in the Interest of J. D. G AKA J. G., Jr., A. E. G. J. AKA A. G. v. Department of Family and Protective Services

Opinion issued December 11, 2018




                                      In The

                               Court of Appeals
                                     For The

                          First District of Texas
                             ————————————
                              NO. 01-18-00578-CV
                            ———————————
           IN THE INTEREST OF J.D.G. AND A.E.G.J., Children




                    On Appeal from the 314th District Court
                            Harris County, Texas
                      Trial Court Case No. 2015-03930J


                                  OPINION

      After a two-month-old boy was hospitalized from injuries caused by his

father’s shaking him, the infant and an older sibling were removed from the family

home. Some 35 months later, the trial court entered an order terminating the

parental rights of both parents. The mother appeals, challenging (1) the sufficiency
of the evidence to support the trial court’s three predicate findings1 for termination

of her parental rights, best-interest determinations2, and appointment of the

Department of Family and Protective Services as the children’s managing

conservator; (2) the applicability and sufficiency of the evidence on an affirmative

defense relevant to one of the predicate findings against her,3 and (3) an

evidentiary ruling. 4

      We affirm.

                                      Background

A.    Javier severely injures Andres

      Early one Friday morning, Monica5 fed her two-month-old son, Andres,

placed him in bed with his father, Javier, and left the house to be at work by 5:00


1
      See TEX. FAM. CODE § 161.001(b)(1)(D) (endangering conditions), (E)
      (endangering conduct), (O) (failure to comply with court order containing
      requirements for return of children).
2
      See id. § 161.001(b)(2) (best interest).
3
      See id. § 161.001(d) (“A court may not order termination under Subsection
      (b)(1)(O) based on the failure by the parent to comply with a specific provision of
      a court order if a parent proves by a preponderance of evidence that: (1) the parent
      was unable to comply with specific provisions of the court order; and (2) the
      parent made a good faith effort to comply with the order and the failure to comply
      with the order is not attributable to any fault of the parent.”).
4
      The father did not appeal termination of his parental rights. The record indicates
      that he was deported from the country, but his current location is not established.
5
      The parents, children, and other relatives will be referred to by pseudonyms
      instead of initials for ease of reading.
                                             2
a.m. Around 11:00 a.m., Javier called Monica at work to tell her something had

happened to Andres. He told her Andres had been crying, he held the baby, Andres

began to fall from his arms, he tried to grab Andres, and, in doing so, he “kind of

maybe shook” Andres. Javier told Monica that Andres turned purple and stopped

breathing and that he performed CPR on Andres to help him begin breathing again.

Javier assured Monica that Andres seemed fine at the time of the phone call. Javier

told Monica he was leaving for work and would drop Andres and his almost-two-

year-old brother, Jorge, at their aunt’s house.

      The aunt, Celia, later stated Andres appeared normal to her when Javier

brought him to her house. She said Javier told her Andres had almost fallen earlier

that morning and Javier had to grab him by his feet to prevent the fall. Javier told

Celia to call him or 911 if anything appeared wrong with Andres while in her care.

      Monica left work about 40 minutes later to pick the kids up from Celia’s

house. Monica later said that Andres appeared normal when she arrived and

continued to seem fine the next day. Neither Celia nor Monica saw any signs of

injury.

      On Sunday, April 19, 2015—which was the second day after the incident—

Monica was back at work when she received a call from Javier around 9:00 a.m.

He told her that he had accidentally startled Andres, who then seemed unable to

cry or breathe. Javier told Monica that he was taking Andres to the hospital.


                                           3
      The hospital determined Andres had a subdural hemorrhage and difficulty

breathing. The medical staff intubated Andres and life flighted him to Memorial

Hermann Children’s Hospital. Tests revealed brain bleeding and seizure activity.

The medical staff noted that the findings were consistent with Shaken Baby

Syndrome. Andres was admitted to the hospital, where he received medical care

for two and one-half weeks. He then was transferred to Shriner’s Hospital, where

he remained another three weeks.

      Andres ultimately was diagnosed with Shaken Baby Syndrome and complex

epilepsy with seizures. He was prescribed anti-seizure medications, but, by the

time the case reached trial, he was no longer on these medications. In a 2018 trial

report, DFPS stated that Andres did not have any developmental delays from his

injuries but still required physician monitoring due to his diagnosis.

B.    DFPS investigation and pendency of conservatorship suit

      1.     2015

      Andres’s injuries occurred in mid-April 2015. Jorge was immediately

removed from the family home and placed with an adult relative, Julia. Both

parents were permitted supervised visits with Jorge at Julia’s home. Andres

remained in a medical facility until late May, when he also moved in with Julia.

Neither parent had a criminal record when Andres was injured. Both parents were




                                          4
employed. The trial court ordered both parents drug tested; all test results were

negative.

