                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-08-00308-CV

        IN THE INTEREST OF M.H., S.H., AND G.H., CHILDREN




                          From the County Court at Law
                                Ellis County, Texas
                            Trial Court No. 73,951 CCL


                                    OPINION


      The mother and the maternal grandparents of the children the subject of this suit

bring this appeal from a decree terminating the mother’s parental rights, designating

the father of S.H. as her managing conservator, and designating the Department of

Family and Protective Services as the managing conservator of the other two children.

The grandparents contend that the court erred by: (1) failing to exclude the testimony of

the Department’s expert witnesses for failure to properly designate the experts and

disclose their mental impressions and opinions before trial in response to a request for

disclosure; and (2) denying their motion for new trial because there is no evidence to

support the jury’s refusal to find that the grandparents’ appointment as joint managing
conservators is in the best interest of the children and these adverse findings are against

the great weight and preponderance of the evidence (three issues).1                         The mother

contends that: (1) the evidence is factually insufficient to support the jury’s finding that

termination of the parent-child relationship is in the best interest of the children; and (2)

the court abused its discretion by denying her no-evidence motion for summary

judgment. In a third issue, the mother adopts by reference the grandparents’ issues. See

TEX. R. APP. P. 9.7. We will affirm the judgment.

                                              Background

        The children were born in two other states. S.H.’s father is Appellee “Jack”2 who

still resides in the state of S.H.’s birth.             The other children’s father voluntarily

relinquished his parental rights. The mother is Appellant “Sandra,” and her parents are

Appellants “Bradley” and “Paula.” Bradley and Paula moved to Texas in 2003. Sandra

moved with the children to Texas in 2004.

        The Department became involved in 2006 amid concerns that the children were

at risk because Sandra suffered from what was thought to be Munchausen Syndrome

by Proxy. In March 2007, the children were removed from the home. S.H. and G.H.


1
         The grandparents contend in their second issue that there is no evidence to support the
challenged findings. They contend in their third issue that there is not factually sufficient evidence to
support the findings. And they contend in their fourth issue that the challenged findings are against the
great weight and preponderance of the evidence. Because they had the burden of proof at trial on this
issue, they must establish that the challenged findings are against the great weight and preponderance of
the evidence to prevail on a factual insufficiency claim. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex.
2001); Hunter v. Ford Motor Co., 305 S.W.3d 202, 206 (Tex. App.—Waco 2009, no pet.).

2
       To protect the identity of the children, we shall refer to the parents and grandparents by
pseudonyms. See TEX. FAM. CODE ANN. § 109.002(d) (Vernon 2008); TEX. R. APP. P. 9.8(b)(1).




In the Interest of M.H.                                                                              Page 2
were placed in foster care, and M.H. was placed with Bradley and Paula.                                After

extensive discovery and the usual services afforded to families by the Department, the

case proceeded to a jury trial in June 2008. Following several weeks of testimony, the

jury returned its verdict.

                                  Disclosure of Expert Opinions3

        Bradley and Paula contend in their first issue (and Sandra contends as part of her

third issue) that the court erred by failing to exclude the testimony of eight of the

Department’s4 expert witnesses for failure to properly designate the experts and

disclose their mental impressions and opinions before trial in response to a request for

disclosure. There are three components to this appellate complaint: (1) whether the

experts are retained or non-retained; (2) whether the Department disclosed the mental

impressions and opinions of the experts; and (3) if not, whether Appellants were

unfairly surprised or prejudiced by the failure to disclose this information.

        Bradley and Paula served the Department with a request for disclosure under

Rule of Civil Procedure 194. See TEX. R. CIV. P. 194. Sandra filed a “written trial




3
         Generally, when a party presents multiple issues, an appellate court should first address the
issue(s) that would afford the party the greatest relief (like a no-evidence issue which could lead to
rendition of judgment by the appellate court). Bradleys’ Elec., Inc. v. Cigna Lloyds Ins. Co., 995 S.W.2d 675,
677 (Tex. 1999) (per curiam); see Builders Transp., Inc. v. Grice-Smith, 167 S.W.3d 1, 6 n.2 (Tex. App.—Waco
2005, pet. denied); In re K.W., 138 S.W.3d 420, 428 (Tex. App.—Fort Worth 2004, pet. denied). Here,
however, because of the intertwined nature of the issues relating to termination of the parent-child
relationship and post-termination conservatorship, we first address the issues relevant to termination and
then those relevant to conservatorship.

4
        Although this complaint actually refers to experts of the Department “and the Children,” we
refer to these experts collectively as the Department’s experts because no information in the record
indicates that a distinction should be noted for purposes of our analysis.


In the Interest of M.H.                                                                                Page 3
objection” to the admission of expert testimony on the ground that the Department

failed to disclose the mental impressions or opinions of its experts. Id. 194.2(f)(3).

