Opinion filed August 8, 2017




                                     In The

        Eleventh Court of Appeals
                                  __________

                               No. 11-17-00026-CV
                                   __________

                  IN THE INTEREST OF T.G., A CHILD


                     On Appeal from the 35th District Court
                             Brown County, Texas
                      Trial Court Cause No. CV 14-09-382


                                    -- and --
                                  __________

                               No. 11-17-00027-CV
                                   __________

                  IN THE INTEREST OF C.G., A CHILD


                     On Appeal from the 35th District Court
                             Brown County, Texas
                      Trial Court Cause No. CV 15-10-357
                      MEMORANDUM OPINION
      In separate causes that were joined for trial, the trial court terminated the
parental rights of the mother of T.G. and C.G. and appointed their father as a
possessory conservator. In each cause, the mother filed a notice of appeal and
presents a single issue in which she challenges the sufficiency of the evidence. We
affirm.
                       I. Termination Findings and Standards
      The termination of parental rights must be supported by clear and convincing
evidence. TEX. FAM. CODE ANN. § 161.001(b) (West Supp. 2016). To determine if
the evidence is legally sufficient in a parental termination case, we review all of the
evidence in the light most favorable to the finding and determine whether a rational
trier of fact could have formed a firm belief or conviction that its finding was true.
In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005). To determine if the evidence is
factually sufficient, we give due deference to the finding and determine whether, on
the entire record, a factfinder could reasonably form a firm belief or conviction about
the truth of the allegations against the parent. In re C.H., 89 S.W.3d 17, 25–26 (Tex.
2002). To terminate parental rights, it must be shown by clear and convincing
evidence that the parent has            committed     one of the acts         listed   in
Section 161.001(b)(1)(A)–(T) and that termination is in the best interest of the child.
FAM. § 161.001(b).
      With respect to the best interest of a child, no unique set of factors need be
proved. In re C.J.O., 325 S.W.3d 261, 266 (Tex. App.—Eastland 2010, pet. denied).
But courts may use the non-exhaustive Holley factors to shape their analysis.
Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976). These include, but are not
limited to, (1) the desires of the child, (2) the emotional and physical needs of the
child now and in the future, (3) the emotional and physical danger to the child now
and in the future, (4) the parental abilities of the individuals seeking custody, (5) the
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programs available to assist these individuals to promote the best interest of the
child, (6) the plans for the child by these individuals or by the agency seeking
custody, (7) the stability of the home or proposed placement, (8) the acts or
omissions of the parent that may indicate that the existing parent–child relationship
is not a proper one, and (9) any excuse for the acts or omissions of the parent. Id.
Additionally, evidence that proves one or more statutory grounds for termination
may also constitute evidence illustrating that termination is in the child’s best
interest. C.J.O., 325 S.W.3d at 266.
      The trial court found, with respect to both children, that Appellant had
committed the acts listed in subsections (E) and (O) of Section 161.001(b)(1).
Specifically, the trial court found that Appellant had engaged in conduct or
knowingly placed the children with persons who engaged in conduct that endangered
the children’s physical or emotional well-being and that Appellant had failed to
comply with the provisions of a court order that specifically established the actions
necessary for her to obtain the return of the children, who had been in the managing
conservatorship of the Department of Family and Protective Services for not less
than nine months as a result of their removal from the parent for abuse or neglect.
With respect to C.G., the trial court additionally found that Appellant committed the
acts listed in subsections (D) and (Q) when she knowingly placed or allowed C.G.
to remain in conditions or surroundings that endangered his physical or emotional
well-being and when she knowingly engaged in criminal conduct that resulted in her
conviction and confinement and an inability to care for C.G. for at least two years
from the date of the petition.         The trial court also found, pursuant to
Section 161.001(b)(2), that termination of Appellant’s parental rights would be in
the best interest of both children.




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                                II. Evidence at Trial
      The record shows that the Department first became involved with Appellant
in 2014 when T.G. was an infant—prior to C.G.’s birth. T.G. suffered a severe injury
that involved “a brain bleed.” T.G. had to be taken by care-flight to a hospital in
San Antonio. Appellant claimed that T.G. had “somewhat of a seizure” while
Appellant was trying to give him his medication; Appellant denied that any type of
trauma had occurred to cause T.G.’s injury. Despite her denial, Appellant was
indicted for and convicted of the offense of injury to a child based upon the incident
in which T.G. suffered a brain bleed. Appellant was found guilty of intentionally or
knowingly causing serious bodily injury to T.G. by shaking or throwing him or by
causing blunt force trauma to him, and she was sentenced to confinement for twenty
years for injuring T.G. The indictment and judgment of conviction were admitted
into evidence at the termination hearing. Additionally, while the termination case
was pending and while she was pregnant with C.G., Appellant failed a drug test.
Appellant testified that she thought the results of the drug test were wrong and that
she did not remember using marihuana or methamphetamine.
      At the time of trial, the children were placed with a paternal aunt and uncle.
The CASA volunteer that had been assigned to this case for over two years testified
at the termination hearing that her recommendation was for the children to remain
in their current placement. The children’s guardian ad litem informed the trial court
that the children “are in a great place” and “[a]re very bonded to the [placement]
family.” The paternal aunt and uncle were taking excellent care of the children, and
T.G.’s health had improved while in their care. The Department sought to terminate
Appellant’s parental rights and to continue the placement of the children with their
aunt and uncle.




