      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        ON REHEARING



                                       NO. 03-12-00487-CV



                                   J. M. and A. G., Appellants

                                                  v.

                Texas Department of Family and Protective Services, Appellee


      FROM THE DISTRICT COURT OF HAYS COUNTY, 207TH JUDICIAL DISTRICT
          NO. 2011-1242, HONORABLE WILLIAM HENRY, JUDGE PRESIDING



                              MEMORANDUM OPINION


                Our opinion and judgment dated April 19, 2013, are withdrawn, and this opinion is

substituted in their place.

                In June 2011, the Texas Department of Family and Protective Services filed a petition

seeking custody of father J.M. and mother A.G.’s children, T.M. and A.M., based on allegations that

the children were being neglected and that T.M. was being abused. The Department also sought

custody of H.M., a daughter born the day the Department filed its petition. At the time of trial,

son T.M. was four and one-half years old, daughter A.M. was three and one-half years old, and H.M.

was not quite one year old. The Department asserted that T.M., who had numerous physical and

developmental problems, had been injured while in his parents’ care, sustaining in three separate

incidents a broken arm, a cut over his eye that required ten stitches, and a black eye. The Department
alleged that several witnesses were concerned that J.M. was abusive or at least neglectful of

T.M. and was endangering him through his erratic behavior and use of alcohol. Although earlier

allegations of neglect and abuse had been ruled out, the Department was concerned because both

J.M. and A.G. had prior arrests for marihuana possession, J.M. had undergone treatment for

cocaine addiction and continued to use alcohol and marihuana, and J.M. had difficulty controlling

his temper and was verbally aggressive. T.M. was placed in a therapeutic foster home where he

could receive appropriate medical care, and A.M. and H.M. were placed together in another foster

home. After eleven months, the Department sought termination instead of reunification, and a jury

trial was held in May 2012. The jury determined that J.M.’s and A.G.’s parental rights should be

terminated and that termination was in the children’s best interest, and the trial court signed a final

order in accordance with those findings.

                Both J.M. and A.G. appeal, attacking the sufficiency of the evidence to support

termination under section 161.001(1)(D) or (E), the statutory grounds relied upon for termination.

J.M. also argues that the evidence is insufficient to show statutory grounds for the termination of his

rights or to support the jury’s findings that termination was in the children’s best interest, that J.M.

had the required mental state, or that the Department should be appointed managing conservator.

We affirm the trial court’s final order of termination.


                                     Summary of the Evidence

                Amanda Tolleson testified that she worked as T.M.’s night nurse for about two and

one-half years, helping the family from 8:00 p.m. to 6:00 a.m. Tolleson was with the family during

A.G.’s pregnancies with A.M. and H.M., and she formed a personal relationship with J.M. and A.G.

                                                   2
and spent time with them outside of work. Tolleson testified that she smelled marihuana on J.M.

occasionally and that she witnessed him use it “a couple of times.” She never saw other drugs in the

house. Tolleson said J.M. “drank on a daily basis” and had a very high tolerance for alcohol. She

did not believe his marihuana or alcohol use influenced his behavior or endangered the children.

               When Tolleson started working with the family, T.M. was on a ventilator and could

not breathe on his own, was deaf, could not take anything by mouth, could not sit on his own, and

could not speak. T.M. later came off the ventilator and needed oxygen periodically, and Tolleson

said J.M. “was knowledgeable of [T.M.]’s medical needs and how to provide for them.” Tolleson

testified that the parents got training in early childhood intervention and were instructed to gently

push T.M. to teach him balance and how to fall without injuring himself.

               Tolleson testified that for most of the time she was with the family, J.M., who was

unemployed, was the primary caregiver and would clean up the children’s toys, give them baths,

change diapers, feed them, and care for their needs. Tolleson said that the house was filthy and that,

although J.M. tried to clean up or do some dishes, “it was out of hand.” Tolleson never saw A.G.

help clean, and J.M. sometimes called A.G. lazy or threatened to leave because of it.

               Tolleson’s impression of J.M. as a father was that he “wasn’t very loving, didn’t

seem to have a bond with [T.M. and A.M.], verbally and physically abusive.” Tolleson testified that

J.M. “would yell and be verbally—he would make inappropriate verbal commands,” although she

did not think T.M. could hear J.M.’s yelling. She believed J.M. was abusive with the way he signed

at T.M. but admitted that she knows very little sign language. Although Tolleson was “fearful” of

J.M., she never saw him strike the children with his fists. She did, however, see marks on T.M. that



                                                  3
she believed were caused by being spanked with a belt, and during her time with the family, Tolleson

said she saw daily or weekly “aggravation”:


       just spanking for different reasons, grabbing them by the foot to pick them up, you
       know, upside down, hanging upside, throw—throwing them into the baby bed, you
       know, from the doorway, maybe, however they landed. Just things like that. Just
       constantly aggravating, just—you know, the squeezing, the hitting—throwing things
       at them, hitting them in the head with toys.

       You know, sometimes he’d just sit there and just bang [T.M.] in the head with a toy,
       no matter how hard it was, just to do it until [T.M.] would crawl away. But just—it
       was just a constant aggravating, a constant doing something to—pick on him, it
       seemed like. You know, push him over, kick him out of the way . . . grab him, push
       him down when he was pulled up on furniture.


               When asked why she feared for the children’s safety, Tolleson said, “Same thing:

punishing them when nothing is happening; spanking them over doing it; throwing them into the baby

bed from the doorway; knocking them down; hitting them with objects; spanking them with belts.”