      Officer B. Andrade with the Houston Police Department interviewed Javier

on April 28, 2015—11 days after the incident. At first, Javier described a series of

events similar to what he had told Monica and Celia. Andrade told Javier his story

was not consistent with Andres’s injuries. Javier then said, “The truth is I shook

him.” Javier said that Andres had been crying that morning and acting “bipolar.”

Immediately after Javier shook him, Andres stopped crying but also stopped

breathing. Javier said that he shook Andres again to get a response. At the end of

the interview, Javier asked Andrade if anyone was going to tell Monica “what he

had done.” Andrade responded that Javier could tell Monica “when he was ready.”

      It is not clear from the record when Monica learned what had occurred. The

DFPS caseworker, S. Butler, for example, testified that Javier had told Monica in

early May that he shook Andres, but she later testified that it was possible Monica

did not learn the truth until DFPS informed her in mid-May.

      Once Julia learned in mid-May that Javier had admitted to law enforcement

that he had shaken Andres, she asked that supervised visits occur at DFPS’s offices

instead of her home. The trial court approved the change. Javier was arrested on

May 26. Andres was released to Julia’s care on May 27. Javier was released on bail

on June 9. DFPS then sought sole managing conservatorship over the children “due


                                         5
to concerns with the safety of the children, and the parent’s inability to provide a

safe environment for the child[ren].” According to DFPS caseworker, Butler,

Monica was continuing “to assert that the father has no complicity in the injury and

that shaking the baby was just an accident.” At the adversarial hearing in July,

Butler testified that Javier and Monica continued to live together after Javier’s

release on bond.

      The children’s pediatrician, Dr. Syed Rizvi, testified. He stated that Monica

had always been reasonably compliant with health care instructions.

      When Monica testified, she clarified that Javier moved in with her when he

was released on bail one month earlier but that he was in the process of moving out

at the time of the hearing. She stated she was willing to end her relationship with

Javier to have her children returned to her care.

      The trial court granted DFPS’s request for temporary orders naming DFPS

temporary managing conservator of the children, continuing the children’s

placement with Julia, and continuing supervised parent visits at DFPS offices.

      In August, the court held a status hearing. DFPS announced a permanency

goal for family reunification. Monica and Javier were ordered to comply with

DFPS family service plans. Monica’s plan required her to attend eight weeks of

parenting classes, attend hearings and DFPS meetings, confirm with DFPS all

scheduled visits with her children, complete a psycho-social evaluation, timely


                                          6
report changes in residence and employment to DFPS and the court, obtain and

maintain employment, and “obtain, pay for and maintain appropriate housing for

herself and child . . . [to be] demonstrated by providing a copy of a lease agreement

and through home visits by the caseworker.” The plan listed certain goals for

Monica, including understanding the serious nature of the situation that placed

Andres in danger, demonstrating an ability to change to provide her children with

adequate care and nurture, demonstrating a willingness and ability to protect her

children from harm, participating in therapy, demonstrating the ability to follow

medical advice for her children, and adequately following the safety plan to control

the risk of abuse or neglect. The court appointed Child Advocates as the children’s

guardian ad litem.

      DPFS’s status report submitted to the court two months later states that

Javier and Monica were still living together, that Monica continued to describe

Andres’s injuries as an accident, and that Monica failed to inform DFPS once

Javier admitted to her that he shook Andres.6 The primary permanency goal in this

October report changed to family adoption, with a secondary goal of family

reunification. DFPS noted, though, that Monica was progressing in completing her

service plan.


6
      As noted earlier, Jenkins’s testimony is unclear whether Javier admitted to Monica
      that he shook Andres or if, instead, she learned that information directly from
      DFPS.
                                           7
      2.     2016 and the start of trial

      In April 2016, one year after the incident in question, the children’s

caregiver returned them to DFPS, indicating that she felt frustrated with “the

process” and no longer wanted to be responsible for the children. DFPS sought

court approval to transfer the boys to foster care and to continue supervised parent

visits. At the status hearing to approve the change, a new DFPS caseworker, Y.

Jenkins, testified that Child Advocates recently had made an unannounced visit to

Monica’s home and encountered Javier leaving the area by jumping a fence.

Jenkins testified that DPFS has ongoing concerns with Monica’s protective

capacity due to her continued contact with Javier.

      The Child Advocates volunteer, J. Gonzalez, testified that when he made the

unannounced visit, he and his co-worker saw Javier jump a fence to leave the area;

Monica did not answer the door and instead walked directly to her car to leave; he

asked her about contact with Javier; and Monica said he was there only to bring her

money. Gonzalez, whom Monica allowed in the house, saw no evidence Javier was

living there. Monica denied he was living there. Monica testified that Javier was

simply leaving a money envelope on her porch and that Child Advocates happened

to arrive as he was leaving.

      In June 2016, the court-appointed attorney ad litem recommended that the

children be moved to a different foster home due to inappropriate supervision of


                                           8
the children by their current foster placement, as observed during a recent home

visit.

