Opinion issued August 16, 2012
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-11-00703-CV
———————————
IN THE INTEREST OF D.J.W., A CHILD
On Appeal from the 313th District Court
Harris County, Texas
Trial Court Case No. 2010-04338J
OPINION
This is an appeal from the termination of the parental rights of a mother,
N.W., with respect to her son, D.J.W. See TEX. FAM. CODE ANN. § 161.001 (West
Supp. 2012). On appeal, the mother contends that she received ineffective
assistance of counsel because her trial attorney failed to timely file a statement of
appellate points contesting the sufficiency of the evidence to support the court’s
judgment. She argues that the evidence is legally and factually insufficient to
support the trial court’s findings that she committed four predicate acts required for
termination, that termination was in her son’s best interests, or that appointment of
the Department of Family and Protective Services as conservator was in D.J.W.’s
best interest.
The evidence was sufficient to support the judgment. In particular, with
respect to the predicate acts necessary to support termination of parental rights
under section 161.001(1), the evidence was sufficient to support a determination
that the mother engaged in conduct which endangered the physical or emotional
well-being of the child. See id. § 161.001(1)(E). Accordingly, we affirm.
Background
D.J.W. was 17 months old when his parents had their second child, a baby
boy. The parents and the two children all lived together in the home of D.J.W.’s
maternal grandparents. Two months later, the baby died under circumstances that
were quickly determined to be nonaccidental.
On the morning of June 9, 2010, the mother gave the infant a bottle and
placed him in his bassinet to sleep. D.J.W. was in another room with his ten-year-
old uncle. When the father awoke, he asked the mother to walk to a store with him
to buy juice. The father took the baby across the hall, leaving the mother to get
dressed. When the father brought the baby back to the mother, she rocked him to
2
sleep and placed him in his bassinet. After asking some other family members to
watch her children, the mother went to the store with the father.
When they came home, the father checked on the infant and told the mother
that the baby was “okay” and that he had seen the baby stretching. A short while
later, a visiting cousin told the mother that the infant was sleeping but he had “a
little vomit coming from his mouth.” The mother testified that she immediately
ran upstairs and noticed that there was blood mixed with the baby’s vomit. She
took her child downstairs, where her mother began cardiopulmonary resuscitation,
and they called an ambulance. Shortly after arriving at the hospital, the infant was
pronounced dead.
The day after the baby’s death, the Department initiated an investigation
and, after interviewing family members living in the home, removed D.J.W. from
the home and placed him with his great-grandfather. Meanwhile, an autopsy was
performed on the deceased infant. To facilitate our review of the trial court’s
judgment, it is necessary to describe the autopsy findings in detail.
The general pathological findings included blunt head trauma and recent and
remote skeletal trauma. An anthropology report prepared in connection with the
postmortem examination detailed extensive injuries, including a total of
54 fractures, many of which had occurred one to three weeks prior to the child’s
death. Two of the fractures were classic metaphyseal lesions (CMLs) of the distal
3
radius (wrist) and ulna (forearm). The report explained that a “CML is an injury of
the immature long bone metaphysis associated most strongly with infants and
toddlers less than three years of age.” Both CMLs featured subtly rounded
trabeculae and physeal margins, which the report characterized as being
“consistent with early bone healing processes.” The evidence that the baby had
fractures that demonstrated signs of “healing processes” is significant because it
supports the autopsy conclusion that the injuries had occurred some period of time
prior to the baby’s death, such that the healing process would have time to take
place.
The remaining 52 fractures were located in a bilateral, serial distribution
among the baby’s ribs. Eleven serial, healing fractures were observed in a bilateral
distribution on the midclavicular region of Rr2-7 and Lr3-7.1 Eighteen serial,
healing avulsion fractures were observed in a bilateral distribution on the heads or
1
All of these fractures were “in the early soft callus stage of healing with
visible fracture margins.” The fractures of Rr3-7, Lr3, and Lr5-6 were
described as “complete and transverse,” while “[c]omplete accordion-type
fractures” were located on Lr4 and Lr7, and Rr2 was a “buckle fracture.”