               Tolleson testified that A.G.’s interaction with the children was minimal but never

abusive. A.G. never advocated for the children or defended them against J.M.’s abuse, however,

and Tolleson testified that A.G. usually ignored the children and “would sleep most of the time or

watch television.” Tolleson admitted that she was only present with A.G. and the children for about

two hours in the evenings before the children went to bed, and she did not know how A.G. behaved

during the rest of the day, other than hearing complaints from J.M.

               Tolleson testified that when T.M. injured his head and needed stitches, J.M. explained

that he had been using his foot to push T.M. in his rocking chair when he pushed too hard, causing

T.M. to fall into a piece of furniture and cut his head; A.G. was not at home at the time. Tolleson



                                                 4
was asked about an instance when she saw significant bruising on T.M.’s face, body, and leg, and

she said J.M. told her that T.M., who was about two years old at the time, had wrenched his arm out

of J.M.’s hand and had fallen or thrown himself onto the rocks in the driveway. Finally, Tolleson

testified that when T.M. broke his arm, J.M. and A.G. gave conflicting stories about how it

happened, although both parents explained that T.M. had fallen on his arm. J.M. said T.M. started

to fall and stuck his arm out, but Tolleson was skeptical because T.M. lacked that reflex and was

undergoing therapy to learn it. She said one of the therapy exercises was “to push him forward so

he would learn . . . to try to catch himself,” and that before learning that reflex, T.M. would simply

fall and “would always have a knot on the back of his head or his forehead.” Tolleson testified that

after T.M. broke his arm, she asked A.G. “when it was going to stop,” and A.G. said he “was never

going to be normal”; Tolleson was not sure whether A.G. was referring to T.M. or to J.M.

                As for J.M.’s treatment of A.M., Tolleson saw J.M. interact with A.M. “in a positive

way from time to time that didn’t turn into a negative situation.” Tolleson said that A.M. used to be

very happy to see J.M. and would run up to hug him, but that “things would just get out of hand”

because J.M. would take his rough play too far. Tolleson testified that the first day A.M. came home

from the hospital as an infant, J.M. threw her “up in the air into the ceiling fan,” held her by her foot,

and “maybe hugg[ed] her too tight,” and Tolleson thought J.M. was trying to get a reaction from

her and A.G. When A.M. was about one year old, Tolleson noticed that A.M. would “beg” during

meals, and that J.M. “would hit her, push her back onto the ground and, you know, tell her she was

begging or tell her, Down. And she’d throw herself down, or she’d just close her eyes and wouldn’t

open them for a long time.” Tolleson further testified that she saw A.M. with a black eye three times



                                                    5
but was not present when they occurred; one time J.M. and A.G. told Tolleson that A.M. fell,

and another time they said T.M. hit her in the face with a toy. Tolleson was skeptical because of her

observations of the way T.M. played and his strength.

               Tolleson testified that she took photographs of some of T.M.’s bruises and

made notes about bruises she saw on the children, but she did not discuss those incidents with her

fellow nurses beyond notes in her reports for the nurse who followed her shift. She did not “document

inappropriate punishment. That’s not part of a nursing assessment,” nor did she show her photographs

to the other nurses because they might tell the family, who “would get rid of me. And then who

would [T.M.] have there?”

               Tolleson’s friend Crystal Lucas testified that she met J.M. and A.G. when Tolleson

asked if Lucas and her husband would help move the family into a new house. A.G. was about

seven months pregnant with H.M. at the time, and J.M. was not present. Lucas testified that she

could not go inside the house from which the family was moving because “[t]he smell from cat

feces, dog feces was unbearable.” Lucas said at one point she saw A.M. reach for A.G., seeking

to be picked up. A.G. leaned down, and A.M., who was about one and one-half or two years old,

“dropped to the ground as if she was—like as if her mother was going to strike her.” She “dropped

down to her knees and then just fell forward onto the ground and just—like, she laid there.”

               Vea Hodo, a nurse who worked the day shift for the family for about eleven months,

testified that in her time at the house, J.M. and A.G. usually woke between 9:30 and 11:00 a.m. She

also testified that neither parent helped care for T.M. after Hodo arrived at about 6:00 a.m., leaving

all of his care to Hodo. Hodo initially also tried to take care of A.M. in the morning because she



                                                  6
usually had a wet diaper and was hungry, but her parents were not yet awake. J.M. and A.G. insisted

that Hodo stop, saying that if she changed A.M.’s diaper, she would cry to be fed. Hodo said J.M.

and A.G. “did not want to be bothered with her,” so they told Hodo to leave A.M. alone.

               Hodo testified that the house was “a pigsty. It was filthy. Most of the time, there was

dirty dishes in the sink, food all over the kitchen, a litter box overflowing in the bathroom, dust

everywhere. There was dried dog poop under the rocking chair in the kids’ bath—bedroom.” She

said the dirtiness of the house was not temporary, but was a “way of life.” Hodo testified that she

would not eat anything out of the kitchen and that when she used the bathroom, she cleaned the toilet

before using it. Hodo’s job required her to clean and sterilize T.M.’s medical supplies, but the sink

was usually full of dirty dishes, so Hodo used the bathroom sink, a small tub from the hospital, or

another container, using her own soap to wash her hands and clean the supplies. Hodo testified that

there were so many fleas in the house that she had to spray repellent on her arms or legs to avoid

being bitten. Hodo testified that in her opinion as a nurse and parent, the house was not in proper

condition to raise two small children. Hodo also testified that she saw a “water bong pipe and a glass

pipe” in the house and that J.M. once told her he would fail a drug test if he had to take one.

