




02-11-025-CV





















COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
 



 
 
NO. 02-11-00025-CV
 
 



In the Interest of E.P.C., 
A Child
 
 


 


 



 
 
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FROM THE 323rd
District Court OF Tarrant COUNTY
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OPINION
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On
this court’s own motion, we submitted this case en banc to resolve the conflict
among opinions of this court as to whether former family code section
263.405(i) prohibits us from reviewing an issue that was properly preserved for
appellate review in the trial court in compliance with the rules of civil and
appellate procedure.  As explained below, we reaffirm that former section
263.405(i) does not preclude our appellate review of those properly preserved
issues.


I. 
Introduction
Appellant
J.B.C. (Father) appeals from the trial court’s judgment terminating his
parental rights to his daughter E.P.C.  Father contends that the evidence is
legally and factually insufficient to support the trial court’s endangerment
and best interest findings.  Appellant A.L.A. (Mother) appeals from the trial
court’s judgment appointing the Texas Department of Family and Protective
Services (the Department) as E.P.C.’s permanent managing conservator.  Mother
argues in one issue that the evidence is legally and factually insufficient to
support the trial court’s best interest finding.  We affirm.
II. 
Background
Father
and Mother were married when E.P.C. was removed from them in October 2009, and
the couple remained together at trial in September and October 2010.
Officer
Loe Wiggins of the Fort Worth Police Department testified that she was
dispatched to an apartment complex at about 5:00 p.m. on October 5, 2009.  A
maintenance man had found E.P.C., approximately ten and one-half months old,
alone in an apartment.  The apartment manager had called Father, who had stated
that he was picking up Mother and would return shortly.  He was delayed, and
the apartment manager called him again.  The apartment manager also called the
police.
When
Officer Wiggins arrived at the apartment complex office, Mother was holding
E.P.C., who was not crying, and Father had not yet arrived.  Mother told
Officer Wiggins that she had been out looking for work since 10:30 a.m. and had
left E.P.C. with Father.  She called Father to come pick her up, but E.P.C. was
not with Father when he arrived to pick up Mother.  Father said that the baby
had finally gotten to sleep after crying all day, and he had not wanted to wake
her, so he left her in the apartment alone.
Officer
Wiggins testified that she contacted the Department because E.P.C. had been
abandoned in the home.  Officer Wiggins opined that leaving a child who is not
yet one year old alone in an apartment endangered the child’s physical and
emotional well-being.  She admitted that she saw no visible injuries on the
child and that the child appeared healthy, clean, and free of disabilities.  Officer
Wiggins also acknowledged that she did not visit the couple’s apartment.
Department
investigator Callie Reynolds testified that the Department received a call that
same day, October 5, 2009, and that the allegation was that E.P.C. had been
left alone in the apartment for at least two hours.  Father told her that
E.P.C. had fallen asleep, but he was not sure when.  He did not want to wake
her, so he left her sleeping and drove to the Irving Wal-Mart, where Mother had
been grocery shopping.  He also looked for some tires at Wal-Mart.  Reynolds
testified that Father told her that he then received the call about the baby,
and he and Mother left Wal-Mart to go home.  He dropped Mother off at the
apartment complex office while he went to the apartment to unload groceries.
Father
told Reynolds that he worked nights but was home during the day with E.P.C.  He
tested positive for amphetamines but denied any drug use or being on any meds,
and the Department did not send his oral swab to a laboratory for further
testing.  Father told Reynolds that he was estranged from his own mother, and
Father and Mother told Reynolds that they had no family members to whom they
felt close.
Reynolds
also testified about discrepancies in the parents’ stories:  (1) Mother had
said that she called Father to pick her up at 3:00 p.m., not 4:00 p.m.; (2) Mother
had said that they were changing a tire when the manager called, but Father had
said that he was looking at tires at Wal-Mart; and (3) Mother had said that she
never leaves the child with Father and that “she didn’t have a life” and never
left the home, but Father claimed that he watched E.P.C. often.  Reynolds also testified
that the apartment complex employees’ story differed from that of the parents.  The
maintenance man found E.P.C. at 3:00 p.m.  He waited until 3:15 p.m. in the
apartment and then took her down to the office, and an apartment manager
contacted Father at that time.  Police were called at 4:57 p.m.  Mother arrived
at the apartment office at 5:00 p.m.
Reynolds
was concerned primarily because E.P.C. had been left alone but also because Father
showed absolutely no remorse.  The Department removed E.P.C. from her parents
that night.  Reynolds stated that Mother was very upset about the removal but
that Father appeared to be concerned only about whether he would lose his job.
Reynolds
took the baby back to her office, where they stayed for a couple of hours.  Reynolds
was concerned about the baby’s small size for her age.  But E.P.C. did not
