Opinion issued August 16, 2012




                                      In The

                               Court of Appeals
                                      For The

                          First District of Texas
                            ————————————
                               NO. 01-11-00703-CV
                            ———————————
                   IN THE INTEREST OF D.J.W., A CHILD



                    On Appeal from the 313th District Court
                            Harris County, Texas
                      Trial Court Case No. 2010-04338J



                                   OPINION

      This is an appeal from the termination of the parental rights of a mother,

N.W., with respect to her son, D.J.W. See TEX. FAM. CODE ANN. § 161.001 (West

Supp. 2012).    On appeal, the mother contends that she received ineffective

assistance of counsel because her trial attorney failed to timely file a statement of

appellate points contesting the sufficiency of the evidence to support the court’s
judgment. She argues that the evidence is legally and factually insufficient to

support the trial court’s findings that she committed four predicate acts required for

termination, that termination was in her son’s best interests, or that appointment of

the Department of Family and Protective Services as conservator was in D.J.W.’s

best interest.

       The evidence was sufficient to support the judgment. In particular, with

respect to the predicate acts necessary to support termination of parental rights

under section 161.001(1), the evidence was sufficient to support a determination

that the mother engaged in conduct which endangered the physical or emotional

well-being of the child. See id. § 161.001(1)(E). Accordingly, we affirm.

                                    Background

       D.J.W. was 17 months old when his parents had their second child, a baby

boy. The parents and the two children all lived together in the home of D.J.W.’s

maternal grandparents. Two months later, the baby died under circumstances that

were quickly determined to be nonaccidental.

       On the morning of June 9, 2010, the mother gave the infant a bottle and

placed him in his bassinet to sleep. D.J.W. was in another room with his ten-year-

old uncle. When the father awoke, he asked the mother to walk to a store with him

to buy juice. The father took the baby across the hall, leaving the mother to get

dressed. When the father brought the baby back to the mother, she rocked him to

                                          2
sleep and placed him in his bassinet. After asking some other family members to

watch her children, the mother went to the store with the father.

      When they came home, the father checked on the infant and told the mother

that the baby was “okay” and that he had seen the baby stretching. A short while

later, a visiting cousin told the mother that the infant was sleeping but he had “a

little vomit coming from his mouth.” The mother testified that she immediately

ran upstairs and noticed that there was blood mixed with the baby’s vomit. She

took her child downstairs, where her mother began cardiopulmonary resuscitation,

and they called an ambulance. Shortly after arriving at the hospital, the infant was

pronounced dead.

      The day after the baby’s death, the Department initiated an investigation

and, after interviewing family members living in the home, removed D.J.W. from

the home and placed him with his great-grandfather. Meanwhile, an autopsy was

performed on the deceased infant. To facilitate our review of the trial court’s

judgment, it is necessary to describe the autopsy findings in detail.

      The general pathological findings included blunt head trauma and recent and

remote skeletal trauma. An anthropology report prepared in connection with the

postmortem examination detailed extensive injuries, including a total of

54 fractures, many of which had occurred one to three weeks prior to the child’s

death. Two of the fractures were classic metaphyseal lesions (CMLs) of the distal

                                          3
radius (wrist) and ulna (forearm). The report explained that a “CML is an injury of

the immature long bone metaphysis associated most strongly with infants and

toddlers less than three years of age.”          Both CMLs featured subtly rounded

trabeculae and physeal margins, which the report characterized as being

“consistent with early bone healing processes.” The evidence that the baby had

fractures that demonstrated signs of “healing processes” is significant because it

supports the autopsy conclusion that the injuries had occurred some period of time

prior to the baby’s death, such that the healing process would have time to take

place.

         The remaining 52 fractures were located in a bilateral, serial distribution

among the baby’s ribs. Eleven serial, healing fractures were observed in a bilateral

distribution on the midclavicular region of Rr2-7 and Lr3-7.1 Eighteen serial,

healing avulsion fractures were observed in a bilateral distribution on the heads or



1
         All of these fractures were “in the early soft callus stage of healing with
         visible fracture margins.” The fractures of Rr3-7, Lr3, and Lr5-6 were
         described as “complete and transverse,” while “[c]omplete accordion-type
         fractures” were located on Lr4 and Lr7, and Rr2 was a “buckle fracture.”
         The report observed: “The margins of the transverse fractures and the buckle
         fracture of Rr2 retain evidence of crushing on the internal surface of the ribs,
         consistent with bone failure in compression.” In addition, the “accordion-
         type fractures observed in Lr4 and Lr7” were described as “the result of left
         to right directed compression with an axial load,” which resulted in the bone
         “in tension as the internal and external surfaces splayed apart during
         compression.”