               Hodo saw very little affection between A.G., J.M., and the children unless a therapist

was present, they were at a doctor’s appointment, or there was “someone to impress,” and J.M.

called T.M. “stubborn,” “stupid,” and “retard.” Hodo remembered only two instances when she

saw J.M. have a loving interaction with T.M., and she said A.G. did not show any “motherly instinct

toward the children.” Hodo never saw either parent read to T.M. or try to help him learn to spell and

said that when T.M. began attending preschool when he was three, he “just blossomed,” learned to



                                                  7
interact with other children, signed more, and learned to walk with his walker. Hodo said that

although she was fearful of J.M., she stayed with the family for almost a year because she loved

taking care of T.M. and felt the children needed some love and attention.

               When Hodo was asked about the parents’ explanations for T.M.’s injuries, she

testified that J.M. and A.G. gave her three different explanations for how T.M. cut his head. She also

testified that after that incident, T.M. appeared to be frightened of J.M. and, when J.M. entered a

room, “would immediately move towards me, sit between my feet, climb up on the couch beside me.

He would stop doing whatever he was doing and just freeze. And it—he quit sitting in his rocking

chair. If he was in the rocking chair, as soon as [J.M.] came in the room, he would immediately get

out of it and sit on the floor or—or scoot over next to me.” Hodo also said she was given different

explanations about how T.M. broke his arm. Finally, when asked about the incident in which J.M.

claimed T.M. wrenched his hand away and threw himself face first onto the driveway, Hodo said

J.M.’s explanation was inconsistent with her observations of T.M.’s behavior.

               Aside from those discrepancies, she was also skeptical of the parents’ explanations

because T.M., when he fell backward “always landed on his bottom” and lacked the reflex to put his

hands out to catch himself. At the time he broke his arm, the nurses and parents were doing physical

therapy to teach him to catch himself, but “it was just impossible for me to imagine him catching

himself falling backwards.” Hodo never saw T.M. pull away or throw himself down and she

testified that he could not stand or walk unassisted and was a “very, very cautious child” who would

not hurt himself. She noted that T.M. was injured on weekends when no nurse was present and said,

“I just don’t believe that—that these things could have happened the way that they said they did.”

                                                  8
                Hodo was asked about her thoughts on the children being returned to J.M. and A.G.’s

care, and she said:


        My fears is that [sic] it will start all over again; that the—it’s a—to me, it’s a Doctor
        Jekyll/Mr. Hyde cycle. It will just, you know, be nice for just a little bit, and then
        something will happen. And, boom, we’ll be right back where we—where we were.
        And whether—like the every-month-and-a-half cycle of [T.M.] being hurt.


                Jennifer Rochelle, A.M. and H.M.’s foster mother, testified that when A.M. first came

to live with the Rochelle family, she had anxiety at bedtime, “crying and sobbing.” A.M. also “did

a lot of self-harming,” banging her head, biting herself, scratching at her eyes. For the first six months,

A.M.’s behavior changed when she had visits with her parents:


        In the beginning, she changed behavior. Before, she would cry and get anxious and
        start the stuff before. About January [about five months before trial], those behaviors
        stopped before. But consistently through the behavior after the visits, she always
        regressed. She would regress in her language, she would regress in her behaviors,
        and she would start up some of the self-harming, you know, if we had reached a point
        where she would stop.


That kind of behavior would usually last about forty-eight hours after a visit, but “once the visits

have stopped, we haven’t seen any of those behaviors.”

                Rochelle said that A.M. was having difficulty with toilet training, saying, “[T]he

biggest wall that we’re having is she does not feel when she’s wet or poopy in a diaper or a Pull-up.

And we’ve really come to believe that she’s desensitized to it.” A.M. had made good progress with

speech therapy and reading and had recently gotten glasses to assist her with a vision impairment.

Rochelle and her husband hope to adopt the girls, plan to continue the girls’ relationship with T.M.,

and are open to the girls having a continuing relationship with their biological grandparents.

                                                    9
                Sally McWithey, the children’s court-appointed special advocate, had been involved

with the children for about ten months. She said that T.M. was in a medical foster home with two

adults and three other children, one of whom also has special needs, and that his foster mother is a

nurse. McWithey observed many of the parents’ weekly visitations and saw a lack of supervision

and heard the parents have conversations with the children that were “adult conversations that should

not have been discussed with the children.” McWithey testified that A.G. “is just kind of there. Not

a whole lot of interaction,” but that J.M. was loving and appropriate and “always plays with the kids

a lot and seems to take care of the diaper situation and the runny noses and all that.”

                McWithey went to A.G. and J.M.’s house twice. On her first visit, she noticed a

“horrible” septic smell, large gaps in the home’s skirting, and a missing front step. On the second

visit, the exterior problems had been fixed, but the floor inside was filthy, the walls were dirty, there

was a hole in an interior wall as if someone had kicked it, and the baby bed was dirty. She believed

the house was dirty enough to affect the children’s health or safety.

