in Re CAG and IO

Opinion issued June 12, 2012.

In The

Court of Appeals
For The

First District of Texas
————————————
NO. 01-11-01094-CV
———————————
IN RE C.A.G. AND I.O.

On Appeal from the 314th District Court
Harris County, Texas
Trial Court Case No. 2010-06538J

MEMORANDUM OPINION

In this accelerated appeal,1 appellant, R.M.O., challenges the trial court’s

order, entered after a bench trial, terminating her parental rights to her two minor

children. In her first issue, appellant contends that the evidence is legally and

factually insufficient to support the trial court’s findings that she knowingly placed

1
See TEX. FAM. CODE ANN. § 263.405(a) (Vernon Supp. 2011).
or allowed the children to remain in conditions or surroundings which endangered

their physical or emotional well-being.2 In her third issue, appellant contends that

the evidence is legally and factually insufficient to support the trial court’s finding

that termination of her parental rights was in the children’s best interest. 3 We

affirm.

BACKGROUND

On October 1, 2010, appellant took her almost four-year-old son, I.O., to a

fire station in Houston because he was unresponsive. From there, I.O. was taken

by EMS Life Flight to Childrens’ Memorial Hermann Hospital. When admitted,

I.O. was severely malnourished, his blood sugar levels were dangerously low, and

he was in shock. I.O. was also had a body temperature of 91 and was in danger of

death.

Dr. R. Girardet testified that appellant told him that I.O. was malnourished

because they did not have enough money to feed him. Appellant also said that the

child’s father beat him daily. Dr. R. Girardet also noted loop cord marks on I.O.’s

skin, scratch marks suggestive of adult fingernails, and bruises. When asked how

he bruised his eye, I.O. stated that his mother hit him. He later said that both his

2
See id. § 161.001(1)(D) (Vernon Supp. 2011).
3
See id. § 161.001(2) (Vernon Supp. 2011).
2
parents hit him. Though almost four years old, I.O. weighed only seven kilograms,

which placed him in the 50th percentile for a four-and-a-half-month-old infant.

Several days after I.O. was taken to the hospital, a social worker asked

appellant if she had any other children. Appellant replied that she had an older

son, C.A.G., who was a year older than I.O. When asked about C.A.G.’s size,

appellant responded that he too was very small and that he looked like I.O.’s twin.

C.A.G. was subsequently admitted to the hospital too. Although not in shock, he

too was severely malnourished and had marks on his skin indicative of child abuse.

Though five years old, C.A.G. weighed just eight and one half kilograms, which

placed him in the 50th percentile for a seven-and-a-half-month-old infant. Dr.

Girardet also suspected that the children might have some underlying genetic

disease that was contributing to their condition.

Shortly after the children were hospitalized, appellant told hospital staff

about her life prior to the children’s admission to the hospital. Appellant said that

she came to the United States with her parents when she was 10 years old. After

her father died, her mother remarried an abusive man. Appellant said that she

became pregnant with C.A.G. when she was 14 years old and later moved in with

the child’s father. Appellant said that she tried to leave C.A.G.’s father because he

beat her and used drugs, but her mother made her stay. She finally left and went to

stay with her mother, but her mother was angry at the situation and would only let

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her feed C.A.G. one time each day. Appellant also claimed that her mother threw

C.A.G. to the ground when he was four months old and he had to be hospitalized

for four days.

After this, appellant stated that she went to live for a while with her friend

Martha in Beaumont. After some time, appellant took C.A.G. and decided to find

somewhere else to live. She met a man, Juan, at a gas station who offered to help.

She declined, but took his phone number. She later called Juan, began a

relationship with him, and soon became pregnant with I.O.

Appellant and C.A.G. began living with Juan, who was very controlling.

Appellant stated that he would not let her get any prenatal care, and that I.O. was

born at home. Appellant said that she, Juan, and the children moved to San

Antonio, where they lived for two years in abandoned houses and in their car under

bridges. Appellant said that she tried to leave twice, but Juan would not let her

take the children. She said that he threatened to kill the children if she tried to

leave again. According to appellant, Juan would often leave her and the children

in abandoned houses and he would nail the doors and windows shut before he left.

An investigator for DFPS testified that appellant told him that they were often

starving and that whenever they found food, she would eat first because she needed

to be “in control.” Appellant, however, testified that whenever Juan brought food,

which he did not do very often, she would feed the children first. Appellant

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claimed that she tried to get food stamps, but Juan became angry and tore up her

passport.