         At a hearing one month later, the Child Advocates guardian ad litem testified

that he did not support family reunification, citing multiple reasons: the March

incident in which Javier jumped a fence leaving Monica’s home, concerns over a

lack of support system for Monica, concerns over whether Monica could

financially support the children if they were returned to her as she continued to rely

on Javier for financial assistance, and a statement by Monica during an earlier

court hearing declining to hold Javier responsible for Andres’s injuries. The

guardian ad litem testified that Monica had demonstrated that “she cannot protect

the child.” The final hearing date was extended to November 15.

         In September, the children were moved to a different foster home.

According to a DFPS report, the change was due to “allegations . . . made against

the previous home.”

         On November 11, just before the scheduled November 15 hearing date,

DFPS submitted a permanency report to the court that changed the permanency

goal from family adoption to reunification with Monica, though not Javier. DFPS

reported that Monica had completed her psycho-social evaluation, parenting

classes, and individual therapy. She lived in her own apartment and provided a




                                           9
copy of her lease agreement. She had shown proof of employment. DFPS

recommended that the court schedule the permanency hearing five months later.

      Child Advocates did not share DFPS’s permanency goals. In its November

report to the court, Gonzalez recommended termination of both parents’ parental

rights. While noting that Monica had completed her service plan requirements, the

Child Advocates report expressed the ad litem’s concern that Monica “lack[ed]

protective capacity to care for the children” because she earlier stated she did not

believe Javier harmed Andres and because Javier was observed jumping the fence

on an unannounced Child Advocates visit. Although DFPS was willing to change

its recommendation to reunification with Monica after these two events were

known, Child Advocates believed this history continued to support termination,

even though Monica was successful in completing her family service plan and

participating in supervised visits with the children.

      Trial began on November 15, 2016. Javier’s counsel noted that Javier’s

criminal matter had not yet resolved. DFPS announced that the current permanency

goal for Monica was reunification. A few exhibits were admitted, and DPFS

caseworker Jenkins provided four pages of testimony. She stated that Andres was

developmentally on target without any repercussions from the shaking incident.

When Jenkins was unable to provide precise answers to questions from the court,

DPFS requested to “step back” and gather additional information, and the trial


                                          10
court agreed. No additional evidence or witness testimony was offered until 18

months later, in May 2018.7

      3.     2017

      In the interim, in February 2017, Child Advocates submitted a court report

again recommending termination of Monica’s parental rights. It listed the two

reasons discussed in the earlier report and elaborated that Monica had “not been

truthful in regards to her contact” with Javier or the fence-jumping incident. It

added as a third reason that Monica had been asked in an earlier permanency

hearing if she believed Javier harmed the children and she had answered, “No.”

Child Advocates also reported that, while Monica eventually conceded that Javier

“could have hurt the children,” she also had continued to rely on Javier for

financial support, which, in its view, indicated she was not protective of the

children or able to provide them a safe and stable environment.




7
      Section 263.401 of the Family Code provides that the trial court’s jurisdiction ends
      after one year unless the court “has commenced the trial on the merits” or grants
      an extension. TEX. FAM. CODE § 263.401(a)–(b) (emphasis added). The extension
      requires a finding that “extraordinary circumstances necessitate the child
      remaining in the temporary managing conservatorship of the department and that
      continuing the appointment of the department as temporary managing conservator
      is in the best interest of the child.” Id. § 263.401(b). The parties may not extend
      the deadlines by agreement or otherwise. Id. § 263.402.

      These November 15 events commenced trial. There is no statutory requirement
      that a commenced trial be completed within any specified period of time. This
      trial—with four trial witnesses—lasted 18 months.
                                           11
      DFPS submitted a permanency report in June 2017—now two years after the

original incident—that changed the permanency goal from reunification with

Monica to unrelated adoption because Monica lacked “protective capacity.” It

noted that Andres and Jorge’s then-current foster care provider was willing to be a

permanent placement if the parents’ rights were terminated. DFPS described the

foster home favorably and noted that the children were bonded to their foster care

provider. In this report, DFPS recommended termination of Monica’s parental

rights under Subsection (O) because “she has failed to comply with the court order

to maintain no contact with the perpetrator of the case [Javier].”8 DFPS requested

the court schedule a permanency hearing six months later.

      4.     2018 and the completion of trial

      DFPS submitted another permanency report in March 2018—now almost

three years after the incident. It stated that Javier had pleaded guilty to the offense

of injury to a child and had received 10 years’ community supervision. It further

stated that, after the guilty plea, Monica had participated in a video call with Javier

during one of her supervised visits with the children. In DFPS’s view, her

participation in the call “diminishe[d] her protective capacities.” In May, DFPS

filed another report with the trial court that elaborated on the video call. According



8
      We did not locate a court order in the appellate record that forbids Monica from
      contact with Javier.
                                          12
to DFPS, during the call, Monica told the boys to “blow kisses” to Javier. DFPS

also alleged that Monica had “allowed [Javier] in her home.”

      DFPS’s reports stated that Monica had completed her family service plan,

including parenting classes and therapy. They further stated that Monica lived “in

her own apartment” and had provided DFPS with “a copy of her lease agreement.