                McWithey did not believe that the parents had changed very much in response to the

services they had completed and said “there’s a lot of irresponsibility on—on their part.” She had

not seen the progress described by the parents’ therapist in the areas of “[r]esponsibility, maturity,

providing,” and did not “feel like they had progressed where they should have to be getting these

children back.” McWithey said that although J.M. had not expressed anger at her, he was “a very

angry person.” She did not have a specific example of the lack of progress she saw with his anger

management but said, “You know, I mean, kind of like you just—when you talk to somebody and

you go, There’s something here just isn’t—it just isn’t—isn’t right.” McWithey believed it was



                                                   10
in the children’s best interest for the parents’ rights to be terminated and for their current foster

families to adopt them.

               Gloria Olivo-Mendoza, the family’s Department caseworker, testified that the

Department changed its goal from reunification to termination because of reports by the parents’

therapist, progress reports on the children’s behavior and conditions, and notes from the protective

parenting class the parents attended. She also testified that J.M. or A.G. had not taken responsibility

for T.M.’s injuries, which she believed they inflicted. The Department was concerned that the children

were particularly vulnerable because of T.M.’s special needs and all of their young ages.

               Olivo-Mendoza testified that A.G. and J.M. maintained contact with her throughout

the case, worked the required services, attended their scheduled visits, and took required drug

tests, all with negative results. J.M. asked her what more he could do and complied with most of

the Department’s requests, although he had not maintained steady employment. Olivo-Mendoza

believed that the parents’ original therapist had moved “beyond the realm of becoming—of being

a therapist,” so she asked the parents to change therapists. The parents had complied, but their new

therapist could not testify because she had not had enough time to form an opinion.

               Olivo-Mendoza testified that J.M.’s “anger issue was one of the major things that was

a risk and a safety issue for the children.” Olivo-Mendoza sometimes had difficulty approaching and

dealing with A.G. and J.M. and said, “If [J.M.] had engaged in anger management, I think that would

not have been the case.” She was asked whether her dealings with J.M. improved over time, and she

answered, “There were times that it was better, but I can’t say that I saw a drastic change, no.” For

example, Olivo-Mendoza said J.M. reacted angrily to her suggestion that H.M., an infant, be placed



                                                  11
to sit on a mat rather than a concrete floor, in case she tipped over. She also testified that J.M. was

not particularly attentive to the children, saying, “We felt we needed to see—observe more the

engaging of the parent/child bond. We were not visibly seeing that.” She acknowledged that her

observations and concerns were different than McWithey’s. Olivo-Mendoza also testified that the

Department’s records showed inconsistencies between Tolleson’s testimony and her earlier statements

to a Department investigator.

               Father J.M. was twenty-seven at the time of trial. He testified that in 2005, he

completed a four-week program to stop using cocaine and methamphetamine. He had used cocaine

twice since rehabilitation, but not since T.M. was born. J.M. admitted to “sporadic” marihuana use

before the children were removed, last used it about two years before trial, and said marihuana and

cocaine were never in the house during T.M.’s lifetime.

               J.M. was at one time diagnosed with bipolar disorder and/or borderline personality

disorder, and his more recent evaluations determined that he suffered from situational anxiety and

moderate, situational depression. J.M. had been undergoing therapy in the year since the children

were removed, and he and A.G. had also undergone couples therapy. J.M. admitted he had an “anger

problem” and said he had always been “a high-stressed, high-strung person. I have kind of what’s

described by my therapist as an explosive type temper.” He said his temper would sometimes

“escalate very quickly to the point of just being furious” and admitted he had twice gotten so angry

during arguments with A.G. that he punched a hole in a wall or door.

               Since 2007, J.M. had held a number of jobs, including door-to-door sales, working

for a staffing service and a convenience store, selling plasma, and seeking work through a “day



                                                  12
labor place.” He was a full-time student from November 2010 to July 2011, when he finished his

education as a medical assistant, but he had been unable to find employment in that field. In the year

since the children were removed, J.M. had a job for about three months, but at the time of trial, he

was unemployed and looking for a job.

               J.M. testified that T.M. was born with “a congenital diaphragmatic hernia, which is

a hole in the diaphragm and—in which the intestines and stomach were actually into the top body

cavity, pressing on the left side of his lungs and deviated his heart to the right.” T.M. had to have

a tracheostomy to assist his breathing and a gastrointestinal tube, and he was on a ventilator at the

beginning of his life. He also received cochlear implants in both ears.

               J.M. testified that T.M. had trouble supporting himself with his legs and lacked the

reflex to catch himself. T.M. got ankle/foot orthotics to help him stand, and J.M. and A.G. were told

to work with T.M. on his balance by pushing him to the side or to the front so he would learn balance

and how to catch himself with his hands. T.M. did not like it when he was pushed “to the point of

not wanting to do it or laying down, throwing a fit,” and J.M. said T.M. threw “fits” when he did not

want to do something by throwing himself on the ground and banging his head until he got a knot

or a red mark on his forehead.

               J.M. testified that he sometimes pushed T.M. to work harder and that he believed

some of the nurses babied T.M. He said he wanted “to see [T.M.] for what he could be and not use

his disability as a reason not to achieve what I knew that he could.” He admitted that he “made

comments saying that I thought that [T.M.] may have been retarded because he was showing—I was

just concerned. He wasn’t—he wasn’t able to talk. He was showing a lot of signs of autism. I used



                                                 13
the word ‘retarded’ because I was ignorant. It was the only way that I knew to express it.” He also

said he said something “along the lines of ‘don’t be lazy,’ with the same instance as with . . . the

walker . . . with him, you know, not wanting to—not wanting to do any sort of therapies or anything

like that. It was my word usage. That’s awful. It’s not my intent.”