        The court conducted a hearing on Sandra’s written objection before opening

statements. Bradley and Paula joined in Sandra’s objection.5 After hearing argument of

counsel, the court advised the parties that it would defer a ruling until the following

day. The next day the court signed and entered an order overruling the objection and

finding that permitting the experts to testify would not cause unfair surprise or

prejudice “as the discovery responses themselves (documents, medical records, reports,

etc.), and the available testimony of many of the individual non-retained experts”

provided adequate notice “of the non-retained experts’ impressions.” In response to

this ruling, the objection was re-urged, and the court granted a running objection with

respect to each expert.

                                              Preservation

        Jack argues that Appellants failed to preserve this issue for appellate review

because their “broad general objection” was not sufficiently specific. We disagree. The

basis of the objection was that the discovery responses with respect to the experts failed

to adequately disclose “the general substance of [each] expert’s mental impressions and

opinions and a brief summary of the basis for them.” See TEX. R. CIV. P. 194.2(f)(3). The

court’s written order essentially overruled this objection for two reasons: (1) the

Department’s discovery responses provided the requisite information regarding the

5
         See Owens-Corning Fiberglas Corp. v. Malone, 916 S.W.2d 551, 556 (Tex. App.—Houston [1st Dist.]
1996), aff’d, 972 S.W.2d 35 (Tex. 1998) (in trials involving multiple defendants, each defendant must make
his own objections to preserve error, but defendants may agree with court’s approval that the objection of
one defendant may be considered as having been made on behalf of all defendants).


In the Interest of M.H.                                                                            Page 4
experts’ mental impressions and opinions even if the specific response to the request for

disclosure did not; and (2) Appellants would not be unfairly surprised or prejudiced by

permitting the experts to testify.

        Appellants presented a specific objection.      The trial court’s written order

demonstrates that the court (1) understood the basis for the objection and (2) clearly

overruled the objection. In addition, the trial court granted a running objection as to the

testimony of each expert witness for the reasons specified in the written objection.

Thus, we hold that Appellants adequately preserved this issue. See Volkswagen of Am.,

Inc. v. Ramirez, 159 S.W.3d 897, 907 (Tex. 2004).

                                          Waiver

        Jack contends that Appellants waived their complaint because they did not

request a continuance. He cites Wal-Mart Stores Texas, LP v. Crosby, 295 S.W.3d 346 (Tex.

App.—Dallas 2009, pet. denied), to support this contention. However, we find that case

distinguishable for several reasons.

        The Dallas Court’s discussion regarding Wal-Mart’s failure to request a

continuance was an alternate ground for disposing of Wal-Mart’s multi-faceted

appellate complaint. See id. at 355. The court’s primary holding was that Wal-Mart

could not complain on appeal regarding the admission of those portions of the

complained-of evidence (medical records and testimony) to which it did not object. Id.

Specifically concerning the issue of surprise, the appellate court observed that the trial

court did not make any express rulings on this issue. Then the appellate court recited a

litany of reasons the trial court could have concluded that Wal-Mart was not unfairly


In the Interest of M.H.                                                              Page 5
surprised by the plaintiff’s late supplementation of discovery. Id. Finally, in response

to Wal-Mart’s complaint that it “had no opportunity to evaluate [the expert’s] opinions

and, if necessary, to obtain an expert to counter those opinions,” the appellate court

observed that, after the trial court ruled on Wal-Mart’s objections and indicated that

some of the expert’s testimony would be admitted, “Wal-Mart did not re-urge a

continuance motion or otherwise raise with the trial court the need for a countering

expert witness.”

        We decline to apply Wal-Mart to the facts of this case.         As explained, the

continuance discussion was an alternate ground for overruling Wal-Mart’s multi-

faceted complaint.        In addition, the parties in Wal-Mart did not have to concern

themselves with the statutory dismissal deadline established by section 263.401 of the

Family Code. See TEX. FAM. CODE ANN. § 263.401 (Vernon 2008). Accordingly, we hold

that Appellants did not waive their complaint by failing to request a continuance after

the court overruled their objection.

                                       Retained Expert

        Rule 194.2(f)(3) requires, on proper request, a party to disclose for any testifying

expert “the general substance of the expert’s mental impressions and opinions and a

brief summary of the basis for them, or if the expert is not retained by, employed by, or

otherwise subject to the control of the responding party, documents reflecting such

information.” TEX. R. CIV. P. 194.2(f)(3).     The rule draws distinctions between the

disclosure requirements for retained experts and those for non-retained experts. See In




In the Interest of M.H.                                                               Page 6
re Reaud, 286 S.W.3d 574, 579 n.3 (Tex. App.—Beaumont 2009, orig. proceeding) (per

curiam).

        Appellants challenge the admission of the testimony of eight experts but contend

that only one, Dr. Matthew Cox, was a retained expert. The trial court implicitly found

that Cox was a non-retained expert because the court referred to all of the Department’s

experts in its written ruling on Appellants’ objection as “non-retained experts.”

        Our research has not disclosed a rule, statute or case explicitly defining who a

“retained expert” is. But the Rules of Civil Procedure appear to view the term rather

broadly because the rules treat similarly any expert “retained by, employed by, or

otherwise subject to the control of [a party].” See TEX. R. CIV. P. 194.2(f), 195.3, 195.6.