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                    III. Issue Presented and Sufficiency Analysis
      In her sole issue in each cause, Appellant contends that the evidence is
insufficient to support the termination of her parental rights “in light of the erroneous
global Judicial Notice finding of the Court’s file by the Court.” Appellant’s
contention is based upon her complaint that the trial court erroneously took judicial
notice of its entire file in each cause and admitted into evidence, as part of those
files, Exhibit Nos. 3, 4, and 5—the affidavit in support of removal and the CASA
report to the court for each child.
      In this regard, the record shows that, during the testimony of the Department’s
investigator, Breawna Ballard, the Department offered into evidence Ballard’s
affidavit in support of the removal of T.G. Appellant objected on hearsay grounds.
The trial court then “on its own motion” took judicial notice of both files. The trial
court explained:
              Now -- so, that being said, it -- it’s solely considered by the Court
      as a part of the Court file, and -- and it’s not going to be given some
      special significance otherwise, so it is just part and parcel of the whole,
      and I’m not gonna consider hearsay, except to show that it was included
      as a basis when the application was filed. But I’m not gonna consider
      it at this time as any evidence in the matter today, other than as a part
      of the Court file.
            So, it is sort of a -- it is admitted as a part of the Court file as an
      exhibit, and yet the hearsay objection is noted and sustained, but the
      exhibit itself is admitted.
(Emphasis added). The trial court followed a similar course of action later in the
trial when the Department offered the CASA reports into evidence.
      A. Trial Court’s Judicial Notice of its Files
      A trial court may take judicial notice of the contents of its file, but a trial court
may not take judicial notice of the truth of any factual allegations contained in its
file. In re F.E.M., No. 11-12-00257-CV, 2013 WL 1092716, at *1 (Tex. App.—

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Eastland Mar. 14, 2013, pet. denied) (mem. op.); In re J.E.H., 384 S.W.3d 864, 870
(Tex. App.—San Antonio 2012, no pet.); see TEX. R. EVID. 201. The record does
not indicate that the trial court took judicial notice of the truth of any disputed matter
contained in its files. The trial court specifically sustained Appellant’s hearsay
objection and ruled that it would not consider the contents of the trial court’s files as
evidence at the termination hearing. The trial court later reiterated, when it admitted
the CASA reports into evidence, that it would not consider “the things that are not
supported by exceptions to the Hearsay Rule.” The trial court’s admission of
Ballard’s affidavit and the CASA reports into evidence despite the court’s
acknowledgment that these exhibits contained inadmissible hearsay and while, at the
same time sustaining a hearsay objection, was improper. See TEX. R. EVID. 802.
However, we note that this was not a jury trial and that the trial court indicated that
it would not consider the hearsay contained within those exhibits. We will not
consider the contents of those exhibits in our review of the sufficiency of the
evidence. See J.E.H., 384 S.W.3d at 870 (noting that, because the trial court could
not take judicial notice of the affidavit or the allegations made in the family service
plan, neither the affidavit nor the allegations contained in the family service plan can
support the judgment).
      B. Findings under Section 161.001(b)(1)
      Based upon our review of the testimony presented at the termination hearing
and the indictment and judgment of conviction, we conclude that the record contains
clear and convincing evidence from which the trial court could reasonably have
formed a firm belief that Appellant engaged in conduct that endangered the
children’s physical or emotional well-being. See FAM. § 161.001(b)(1)(E). Under
subsection (E), the relevant inquiry is whether evidence exists that the endangerment
of the child’s well-being was the direct result of the parent’s conduct, including acts,
omissions, or failures to act. In re D.O., 338 S.W.3d 29, 33 (Tex. App.—Eastland
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2011, no pet.). Additionally, the offending conduct does not need to be directed at
the child, nor does the child actually have to suffer an injury. In re J.O.A., 283
S.W.3d 336, 345 (Tex. 2009). In J.O.A., the Texas Supreme Court stated that “the
endangering conduct may include the parent’s actions before the child’s birth, while
the parent had custody of older children.” Id.
       Clear and convincing evidence showed that Appellant, who had
been convicted of causing seriously bodily injury to T.G., had engaged in conduct
that endangered T.G.’s physical or emotional well-being. Based on that same
conduct, we also conclude that clear and convincing evidence showed that Appellant
had engaged in conduct that endangered C.G.’s physical or emotional well-being.
See J.O.A., 283 S.W.3d at 345. Consequently, we hold that the evidence is legally
and   factually   sufficient   to   support   the   trial   court’s   finding   under
Section 161.001(b)(1)(E) as to each child.
      Because a finding that a parent committed one of the acts listed in
Section 161.001(b)(1)(A)–(T) is all that is required and because we have held that
the evidence is sufficient to support the trial court’s finding under subsection (E),
we need not address the sufficiency of the evidence to support the findings made by
the trial court pursuant to the other subsections of Section 161.001(b)(1). See
TEX. R. APP. P. 47.1.
      C. Finding of Best Interest of the Children
      Based on the evidence presented at trial and in light of the Holley factors, the
trial court could reasonably have formed a firm belief or conviction that termination
of Appellant’s parental rights would be in the best interest of the children. See
Holley, 544 S.W.2d at 371–72. Upon considering the record as it relates to the
emotional and physical needs of the children now and in the future, the emotional
and physical danger to the children now and in the future, the parental abilities of
Appellant and of the children’s aunt and uncle, the plans for the children by the
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Department, the stability of the children’s placement, Appellant’s conviction for
seriously injuring T.G., and Appellant’s incarceration and inability to care for the
children, we hold that the evidence is sufficient to support the findings that
termination of Appellant’s parental rights is in the best interest of the children. See
id. Appellant’s sole issue in each appeal is overruled.
                                   This Court’s Ruling
      We affirm the orders of the trial court.




                                                 MIKE WILLSON
                                                 JUSTICE


August 8, 2017
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.




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