Appellant said that she finally escaped when she and Juan had an argument

and he got out of the car and started yelling. She said that he got scared and ran off

when he saw a sheriff’s car drive by. She then walked to a nearby parking lot,

where she found a truck driver who was willing to take her and the children to

Houston. Once there, she called her friend Martha, now in Houston, who came to

pick her up. At Martha’s house, appellant claimed that she fed the children and

went to sleep. The next day, she noticed that I.O. was not responsive, so she and

Martha drove him to the fire station for help.

Shortly after the children were admitted to the hospital, DFPS filed suit and

was granted temporary managing conservatorship of both children. On December

2, 2010, the court signed “Additional Temporary Orders to Obtain Return of the

Children,” which required appellant, among other things, to complete a

psychological examination, complete parenting classes, maintain stable housing

and stable employment, and complete a domestic violence counseling program.

Appellant did not complete the requirements because she claimed that she

did not have any transportation to get to them. She testified that once she obtained

the necessary paperwork and got a job, she needed to save gas money for Martha,

who was her only source of transportation. At times she missed her appointments

5
because Martha was either sick or unable to take her. Appellant admitted that she

did not attempt to learn to use public transportation, claiming that none was

available where she lived. Appellant testified that when she missed her psychiatric

evaluation, she was not able to reschedule it because her friend’s cell phone had

been temporarily disconnected.

After a bench trial, at which Dr. Girardet, the DFPS investigator, and

appellant testified and the children’s medical records were admitted, the trial court

rendered judgment that appellant’s parental rights should be terminated based on

§161.001(1)(D), (E), and (O). However, the final judgment signed by the trial

court included only §161.001(1)(D), which ordered termination based on

appellant’s having “knowingly placed or knowingly allowed the child[ren] to

remain in conditions or surroundings which endanger[ed] the physical or emotional

well-being of the child[ren.]”

SUFFICIENCY OF THE EVIDENCE

In her first issue, appellant argues that the evidence is legally and factually

insufficient to support the trial court’s finding that she allowed the children to

remain in conditions or surrounds that endangered their physical or emotional well-

being. See TEX. FAM. CODE ANN. §161.001(1)(D) (Vernon Supp. 2011).

Specifically, appellant argues that she “is compelled to admit, as she did at trial,

that there is sufficient evidence to establish that the children were allowed to

6
remain in conditions or surroundings that endangered their physical and emotional

well-being,” but that she did so only under duress. In her third issue, appellant

argues that the evidence is legally and factually insufficient to support the trial

court’s finding that termination of her parental rights was in the best interest of the

children because her “failure to provide an adequate level of care for her sons was

not due to indifference or malice but solely due to her misfortune and lack of

resources.” See id. § 161.001(2).

Standard of Review

Because termination of parental rights “is complete, final, irrevocable and

divests for all time that natural right . . . , the evidence in support of termination

must be clear and convincing before a court may involuntarily terminate a parent’s

rights.” Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985) (citing Santosky v.

Kramer, 455 U.S. 745, 747–48, 102 S. Ct. 1388, 1391–92 (1982); Richardson v.

Green, 677 S.W.2d 497, 500 (Tex. 1984)). 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 2011); In re J.F.C., 96 S.W.3d 256, 264 (Tex.

2002). Because the standard of proof is “clear and convincing,” the Texas Supreme

Court has held that the traditional legal and factual standards of review are

inadequate. In re J.F.C., 96 S.W.3d at 264–66.

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 In conducting a legal-sufficiency review in a parental-rights termination

case, we must determine whether the evidence, viewed in the light most favorable

to the finding, is such that the fact finder could reasonably have formed a firm

belief or conviction about the truth of the matter on which DFPS bore the burden

of proof. See id. at 266. In viewing the evidence in the light most favorable to the

finding, we “must assume that the fact finder resolved disputed facts in favor of its

finding if a reasonable fact finder could do so,” and we “should disregard all

evidence that a reasonable fact finder could have disbelieved or found to be

incredible.” In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005) (citing In re J.F.C., 96

S.W.3d at 266).

In conducting a factual-sufficiency review in a parental-rights termination

case, we must determine whether, considering the entire record, including evidence

both supporting and contradicting the finding, a fact finder reasonably could have

formed a firm conviction or belief about the truth of the matter on which the State

bore the burden of proof. In re C.H., 89 S.W.3d 17, 25 (Tex. 2002). We should

consider whether the disputed evidence is such that a reasonable fact finder could

not have resolved the disputed evidence in favor of its finding. In re J.F.C., 96

S.W.3d at 266–67. “If, in light of the entire record, the disputed evidence that a

reasonable fact finder could not have credited in favor of the finding is so

significant that a fact finder could not reasonably have formed a firm belief or

8
conviction, then the evidence is factually insufficient.” In re H.R.M., 209 S.W.3d

105, 108 (Tex. 2006).