        Dr. Cox testified that he is an employee of the State of Texas, serving as an

assistant professor and pediatrician at the University of Texas Southwestern Medical

School and Children’s Medical Center in Dallas.           He explained that the State has

provided funding to create “centers of consultation for Child Protective Services” at the

four medical schools operated by the University of Texas to furnish experts to CPS for

“evaluating kids when there’s concerns of abuse or neglect.” On cross-examination, he

explained that part of his duties through this program are “to provide medical expertise

and court appearances as needed for [the Department].”                “I’m not getting any

individual pay [for testifying]. This is part of my salary at Children’s reviewing these

records and coming to court, part of my job that’s partially funded by the state.”

        Though Cox may not be a “retained expert” in the traditional sense, we conclude

from his testimony that he is a retained expert for purposes of the discovery rules


In the Interest of M.H.                                                                  Page 7
because he is “employed by [and] otherwise subject to the control of” the State on

behalf of the Department. See id. 194.2(f). The trial court abused its discretion to the

extent it held otherwise.

                          Disclosure of Mental Impressions and Opinions

        Because Cox was a retained expert, Rule 194.2(f)(3) required the Department to

disclose “the general substance of [Cox]’s mental impressions and opinions and a brief

summary of the basis for them.” Id. 194.2(f)(3). For the non-retained experts, the Rule

required the Department to disclose “the general substance of [their] mental

impressions and opinions and [documents reflecting] a brief summary of the basis for

them.” Id.; Barr v. AAA Tex., LLC, 167 S.W.3d 32, 36-37 (Tex. App.—Waco 2005, no pet.).

        In an attempt to satisfy these requirements,6 the Department in its amended

response to the request for disclosure stated that these experts:

        may have knowledge of relevant facts concerning the subject matter of the
        above-referenced litigation, and/or any matter relating to the healthcare
        services provided to the Children, Respondent [Sandra], and/or
        Intervenors.    Some are healthcare doctors, providers, therapists,
        developmental psychologists or clinical psychologists, who have provided
        healthcare services to the Children and/or to the Respondents and/or
        Intervenors, or they have testified concerning matters relating to the
        Children, [Sandra], and/or the Intervenors.

        This statement does not in any manner identify or disclose: (1) “the general

substance of the expert’s mental impressions and opinions”; (2) “a brief summary of the

basis for them” (with regard to Cox); or (3) documents reflecting such a summary with

regard to the non-retained experts. See Llanes v. Davila, 133 S.W.3d 635, 638-39 (Tex.
6
        The Department’s Amended Responses to Intervenor’s Request for Disclosure is 18 pages long
and tracks the relevant language of Rule 194.2. The quoted portion appears on page 15 of the amended
response directly after a reference to and quotation of subdivision (f)(3) of the rule.


In the Interest of M.H.                                                                      Page 8
App.—Corpus Christi 2003, pet. denied). Thus, these experts should not have been

permitted to testify unless, as the trial court found, permitting them to testify did not

cause unfair surprise or prejudice.

                                   Unfair Surprise or Prejudice

        The Department had the “burden of establishing . . . the lack of unfair surprise or

unfair prejudice.”        TEX. R. CIV. P. 193.6(b).    The trial court had the discretion to

determine whether the Department satisfied its burden, but the court’s finding must be

supported by the record. Tex. Mun. League Intergov’tal Risk Pool v. Burns, 209 S.W.3d

806, 817 (Tex. App.—Fort Worth 2006, no pet.) (citing Alvarado v. Farah Mfg. Co., 830

S.W.2d 911, 914 (Tex. 1992); TEX. R. CIV. P. 193.6(b)).

        The Department characterizes this issue as a failure to supplement previous

disclosures, but the issue presented by Appellants is whether the Department wholly

failed to disclose the required information.7 Thus, we do not address the Department’s

contention that supplementation was unnecessary because the experts’ trial testimony

reflected only a refinement of an already disclosed subject. See Exxon Corp. v. W. Tex.

Gathering Co., 868 S.W.2d 299, 304 (Tex. 1993); Pilgrim’s Pride Corp. v. Smoak, 134 S.W.3d

880, 902 (Tex. App.—Texarkana 2004, pet. denied). Nevertheless, the issue of whether

Appellants were on notice regarding the mental impressions and opinions of the

experts is relevant to whether they suffered unfair surprise or prejudice. See Hoefker v.




7
        It is noteworthy that the Department does not cite to any previous discovery response in the
record which would have given Appellants the information they contend was never disclosed.


In the Interest of M.H.                                                                      Page 9
Elgohary, 248 S.W.3d 326, 331 (Tex. App.—Houston [1st Dist.] 2007, no pet.); Burns, 209

S.W.3d at 817-18.