The report observed: “The margins of the transverse fractures and the buckle
fracture of Rr2 retain evidence of crushing on the internal surface of the ribs,
consistent with bone failure in compression.” In addition, the “accordion-
type fractures observed in Lr4 and Lr7” were described as “the result of left
to right directed compression with an axial load,” which resulted in the bone
“in tension as the internal and external surfaces splayed apart during
compression.”
4
necks of Rr3, Rr5-11 and Lr1-10.2 Thirteen serial, healing fractures of the
costochondral junctions (CCJ) of Rr4-6, Rr8, Rr10, Lr2 and Lr4-10 were
observed.3 Six acute serial fractures were observed in a bilateral distribution on the
midclavicular region of Rr8-10 and Lr8-10.4 Finally, four acute fractures of Rr11-
12 and Lr11-12 were found.5
2
These were also “complete fractures” with the exception of two “head
fractures,” which were “incomplete.” The report explained that “[a]vulsion
fractures of the rib head and neck are caused when excessive forces are
applied to the costovertebral junction while the head is held in place by
strong ligament attachments.” “Early healing” was observed “as minimal
thickening of the exposed trabeculae and slight rounding of the cortical bone
at the fracture margins.”
3
The report noted that “[t]he sternal ends of the ribs were likely exposed to
shearing forces and compression, similar to that found in CML of the long
bones.” The severity of these fractures ranged “from crushing and/or
fraying of the costochondral rim to fracture of the costochondral surface.”
Other observations were “consistent with early healing processes.”
4
Two of these fractures (Rr8-9) were “complete and transverse,” and
“[c]rushing of the internal margins indicates that the bone failed in
compression on the internal surface of the ribs.” The other four fractures
(Rr10 and Lr8-10) were “of the accordion type, consistent with compressive
forces with an axial load.”
5
These included one incomplete accordion-type fracture (Rr11), two crushing
fractures of the anterior tips of Lr11-12, and “[o]ne complete, transverse
fracture located on Lr11.” The report stated that the “fracture of the right rib
is consistent with right to left directed compressive force with an axial load
component,” and that the “fractures of the left ribs are consistent with left to
right directed compressive force with an axial load component.”
5
After describing the baby’s extensive internal injuries in detail, the report
explained that the injuries indicated the child had been seriously injured in “a
minimum of two traumatic episodes, one occurring prior to death (antemortem)
and one occurring at or very near death (perimortem).” With respect to the
“antemortem trauma,” the report stated that the observed injuries could have
resulted from “[s]haking during constriction of the chest” and “direct traction and
torsion of the limb.” With respect to the “perimortem trauma,” the injuries were
described as being “consistent with two impacts to the lower ribs, one from right to
left and one from left to right.”6
6
The report stated:
The variation in healing observed on the retained
elements is consistent with a minimum of two traumatic
episodes, one occurring prior to death (antemortem) and one
occurring at or very near death (perimortem). Fracture healing
rates are variable depending on the age and health status of the
individual, location and severity of the fracture and possible re-
injury. Further, seriation of fracture age based on the stage of
healing can be difficult in a young infant because the time span
since injury is relatively short.
The injuries observed in the CML of the distal left radius
and ulna, the head and neck avulsion fractures, the
midclavicular fractures of Rr2-7 and Lr3-7 and the CCJ
fractures of Rr4-5, Rr8, Rr10, Lr2, Lr4-6, and Lr8-10 are
consistent with antemortem trauma. At each fracture site the
fracture margins are rounded and exposed trabeculae are
thickened. Several fracture sites are also marked with SPNBF
[subperiosteal new bone formation]. SPNBF typically occurs in
a healthy infant within 4-10 days post-fracture and early soft
6
Two days after the baby’s death, the Department filed its original petition for
protection of D.J.W., for conservatorship, and for termination of parental rights.
The Department alleged various statutory grounds for termination, including that
both parents engaged in conduct or knowingly placed the child with persons who
engaged in conduct which endangers the physical or emotional well-being of the
child. See TEX. FAM. CODE ANN. § 161.001(1)(E).
In support of that petition, the Department attached an affidavit of one of its
investigators, C. Lightfoot, who informed the trial court of the basic chronology of
callus formation is usually visible radiographically by 10-14
days post-fracture. The stage of healing observed in these
fractures indicates that the injuries occurred approximately one
to three weeks prior to death.