Nonetheless, according to the DFPS reports, Monica continued to lack protective

capacities. The DPFS reports also were critical of Monica’s continued contact with

Javier and, on that basis, recommended termination of Monica’s parental rights

under Subsection (O).

      DFPS later amended its petition and sought termination of Monica’s parental

rights to both boys on four bases: Subsection (D) (endangering conditions), (E)

(endangering conduct), (N) (constructive abandonment), and (O) (failure to comply

with court order). See TEX. FAM. CODE § 161.001(b)(1)(D), (E), (N), (O).

      On May 24, 2018—two and one-half years after DFPS was named managing

conservator of the children—the last three trial witnesses testified.9 J. Leal testified

that she had replaced Jenkins as the DFPS caseworker in October 2017. She

testified that Monica was continuing to describe Andres’s injuries as an accident

and to defend Javier by describing his conduct as not intentional.




9
      See infra n.7.
                                          13
      Leal confirmed there had been only two known incidents of contact between

Monica and Javier since the case had begun three years earlier: the March 2016

fence-jumping incident and the February 2017 video call. From these events, Leal

expressed a belief that Monica was continuing to have contact with Javier, who, by

the time of trial, had been deported.

      Leal further testified that Monica was no longer living in the apartment she

previously rented. She had moved out earlier that month and moved in with a

cousin. Leal asserted that Monica had never been the named lessee where she lived

during the pendency of the suit.

      Leal testified that termination of Monica’s parental rights was in the

children’s best interest because, “within time frames, Mom is not able to protect

the children from the father,” “she still believes that the incident was an accident,”

and she is not “able to have stable housing.” Leal testified that this evidence

indicated that Monica could not “provide basic needs for the children.”

      Leal testified that the single-parent foster placement, in contrast, had

“always been on top of” the children’s needs and that the foster parent was well

bonded with the children. Leal testified that the foster placement was effectively

dealing with the children’s emotional reactions to visits with Monica, which she

described as Jorge expressing a desire not to visit with Monica and Andres having

post-visit nightmares. Leal testified that it would be “very detrimental for the boys”


                                         14
to leave their then-current foster home because they were “very bonded” to their

caregiver and “thriving.”

      The Child Advocates representative, Gonzalez, testified next. In his view,

Monica had not been truthful about her contact with Javier. On the day he observed

Javier jumping the fence, Monica told him that Javier had been at her home only

15 minutes, but Javier told him that he had been there for three hours.

      Gonzalez testified that termination of Monica’s parental rights was in the

children’s best interest because of Monica’s lack of protective capacity. He

explained that Monica had never been able to effectively answer his question of

how she might identify whether a future partner was abusing her children.

      Monica was the last trial witness. She requested that pictures be admitted

from one of her supervised visits with the boys. The pictures were admitted; they

show various bruises and marks on the boys’ bodies. Monica said that the boys

appeared to have been “beaten” while in DPFS’s care. She could not provide an

exact date the pictures were taken, and there were no follow up questions of any

witnesses about the photographs or the injuries depicted. However, we note that an

earlier DFPS report stated that the children had been moved from a foster home

based on non-specific “allegations.”

      Monica testified that she had had no contact with Javier since the single

video call. She said that she answered Javier’s call that day because she thought he


                                         15
was calling to say goodbye before his deportation. She testified that it had been a

“mistake” to accept his call. And she stated that she now knew to “always put the

children first” and that she would protect them.

       Monica was asked about her housing. She testified that she had recently

moved in with a female cousin because her previous home had had a problem with

its air conditioner. She offered a lease into evidence, but the trial court sustained

DFPS’s objection that the lease was irrelevant because Monica’s name was not

listed on it.

       At the conclusion of trial, the court terminated the parental rights of both

parents. The court found by clear and convincing evidence that Monica had met

the grounds for termination under three predicates: Subsection (D) (endangering

circumstances), Subsection (E) (endangering conduct), and Subsection (O) (failure

to comply with a court order setting forth requirements for return of children). See

TEX. FAM. CODE § 161.001(b)(1)(D), (E), (O). The court also found by clear and

convincing evidence that termination of Monica’s parental rights was in the

children’s best interest. See id. § 161.001(b)(2).

       Monica appealed.

                    Termination of Monica’s Parental Rights

       Monica challenges the legal and factual sufficiency of all predicate findings

and the best interest finding.


                                          16
A.    Standard of review

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

his or her children are constitutional interests “far more precious than any property

right.” Santosky v. Kramer, 

, 758–59 (1982); see In re M.S., 

 (Tex. 2003). A termination decree is final, irrevocable, and

permanently divests the parent of all legal rights, privileges, duties, and powers

with respect to the parent-child relationship except for the child’s right to inherit.

Holick v. Smith, 

 (Tex. 1985). We strictly scrutinize termination

proceedings and strictly construe the involuntary termination statutes in favor of

the parent. 