appear to have been battered; there were no bruises, swelling, or visible
breaks.  When changing E.P.C.’s diaper, Reynolds noticed that the bones in the
baby’s back were visible.  Reynolds testified that E.P.C. was developmentally
delayed, in that she was not able to roll over or crawl despite being over ten
months old.  She also could not push up.  During that two-hour period, E.P.C.
gulped down two eight-ounce bottles of formula “as if she had not eaten in a
long period of time.”  Reynolds admitted, however, that the baby had been in
the apartment office for at least six hours and that she did not know whether
E.P.C. had been fed during that time.
Reynolds
testified that Mother appeared to be appropriately bonded to, and appeared to
show affection for, E.P.C.  Reynolds further testified that she did not believe
that Mother had any part in the decision to leave E.P.C. alone in the
apartment.
Amanda
Rogers, a Department investigator, testified that she accompanied E.P.C. to her
first medical visit at Cook Children’s Hospital on October 6, the day after the
removal.  Rogers was concerned that E.P.C. was very small for her age, and
Rogers could feel some of E.P.C.’s ribs as she held the baby during the medical
assessment.  Rogers said the bones were visible when E.P.C. was unclothed.  Additionally,
Rogers, like Reynolds had the night before, noted that E.P.C. was literally
gulping her food, so they “continued to allow her to eat, because she appeared
[to be] still hungry.”  Rogers was concerned that E.P.C.’s hunger was not “just
from her not eating for maybe that morning or the night before” but was “maybe
something that had been happening more than once.”  Rogers was also concerned
that the baby so quickly formed “a kind of bond” with her, a stranger.  Rogers
testified that the examining nurse practitioner spoke to E.P.C.’s primary care
provider, Dr. Goh, who told the nurse practitioner that E.P.C.’s “growth and
weight were on the downward trend as far as where she should be for her age”
but that they were not off the charts.
Eight
days after the removal, Rogers visited Mother and Father’s home.  Rogers
observed fourteen cans of baby formula but no baby food.  The absence of food
concerned Rogers because of the child’s age, developmental level, and size.  On
that same day, Rogers supervised a parent-child visit.  She was concerned that
the child had “kind of a flat [a]ffect” when interacting with her parents and
felt that the baby was more attached to her, a virtual stranger, than to her
parents.  Rogers testified that Mother would hand the child to Father but that
Father would quickly give the child back to Mother.  Rogers also testified,
however, that Mother appeared to interact appropriately with the child.
Nicole
Weber, another Department investigator, was also assigned to the case the day
after the removal.  In her interview with Mother that day, Weber learned that
Mother had been raised by her grandparents and had little contact with her
parents.  Mother had last spoken with her mother a few months before the
removal and has no contact with her father.  Mother said that her father had
abused alcohol and drugs when she was a child and that he had been physically
and mentally abusive toward her, breaking her nose in one incident.  She also
told Weber that there had been domestic violence between her parents during her
childhood and that they had a history of Department intervention.  Weber
testified that there had been Department cases with Mother as the victim as
recently as 2006 and 2007 with her parents as the alleged perpetrators and 2008
regarding her relationship with Father.[1]  Weber also testified
that Mother had been removed from her parents and placed in foster care.  Mother
did not indicate that she wanted E.P.C. placed with either of her parents.
Mother
denied alcohol and drug abuse and any history of mental illness and stated that
she was not employed but was looking for a job.  Mother told Weber that she and
Father had been married since February 2009.  Mother said that she had had a normal
pregnancy and delivery and that E.P.C. had no medical conditions.  Mother also
told Weber that she and Father had never left E.P.C. alone before and that he
occasionally watched the baby during the day while she looked for work.
Weber
testified that Father told her that he had been raised by his mother and
stepfather and denied being abused or neglected as a child, but Father stated
that he no longer had contact with his mother.  Later, Weber testified that
Father had told her that he had suffered emotional abuse at the hands of his
mother when he was a child.  He denied drug or alcohol abuse, domestic
violence, and any mental health issues.  He told her that he was employed as a
security guard, that he had known Mother his whole life, and that they had
married in February 2009.
P.C.,
the child’s former foster mother, testified that E.P.C. arrived at her home
about 11:30 p.m. on October 5, 2009.  P.C. said that she took E.P.C. to the
doctor a few days later and that the baby weighed only 15.1 pounds.  P.C. said
that “the doctor was very concerned because [E.P.C.] was underdeveloped and
underweight for someone her age.”  P.C. described E.P.C.’s physical and
developmental health:
She seemed very thin
at the time. . . .  When you would hold her up against your chest, you could
feel her -- her spine and her ribs were very prominent at the time.  Her
waistline was very small also compared to some of the babies we had had in our
home as well.
 