In proceedings to terminate the parent-child relationship brought under

section 161.001, DFPS must establish, by clear and convincing evidence, one or

more of the acts or omissions enumerated under subsection (1) of section 161.001

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 355, 362 (Tex. 2003).

Endangerment

Under section 161.001(1)(D), a court may terminate the parent-child

relationship if the court finds by clear and convincing evidence that the parent has

knowingly placed or knowing allowed the children to remain conditions or

surroundings which endanger their physical or emotional well-being. TEX. FAM.

CODE ANN. § 161.001(1)(D). “Endanger” means to expose to loss or injury or to

jeopardize. Boyd, 727 S.W.2d at 533. A child is endangered when the

environment creates a potential for danger that the parent is aware of, but

9
disregards. Jordan v. Dossey, 325 S.W.3d 700, 721 (Tex. App.—Houston [1st

Dist.] 2010, pet. denied); In re M.R.J.M., 280 S.W.3d 494, 502 (Tex. App.—Fort

Worth 2009, no pet.). Conduct that “subjects a child to a life of uncertainty and

instability endangers the physical and emotional well-being of a child.” S.K.A., 236

S.W.3d at 901.

Subsection (D) focuses on the suitability of the children’s living conditions.

In re R.D., 955 S.W.2d 364, 367–68 (Tex. App.—San Antonio 1997, pet. denied).

Although the focus of subsection (D) is on the children’s living environment and

not on the parents’ conduct, parental conduct may produce an endangering

“environment.” See In re D.T., 34 S.W.3d 625, 633 (Tex. App.—Fort Worth 2000,

pet. denied). We must examine the time before the child’s removal to determine

whether the environment itself posed a danger to the child’s physical or emotional

well-being. Ybarra v. Tex. Dep’t of Human Servs., 869 S.W.2d 574, 577 (Tex.

App.—Corpus Christi 1993, no writ).

Here, appellant admitted that her children lived in abandoned houses and

cars for at least two years prior to their removal from her custody. During this

time, the children were underfed and became severely malnourished, and were,

according to appellant, subject to daily abuse at the hands of Juan. However, there

was also evidence that appellant herself hit the children. I.O. told the hospital staff

that his mother caused his bruised eye.

10
 Even though appellant claimed that she always fed the children first, the

DFPS investigator testified that she told him that she ate first because she needed

to be in control. The children’s medical records show that appellant, while small,

was not similarly malnourished. Likewise, she had no signs of physical abuse,

even though she claimed that Juan beat both her and the children on a daily basis.

While appellant claimed that Juan abused her and the kids, locked her in

abandoned houses, and refused to provide adequate food, the trial court as fact

finder was entitled to disbelieve her testimony that her children’s condition was all

Juan’s fault and that she acted only under duress. See in re J.P.B., 180 S.W.3d

570, 574 (Tex. 2005) (holding that factfinder was entitled to disbelieve father’s

testimony that he did not know how his child was injured). This is especially true

in light of other testimony tending to make appellant’s testimony questionable. For

example, appellant told hospital workers that when she lived with her mother, her

mother would allow her to feed C.A.G. only once per day. This is extremely

similar to her claim that Juan would not give them enough food to eat. Thus, the

trial court could have disbelieved appellant’s testimony because it seemed that she

had a pattern of blaming other people for her children’s malnourishment.

It was also apparent from the record that appellant did not appreciate the

seriousness of her children’s condition. When asked why I.O. had never been to

the doctor, appellant stated that it was “because he has not ever been sick.” It was

11
not until he fell into a near-comatose state that she finally realized that he needed

medical attention for severe malnutrition. And, even after I.O. was admitted to the

hospital, she did not seek medical attention for C.A.G. even though she was aware

that he was in a similar physical condition. It was not until DFPS workers asked

about other children that appellant even mentioned having a second child; much

less a child in a similar malnourished condition.