 However, “the rights of natural parents are not absolute” and “the

rights of parenthood are accorded only to those fit to accept the accompanying

responsibilities.” In re A.V., 

 (Tex. 2003). Recognizing that

parents may forfeit their parental rights by their acts or omissions, the primary

focus of any termination suit is protection of the child’s best interest. 

      Due to the severity and permanency of the termination of parental rights, the

State must prove its case by clear and convincing evidence. See TEX. FAM. CODE.

§ 161.001(b); In re J.F.C., 

, 263–64 (Tex. 2002). “‘Clear and

convincing evidence’ means 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 § 101.007. This is an


                                           17
intermediate standard that falls between “preponderance of the evidence” used in

ordinary civil proceedings and “reasonable doubt” used in criminal proceedings.

State v. Addington, 

 (Tex. 1979).

      This heightened burden of proof results in a heightened standard of review.

In re S.R., 

 (Tex. App.—Houston [14th Dist.] 2014, pet.

denied). Under this heightened standard, the “distinction between legal and factual

sufficiency lies in the extent to which disputed evidence contrary to a finding may

be considered.” In re A.C., No. 17-0477, 

, at *4 (Tex. Sept. 10,

2018). When the legal sufficiency of the evidence supporting the termination of

parental rights is challenged, “the reviewing court cannot ignore undisputed

evidence contrary to the finding, but must otherwise assume the factfinder resolved

disputed facts in favor of the finding.” 

 Evidence is legally sufficient if, viewing

the disputed and undisputed evidence in this manner, “a reasonable factfinder

could form a firm belief or conviction that the finding was true.” Id.; see In re

J.O.A., 

 (Tex. 2009); In re J.F.C., 96 S.W.3d at 265–66. If,

after conducting a legal sufficiency review of the record evidence, the court

determines that no reasonable factfinder could have formed a firm belief or

conviction that the matter to be proved was true, the court must conclude that the

evidence on that matter is legally insufficient. In re J.O.A., 283 S.W.3d at 344–45;

In re J.F.C., 

.


                                          18
      The reviewing court does not assume the factfinder resolved all disputed

facts in favor of its finding during a factual-sufficiency review; instead, the

reviewing court weighs the disputed evidence. In re A.C., 

, at

*4; see In re J.O.A., 

; In re J.F.C., 

. “In a

factual-sufficiency review, the appellate court must consider whether disputed

evidence is such that a reasonable factfinder could not have resolved it in favor of

the finding.” In re A.C., 

, at *4. “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 J.F.C.,

.

      We give due deference to the factfinder’s findings, and we cannot substitute

our own judgment for that of the factfinder. In re H.R.M., 

(Tex. 2006) (per curiam). The factfinder is the sole arbiter when assessing the

credibility and demeanor of witnesses. 

. We are not to “second-guess the

trial court’s resolution of a factual dispute by relying on evidence that is either

disputed, or that the court could easily have rejected as not credible.” In re L.M.I.,

 (Tex. 2003).

      A single predicate finding under Section 161.001(b)(1) of the Family Code

is sufficient to support a judgment of termination when there is also a finding that


                                         19
termination is in the child’s best interest. In re A.V., 

. Thus, if

multiple predicate grounds are found by the trial court, we will affirm on any one

ground because only one is necessary for termination of parental rights. See In re

T.G.R.-M., 

 (Tex. App.—Houston [1st Dist.] 2013, no pet.).

B.    Subsection (E) predicate finding on child endangerment by conduct

      Section 161.001(b)(1)(E) of the Family Code provides that parental rights

may be terminated if the parent has “engaged in conduct or knowingly placed the

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

emotional well-being of the child.” TEX. FAM. CODE § 161.001(b)(1)(E). Within

the context of Subsection (E), endangerment encompasses “more than a threat of

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

environment.” Tex. Dep’t of Human Servs. v. Boyd, 

 (Tex.

1987). To “endanger” means to expose a child to loss or injury or to jeopardize a

child’s emotional or physical health. Id.; see In re M.C., 

(Tex. 1996).

      It is not necessary to establish that a parent intended to endanger a child to

support termination under subsection (E). See In re M.C., 

. Nor

is it necessary to establish that the parent’s conduct was directed at the child or

caused actual harm; rather, it is sufficient if the parent’s conduct endangers the

child’s well-being. See Walker v. Tex. Dep’t of Fam. & Protective Servs., 312


                                        

, 617 (Tex. App.—Houston [1st Dist.] 2009, pet. denied). The

endangering conduct does not have to occur in the child’s presence. 

 The

conduct may occur before the child’s birth and either before or after the child’s

removal by DFPS. 

 A parent’s past endangering conduct may create an

inference that the past conduct may recur and further jeopardize the child’s present

or future physical or emotional well-being. See In re D.M., 

(Tex. App.—Fort Worth 2001, no pet.). “As a general rule, conduct that subjects a

child to a life of uncertainty and instability endangers the physical and emotional

well-being of a child.” In re R.W., 

 (Tex. App.—Fort Worth

2004, pet. denied).