               J.M. admitted that he sometimes became frustrated with T.M.’s nurses but did not

believe his anger with them was ever out of control. J.M. testified that he and A.G. fired one nurse

because she did not give T.M. his medications properly, and she then made false or exaggerated

reports in retaliation. He testified that up until the children’s removal, the family had probably gone

through seven or eight different day-shift nurses. He fired some of them “for not administering the

medications or not doing things that are supposed to be done, not doing things how we wanted them

done.” He also said some were fired due to personality conflicts. J.M. testified that Tolleson was

untruthful in her testimony, that she had called him and A.G. about two days after the removal

“[f]rantic [and] apologetic,” that Tolleson told him she was “involved in illegal drugs,” and that he

and Tolleson “nearly [had] a sexual relationship.”

               J.M. denied that he hit A.G., kicked T.M. or A.M., hit the children with a belt, or

threw toys at T.M. or hit him with a toy in anger. J.M. usually used time-outs for discipline but

admitted he had spanked T.M. and A.M. He sometimes tapped T.M. on the head with a toy when

they played together and said he had picked up T.M. by his feet and thrown him onto a bed, but only

in play. He said he would “alley-oop” T.M. into his crib in a playful manner and that he was “always

really close to the crib” when he did that.

               J.M. explained how T.M. cut his head and needed stitches, saying:



                                                  14
       I was sitting in the chair. He was sitting in front of me in the rocking chair, and I was
       playing with him, pushing him in the rocking chair, And he was actually really
       having a blast, jumping up and down and giggling, things like that. And the last time
       with me pushing and him jumping up and down, he ended up going over, flipping
       over front ways. And, apparently, he was too close to the entertainment center at that
       time, and he ended up—he hit his head on the entertainment center.


J.M. said T.M. broke his arm when he pulled his hand away from J.M.’s grip while he was standing,

falling to the ground and hitting his arm on the floor. Similarly, T.M. bruised his face and body

when he pulled away from J.M. while they walked to the car, falling onto rocks on the ground.

               J.M. testified that after T.M. was born, A.G. became very depressed, and that during

her pregnancies, she suffered from anemia and preeclampsia. J.M. testified that A.G. went to classes

for eighteen months at Le Cordon Bleu, leaving the house at about 5:30 a.m. and getting home

around 12:00 p.m. or 1:00 p.m. She also worked at Sam’s Club and did an externship at a restaurant.

J.M. was asked whether A.G. frequently slept during the day, and he said, “Before she wouldn’t

frequently sleep through the day, but she was always tired and sluggish. And I really—I’m not a

doctor, but I think it had something to do with the situation of postpartum depression.” Before the

children’s removal, A.G. never saw anyone for postpartum depression, but since having H.M., she

had gotten treatment and was taking an antidepressant and anti-anxiety medication.

               J.M. testified, “My understanding was that if I had completed my services, did

everything the Department asked, be in communication with the Department on a weekly basis, drug

test at any point in time or anything that they asked, I would have—be reunified with my kids.” He

said that he had been drug tested periodically during the case and had never had a positive result and

that he completed parenting and protective parenting classes. He learned that the Department had



                                                  15
changed its intentions from reunification to termination at a status hearing two or three months

before trial but could not remember what reason he was given for the change other than that “[t]hey

felt that I was not learning—or participating in my services enough.”

                A.G. testified about T.M.’s medical problems, describing how difficult his first year

of life was, the knowledge she and J.M. had to acquire about his medical issues, and the types of

instruction they were given to help T.M. develop his physical abilities. She also testified that T.M.

“routinely had a knot on his head” because he would bang his head on his crib, apparently to let his

caretakers know that he was awake, and that behavior was one of the reasons she and J.M. thought

T.M. might be autistic.

                A.G. was asked about J.M.’s personality, and she said J.M. might sometimes overreact

but that he has never made her feel fearful for her or the children’s safety. A.G. testified that J.M.’s

anger was made worse by stressful situations and that his dealings with people, including the

children, became “a little bit more aggressive” when he was angry and frustrated, but not “over and

above what I—what I would normally expect.” A.G. said she and J.M. “had many disagreements”

and sometimes shouted, but that they went into another room to fight. A.G. said that she was

pregnant with H.M. during much of the time Hodo was with the family and that she and J.M.

frequently fought about whether she was doing enough around the house. A.G. was asked about

T.M.’s three injuries and gave explanations similar to those provided by J.M. Although she agreed

that the injuries all occurred while T.M. was with J.M., she did not believe J.M. had abused him.

A.G. testified that J.M. never hit her or the children and that if he ever did, she would leave and call

the police.



                                                  16
                A.G. went to culinary school from 2009 until July 2010 from 6:30 a.m. until almost

12:00 p.m. When she did an internship later in her education, she went to school at 8:00 a.m. and

ended at 3:00 p.m., and then her hours varied when she did an externship. A.G. testified that she

was currently being treated and taking medication for depression. She stated that she suffered from

depression after T.M.’s birth but did not seek treatment because she “put all of my energy and focus”

into T.M. A.G. became pregnant with A.M. when T.M. was about three months old despite using

birth control, and she believed she was “a little depressed” after A.M. was born, but ignored it

because she thought it would go away. She sought treatment before becoming pregnant with H.M.,

but stopped her medications during the pregnancy because she did not think it was safe for the baby.

