts required of A.D. in her Family Service

Plan to cure the abusive or neglectful circumstances found by the trial court that

A.D. failed to take, thus justifying termination of her parental rights under

subsection 161.001(1)(O).

It is clear that the majority construes section 161.001(1)(O) as requiring that

DFPS prove by clear and convincing evidence at the termination trial by proof of

specific acts directed by the parent at the child, and not by reference to any prior

proceeding or other evidence, that K.N.D. was initially removed “under Chapter

262 for abuse or neglect”—based on its own definition of “abuse” and “neglect”—

33
and that it is pursuant to this construction of the language of subsection

161.001(1)(O) that it concludes that DFPS failed to carry its burden of proof as a

matter of law. See TEX. FAM. CODE ANN. § 161.001(1)(O) (stating that to prove

predicate act sufficient for termination under particular subsection, it must be

shown that parent “failed to comply with the provisions of a court order that

specifically established the actions necessary for the parent to obtain the return of

the child who has been in the permanent or temporary managing conservatorship

of the [DFPS] for not less than nine months as a result of the child’s removal from

the parent under Chapter 262 for the abuse or neglect of the child”) (emphasis

added).

In reaching their conclusion regarding the proper construction of subsection

161.001(1)(O), A.D. and the majority rely upon a developing line of cases from

this Court to argue, in A.D.’s words, that the evidence supporting the trial court’s

judgment terminating her parental rights to K.N.D. under section 161.001(1)(O) “is

both legally and factually insufficient because there is no evidence that DFPS was

named conservator due to the Mother’s abuse or neglect of K.N.D.” See In re

E.C.R., 01-11-00791-CV, 2012 WL 897777, at *4–6 (Tex. App.—Houston [1st

Dist.] Mar. 15, 2012, pet. filed); Mann v. Dep’t of Family & Protective Servs., 01-

08-01004-CV, 2009 WL 2961396, at *6–7 (Tex. App.—Houston [1st Dist.] Sept.

34
17, 2009, no pet.) (mem. op.); In re A.A.A., 265 S.W.3d 507, 515 (Tex. App.—

Houston [1st Dist.] 2008, pet. denied).

In a dissent from the denial of en banc reconsideration in In re E.C.R., I

expressed the opinion that this Court should reconsider its previous holdings in

A.A.A. and Mann because they advance an unnatural reading of the requirements of

section 161.001(1)(O) by requiring proof that the child was removed from the

parent by DFPS under Chapter 262 for specific acts of abuse or neglect of that

particular child as a separate essential element of the proof of failure to follow a

service plan under section 161.001(1)(O). See In re E.C.R., 01-11-00791-CV,

2012 WL 3637248, at *4–6 (Tex. App.—Houston [1st Dist.] Aug. 2, 2012, pet.

filed) (Keyes, J., dissenting from denial of en banc reconsideration); E.C.R., 2012

WL 897777, at *3–6 (panel op.). The present case is yet another example of the

consequences arising from this faulty interpretation of subsection 161.001(1)(O).7

7
I recognize that other courts of appeals have, to varying degrees, followed this line
of reasoning. See, e.g., D.F. v. Tex. Dep’t of Family & Protective Servs., No. 08-
12-00068-CV, 2012 WL 5463025, at *5 (Tex. App.—El Paso Nov. 7, 2012, no
pet. h.) (citing plain language of section 161.001(1)(O) and “a majority of other
courts of appeal which have so held” in holding that “a child’s removal for ‘abuse
or neglect’ is a required element of Section 161.001(1)(O)”); In re S.N., 287
S.W.3d 183, 190 (Tex. App.—Houston [14th Dist.] 2009, no pet.) (holding that
“abuse or neglect” is required element of section 161.001(1)(O)); In re A.A.A., 265
S.W.3d 507, 515 (Tex. App.—Houston [1st Dist.] 2008, pet. denied) (“[B]ecause
the supreme court did not expressly hold [in J.F.C.] that ‘removal under Chapter
262 for abuse or neglect of the child’ is not an element of subsection
161.001(1)(O), we must adhere to the unambiguous language of the statute.”); In
re S.A.P., 169 S.W.3d 685, 705–06 (Tex. App.—Waco 2005, no pet.) (holding
same); see also In re E.S.C., 287 S.W.3d 471, 475 (Tex. App.—Dallas 2009, pet.
35
 I strongly disagree with the majority’s construction of the requirements of

subsection 161.001(1)(O), which I find contrary to the plain language of the

statute, supreme court precedent, and legislative intent.