                                          Dr. Matthew Cox

        Appellants contend they were unfairly surprised or prejudiced because Dr. Cox’s

opinions changed between the 14-day adversary hearing conducted in April 2007 and

the trial held in June 2008. At the 14-day hearing, the Department initially asked Cox to

differentiate Falsification Syndrome and Factitious Disorder. Sandra objected that Cox

was not qualified as an expert in mental health. The court noted that Cox was qualified

without objection to testify as a pediatric forensic specialist. The court asked Cox

whether, as a pediatric forensic specialist, he had the training and experience and

whether it was part of his “regular protocol” to make such a differentiation. Cox

answered:

                As a child abuse expert, the spectrum of disorder of Munchausen
        Syndrome by proxy is the diagnosis in the child of pediatric condition
        falsification and a parental diagnosis of a mental illness, Factitious
        Disorder by proxy, so those two have interplays.

             My role is the diagnosis of the falsification of the children’s
        symptom, but they work together.

The court overruled Sandra’s objection after Cox testified that it was part of his “regular

course of conduct or protocol to distinguish the two.”

        Cox testified in the 14-day hearing that he had reviewed S.H.’s and G.H.’s

medical records8 and had found numerous examples where Sandra had misreported or


8
        A transcription of Dr. Cox’s testimony from the 14-day hearing was filed 2 weeks before trial and
made available to the other parties for copying. Cox testified at trial that he did not have M.H.’s medical
records at the time of the 14-day hearing,


In the Interest of M.H.                                                                            Page 10
falsified their medical history or their symptoms. He opined at this hearing that both

children had suffered “abuse by pediatric condition falsification.”

        At trial, Cox provided similar testimony regarding Sandra’s misreporting and/or

falsification of S.H.’s and G.H.’s medical history or symptoms.        Over objection, he

defined Munchausen Syndrome by proxy, but he never opined that Sandra suffered

from this condition. He concluded that S.H. and G.H. both were abused because of

“pediatric condition falsification.” With respect to M.H., he testified that “there was a

history” which led to (“in retrospect”) unnecessary diagnostic tests.         He did not

unequivocally testify that M.H. was abused by pediatric condition falsification.

        At trial, Dr. Cox testified, consistently with his testimony at the 14-day hearing,

that S.H. and G.H. suffered abuse by “pediatric condition falsification.” He expressed

similar concerns at trial with regard to M.H. but did not opine that she suffered abuse in

this manner. He reviewed additional records (including all of M.H.’s available records)

between the 14-day hearing and trial, but his expert opinion remained consistent.

Accordingly, we cannot say that the court abused its discretion by concluding that

Appellants were not unfairly surprised or prejudiced by the Department’s failure to

disclose his mental impressions or opinions. See Hoefker, 248 S.W.3d at 331; Burns, 209

S.W.3d at 817-18.

                                 Dr. Muhammad Qamar

        The Department did not list Dr. Qamar as a testifying expert in its response to

the request for disclosure, but it did include him in an attached list of expert witnesses

which included more than 250 other healthcare providers. Qamar did not testify at the


In the Interest of M.H.                                                             Page 11
14-day hearing. Qamar was asked to evaluate Sandra in August 2007 by physicians at

John Peter Smith Hospital for suspicion of factitious disorder. Based on his evaluation,

Qamar concluded that she has factitious disorder. On cross-examination, he opined

more forcefully that she “100 percent meets the criteria.” Qamar testified that Sandra’s

prognosis with regard to this condition is good so long as she has family support,

personal motivation, and appropriate counseling services.

        Assuming without deciding Appellants were unfairly surprised or prejudiced by

the admission of Qamar’s testimony, his opinion was admitted elsewhere without

objection when his written consultation report was admitted in evidence. Therefore,

any error in the admission of his testimony was rendered harmless by the admission of

the same evidence in written form without objection. See Benavides v. Cushman, Inc., 189

S.W.3d 875, 885 (Tex. App.—Houston [1st Dist.] 2006, no pet.); Combs v. Gent, 181

S.W.3d 378, 385 (Tex. App.—Dallas 2005, no pet.).

                                 Dr. Christian Sanchez

        Dr. Sanchez testified concerning Sandra’s return to the Ennis Regional Medical

Center in April 2008, several weeks after having surgery there to remove a staple from

her knee. During her stay, nurses discovered that she had broken the lock on the PCA

pump, which administered morphine for pain relief, and manipulated her dosage.

Sanchez confronted Sandra about what he perceived to be a “definitely psychological, if

not physical, addiction to pain medicine.”

        In reviewing her history regarding the staple lodged in her knee, Sanchez

testified that Sandra’s version of how the injury occurred was not entirely consistent


In the Interest of M.H.                                                          Page 12
with her injury. He explained this is a matter of concern when patients exaggerate

symptoms or “inflict things upon themselves” to get medical attention or certain drugs.

Based on his observations, he diagnosed her as suffering from Munchausen’s.

        Assuming without deciding Appellants were unfairly surprised or prejudiced by

the admission of Sanchez’s testimony, his opinion was admitted elsewhere without

objection when his handwritten notes were admitted in evidence as part of Sandra’s

medical records from Ennis Regional Medical Center.         Therefore, any error in the

admission of his testimony was rendered harmless by the admission of the same

evidence in written form without objection. Id.