The distribution pattern of the healing fractures
throughout the ribcage is consistent with anterior to posterior
constriction and posterior levering of the chest. Shaking during
constriction of the chest can result in CML as observed on the
distal radius and ulna. These fractures may also be the result
of direct traction and torsion of the limb.
The perimortem trauma is evident in the fractures of the
anterior body of Rr11 and Lr11-12 (considered to be posterior
fractures due to the location of these ribs), and the
midclavicular fractures of the lower ribs (Rr8-10, Lr8-10). The
fracture margins are sharp and there is no SPNBF on the
margins or on the rib bodies. The absence of healing at the
fractures indicates that the injuries occurred at or near the time
of death. The distribution pattern and fracture types are
consistent with two impacts to the lower ribs, one from right to
left and one from left to right.
(Emphasis supplied.)
7
events, including the investigation by Child Protective Services. An emergency
order was entered that day, followed thirteen days later by an adversary hearing
with the mother present. As a result of the hearing, the court ordered the
Department to conduct a home study, and it ordered both parents to “comply with
each requirement set out in the Department’s original, or any amended, service
plan during the pendency of this suit” and to provide samples for drug, alcohol,
and DNA screening. The mother refused to provide a urine sample, which was
considered by the drug testing facility as a “refusal/positive test.” The results from
the hair sample that she did provide showed a positive result for cocaine and
marijuana metabolites. At a subsequent hearing, the court entered its “Additional
Temporary Orders to Obtain Return of a Child,” dated August 2, 2010. In addition
to continuing to require that the mother “[c]omplete all services outlined in the
DFPS Family Plan of Service filed in this cause,” the order specifically required
the mother to “[r]emain drug free.”
The father ultimately pleaded guilty to criminal charges in connection with
the death of the infant, and he voluntarily relinquished his parental rights. The
Department pursued its petition to terminate the mother’s parental rights as well,
and a trial was conducted before an associate judge.
At trial, a caseworker assigned to the matter testified that the Department
became concerned because the infant’s death was ruled to be a homicide. She
8
testified, “Mom has minimized the reason that the child has come into care. . . .
She stated that she did not know how the child was injured and she did not know
how the child could have sustained those types of injuries because he was watched
at all times and that [she] and the father were the caregiver[s].” She expressed
concern about the fact that D.J.W.’s baby brother “was two months old and had
54 fractures to his body.” Based upon “the extensiveness of the injuries that the
infant had received from the autopsy report and just [the mother’s] attitude towards
the case and what was going on,” and due to the fact that the mother “did not
protect the infant from being injured,” the caseworker testified that she was “not
sure” that the mother “would be able to protect” D.J.W. As she explained, “The
agency was concerned about the fact that if a child had that many injuries how, as a
mother, you could not know that your child was either being abused or that what,
you know, the abuse that led up to the actual incident.” The caseworker
acknowledged that the mother had not been charged with a crime in connection to
the death of her infant son. She nevertheless testified that the Department was
seeking termination of the mother’s parental rights because it “would be in the best
interest of the child.”
D.J.W.’s paternal grandmother testified that her other grandson’s death
caused her to be concerned about the boy being raised by his biological mother.
She said, “My problem was my other grandbaby that died in the house. You know,
9
somebody should have seen something was going on with him. To have all those
fractures, somebody should have saw [sic] that somebody was injuring him.”
The mother also testified at trial. She testified that prior to the baby’s death,
he “didn’t have any bruisings, any markings, any shortness of breath, anything that
would cause me to have to rush him to the emergency room.” She said that she did
not ever injure or shake the baby. In response to a question about what she would
have done had she known that the father was capable of doing that, she testified:
He wouldn’t have been allowed to be around my kids; and had I
known it would have ended in such a manner, this would have
progressed more swiftly, more quickly. I wouldn’t have had anything,
no dealings with him at all.
She said that she did not receive the autopsy report before speaking with the
district attorney’s office, but after having excerpts read to her, she drew the
conclusion that the baby was injured by the father during a period of time when the
two were alone. Although she conceded that the father had a “temper” and had
raised his voice to her, she said he had “never” been physical with her, thrown
anything at her, or hit her.