. . . .
 
She ate like a little
pig.  Excuse my language, but she was so hungry.  And she would just -- she
loved everything that was given to her, cereal, her fruits.  It’s like she
couldn’t get enough.  And it seemed like once we started giving her food, she
just started to blossom tremendously.  Her teeth started coming in, her hair
was getting fuller, and she was getting much more active.
 
. . . . 
 
She was so starved
for -- she -- she was so hungry, is what I mean to say.  It’s like she was -- she
tried different things, different foods, and seemed to like everything we
offered her.  And a few months down the line, I believe it was in November, I
will have to double check, she started on table foods, and really progressed
well.
 
. . . .  
 
When we first got
her, she couldn’t even crawl.  And the doctor noticed that, because he set her
up on the table and he was looking at her.  And she -- she was trying to get
up, but it’s like she didn’t quite have the energy to get up there or the
strength to get up there yet.  And so he was -- he was quite concerned.
 
P.C.
testified that Early Childhood Intervention Services (ECI) evaluated E.P.C. on
October 28, 2009, and then two therapists began treating her two or three times
a week, working with motor skills, balance, and crawling until the following
January.  Included in E.P.C.’s records from the pediatrician’s office is an
October 28, 2009 document, titled “Home Health Certification and Plan of Care,”
that provides that his principal diagnoses of E.P.C. were “lack of
coordination,” “muscle weakness,” “failure to thrive,” “[u]nspecified delay in
development,” and “delayed milestones.”  A month after her arrival in foster
care, E.P.C. could still wear a dress sized three to six months even though she
was almost twelve months old, but she was wearing clothes sized twelve to
eighteen months by the time she left.  By the time E.P.C. left that foster home
in mid-February 2010, she had begun taking steps and had gained weight, at
least four pounds in the first two months.
E.P.C.’s
medical records show that her weight at birth on November 21, 2008, was seven
pounds and four ounces.  At her three-month checkup, she weighed twelve pounds
and two ounces.  At her six-month checkup, she weighed fifteen pounds.  At her
nine month checkup, she still weighed fifteen pounds.  On October 12, 2009, a
week after removal, she weighed fifteen pounds and one ounce.
E.P.C.
quickly gained weight once she was living in foster care.  On October 27, 2009,
about three weeks after her removal, she weighed seventeen pounds.  On November
6, 2009, E.P.C. weighed seventeen pounds and six ounces.  On December 2, 2009,
she weighed nineteen pounds and one and one-half ounces.  On January 11, 2010,
she weighed twenty-one pounds and eleven ounces.  On March 3, 2010, she weighed
twenty-four pounds and five ounces.  Finally, at her eighteen-month checkup,
she weighed twenty-five pounds.
Father’s
mother, B.M., testified that Father did not live with her until he was fifteen
or sixteen years of age because she had relinquished her rights soon after his
birth, and he was adopted.  B.M. adopted him when he was a teenager after his
former adoptive parents relinquished their rights.  He told her that he had
been sexually abused during his childhood by members of his former adoptive
family, as a teenager in an incident at a lake, and during one of his multiple
stays at a mental hospital.  B.M. also testified that she and Father had had a
sexual relationship for about twenty-five years, which ended only because he
began a dating relationship with Mother, his first cousin once removed on his
mother’s side.  B.M. also testified that Father had hit her hard in the head
and had pushed a large wooden table into her abdomen near the beginning of his
relationship with Mother.
Quentin
Dean Little testified that Father and Mother had lived in his house from April
2008 until approximately June 2008.  He testified that Mother, who was
pregnant, “was dirty.  She never picked up anything, never cleaned up
anything.  She always had to have somebody do it for her.  She was waited on
hand and foot. . . . [I]t was a total mess.”  He also testified that another
friend, Patrick, lived in the house at the same time.  Patrick had Asperger’s
syndrome.  Little testified that he saw Mother slap Patrick.  Little testified
that he would be concerned about Mother’s ability to parent because Father
always took care of everything and because she “t[ook] care of nothing.”  He
further testified that she had been given an orphaned baby rabbit to care for,
that his wife had taught her how, that he never saw Mother feed the baby
rabbit, and that it died within two days.  Little also testified that, after
E.P.C.’s birth, he had seen Mother and Father without E.P.C. at Father’s
worksite and at Wal-Mart as many as eight times.
Little
testified that he had known Father and B.M. for approximately ten years.  Little
also testified that he lived in B.M.’s house for approximately three months and
that B.M. told him about her prior sexual relationship with Father in March
2009 or 2010 at her husband’s funeral.  Little denied having any sexual
relationship with B.M., but he testified that Father approached him at B.M.’s
husband’s funeral and accused him of sleeping with B.M.
Julie
Little, Quentin Little’s wife, testified that Mother “didn’t take care of
herself, [Father] was the one taking care of her.  She wouldn’t get up and take
a bath, she wouldn’t help clean anything, she was taking things out of [Julie’s]
room and hiding them underneath the couch kind of like a child would do.”  Julie
stated that Father would “make [Mother] get in the bathtub and he would bathe
her.”
Julie
also testified that Mother neglected and mistreated animals:
[Mother would] just
abus[e] my dog.  I found, you know, I came home one day and his ears were bleeding,
and, of course, she had been mean to him previously, and it’s like she claims
she loved him, but she would turn around and kind of be rough with him, and I
had to take him to the vet probably the next month because his ears wouldn’t
stop bleeding.
Julie
admitted that she had not seen Mother hurt the dog but stated that the vet had
said that someone had kicked the dog in his ear, and Mother was the only one at
home with him.  Julie confirmed that she had shown Mother how to take care of
the baby rabbit but that Mother would not feed it even though the bottle “was
right next to her where she was l[ying].”
Julie
also testified that she saw Mother “pushing [Patrick] up against the brick wall
and beating on him.  She smacked him in the face a couple of times and then
beat him in his chest and told him he was sorry and retarded and stupid.”  Julie
stated that Patrick left about two weeks before Father and Mother moved out
because “he was terrified of [them].  They kept on calling him names and [Mother]
would claim he was googly-eyeing her, so [Father] would get all offensive and
tie him to a chair and make him sit in the corner or -- you know, it was
childish stuff.”
Linda
Phillips, the Department caseworker, testified that she first met with the