                                             4
necks of Rr3, Rr5-11 and Lr1-10.2         Thirteen serial, healing fractures of the

costochondral junctions (CCJ) of Rr4-6, Rr8, Rr10, Lr2 and Lr4-10 were

observed.3 Six acute serial fractures were observed in a bilateral distribution on the

midclavicular region of Rr8-10 and Lr8-10.4 Finally, four acute fractures of Rr11-

12 and Lr11-12 were found.5




2
      These were also “complete fractures” with the exception of two “head
      fractures,” which were “incomplete.” The report explained that “[a]vulsion
      fractures of the rib head and neck are caused when excessive forces are
      applied to the costovertebral junction while the head is held in place by
      strong ligament attachments.” “Early healing” was observed “as minimal
      thickening of the exposed trabeculae and slight rounding of the cortical bone
      at the fracture margins.”
3
      The report noted that “[t]he sternal ends of the ribs were likely exposed to
      shearing forces and compression, similar to that found in CML of the long
      bones.” The severity of these fractures ranged “from crushing and/or
      fraying of the costochondral rim to fracture of the costochondral surface.”
      Other observations were “consistent with early healing processes.”
4
      Two of these fractures (Rr8-9) were “complete and transverse,” and
      “[c]rushing of the internal margins indicates that the bone failed in
      compression on the internal surface of the ribs.” The other four fractures
      (Rr10 and Lr8-10) were “of the accordion type, consistent with compressive
      forces with an axial load.”
5
      These included one incomplete accordion-type fracture (Rr11), two crushing
      fractures of the anterior tips of Lr11-12, and “[o]ne complete, transverse
      fracture located on Lr11.” The report stated that the “fracture of the right rib
      is consistent with right to left directed compressive force with an axial load
      component,” and that the “fractures of the left ribs are consistent with left to
      right directed compressive force with an axial load component.”

                                          5
      After describing the baby’s extensive internal injuries in detail, the report

explained that the injuries indicated the child had been seriously injured in “a

minimum of two traumatic episodes, one occurring prior to death (antemortem)

and one occurring at or very near death (perimortem).”          With respect to the

“antemortem trauma,” the report stated that the observed injuries could have

resulted from “[s]haking during constriction of the chest” and “direct traction and

torsion of the limb.” With respect to the “perimortem trauma,” the injuries were

described as being “consistent with two impacts to the lower ribs, one from right to

left and one from left to right.”6


6
      The report stated:

                    The variation in healing observed on the retained
             elements is consistent with a minimum of two traumatic
             episodes, one occurring prior to death (antemortem) and one
             occurring at or very near death (perimortem). Fracture healing
             rates are variable depending on the age and health status of the
             individual, location and severity of the fracture and possible re-
             injury. Further, seriation of fracture age based on the stage of
             healing can be difficult in a young infant because the time span
             since injury is relatively short.

                    The injuries observed in the CML of the distal left radius
             and ulna, the head and neck avulsion fractures, the
             midclavicular fractures of Rr2-7 and Lr3-7 and the CCJ
             fractures of Rr4-5, Rr8, Rr10, Lr2, Lr4-6, and Lr8-10 are
             consistent with antemortem trauma. At each fracture site the
             fracture margins are rounded and exposed trabeculae are
             thickened. Several fracture sites are also marked with SPNBF
             [subperiosteal new bone formation]. SPNBF typically occurs in
             a healthy infant within 4-10 days post-fracture and early soft
                                         6
      Two days after the baby’s death, the Department filed its original petition for

protection of D.J.W., for conservatorship, and for termination of parental rights.

The Department alleged various statutory grounds for termination, including that

both parents engaged in conduct or knowingly placed the child with persons who

engaged in conduct which endangers the physical or emotional well-being of the

child. See TEX. FAM. CODE ANN. § 161.001(1)(E).

      In support of that petition, the Department attached an affidavit of one of its

investigators, C. Lightfoot, who informed the trial court of the basic chronology of

            callus formation is usually visible radiographically by 10-14
            days post-fracture. The stage of healing observed in these
            fractures indicates that the injuries occurred approximately one
            to three weeks prior to death.