The Department introduced additional evidence of the mother’s drug use
through the caseworker’s testimony. The caseworker testified that the mother’s
last positive urinalysis was on June 24, 2010, approximately two weeks after her
son died, but the caseworker did not identify which drug was identified in that
screening. The mother also had a positive hair follicle test in February 2011, but a
10
negative urinalysis at that time. Again, the caseworker did not say which drug was
identified in that screening. She also testified that the mother failed to appear for a
drug test in September 2010. When questioned by the attorney ad litem, the
caseworker agreed that the mother tested positive for marijuana and cocaine in
November 2010.
Q. Ma’am, just to clarify, she had a positive drug and urine screen
for cocaine and marijuana in November and the test in February was a
hair follicle so–and you don’t—you are not an expert on that, so you
can’t tell us—that could have been as a result of the test in November,
right?
A. Yes, sir.
The mother admitted using marijuana, but she flatly denied ever using
cocaine. She testified that she began using marijuana when she was 15 or 16 years
old and that marijuana was her “drug of choice.” She admitted using marijuana
during the time when she had custody of her two children, though the record does
not clearly show that she used marijuana in their presence. She also admitted using
marijuana after the trial court’s order that she remain “drug-free,” using the drug as
late as October 19, 2010. She denied using illegal drugs after that date.
At the conclusion of the trial, the court found by clear and convincing
evidence that the mother had endangered D.J.W. by engaging in conduct or
knowingly placing him with people who engaged in conduct that endangers a
child’s physical or emotional well-being. See TEX. FAM. CODE ANN.
11
§ 161.001(1)(E).7 The court also found that termination of her parental rights was
in the best interest of the child, see id. § 161.001(2), that appointment of a parent
or relative of the child as managing conservator would not be in the child’s best
interest, and that appointment of the Department as sole managing conservator of
the child would be in his best interest.
The mother’s trial counsel did not timely file a statement of appellate points,
see TEX. R. CIV. P. 324, or a motion for new trial. However, her appellate counsel
filed a motion for new trial and statement of appellate points, though not within
15 days of the trial court’s final decree of termination. The trial court denied the
motion for new trial, stating on the record that an appeal would not be frivolous.
Analysis
I. Ineffective assistance of counsel
The mother contends that she received ineffective assistance of counsel
because her trial counsel failed to file a timely statement of appellate points
challenging the sufficiency of the evidence to support the grounds on which the
7
The court also found that the mother endangered D.J.W. by knowingly
placing or allowing him to remain in conditions or surroundings that
endanger a child’s physical or emotional well-being, see TEX. FAM. CODE
ANN. § 161.001(1)(D), that she “contumaciously refused to submit to a
reasonable and lawful order of a court under Subchapter D, Chapter 261,
Texas Family Code,” see id. § 161.001(1)(I), and that she “failed to comply
with the provisions of a court order that specifically established” the actions
necessary for her to obtain the return of D.J.W., see id. § 161.001(1)(O).
12
trial court terminated her parental rights.8 Texas courts apply the two-pronged
analysis of Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2066
(1984), to determine whether trial counsel was ineffective in a proceeding to
terminate parental rights:
8
The Department argues that a change in the law renders N.W.’s ineffective-
assistance-of-counsel issue unnecessary and urges this court to proceed
directly to a review of the merits of her sufficiency issues. The Family Code
provisions that were in effect at the time of the trial court’s judgment in this
case required a party appealing a final order terminating her parental rights
to file a statement of points identifying the issues she wished to raise on
appeal. See Act of May 22, 2001, 77th Leg., R.S., ch. 1090, § 9, 2001 TEX.
GEN. LAWS 2395, 2397–98 (enacting section 263.405), amended by Act of
May 12, 2005, 79th Leg., R.S., ch. 176, § 1, 2005 TEX. GEN. LAWS 332, 332
(adding subsection 263.405(i)) (former TEX. FAM. CODE ANN. § 263.405),
repealed by Act of May 5, 2011, 82d Leg., R.S., ch. 75, § 5, 2011 TEX. GEN.
LAWS 348, 349. That statute also stated that an “appellate court may not
consider any issue that was not specifically presented to the trial court in a
timely filed statement of points.” Id. § 263.405(i).
