in the Interest of L.M.N. AKA L.N., D.Y.L.N., J,J,L.N. AKA J.L.L. v. Department of Family and Protective Services and Jason S. Colunga and Maria R. Colunga

Opinion issued November 8, 2018

In The

Court of Appeals
For The

First District of Texas
————————————
NO. 01-18-00413-CV
———————————
IN THE INTEREST OF L.M.N. AKA L.N., D.Y.L.N., AND J.J.L.N. AKA
J.L.L., CHILDREN

On Appeal from the 315th District Court
Harris County, Texas
Trial Court Case No. 2015-01217J

MEMORANDUM OPINION

In this accelerated appeal,1 appellants, mother and father, challenge the trial

court’s order, entered after a bench trial, terminating mother’s parental rights to her

1
See TEX. FAM. CODE ANN. § 263.405(a) (Vernon 2014); TEX. R. APP. P. 28.4.
minor children, L.M.N.,2 D.Y.L.N., and J.J.L.N.3 (collectively, “the children”),4 and

father’s parental rights to his minor children, D.Y.L.N. and J.J.L.N.5 In five issues,

mother contends that the trial court erred in appointing the Department of Family

and Protective Services (“DFPS”) as the permanent managing conservator6 of the

children and the evidence is legally and/or factually insufficient to support the trial

court’s findings that she knowingly placed, or knowingly allowed the children to

remain, in conditions or surroundings which endangered their physical and

emotional well-being;7 engaged, or knowingly placed the children with persons who

engaged, in conduct that endangered their physical and emotional well-being;8 failed

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

actions necessary for her to obtain the return of the children;9 and termination of her

2
We use the initials “L.M.N.” when referring to the child named L.M.N., also known
as L.N.
3
We use the initials “J.J.L.N.” when referring to the child named J.J.L.N., also known
as J.L.L.
4
When the trial court terminated the parental rights of mother and father, L.M.N. was
nine years old, D.Y.L.N. was six years old, and J.J.L.N. was three years old.
5
The trial court terminated the parental rights of the unknown father of L.M.N. He
is not a party to this appeal. Mother testified that L.M.N.’s father is deceased.
6
See TEX. FAM. CODE ANN. § 161.207(a) (Vernon Supp. 2018).
7
See id. § 161.001(b)(1)(D) (Vernon Supp. 2018).
8
See id. § 161.001(b)(1)(E).
9
See id. § 161.001(b)(1)(O).

2
parental rights was in the best interest of the children.10 In four issues, father

contends that the trial court erred in appointing DFPS as the permanent managing

conservator11 of D.Y.L.N. and J.J.L.N. and the evidence is legally and factually

insufficient to support the trial court’s findings that that he knowingly placed, or

knowingly allowed D.Y.L.N. and J.J.L.N. to remain, in conditions or surroundings

which endangered their physical and emotional well-being;12 engaged, or knowingly

placed D.Y.L.N. and J.J.L.N. with persons who engaged, in conduct that endangered

their physical and emotional well-being;13 failed to comply with the provisions of a

court order that specifically established the actions necessary for him to obtain the

return of D.Y.L.N. and J.J.L.N.;14 and termination of his parental rights was in the

best interest of D.Y.L.N. and J.J.L.N.15

We affirm.

10
See id. § 161.001(b)(2).
11
See id. § 161.207(a).
12
See id. § 161.001(b)(1)(D).
13
See id. § 161.001(b)(1)(E).
14
See id. § 161.001(b)(1)(O).
15
See id. § 161.001(b)(2).

3
 Background

On April 24, 2015, DFPS filed its third amended petition, seeking termination

of mother’s parental rights to the children, termination of father’s parental rights to

D.Y.L.N. and J.J.L.N., and managing conservatorship of the children.

At trial, DFPS caseworker Felicia Scott, who served as the caseworker in

2015, testified that the children entered the care of DFPS after allegations arose of

physical abuse of L.M.N. When Scott spoke to mother regarding the allegations of

physical abuse, mother stated that L.M.N. had fallen in the bathtub. Scott saw

“bruises behind [L.M.N.’s] ear” and “a lot of scratches on the back of her neck.”

Scott further testified that while the children were placed, pursuant to a

parent-child safety plan, with family members or friends, mother and father had had

unsupervised visits with them. In February 2015, Scott found the children at the

home of mother and father and not at their designated placement. At the time,

mother and father were aware that they were not to have unsupervised contact with

the children.

DFPS caseworker Shanette McBride, who served as the caseworker from

January 2016 to October 2016, testified that she observed family visits between

mother, father, D.Y.L.N., and J.J.L.N.16 Those visits occurred every two weeks for

16
L.M.N. did not have visits or any contact with mother or father while McBride
served as caseworker.

4
two hours. D.Y.L.N. was active during the visits and appeared happy to see mother

and father, but she also did not smile and appeared “nonchalant.” McBride opined

that D.Y.L.N. was simply “going through the motion[s].” J.J.L.N. interacted with

mother and father at the visits, but he did not cry when he had to leave. During one

visit in October 2016, mother became “highly upset,” very angry, and spoke in an

“elevated” voice when McBride discussed the potential for an unrelated adoption of

the children. Mother’s conduct caused D.Y.L.N.’s demeanor to change.

In regard to mother and father, McBride noted that they consistently

communicated with DFPS and completed their respective Family Service Plans

(“FSPs”), with the exception that they were still participating in family therapy with

D.Y.L.N.17 McBride found the home of mother and father to be appropriate.

However, she opined that mother and father had not learned from the programs in

which they participated and their behaviors had not changed.

In regard to the children, McBride testified that they did not want to return

home,18 and L.M.N. was actually afraid to return home. Any discussion of mother

with L.M.N. caused her to appear sad and scared, and she “put her head down.”

Further, when L.M.N. spoke about the physical abuse that she had suffered while

17
Neither L.M.N. nor J.J.L.N. participated in family therapy with mother and/or father
while McBride served as caseworker.
18
D.Y.L.N. did not indicate that she wanted to see mother and father more than her
regularly scheduled visits.

5
living with mother and father, she “look[ed] down” and was “very sad.” L.M.N.

feared that she would be abused again if she was returned home, and she was afraid

that D.Y.L.N. and J.J.L.N. would also be abused. L.M.N. reported that, while living

with mother and father, mother threw “cleaning supplies” and dishes at her and “hit

her with brooms and mops.” McBride opined that L.M.N. was the victim of physical

abuse by mother.

McBride further explained that the children and their foster parents interacted

positively with each other. The children were “very bonded” with their foster

parents, who would take them on trips and to different activities. The foster parents

“treated the[] [children] as their own”; “[t]hey felt like they were family.” And the

foster home is the only home that J.J.L.N. had ever known.

Moreover, the children thrived in their placement with their foster parents,

who met the children’s educational needs. L.M.N. was “an all-A student, [a]

well-rounded student,” and she had friends. She participated in gymnastics, and

while McBride served as caseworker, D.Y.L.N. and J.J.L.N. attended daycare. None

of the children had marks or bruises on them while living with their foster parents.

McBride opined that it would be in the best interest of the children to remain in their

current placement because they were thriving, mother and father had not

demonstrated an ability to change their behavior, and mother had never taken

responsibility for the injuries she had caused to L.M.N.

6
 During McBride’s testimony, the trial court admitted into evidence a

“Permanency Plan and Progress Report to the Court,” dated September 2, 2016.19

The report states that L.M.N. did well in school and cared about others. She was

very intelligent and maintained “an all[-]A average” at school. L.M.N. enjoyed

walking, going on outings, watching cartoons, and drawing. She was proud of her

new school supplies and new clothing. L.M.N. did not have any special needs, but

participated in therapy “to address her emotions as to being in [foster] care and the

abuse she endured while [living] with . . . mother and []father.” And she was “doing

extremely well” in her current placement, did not want to see mother, feared mother,

and did not want to return home.

In regard to D.Y.L.N., the report states that she was “a joy.” She attended

pre-kindergarten for half of a day and enjoyed playing with L.M.N., the outdoors,

watching cartoons, and coloring. She did not have any special needs, but wore

glasses for her vision.

In regard to J.J.L.N., the report states that he was a happy child and loved to

explore. He had mastered the ability to walk and attended daycare to meet his

19
At the time of the report, L.M.N. was seven years old, D.Y.L.N. was four years old,
and J.J.L.N. was almost two years old. The trial court also admitted into evidence
a “Permanency Plan and Progress Report to the Court,” dated May 16, 2016, which
contained similar information.

7
educational needs. J.J.L.N. was able to walk, run, and say certain words. And he

did not have any special needs.

In regard to mother and father, the report states that they had completed their

parenting classes, psychosocial evaluations, individual therapy, and couples therapy.

Mother had also completed her anger management classes. Mother and father had

regular visits with D.Y.L.N. and J.J.L.N., and they participated in family therapy

with those children. Mother, however, had not taken responsibility for the physical

abuse that L.M.N. had suffered and her “stories” about the abuse were not consistent.

Current DFPS caseworker, Tychia Beaty testified that the children entered the

care of DFPS after allegations arose of physical abuse of L.M.N. by mother. There

were also allegations of abuse related to D.Y.L.N. and J.J.L.N. Initially, the children

were placed with family members/friends pursuant to a parent-child safety plan, but

the children’s placement would allow mother to take the children to her home

unsupervised. According to Beaty, it was mother’s conduct and father’s failure to

protect the children that endangered them and caused them to enter the care of DFPS.

Neither parent had ever taken responsibility for the physical abuse that L.M.N. had

suffered.

During Beaty’s testimony, the trial court admitted into evidence, the FSPs of

mother and father, which state that L.M.N. had bruises “cover[ing] her back,” arms,

and the left side of her face. She “fear[ed] retribution.” Mother had hit L.M.N., who

8
was six years old at the time, because the child “would not listen . . . and would tell

[mother] that she [was] not her mother.” Although mother admitted to hitting

L.M.N., causing a bruise, on one occasion, she also gave several explanations as to

how L.M.N. had sustained her many injuries, including falling off of her bicycle and

being hit by her uncle.

Beaty further testified that mother and father completed their FSPs and visited

regularly with D.Y.L.N. and J.J.L.N.20 However, mother did not appropriately

correct D.Y.L.N.’s improper behavior during visits with the child. For instance, if

D.Y.L.N. yelled or screamed at a visit, mother could not stop her or redirect the

behavior. Beaty noted that father’s visits with D.Y.L.N. and J.J.L.N. were

appropriate and she had not seen him act angrily. Beaty opined that although mother

and father had completed their FSPs, they had not learned from the programs in

which they were required to participate.

During Beaty’s testimony, the trial court also admitted into evidence a

“Permanency Plan and Progress Report to the Court,” dated December 4, 2017,

which states that although mother and father “ha[d] worked services,” “mother ha[d]

not learned from [her participation in] the [programs]” and it was questionable as to

whether father could protect the children if they were returned home. Further, the

20
Beaty could not confirm whether mother and father had been consistently paying,
as ordered by the trial court, child support while the children were in the care of
DFPS.

9
report notes that the children’s therapist believed that it would be in their best interest

to remain in their current placement because of the “severity of abuse” that L.M.N.

had endured while living with mother and father. And allowing the children to return

to the care of mother and father would “re-traumatiz[e]” them. D.Y.L.N. did not

want to return home, and J.J.L.N. only knew his home with his foster parents.

In regard to the children, Beaty noted that neither L.M.N. nor D.Y.L.N.

wanted to return home. And L.M.N. appeared sad and upset and “look[ed] down at

the floor” whenever the subject of returning home was discussed. According to

L.M.N., mother was “mean to her,” “whoop[ed] her,” and “hit her.”21

The trial court also admitted into evidence photographs of L.M.N. that had

been taken by DFPS after the children had been removed from the care of mother

and father. Beaty explained that the photographs show a visible bruise on L.M.N.’s

cheek, “several bruises on her back,” and visible bruises on her arm. Beaty opined

that the bruising was not the result of “a one[-]time event” and returning L.M.N. to

the care of mother would be “re-traumatizing” for her. Further, mother’s history of

abusing L.M.N. constituted conduct that had put the children in physical and

emotional danger. As Beaty explained, the fact that one child had sustained injuries

in the home of mother and father endangered the other children who were also in the

home. Beaty further opined that father could not protect D.Y.L.N. and J.J.L.N. if

21
Beaty noted that mother and L.M.N. had not had contact since 2015.

10
they were returned home because L.M.N. had sustained physical abuse while father

lived in the home and he “did not do anything when th[at] abuse was going on.”