Considering the evidence in the light most favorable to the trial court’s

ruling, we conclude that the evidence was legally sufficient to support the trial

court’s finding that termination was appropriate under § 161.001(1)(D). And

having considered the entire record, we similarly conclude that the evidence was

factually sufficient to support the trial court’s finding. See Jordan, 325 S.W.3d

700, 724 (Tex. App.—Houston [1st Dist.] 2010, pet. denied (holding evidence

sufficient to terminate under § 161.001(1)(D) when mother remained in home with

physically abusive father, lived an unstable, transient lifestyle, did not attend all

her mental health appointments or take prescribed medicine); In re Z.A.S., No. 02–

11–00040–CV, 2011 WL 3795231, at *15–16 (Tex. App.—Fort Worth Aug. 25,

2011, no pet.) (mem. op.) (holding evidence sufficient to support trial court’s

161.001(1)(D) and (E) findings because evidence showed that mother, among

other things, had moved frequently and had limited employment); In re J.G.K., No.

02–10–00188–CV, 2011 WL 2518800, at *39–41 (Tex. App.—Fort Worth June

12
23, 2011, no pet.) (mem.op.) (holding evidence sufficient to support trial court’s

(D) and (E) findings because evidence showed that mother, among other things,

failed to seek medical treatment for child, moved frequently, had limited

employment, and exposed her children to domestic violence); In re T.H., No. 02–

07–00464–CV, 2008 WL 4831374, at *4–5 (Tex. App.—Fort Worth Nov. 6, 2008,

no pet.) (mem. op.) (holding evidence sufficient to support trial court’s (D) and (E)

findings because evidence showed that father had engaged in conduct that

subjected his children to life of instability and uncertainty, including living at more

than five residences over five years; using illegal drugs; engaging in domestic

violence; and exhibiting anger issues).

Having concluded that the evidence is legally and factually sufficient to

support termination of appellant’s parental rights under section 161.001(1)(D), we

need not address appellant’s issues challenging the sufficiency of the evidence

under sections 161.001(1)(E) and (O). See In re A.V., 113 S.W.3d at 362.

We overrule appellant’s first issue.

Best Interest of the Children

A trial court possesses wide discretion in determining the best interests of a

child. Villasenor v. Villasenor, 911 S.W.2d 411, 419 (Tex. App.—San Antonio

1995, no writ). “There are several factors that should be taken into account when

determining whether termination of parental rights is in the best interest of the

13
child.” In re R.R., 209 S.W.3d 112, 116 (Tex. 2006) (per curiam). These include

the statutory factors set forth in section 263.307 of the Family Code4 that are

relevant in the particular case, and the non-exhaustive list of factors described by

the supreme court in Holley v. Adams.5 In re R.R., 209 S.W.3d at 116 (citing TEX.

4
These factors include: (1) a child’s age and physical and mental
vulnerabilities; (2) the frequency and nature of out-of-home placements; (3)
the magnitude, frequency, and circumstances of the harm to the child; (4)
whether the child has been the victim of repeated harm after an initial report
and intervention; (5) whether the child is afraid to return home; (6) the
results of psychiatric, psychological, or developmental evaluations of the
child, the child’s parents, other family members, or others who have access
to the child’s home; (7) whether there is a history of abusive or assaultive
conduct by the child’s family or others who have access to the child’s home;
(8) whether there is a history of substance abuse by the child’s family or
others who have access to the child’s home; (9) whether the perpetrator of
the harm has been identified; (10) the willingness of the child’s family to
seek out, accept, and complete counseling and cooperate with supervising
agencies; (11) the willingness and ability of the child’s family to effect
positive environmental and personal changes within a reasonable time; (12)
whether the child’s family demonstrates adequate parenting skills, including
providing the child with adequate health and nutritional care, care and
nurturance consistent with the children’s development, guidance and
supervision for the child's safety, a safe physical home environment,
protection from exposure to violence even if not directed at the child, and an
understanding of the child's needs and capabilities; and (13) whether an
adequate social support system consisting of an extended family and friends
is available to the child.
TEX. FAM. CODE ANN. § 263.307(b) (Vernon 2011).
5
The Holley factors include (1) the child’s desires, (2) the current and future
physical and emotional needs of the child, (3) the current and future physical
danger to the child, (4) the parental abilities of the person seeking custody,
(5) whether programs are available to assist the person seeking custody in
promoting the best interests of the child, (6) plans for the child by the person
seeking custody, (7) the stability of the home, (8) acts or omissions of the
14
FAM.CODE ANN. § 263.307 (Vernon 2011); Holley, 544 S.W.2d at 372; In re C.R.,

263 S.W.3d 368, 375 (Tex. App.—Dallas 2008, no pet.). The trial court may also

consider any other relevant information in determining the best interest of a child.

See In re J.J.C., 302 S.W.3d at 447–48.