The Department relies upon statutory revisions enacted before the mother’s
notice of appeal was filed in the trial court on August 13, 2011. See Act of
May 5, 2011, 82d Leg., R.S., ch. 75, § 5, 2011 TEX. GEN. LAWS 348, 349
(repealing subsections 263.405(b–1) and 263.405(d)–(i)). However, the
final decree of termination was signed on July 25, 2011, and the legislation
provided, “This Act takes effect September 1, 2011.” Id. Thus, to the extent
the requirement of a statement of appellate points has been repealed, the
repeal had not yet taken effect at the time relevant to this appeal. Thus we
will analyze the mother’s appeal through the framework of her challenge to
the alleged ineffective assistance of her counsel. See In re S.M.G., 07-11-
00340-CV, 2011 WL 6217433, at *1 n.3 (Tex. App.—Amarillo Dec. 14,
2011, order) (per curiam); In re K.N.N., No. 09-11-00317-CV, 2011 WL
5989007, at *8 (Tex. App.—Beaumont Dec. 1, 2011, no pet.) (mem. op.); In
re A.S.D., No. 02-10-00255-CV, 2011 WL 5607608, at *1 (Tex. App.—Fort
Worth Nov. 17, 2011, no pet.) (mem. op ).
13
First, the defendant must show that counsel’s performance was
deficient. This requires showing that counsel made errors so serious
that counsel was not functioning as the “counsel” guaranteed the
defendant by the Sixth Amendment. Second, the defendant must
show that the deficient performance prejudiced the defense. This
requires showing that counsel’s errors were so serious as to deprive
the defendant of a fair trial, a trial whose result is reliable.
In re J.O.A., 283 S.W.3d 336, 341–42 (Tex. 2009) (citing In re M.S., 115 S.W.3d
534, 545 (Tex. 2003)).9
The mother argues that her trial counsel rendered deficient performance and
thus failed the first prong of Strickland by not filing a statement of appellate points
as required by the Family Code. Not every failure to preserve a challenge to the
sufficiency of the evidence rises to the level of ineffective assistance. See id. at
343; In re M.S., 115 S.W.3d at 549. We must presume that counsel’s conduct falls
within the wide range of reasonable professional assistance, including the
possibility that the decision not to challenge the sufficiency of the evidence was
based upon counsel’s professional opinion that such an appeal was not warranted.
9
The Department also argues that because the mother retained her trial
counsel, she may not raise ineffective assistance of counsel on appeal. See
In re V.G., No. 04-08-005220CV, 2009 WL 2767040, at *12 (Tex. App.—
San Antonio, Aug. 31, 2009) (memo. op.) (parent who was represented by
retained counsel rather than counsel appointed pursuant to the Family Code
held not entitled to raise claim for ineffective assistance of counsel). In light
of our determination that the mother was not harmed by any ineffective
performance rendered by her counsel, it is not necessary for us to determine
whether this remedy is available in the circumstance of retained (rather than
appointed) counsel.
14
See In re J.O.A., 283 S.W.3d at 343; In re M.S., 115 S.W.3d at 549. With respect
to the second Strickland prong, which requires a showing of prejudice resulting
from the deficient performance of counsel, the mother argues that she was harmed
by her attorney’s failure to file the statement of points in this case because her
challenges to the sufficiency of the evidence are meritorious. In particular, she
argues that the evidence was legally and factually insufficient to support the trial
court’s findings that she committed four predicate acts for terminating her parental
rights, that termination was in the best interest of the child, and that appointment of
the Department as managing conservator was in the child’s best interest.
II. Grounds for termination of parental rights
In the context of litigation affecting the parent-child relationship, including
proceedings to terminate parental rights, the Legislature has declared that is the
public policy of the State of Texas to provide children with “a safe, stable, and
nonviolent environment.” TEX. FAM. CODE ANN. § 153.001(a)(2) (west 2008). In
furtherance of that policy, “the purpose of the State’s intervention in the parent-
child relationship is to protect the best interests of the children, not to punish
parents for their conduct.” In re A.V., 113 S.W.3d 355, 361 (Tex. 2003). A
parent’s right to the companionship, care, custody, and management of her child is
15
a precious liberty interest of constitutional magnitude,10 and accordingly,
termination proceedings are strictly scrutinized on appeal. See Holick v. Smith,
685 S.W.2d 18, 20 (Tex. 1985). Protection of the best interests of the child is the
primary focus of both the termination proceeding in the trial court and our review
on appeal. See In re A.V., 113 S.W.3d at 361.