                                    Other Physicians

        Appellants also complain about the Department’s failure to disclose the mental

impressions or opinions of Doctors Karen Schultz, Lorie Belitere-Blessing, Amy Haller,

and Kimberly Sweet. However, Appellants present no argument or authority specific to

the testimony of these doctors.    We will not make their argument for them.         See

Robertson v. Sw. Bell Yellow Pages, Inc., 190 S.W.3d 899, 903 (Tex. App.—Dallas 2006, no

pet.); Beard v. Beard, 49 S.W.3d 40, 67 (Tex. App.—Waco 2001, pet. denied).

                                   Dr. Mitchell Dunn

        Dr. Dunn’s opinion did change between the time of the 14-day hearing and trial.

He testified as a psychiatric expert on Sandra’s behalf at the 14-day hearing and

diagnosed her with a depressive personality disorder. In his opinion at that time, she

was able to perform normal life functions and provide appropriate care for her children.

Although it was discussed at the 14-day hearing, Dunn determined that Sandra did not


In the Interest of M.H.                                                          Page 13
have factitious disorder. The only medical record available to him at that time referred

to an incident in which treating physicians felt she had “purposefully extended a

laceration on her head.” He thought this incident “had more to do with a battle with

the doctors, kind of an impulsive response” rather than an attempt to mislead them

about her condition.

        Dunn reviewed additional medical records provided by the Department about a

week before trial. These records reflected subsequent incidents in which Sandra: (1)

had some eyedrops which caused dilation of the pupils when she came to the hospital

in August 2007 complaining of a dilated left pupil; and (2) had been giving herself

heparin, a blood thinner, at the time of a different hospitalization in December 2007.

Dunn opined at trial that, based on this additional information, “factitious disorder is

more likely.”

        Relying on Norfolk Southern Railway v. Bailey, 92 S.W.3d 577 (Tex. App.—Austin

2002, no pet.), the Department contends that Appellants were not unfairly surprised or

prejudiced by the Department’s failure to disclose Dunn’s diagnosis of factitious

disorder because this represents only a refinement of his previous diagnosis, a

perfection of his report, and an expansion of an already-disclosed subject. We disagree.

In Norfolk Southern, the expert’s diagnosis changed from asbestosis with no impairment

to asbestosis with mild impairment. Id. at 580. Here, Dunn’s opinion changed from an

affirmative determination that Sandra did not have factitious disorder to the exact

opposite determination, namely, that she likely does have factitious disorder. The

Department’s suggestion that this change of opinion is only a refinement of Dunn’s


In the Interest of M.H.                                                          Page 14
prior opinion that Sandra suffers from several personality disorders is unpersuasive.

Dunn explained that the disorders he had previously diagnosed are conditions which

can be managed by medication and therapy. However, he is aware of no successful

treatment regimen for factitious disorder.

         The court abused its discretion by ruling that Appellants would not be unfairly

surprised or prejudiced by the admission of Dunn’s testimony. This error requires

reversal if we conclude that it probably caused the rendition of an improper judgment.

TEX. R. APP. P. 44.1(a)(1); Lopez v. La Madeleine of Tex., Inc., 200 S.W.3d 854, 863 (Tex.

App.—Dallas 2006, no pet.); see Gee v. Liberty Mut. Fire Ins. Co., 765 S.W.2d 394, 396 (Tex.

1989).

         Dunn was Sandra’s own expert, so she was undoubtedly surprised when he was

called by the Department at trial and testified against her. However, his testimony was

only cumulative of other expert witnesses whose testimony has not been challenged (or

not adequately challenged) on appeal. See State v. Dawmar Partners, Ltd., 267 S.W.3d

875, 881 (Tex. 2008) (per curiam). Drs. Qamar and Sanchez both testified that Sandra

has factitious disorder or Munchausen by proxy syndrome. Iowa psychiatrist Truce

Ordona testified that he diagnosed her as having Munchausen by proxy syndrome after

treating her in 2003. Moreover, the Department could have waited until after Sandra

called Dunn to testify on her behalf, presented her medical records to him, and then

cross-examined him during which he would presumably reach the same conclusion he

reached during his direct examination as the Department’s witness. See Hunter v. Ford

Motor Co., 305 S.W.3d 202, 208 (Tex. App.—Waco 2009, no pet.) (“An expert’s testimony


In the Interest of M.H.                                                              Page 15
may be contradicted by the testimony of other witnesses or by cross-examination of the

expert witness.”).

         Accordingly, we hold that the erroneous admission of Dunn’s expert opinion

testimony probably did not cause the rendition of an improper judgment. See Dawmar

Partners, 267 S.W.3d at 881; Gee, 765 S.W.2d at 396-97. We overrule Bradley’s and

Paula’s first issue and that portion of Sandra’s third issue which incorporates their first

issue.