                   The distribution pattern of the healing fractures
            throughout the ribcage is consistent with anterior to posterior
            constriction and posterior levering of the chest. Shaking during
            constriction of the chest can result in CML as observed on the
            distal radius and ulna. These fractures may also be the result
            of direct traction and torsion of the limb.

                   The perimortem trauma is evident in the fractures of the
            anterior body of Rr11 and Lr11-12 (considered to be posterior
            fractures due to the location of these ribs), and the
            midclavicular fractures of the lower ribs (Rr8-10, Lr8-10). The
            fracture margins are sharp and there is no SPNBF on the
            margins or on the rib bodies. The absence of healing at the
            fractures indicates that the injuries occurred at or near the time
            of death. The distribution pattern and fracture types are
            consistent with two impacts to the lower ribs, one from right to
            left and one from left to right.

      (Emphasis supplied.)
                                         7
events, including the investigation by Child Protective Services. An emergency

order was entered that day, followed thirteen days later by an adversary hearing

with the mother present.      As a result of the hearing, the court ordered the

Department to conduct a home study, and it ordered both parents to “comply with

each requirement set out in the Department’s original, or any amended, service

plan during the pendency of this suit” and to provide samples for drug, alcohol,

and DNA screening. The mother refused to provide a urine sample, which was

considered by the drug testing facility as a “refusal/positive test.” The results from

the hair sample that she did provide showed a positive result for cocaine and

marijuana metabolites. At a subsequent hearing, the court entered its “Additional

Temporary Orders to Obtain Return of a Child,” dated August 2, 2010. In addition

to continuing to require that the mother “[c]omplete all services outlined in the

DFPS Family Plan of Service filed in this cause,” the order specifically required

the mother to “[r]emain drug free.”

      The father ultimately pleaded guilty to criminal charges in connection with

the death of the infant, and he voluntarily relinquished his parental rights. The

Department pursued its petition to terminate the mother’s parental rights as well,

and a trial was conducted before an associate judge.

      At trial, a caseworker assigned to the matter testified that the Department

became concerned because the infant’s death was ruled to be a homicide. She

                                          8
testified, “Mom has minimized the reason that the child has come into care. . . .

She stated that she did not know how the child was injured and she did not know

how the child could have sustained those types of injuries because he was watched

at all times and that [she] and the father were the caregiver[s].” She expressed

concern about the fact that D.J.W.’s baby brother “was two months old and had

54 fractures to his body.” Based upon “the extensiveness of the injuries that the

infant had received from the autopsy report and just [the mother’s] attitude towards

the case and what was going on,” and due to the fact that the mother “did not

protect the infant from being injured,” the caseworker testified that she was “not

sure” that the mother “would be able to protect” D.J.W. As she explained, “The

agency was concerned about the fact that if a child had that many injuries how, as a

mother, you could not know that your child was either being abused or that what,

you know, the abuse that led up to the actual incident.”           The caseworker

acknowledged that the mother had not been charged with a crime in connection to

the death of her infant son. She nevertheless testified that the Department was

seeking termination of the mother’s parental rights because it “would be in the best

interest of the child.”

      D.J.W.’s paternal grandmother testified that her other grandson’s death

caused her to be concerned about the boy being raised by his biological mother.

She said, “My problem was my other grandbaby that died in the house. You know,

                                         9
somebody should have seen something was going on with him. To have all those

fractures, somebody should have saw [sic] that somebody was injuring him.”

      The mother also testified at trial. She testified that prior to the baby’s death,

he “didn’t have any bruisings, any markings, any shortness of breath, anything that

would cause me to have to rush him to the emergency room.” She said that she did

not ever injure or shake the baby. In response to a question about what she would

have done had she known that the father was capable of doing that, she testified:

      He wouldn’t have been allowed to be around my kids; and had I
      known it would have ended in such a manner, this would have
      progressed more swiftly, more quickly. I wouldn’t have had anything,
      no dealings with him at all.

She said that she did not receive the autopsy report before speaking with the

district attorney’s office, but after having excerpts read to her, she drew the

conclusion that the baby was injured by the father during a period of time when the

two were alone. Although she conceded that the father had a “temper” and had

raised his voice to her, she said he had “never” been physical with her, thrown

anything at her, or hit her.