Beaty also noted that father had continued to support mother throughout the case,

and she was concerned about returning D.Y.L.N. and J.J.L.N. to father’s care given

that he had continued to live with mother in spite of the evidence of physical abuse.

Father never offered any alternative living arrangement for D.Y.L.N. and J.J.L.N.

According to Beaty, the children were doing well and had adjusted to their

current placement. And she opined that they had a strong bond and it was in their

best interest to remain together. Mother, however, wanted all of the children

returned to her care.

Child Advocates Inc. (“Child Advocates”) volunteer Martha Gomez testified

that she was appointed as the children’s guardian ad litem in May 2015. When she

spoke to mother about “the incident” that prompted the children to enter the care of

DFPS, mother told her that she had been “having problems” with L.M.N. because

L.M.N.’s grandmother had “manipulat[ed] [her] into . . . believ[ing that] she was

[L.M.N.’s] biological mother” and L.M.N. had refused to call mother her

“[m]other,” which was frustrating. (Internal quotations omitted.) Mother admitted

that she had “hit [L.M.N.] one time with a shoe” (the “shoe incident”), but she did

not admit to any other forms of violence or abuse related to the child. Father told

11
Gomez that the children had entered the care of DFPS because “there w[ere]

problems with [L.M.N.]”

According to Gomez, while the children were in the care of mother and father,

mother “would put [L.M.N.’s] hands under the hot water faucet” and “hit [her] with

a belt on her arms.” Mother also hit L.M.N. “on the head with a cell phone charger,”

“hit [her] with a broom,” and “pushed [her] into a door,” causing her to bleed and

require stitches. L.M.N. said that these incidents of physical abuse had occurred at

different times, and she indicated to Gomez that she had been physically abused on

several occasions.

In regard to mother and father, Gomez noted that over the course of the

instant case, their “stories about what brought the children into care [had]

change[d],” with mother stating that “she didn’t have any anger issues,” “she didn’t

understand why she was made to take anger management classes,” and she had hit

L.M.N. “because she [had been] taking Prozac and . . . experiencing depression

because of [her] pregnancy” with J.J.L.N. These statements by mother concerned

Gomez because, at the time that she made them, mother had already completed her

FSP and participated in anger management classes; however, she still “didn’t feel

like she had any anger management issues.” Gomez opined that father was not

protective of the children and “could not speak up for himself or speak out

12
independently.” Further, he had not demonstrated how he would protect the children

in the future if they were returned home.

According to Gomez, mother needed “to take responsibility for the physical

abuse of [L.M.N.]” and father needed “to take responsibility [for not] . . . being

protective” of the child. Although L.M.N. sustained “all [of] these bruises” and

“injuries” while in the care of mother and father, neither party could explain how

they had occurred, except for mother admitting to having hit L.M.N. on one

occasion.22

In regard to their visits with D.Y.L.N. and J.J.L.N., Gomez, who had observed

“10 to 12” visits, testified that mother and father would “split their time up” between

J.J.L.N. and D.Y.L.N. J.J.L.N. did “very well” during the visits, but D.Y.L.N.

“require[d] a lot of attention.” Mother and father had difficulty directing her. And

during one visit, mother became so “agitated” with Gomez that Gomez had to leave.

In regard to the termination of the parental rights of mother and father, Gomez

explained that she was concerned about returning the children to the care of mother

and father because of the “severe physical abuse” suffered by L.M.N. and the risk

that D.Y.L.N. and J.J.L.N. would also be physically abused. Gomez opined that

L.M.N. should not have any contact with mother “[b]ecause of the severe physical

22
Gomez opined that a “one-time hitting” incident was not “consistent with all of the
bruising and all of the scars” found on L.M.N.

13
abuse that she[] had to endure, the severe trauma and the fact that she [was] afraid

of her mother.”23 L.M.N. did not want to see mother, which “confirm[ed] that she

ha[d] been through severe trauma, severe physical abuse.” She was also “afraid for

her siblings” to be returned to the care of mother and father. Gomez did not

recommend reunification, but rather the termination of the parental rights of mother

and father. Gomez opined that the children would be in “grave danger” if they were

returned to the care of mother and father, as evidenced by the physical abuse that

L.M.N. had suffered. And because father was unable to demonstrate how he would

protect the children if they were returned home.

In regard to the children’s current placement, Gomez testified that they had

been living with their foster parents since 2015 and were “doing well” and

“thriving.” The children did well in school, and L.M.N. and D.Y.L.N. wanted to

“remain with their foster parents.”24 In their rooms at their foster parents’ home, the

children had toys, books, beds, and stuffed animals. The children’s foster parents

did not neglect them, and Gomez had not observed any torn clothing on the children.

The children were happy in their placement, and Gomez opined that it was in their

best interest for them to remain there because it was a safe and stable home.

23
Gomez explained that L.M.N.’s therapist also recommended that she have no
contact with mother.
24
Gomez noted that D.Y.L.N. had spent the majority of her life living with her foster
parents.

14
 During Gomez’s testimony, the trial court admitted into evidence a “Court

Report” from Child Advocates dated November 2017. The report states that “[o]n

November 13, 2014, [DFPS] received a referral alleging physical abuse of [a then]

6 year old [L.M.N.] by [mother].” L.M.N. had gone to school with “two black eyes

that were swollen and black in color.” “Her back, arms and hands were also full of

discolored and scattered bruises.”25 L.M.N. stated that “her sibling hit her with a toy

car . . . on the left eye and that the phone hit her on her right eye.” Her “lip also had

a blister which may or may not have been a fever blister.”

The Court Report also notes that the children lived together in the same foster

home, where they had been living since 2015. The children “ha[d] adjusted well to

th[eir] placement,” which was meeting their emotional, psychological, and physical

needs. L.M.N. was in third grade “bilingual classes and [was] comfortable and

underst[ood] English and Spanish.” Her teachers did not have any behavioral or

academic concerns. D.Y.L.N. was in “kindergarten and . . . doing very well.” “She

[had] mastered all objectives . . . and received all S’s on her report card.” Her

teacher reported that she was “doing better than most of her class in writing and [she

was] in one of the higher reading groups.” J.J.L.N. attended daycare and was

25
Gomez testified that mother and father had no explanation “for all of the bruising
on [L.M.N.]” or “for all of the scars that she ha[d].”

15
developmentally on target. Child Advocates recommended that the children stay in

their current placement.

Dr. Melissa Earls, the children’s therapist, testified that in regard to L.M.N.,

she had “directly communicate[d] her desire to stay with her current foster family.”

L.M.N. feared returning home, her mother, and being “hurt” again. And when

L.M.N. stated, “I don’t want to be hurt,” she meant she did not want to suffer more

physical bodily harm. (Internal quotations omitted.) L.M.N. disclosed that mother

had hit her, “ignored” her, and “put [her] in” or “locked” her in a closet. L.M.N.

told Earls, “I do not want to go back.” (Internal quotations omitted.) L.M.N. had a

strong bond with her siblings and with her foster parents. And Earls opined that she

should remain with her foster parents, who were meeting her physical and emotional

needs.

In regard to D.Y.L.N., Dr. Earls explained that she had a strong bond with her

siblings and with her foster parents. D.Y.L.N. wanted to stay in her current

placement, she was afraid to return home, and she was afraid to be taken away from

her foster parents. She told Earls that while living with mother and father, she “had

been left in a closet” so that she would “not see [L.M.N. being] hurt” (the “closet

incident”). However, while living with mother and father, she had actually seen

L.M.N. “being hit.” And when she told Earls this, D.Y.L.N. appeared “[s]haken.”

16
 Dr. Earls further noted that she saw D.Y.L.N. for an “emergency [therapy]

session” after she had a visit with mother and father. D.Y.L.N. was upset and tearful

after the visit because mother had said that she “ha[d] to come home.” (Internal

quotations omitted.) According to Earls, on at least four occasions, she had to speak

to the children after visits with mother and father in order to ease “their anxiety and

fears about returning.” Earls opined that D.Y.L.N. should be placed with her foster

parents because she was “thriving” “in [the] emotionally supportive home.”

In regard to J.J.L.N., Dr. Earls noted that he was young and appeared to be

“[v]ery happy, playful, [and] very bright.” He had a strong bond with his sisters and

his foster parents.

Dr. Earls further opined that the children’s current placement was safe, and

they had not expressed any fears related to their foster parents. And the children had

never reported any abuse or neglect by their foster parents. According to Earls, it

would be emotionally detrimental if either L.M.N. or D.Y.L.N. were returned to the

care of mother and father.

J.C., the children’s foster father, testified that he currently lives in a house

with his wife, his nine-year-old daughter, and the children. J.C. is employed, his

wife is a student nurse, and they own their home. L.M.N. and J.J.L.N. came to live

with J.C.’s family in November 2015, and D.Y.L.N. came to live with them in

17
December 2015 so that the children could all be together.26 At the time of trial, the

children had been living with his family for almost three years. J.C. and his wife

provided the children with food, clothing, and “everything [that] they needed.” And

they had recently taken the children to visit San Diego for spring break.

In regard to L.M.N., J.C. explained that when she first came to live with his

family, she was timid, shy, cautious, and nervous. She was in the first grade, but not

doing well in school. Now, L.M.N. is in third grade at “a special Spanish speaking

school” and is performing “impressive[ly].” She is on the “A/B honor roll” and

enjoys science and reading. She has friends at school and in the neighborhood.

L.M.N. plays with her friends at the park in front of J.C.’s house and has participated

in soccer and karate. She speaks both English and Spanish, is “a very outdoor

person,” “loves outside activities,” and camping, which the family does frequently.

L.M.N. gets along well with her siblings, has a good relationship with both D.Y.L.N.

and J.J.L.N., and is very bonded with them. She is protective of D.Y.L.N. and

J.J.L.N., and she engages and plays with them. After school, L.M.N. and D.Y.L.N.

do their homework together and play with dolls. The children “hug each other a

lot.”

26
At the time, L.M.N. was six years old, D.Y.L.N. was three years old, and J.J.L.N.
was almost a year old.

18
 J.C. opined that if L.M.N. was returned to the care of mother, she would be

“devastated,” “frightful,” and “scared,” and “she would digress in school.” L.M.N.

had not seen her mother since she came to live with J.C.’s family, and she had

actively hidden from mother in the car when J.C. had taken or picked up D.Y.L.N.

and J.J.L.N. from family visits. L.M.N., who had “ma[de] it a point not to see”

mother, had disclosed to J.C. some of the abuse that she had suffered while living

with mother and father, including having her hand put under hot water, being pushed

into doors, and being forced to do work. And L.M.N. had stated that she did not

want to return home.

In regard to D.Y.L.N., J.C. explained that when she came to live with his

family, “[t]he world revolved around her” and “she always wanted a lot of things.”

She would “tell on [L.M.N.] even if [L.M.N.] didn’t do [anything] wrong,” and she

would pull J.J.L.N.’s hair. However, D.Y.L.N.’s relationship with her siblings had

improved, and she is now very bonded with them. She is a “great big sister” to

J.J.L.N., plays with him, is very close with him, holds his hand, and is protective.

Currently, D.Y.L.N. is in kindergarten and “doing great.” She “show[s] progress

from semester to semester,” and she attends the same school as J.C.’s nine-year-old

daughter. D.Y.L.N. has friends and plays with them at the park and the

neighborhood pool. She primarily speaks English now and refuses to speak Spanish,

19
although she understands it.27 D.Y.L.N. enjoys swimming, riding her bicycle, and

“playing on a power wheels.”28

In regard to D.Y.L.N.’s visits with mother and father, J.C. noted that she

always “want[ed] to go home right away” after each visit. She would run to him

after visits and was excited to see him. Because she would not hug mother and father

on her own, J.C. would prompt her to do so. J.C. opined that the visits between

D.Y.L.N., mother, and father were “[h]urtful” for her because she does not want to

go. And D.Y.L.N. had disclosed the “closet incident” to him.