                          Best Interest of the Children-Termination

         Sandra contends in her first issue that the evidence is factually insufficient to

support the jury’s finding that termination of the parent-child relationship is in the best

interest of the children.

         In conducting a factual sufficiency review, “a court of appeals must give due

consideration to evidence that the factfinder could reasonably have found to be clear

and convincing.” In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002); In re T.N.F., 205 S.W.3d 625,

630 (Tex. App.—Waco 2006, pet. denied).

         The primary factors to consider when evaluating whether termination is in the

best interest of a child are the familiar Holley factors, which include:

         (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 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 which 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.


In the Interest of M.H.                                                                  Page 16
Holley v. Adams, 544 S.W.2d 367, 372 (Tex. 1976); T.N.F., 205 S.W.3d at 632.

        Desires of the Children: Sandra refers to the testimony of the children’s guardian

ad litem that the children love Sandra “very much,” enjoyed their visits with her, and

showed affection toward her during the visits. This evidence is at best marginally

relevant. See In re S.N., 272 S.W.3d 45, 51-52 (Tex. App.—Waco 2008, no pet.) (“it is

doubtful that such evidence is indicative of the [child]’s conscious, volitional desire to

maintain a parent-child relationship or to permanently sever that relationship”). The

record contains scant evidence that any of the children possess sufficient maturity to

express an opinion regarding a parental preference.9 Id.

        Children’s Emotional and Physical Needs: The children have the usual emotional

and physical needs. According to a sibling assessment prepared by a social worker,

they need individual therapy and non-sibling peer groups to help them each establish

their unique identities. Sandra herself testified that she is not currently able to provide

for the children’s needs.10

        Emotional and Physical Danger to Children: The primary evidence relevant to this

factor are the children’s medical histories which are replete with instances in which they

have suffered emotionally and physically because of Sandra’s false reports of non-

existent medical conditions. The experts are divided on whether Sandra’s condition can

9
        At the time of trial, the children were 9, 7, and 5 years old.

10
        For several of the best-interest factors, Sandra refers to evidence that Bradley and Paula are
currently able to provide for the children’s needs, but in deciding whether the evidence supports the
verdict that termination of Sandra’s parental rights is in the best interest of the children, our focus must
necessarily be on Sandra and not other potential caregivers. See Holley v. Adams, 544 S.W.2d 367, 372 (Tex.
1976) (best-interest inquiry focuses on “the individuals seeking custody”).


In the Interest of M.H.                                                                             Page 17
be treated. Bradley and Paula both testified that Sandra’s visits with the children

should be supervised. This evidence supports a finding that Sandra poses a present or

future risk of danger to the children.

        Parental Abilities: Sandra herself testified that she is not currently able to provide

for their needs. The experts are divided on whether Sandra’s condition can be treated.

This evidence supports a finding that Sandra currently lacks the requisite parental

abilities.

        Available Programs: A caseworker testified that Sandra has been attending

counseling sessions three times per week, which exceeds what the Department

requested. In her own testimony, Sandra did not highlight any particular programs she

is participating in to improve her situation. Thus, there is conflicting evidence relevant

to this factor.

        Plans for the Children: Sandra’s only plan for the children at the time of trial was

for them to remain with her parents. Her parents testified that they would not allow

her to be around the children. She acknowledged her diagnoses and testified of her

desire to become well enough for her children to return. She could not give a specific

time to accomplish this other than to say “[w]hatever time frame it takes.” Thus, the

evidence relevant to this factor supports the best-interest finding.

        Stability of the Home: Sandra cannot provide the children a stable home at this

time. The evidence relevant to this factor supports the best-interest finding.

        Sandra’s Acts and Omissions (and Excuses): The children’s medical histories are

replete with instances in which they have suffered emotionally and physically because


In the Interest of M.H.                                                                Page 18
of Sandra’s false reports of non-existent medical conditions. The experts are divided on

whether Sandra’s condition can be treated.             The evidence relevant to this factor

supports the best-interest finding.

        Summary: Considering all the evidence in a neutral light, we hold that the

evidence is such that the jurors “could reasonably form a firm belief or conviction” that

termination of Sandra’s parental rights was in the best interest of the children. See

J.F.C., 96 S.W.3d at 266; T.N.F., 205 S.W.3d at 630. Thus, the evidence is factually

sufficient on this element. We overrule Sandra’s first issue.

                           Best Interest of S.H.-Conservatorship

        Bradley and Paula contend in their second issue that the court erred by denying

their motion for new trial because there is no evidence to support the jury’s refusal to

find that their appointment as joint managing conservators is in the best interest of the

children. They contend in their third and fourth issues that the challenged findings are

against the great weight and preponderance of the evidence. Sandra incorporates these

issues as part of her third issue.11 We focus first on the evidence relevant to S.H.

        Section 153.131 of the Family Code provides a rebuttable presumption that the

appointment of a parent as a child’s managing conservator is in her best interest unless

the appointment “would significantly impair the child’s physical health or emotional

development.” See TEX. FAM. CODE ANN. § 153.131 (Vernon 2008); In re J.A.J., 243 S.W.3d

611, 615 (Tex. 2007). To successfully overcome this presumption:



11
       We assume without deciding that Sandra has standing to do so even though her parental rights
have been terminated.