      The Department introduced additional evidence of the mother’s drug use

through the caseworker’s testimony. The caseworker testified that the mother’s

last positive urinalysis was on June 24, 2010, approximately two weeks after her

son died, but the caseworker did not identify which drug was identified in that

screening. The mother also had a positive hair follicle test in February 2011, but a
                                         10
negative urinalysis at that time. Again, the caseworker did not say which drug was

identified in that screening. She also testified that the mother failed to appear for a

drug test in September 2010. When questioned by the attorney ad litem, the

caseworker agreed that the mother tested positive for marijuana and cocaine in

November 2010.

      Q.     Ma’am, just to clarify, she had a positive drug and urine screen
      for cocaine and marijuana in November and the test in February was a
      hair follicle so–and you don’t—you are not an expert on that, so you
      can’t tell us—that could have been as a result of the test in November,
      right?

      A.     Yes, sir.

      The mother admitted using marijuana, but she flatly denied ever using

cocaine. She testified that she began using marijuana when she was 15 or 16 years

old and that marijuana was her “drug of choice.” She admitted using marijuana

during the time when she had custody of her two children, though the record does

not clearly show that she used marijuana in their presence. She also admitted using

marijuana after the trial court’s order that she remain “drug-free,” using the drug as

late as October 19, 2010. She denied using illegal drugs after that date.

      At the conclusion of the trial, the court found by clear and convincing

evidence that the mother had endangered D.J.W. by engaging in conduct or

knowingly placing him with people who engaged in conduct that endangers a

child’s physical or emotional well-being.            See TEX. FAM. CODE ANN.


                                          11
§ 161.001(1)(E).7 The court also found that termination of her parental rights was

in the best interest of the child, see id. § 161.001(2), that appointment of a parent

or relative of the child as managing conservator would not be in the child’s best

interest, and that appointment of the Department as sole managing conservator of

the child would be in his best interest.

      The mother’s trial counsel did not timely file a statement of appellate points,

see TEX. R. CIV. P. 324, or a motion for new trial. However, her appellate counsel

filed a motion for new trial and statement of appellate points, though not within

15 days of the trial court’s final decree of termination. The trial court denied the

motion for new trial, stating on the record that an appeal would not be frivolous.

                                       Analysis

I.    Ineffective assistance of counsel

      The mother contends that she received ineffective assistance of counsel

because her trial counsel failed to file a timely statement of appellate points

challenging the sufficiency of the evidence to support the grounds on which the


7
      The court also found that the mother endangered D.J.W. by knowingly
      placing or allowing him to remain in conditions or surroundings that
      endanger a child’s physical or emotional well-being, see TEX. FAM. CODE
      ANN. § 161.001(1)(D), that she “contumaciously refused to submit to a
      reasonable and lawful order of a court under Subchapter D, Chapter 261,
      Texas Family Code,” see id. § 161.001(1)(I), and that she “failed to comply
      with the provisions of a court order that specifically established” the actions
      necessary for her to obtain the return of D.J.W., see id. § 161.001(1)(O).

                                           12
trial court terminated her parental rights.8 Texas courts apply the two-pronged

analysis of Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2066

(1984), to determine whether trial counsel was ineffective in a proceeding to

terminate parental rights:


8
      The Department argues that a change in the law renders N.W.’s ineffective-
      assistance-of-counsel issue unnecessary and urges this court to proceed
      directly to a review of the merits of her sufficiency issues. The Family Code
      provisions that were in effect at the time of the trial court’s judgment in this
      case required a party appealing a final order terminating her parental rights
      to file a statement of points identifying the issues she wished to raise on
      appeal. See Act of May 22, 2001, 77th Leg., R.S., ch. 1090, § 9, 2001 TEX.
      GEN. LAWS 2395, 2397–98 (enacting section 263.405), amended by Act of
      May 12, 2005, 79th Leg., R.S., ch. 176, § 1, 2005 TEX. GEN. LAWS 332, 332
      (adding subsection 263.405(i)) (former TEX. FAM. CODE ANN. § 263.405),
      repealed by Act of May 5, 2011, 82d Leg., R.S., ch. 75, § 5, 2011 TEX. GEN.
      LAWS 348, 349. That statute also stated that an “appellate court may not
      consider any issue that was not specifically presented to the trial court in a
      timely filed statement of points.” Id. § 263.405(i).