parents eleven days after the removal and discussed the family service plan
with them.  Phillips was concerned because the parents had to be told to allow
the child to drink juice during visitations and because although they brought a
blanket and some toys, they never brought food to the visits.  When Phillips
went for a home visit, Mother would not let her see the master bedroom and told
her that E.P.C. had “no business” being in there.
Randy
Waters, a Special Investigator with the Department, testified that he
interviewed Father privately after a parent-child visit.  When Waters told
Father that he knew that Father had a Department history other than that
involving Mother, Father acknowledged that he had formerly been adopted.  He
told Waters that he had been placed in two church homes as a child because his
adoptive family no longer wanted him.  Waters testified that he had information
that Father had assaulted his first adoptive mother and had broken a window,
resulting in one of the church home stays.  Father told Waters that the
allegations were not true.  Father told Waters that his adoptive mother had
thrown a knife at him and had punched him in the mouth and that one of his
adoptive parents had knocked him out.  When Waters asked Father about his stays
at Terrell State Hospital, Father said that the Department had sent him there
after removing him from his first adoptive home because the Department had no
other place to put him.  Father denied that he had been placed there because he
had hurt people and pulled a knife on a child.  He also denied that he had been
sent to Terrell another time for setting a fire and exhibiting physical
violence toward a teacher.  After Father was discharged from Terrell, he was
placed in a group home from which he eventually ran away.  He told Waters that
he went back home for a few days, his first adoptive mother pulled a knife on
him, and then he met and began staying with his birth mother, B.M.
Father
denied to Waters that anyone had sexually abused him, except that Father
claimed that B.M. had reached into his lap and touched him one time.  Even
though Father denied having a sexual relationship with his mother, he told
Waters that B.M. had told Mother that he and B.M. had engaged in a sexual
relationship because B.M. wanted to break up Mother and Father.  Father also
told Waters that Little and B.M. had a sexual relationship, and he showed
Waters a picture of Little in a bed that Father claimed was B.M.’s.
Waters
also interviewed Mother.  She admitted that she had engaged in self-mutilation,
cutting, while still a minor and showed him scars on her left arm.  She denied
purposely letting the baby rabbit die while living with the Littles.  She
stated that she and Father had left E.P.C. with relatives in Arkansas for a
couple of weeks when the baby was two months old.  Mother also told Waters that
E.P.C. was with a baby sitter when Mother was seen with Father at his worksite.
Dr.
Nichelle Wiggins, a clinical psychologist, testified that she performed
psychological evaluations of both parents.  She testified that Father told her
that he was raised by his parents, grandparents, an aunt, and an uncle.  He
told her that he had a typical childhood and denied any abuse or mental health
issues.  Father also denied that he had ever exhibited assaultive or aggressive
behavior.  Dr. Wiggins administered a series of tests, and she concluded that
Father is pretty intelligent but that he “is in a great deal of denial.”  She
described him as “extremely defensive.”  When asked if the knowledge that he
had been in a twenty-five-year incestuous relationship with his mother would
concern her, she replied,
That would certainly
speak volumes to one’s -- the effect it would have on his emotional
functioning, the way he interacts with other people in his relationships, like
with his wife. It could impact his parenting because of lack of boundaries that
he had learned and been modeled for him. It could affect him on so many levels
and the people that he comes in contact with, so certainly that would be
significant information.
She
also stated that his marrying his first cousin once removed would go along with
his problem of “lack of boundaries.”  She stated that, if left unresolved,
issues with boundaries and attachment in a parent could put a child at risk:
Well, you’ll see
neglect, and severe neglect, so leaving a child home alone would be an example
of that.  I’ve seen where children who are neglected when there are severe
attachment issues, they may not develop at a healthy rate compared to other
children their age because they’re not receiving the stimulation, whether it’s
emotional, physical, or even nutritional-wise, so it can affect a child’s
overall well-being if there is neglect.
When
asked if a parent experiencing such issues would fail to recognize that a child
was failing to thrive, she responded,
Now, that happens
quite a bit with people who are in total denial. Everybody else will see that
child and say that child is just too thin, and that person can’t see it, and it’s
usually denial.  That’s one of the things I noticed in his psychological:  Denial,
minimization, and repression, so when one uses those types of defenses on a
regular basis, it can keep them from seeing where there is a need to take
action and do something different, even if that means their child is severely
malnourished and too thin.  They may not see it that way.
Wiggins
administered the same tests to Mother.  Wiggins concluded that Mother was also
in denial and repressing her feelings and that Mother tried to present herself
in a positive light.  Wiggins stated that Mother’s physical responses (turning
red and crying) indicated that she “was not sharing everything that was going
on.”  She testified that Mother was not sharing very much and that “it’s
difficult to help someone when they will not open up and allow you to help
them.”  Wiggins said that while Mother spoke of being abused and eventually
disclosed that she had been sexually abused, Wiggins did not believe that Mother
had resolved those issues.
Wiggins
said that Mother had never been able to live independently and that she has
dependent personality traits.  Wiggins also testified that Mother’s lack of
structure has made it difficult for her to know how to impose structure and had
led to her making poor decisions that put her child and herself at risk.  Wiggins
stated that Mother had a lack of insight and understanding that seemed to
contribute to her poor decisions.  When asked whether her assessment was
consistent with a parent whose child has failure to thrive, Wiggins replied,
“Sure.  For a young mother who doesn’t have someone there to help her and guide
her, sure.  I mean, that’s not uncommon.”  When asked whether a child would be
safe when parented by someone with unresolved child abuse and mental health
issues, Wiggins replied,
No, not -- if there
is aggression towards animals, people, and that person is not admitting that
they have problems that they need to address and want to address, then who is
to say that a child would not become a victim?  I mean, I wouldn’t know, but