In regard to J.J.L.N., J.C. explained that he was previously in daycare, but is

now being tutored by J.C.’s in-laws, who are former teachers. J.J.L.N. was doing

great at daycare and is doing “really good” with tutoring. He is developmentally on

target for his age and does not have any delays. He gets along with both L.M.N. and

D.Y.L.N. and is very bonded with them. He asks his sisters to play, go swimming,

and watch Mickey Mouse with him. The children play together often, and J.J.L.N.

eats snacks with his sisters when they get home from school.

27
The record indicates that mother and father speak Spanish exclusively. And mother
testified that she does not speak or read English.
28
J.C. noted that while D.Y.L.N. was living with him, she told him that “she [had]
burned herself on the exhaust pipe” of the family’s recreational vehicle; however,
J.C. never observed a “burn mark.” While viewing a photograph of the “burn mark”
at trial, J.C. opined that it was small and “looked more like a red mark, like an ant
bite.”

20
 In regard to his visits with his parents, J.J.L.N. is indifferent. He does not “cry

or anything,” but is excited when J.C. picks him up after a visit. J.C. noted that

J.J.L.N. recently “fell on some toys when he got excited,” which resulted in a bruise.

J.C. further testified that he and his wife would like to adopt the children, and

he opined that it would be in the children’s best interest to be adopted by his family.29

J.C. explained that L.M.N. “ha[d] expressed concern about returning to her mother

because of the abuse” and D.Y.L.N. “ha[d] grown accustomed to [his family] and

now only speaks English,” which would be a difficulty if she returned home.

Further, J.C.’s family is the only family that J.J.L.N. has ever known, as he spent

“less than a few months with . . . mother.” Moreover, J.J.L.N. did not see mother

and father as his parents, and it would be detrimental to return him to their care.

J.C. opined that it would be harmful if the children were separated because

D.Y.L.N. would think that she did something “wrong,” this “would be detrimental

to her development,” and “the only consistent thing in [J.J.L.N.’s] life ha[d] been

[L.M.N.].” The children wanted to stay together in J.C.’s home and it would be

emotionally difficult for them to be separated. And L.M.N. and D.Y.L.N. had

expressed fears about returning home. The children refer to J.C. and his wife as

“[d]ad” and “[m]om” and refer to mother and father by their names or as “[a]unt and

29
J.C. noted that even if D.Y.L.N. and J.J.L.N. were returned to the care of mother
and father, he and his wife still wanted to adopt L.M.N.

21
[u]ncle.” And J.C. further opined that J.J.L.N. did not realize that mother and father

were his parents and D.Y.L.N. saw J.C. and his wife as “her parents.”

Mother testified that DFPS became involved with the children on November

14, 2014 after she hit, with a shoe, her then six-year-old daughter, L.M.N.30

According to mother, the “shoe incident” was the only time that she had ever hit

L.M.N., who sustained bruises as a result, but mother could not recall how many

times that she had hit her with the shoe.31 At the time, D.Y.L.N. was sleeping and

mother was pregnant with J.J.L.N. Mother explained that she had hit L.M.N.

because L.M.N. “ke[pt] telling [her] that . . . [she was] going to go to Mexico,”32

yelled at her, and threw “food away,” saying that “she wasn’t going to eat.” Mother

also noted that she had been taking “pills” “for [her] blood pressure,” which caused

her to “feel changes,” and she felt like “crying all the time.” L.M.N. would then tell

mother that she “wasn’t her mother” and she wanted to return to Mexico, which

caused mother to feel sad and “bad.” Mother then “los[t] [her] temper” and hit

L.M.N. The next day, DFPS removed the children from the care of mother and

father after L.M.N. had gone to school.

30
At the time, L.M.N. also had a blister on her lip, which mother asserted came from
L.M.N. biting her lips after a dentist “put some anesthesia in her gums.”
31
Mother denied causing the scar on L.M.N.’s head.
32
Mother noted that L.M.N. had lived in Mexico with her grandmother until she was
three years old. Mother then brought her to Texas to live with her and father.

22
 Mother explained that she would also discipline L.M.N. by “ignor[ing] her,”

“tak[ing] away her toys,” and “not let[ting] her watch TV.”33 Mother admitted to

having problems controlling her anger, and she agreed that she had, in the past,

“exhibited some uncontrollable anger” toward L.M.N. However, mother also

asserted that she did not have any “anger issues.” And mother noted that she had

not seen L.M.N. since 2015.34

After removing the children from mother and father’s care, DFPS placed them

with several family members and/or friends, pursuant to a parent-child safety plan.

Mother denied removing the children from those placements and having

unsupervised contact with the children during that time. However, mother noted that

father had had unsupervised contact with the children on one occasion and brought

the children home.

In regard to her visits with D.Y.L.N. and J.J.L.N., mother explained that she

had told the children that they were “coming home” and D.Y.L.N. was happy to see

her and hugged her at visits. And D.Y.L.N. cried at the end of every visit because

33
Mother stated that she had never hit D.Y.L.N. or J.J.L.N. and they did not need to
be disciplined because they were too young.
34
Mother further noted that while the children were still in her care, she had boiled
tomatoes in a pot and left them on the kitchen stove while she went to the restroom.
She then heard L.M.N. scream, and she saw that the pot with the boiling tomatoes
had fallen on L.M.N.’s hand.

23
she “d[id] not want to go with the foster[] [parents].” Moreover, at two visits, mother

noticed that D.Y.L.N.’s underwear was torn and dirty.

In regard to her FSP, mother testified that she had completed a psychological

evaluation, a drug and alcohol assessment,35 individual therapy, group/family

therapy, parenting classes, and anger management classes. She also provided the

DFPS caseworker with proof of employment and stable housing. Mother had a

stable income, worked in a clothing factory, and lived in a house with three

bedrooms and two bathrooms. She had been paying child support while the children

were in the care of DFPS and had complied with all of the recommendations that

were required by her psychological evaluation. And mother had maintained contact

with her DFPS caseworker and had not missed any meetings or visits with the

children.

Further, mother noted that if the children were returned to her care, she “would

tell them how much [she] love[s] them” and “would make them happy every day.”

She would also not “pay attention to the bad things” and “only pay attention to the

good things.” Mother admitted that it was wrong of her to hit L.M.N. and she would

like an opportunity to “do things right.” According to mother, she should play with

the children more, spend more time with them, and not focus on “things that need[]

35
Mother noted that she had submitted to random narcotics testing as required and
DPFS had never expressed concern about narcotics or alcohol use.

24
to be done around the house.” She should “[f]ocus on their education” and “treat

[the] children better.”

Father testified that he is the father of D.Y.L.N. and J.J.L.N. On the day of

the “shoe incident,” while he was at work, mother hit L.M.N. In general, father

worked 7:00 a.m. to 6:00 p.m. Monday through Friday, and a “[h]alf day” on

Saturday. While he worked, mother cared for the children. Father was not

concerned about mother’s anger issues and did not believe that she needed to

participate in any of DFPS’s programs.36 Father had never seen mother hit the

children, and he had never seen problems between mother and L.M.N. He also had

never seen mother “stressed out” or “ill-tempered” while the children were in her

care. However, he admitted that he did know that mother would become easily

overwhelmed and he had never actually asked her if she had ever hit any of the

children.

According to father, when L.M.N. first came to live with him and mother, she

missed her grandmother in Mexico and did not want to be in their home. But, after

that, everything was “normal,” even though he admitted that mother and L.M.N. had

participated in therapy together before DFPS became involved with the children.

Further, although father knew that L.M.N. would “get kind of upset sometimes” and

she “wanted to go back to Mexico,” he was surprised that mother had hit L.M.N.

36
Father also testified that mother “[p]reviously” had anger issues.

25
After the “shoe incident,” father was worried that the children would be taken away.

He referred to the “shoe incident” as an “accident” and minimized it, blaming it on

mother’s medication.

Father explained that he had never seen any bruises or marks on L.M.N.

because he did not arrive home until after the children were already dressed and he

did not unclothe them. However, he did play with the children upon arriving home,

and he and mother would take L.M.N. to school. Father opined that mother did not

have “a good reason” to hit L.M.N., but he was not concerned that she would ever

hit D.Y.L.N. because she had never lost her temper with her.

Father noted that while the children were in a placement, pursuant to a

parent-child safety plan, he, on one occasion, took the children, unsupervised, out of

their placement and to his home to see his brother.

In regard to his FSP, father testified that he had received his FSP and

completed a psychological evaluation, parenting classes, and individual therapy. He

had provided DFPS with proof of employment and had attended group/family

therapy sessions, meetings, court settings, and every visit with D.Y.L.N. and

J.J.L.N.37 He submitted to random narcotics testing, and DFPS had never raised any

concern about the results of those tests. Although father had not paid child support

while the children were in the care of DFPS, he noted that the programs that he

37
Father opined that the family was happy during their visits.

26
participated in pursuant to his FSP “helped [him] a lot.” He explained that he had

not done anything that warranted termination of his parental rights, and he opined

that his and mother’s parental rights should not be terminated.

Father further testified that he still lives in the same home as mother, he

continues to work full-time, and mother is pregnant with twins. If the children were

returned to the care of mother and father, he would “[p]ay more attention to them”

and “dedicate more time to them.” Father stated that, in the past, he had

“concentrat[ed] too much on [his] job and [did] not think[] about what could be

going on,” but if the children ever again expressed feelings of wanting to leave the

home or the care of mother and father, he would talk to mother and the children.

Although he will “be busy,” he plans to “have more precaution[s] to check” on the

children if they are returned to his and mother’s care. When asked “what precautions

[he] would . . . tak[e] to make sure” that a child was not hit again, father stated that

he and mother “ha[d] talked about that a lot.” And she “felt really bad,” which is

why she hit L.M.N.

Standard of Review

A parent’s right to “the companionship, care, custody, and management” of

her child is a constitutional interest “far more precious than any property right.”

Santosky v. Kramer, 455 U.S. 745, 758–59, 102 S. Ct. 1388, 1397 (1982) (internal

quotations omitted). The United States Supreme Court has emphasized that “the

27
interest of parents in the care, custody, and control of their children . . . is perhaps

the oldest of the fundamental liberty interests recognized by th[e] Court.” Troxel v.

Granville, 530 U.S. 57, 65, 120 S. Ct. 2054, 2060 (2000). Likewise, the Texas

Supreme Court has concluded that “[t]his natural parental right” is “essential,” “a

basic civil right of man,” and “far more precious than property rights.” Holick v.

Smith, 685 S.W.2d 18, 20 (Tex. 1985) (internal quotations omitted). Consequently,

“[w]e strictly construe involuntary termination statutes in favor of the parent.” In re

E.N.C., 384 S.W.3d 796, 802 (Tex. 2012).

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, 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 (Vernon 2014); see also In re J.F.C., 96 S.W.3d 256, 264 (Tex. 2002).

Because the standard of proof is “clear and convincing evidence,” 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 264–68.

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

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

28
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.

Id. In viewing the evidence in the light most favorable to the finding, we “must

assume that the factfinder resolved disputed facts in favor of its finding if a

reasonable factfinder could do so,” and we “should disregard all evidence that a

reasonable factfinder could have disbelieved or found to have been incredible.” In

re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005) (internal quotations omitted). However,

this does not mean that we must disregard all evidence that does not support the

finding. In re J.F.C., 96 S.W.3d at 266. Because of the heightened standard, we

must also be mindful of any undisputed evidence contrary to the finding and consider

that evidence in our analysis. Id. If we determine that no reasonable trier of fact

could form a firm belief or conviction that the matter that must be proven is true, we

must hold the evidence to be legally insufficient and render judgment in favor of the

parent. Id.

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 DFPS bore

the burden of proof. In re C.H., 89 S.W.3d 17, 25–26 (Tex. 2002). We should

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

29
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 factfinder 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 H.R.M., 209 S.W.3d 105, 108 (Tex.

2006) (internal quotations omitted).

Sufficiency of Evidence

In her first, second, third, and fourth issues, mother argues that the trial court

erred in terminating her parental rights to the children because the evidence is legally

and/or factually insufficient to support the trial court’s findings that she knowingly

placed, or knowingly allowed the children to remain, in conditions or surroundings

which endangered their physical and emotional well-being; she engaged, or

knowingly placed the children with persons who engaged, in conduct that

endangered their physical and emotional well-being; she failed to comply with the

provisions of a court order that specifically established the actions necessary for her

to obtain the return of the children; and termination of her parental rights was in the

best interest of the children. See TEX. FAM. CODE ANN. § 161.001(b)(1)(D), (E),

(O), (b)(2) (Vernon Supp. 2018).