                A.G. was asked about Hodo’s testimony. A.G. thought Hodo “testified to the best

of her ability, but I don’t believe that she remembers everything the way it happened.” A.G. disputed

Hodo’s testimony that the house was filthy and that A.G. never took care of T.M. and A.M. A.G.

also denied that she and J.M. forbade Hodo from taking care of A.M. in the morning because they

wanted to sleep late; A.G. said that they instructed Hodo to take care of T.M. because that was her

job and told her that they would care for A.M. As for Tolleson’s testimony, A.G. stated that “Ms.

Tolleson was a liar,” and said, “I feel like the evidence that Ms. Tolleson is a liar speaks for itself.”

A.G. testified that Tolleson took many hours off from work for personal reasons while submitting

time sheets to her employer stating she had worked her full shifts.

                Jeri Jaquith, a licensed professional counselor who worked with A.G. and J.M. for

nine months, testified that she worked with them on anger management, parenting skills, and couples

counseling and that she “saw tremendous progress. I saw progress from youthful rebellious attitude



                                                   17
to more mature ways of dealing with the public.” Jaquith was impressed with J.M.’s and A.G.’s

medical knowledge about T.M.’s condition and said they discussed the children’s needs and how the

parents could better help them. She said A.G. and J.M. were “very engaged, very cooperative, very

reliable to show up. They did everything I asked them to do.” A.G. and J.M. checked in frequently

and would describe for her times that they got upset about something, how they handled being upset,

ways to improve their coping, and ways in which they had improved their anger-management skills.

Jaquith believed that the parents’ main problem was not that they were abusive or neglectful but that

they had an “attitude problem” and did not care about how they were perceived, “which they’re

paying a high price for right now.” Asked whether the children should be returned to A.G. and J.M.,

Jaquith answered, “I think they definitely should. . . . Because they’re caring parents; they’re very

knowledgeable in child care practices; they love their children. And it’s my opinion that they’re

not abusive.”


                                       Standard of Review

                To justify termination, the Department must prove both that the parent engaged in

conduct enumerated as grounds for termination and that termination is in the child’s best interest.

Tex. Fam. Code Ann. § 161.001 (West Supp. 2012); In re C.H., 89 S.W.3d 17, 23 (Tex. 2002);

Williams v. Williams, 150 S.W.3d 436, 449 (Tex. App.—Austin 2004, pet. denied). Because the

termination of a parent’s rights to his children is a drastic remedy of great weight and gravity,

the Department must justify termination under the heightened standard of proof of “clear and

convincing evidence.” See Tex. Fam. Code Ann. § 161.001; Williams, 150 S.W.3d at 448-49.

“Clear and convincing evidence” is “the measure or degree of proof that will produce in the mind

                                                 18
of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be

established.” Tex. Fam. Code Ann. § 101.007 (West 2008); see C.H., 89 S.W.3d at 25; Williams,

150 S.W.3d at 449. In our review, we “must maintain the respective constitutional roles of juries

and appellate courts” and retain appropriate deference to the fact-finder’s decisions. C.H., 89 S.W.3d

at 26. Thus, our review “must not be so rigorous that the only factfindings that could withstand

review are those established beyond a reasonable doubt.” Id.

               In considering the legal sufficiency of the evidence, we view all of the evidence in

the light most favorable to the fact-finder’s determination, assuming that the fact-finder resolved

disputed facts in favor of its finding if it would be reasonable to do so and asking whether the fact-

finder could reasonably have formed a firm belief or conviction that the grounds for termination were

proven. In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002); Williams, 150 S.W.3d at 449. We disregard

evidence that a reasonable fact-finder could have disbelieved but need not disregard all evidence

contrary to the findings. J.F.C., 96 S.W.3d at 266; Williams, 150 S.W.3d at 449. Instead, we consider

the undisputed evidence, including evidence that does not support the findings, and only if we

determine that no reasonable fact-finder could have formed a firm belief or conviction that the

Department’s allegations were true will we conclude that the evidence is legally insufficient. J.F.C.,

96 S.W.3d at 266; Williams, 150 S.W.3d at 449.

               If the evidence is legally sufficient, we turn to factual sufficiency, viewing all of the

evidence in a neutral light to determine whether the fact-finder could have reasonably formed a firm

belief or conviction about the truth of the Department’s allegations. See J.F.C., 96 S.W.3d at 266.

Evidence is factually insufficient only if “a reasonable factfinder could not have resolved [the]



                                                  19
disputed evidence in favor of its finding” and if “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.” J.F.C., 96 S.W.3d at 266. Issues related to witness

credibility, meaning questions that turn on a witness’s appearance or demeanor, are left to the fact-

finder’s determination as long as its determination is reasonable. In re J.P.B., 180 S.W.3d 570, 573

(Tex. 2005) (quoting Southwestern Bell Tel. Co. v. Garza, 164 S.W.3d 607, 625 (Tex. 2004)).


                                       Termination Findings

                We first address the contention made by both parents that the evidence was insufficient

to support the jury’s findings that A.G. and J.M. knowingly placed or allowed the children to remain

in conditions that endangered their well-being or engaged in conduct or knowingly placed the

children with someone who engaged in conduct that endangered their well-being, as well as J.M.’s

arguments that the evidence is insufficient to show that he acted “knowingly,” as required by the

family code, or that the Department, not J.M. and A.G., should be appointed managing conservator

of the children.