The natural reading of the unambiguous language of subsection

161.001(1)(O) is that the predicate for termination is established by proof (1) that

the parent failed to comply with the provisions of a court-ordered Family Service

Plan that established the actions corrective of abusive or neglectful behavior

necessary for the parent to obtain the return of the child (2) whom DFPS had

removed from the parent in accordance with Chapter 262, i.e., in accordance with

the procedures set out in the Family Code to be followed in a suit brought by a

governmental entity such as DFPS to protect the health and safety of children. See

id.; id. §§ 262.001–.309. This construction is full in accord with Texas Supreme

Court precedent set out in J.F.C. See J.F.C., 96 S.W.3d at 266, 277–79 (providing

standard of review and applying section 161.001(1)(O) by focusing on evidence

indicating whether parents had complied with requirements imposed by trial

court’s orders and stating only that “[t]he record also conclusively establishes that

denied) (assuming without deciding that removal for “the abuse or neglect of the
child” is element of subsection 161.001(1)(O)); L.Z. v. Tex. Dep’t of Family &
Protective Servs., No. 03-12-00113-CV, 2012 WL 3629435, at *7 (Tex. App.—
Austin Aug. 23, 2012, no pet.) (mem. op.) (following In re E.S.C. in assuming
without deciding this issue). These conflicts and the uncertainty they create in the
law indicate to me the urgent need for the Texas Supreme Court to address again
the standards of proof and of appellate review in parental termination cases.

36
the children were removed from their parents under Chapter 262 of the Family

Code”).

This construction of the statute is reinforced by the fact that, under the

statutory scheme created in Chapter 262 for the removal of children by a

governmental entity, the trial court must make findings following a full adversary

hearing before a child can remain in DFPS custody. See TEX. FAM. CODE ANN.

§ 262.201(b). The trial court entered such an order on May 17, 2011, and, as the

trier of fact, it is presumed to be aware of the orders it had previously entered in

the case, and thus it did not need to have the same evidence presented again at the

final hearing. See In re J.J.C., 302 S.W.3d 436, 446 (Tex. App.—Houston [14th

Dist.] 2009, pet. denied) (“[A] trial court is presumed to ‘judicially know what has

previously taken place in the case’ tried before it, and the parties ‘are not required

to prove facts that the trial court judicially knows.’”) (quoting Vahlsing, Inc. v. Mo.

Pac. R.R., 563 S.W.2d 669, 674 (Tex. Civ. App.—Corpus Christi 1978, no writ)).

Furthermore, the majority’s insertion of re-proof of the propriety of the

initial removal at the termination hearing as an additional hurdle to proof that

termination is proper under subsection 161.001(1)(O) leads to absurd results. The

only reason A.D., or any parent, would be subjected to “a court order that

specifically established the actions necessary for the parent to obtain the return of

the child who has been in the permanent or temporary managing conservatorship

37
of the [DFPS]” would be if the child was “remov[ed] from the parent under

Chapter 262 for the abuse or neglect of the child.” See TEX. FAM. CODE ANN.

§ 161.001(1)(O) (emphasis added); see also id. §§ 262.001–262.309 (providing

“Procedures in Suit by Governmental Entity to Protect Health and Safety of

Child”). DFPS cannot remove a child from its parent or other person entitled to

possession without a finding by the trial court of some kind of abuse or neglect.

See id. § 262.102 (outlining showing required to obtain emergency order

authorizing possession of child), §§ 262.104, 262.106 (Vernon 2008) (allowing

DFPS to take possession of child in emergency without court order but requiring

hearing on or before first working day after child was taken into possession),

§ 262.201 (requiring full adversary hearing within fourteen days after child is taken

into possession by governmental entity).

Thus, the language in subsection 161.001(1)(O) providing that it applies to a

“child who has been in the permanent or temporary managing conservatorship of

the [DFPS] for not less than nine months as a result of the child’s removal from the

parent under Chapter 262 for the abuse or neglect of the child” should not be

interpreted to add additional evidentiary requirements to termination under this

subsection; rather, this language describes the statutory—and common-sense—

prerequisites to termination on the ground that the parent failed to comply with the

court-ordered requirements for return of the child.

38
 The result of the majority’s holding in this case is that a child like K.N.D.

cannot be removed at birth unless that specific child was actually abused or

neglected in some direct way by specific acts of the specific parent that occurred

immediately prior to and caused removal, and the acts of abuse or neglect must be

act that this Court determines constitutes abuse or neglect as it defines those terms,

not as the relevant statutes and case law define them. And here, the majority

refuses to conclude that even A.D.’s criminal acts of being involved in prostitution

and subjecting K.N.D. to injury that directly caused her birth were sufficient to

justify K.N.D.’s initial removal from A.D., and, therefore, A.D.’s parental rights

cannot be terminated under section 161.001(1)(O) for her failure to follow the

Family Service Plan, regardless of K.N.D.’s best interest or proof of abuse or

neglect as those terms are defined and applied by the Family Code and other Texas

courts.