      DFPS argues that Monica engaged in endangering conduct when she failed

to obtain medical attention for Andres between the first incident, on April 17,

2015, when he stopped breathing, and the second incident two days later. Monica

makes several arguments in response. First, she argues that there is no evidence

Javier had a history of violence or aggression that would have reasonably

supported any suspicion that Javier might have harmed the children if left in his

care. Nor, she argues, is there any evidence that he or she had ever harmed the

children. Second, she argues that all evidence indicates she had been at work when

Javier shook Andres, Javier had lied to her about harming Andres, and Andres had

appeared to be in good health when she and Celia saw him later that day.


                                        21
      But there also is evidence that Javier called Monica at work at 11:00 a.m. on

the day Andres was injured and told her that Andres had stopped breathing, turned

purple, and required CPR to begin breathing again. Officer Andrade’s notes from

his interview of Monica on April 20, 2015 recount her description of Javier’s

statements during their call. Monica told Andrade that Javier had said that Andres

“could not breath or cry and became purple and pale.” Javier also had told her that

he had performed CPR on Andres to get him to begin breathing again.

      Andres was two months old when this event occurred. By her own

description of Javier’s phone call, Monica understood that Andres had stopped

breathing long enough to turn purple and required CPR intervention to regain

necessary respiration. Despite knowledge of these serious developments, Monica

did not take Andres to the local hospital, urgent care facility, or the medical office

of his pediatrician, Dr. Rizvi, for evaluation.

      A reasonable factfinder could have formed a firm belief that a reasonable

parent would have obtained medical care for an infant who had stopped breathing

and required CPR to be revived.10


10
      Cardiopulmonary resuscitation is an emergency medical technique used when
      someone’s breathing or heartbeat has stopped. The record indicates that Javier was
      familiar with CPR because he had performed it on Jorge at some point in the past.
      The record is silent on the extent of Monica’s knowledge of CPR or the proper
      medical care that should follow its use. “Basic” first aid instruction requires that a
      CPR trained rescuer call 911 for emergency assistance within two minutes of
      beginning CPR. See, e.g., https://www.mayoclinic.org/first-aid/first-aid-cpr/basics/
                                            22
      The failure to provide appropriate medical care for a child may constitute

endangering conduct under Subsection (E). See In re J.I.G, No. 01-18-00023-CV,

, at *8 (Tex. App.—Houston [1st Dist.] July 3, 2018, no pet.)

(mem. op.) (concluding that parent’s “failure to provide appropriate medical care

constituted endangering conduct for purposes of subsection E”); In re H.M.O.L.,

No. 01-17-00775-CV, 

, at *13 (Tex. App.—Houston [1st Dist.]

April 6, 2018, pet. denied) (mem. op.); Smith v. Tex. Dep’t of Fam. & Protective

Servs., No. 01-09-00173-CV, 

, at *8 (Tex. App.—Houston [1st

Dist.] Dec. 3, 2009, no pet.) (mem. op.); Wyatt v. Dep’t of Fam. & Protective

Servs., 

 (Tex. App.—Houston [1st Dist.] 2006, no pet.). This is

true even if the parent did not cause the need for the medical treatment. Smith,

, at *7.

      Thus, a reasonable factfinder could have formed a firm belief that Monica’s

failure to obtain a medical evaluation or any medical care for her infant son, whom

she had been told had stopped breathing, met the standard for endangering

conduct, even if the factfinder accepted that Monica did not know what caused

Andres to stop breathing. See Wyatt, 

 (concluding that medical




      art-20056600. Monica did not pursue any medical care for two-month-old Andres
      until two days later, after Javier reported that Andres had stopped breathing again.

                                           23
neglect supported finding of endangerment of physical and emotional well-being

of child).

      Because the record contains legally and factually sufficient evidence to

support the trial court’s predicate finding under Subsection (E), we overrule

Monica’s second issue. Because we have concluded there was sufficient evidence

to support the Subsection (E) finding, we do not reach Monica’s challenge to the

trial court’s findings under Subsections (D) and (O).11 We turn next to the best

interest finding.

C.    Best interest finding

      In addition to a predicate violation, DFPS must establish by clear and

convincing evidence that termination is in the child’s best interest. TEX. FAM.

CODE § 161.001(b)(2). There is a strong presumption that the child’s best interest

will be served by preserving the parent-child relationship. In re J.F.C., 

; see TEX. FAM. CODE § 153.131(b). Because of the strong presumption that

maintaining the parent-child relationship is in the child’s best interest and the due

process implications of terminating a parent’s rights without clear and convincing

evidence that termination is in the child’s best interest, “the best interest standard


11
      Because we did not reach the issue challenging termination under Subsection (O),
      we also do not reach Monica’s fourth issue challenging the trial court’s ruling to
      exclude evidence related to that basis for termination, i.e., the lease Monica
      attempted to admit into evidence to demonstrate she had appropriate housing, or
      Monica’s fifth issue, raising a defense to termination under Subsection (O).
                                          24
does not permit termination merely because a child might be better off living

elsewhere. Termination should not be used to merely reallocate children to better

and more prosperous parents.” In re W.C., 

 (Tex. App.—Fort

Worth 2003, no pet.); see In re E.N.C., 

 (Tex. 2012).