In his first, second, and third issues, father argues that the trial court erred in

terminating his parental rights to D.Y.L.N. and J.J.L.N. because the evidence is

30
legally and factually insufficient to support the trial court’s findings that he

knowingly placed, or knowingly allowed D.Y.L.N. and J.J.L.N. to remain, in

conditions or surroundings which endangered their physical and emotional

well-being; he engaged, or knowingly placed D.Y.L.N. and J.J.L.N. with persons

who engaged, in conduct that endangered their physical and emotional well-being;

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

the actions necessary for him to obtain the return of D.Y.L.N. and J.J.L.N.; and

termination of his parental rights was in the best interest of D.Y.L.N. and J.J.L.N.

See id.

In order to terminate the parent-child relationship, DFPS must establish, by

clear and convincing evidence, one or more of the acts or omissions enumerated

under Texas Family Code section 161.001(b)(1) and that termination is in the best

interest of the child. See id. § 161.001(b). 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. Id.; Tex. Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531, 533

(Tex. 1987). Notably though, “[o]nly one predicate finding under section

161.001[(b)](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).

31
Endangering Conduct38

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

insufficient to support the trial court’s termination of her parental rights to the

children under section 161.001(b)(1)(D) because there is “no evidence” of “any

inherently dangerous conditions of the children’s environment prior to removal” or

that “the children’s conditions or surroundings prior to removal endangered their

physical or emotional well[-]being.” In her second issue, mother argues that the

evidence is factually insufficient to support the trial court’s termination of her

parental rights to L.M.N. under section 161.001(b)(1)(E) and legally and factually

insufficient to support the termination of her parental rights to D.Y.L.N. and J.J.L.N.

under section 161.001(b)(1)(E) because although “the shoe incident might be

sufficient to terminate [her] parental rights [as to L.M.N.],” mother was dedicated to

her children; remorseful; had completed her FSP; had “learned how to be a better

parent and to manage anger issues”; and had worked diligently in trying to reunite

with her children. And she asserts that “[t]here is no evidence” or “scant evidence”

that she engaged, or knowingly placed D.Y.L.N. and J.J.L.N. with persons who

engaged, in conduct that endangered their physical and emotional well-being.

38
Because the evidence related to Texas Family Code sections 161.001(b)(1)(D) and
(E) are interrelated, we consolidate our examination. See Asjes v. Tex. Dep’t of
Protective & Regulatory Servs., 142 S.W.3d 363, 371 (Tex. App.—El Paso 2004,
no pet.); In re J.T.G., 121 S.W.3d 117, 126 (Tex. App.—Fort Worth 2003, no pet.).

32
 In his first issue, father argues that the evidence is legally and factually

insufficient to support the trial court’s termination of his parental rights to D.Y.L.N.

and J.J.L.N. under section 161.001(b)(1)(D) because “there is . . . no clear and

convincing evidence that [he] was aware [that] [m]other might have been physically

abusing [L.M.N.] when they lived together or during the time [that] she lived in the

DFPS approved [Parent Child Safety] placements” and “what evidence there is of

exposing [D.Y.L.N. and J.J.L.N.] to danger pertains almost exclusively to [m]other’s

actions against [L.M.N.] and [f]ather’s alleged failure to protect her and not to

[D.Y.L.N. and J.J.L.N.]’s physical environment before being removed.” Further,

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

court’s termination of his parental rights to D.Y.L.N. and J.J.L.N. under section

161.001(b)(1)(E) because he “didn’t observe th[e] [shoe] incident”; L.M.N. “never

stated [that] [f]ather witnessed the abuse,” she informed him of it, or that “it occurred

when he was home”; D.Y.L.N. did not disclose that she was placed in a closet until

after she “had lived well over half [of] her life outside of her parents’ home”; and

there is no evidence that father neglected D.Y.L.N. or J.J.L.N., was not protective of

L.M.N., or that if D.Y.L.N. and J.J.L.N. were returned, they “would be [at] risk” of

being abused.

A trial court may order termination of the parent-child relationship if it finds

by clear and convincing evidence that the parent has “knowingly placed or

33
knowingly allowed [a] child to remain in conditions or surroundings which endanger

the physical or emotional well-being of the child” and termination is in the best

interest of the child. TEX. FAM. CODE ANN. § 161.001(b)(1)(D), (b)(2). A trial court

may also order termination of the parent-child relationship if it finds by clear and

convincing evidence that the parent has “engaged in conduct or knowingly placed

[a] child with persons who engaged in conduct which endangers the physical or

emotional well-being of the child” and termination is in the best interest of the child.

Id. § 161.001(b)(1)(E), (b)(2).

Both subsections D and E require proof of endangerment. To “endanger”

means to expose a child to loss or injury or to jeopardize her emotional or physical

health. Boyd, 727 S.W.2d at 533 (internal quotations omitted); Walker v. Tex. Dep’t

of Family & Protective Servs., 312 S.W.3d 608, 616–17 (Tex. App.—Houston [1st

Dist.] 2009, pet. denied) (internal quotations omitted). A child is endangered when

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

consciously disregards. J.S. v. Tex. Dep’t of Family & Protective Servs., 511 S.W.3d

145, 159 (Tex. App.—El Paso 2014, no pet.). Endangerment encompasses “more

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

family environment.” Boyd, 727 S.W.2d at 533. However, it is not necessary that

the endangering conduct be directed at the child or that the child actually suffer

34
injury. Id. Endangerment can be exhibited by both actions and failures to act. In re

U.P., 105 S.W.3d 222, 233 (Tex. App.—Houston [14th Dist.] 2003, pet. denied).

While both subsections D and E focus on endangerment, they differ regarding

the source of the physical or emotional endangerment to the child. See In re B.S.T.,

977 S.W.2d 481, 484 (Tex. App.—Houston [14th Dist.] 1998, no pet.). Subsection

D requires a showing that the environment in which the child is placed endangered

her physical or emotional health. Doyle v. Tex. Dep’t of Protective & Regulatory

Servs., 16 S.W.3d 390, 394 (Tex. App.—El Paso 2000, pet. denied); see also In re

M.R.J.M., 280 S.W.3d 494, 502 (Tex. App.—Fort Worth 2009, no pet.) (“Under

subsection (D), it is necessary to examine evidence related to the environment of the

child to determine if the environment was the source of endangerment to the child’s

physical or emotional well-being.”); In re S.M.L., 171 S.W.3d 472, 477 (Tex. App.—

Houston [14th Dist.] 2005, no pet.). Conduct of a parent or another person in the

home can create an environment that endangers the physical and emotional

well-being of a child. In re W.S., 899 S.W.2d 772, 776 (Tex. App.—Fort Worth

1995, no writ); see also In re K.M., No. 02-18-00073-CV, 2018 WL 3288591, at *7

(Tex. App.—Fort Worth July 5, 2018, pet. denied) (mem. op.) (parent’s conduct can

contribute to endangering environment); In re I.L.L., No. 14-09-00693-CV, 2010

WL 4217083, at *6 (Tex. App.—Houston [14th Dist.] Oct. 26, 2010, no pet.) (mem.

op.) (although subsection D concerns child’s living environment rather than conduct

35
of parent, parental conduct certainly relevant to child’s environment). For instance,

abusive or violent conduct by a parent is a part of the “conditions or surroundings”

of the child’s home and may produce an environment that endangers her physical or

emotional well-being. In re K.C.F., No. 01-13-01078-CV, 2014 WL 2538624, at

*12 (Tex. App.—Houston [1st Dist.] June 5, 2014, no pet.) (mem. op.); In re

M.R.J.M., 280 S.W.3d at 502; In re J.T.G., 121 S.W.3d 117, 125 (Tex. App.—Fort

Worth 2003, no pet). The relevant time frame for establishing that a parent

“knowingly . . . allowed [a] child to remain in conditions or surroundings which

endanger[ed] the physical or emotional well-being of the child” is prior to the child’s

removal. In re O.R.F., 417 S.W.3d 24, 37 (Tex. App.—Texarkana 2013, pet. denied)

(first and third alterations in original) (internal quotations omitted).

Further, a fact finder may infer from a parent’s past conduct endangering the

well-being of a child that similar conduct will recur in the future. A.S. v. Tex. Dep’t

of Family & Protective Servs., 394 S.W.3d 703, 712 (Tex. App.—El Paso 2012, no

pet.); Jordan v. Dossey, 325 S.W.3d 700, 724 (Tex. App.—Houston [1st Dist.] 2010,

pet. denied); see also In re D.S., 333 S.W.3d 379, 384 (Tex. App.—Amarillo 2011,

no pet.) (trier of fact may measure parent’s future conduct by past conduct). And a

parent’s endangering conduct toward other children may be considered to determine

whether the parent engaged in behavior that endangered the child at issue. See In re

S.H., No. 02-17-00188-CV, 2017 WL 4542859, at *11 (Tex. App.—Fort Worth Oct.

36
12, 2017, no pet.) (mem. op.). Subsection D permits termination based upon a single

act or omission. Jordan, 325 S.W.3d at 721.

Under subsection E, the relevant inquiry is whether evidence exists that the

endangerment of the child’s physical and emotional well-being was the direct result

of a parent’s conduct, including acts, omissions, or failures to act. In re J.T.G., 121

S.W.3d at 125; see also In re S.M.L., 171 S.W.3d at 477. It is not necessary to

establish that a parent intended to endanger the child in order to support termination

of the parent-child relationship. See In re M.C., 917 S.W.2d 268, 270 (Tex. 1996)

(neglect, even in absence of physical abuse, may endanger child’s physical or

emotional well-being). However, termination under subsection E requires “more

than a single act or omission; . . . a voluntary, deliberate, and conscious course of

conduct by the parent” is required. In re K.P., 498 S.W.3d 157, 171 (Tex. App.—

Houston [1st Dist.] 2016, pet. denied); see also In re J.T.G., 121 S.W.3d at 125. The

specific danger to the child’s well-being may be inferred from parental misconduct

standing alone, even if the conduct is not directed at the child and she suffers no

actual injury. See Boyd, 727 S.W.2d at 533; In re R.W., 129 S.W.3d 732, 738 (Tex.

App.—Fort Worth 2004, pet. denied). Courts may consider parental conduct that

did not occur in the child’s presence, including conduct before the child’s birth and

after she was removed by DFPS. In re A.A.M., 464 S.W.3d 421, 426 (Tex. App.—

Houston [1st Dist.] 2015, no pet.); Walker, 312 S.W.3d at 617; see also In re J.O.A.,

37
283 S.W.3d 336, 345 (Tex. 2009) (“[T]he endangering conduct may include the

parent’s actions before the child’s birth[] [and] while the parent had custody of older

children . . . .”).

Here, the children entered the care of DFPS after allegations arose of physical

abuse of a then six year old L.M.N. by mother. L.M.N. disclosed to several adults

involved in the instant case that mother had repeatedly physically abused her by

throwing “cleaning supplies” and dishes at her and “hit[ting] her with brooms and

mops.” Further, mother “put [L.M.N.’s] hands under the hot water faucet” and “hit

[her] with a belt on her arms.” Mother hit L.M.N. “on the head with a cell phone

charger” and “pushed [her] into a door,” causing her to bleed and require stitches.

L.M.N. stated that mother was “mean to her,” “whoop[ed] her,” “hit her,” “ignored”

her, and “put [her] in” or “locked” her in a closet.39 L.M.N. told her therapist, Dr.

Earls, “I don’t want to be hurt” again, meaning she did not want to suffer more

physical bodily harm perpetrated by mother. (Internal quotations omitted.)

A “Court Report” from Child Advocates, admitted into evidence at trial, states

that “[o]n November 13, 2014, [DFPS] received a referral alleging physical abuse

of [a then] 6 year old [L.M.N.] by [mother].” L.M.N. went to school with “two black

39
L.M.N. disclosed to her foster father, J.C., that she had suffered abuse while living
with mother and father, including having her hand put under hot water, being pushed
into doors, and being forced to do work.

38
eyes that were swollen and black in color.”40 “Her back, arms and hands were also

full of discolored and scattered bruises” and her lip “had a blister which may or may

not have been a fever blister.”