the probability does increase that abuse can happen or neglect if you have
those types of issues unaddressed.
Wiggins
testified that Mother admitted that she had a limited support system.
Jessica
Juarez, the CASA advocate, stated that she had seen E.P.C. approximately twice
a month since January 2010.  Juarez testified that E.P.C. is doing very well in
her current foster home and is very healthy, sweet, content, and easy-going.  She
is bonded with her foster family and comfortable in her foster home.  The
foster parents would be interested in adopting her if she were available.  Juarez
opined that the foster parents could meet E.P.C.’s needs and provide her with a
safe and loving home.  Father and Mother did not testify.
After
the bench trial, the trial court found that both parents (1) engaged in conduct
or knowingly placed E.P.C. with persons who engaged in conduct which endangered
her physical or emotional well-being and (2) knowingly placed or knowingly
allowed E.P.C. to remain in conditions or surroundings which endangered her
physical or emotional well-being.  The trial court also found that termination
of the parent-child relationship between Father and E.P.C. would be in the
child’s best interest and terminated the parent-child relationship between them. 
But the trial court found that termination of the parent-child relationship
between Mother and E.P.C. was not in E.P.C.’s best interest and denied
termination of that relationship.  The trial court also found that the
appointment of either parent as E.P.C.’s managing conservator would not be in
her best interest because the appointment would significantly impair her
physical health or emotional development; found that the Department had “made a
diligent effort to locate . . . a relative of the parent and afford [him or
her] a reasonable opportunity to request appointment as managing conservator”;
found that the appointment of the Department as permanent managing conservator
was in E.P.C.’s best interest; and so appointed the Department.
III. 
Standards 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, 455 U.S. 745, 758–59, 102 S. Ct. 1388, 1397
(1982); In re M.S., 115 S.W.3d 534, 547 (Tex. 2003).  “While parental
rights are of constitutional magnitude, they are not absolute.  Just as it is
imperative for courts to recognize the constitutional underpinnings of the
parent-child relationship, it is also essential that emotional and physical
interests of the child not be sacrificed merely to preserve that right.”  In
re C.H., 89 S.W.3d 17, 26 (Tex. 2002).  In a termination case, the State
seeks not just to limit parental rights but to erase them permanently—to divest
the parent and child of all legal rights, privileges, duties, and powers
normally existing between them, except for the child’s right to inherit.  Tex.
Fam. Code Ann. § 161.206(b) (West 2008); Holick v. Smith, 685
S.W.2d 18, 20 (Tex. 1985).  We strictly scrutinize termination proceedings and
strictly construe involuntary termination statutes in favor of the parent.  Holick,
685 S.W.2d at 20–21; In re R.R., 294 S.W.3d 213, 233 (Tex. App.—Fort
Worth 2009, no pet.).
In
proceedings to terminate the parent-child relationship brought under section
161.001 of the family code, the petitioner must establish one ground listed
under subsection (1) of the statute and must also prove that termination is in
the best interest of the child.  Tex. Fam. Code Ann. § 161.001 (West Supp.
2012); In re J.L., 163 S.W.3d 79, 84 (Tex. 2005).  Both elements must be
established; termination may not be based solely on the best interest of the
child as determined by the trier of fact.  Tex. Dep’t of Human Servs. v.
Boyd, 727 S.W.2d 531, 533 (Tex. 1987); In re D.T., 34 S.W.3d 625,
629 (Tex. App.—Fort Worth 2000, pet. denied) (op. on reh’g).
Termination
decisions must be supported by clear and convincing evidence.  Tex. Fam. Code
Ann. § 161.001; see also id. § 161.206(a).  Evidence is
clear and convincing if it “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.”  Id. § 101.007 (West 2008).  Due process demands this
heightened standard because termination results in permanent, irrevocable
changes for the parent and child.  In re J.F.C., 96 S.W.3d 256, 263
(Tex. 2002); see In re J.A.J., 243 S.W.3d 611, 616 (Tex. 2007)
(contrasting standards for termination and modification).
In
evaluating the evidence for legal sufficiency in parental termination cases, we
determine whether the evidence is such that a factfinder could reasonably form
a firm belief or conviction that the grounds for termination were proven.  In
re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005).  We review all the evidence in
the light most favorable to the finding and judgment.  Id.  We resolve
any disputed facts in favor of the finding if a reasonable factfinder could
have done so.  Id.  We disregard all evidence that a reasonable
factfinder could have disbelieved.  Id.  We consider undisputed evidence
even if it is contrary to the finding.  Id.  That is, we consider
evidence favorable to termination if a reasonable factfinder could, and we
disregard contrary evidence unless a reasonable factfinder could not.  Id.
We
cannot weigh witness credibility issues that depend on the appearance and
demeanor of the witnesses, for that is the factfinder’s province.  Id. at
573, 574.  And even when credibility issues appear in the appellate record, we
defer to the factfinder’s determinations as long as they are not unreasonable. 
Id. at 573.
In
reviewing the evidence for factual sufficiency, we give due deference to the
factfinder’s findings and do not supplant the judgment with our own.  In
re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006).  We determine whether, on the
entire record, a factfinder could reasonably form a firm conviction or belief
that the parent violated subsections (D) or (E) of section 161.001(1) and that
the termination of the parent-child relationship would be in the best interest
of the child.  Tex. Fam. Code Ann. § 161.001; C.H., 89 S.W.3d at
28.  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
in the truth of its finding, then the evidence is factually insufficient.  H.R.M.,
209 S.W.3d at 108.
IV. 
Father’s Appeal
Father
argues in one issue that the evidence is legally and factually insufficient to
support the trial court’s endangerment and best interest findings.
A. 
Father’s Statement of Points for Appeal
In
2008, in an en banc decision, this court held that former family code section
263.405(i) is “void as a violation of the separation of powers provision of the
Texas constitution.”  In re D.W., 249 S.W.3d 625, 645 (Tex. App.—Fort
Worth) (en banc), pet. denied, 260 S.W.3d 462 (Tex. 2008) (per curiam). 
Specifically, we held in D.W. that section 263.405(i)
is void because it
violates the Separation of Powers Clause of the constitution to the extent that
it forecloses our power to review issues properly preserved for appeal because
the statute unduly interferes with our substantive power as an appellate court
to rehear and determine issues on the merits that were decided in the court
below.
 