“[T]he evidence in support of termination must be clear and convincing
before a court may involuntarily terminate a parent’s rights.” Holick, 685 S.W.2d
at 20. 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 (West
2008). Because the standard of proof is “clear and convincing,” the Supreme
Court of Texas has held that the traditional legal and factual standards of review
are inadequate. In re J.F.C., 96 S.W.3d 256, 264–66 (Tex. 2002).
The legal sufficiency review in a termination-of-parental-rights case “must
take into consideration whether the evidence is such that a factfinder could
10
See Santosky v. Kramer, 455 U.S. 745, 758–59, 102 S. Ct. 1388, 1397
(1982); see also Troxel v. Granville, 530 U.S. 57, 65, 120 S. Ct. 2054, 2060
(2000) (“[T]he interest of parents in the care, custody, and control of their
children is perhaps the oldest of the fundamental liberty interests recognized
by this Court.”); Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985) (“This
natural parental right has been characterized as ‘essential,’ ‘a basic civil
right of man,’ and ‘far more precious than property rights.’”) (quoting
Stanley v. Illinois, 405 U.S. 645, 651, 92 S. Ct. 1208, 1212 (1976)).
16
reasonably form a firm belief or conviction about the truth of the matter on which
the State bears the burden of proof.” Id. at 265–66. We “look at all the evidence
in the light most favorable to the finding to determine whether a reasonable trier of
fact could have formed a firm belief or conviction that its finding was true.” Id. at
266. We review “the evidence in the light most favorable to the judgment,”
meaning that we “must assume that the factfinder resolved disputed facts in favor
of its finding if a reasonable factfinder could do so.” Id. We also “disregard all
evidence that a reasonable factfinder could have disbelieved or found to have been
incredible.” Id. “If, after conducting its legal sufficiency review of the record
evidence, a court determines that no reasonable factfinder could form a firm belief
or conviction that the matter that must be proven is true, then that court must
conclude that the evidence is legally insufficient.” Id.
With respect to our review of the factual sufficiency of the evidence, we
consider the entire record, including disputed evidence, to determine “whether the
evidence is such that a factfinder could reasonably form a firm belief or conviction
about the truth of the State’s allegations.” Id.; In re C.H., 89 S.W.3d 17, 25 (Tex.
2002). “If, in light of the entire record, the disputed evidence that a reasonable fact
finder could not have credited in favor of the finding is so significant that a
factfinder could not reasonably have formed a firm belief or conviction, then the
evidence is factually insufficient.” In re J.F.C., 96 S.W.3d at 266.
17
In proceedings to terminate the parent-child relationship brought under
Texas Family Code section 161.001, the Department must establish one or more of
the acts or omissions enumerated under section 161.001(1) and that termination is
in the best interest of the child. TEX. FAM. CODE ANN. § 161.001. Both elements
must be established, and 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). “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 at
362. In this case, the Department sought termination of the mother’s parental
rights on grounds of endangerment, see TEX. FAM. CODE ANN.
§ 161.001(1)(D) & (E), and for failing to comply with certain court orders, see id.
§ 161.001(1)(I) & (O). In its final order of termination, the trial court expressly
found that all four statutory provisions were met, that termination was in the best
interest of the child, and that appointment of the Department as managing
conservator was in the child’s best interest.
A. Endangerment of a child (Family Code § 161.001(1)(E))
The mother challenges the trial court’s findings that she endangered D.J.W.
One of the predicate acts that may result in the involuntary termination of the
parental-child relationship is satisfied if the parent has “engaged in conduct or
18
knowingly placed the child with persons who engaged in conduct which endangers
the physical or emotional well-being of the child.” TEX. FAM. CODE ANN.