      The Department relies upon statutory revisions enacted before the mother’s
      notice of appeal was filed in the trial court on August 13, 2011. See Act of
      May 5, 2011, 82d Leg., R.S., ch. 75, § 5, 2011 TEX. GEN. LAWS 348, 349
      (repealing subsections 263.405(b–1) and 263.405(d)–(i)). However, the
      final decree of termination was signed on July 25, 2011, and the legislation
      provided, “This Act takes effect September 1, 2011.” Id. Thus, to the extent
      the requirement of a statement of appellate points has been repealed, the
      repeal had not yet taken effect at the time relevant to this appeal. Thus we
      will analyze the mother’s appeal through the framework of her challenge to
      the alleged ineffective assistance of her counsel. See In re S.M.G., 07-11-
      00340-CV, 2011 WL 6217433, at *1 n.3 (Tex. App.—Amarillo Dec. 14,
      2011, order) (per curiam); In re K.N.N., No. 09-11-00317-CV, 2011 WL
      5989007, at *8 (Tex. App.—Beaumont Dec. 1, 2011, no pet.) (mem. op.); In
      re A.S.D., No. 02-10-00255-CV, 2011 WL 5607608, at *1 (Tex. App.—Fort
      Worth Nov. 17, 2011, no pet.) (mem. op ).

                                         13
      First, the defendant must show that counsel’s performance was
      deficient. This requires showing that counsel made errors so serious
      that counsel was not functioning as the “counsel” guaranteed the
      defendant by the Sixth Amendment. Second, the defendant must
      show that the deficient performance prejudiced the defense. This
      requires showing that counsel’s errors were so serious as to deprive
      the defendant of a fair trial, a trial whose result is reliable.

In re J.O.A., 283 S.W.3d 336, 341–42 (Tex. 2009) (citing In re M.S., 115 S.W.3d

534, 545 (Tex. 2003)).9

      The mother argues that her trial counsel rendered deficient performance and

thus failed the first prong of Strickland by not filing a statement of appellate points

as required by the Family Code. Not every failure to preserve a challenge to the

sufficiency of the evidence rises to the level of ineffective assistance. See id. at

343; In re M.S., 115 S.W.3d at 549. We must presume that counsel’s conduct falls

within the wide range of reasonable professional assistance, including the

possibility that the decision not to challenge the sufficiency of the evidence was

based upon counsel’s professional opinion that such an appeal was not warranted.


9
      The Department also argues that because the mother retained her trial
      counsel, she may not raise ineffective assistance of counsel on appeal. See
      In re V.G., No. 04-08-005220CV, 2009 WL 2767040, at *12 (Tex. App.—
      San Antonio, Aug. 31, 2009) (memo. op.) (parent who was represented by
      retained counsel rather than counsel appointed pursuant to the Family Code
      held not entitled to raise claim for ineffective assistance of counsel). In light
      of our determination that the mother was not harmed by any ineffective
      performance rendered by her counsel, it is not necessary for us to determine
      whether this remedy is available in the circumstance of retained (rather than
      appointed) counsel.

                                          14
See In re J.O.A., 283 S.W.3d at 343; In re M.S., 115 S.W.3d at 549. With respect

to the second Strickland prong, which requires a showing of prejudice resulting

from the deficient performance of counsel, the mother argues that she was harmed

by her attorney’s failure to file the statement of points in this case because her

challenges to the sufficiency of the evidence are meritorious. In particular, she

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

court’s findings that she committed four predicate acts for terminating her parental

rights, that termination was in the best interest of the child, and that appointment of

the Department as managing conservator was in the child’s best interest.

II.   Grounds for termination of parental rights

      In the context of litigation affecting the parent-child relationship, including

proceedings to terminate parental rights, the Legislature has declared that is the

public policy of the State of Texas to provide children with “a safe, stable, and

nonviolent environment.” TEX. FAM. CODE ANN. § 153.001(a)(2) (west 2008). In

furtherance of that policy, “the purpose of the State’s intervention in the parent-

child relationship is to protect the best interests of the children, not to punish

parents for their conduct.” In re A.V., 113 S.W.3d 355, 361 (Tex. 2003). A

parent’s right to the companionship, care, custody, and management of her child is




                                          15
a precious liberty interest of constitutional magnitude,10 and accordingly,

termination proceedings are strictly scrutinized on appeal. See Holick v. Smith,

685 S.W.2d 18, 20 (Tex. 1985). Protection of the best interests of the child is the

primary focus of both the termination proceeding in the trial court and our review

on appeal. See In re A.V., 113 S.W.3d at 361.