                The parents place great emphasis on inconsistencies in Tolleson’s testimony and on

inconsistencies between her testimony and that of other witnesses, such as Olivo-Mendoza. They

further point to statements made by some of the Department’s witnesses about the cleanliness of the

home, asserting that the overall testimony was that the house was not so unclean as to be a danger

to the children. The parents note that Tolleson and Hodo were not present when T.M. was injured

and admitted that they did not know that T.M.’s injuries were due to abuse and that Tolleson

characterized J.M.’s behavior as trying to “aggravate, just to agitate.” They further point to Jaquith’s

                                                  20
testimony that A.G. and J.M. were cooperative and honest in their therapy work and that she did not

believe they were abusive or incompetent parents. Finally, the parents contend that McWithey’s

testimony that, despite the parents’ efforts to comply with the Department’s requirements, something

“just didn’t feel . . . right” showed her “unchecked hubris” and that her opinion should be disregarded.

They contend, no rational fact-finder could have formed a firm conviction that their actions were

grounds for termination.

                It is true that there were inconsistencies between Tolleson’s testimony and her earlier

statements to the Department, and it is true that Hodo and Tolleson both at times backtracked in their

testimony to some degree. However, issues of credibility are left solely for the jury to evaluate, and

we will not second-guess those decisions. See J.P.B., 180 S.W.3d at 573.

                Several witnesses testified that the house was filthy and unsanitary enough to be a risk

to the children, particularly when one of them has serious medical conditions requiring sterilized

equipment. There was testimony that the parents’ explanation for T.M.’s more serious injuries, all

of which occurred while he was in J.M.’s care, were inconsistent with the nurses’ observations of

T.M.’s usual behavior and changed over time. After one of his injuries, T.M. seemed to fear J.M.

and would seek safety with a nurse when J.M. entered the room. A.M. was seen with a black eye

on more than one occasion, as well as red marks that appeared to have been inflicted with medical

tubing, and, again, the nurses testified that the parents’ explanations for those injuries were suspicious.

Several witnesses testified that A.M. acted as if she were frightened of her parents, dropping to the

ground or begging not to be hit. Tolleson testified that J.M. frequently inflicted minor “aggravation”

or “torture” on the children, picking them up by their feet, pushing or kicking them with his feet,



                                                    21
throwing toys at them, yelling at or insulting them, or squeezing, hitting, or spanking them. And,

although A.G. was pregnant through many of the nurses’ interactions with the family, which could

explain some of her inactivity and distance from the children, several witnesses testified that she was

detached and cool toward the children, did not interact with them, did not assist with cleaning

the house, and never intervened on the children’s behalf if J.M. was being abusive or cruel. Several

witnesses, including J.M. himself, testified that he had anger-management problems, and, although

Jaquith believed he had made significant progress with those issues, McWithey said that something

about J.M. did not feel right, and Olivo-Mendoza believed Jaquith’s relationship with A.G. and J.M.

had gone beyond the bounds of a professional therapist-client relationship. The parents, particularly

J.M., seem to have difficulty getting along with people to such an extent that they fired many of their

nurses in a two-year period and argued with medical professionals at one of the area hospitals.

Hodo testified that she once heard the parents speaking to doctors on the phone and that they

downplayed T.M.’s medical situation, giving inaccurate and incomplete information; she believed

the doctors would have recommended emergency care had they been given a full account of T.M.’s

circumstances. Finally, there was testimony that J.M. drank alcohol on a daily basis while parenting

his young children, that he had a “really high tolerance” for it, that he drank to the point that he

“passed out on the floor” several times during Tolleson’s time with the family, and that he continued

to use marihuana after completing a rehabilitation program several years ago.

               We recognize that the parents largely complied with Department requirements

following the removal of the children. We also recognize that there were contradictions in some of

the testimony supporting termination and that Jaquith testified that she believed the children should



                                                  22
be returned to the parents’ care. However, based on the entire record, leaving credibility decisions

to the jury as we must, see id, we cannot hold that no rational fact-finder could have formed a firm

belief that both A.G. and J.M. engaged in conduct or left the children in the care of someone who

engaged in conduct or placed the children or allowed them to remain in conditions that endangered

their well-being. See Tex. Fam. Code Ann. § 161.001(1)(D), (E). We overrule A.G.’s sole issue on

appeal and overrule J.M.’s first issue.

               J.M. also argues that the evidence is insufficient to show that he acted knowingly, but

the evidence does not support his contention. J.M. notes that there was little explicit attention paid

at trial to his state of mind, that there were virtually no references to whether he acted intentionally

with respect to the children’s injuries, and that he was not challenged when he denied that he injured

the children “on purpose.” However, the kind of conduct described by the witnesses—constantly

“aggravating” or “tortur[ing]” the children, throwing toys at them, pushing them, shoving them with

his feet, picking them up by their feet, spanking, yelling at A.M., insulting T.M. or calling him

names, or tickling or roughhousing until A.M. cried—is intentional and deliberate, not accidental,

conduct. If J.M.’s assertion is that he did not know that such intentional conduct was harmful to the

children, such an assertion would only bolster the Department’s allegation that J.M. lacks competent

parenting skills. Further, the fact that J.M. and A.G. gave inconsistent or evolving explanations for

the children’s injuries supports a conclusion that J.M. knew that his conduct was inappropriate or

dangerous. The Department was not required to introduce testimony or evidence explicitly stating

that J.M. knew he was endangering the children. Instead, the jury was entitled to draw that conclusion




                                                  23
from the evidence presented and, as we have explained, the evidence supports such a determination.