§ 161.001(1)(E). In this context, “endanger” means to expose to loss or injury or
to jeopardize. Boyd, 727 S.W.2d at 533. The term 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.” Id. at 533. To determine whether
termination is justified, courts may look to parental conduct both before and after
the child’s birth. In re J.O.A., 283 S.W.3d at 345. The conduct need not occur in
the child’s presence, and it may occur “both before and after the child has been
removed by the Department.” Walker v. Tex. Dep’t of Family & Protective Servs.,
312 S.W.3d 608, 617 (Tex. App.—Houston [1st Dist.] 2009, pet. denied).
Unlike section 161.001(1)(D), which focuses on endangering “conditions or
surroundings,” section 161.001(1)(E) focuses on parental actions exposing the
child to “conduct” which endangers the child’s physical or emotional well-being.
Section 161.001(1)(E) may be satisfied either by the parent’s own endangering
conduct or by the parent’s knowing placement of the child with other persons who
engage in endangering conduct. For purposes of this appeal, we will focus solely
19
upon the mother’s own conduct and whether the trial court could have concluded
that her conduct endangered D.J.W.11
The Supreme Court of Texas has acknowledged that “a parent’s use of
narcotics and its effect on his or her ability to parent may qualify as an endangering
course of conduct.” In re J.O.A., 283 S.W.3d at 345. Our court has explained that
illegal drug use may support termination under section 161.001(1)(E) because “it
exposes the child to the possibility that the parent may be impaired or imprisoned.”
Walker, 312 S.W.3d at 617. Endangerment by risks of both impairment and
imprisonment are at issue in this case. The mother admitted illegal marijuana use
both before and after giving birth to her children, characterizing it as her “drug of
choice.” In addition to her admitted marijuana usage, the trial court reasonably
could have formed a firm belief that the mother also used cocaine based on trial
testimony about the result of the mother’s drug test at the time of the emergency
hearing, which was positive for the presence of cocaine metabolites, her positive
cocaine test in November 2010 (after she had already been ordered by the trial
court to remain “drug-free”), and her failure or refusal to take drug tests on other
occasions.
11
The mother argues that the trial court took improper judicial notice of
various documents included in the case worker’s file. For purposes of
resolving this appeal, our analysis of the sufficiency of the evidence does not
rely upon any of this evidence.
20
Other evidence in the record reasonably could have led the trial court to a
firm belief that the mother’s drug use affected her ability to parent in light of her
professed unawareness of the abuse being inflicted upon her infant child while she
was actively providing care. Although the Department failed to present evidence
of the frequency of the mother’s drug use or direct evidence of the mother’s
impairment arising from drug use, the evidence did support a conclusion that drug
use adversely affected the mother’s ability to parent. Based upon the detailed
autopsy report, the factfinder reasonably could have concluded that D.J.W.’s
brother had died as a result of cruel abuse on multiple occasions, beginning at least
one week prior to his death. The father admitted causing the baby’s death, and
there was no evidence that it was directly caused by the mother. Nevertheless,
evidence at trial showed that after the death of the child, the mother claimed to be
unaware of how the child could have been injured, despite the fact that the child
was “watched at all times” by her and the father. The child’s serious injuries
resulting from antemortum trauma occurred while under the supervision of the
mother approximately one to three weeks before death, and consisted of numerous
complete fractures of the ribs. The testimony of both the caseworker and D.J.W.’s
paternal grandmother emphasized their concern about the mother’s ability to
protect the child. To the extent that the undisputed evidence showed that the
mother was personally responsible for supervising the child yet completely
21
unaware of the pre-death injuries, the trial court reasonably could have concluded
that the mother’s admitted drug use affected her parenting abilities by impairing
her ability to perceive and protect D.J.W. from the physical and emotional impact
of such injuries inflicted in the home by the father.
Unlike In re J.P.B, in this case the Department did not present any expert
testimony to directly explain the likely cause of the baby’s injuries, that a parent
should have known that something was wrong with the baby in this circumstance,
or that the baby would have reacted in any particular manner such that it should
have been noticed by the parents. See In re J.P.B., 180 S.W.3d at 573. This kind
of explanatory expert opinion testimony, if available to the Department, ideally
would be made part of the record to connect the evidence of child abuse to the
parental action (or inaction) alleged by the Department in support of its petition.