      “[T]he evidence in support of termination must be clear and convincing

before a court may involuntarily terminate a parent’s rights.” Holick, 685 S.W.2d

at 20. Clear and convincing evidence is “the measure or degree of proof that will

produce in the mind of the trier of fact a firm belief or conviction as to the truth of

the allegations sought to be established.” TEX. FAM. CODE ANN. § 101.007 (West

2008). Because the standard of proof is “clear and convincing,” the Supreme

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

are inadequate. In re J.F.C., 96 S.W.3d 256, 264–66 (Tex. 2002).

      The legal sufficiency review in a termination-of-parental-rights case “must

take into consideration whether the evidence is such that a factfinder could


10
      See Santosky v. Kramer, 455 U.S. 745, 758–59, 102 S. Ct. 1388, 1397
      (1982); see also Troxel v. Granville, 530 U.S. 57, 65, 120 S. Ct. 2054, 2060
      (2000) (“[T]he interest of parents in the care, custody, and control of their
      children is perhaps the oldest of the fundamental liberty interests recognized
      by this Court.”); Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985) (“This
      natural parental right has been characterized as ‘essential,’ ‘a basic civil
      right of man,’ and ‘far more precious than property rights.’”) (quoting
      Stanley v. Illinois, 405 U.S. 645, 651, 92 S. Ct. 1208, 1212 (1976)).

                                          16
reasonably form a firm belief or conviction about the truth of the matter on which

the State bears the burden of proof.” Id. at 265–66. We “look at all the evidence

in the light most favorable to the finding to determine whether a reasonable trier of

fact could have formed a firm belief or conviction that its finding was true.” Id. at

266. We review “the evidence in the light most favorable to the judgment,”

meaning that we “must assume that the factfinder resolved disputed facts in favor

of its finding if a reasonable factfinder could do so.” Id. We also “disregard all

evidence that a reasonable factfinder could have disbelieved or found to have been

incredible.” Id. “If, after conducting its legal sufficiency review of the record

evidence, a court determines that no reasonable factfinder could form a firm belief

or conviction that the matter that must be proven is true, then that court must

conclude that the evidence is legally insufficient.” Id.

      With respect to our review of the factual sufficiency of the evidence, we

consider the entire record, including disputed evidence, to determine “whether the

evidence is such that a factfinder could reasonably form a firm belief or conviction

about the truth of the State’s allegations.” Id.; In re C.H., 89 S.W.3d 17, 25 (Tex.

2002). “If, in light of the entire record, the disputed evidence that a reasonable fact

finder could not have credited in favor of the finding is so significant that a

factfinder could not reasonably have formed a firm belief or conviction, then the

evidence is factually insufficient.” In re J.F.C., 96 S.W.3d at 266.

                                          17
         In proceedings to terminate the parent-child relationship brought under

Texas Family Code section 161.001, the Department must establish one or more of

the acts or omissions enumerated under section 161.001(1) and that termination is

in the best interest of the child. TEX. FAM. CODE ANN. § 161.001. Both elements

must be established, and termination may not be based solely on the best interest of

the child as determined by the trier of fact. Tex. Dep’t of Human Servs. v. Boyd,

727 S.W.2d 531, 533 (Tex. 1987). “Only one predicate finding under section

161.001(1) is necessary to support a judgment of termination when there is also a

finding that termination is in the child’s best interest.” In re A.V., 113 S.W.3d at

362. In this case, the Department sought termination of the mother’s parental

rights     on   grounds    of   endangerment,    see   TEX.   FAM.    CODE    ANN.

§ 161.001(1)(D) & (E), and for failing to comply with certain court orders, see id.

§ 161.001(1)(I) & (O). In its final order of termination, the trial court expressly

found that all four statutory provisions were met, that termination was in the best

interest of the child, and that appointment of the Department as managing

conservator was in the child’s best interest.

         A. Endangerment of a child (Family Code § 161.001(1)(E))

         The mother challenges the trial court’s findings that she endangered D.J.W.

One of the predicate acts that may result in the involuntary termination of the

parental-child relationship is satisfied if the parent has “engaged in conduct or

                                          18
knowingly placed the child with persons who engaged in conduct which endangers

the physical or emotional well-being of the child.”        TEX. FAM. CODE ANN.