Photographs of L.M.N., admitted into evidence at trial, show visible bruises

on the child’s face, arm, and back. And the FSPs of mother and father state that

L.M.N., when she entered care, had bruises that “covered her back,” “both arms,”

and the left side of her face. DFPS caseworker Scott testified that she saw “bruises

behind [L.M.N.’s] ear” and “a lot of scratches on the back of her neck.” And DFPS

caseworker Beaty opined that the bruising on L.M.N. did not appear to be the result

of “a one[-]time event.” Child Advocates volunteer Gomez similarly opined that a

“one-time hitting” incident was not “consistent with all of the bruising and all of the

scars” found on L.M.N.’s body. L.M.N. disclosed to Gomez that the incidents of

physical abuse by mother occurred at different times and she had been physically

abused by mother on several occasions.

The record further indicates that L.M.N. is afraid of mother and afraid to

return home. When L.M.N. spoke about the physical abuse that she had suffered,

she appeared sad and scared, and she “put her head down.” L.M.N. was afraid that

she would be abused again if she was to be returned to the care of mother, and she

was afraid that D.Y.L.N. and J.J.L.N. would also be physically abused if they were

40
While L.M.N. was in their care, mother and father took her to school.

39
returned home. Throughout the pendency of this case, L.M.N. did not want to see

mother, actively hid from her, and repeatedly stated that she did not want to return

home. Beaty testified that L.M.N. would be “re-traumatiz[ed]” if she was to be

returned to the home of mother and father. And L.M.N.’s therapist recommended

that she have no contact with mother due to the “severe physical abuse” that she had

suffered.

Mother admitted to hitting L.M.N. on one occasion with a shoe, but could not

recall how many times that she had actually hit her with the shoe,41 and L.M.N.

sustained a bruise as a result of being hit. Mother, in the past, had given several

explanations as to how L.M.N. had sustained her many of injuries, including falling

off of her bicycle, falling in the bathtub, and being hit by her uncle.

A “Permanency Plan and Progress Report to the Court,” admitted into

evidence at trial, states that mother’s “stories” regarding the physical abuse of

L.M.N. were not consistent. In regard to the “shoe incident,” mother stated that she

had hit L.M.N. because she “would not listen . . . and would tell [mother] that she

[was] not her mother.” L.M.N.’s refusal to call mother her “[m]other” frustrated her

and caused her to feel sad and “bad.” Mother also stated that L.M.N. yelled at her

and threw “food away,” saying that “she wasn’t going to eat.” Mother, however,

41
Mother also recalled an incident, while L.M.N. was in her care, when a pot of boiling
tomatoes fell on L.M.N. after mother had left it unattended on the kitchen stove.

40
excused her behavior in hitting L.M.N. by blaming it on “depression” and the

“taking [of] Prozac.” At trial, mother admitted to having problems controlling her

anger and that she had lost her temper with L.M.N. She also agreed that she had, in

the past, “exhibited some uncontrollable anger” toward L.M.N. Conversely, mother

testified that she did not have any “anger issues” and did not understand why she

needed to attend anger management classes. And several witnesses testified that

mother had never taken responsibility for the many injuries that she had caused

L.M.N.

A parent’s violent or abusive conduct can produce an environment that

endangers a child’s well-being. In re L.E.S., 471 S.W.3d 915, 925 (Tex. App.—

Texarkana 2015, no pet.); In re J.I.T.P., 99 S.W.3d 841, 845 (Tex. App.—Houston

[14th Dist.] 2003, no pet). And direct physical abuse clearly endangers a child. In

re P.M.B., No. 01-17-00621-CV, 2017 WL 6459554, at *8 (Tex. App.—Houston

[1st Dist.] Dec. 19, 2017, pet. denied) (mem. op.); In re K.R.G., No.

01-16-00537-CV, 2016 WL 7368082, at *9 (Tex. App.—Houston [1st Dist.] Dec.

15, 2016, pet. denied) (mem. op.); In re I.J.A., No. 04-09-00787-CV, 2010 WL

2403728, at *4 (Tex. App.—San Antonio June 16, 2010, no pet.) (mem. op.). Here,

there is ample evidence that L.M.N. was severely physically abused by mother on

several occasions.

41
 In regard to D.Y.L.N. and J.J.L.N., although DFPS caseworker Beaty testified

that allegations also arose related to physical abuse of them, the record does not

contain specific evidence that either child was physically abused by mother or father.

However, L.M.N. was afraid that if D.Y.L.N. or J.J.L.N. were returned home, they

would also be abused. Further, D.Y.L.N. told her therapist, Dr. Earls, that while

living with mother and father, she “had been left in a closet” so that she would “not

see [L.M.N. being] hurt.” And, while living with mother and father, she had actually

seen L.M.N. “being hit.” See In re N.B., No. 06-12-00007-CV, 2012 WL 1605457,

at *10 (Tex. App.—Texarkana May 8, 2012, no pet.) (mem. op.) (evidence child

witnessed physical abuse supported endangerment finding); In re T.S., No.

02-10-00089-CV, 2010 WL 4486332, at *7 (Tex. App.—Fort Worth Nov. 10, 2010,

no pet.) (mem. op.) (evidence children witnessed mother’s abusive and assaultive

behavior supported endangerment finding). Moreover, Earls noted that D.Y.L.N.

appeared “[s]haken” when she disclosed the physical abuse of L.M.N., and she had

anxiety and fear about returning home.

Further, several witnesses testified that it would be in the best interest of the

children, including D.Y.L.N. and J.J.L.N., to remain in their current placement

because of the “severity of abuse” that L.M.N. had endured while living with mother

and father. And the children’s therapist opined that allowing the children, including

D.Y.L.N. and J.J.L.N., to return to the home of mother and father would

42
“re-traumatiz[e]” them. Beaty also opined that mother’s history of physical abuse

constituted conduct that had put the children in physical and emotional danger,

including D.Y.L.N. and J.J.L.N. According to Gomez, D.Y.L.N. and J.J.L.N. risked

being subjected to physical abuse if they were returned to the care of mother and

father, and they would be in “grave danger” because of the physical abuse that

L.M.N. had suffered.

Violent or abusive acts directed toward one child can endanger other children

that are not the direct victims of the abuse in question and support termination of

parental rights as to the other children, even if the other children were not yet born

at the time of the conduct. See In re C.J.O., 325 S.W.3d 261, 265 (Tex. App.—

Eastland 2010, pet. denied); In re W.J.H., 111 S.W.3d 707, 716 (Tex. App.—Fort

Worth 2003, pet. denied); Dir. of Dall. Cty. Child Protective Servs. Unit of Tex.

Dep’t of Human Servs. v. Bowling, 833 S.W.2d 730, 733–34 (Tex. App.—Dallas

1992, no writ); see also Boyd, 727 S.W.2d at 533 (endangering acts need not be

committed in child’s presence, directed at child, or cause physical injury to child).

In other words, a parent’s physical abuse of one child in the home supports a finding

of endangerment as to the other children also present in the home. In re E.A.G., 373

S.W.3d 129, 142–43 (Tex. App.—San Antonio 2012, pet. denied); see also In re

Baby Boy R., 191 S.W.3d 916, 925 (Tex. App.—Dallas 2006, pet. denied) (evidence

of abuse directed at one child allows fact finder to infer parent “engaged in conduct

43
that will endanger or jeopardize the physical or emotional well-being of other

children in the home who may discover the abuse or be abused themselves”); In re

R.W., 129 S.W.3d at 742 (“[E]vidence of sexual abuse of one child is sufficient to

support a finding of endangerment with respect to other children.”). And the fact

that one child witnesses violence directed at another child in the home supports a

finding of endangerment. See In re E.J.Z., 547 S.W.3d 339, 350 (Tex. App.—

Texarkana 2018, no pet.); see also In re P.M.B., 2017 WL 6459554, at *10 (evidence

of child’s exposure to violence supports endangerment finding); In re K.S., No.

02-14-00073-CV, 2014 WL 3867529, at *9–10 (Tex. App.—Fort Worth Aug. 7,

2014, no pet.) (mem. op.) (evidence sufficient to support termination under

subsections D and E where children witnessed violence in home).

Further, in regard to father, we note that there is no evidence that he physically

abused any of the children. However, when the children entered the care of DFPS,

L.M.N. had visible bruising on her face, arms, hands, and back. In fact, a “Court

Report” from Child Advocates, states that on November 13, 2014, L.M.N. went to

school with “two black eyes that were swollen and black in color.” “Her back, arms

and hands were also full of discolored and scattered bruises” and her lip “had a

blister which may or may not have been a fever blister.” Former DFPS caseworker

Scott also saw “bruises behind [L.M.N.’s] ear” and “a lot of scratches on the back

of her neck.”

44
 Several witnesses expressed concern about father’s ability to protect the

children from physical abuse by mother. For instance, Beaty noted that L.M.N. was

physically abused while father lived in the home and he “did not do anything when

th[at] abuse was going on.” And Gomez opined that father was not protective of the

children and he “could not speak up for himself or speak out independently.” Gomez

further noted that it was important for mother “to take responsibility for the physical

abuse of [L.M.N.]” and for father “to take responsibility [for not] . . . being

protective” of L.M.N. However, neither parent had ever taken responsibility for

what had happened to L.M.N. while in their care.

Further, Gomez noted that L.M.N. had been abused more than once, and

although L.M.N. sustained “all [of] these bruises” and “injuries” while in the care of

mother and father, neither party could explain how they had occurred, except for

stating that mother had hit L.M.N. with a shoe on one occasion. Gomez opined that

a “one-time hitting” incident was not “consistent with all of the bruising and all of

the scars” found on L.M.N.

Although father testified that he was not home when mother hit L.M.N. with

the shoe, the record indicates that L.M.N. was physically abused by mother on more

than one occasion. And he testified that mother cared for the children and he knew

that she was easily overwhelmed. Father also knew that L.M.N. did not want to be

in the home and would “get kind of upset sometimes.” Moreover, he knew that

45
mother and L.M.N. had problems or tension that prompted them to go to therapy

even prior to DFPS’s involvement in this case. Father contradicted himself at trial

about whether mother had anger issues prior to the children entering the care of

DFPS. Father characterized mother’s actions in hitting L.M.N. with a shoe as merely

an “accident,” and he minimized the incident, blaming it on mother’s medication.

Further, although father testified that he had never seen bruises or marks on

L.M.N. because he was not responsible for dressing the children, L.M.N.’s bruises,

particularly those on her face and hands, were visible irrespective of the clothing that

she was wearing. And father stated that he played with the children when he arrived

home, and he and mother took L.M.N. to school. In fact, it was at school where

L.M.N.’s “two black eyes that were swollen and black in color” and bruised back,

arms, and hands were observed. See Jordan, 325 S.W.3d at 713 (trier of fact sole

judge of credibility of witnesses and weight to give their testimony). Notably, father

still lives in the same home as mother, has supported mother throughout the case,

and has offered no living arrangement for D.Y.L.N. and J.J.L.N., except for his home

with mother, should they be returned to his care. See In re J.N.S., No.

13-17-00356-CV, 2018 WL 286090, at *5 (Tex. App.—Corpus Christi Jan. 4, 2018,

no pet.) (mem. op.) (considering whether parent’s continued cohabitation with other

parent put children at risk).

46
 In order to support a finding of endangerment, a parent need not have certain

knowledge that an actual injury is occurring, so long as the parent is at least aware

of the potential for danger to the child in such an environment and disregarded that

risk. In re S.M.L., 171 S.W.3d at 477–78; In re C.L.C., 119 S.W.3d 382, 392 (Tex.

App.—Tyler 2003, no pet.). And a parent’s failure to take steps to protect a child

when he knows that she is at risk supports an endangerment finding. In re A.L., No.

04-14-00365-CV, 2014 WL 5197774, at *3 (Tex. App.—San Antonio Oct. 15, 2014,

no pet.) (mem. op.). Further, evidence that a parent does not remove a child from,

or allows a child to remain in a home in which violent conduct occurs, supports

termination of that parent’s rights. In re A.V.W., No. 13-12-00684-CV, 2013 WL

1932887, at *5 (Tex. App.—Corpus Christi May 9, 2013, pet. denied) (mem. op.);

see also In re T.S., 2010 WL 4486332, at *7 (parent continually placed children in

environment where violence took place).