Id. at
640; see also In re A.J.M., No. 02-11-00137-CV, 2012 WL 2877457,
at *1 (Tex. App.—Fort Worth July 16, 2012, no pet. h.) (op. on reh’g) (en
banc).[2]  Thus, if an issue was
properly preserved for appellate review in the trial court in compliance with
the rules of civil and appellate procedure, section 263.405(i)
unconstitutionally interferes with our constitutionally conferred power to
review the issue on the merits on appeal.  D.W., 249 S.W.3d at 640, 645;
see A.J.M., 2012 WL 2877457, at *1.
In
this case, Father’s first issue is properly before us.  Father was not required
to raise his legal and factual sufficiency complaints in the trial court to
preserve them for appellate review because the case was tried to the bench.  See
Tex. R. App. P. 33.1(d) (“In a nonjury case, a complaint regarding the legal or
factual insufficiency of the evidence . . . may be made for the first time on
appeal in the complaining party’s brief.”).  Thus, this court’s holdings in A.J.M.
and D.W.—that former section 263.405(i) violates the Separation of
Powers Clause of the Texas constitution—require that we address Father’s legal
and factual sufficiency challenge on its merits.  See A.J.M., 2012 WL
2877457, at *1; D.W., 249 S.W.3d at 640, 645.
B.  Endangerment
Findings
We
turn now to Father’s legal and factual sufficiency challenge to the trial
court’s endangerment and best interest findings.
1. 
Statutory Endangerment
“Endanger”
means to expose to loss or injury, to jeopardize.  Boyd, 727 S.W.2d at
533; In re J.T.G., 121 S.W.3d 117, 125 (Tex. App.—Fort Worth 2003, no
pet.).  Under section 161.001(1)(E), the relevant inquiry is whether evidence
exists that the endangerment of the child’s physical well-being was the direct
result of the parent’s conduct, including acts, omissions, or failures to act.  See
J.T.G., 121 S.W.3d at 125; see also Tex. Fam. Code Ann. §
161.001(1)(E).  Additionally, termination under (E) must be based on more than
a single act or omission; the statute requires a voluntary, deliberate, and conscious
course of conduct by the parent.  J.T.G., 121 S.W.3d at 125; see
Tex. Fam. Code Ann. § 161.001(1)(E).  It is not necessary, however, that
the parent’s conduct be directed at the child or that the child actually suffer
injury.  Boyd, 727 S.W.2d at 533; 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.  Boyd, 727 S.W.2d at 533; In re R.W.,
129 S.W.3d 732, 738 (Tex. App.—Fort Worth 2004, pet. denied).
2. 
Discussion
Father
admittedly left ten-month-old E.P.C. alone in the apartment while he drove to
pick up Mother from the store.  The evidence is conflicting as to how long
E.P.C. was alone in the apartment, but Reynolds testified that the apartment
maintenance worker found E.P.C. at 3:00 p.m. and that Mother arrived at the
apartment office at 5:00 p.m.  There is also evidence that Father shopped for
tires after leaving E.P.C. alone and that an hour and a half passed between the
time of the first call to Father and the time Mother arrived at the apartment
office to retrieve E.P.C.  Reynolds also testified that Father showed no
remorse about leaving E.P.C. alone and appeared to worry more about possibly
losing his job.  Father’s act of leaving ten-month-old E.P.C. alone in the apartment
endangered E.P.C.’s physical well-being.  See Tex. Fam. Code Ann. §
161.001(1)(E); see also In re S.M.L., 171 S.W.3d 472, 477 (Tex. App.—Houston
[14th Dist.] 2005, no pet.) (stating that “a child is endangered when the
environment or the parent’s course of conduct creates a potential for danger
which the parent is aware of but disregards”).  Moreover, the trial court heard
additional conflicting evidence that Mother and Father had been seen in public
without E.P.C. as many as eight other times.  See In re H.R., 87 S.W.3d
691, 698–99 (Tex. App.—San Antonio 2002, no pet.) (holding evidence legally
sufficient and noting, among other things, that the appellant left the child in
the care of a nine-year-old cousin while she went out drinking).
In
addition to leaving E.P.C. unsupervised, the trial court heard evidence that
E.P.C. was very small for her age and that the bones in her back were visible.  Mother
mentioned having occasionally used a baby sitter to watch E.P.C., but Mother
and Father were E.P.C.’s primary caregivers.  Mother and Father had taken
E.P.C. to the doctor regularly, but her “growth and weight were on the downward
trend as far as where she should be for her age,” even though they were not off
the charts.  E.P.C. weighed only fifteen pounds and one ounce a week after
removal.  E.P.C. gained two pounds in the next two weeks and a total of four
pounds in the two months after removal.  E.P.C. also gained another two pounds
by January 2010.  The medical records reflect that shortly after removal,
E.P.C. was diagnosed with muscle weakness, lack of coordination, delayed
milestones, unspecified delay in development, and failure to thrive.  See In
re T.T.F., 331 S.W.3d 461, 484 (Tex. App.—Fort Worth 2010, no pet.)
(discussing child’s failure to thrive diagnosis and holding sufficient evidence
supported endangerment finding under subsection (E)).
Father
attempts to separate and minimize the distinct acts of leaving E.P.C.
unattended and not providing her with sufficient nutrition, but Father’s arguments
merely point to conflicts in the evidence.  We must leave the resolution of
those conflicts to the factfinder.  See id. (citing J.P.B., 180
S.W.3d at 573).  Moreover, Father’s argument actually highlights that the
Department presented evidence that E.P.C. was exposed to a course of conduct
while living with Father, not a single act or omission, that course of conduct
involving both the failure to provide E.P.C. with proper nutrition and leaving
her home alone on numerous occasions.
Viewing
all the evidence in the light most favorable to the termination judgment, and
disregarding all contrary evidence that a reasonable factfinder could
disregard, we hold that the evidence is legally sufficient to support a
factfinder’s firm conviction or belief that Father engaged in conduct that
endangered E.P.C.’s physical or emotional well-being.  See Tex. Fam. Code
Ann. § 161.001(1)(E); J.P.B., 180 S.W.3d at 573; In re S.G.S.,
130 S.W.3d 223, 238 (Tex. App.—Beaumont 2004, no pet.).  Likewise, giving due
deference to the factfinder, we hold that the evidence is also factually
sufficient to support the trial court’s finding that Father engaged in conduct
that endangered E.P.C.’s physical well-being.[3]  We therefore overrule
this part of Father’s sole issue.
C. 
Best Interest Finding
There
is a strong presumption that keeping a child with a parent is in the child’s
best interest.  In re R.R., 209 S.W.3d 112, 116 (Tex. 2006).  Prompt and
permanent placement of the child in a safe environment is also presumed to be
in the child’s best interest.  Tex. Fam. Code Ann. § 263.307(a) (West
2008).  In determining the best interest of the child, the trier of fact in a
termination case may use the following factors:
(A)        
the desires of the child;
 