§ 161.001(1)(E). In this context, “endanger” means to expose to loss or injury or

to jeopardize. Boyd, 727 S.W.2d at 533. The term means “more than a threat of

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

environment,” but “it is not necessary that the conduct be directed at the child or

that the child actually suffers injury.”     Id. at 533.   To determine whether

termination is justified, courts may look to parental conduct both before and after

the child’s birth. In re J.O.A., 283 S.W.3d at 345. The conduct need not occur in

the child’s presence, and it may occur “both before and after the child has been

removed by the Department.” Walker v. Tex. Dep’t of Family & Protective Servs.,

312 S.W.3d 608, 617 (Tex. App.—Houston [1st Dist.] 2009, pet. denied).

      Unlike section 161.001(1)(D), which focuses on endangering “conditions or

surroundings,” section 161.001(1)(E) focuses on parental actions exposing the

child to “conduct” which endangers the child’s physical or emotional well-being.

Section 161.001(1)(E) may be satisfied either by the parent’s own endangering

conduct or by the parent’s knowing placement of the child with other persons who

engage in endangering conduct. For purposes of this appeal, we will focus solely




                                        19
upon the mother’s own conduct and whether the trial court could have concluded

that her conduct endangered D.J.W.11

      The Supreme Court of Texas has acknowledged that “a parent’s use of

narcotics and its effect on his or her ability to parent may qualify as an endangering

course of conduct.” In re J.O.A., 283 S.W.3d at 345. Our court has explained that

illegal drug use may support termination under section 161.001(1)(E) because “it

exposes the child to the possibility that the parent may be impaired or imprisoned.”

Walker, 312 S.W.3d at 617. Endangerment by risks of both impairment and

imprisonment are at issue in this case. The mother admitted illegal marijuana use

both before and after giving birth to her children, characterizing it as her “drug of

choice.” In addition to her admitted marijuana usage, the trial court reasonably

could have formed a firm belief that the mother also used cocaine based on trial

testimony about the result of the mother’s drug test at the time of the emergency

hearing, which was positive for the presence of cocaine metabolites, her positive

cocaine test in November 2010 (after she had already been ordered by the trial

court to remain “drug-free”), and her failure or refusal to take drug tests on other

occasions.


11
      The mother argues that the trial court took improper judicial notice of
      various documents included in the case worker’s file. For purposes of
      resolving this appeal, our analysis of the sufficiency of the evidence does not
      rely upon any of this evidence.

                                         20
      Other evidence in the record reasonably could have led the trial court to a

firm belief that the mother’s drug use affected her ability to parent in light of her

professed unawareness of the abuse being inflicted upon her infant child while she

was actively providing care. Although the Department failed to present evidence

of the frequency of the mother’s drug use or direct evidence of the mother’s

impairment arising from drug use, the evidence did support a conclusion that drug

use adversely affected the mother’s ability to parent. Based upon the detailed

autopsy report, the factfinder reasonably could have concluded that D.J.W.’s

brother had died as a result of cruel abuse on multiple occasions, beginning at least

one week prior to his death. The father admitted causing the baby’s death, and

there was no evidence that it was directly caused by the mother. Nevertheless,

evidence at trial showed that after the death of the child, the mother claimed to be

unaware of how the child could have been injured, despite the fact that the child

was “watched at all times” by her and the father. The child’s serious injuries

resulting from antemortum trauma occurred while under the supervision of the

mother approximately one to three weeks before death, and consisted of numerous

complete fractures of the ribs. The testimony of both the caseworker and D.J.W.’s

paternal grandmother emphasized their concern about the mother’s ability to

protect the child. To the extent that the undisputed evidence showed that the

mother was personally responsible for supervising the child yet completely

                                         21
unaware of the pre-death injuries, the trial court reasonably could have concluded

that the mother’s admitted drug use affected her parenting abilities by impairing

her ability to perceive and protect D.J.W. from the physical and emotional impact

of such injuries inflicted in the home by the father.

         Unlike In re J.P.B, in this case the Department did not present any expert

testimony to directly explain the likely cause of the baby’s injuries, that a parent

should have known that something was wrong with the baby in this circumstance,

or that the baby would have reacted in any particular manner such that it should

have been noticed by the parents. See In re J.P.B., 180 S.W.3d at 573. This kind

of explanatory expert opinion testimony, if available to the Department, ideally

would be made part of the record to connect the evidence of child abuse to the

parental action (or inaction) alleged by the Department in support of its petition.