In the Interest of M.H.                                                                    Page 19
        the non-parent must prove by a preponderance of credible evidence that
        appointing the parent as a managing conservator would result in serious
        physical or emotional harm to the child. Evidence must be presented to
        support the logical inference that some specific, identifiable behavior or
        conduct of the parent will probably cause that harm. This link between
        the parent’s conduct and harm to the child may not be based on evidence
        that merely raises a surmise or speculation of possible harm. When a non-
        parent and a parent are both seeking managing conservatorship, “close
        calls” go to the parent.

Taylor v. Taylor, 254 S.W.3d 527, 536 (Tex. App.—Houston [1st Dist.] 2008, no pet.)

(citations omitted).

        We assume without deciding that Bradley and Paula presented evidence

sufficient to rebut the parental presumption favoring Jack. Rather, we focus on whether

the evidence conclusively establishes that it would be in S.H.’s best interest for them to

be appointed as her managing conservators or whether the jury’s adverse finding on

this issue is against the great weight and preponderance of the evidence.12 See TEX.

FAM. CODE ANN. § 153.002 (Vernon 2008) (“The best interest of the child shall always be

the primary consideration of the court in determining [conservatorship] issues”); see also

Hunter, 305 S.W.3d at 205-06. We again apply the Holley factors. See Holley, 544 S.W.2d

at 372; T.N.F., 205 S.W.3d at 632.

        In considering the no-evidence issue, we view all of the evidence in the light

most favorable to Jack, “crediting favorable evidence if reasonable jurors could, and

disregarding contrary evidence unless reasonable jurors could not.” City of Keller v.

Wilson, 168 S.W.3d 802, 807 (Tex. 2005); Hunter, 305 S.W.3d at 205-06. Because the


12
         Bradley and Paula do not challenge the jury’s refusal to find that Jack’s appointment “would
significantly impair [S.H.’s] physical health or emotional development.” See TEX. FAM. CODE ANN. §
153.131 (Vernon 2008); In re J.A.J., 243 S.W.3d 611, 615 (Tex. 2007).


In the Interest of M.H.                                                                      Page 20
burden of proof at trial was a preponderance of the evidence on the conservatorship

issues, we do not apply the heightened standard of review required for findings in

parental-rights termination cases in which the burden of proof at trial is clear-and-

convincing evidence. See J.A.J., 243 S.W.3d at 616.

        For Bradley’s and Paula’s contention that the adverse finding is against the great

weight and preponderance of the evidence, we weigh all the evidence and may set

aside the adverse finding only if it is so against the great weight and preponderance of

the evidence that it is clearly wrong and unjust. Dow Chem. Co. v. Francis, 46 S.W.3d

237, 242 (Tex. 2001); Hunter, 305 S.W.3d at 206.

        Desires of the Child: The record contains no evidence that S.H. possesses sufficient

maturity to express an opinion regarding a conservatorship preference.

        Child’s Emotional and Physical Needs: S.H. has the usual emotional and physical

needs. She needs individual therapy and a non-sibling peer group to help her establish

her unique identity. Jack testified that such services are available in his home state and

that he has a supportive family and lives in a good neighborhood where her needs can

be met.

        A social worker testified that, while S.H. was in Bradley’s and Paula’s care

during the pendency of the case, her needs were being met appropriately.

        Emotional and Physical Danger to Child: S.H. suffered emotionally and physically

on numerous occasions because of Sandra’s false reports of non-existent medical

conditions. The parties agree that S.H. must be protected from Sandra. Jack testified




In the Interest of M.H.                                                              Page 21
that, if Sandra were at some point permitted to visit S.H., he would make sure that “the

proper safety rules [were] in place and followed.”

        There is conflicting evidence in the record regarding whether Bradley and Paula

are willing and able to protect S.H. from Sandra. The Department’s witnesses are

generally not convinced of their willingness to do so. These witnesses are concerned

because of past history and in particular because of the failure of Paula, a registered

nurse, to acknowledge Sandra’s condition despite a 10-year history of similar incidents

involving Sandra or her children. However, Bradley and Paula presented evidence that

Dr. Ordona initially assured them that Sandra did not suffer from Munchausen’s

although he stated in his deposition that he later did diagnose her with this condition.

The social worker reported that Bradley and Paula want to follow the recommendations

of the various professionals with regard to Sandra and the girls and “have chosen to

accept to put their Grandchildren’s needs above the needs of their daughter.”

        Parental Abilities: Jack testified about counseling services he has received to better

understand S.H.’s needs and to gain the tools needed to develop a close relationship

with her. He described what he learned in a 4-hour parent education program and how

it would affect him if given custody of S.H.

        The evidence indicates that Bradley and Paula are also capable of providing

appropriate parenting for S.H.