(B)     the
emotional and physical needs of the child now and in the future;
 
(C)     the
emotional and physical danger to the child now and in the future;
 
(D)     the
parental abilities of the individuals seeking custody;
 
(E)     the
programs available to assist these individuals to promote the best interest of the
child;
 
(F)     the
plans for the child by these individuals or by the agency seeking custody;
 
(G)     the
stability of the home or proposed placement;
 
(H)     the
acts or omissions of the parent which may indicate that the existing
parent-child relationship is not a proper one; and
 
(I)      any
excuse for the acts or omissions of the parent.
 
Holley
v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976) (citations omitted). 
These factors are not exhaustive; some listed factors may be inapplicable to
some cases; other factors not on the list may also be considered when
appropriate.  C.H., 89 S.W.3d at 27.  Furthermore, undisputed evidence
of just one factor may be sufficient in a particular case to support a finding
that termination is in the best interest of the child.  Id.  On the
other hand, the presence of scant evidence relevant to each factor will not
support such a finding.  Id.
E.P.C.
is too young to have expressed any desire concerning the termination of
Father’s parental rights.  Mother and Father had taken E.P.C. to the doctor
regularly for checkups, and she did not have any visible injuries and was clean
and appropriately dressed at the time of removal. However, Father admittedly
left ten-month-old E.P.C. alone in the apartment, and Reynolds testified that
Father showed no remorse for having done so.  In addition, E.P.C. was diagnosed
with failure to thrive and was noted to have muscle weakness, lack of
coordination, unspecified delay in development, and delayed milestones.  There
is also evidence that E.P.C. had “kind of a flat [a]ffect” when interacting
with her parents at a visitation eight days after removal, bonded easily with
strangers, became very attached to each of her foster families, and excelled
since being placed into foster care.  The trial court also heard testimony that
Father only interacted briefly with E.P.C. at visitations and would quickly
give the child back to Mother.  Father completed his service plan, but there is
evidence that he was not particularly forthcoming during the process and should
have learned more than what he did from working services.
In
addition, Father is estranged from his mother, and there is evidence that he
may have engaged in an incestuous relationship with his mother for twenty-five
years.  Father denied having had any such relationship with his mother, but the
trial court heard evidence that Father physically confronted Quentin Little,
accusing him of having an intimate relationship with his mother, and that
Father told Julie Little about the incestuous relationship before she learned
of the relationship from B.M.  The trial court also heard testimony that Father
had physically assaulted his mother as recently as 2008, that Father has a
history of physically assaultive behavior, and that he was exposed to sexual
and physical abuse as a child.
Father,
however, represented to Dr. Wiggins that he had a typical childhood, denying
any abuse or mental health issues.  Dr. Wiggins testified that Father is
intelligent but that he is extremely defensive and has a “great deal of denial.”
 She also described how Father’s relationship with B.M. “could affect him on so
many levels,” including problems with a lack of boundaries and attachment
disorders.  Dr. Wiggins opined that Father had not dealt with these issues and
that they could lead to his failure to recognize neglect—such as leaving a
child home alone or failing to feed and nurture the child—and prevent him from bonding
with his own children.
Viewing
the evidence in the light most favorable to the finding and judgment, we
conclude that the evidence is such that the factfinder could reasonably form a
firm belief or conviction that termination of Father’s parental rights is in E.P.C.’s
best interest.  See J.P.B., 180 S.W.3d at 573.  We also conclude,
viewing all the evidence in a neutral light, that the factfinder could
reasonably form a firm conviction or belief that termination is in E.P.C.’s
best interest.  See H.R.M., 209 S.W.3d at 108.  We therefore hold that
the evidence is legally and factually sufficient to support the trial court’s
best interest finding, and we overrule the remainder of Father’s sole issue.
V. 
Mother’s Appeal
In
one issue, Mother contends that the evidence is legally and factually
insufficient to support the trial court’s finding that the appointment of the
Department as E.P.C.’s permanent managing conservator is in the child’s best
interest.
A. 
Applicable Law
The
Supreme Court of Texas has explained,
Section
153.002 provides that the primary consideration in determining issues of
conservatorship and possession of and access to the child is always the child’s
best interest.  Section 153.005 authorizes the appointment of a managing
conservator, and provides that the managing conservator must be “a parent, a
competent adult, an authorized agency, or a licensed child-placement agency.” 
The Code creates a rebuttable presumption that a parent will be named a child’s
managing conservator, unless the court finds that such appointment would not be
in the child’s best interest “because the appointment would significantly impair
the child’s physical health or emotional development.” . . .
.
. . . 
.
. . [T]he quantum of proof required to support a termination decision differs
from the level necessary to support a conservatorship appointment.  Termination
decisions must be supported by clear and convincing evidence.  Due process
compels this heightened standard because terminating the parent-child
relationship imposes permanent, irrevocable consequences.  On the other hand, a
finding that appointment of a parent as managing conservator would
significantly impair the child’s physical health or emotional development is
governed by a preponderance-of-the-evidence standard.  These differing proof
standards, in turn, affect the method of appellate review, which is more
stringent for termination decisions than for those regarding conservatorship.  In
evaluating the factual sufficiency of evidence supporting termination, an
appellate court must consider “whether the evidence is such that a factfinder
could reasonably form a firm belief or conviction about the truth of the State’s
allegations.”  Legal-sufficiency review is similarly heightened when parental
rights have been terminated. Conservatorship determinations, in contrast, are
subject to review only for abuse of discretion, and may be reversed only if the
decision is arbitrary and unreasonable.  Because different standards apply,
evidentiary review that results in reversal of a termination order may not
yield the same result for a conservatorship appointment.  As we have said, a “finding
that must be based on clear and convincing evidence cannot be viewed on appeal
the same as one that may be sustained on a mere preponderance.”
J.A.J.,
243 S.W.3d at 614–16 (citations omitted).
In
light of this recent explanation by the Supreme Court of Texas of the different
standards of review for termination and conservatorship, we decline Mother’s
entreaty that we apply a heightened standard to the trial court’s
conservatorship determination in this case.  Instead, as we explained a few
years ago,
The
trial court has wide latitude in determining the best interests of a minor
child.  We will reverse the judgment of the trial court only when it appears
from the record as a whole that the court has abused its discretion.  A trial
court abuses its discretion if it acts arbitrarily and unreasonably or without
reference to guiding principles.  An abuse of discretion does not occur as to
factual matters as long as some evidence of a substantive and probative
character exists to support the trial court’s decision.  Legal and factual
sufficiency are not independent grounds for review in conservatorship cases,
but they are relevant factors in deciding whether an abuse of discretion
occurred.  In determining whether there has been an abuse of discretion because
the evidence is legally or factually insufficient to support the trial court’s
decision, we engage in a two-pronged inquiry:  (1) Did the trial court have
enough information upon which to exercise its discretion; and (2) did the trial
court err in applying its discretion?  The traditional sufficiency review comes
into play with regard to the first question.  With regard to the second
question, we determine, based on the elicited evidence, whether the trial court
made a reasonable decision.
.
. . . 
A
court’s primary consideration in any conservatorship case shall always be the
best interest of the child.  Courts may use the nonexhaustive list of Holley
factors to determine the child’s best interest. . . .
In
re W.M., 172 S.W.3d 718, 724–26 (Tex. App.—Fort Worth 2005, no
pet.) (citations omitted).  Because the Holley factors are set forth
above, we do not repeat them here, but we apply them in deciding whether the
trial court abused its discretion by finding that the appointment of the
Department as E.P.C.’s permanent managing conservator is in E.P.C.’s best
interest.  See id. at 725–26.
 