      A factfinder may consider a number of factors to determine the child’s best

interest, including the child’s desires, the child’s present and future physical and

emotional needs, the present and future emotional and physical danger to the child,

the parental abilities of the people seeking custody, programs available to assist

those people in promoting the child’s best interest, plans for the child by those

people or by the agency seeking custody, the acts or omissions of the parent that

may indicate that the existing parent-child relationship is not appropriate, and any

excuse for the acts or omissions of the parent. Holley v. Adams, 

,

371–72 (Tex. 1976).

      The absence of evidence on some factors does not preclude a factfinder from

reasonably forming a strong conviction or belief that termination is in the child’s

best interest. In re C.H., 

 (Tex. 2002). The absence of evidence

cannot be used as if it were clear and convincing evidence supporting a termination

finding. In re E.N.C., 

. In some cases, undisputed evidence of

only one factor may be sufficient to support a finding that termination is in the

child’s best interest; in other cases, there could be “more complex facts in which


                                        25
paltry evidence relevant to each consideration mentioned in Holley would not

suffice” to support termination. 

 Our “best interest” analysis is not limited to

these Holley factors; other factors may be considered. Holley, 

.

       “A best-interest analysis may consider circumstantial evidence, subjective

factors, and the totality of the evidence as well as the direct evidence.” In re E.D.,

 (Tex. App.—San Antonio 2013, pet. denied). “A trier of fact

may measure a parent’s future conduct by his past conduct and determine whether

termination of parental rights is in the child’s best interest.” Id.

      1.     Children’s desires

      DFPS caseworker Leal testified that the children experienced negative

emotional reactions related to their visits with Monica. Jorge verbally expressed

that he did not want to visit Monica. Andres would experience nightmares after his

visits. These children are young, and their desires have not been clearly expressed;

however, this evidence tends to indicate that the children do not hold a desire to

return to their mother’s care.

      2.     Children’s present and future physical and emotional needs and
             danger

      An October 2015 DFPS report states that Jorge had developmental delays

when he first entered DFPS care. He was nonverbal and did not exhibit age-

appropriate motor skills. These delays may have been related, to an extent, to

Jorge’s premature birth, but a November 2016 DFPS report states that Jorge had

                                           26
shown notable improvement with intervention and therapy, especially after moving

to his second foster home. There is also evidence Jorge would benefit from

continued therapies. Likewise, Andres will require continued medical management

related to his diagnosis of Shaken Baby Syndrome and related epileptic seizure

activity.

       The degree to which Jorge improved while in DFPS’s care and receiving

therapy would support a rational factfinder’s determination that Jorge’s physical

needs were not being fully met before he entered DFPS care. Further, a rational

factfinder could have reasonably determined that Monica’s past inability to meet

Jorge’s developmental needs is indicative of her inability to provide for his

physical developmental needs in the future. See In re J.M.T., 

(Tex. App.—Houston [1st Dist.] 2017, pet. denied) (considering special needs of

child and evidence foster parent was actively meeting those needs in best-interest

analysis).

       3.    Parenting abilities of people seeking custody

       There is evidence that Monica failed to realize the seriousness of an infant’s

turning purple and requiring CPR. Further, there was evidence indicating that

Jorge’s developmental delays were not being adequately addressed before DFPS’s

involvement and the implementation of various therapies.




                                         27
        Leal testified that the then-current foster placement wanted to become a

permanent placement for Jorge and Andres. Leal said that the foster care provider

had “always been on top of” the children’s medical and emotional needs.

Additionally, she was well bonded with the children. In Leal’s professional

opinion, it would have been “very detrimental for the boys” to leave her care,

where they had been “thriving.”

        4.    Available programs for conservators to promote best interest of
              children

        Monica successfully completed the programs DFPS required of her. This

demonstrates a willingness to accept opportunities to develop parenting skills and

address therapeutic needs. See In re J.I.T., No. 01-17-00988-CV, 

, at *20 (Tex. App.—Houston [1st Dist.] June 27, 2018, no pet. h.) (mem.

op.).

        5.    Monica’s and DFPS’s plans for the children

        Monica’s testimony was brief on this topic. She stated that she lived with her

cousin in her cousin’s apartment and, if the children were returned to her, her

cousin “can rent this apartment to me.” She did not testify about the children’s

futures beyond meeting their basic housing needs.