Moreover, as previously noted, a fact finder may infer from a parent’s past

conduct endangering the well-being of a child that similar conduct will recur in the

future. See A.S., 394 S.W.3d at 712; Jordan, 325 S.W.3d at 724; see also In re D.S.,

333 S.W.3d at 384. And a parent’s endangering conduct toward one child may be

considered to determine whether the parent engaged in behavior that endangered

other children in the home. See In re S.H., 2017 WL 4542859, at *11.

47
 Viewing the evidence in the light most favorable to the trial court’s finding,

we conclude that the trial court could have formed a firm belief or conviction that

mother knowingly placed, or knowingly allowed the children to remain, in

conditions or surroundings which endangered their physical and emotional

well-being or mother engaged, or knowingly placed D.Y.L.N. and J.J.L.N. with

persons who engaged, in conduct that endangered their physical and emotional

well-being. See TEX. FAM. CODE ANN. § 161.001(b)(1)(D), (E). And, viewing the

evidence in a neutral light, we conclude that a reasonable fact finder could have

formed a firm belief or conviction that mother knowingly placed, or knowingly

allowed the children to remain, in conditions or surroundings which endangered their

physical and emotional well-being or she engaged, or knowingly placed the children

with persons who engaged, in conduct that endangered their physical and emotional

well-being. See id.

Further, viewing the evidence in the light most favorable to the trial court’s

finding, we conclude that the trial court could have formed a firm belief or conviction

that father knowingly placed, or knowingly allowed D.Y.L.N. and J.J.L.N. to

remain, in conditions or surroundings which endangered their physical and

emotional well-being or father engaged, or knowingly placed D.Y.L.N. and J.J.L.N.

with persons who engaged, in conduct that endangered their physical and emotional

well-being. See id. And, viewing the evidence in a neutral light, we conclude that

48
a reasonable fact finder could have formed a firm belief or conviction that father

knowingly placed, or knowingly allowed D.Y.L.N. and J.J.L.N. to remain, in

conditions or surroundings which endangered their physical and emotional

well-being or he engaged, or knowingly placed D.Y.L.N. and J.J.L.N. with persons

who engaged, in conduct that endangered their physical and emotional well-being.

See id.

Accordingly, we hold that the evidence is legally and factually sufficient to

support the trial court’s finding that mother knowingly placed, or knowingly allowed

the children to remain, in conditions or surroundings which endangered their

physical and emotional well-being or mother engaged, or knowingly placed

D.Y.L.N. and J.J.L.N. with persons who engaged, in conduct that endangered their

physical and emotional well-being. See id. And we hold that the evidence is

factually sufficient to support the trial court’s finding that mother engaged, or

knowingly placed L.M.N. with persons who engaged, in conduct that endangered

her physical and emotional well-being. See id.

We further hold that the evidence is legally and factually sufficient to support

the trial court’s finding that father knowingly placed, or knowingly allowed

D.Y.L.N. and J.J.L.N. to remain, in conditions or surroundings which endangered

their physical and emotional well-being or father engaged, or knowingly placed

49
D.Y.L.N. and J.J.L.N. with persons who engaged, in conduct that endangered their

physical and emotional well-being. See id.

We overrule mother’s first and second issues and father’s first issue.42

Best Interest

In her fourth issue, mother argues that the evidence is factually insufficient to

support the trial court’s finding that termination of her parental rights is in the best

interest of the children because “[t]he record shows [that she] . . . made [a] grave

mistake and had remorse”; she completed her FSP and “learned”; she was not

“presently unfit”; “[t]he children . . . receiv[ed] counseling”; she “participated in

visits and in any [programs] that were necessary”; she “planned to behave differently

when the children were returned to the home”; she had “always provided food,

clothing, shelter, education and love to [the] children”; there is no evidence of “any

current or future physical danger”; she “demonstrated absolute dedication to [the]

children and to obtaining reunification with them”; “[t]he stability of her home,

marriage, work and sobriety [are] not in question”; and she was “pregnant and on

medications that made her feel anxiety” when she struck L.M.N. with the shoe.

42
Having held that the evidence is legally and factually sufficient to support the trial
court’s findings under sections 161.001(b)(1)(D) and (E), we need not address
mother’s third issue and father’s second issue challenging the trial court’s findings
under Texas Family Code section 161.001(b)(1)(O). See In re A.V., 113 S.W.3d
355, 363 (Tex. 2003); Walker v. Tex. Dep’t of Family & Protective Servs., 312
S.W.3d 608, 618 (Tex. App.—Houston [1st Dist.] 2009, pet. denied); see also TEX.
R. APP. P. 47.1.

50
 In his third issue, father argues that the evidence is legally and factually

insufficient to support the trial court’s finding that termination of his parental rights

is in the best interest of D.Y.L.N. and J.J.L.N. because he “did everything possible

to prevent [D.Y.L.N. and J.J.L.N.] from becoming alienated”; “attended every visit,

court date, and family conference[]”; “expeditiously completed his FSP”; was “not

a future danger to” D.Y.L.N. and J.J.L.N.; had no criminal or DFPS history;

“plan[ned] to devote more time to [D.Y.L.N. and J.J.L.N.] and be more alert to what

happens at home”; had “a suitable home and the financial means to support”

D.Y.L.N. and J.J.L.N.; was not “present when [L.M.N.] was injured”; and “never

saw [m]other harm [L.M.N.]”; and he asserts that it is in the best interest of D.Y.L.N.

and J.J.L.N. to “remain with their biological parent.”

A strong presumption exists that a child’s best interest is served by

maintaining the parent-child relationship. In re L.M., 104 S.W.3d 642, 647 (Tex.

App.—Houston [1st Dist.] 2003, no pet.). However, the best interest analysis

evaluates the best interest of the child, not the parent. See In re D.S., 333 S.W.3d at

384.

In determining whether the termination of mother’s parental rights is in the

best interest of the children or whether the termination of father’s parental rights is

in the best interest of D.Y.L.N. and J.J.L.N., we may consider several factors,

including: (1) a child’s desires; (2) the current and future physical and emotional

51
needs of a child; (3) the current and future emotional and physical danger to a child;

(4) the parental abilities of the parties seeking custody; (5) whether programs are

available to assist those parties; (6) plans for a child by the parties seeking custody;

(7) the stability of the proposed placement; (8) the parent’s acts or omissions that

may indicate that the parent-child relationship is not proper; and (9) any excuse for

the parent’s acts or omissions. See Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex.

1976); In re L.M., 104 S.W.3d at 647.

The Holley factors are not exhaustive, and there is no requirement that DFPS

prove all factors as a condition precedent to the termination of parental rights. See

In re C.H., 89 S.W.3d at 27; see also In re C.L.C., 119 S.W.3d at 399 (“[T]he best

interest of the child does not require proof of any unique set of factors nor limit proof

to any specific factors.”). The same evidence of acts and omissions used to establish

grounds for termination under section 161.001(b)(1) may also be relevant to

determining the best interest of the child. See In re C.H., 89 S.W.3d at 28; In re

L.M., 104 S.W.3d at 647.

In regard to the children’s desires, L.M.N. and D.Y.L.N. had both explicitly

expressed a desire to remain in their current placement with their foster parents and

not to return home. L.M.N. is afraid to return home, afraid of mother, and afraid

that she will be physically abused again if returned to mother’s care. She had not

had any contact with mother since 2015 and had actively hidden from mother when

52
her foster father, J.C., had taken or picked up her siblings from their visits with

mother and father. Although L.M.N. was only nine years old at the time that the

trial court terminated mother’s parental rights, her desire to not return to mother’s

care had been clear and unwavering since the initiation of the case. See In re J.D.,

436 S.W.3d 105, 118 (Tex. App.—Houston [14th Dist.] 2014, no pet.) (child had

not seen parent “in almost a year”); C.H. v. Dep’t of Family & Protective Servs.,

Nos. 01-11-00385-CV, 01-11-00454-CV, 01-11-00455-CV, 2012 WL 586972, at *9

(Tex. App.—Houston [1st Dist.] Feb. 23, 2012, pet. denied) (mem. op.) (evidence

supported best interest finding where children expressed their fear of parent and

desire not to return to parent’s care); In re C.M.C., 273 S.W.3d 862, 876 (Tex.

App.—Houston [14th Dist.] 2008, no pet.) (child afraid of parent and “adamant that

he d[id] not want to return to live with her and want[ed] to remain with his current

family”).

Although J.J.L.N. was three years old when the trial court terminated the

parental rights of mother and father and had not expressed his desires, there is ample

evidence that he is doing very well in his foster home and is “very bonded” with his

foster parents. In fact, all three of the children are thriving in their current placement

with their foster parents, who are meeting their emotional, psychological, and

physical needs, and the children are not only bonded with their foster family, but are

also strongly bonded to each other. See In re M.L.R-U., Jr., 517 S.W.3d 228, 238

53
(Tex. App.—Texarkana 2017, no pet.) (considering evidence foster family provided

safe and healthy environment when determining children’s desires).

D.Y.L.N. has spent the majority of her life with her foster parents, and the

foster family is the only family that J.J.L.N. has ever known. The children all refer

to their foster parents as “[m]om” and “[d]ad,” while they call mother and father by

their names or “[a]unt and [u]ncle.” J.C. opined that J.J.L.N. does not realize that

mother and father are his parents. See In re J.S.B., Nos. 01-17-00480-CV,

01-17-00481-CV, 01-17-00484-CV, 2017 WL 6520437, at *17 (Tex. App.—

Houston [1st Dist.] Dec. 17, 2017, pet. denied) (mem. op.) (children did not

recognize parent as their parent and had spent majority of life living away from

parent). A child’s bonding with her foster family implies that the child’s desires

would be fulfilled by adoption by the foster family. In re T.C.C.H., No.

07-11-00179-CV, 2011 WL 6757409, at *9 (Tex. App.—Amarillo Dec. 22, 2011,

no pet.) (mem. op.); In re U.P., 105 S.W.3d at 230. And when a child is too young

to express her desires, a fact finder may consider evidence that the child is bonded

with her foster family, receiving good care in the current placement, and has spent

minimal time with a parent.43 In re J.D., 436 S.W.3d at 118.

43
Mother and father did testify that D.Y.L.N. and J.J.L.N. are happy to see them at
visits and hug them. And DFPS caseworker McBride did testify that D.Y.L.N. and
J.J.L.N. interact with mother and father at visits. However, this is not dispositive of
the best interest analysis. See, e.g., In re W.S.M., 107 S.W.3d 772, 773 (Tex. App.—
Texarkana 2003, no pet.).

54
 In regard to the children’s current and future physical and emotional needs,

we note that none of them have special needs,44 but they all see a therapist because

of being in the care of DFPS and the physical abuse suffered by L.M.N. While living

with mother and father, L.M.N. was repeatedly physically abused by mother.

Mother threw “cleaning supplies” and dishes at her and “hit her with brooms and

mops.” Mother “would put [L.M.N.’s] hands under the hot water faucet” and “hit

[her] with a belt on her arms.” Mother also hit L.M.N. “on the head with a cell phone

charger” “and “pushed [her] into a door,” causing her to bleed and require stitches.

L.M.N. stated that mother was “mean to her,” “whoop[ed] her,” “hit her,” “ignored”

her, and “put [her] in” or “locked” her in a closet.45

A “Court Report” from Child Advocates, admitted into evidence at trial, states

that “[o]n November 13, 2014, [DFPS] received a referral alleging physical abuse

of [a then] 6 year old [L.M.N.] by [mother].” L.M.N. went to school with “two black

eyes that were swollen and black in color.”46 “Her back, arms and hands were also

44
J.C. noted that when L.M.N. came to live with his family she was in the first grade
and not doing well in school. See In re J.S.B., Nos. 01-17-00480-CV,
01-17-00481-CV, 01-17-00484-CV, 2017 WL 6520437, at *18 (Tex. App.—
Houston [1st Dist.] Dec. 21, 2017, pet. denied) (mem. op.) (when children entered
care of DFPS, they had educational issues and were behind in school).
45
L.M.N. disclosed to J.C. that she had suffered abuse while living with mother and
father, including having her hand put under hot water, being pushed into doors, and
being forced to do work.
46
While L.M.N. was in their care, mother and father took her to school.

55
full of discolored and scattered bruises” and her lip “had a blister which may or may

not have been a fever blister.”