B. 
Discussion
Reynolds
testified that Mother appeared to be appropriately bonded to and to show
affection for E.P.C.  Rogers similarly testified that Mother appeared to interact
appropriately with the child.  The trial court also heard testimony that Mother
successfully completed her service plan and that Mother did not have any part
in the decision to leave E.P.C. alone in the apartment.  However, Mother does
have responsibility for E.P.C.’s failure to thrive diagnosis because the
evidence establishes that Mother was one of E.P.C.’s primary caretakers.
There
is also evidence of Mother’s occasionally callous behavior toward others. 
Quentin Little testified that he saw Mother slap Patrick, the man with
Asperger’s syndrome who was living at the Littles’ home when Mother and Father
lived there, and Julie Little testified that she had seen Mother push, hit, and
verbally abuse Patrick.  In addition, there is evidence that Mother allowed a
baby rabbit to die after begging the Littles to keep it and promising to care
for it and that Mother abused the Littles’ family dog.
Mother
has also not ever been able to live independently and has dependent personality
traits, and her lack of structure causes her to make poor decisions that put
herself and her child at risk.  Dr. Wiggins opined that Mother’s condition was
consistent with someone whose child had been diagnosed as failure to thrive.  Mother
is not close with her family and does not have anyone other than Father to help
her care for the child.  She also has been the victim of physical and mental
abuse through her childhood.  Mother also admitted having self-mutilated.  Dr.
Wiggins testified that Mother has not addressed the issues from her childhood
and that she has repressed those feelings.
The
evidence presented to the trial court is obviously conflicting, but we do not
resolve the conflicts, for that is within the factfinder’s province.  We thus
hold that the trial court had sufficient information upon which to exercise its
discretion and did not abuse its discretion by naming the Department as
E.P.C.’s permanent managing conservator.  See W.M., 172 S.W.3d at 725. 
We therefore overrule Mother’s sole issue.
VI. 
Conclusion
Having
overruled Father’s and Mother’s respective issues, we affirm the trial court’s
judgment.
 
                                                                             ANNE
GARDNER
JUSTICE
 
EN BANC
 
DAUPHINOT, J., filed a concurring opinion.
 
WALKER, J., filed a concurring opinion, in
which GABRIEL, J., joins.
 
DELIVERED:  August 30, 2012
 
 








 
 














COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
 



 
 
NO. 02-11-00025-CV
 
 



In the Interest of E.P.C.,
A Child
 
 


 


 



 
----------
FROM THE 323rd
District Court OF Tarrant COUNTY
----------
CONCURRING
OPINION
----------
I
agree with the majority’s conclusion that the trial court did not abuse its
discretion by appointing the Texas Department of Family and Protective Services
as E.P.C.’s permanent managing conservator.  I further agree that the trial
court’s judgment should be affirmed.  But for the reasons expressed in my
dissenting and concurring opinion in In re A.J.M.,[4] I
believe that J.B.C. (Father) forfeited his conclusory sufficiency issue.
In
his sole issue, Father contends that the evidence is legally and factually
insufficient to support the trial court’s endangerment and best interest
findings.  In his timely-filed statement of points, Father stated,
A new trial should be
granted to [Father] because the evidence is legally and factually insufficient
to support this Court’s judgment.  Specifically, the evidence is legally and
factually insufficient to support this Court’s judgment in that the State
produced insufficient evidence to justify the termination of [Father’s]
parental rights.
Former
section 263.405(i) provided that “a claim that a judicial decision is contrary
to the evidence or that the evidence is factually or legally insufficient is
not sufficiently specific to preserve an issue for appeal.”[5]  Based on the reasoning of my 
 
 
 
 
dissenting
and concurring opinion in In re A.J.M.,[6]
I believe that Father forfeited his issue.
 
LEE ANN DAUPHINOT
JUSTICE
 
DELIVERED:  August 30, 2012
 
 








 








 
 














COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
 



 
 
NO. 02-11-00025-CV
 
 



In the Interest of E.P.C.,
A Child


 


 




 




 


 


 



 
----------
FROM THE 323rd
District Court OF Tarrant COUNTY
----------
CONCURRING
OPINION
----------
I
concur in the majority opinion’s disposition of this appeal.  For the reasons
set forth in my concurring opinion in In re A.J.M., No. 02-11-00137-CV,
2012 WL 2877457, at *10–12 (Tex. App.—Fort
Worth July 16, 2012, no pet.) (op. on reh’g) (en banc) (Walker, J.,
concurring), I would hold that Father waived his sole issue on appeal by not
including that issue in his statement of points and also by not making an
as-applied challenge to former Texas Family Code section 263.405(i).  See
Act effective Sept. 1, 2005, 79th Leg., R.S., ch. 176, § 1, 2005 Tex. Gen. Laws
332, 332 (adding subsection (i), requiring statement of points, to section
263.405 of the family code), repealed by Act effective Sept. 1, 2011,
82nd Leg., R.S., ch. 75, §§ 5, 8, 2011 Tex. Gen. Laws 348, 349 (deleting
subsection (i) but noting that former section 263.405 remains in effect for
final orders rendered before September 1, 2011).  Accordingly, I would affirm
the trial court’s termination order.  Because the majority opinion affirms the
trial court’s termination order on different grounds, I respectfully concur.
 
 
SUE WALKER
JUSTICE
 
GABRIEL, J., joins.
DELIVERED:  August 30, 2012




 
 




[1]At the time of the 2008
referral (which was later ruled out), Mother was seventeen years old, and
Father was forty years old.  Mother and Father were married in February 2009.


[2]Section 263.405(i) was
repealed effective September 1, 2011, but it technically applies in this case
because the trial court signed the judgment before September 1, 2011.  Litigants
whose parental rights are terminated by final orders rendered on or after that
date need no longer file statements of points.


[3]Along with a best interest
finding, a finding of only one ground alleged under section 161.001(1) is
sufficient to support a judgment of termination.  In re E.M.N., 221
S.W.3d 815, 821 (Tex. App.—Fort Worth 2007, no pet.).  We thus need not address
the trial court’s section 161.001(D) finding.  See id.; see also
Tex. R. App. P. 47.1.


[4]See No. 02-11-00137-CV, 2012 WL
2877457, at *12–14 (Tex. App.—Fort Worth July 16, 2012, no pet. h.) (op. on
reh’g) (en banc) (Dauphinot, J., dissenting and concurring).


[5]Act effective Sept. 1,
2005, 79th Leg., R.S., ch. 176, § 1, 2005 Tex. Gen. Laws 332, 332 (adding
subsection (i), requiring statement of points, to section 263.405 of the family
code), repealed by Act effective Sept. 1, 2011, 82nd Leg., R.S., ch. 75,
§§ 5, 8, 2011 Tex. Gen. Laws 348, 349 (deleting subsection (i) but noting that
former section 263.405, including subsection (i), is still in effect for final
orders rendered before September 1, 2011).


[6]See 2012 WL
2877457, at *12–14.