Contrary to the majority’s assertion, there is evidence in the record that A.D.

was an active participant in a criminal, violent lifestyle—as demonstrated by

A.D.’s protecting her roommate or pimp by claiming that she sustained the injuries

that resulted in her hospitalization and K.N.D.’s birth because she merely “felt

dizzy and fell down” and by requesting, the day after the assault, a key for the

roommate or pimp who assaulted her. According to the majority, even this

evidence is not enough to demonstrate abuse or neglect justifying termination. Nor

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does the majority consider evidence that A.D. neglected S.L.A.D.—to the point

that S.L.A.D. developed an abscess requiring “surgery on the brain”—and

eventually relinquished her rights to S.L.A.D. ten days before K.N.D. was born

because she determined she was unable to care for S.L.A.D. or that the decree of

termination of A.D.’s rights to S.L.A.D. was pending before the same trial court at

the time DFPS sought to remove K.N.D. Nor does it consider evidence that A.D.

failed to cooperate with DFPS during the pendency of S.L.A.D.’s termination

proceedings, did not complete her Family Service Plan with respect to S.L.A.D.,

and made no improvements in her ability to parent effectively or to provide

appropriate supervision and care for her newborn child. And it does not consider

that A.D.’s criminal behavior subjected her to violence and put her unborn child in

harm’s way and that the evidence at the termination hearing clearly and

convincingly showed that she had not corrected this or any of the other behavior

that had resulted in the removal of K.N.D. from her custody.

The approach to reviewing and deciding termination cases on appeal taken

by the majority is clearly not what the legislature and the Texas Supreme Court

have intended. See, e.g., TEX. FAM. CODE ANN. § 261.001(4)(B)(iii) (providing

that neglect encompasses “the failure to provide a child with food, clothing, or

shelter necessary to sustain the life or health of the child, excluding failure caused

primarily by financial inability unless relief services had been offered and

40
refused”) (emphasis added); id. §§ 262.102, 262.201 (allowing trial court to

consider whether child’s household includes person who has abused or neglected

another child in manner that caused serious injury to other child in determining

whether there is immediate danger to physical health or safety of child at issue ;

J.F.C., 96 S.W.3d at 277–79 (discussing subsection 161.001(1)(O)).

Considering all of the evidence, I would hold that the evidence is legally

sufficient to support the trial court’s termination of A.D.’s parental rights to

K.N.D. under section 161.001(1)(O). See J.F.C., 96 S.W.3d 264–66. And, I

would further conclude that the evidence is factually sufficient because the

evidence is such that a reasonable fact finder could form a firm belief or conviction

that grounds exist for termination under Family Code section 161.001(1)(O).8 See

C.H., 89 S.W.3d at 25–26.

8
A.D. also argues, as part of her first issue, that there was no clear and
convincing evidence of a court order that specifically established the actions
necessary for her to obtain the return of her child. And she argues, in her second
issue, that the evidence was insufficient to support the trial court’s conclusion that
termination of her parental rights was in K.N.D.’s best interest. The majority does
not address these issues because of its holding that the insufficiency of the
evidence that K.N.D. was removed under Chapter 262 for abuse or neglect
requires reversal of the trial court’s judgment. I would overrule both of these
issues.
The trial court’s May 17, 2011 order expressly incorporated the Family
Service Plan and notified “the parents that each of the actions required of them
below are necessary to obtain the return of the child.” The trial court, as trier of
fact, is presumed to be aware of the orders it had previously entered in the case,
and thus it did not need to have their existence proven again. See In re J.J.C., 302
S.W.3d 436, 446 (Tex. App.—Houston [14th Dist.] 2009, pet. denied) (“[A] trial
court is presumed to ‘judicially know what has previously taken place in the case’
41
 I would affirm the judgment of the trial court.

Evelyn V. Keyes
Justice

Panel consists of Justices Keyes, Massengale, and Brown.

Keyes, J., dissenting.

tried before it, and the parties ‘are not required to prove facts that the trial court
judicially knows.’”); see also In re C.M.C., No. 14-12-00186-CV, 2012 WL
3871359, at *3 (Tex. App.—Houston [14th Dist.] Aug. 30, 2012, no pet. h.)
(holding, in response to argument that no evidence was presented during trial
proving existence of court orders specifically establishing actions necessary to
obtain return of child, that “this court has consistently held we may presume the
trial court took judicial notice of the record without any request being made and
without any announcement that it has done so”).
I would also conclude that the evidence was sufficient to support the trial
court’s conclusion that termination of A.D.’s parental rights to K.N.D. was in
K.N.D.’s best interest. See TEX. FAM. CODE ANN. § 263.307(b) (Vernon 2008)
(providing factors to be considered in determining child’s best interest); In re R.R.,
209 S.W.3d 112, 116 (Tex. 2006) (per curiam) (discussing same); Holley v.
Adams, 544 S.W.2d 367, 371–72 (Tex. 1976) (same). At the time of trial, K.N.D.
was a one-year-old child who had been placed with her foster family most of her
life, had never lived with A.D., and had bonded with her sister and caregivers.
A.D. did not establish that she had regular employment or a residence, and she did
not interact appropriately with K.N.D. because she needed to be prompted to
address K.N.D.’s basic needs such as feeding and diapering. A.D. engaged in
prostitution and frequently associated with unsuitable men, who, at least on one
occasion, subjected her to violence. She had also failed to take a court-ordered
drug test. This evidence and the other record evidence clearly and convincingly
shows that termination was in K.N.D.’s best interest.
42