The first and third factors of section 263.307(b) focus on the children’s age

and physical and mental vulnerabilities, as well as the magnitude, frequency, and

circumstances of harm to the children. The seventh factor of section 263.307(b)

requires consideration of whether there is a history of abusive or assaultive conduct

by the children’s family. The second and third factors of Holley focus on the

current and future physical and emotional needs of the children and the current and

future physical danger to the children.

Here, the children are only four and five years of age. For over two years,

the children were homeless, living only in abandoned houses and cars. For the

same two year time period, the children were not fed properly and suffered from

severe malnutrition. Both were the size of an average infant less than one year old.

Their medical condition was so dire that both were still in a long-term medical

rehabilitation facility at the time of trial even though they had been removed from

appellant’s care over a year before. There was evidence that both children would

parent that may indicate that the parent-child relationship is not proper, and
(9) any excuse for acts or omissions of the parent. Holley v. Adams, 544
S.W.2d 367, 371–72 (Tex. 1976).
15
require future medical attention. The record also shows that the children were

subjected to daily physical abuse, in addition to starvation. There were rope marks

and bruises on their bodies. While appellant claimed that Juan was the abuser,

there was also evidence that she, too, hit the children. I.O. told hospital staff that

his mother caused his bruised eye.

These factors weigh in favor of finding that termination of appellant’s rights

is in the children’s best interest.

Factors 10 and 12 of section 263.307(b) and the fourth and seventh Holley

factors focus on the parenting abilities of the person seeking custody. Specifically,

we consider appellant’s willingness to seek out, accept, and complete counseling

and cooperate with supervising agencies. We also consider whether she had

demonstrated adequate parenting skills, “including providing the child . . . with

minimally adequate health and nutritional care.” TEX. FAM. CODE ANN. §

263.307(b)(12). Finally, we consider appellant’s ability to provide the children

with a stable home. See id.

Here, appellant was ordered by the court to undergo psychiatric testing, as

well as parenting classes and a domestic violence class. However, appellant

completed none of them. She testified that she was unable to do so because she

lacked transportation, however, she never learned to use public transportation or

sought to move to an area better served by public transportation. There is also no

16
evidence that she ever called anyone at the Department to let them know of her

transportation woes. Instead, she just failed to show up to her classes. Thus, the

trial court could have concluded that appellant had not demonstrated any

willingness to seek out, accept, and complete counseling and cooperate with

supervising agencies.

Clearly, appellant failed to demonstrate adequate parenting skills, including

providing the children with adequate health and nutritional care. See id. Her four

and five year old children were the size of infants when taken into the

Department’s custody. There was evidence that when food was available, she ate

first before feeding the children. Appellant remained with an abusive boyfriend for

over two years, during which her children were basically starved and beaten daily.

She claimed that she tried to leave twice, but Juan would not let her take the

children. However, there is no evidence that she ever called anyone for help or

attempted to obtain help for the children. And, this was appellant’s second abusive

relationship. She also testified that C.A.G.’s father abused her when she was with

him.

There was also evidence that appellant failed to comprehend the seriousness

of her children’s condition. She testified that she never took I.O. to the doctor—

until he went into shock as a result of starvation and dehydration—because he was

never sick; this despite the fact that I.O. was the size of an infant. She also did not

17
seek medical attention for C.A.G. after I.O. was admitted to the hospital, even

though she was aware that he was in a similar physical condition. This evidence

suggests that appellant was unable to recognize, much less provide, adequate

health care for the children.

Regarding appellant’s ability to provide a stable home, we note that at the

time of trial, appellant was working, but she was still staying with her friend

Martha and relying solely on Martha to provide her with a home and

transportation. Although she testified that she would obtain food stamps to help

feed her children, appellant had not done so during the one year that the children

were in the rehabilitation facility. By appellant’s continued dependence on

others—first C.A.G.’s father, then Juan, then Martha—she had demonstrated an

inability to take care of herself, much less two small children in need of continuing

medical care.

While it is true that the Department did not present evidence of its future

plans for the children, at the time of trial they were still in a long-term medical

rehabilitation facility, where their physical and mental conditions had improved

dramatically. The post-trial documents in this case show that the trial court was in

the process of screening potential foster care parents for the children upon their

eventual release from the medical facility.

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 After considering the relevant factors of section 263.307(b) and the Holley

factors, we hold that the evidence is legally and factually sufficient for the trial

court to reasonably form a firm belief or conviction that termination of appellant’s

parental rights was in the children’s best interest.

We overrule appellant’s third issue on appeal.

CONCLUSION

We affirm the trial court’s order terminating appellant’s parental rights.

Sherry Radack
Chief Justice

Panel consists of Chief Justice Radack and Justices Jennings and Keyes.

19