Nevertheless, we cannot conclude that the lack of such explanatory expert
testimony rendered the Department’s evidence legally insufficient in this case. In
particular, we note the detailed autopsy findings that were admitted into evidence,
which stated that the baby’s injuries that occurred one to three weeks before his
death, including numerous complete fractures of his ribs, could have resulted from
“[s]haking during constriction of the chest” and “direct traction and torsion of the
limb.” The injuries occurring at the same time of the baby’s death were
“consistent with two impacts to the lower ribs, one from right to left and one from
22
left to right.” In addition, this case involved admitted drug use by the parent before
removal of the child at issue, a factor not involved in J.P.B.
Finally, we note that the mother in this case also admitted to using marijuana
after the removal of her surviving child and after she had been specifically ordered
to “remain drug-free.” The evidence before the trial court reasonably could have
supported a conclusion by the finder of fact that the mother also abused cocaine
during this time. Illegal drug use in violation of the court’s order in this
circumstance endangered D.J.W.’s emotional well-being because it increased the
risk that his relationship with his biological mother would be permanently severed.
See Walker, 312 S.W.3d at 617–18.
Drug use that significantly impairs a parent’s ability care for a child
jeopardizes the child’s physical and emotional well-being. We hold that the
evidence in this case was legally sufficient to permit a reasonable factfinder to
form a firm belief or conviction that the mother engaged in conduct that
endangered D.J.W.’s physical or emotional well-being. See TEX. FAM. CODE ANN.
§ 161.001(1)(E); In re J.O.A., 283 S.W.3d at 346 (holding that evidence of
admitted drug use before the birth of the children, missed drug tests after removal
of children, and a failed drug test between removal and the final hearing,
established legal sufficiency of evidence to show endangerment under
section 161.001(1)(E)).
23
With respect to the mother’s factual-sufficiency challenge, our consideration
of disputed evidence relating to the Department’s case does not undermine the
ability of a factfinder to reasonably form a firm belief or conviction about the truth
of the State’s allegations. The mother denied using cocaine, but she did not
dispute her marijuana usage, and she provided no alternative explanation for her
failed drug tests and no excuse for skipping court-ordered drug tests. Moreover,
the court, as factfinder, was the sole arbiter of the credibility of the witnesses, and,
in light of conflicting testimony from the caseworker, it was not required to believe
the mother when she denied having used cocaine. See In re H.R.M., 209 S.W.3d
105, 109 (Tex. 2006). We conclude the evidence was also factually sufficient to
support the judgment.
We overrule the mother’s issues relating to the legal and factual sufficiency
of the evidence to support the trial court’s finding of a predicate act pursuant to
section 161.001(1)(E). In light of this holding, we need not reach her other issues
which relate to the findings of other predicate acts pursuant to
section 161.001(1)(D), (I), and (O).
B. Best interest of the child (Family Code § 161.001(2))
The mother challenges the legal and factual sufficiency of the evidence to
support the trial court’s finding that termination of the parent-child relationship
was in the best interest of D.J.W. However, her brief contains no legal argument in
24
support of these points. Accordingly, the points have been waived. See TEX. R.
APP. P. 38.1(i).
III. Conservatorship of the child
In her final issue, the mother challenges the legal sufficiency of the evidence
to support the trial court’s finding that appointment of the Department as managing
conservator of D.J.W. was in his best interest. Her only legal argument is that if it
is determined that the Department did not adduce clear and convincing evidence in
support of the termination of her parental rights, then the appointment of the
Department as managing conservator is not in the best interest of D.J.W. As we
have concluded that legally and factually sufficient evidence supports the trial
court’s decree of termination, the mother has presented no other argument to
suggest that the Department should not have been appointed as managing
conservator. We overrule this issue.
25
Conclusion
We conclude that the evidence was legally and factually sufficient to support
a finding that the mother used illegal narcotics both before and after D.J.W. was
taken into custody by the Department. This evidence further supported the
conclusion that the mother’s drug use endangered the physical or emotional well-
being of D.J.W., by exposing him to the risks that the mother would be impaired or
imprisoned. Accordingly, we affirm the trial court’s final decree of termination.
Michael Massengale
Justice
Panel consists of Justices Jennings, Massengale, and Huddle.
Justice Jennings, dissenting
26