Nevertheless, we cannot conclude that the lack of such explanatory expert

testimony rendered the Department’s evidence legally insufficient in this case. In

particular, we note the detailed autopsy findings that were admitted into evidence,

which stated that the baby’s injuries that occurred one to three weeks before his

death, including numerous complete fractures of his ribs, could have resulted from

“[s]haking during constriction of the chest” and “direct traction and torsion of the

limb.”     The injuries occurring at the same time of the baby’s death were

“consistent with two impacts to the lower ribs, one from right to left and one from

                                          22
left to right.” In addition, this case involved admitted drug use by the parent before

removal of the child at issue, a factor not involved in J.P.B.

      Finally, we note that the mother in this case also admitted to using marijuana

after the removal of her surviving child and after she had been specifically ordered

to “remain drug-free.” The evidence before the trial court reasonably could have

supported a conclusion by the finder of fact that the mother also abused cocaine

during this time.    Illegal drug use in violation of the court’s order in this

circumstance endangered D.J.W.’s emotional well-being because it increased the

risk that his relationship with his biological mother would be permanently severed.

See Walker, 312 S.W.3d at 617–18.

      Drug use that significantly impairs a parent’s ability care for a child

jeopardizes the child’s physical and emotional well-being.        We hold that the

evidence in this case was legally sufficient to permit a reasonable factfinder to

form a firm belief or conviction that the mother engaged in conduct that

endangered D.J.W.’s physical or emotional well-being. See TEX. FAM. CODE ANN.

§ 161.001(1)(E); In re J.O.A., 283 S.W.3d at 346 (holding that evidence of

admitted drug use before the birth of the children, missed drug tests after removal

of children, and a failed drug test between removal and the final hearing,

established legal sufficiency of evidence to show endangerment under

section 161.001(1)(E)).

                                          23
        With respect to the mother’s factual-sufficiency challenge, our consideration

of disputed evidence relating to the Department’s case does not undermine the

ability of a factfinder to reasonably form a firm belief or conviction about the truth

of the State’s allegations. The mother denied using cocaine, but she did not

dispute her marijuana usage, and she provided no alternative explanation for her

failed drug tests and no excuse for skipping court-ordered drug tests. Moreover,

the court, as factfinder, was the sole arbiter of the credibility of the witnesses, and,

in light of conflicting testimony from the caseworker, it was not required to believe

the mother when she denied having used cocaine. See In re H.R.M., 209 S.W.3d

105, 109 (Tex. 2006). We conclude the evidence was also factually sufficient to

support the judgment.

        We overrule the mother’s issues relating to the legal and factual sufficiency

of the evidence to support the trial court’s finding of a predicate act pursuant to

section 161.001(1)(E). In light of this holding, we need not reach her other issues

which     relate   to   the   findings   of    other   predicate   acts   pursuant   to

section 161.001(1)(D), (I), and (O).

        B. Best interest of the child (Family Code § 161.001(2))

        The mother challenges the legal and factual sufficiency of the evidence to

support the trial court’s finding that termination of the parent-child relationship

was in the best interest of D.J.W. However, her brief contains no legal argument in

                                          24
support of these points. Accordingly, the points have been waived. See TEX. R.

APP. P. 38.1(i).

III.   Conservatorship of the child

       In her final issue, the mother challenges the legal sufficiency of the evidence

to support the trial court’s finding that appointment of the Department as managing

conservator of D.J.W. was in his best interest. Her only legal argument is that if it

is determined that the Department did not adduce clear and convincing evidence in

support of the termination of her parental rights, then the appointment of the

Department as managing conservator is not in the best interest of D.J.W. As we

have concluded that legally and factually sufficient evidence supports the trial

court’s decree of termination, the mother has presented no other argument to

suggest that the Department should not have been appointed as managing

conservator. We overrule this issue.




                                         25
                                    Conclusion

      We conclude that the evidence was legally and factually sufficient to support

a finding that the mother used illegal narcotics both before and after D.J.W. was

taken into custody by the Department.        This evidence further supported the

conclusion that the mother’s drug use endangered the physical or emotional well-

being of D.J.W., by exposing him to the risks that the mother would be impaired or

imprisoned. Accordingly, we affirm the trial court’s final decree of termination.




                                             Michael Massengale
                                             Justice


Panel consists of Justices Jennings, Massengale, and Huddle.

Justice Jennings, dissenting




                                        26