We overrule J.M.’s third issue.

                                  Conservatorship Determination

               In his fourth issue, J.M. contends that the evidence is insufficient to show that the

Department should be appointed managing conservator of the children, asserting that the record is

“devoid” of a discussion about the Department’s conservatorship of the children. He argues that

a rational juror could not have concluded that the Department should be appointed managing

conservator instead of the parents, who have a presumptive advantage over the Department.1 See

In re Mata, 212 S.W.3d 597, 605 (Tex. App.—Austin 2006, orig. proceeding) (“There remains a

strong presumption that the parent should be named temporary managing conservator.”).

               Because this is a case in which both parents’ rights were terminated, J.M.’s challenge

to the Department’s conservatorship was subsumed into his appeal of the overall termination

order. See In re D.N.C., 252 S.W.3d 317, 319 (Tex. 2008); In re A.S., 261 S.W.3d 76, 92 (Tex.

App.—Houston [14th Dist.] 2008, pet. denied). Therefore, because we have affirmed the termination

decree, we affirm the trial court’s appointment of the Department as managing conservator.2 See

       1
        J.M. does not contend that someone else other than he or A.G. should have been appointed
managing conservator.
       2
          The jury charge asked whether A.G., J.M., or the Department should be appointed managing
conservator, explaining that if the jury answered that a parent’s rights should be terminated, that
parent should be disregarded as a possibility. The jury’s decision that both parents should have their
rights terminated left only the Department as a possible answer. Although there was little attention
paid at trial to the specific question of conservatorship, the evidence supports the Department’s
appointment: the Department placed the children in loving foster homes where they are flourishing
and receiving appropriate care; the Department ensured that the children are receiving services to
help with their developmental delays and medical problems; and there was no evidence that any
other person or agency would be a more suitable conservator.

                                                 24
D.N.C., 252 S.W.3d at 319; A.S., 261 S.W.3d at 92-93; see also Melton v. Texas Dep’t of Family &

Protective Servs., No. 03-08-00168-CV, 2010 Tex. App. LEXIS 1352, at *34 (Tex. App.—Austin

Feb. 25, 2010, no pet.) (mem. op.) (challenge to Department’s conservatorship failed because challenge

to termination decree failed). We overrule J.M.’s fourth issue.


                                       Best Interest Findings

                Finally, we consider J.M.’s second issue, that the evidence is insufficient to show that

termination was in the children’s best interest.

                In reviewing a best-interest determination, we consider: the children’s wishes, their

emotional and physical needs now and in the future, emotional or physical danger posed to the

children now and in the future, the parenting skills of those seeking custody, programs available to

assist those seeking custody to promote the children’s best interests, plans for the children’s futures,

the stability of the home, any conduct by the parent that might show that the existing parent-child

relationship is improper or harmful, and any excuse for that conduct. Holley v. Adams, 544 S.W.2d

367, 372 (Tex. 1976). The Holley factors are not exhaustive, nor must all factors be proved for us

to affirm a verdict in favor of termination. C.H., 89 S.W.3d at 27. As the C.H. court explained:


        The absence of evidence about some of these considerations would not preclude a
        factfinder from reasonably forming a strong conviction or belief that termination is
        in the child’s best interest . . . . Other cases, however, will present more complex
        facts in which paltry evidence relevant to each consideration mentioned in Holley
        would not suffice to uphold the jury’s finding that termination is required.


Id.




                                                   25
               J.M. notes that the record lacks significant explicit mention of the term “best interest”

and argues there was no “real testimony actually touching upon” the children’s best interest. He

asserts that the Department can only point to McWithey’s testimony that she believed J.M.’s and

A.G.’s parental rights should be terminated, saw a lack of supervision at some visitations, and heard

the parents have inappropriately adult conversations with the children. However, two witnesses

testified that A.M. and T.M. appeared to fear their parents, and there was testimony, summarized

earlier in this opinion, of the parents’ abuse, petty torments, lack of engagement, and general poor

parenting abilities. There was also testimony about how A.M. seemed to have improved—that her

acting-out and apparent distress before and after visitations had abated, that her reading ability had

increased, that she was doing better through therapy, and that her general well-being improved the

longer she was in her foster home. A.M. and H.M.’s foster parents intended to adopt the girls if the

parents’ rights were terminated. Although there was little testimony about T.M.’s foster home,

there was extensive testimony about his mistreatment at the hands of J.M., A.G.’s neglect of or

inattentiveness toward him, and how he started to flourish when he went to school, as well as brief

testimony indicating that the Department planned to have T.M.’s foster mother, a nurse, adopt him

if J.M.’s and A.G.’s rights were terminated. On this record, we cannot hold that the evidence is

insufficient to support the jury’s determination that termination of J.M.’s and A.G.’s rights was in

the children’s best interest. We overrule J.M.’s second issue on appeal.


                                            Conclusion

               After a careful review of the record and governing law, we have overruled A.G.’s

and J.M.’s issues on appeal. We affirm the trial court’s termination order.

                                                  26
                                          __________________________________________

                                          David Puryear, Justice

Before Justices Puryear, Pemberton and Rose

Affirmed on Rehearing

Filed: June 11, 2013




                                              27