Photographs of L.M.N., admitted into evidence at trial, show visible bruising

on the child’s face, arm, and back. And the FSPs of mother and father state that

L.M.N., when she entered care, had bruises that “covered her back,” “both arms,”

and the left side of her face. DFPS caseworker Scott testified that she saw “bruises

behind [L.M.N.’s] ear” and “a lot of scratches on the back of her neck.” And L.M.N.

disclosed to Gomez that the incidents of physical abuse by mother occurred at

different times and she had been physically abused on several occasions. See

Jordan, 325 S.W.3d at 724 (“Evidence as to how a parent has treated [one]

child . . . is relevant . . . .”).

A parent who lacks the ability to provide a child with a safe and stable home

is unable to provide for a child’s emotional and physical needs. In re G.M.G., 444

S.W.3d 46, 60 (Tex. App.—Houston [14 Dist.] 2014, no pet.); see also In re B.J.,

No. 01-15-00886-CV, 2016 WL 1389054, at *10–11 (Tex. App.—Houston [1st

Dist.] Apr. 7, 2016, no pet.) (mem. op.) (parent, who did not demonstrate she could

provide safe and stable home, unable to meet children’s needs); In re K.C., 219

S.W.3d 924, 931 (Tex. App.—Dallas 2007, no pet.) (child’s need for stable,

permanent home paramount consideration in best interest determination). And a fact

finder may infer from a parent’s past inability to meet a child’s physical and

56
emotional needs an inability or unwillingness to meet a child’s needs in the future.

In re J.D., 436 S.W.3d at 118; see also Adams v. Tex. Dep’t of Family & Protective

Servs., 236 S.W.3d 271, 280 (Tex. App.—Houston [1st Dist.] 2007, no pet.)

(parent’s history of failing to provide children with “stable and nurturing

environment” demonstrates termination of parental rights in best interest).

Further, several witnesses testified that it was in the children’s best interest to

remain in their current placement with their foster parents because it was a safe and

stable home and the children’s foster parents were meeting their emotional,

psychological, and physical needs. The children had never expressed any fears

related to their foster parents or reported any abuse or neglect by them. Dr. Earls,

the children’s therapist, opined that it would be emotionally detrimental if either

L.M.N. or D.Y.L.N. were to be returned home, and a “Permanency Plan and Progress

Report to the Court,” admitted into evidence at trial, states that it would be

“re-traumatizing” for the children to return home. Neither L.M.N. nor D.Y.L.N.

wanted to return to the care of mother and father, and the foster family was the only

home that J.J.L.N. had ever known. Moreover, the children are very bonded to each

other and their foster parents, and J.C. opined that separating them would be harmful

and emotionally difficult for them. See In re K.C., 219 S.W.3d at 931 (child’s need

for stable, permanent home paramount consideration in best interest determination);

Adams, 236 S.W.3d at 280 (relying on evidence “it would be in the children’s best

57
interest to be raised in a consistent, stable, and nurturing environment”); see also In

re A.M., 495 S.W.3d 573, 581 (Tex. App.—Houston [1st Dist.] 2016, pet. denied)

(foster parents provided stable home where children received counseling and

thriving).

In regard to the current and future emotional and physical danger to the

children, as noted above, L.M.N., while living with mother and father, was

repeatedly physically abused by mother. See Jordan, 325 S.W.3d at 724 (“Evidence

as to how a parent has treated [one] child . . . is relevant . . . .”). And she feared that

she would experience abuse again if she was returned home. She also feared that

D.Y.L.N. and J.J.L.N. would be abused if they were returned to the care of mother

and father. D.Y.L.N. reported to Dr. Earls, her therapist, that she had actually seen

L.M.N. “being hit” and she, while previously living with mother and father, “had

been left in a closet” so that she would “not see [L.M.N. being] hurt.” When

D.Y.L.N. told Earls about this, she appeared “[s]haken.” Earls also explained that

on several occasions the children required emergency therapy sessions after visits

with mother and father because of “their anxiety and fears about returning” home.

Several witnesses also testified that mother had not “take[n] responsibility for

the physical abuse of [L.M.N.]” and father had not “take[n] responsibility [for

not] . . . being protective” of the child. Further, Gomez opined that father had not

demonstrated how he would protect the children if they were returned home. And

58
both parents excused mother’s behavior of hitting L.M.N. with a shoe by blaming it

on “depression” and the “taking [of] Prozac” and by characterizing it as an

“accident.” Neither mother nor father ever offered a viable explanation for the many

bruises and scars found on L.M.N. And Gomez opined that the children would be

in “grave danger” if they were returned home because of the physical abuse that

L.M.N. had suffered.

Further, Dr. Earls testified that it would be emotionally detrimental if either

L.M.N. or D.Y.L.N. were returned to the care of mother and father. And J.C. opined

that it would be harmful for the children to be separated from each other because

D.Y.L.N. would think that she did something “wrong” and “the only consistent thing

in [J.J.L.N.’s] life ha[d] been [L.M.N.].”

Evidence of violence in the home supports a finding that the placement of a

child with her parent is likely to subject the child to emotional and physical danger

now and in the future. In re J.S.-A, No. 01-17-00491-CV, 2018 WL 891236, at *8

(Tex. App.—Houston [1st Dist.] Feb. 15, 2018, pet. denied) (mem. op.); In re

O.N.H., 401 S.W.3d 681, 685 (Tex. App.—San Antonio 2013, no pet.) (“[I]t was a

form of abuse for the children to be exposed to an environment where physical abuse

occurred even if it was not directed toward them.”); In re J.I.T.P., 99 S.W.3d at 846

(exposure to violence, even when child not intended victim, supports finding

termination in child’s best interest). And a parent’s inability or unwillingness to

59
protect a child from repeated abuse is a relevant consideration. See In re A.A.T., No.

04-16-00344-CV, 2016 WL 7448370, at *15 (Tex. App.—San Antonio Dec. 28,

2016, no pet.) (mem. op.); see also In re S.B., 207 S.W.3d 877, 886–87 (Tex. App.—

Fort Worth 2006, no pet.) (parent’s violent behavior while children in home placed

them in severe emotional danger).

Further, a parent’s past performance as a parent is relevant to a determination

of her present and future abilities to provide for a child. In re C.H., 89 S.W.3d at

28; In re E.D., 419 S.W.3d 615, 620 (Tex. App.—San Antonio 2013, pet. denied)

(trial court may measure parent’s future conduct by past conduct); see also

Schaban-Maurer v. Maurer-Schaban, 238 S.W.3d 815, 824 (Tex. App.—Fort Worth

2007, no pet.) (“[T]rial courts [have] relied on evidence of past violence as an

indicator of future behavior in parental termination and child custody cases.”).

In regard to parental abilities, plans for the children, and the stability of the

proposed placement, L.M.N., while living with mother and father, suffered many

incidents of physical abuse, which left her extensively bruised and injured. And

D.Y.L.N., while living with mother and father, was placed in a closet so that she

would not see L.M.N. being “hurt,” although she reported that she had actually seen

L.M.N. “being hit.” Mother admitted to hitting L.M.N. with a shoe because she was

frustrated with the child, and she also admitted that a pot of boiling tomatoes had

fallen on L.M.N.’s hand because she had left it unattended on the kitchen stove.

60
Mother and father also could not adequately explain the extensive bruising sustained

by L.M.N. while in their care, and they contradicted themselves at trial as to whether

or not mother had “anger issues.” Mother did admit to having problems controlling

her anger, and agreed that she had, in the past, “exhibited some uncontrollable anger”

toward L.M.N. However, she also did not understand why she needed to attend

anger management classes. And neither mother nor father ever took responsibility

for their role in the physical abuse suffered by L.M.N., with both parents excusing

mother’s abusive behavior. See P.A.G. v. Tex. Dep’t of Family & Protective Servs.,

458 S.W.3d 595, 612–13 (Tex. App.—El Paso 2014, no pet.) (comparing parental

abilities of parent and foster parent and noting parent’s home abusive); see also In

re C.H., 89 S.W.3d at 28 (parent’s past performance as parent relevant to

determination of present and future ability to provide for child); In re E.D., 419

S.W.3d at 620 (trial court may measure parent’s future conduct by past conduct);

Schaban, 238 S.W.3d at 824 (“[T]rial courts [have] relied on evidence of past

violence as an indicator of future behavior in parental termination and child custody

cases.”).

DFPS caseworker Beaty also expressed concern about mother’s inability to

redirect D.Y.L.N.’s behavior when she acted inappropriately during family visits.

See C.V. v. Tex. Dep’t of Family & Protective Servs., 408 S.W.3d 495, 506–07 (Tex.

App.—El Paso 2013, no pet.) (evidence sufficient to support finding termination of

61
parental rights in best interest where parent lacked abilities to redirect children’s

behavior).

If the children were returned to the home of mother and father, mother stated

that she “would tell them how much [she] love[d] them” and “would make them

happy every day.” She would also not “pay attention to the bad things” and “only

pay attention to the good things.” According to mother, she should play with the

children more and spend more time with them; she should not focus on “things that

need[] to be done around the house.” She should “[f]ocus on their education” and

“treat [the] children better.” Father noted that mother is currently pregnant with

twins and he is still working full-time. Father will “be busy” but plans to “have more

precaution[s] to check” on the children if they are returned to his and mother’s care.

Father was not concerned about mother taking care of a total of five children after

the birth of their twins, despite knowing that she was easily overwhelmed while

caring for the children in the past. See In re S.P.M., No. 07-13-00282-CV, 2014

WL 241796, at *8 (Tex. App.—Amarillo Jan. 21, 2014, no pet.) (given parents’ past

performance, fact finder free to reject their assertions of future stability and having

learned from their mistakes); C.V., 408 S.W.3d at 506–07 (evidence sufficient to

support finding termination of parental rights in best interest where parent became

overwhelmed and failed to protect children from exposure to violence).

62
 J.C. testified that the children currently live with him, his wife, and his

nine-year old daughter in a home. The children had been living with his family for

almost three years. J.C. and his wife provided the children with food, clothing, and

“everything [that] they needed.” In their rooms at their foster parents’ home, the

children had toys, books, beds, and stuffed animals. And recently, J.C. and his wife

had taken the children to visit San Diego for spring break.

While L.M.N. was in the care of her foster parents, she improved academically

and enjoyed science and reading. She had friends and participated in soccer and

karate. She speaks both English and Spanish, is “a very outdoor person,” and “loves

outside activities” and camping, which the family does frequently. L.M.N. gets

along well with her siblings, has a good relationship with both D.Y.L.N. and

J.J.L.N., and is very bonded with them. She is protective of D.Y.L.N. and J.J.L.N.,

and she engages and plays with them. After school, L.M.N. and D.Y.L.N. do their

homework together and play dolls. And the children “hug each other a lot.”

Since D.Y.L.N. began living with her foster parents, her relationship with her

siblings has improved and she has strongly bonded with them. She is a “great big

sister” to J.J.L.N., plays with him, is very close with him, holds his hand, and is

protective of him. D.Y.L.N. is in kindergarten and is “doing great.” She “show[s]

progress from semester to semester,” and she attends the same school as J.C.’s

nine-year-old daughter. D.Y.L.N. has friends and plays with them at the park and

63
the neighborhood pool. She primarily speaks English now and refuses to speak

Spanish, although she understands it.47

In regard to J.J.L.N., while in the care of his foster parents, he previously

attended daycare, but now is being tutored by J.C.’s in-laws, who are former

teachers. J.J.L.N. was doing great at daycare and is doing “really good” with

tutoring. He is developmentally on target for his age and does not have any delays.

He gets along with both L.M.N. and D.Y.L.N. and is very bonded with them. He

asks his sisters to play, go swimming, and watch Mickey Mouse with him. The

children play together often, and J.J.L.N. eats snacks with his sisters when they get

home from school.

J.C. testified that he and his wife would like to adopt the children, and he

opined that it would be in the children’s best interest to be adopted by his family.48

See In re M.M.M., Nos. 01-17-00980-CV, 01-17-00981-CV, 2018 WL 1954178, at

*16 (Tex. App.—Houston [1st Dist.] Apr. 26, 2018, pet. denied) (mem. op.)