        DFPS caseworkers testified that the boys’ foster placement wanted to be a

permanent placement for the boys. It is unclear if this testimony signaled that the

placement would seek to adopt the boys or only that she would permanently foster

                                          28
the boys. Regardless, the DFPS caseworker testified that it anticipated the

placement would be permanent. Further, according to the DFPS caseworker, the

foster placement had achieved a well-bonded relationship with the children, was

meeting their needs, and was providing an environment that allowed them to

thrive. This foster placement offered the ability to provide a safe, permanent home

for the boys.

      6.        Monica’s acts or omissions that may indicate that the existing
                parent-child relationship is not a proper one and any excuse for
                those acts or omissions

      Monica’s failure to appreciate Andres’s urgent need for medical care when,

at only two months of age, he had stopped breathing, is evidence indicating that the

parent-child relationship was not a proper one. See In re J.S.G., No 14-08-00754-

CV, 

, at *9–10 (Tex. App.—Houston [14th Dist.] May 7, 2009,

no pet.) (mem. op.) (determining that medical neglect of child supported

conclusion that termination was in best interest of child). Further, the status of

Jorge’s developmental delays while under her care compared to his improvements

after transitioning to foster care, further suggests that the parent-child relationship

was not proper because she was not fully providing for his needs.

      Monica relies on evidence that Javier lied to her about how Andres was

injured and on the lack of evidence indicating that Javier had ever injured either

boy in the past or had engaged in any act of family violence. She argues that,


                                          29
combined, these reasonably support her acceptance of Javier’s initial explanation

of what had occurred while Andres was in his care. But Monica admitted to

Andrade that Javier had told her by phone that Andres had stopped breathing,

turned purple, and required CPR. Even if Monica was reasonable in initially

believing Javier’s explanation of events, that does not negate the obvious need for

medical evaluation following an episode of infant CPR. A reasonable factfinder

could conclude that Monica’s understanding of the reason Andres stopped

breathing did not excuse her failure to obtain medical care for him.

      7.     Conclusion on best interests

      All but one of these Holley factors weighs, at least marginally, in DFPS’s

favor. After weighing the evidence as it relates to the Holley factors, we conclude

there is legally and factually sufficient clear and convincing evidence to support

the trial court’s best interest finding in favor of termination. Therefore, we overrule

Monica’s sixth issue. Having overruled her second issue with regard to the trial

court’s findings under Subsection 161.001(b)(1)(E) and this issue on best interests,

we affirm the trial court’s decree terminating Monica’s parental rights to Jorge and

Andres.




                                          30
D.    Conservatorship in light of termination

      In her seventh issue, Monica argues that there was legally and factually

insufficient evidence to support the trial court’s order appointing DFPS as

managing conservator of the children.

      When the parental rights of all living parents of a child are terminated, the

trial court must appoint a “competent adult, the Department of Family and

Protective Services, or a licensed child-placing agency as managing conservator of

the child.” TEX. FAM. CODE § 161.207(a); see In re D.K.W., Jr., No. 01-17-00622-

CV, 

, at *5 (Tex. App.—Houston [1st Dist.] Dec. 21, 2017, pet.

denied) (mem. op.). Conservatorship determinations are reviewed for an abuse of

discretion and will be reversed only if the decision is arbitrary and unreasonable. In

re J.A.J., 

 (Tex. 2007); In re A.C., 

 (Tex.

App.—Houston [1st Dist.] 2012, no pet.).

      An order terminating the parent-child relationship divests a parent of legal

rights and duties with respect to the child. See TEX. FAM. CODE § 161.206(b). Once

we overrule a parent’s challenge to an order terminating her parental rights, the

trial court’s appointment of DFPS as sole managing conservator may be considered

a “consequence of the termination.” In re D.K.W., Jr., 

, at *5

(quoting In re A.S., 

 (Tex. App.—Houston [14th Dist.] 2008,

pet. denied)).


                                         31
      Because we have overruled Monica’s challenge to the portion of the trial

court’s order terminating her parental rights, the order has divested Monica of her

legal rights and duties related to Jorge and Andres. See TEX. FAM. CODE

§ 161.206(b); In re D.K.W., Jr., 

, at *5. Therefore, Monica does

not have standing to challenge the portion of the order appointing DFPS as the

boys’ conservator. Id.; see E.A. v. Texas Dep’t of Fam. & Protective Servs.,

No. 03-15-00811-CV, 

, at *4 (Tex. App.—Austin Apr. 21,

2016, pet. denied) (mem. op.) (affirming termination of mother's parental rights

and holding that mother, who had been divested of her legal rights to child, could

not challenge conservatorship determination). We overrule Monica’s seventh issue.

                                    Conclusion

      We have concluded that sufficient evidence supports the trial court’s

predicate finding under Subsection (E), best-interest finding, and order termination

of Monica’s parental rights. Because the termination of Monica’s parental rights is

upheld, she does not have standing to challenge the designation of DFPS as the

children’s managing conservator.

      Therefore, we affirm.




                                             Harvey Brown
                                             Justice

                                        32
Panel consists of Justices Keyes, Massengale, and Brown.

Justice Brown, concurring, joined by Justice Keyes.




                                        33