(children in adoptive placements and thriving and happy). The children refer to J.C.

and his wife as “[d]ad” and “[m]om.” J.C. opined that J.J.L.N. did not realize that

47
The record indicates that mother and father speak Spanish. Mother testified that she
does not speak or read English.
48
J.C. noted that even if D.Y.L.N. and J.J.L.N. were returned to the care of mother
and father, he and his wife would still want to adopt L.M.N.

64
mother and father were his parents. And D.Y.L.N. saw J.C. and his wife as “her

parents.”

Several witnesses testified that the children are “very bonded” with their foster

parents, who “treat[] the[] [children] as their own”; “[t]hey fe[el] like they [are]

family.” The children are thriving in their placement and are adjusted, and their

educational, emotional, psychological needs are being met. The children’s current

placement is a safe, stable, and emotionally supportive. See In re J.D., 436 S.W.3d

at 119–20 (“Stability and permanence are paramount in the upbringing of

children.”); In re Z.C., 280 S.W.3d 470, 476 (Tex. App.—Fort Worth 2009, pet.

denied) (noting stability and permanence important to upbringing of child and

affirming termination in best interest when child thriving in foster care); In re K.C.,

219 S.W.3d at 931 (child’s need for stable, permanent home paramount

consideration in best interest determination); see also In re T.A.S., No.

05-15-01101-CV, 2016 WL 279385, at *6 (Tex. App.—Dallas Jan. 22, 2016, no

pet.) (mem. op.) (considering children’s improvement in foster care and noting they

had “stabilized and w[ere] functioning well in . . . foster home”).

In regard to acts or omissions that may indicate that the parent-child

relationship is not proper, a parent’s inability to provide a stable home supports a

finding that termination of parental rights is in the best interest of a child. See In re

B.J., 2016 WL 1389054, at *13; In re S.B., 207 S.W.3d at 887–88.

65
 Here, mother physically abused L.M.N. on several occasions, and D.Y.L.N.

saw L.M.N. “being hit” or was placed in a closet so that she would not see L.M.N.

being “hurt.” See In re E.G., No. 02-14-00351-CV, 2015 WL 1262631, at *13 (Tex.

App.—Fort Worth Mar. 19, 2015, no pet.) (mem. op.) (prevalence of violence in

home when child lived with parent constitutes act or omission indicating existing

parent-child relationship not proper). Mother testified that she had hit L.M.N. with

a shoe, which resulted in bruising, but she and father both excused her behavior, with

father characterizing it as an “accident.” Beaty noted that L.M.N. was physically

abused while father lived in the home and he “did not do anything when th[at] abuse

was going on.” And Gomez opined that father was not protective of the children,

and he “could not speak up for himself or speak out independently.” Neither parent

took responsibility for what had happened to L.M.N. while in their care. See In re

N.M.L., No. 07-17-00310-CV, 2018 WL 542719, at *8 (Tex. App.—Amarillo Jan.

19, 2018, pet. denied) (mem. op.) (engaging in conduct endangering children’s

physical and emotional well-being constitutes act or omission by parent indicating

parent-child relationship not proper); In re A.A.T., 2016 WL 7448370, at *17–18

(considering parent’s excuses regarding child’s abuse); In re S.W., No.

2-05-417-CV, 2006 WL 2988736, at *7 (Tex. App.—Fort Worth Oct. 19, 2006, no

pet.) (mem. op.) (parent attempted to justify her abusive conduct).

66
 Viewing the evidence in a neutral light, we conclude that a reasonable fact

finder could have formed a firm belief or conviction that termination of mother’s

parental rights is in the best interest of the children. See TEX. FAM. CODE ANN.

§ 161.001(b)(2). And we conclude that the trial court could have reconciled any

disputed evidence in favor of finding that termination of mother’s parental rights is

in children’s best interest or any disputed evidence was not so significant that a fact

finder could not have reasonably formed a firm belief or conviction that termination

is in the best interest of the children.

Further, viewing the evidence in the light most favorable to the trial court’s

finding, we conclude that the trial court could have formed a firm belief or conviction

that termination of father’s parental rights is in the best interest of D.Y.L.N. and

J.J.L.N. See id. And viewing the evidence in a neutral light, we conclude that a

reasonable fact finder could have formed a firm belief or conviction that termination

of father’s parental rights is in the best interest of D.Y.L.N. and J.J.L.N. See id. We

further conclude that the trial court could have reconciled any disputed evidence in

favor of finding that termination of father’s parental rights is in the best interest of

D.Y.L.N. and J.J.L.N. or any disputed evidence was not so significant that a fact

finder could not have reasonably formed a firm belief or conviction that termination

is in the best interest of D.Y.L.N. and J.J.L.N.

67
 Accordingly, we hold that the evidence is factually sufficient to support the

trial court’s finding that termination of mother’s parental rights is in the best interest

of the children. Id. We further hold that the evidence is legally and factually

sufficient to support the trial court’s finding that termination of father’s parental

rights is in the best interest of D.Y.L.N. and J.J.L.N. Id.

We overrule mother’s fourth issue and father’s third issue.

Permanent Managing Conservatorship

In her fifth issue, mother argues that the trial court erred in appointing DFPS

as the children’s permanent managing conservator because the evidence is legally

and factually insufficient to establish that the appointment of her would significantly

impair the children’s “physical health or emotional development” or that the

appointment of DFPS was in the children’s best interest.49

The Family Code creates a rebuttable presumption that a parent will be named

the child’s managing conservator unless the court finds that such appointment would

not be in her best interest “because the appointment would significantly impair the

child’s physical health or emotional development.” TEX. FAM. CODE ANN.

49
In his fourth issue, father asserts that the trial court erred in appointing DFPS as the
permanent managing conservator of D.Y.L.N. and J.J.L.N. However, he requests
that the Court address this issue only “if [we] reverse[] the judgment terminating
[his parental] rights.” Accordingly, we do not address father’s
permanent-managing-conservator complaint. See TEX. R. APP. P. 47.1; In re T.C.,
No. 01-17-00497-CV, 2018 WL 4126600, at *28 n.55 (Tex. App.—Houston [1st
Dist.] Aug. 30, 2018, no pet. h.) (mem. op.).

68
§ 153.131(a) (Vernon 2014). However, the Family Code also provides: “If the court

terminates the parent-child relationship with respect to both parents or to the only

living parent, the court shall appoint a suitable, competent adult, [DFPS], or a

licensed child-placing agency as managing conservator of the child.” Id.

§ 161.207(a) (Vernon Supp. 2018); see also In re S.M.G., No. 01-17-00056-CV,

2017 WL 2806332, at *8 (Tex. App.—Houston [1st Dist.] June 29, 2017, pet.

denied) (mem. op.) (“When the parents’ parental rights have been terminated,

Family Code section 161.207 governs the appointment of a managing

conservator.”); In re M.M.M., No. 01-16-00998-CV, 2017 WL 2645435, at *17

(Tex. App.—Houston [1st Dist.] June 16, 2017, no pet.) (mem. op.) (parental

presumption applies only when parental rights not terminated). In this case, the trial

court appointed DFPS as sole managing conservator of the children after terminating

the parental rights of mother, father, and the unknown father of L.M.N.

Termination of parental rights and appointment of a non-parent as sole

managing conservator are two distinct issues, requiring different elements, different

standards of proof, and different standards of review. Compare TEX. FAM. CODE

ANN. § 161.001, with id. § 153.131(a); see also In re J.A.J., 243 S.W.3d 611, 615–

17 (Tex. 2007). Unlike the standard of proof for termination of parental rights, the

findings necessary to appoint a non-parent as sole managing conservator need only

be established by a mere preponderance of the evidence. See TEX. FAM. CODE ANN.

69
§ 105.005 (Vernon 2014); In re J.A.J., 243 S.W.3d at 616. Likewise, the standard

of review for the appointment of a non-parent as sole managing conservator is less

stringent than the standard of review for termination of parental rights. In re J.A.J.,

243 S.W.3d at 616; In re A.C., 394 S.W.3d 633, 644 (Tex. App.—Houston [1st Dist.]

2012, no pet.). We review a trial court’s appointment of a non-parent as sole

managing conservator for an abuse of discretion. In re J.A.J., 243 S.W.3d at 616;

Earvin v. Dep’t of Family & Protective Servs., 229 S.W.3d 345, 350 (Tex. App.—

Houston [1st Dist.] 2007, no pet.). Therefore, we reverse the trial court’s

appointment of a non-parent as sole managing conservator only if we determine that

the appointment is arbitrary or unreasonable. In re J.A.J., 243 S.W.3d at 616;

Earvin, 229 S.W.3d at 350. We view the evidence in the light most favorable to the

trial court’s decision and indulge every legal presumption in favor of its judgment.

Earvin, 229 S.W.3d at 350. A trial court abuses its discretion by ruling without

supporting evidence. Ford Motor Co. v. Garcia, 363 S.W.3d 573, 578 (Tex. 2012).

However, an abuse of discretion does not occur if the trial court bases its decision

on conflicting evidence and some evidence of substantive and probative character

supports its decision. Unifund CCR Partners v. Villa, 299 S.W.3d 92, 97 (Tex.

2009); Butnaru v. Ford Motor Co., 84 S.W.3d 198, 211 (Tex. 2002).

An order terminating the parent-child relationship divests a parent of all legal

rights and duties with respect to the child. See TEX. FAM. CODE ANN. § 161.206(b)

70
(Vernon Supp. 2018). Here, having made termination findings on the predicate

grounds found in Family Code section 161.001(b)(1) and best interest, the trial court

was required under section 161.207 to appoint DFPS, or another permissible adult

or agency, as the children’s managing conservator. See In re L.G.R., 498 S.W.3d

195, 207 (Tex. App.—Houston [14th Dist.] 2016, pet. denied); see also In re S.M.G.,

2017 WL 2806332, at *8 (when parental rights terminated section 161.207 controls

appointment of managing conservator). In other words, the appointment of DFPS

in this case may be considered a “consequence of the termination” of mother’s

parental rights. See In re L.G.R., 498 S.W.3d at 207 (internal quotations omitted);

see also In re J.R.W., No. 14-12-00850-CV, 2013 WL 507325, at *12 (Tex. App.—

Houston [14th Dist.] Feb. 12, 2013, pet. denied) (mem. op.).

As discussed above, the evidence is legally and factually sufficient to support

the trial court’s termination of mother’s parental rights to the children. See In re

S.R., 452 S.W.3d 351, 359 n.3 (Tex. App.—Houston [14th Dist.] Nov. 13, 2014, pet.

denied) (“A trial court does not abuse its discretion in appointing [DFPS] as

conservator of the children where the evidence is sufficient to support termination

of parental rights.”). Because we have overruled mother’s challenge to the portion

of the trial court’s order terminating her parental rights, the order has divested her of

her legal rights and duties related to the children. See TEX. FAM. CODE ANN.

§ 161.206(b); E.A. v. Tex. Dep’t of Family & Protective Servs., No.

71
03-15-00811-CV, 2016 WL 1639847, at *4 (Tex. App.—Austin Apr. 21, 2016 pet.

denied). Accordingly, we hold that mother now lacks standing to challenge the

appointment of DFPS as the children’s permanent managing conservator.50 See In

re C.E.C., No. 05-17-01482-CV, 2018 WL 3062454, at *8 (Tex. App.—Dallas June

21, 2018, no pet.) (mem. op.); In re D.K.W., Jr., No. 01-17-00622-CV, 2017 WL

6520439, at *5 (Tex. App.—Houston [1st Dist.] Dec. 21, 2017, pet. denied) (mem.

op.); see also Quiroz v. Dep’t of Family & Protective Servs., No. 01-08-00548-CV,

2009 WL 961935, at *11 (Tex. App.—Houston [1st Dist.] Apr. 9, 2009, no pet.)

(mem. op.) (refusing to address parent’s complaint evidence insufficient to support

DFPS’s appointment as sole managing conservator where evidence sufficient to

support termination of parent’s rights).

We overrule mother’s fifth issue.

50
We note that in cases where a trial court’s termination of the parent-child
relationship is reversed, a parent is required to independently challenge a trial
court’s finding under Family Code section 153.131(a) in order to obtain reversal of
the conservatorship appointment. See In re J.A.J., 243 S.W.3d 611, 616–17 (Tex.
2007).

72
 Conclusion

We affirm the order of the trial court.

Terry Jennings
Justice

Panel consists of Justices Jennings, Higley, and Massengale.

73