        Available Programs: Jack testified about various programs and services that are

available in his home state to meet S.H.’s needs.         Similar services are available to

Bradley and Paula and have been employed during the pendency of the suit.


In the Interest of M.H.                                                                Page 22
        Plans for the Child: Jack told the jury about his plans for S.H.: how he would

change his work schedule to maximize his time with her, how extended family would

be available to help as needed, how he will allow her to maintain a relationship with

her mother, grandparents and sisters as possible, and how he wants to provide her “a

life of happiness” by showing her love and giving her the attention that she has been

deprived in the past.

        Paula testified that Bradley and she are “ready to raise the children for the rest of

their lives but ready to allow [Sandra] to have some involvement in their lives” with

appropriate “safety features.”

        Stability of the Home: Jack currently lives with his parents in an appropriate home

and has no plans to move in the near future.            Bradley and Paula also have an

appropriate and stable home environment, although their continuing relationship with

Sandra at least poses a potential threat to the stability of the home.

        Acts and Omissions (and Excuses): Jack failed to pay child support when S.H. first

moved away, but Sandra would not allow the court in that state to provide him her

address so he could make proper arrangements. After being served, Jack came to Texas

for the 14-day hearing.       Before being permitted access to S.H., he submitted to

numerous tests, interviews, and screening procedures. He has made ten or eleven trips

to Texas to see S.H. He testified that he has called to talk with S.H. almost every week.

He sought appropriate counseling and parent education services in his home state.

        Paula testified that the regularity of Jack’s phone calls was “erratic,” perhaps

twice a month. Bradley and she have been the primary caregivers for S.H. during the


In the Interest of M.H.                                                               Page 23
pendency of the case. However, we have already reviewed the evidence regarding their

unwillingness to accept Sandra’s diagnosis and the consequences flowing from that.

The jury could have inferred from the evidence that they did not come to accept the

diagnosis until the eve of trial and could have questioned the sincerity of their

acceptance.

        Sibling Relationships:13 Bradley and Paula cite Autry v. Autry, 350 S.W.2d 233, 236

(Tex. Civ. App.—El Paso 1961, writ dism’d), Dalton v. Doherty, 670 S.W.2d 422, 424 (Tex.

App.—Fort Worth 1984, no writ), and similar cases for the proposition that it is not in

the best interest of siblings to be separated absent “clear and compelling reasons.” See

also TEX. FAM. CODE ANN. § 162.302(e) (Vernon 2008) (“It is the intent of the legislature

that the department in providing adoption services, when it is in the children’s best

interest, keep siblings together and whenever possible place siblings in the same

adoptive home.”).

        However, there is no statutorily prescribed “clear and compelling” standard to

be met before siblings may be separated. See In re D.R.L.M., 84 S.W.3d 281, 303-04 (Tex.

App.—Fort Worth 2002, pet. denied).

        More importantly, the preference that siblings be kept together when possible

applies only in cases involving children of the same marriage (or non-married parents)

and not half-siblings. In re K.L.R., 162 S.W.3d 291, 306 (Tex. App.—Tyler 2005, no pet.);




13
       The Holley factors are a non-exclusive list of considerations for the best-interest determination
and other factors may also be considered. See In re C.H., 89 S.W.3d 17, 27 (Tex. 2002); In re T.N.F., 205
S.W.3d 625, 632-33 (Tex. App.—Waco 2006, pet. denied).


In the Interest of M.H.                                                                          Page 24
D.R.L.M., 84 S.W.3d at 303. Even the cases cited by Bradley and Paula recognize this

limitation. See Autry, 350 S.W.2d at 236; Dalton, 670 S.W.2d at 424.

        Nevertheless, it is undisputed that S.H.’s emotional well-being will be adversely

affected by her separation from her half-sisters. Therefore, the impact of separating the

girls is an appropriate consideration in evaluating what is in S.H.’s best interest. See

K.L.R., 162 S.W.3d at 306. And the evidence relevant to this factor indicates that it

would be in S.H.’s best interest for Bradley and Paula to be appointed as her managing

conservators (so long as they were also appointed as managing conservators of her half-

sisters).

        Summary: Viewing the evidence in the light most favorable to Jack, we cannot say

that the evidence conclusively establishes that it would be in S.H.’s best interest for

Bradley and Paula to be appointed as her managing conservators. Thus, we reject

Bradley’s and Paula’s no-evidence challenge with regard to this issue.

        Viewing the evidence in a neutral light, there is evidence on many of the relevant

factors which would have supported a verdict in favor of Jack or in favor of Bradley and

Paula on this issue. “When a non-parent and a parent are both seeking managing

conservatorship, ‘close calls’ go to the parent.” Taylor, 254 S.W.3d at 536. Thus, we

reject Bradley’s and Paula’s contention that the jury’s finding on this issue is against the

great weight and preponderance of the evidence.

                          Best Interest of M.H. and G.H.-Conservatorship

        Bradley and Paula also contend in their second issue that the court erred by

denying their motion for new trial because there is no evidence to support the jury’s


In the Interest of M.H.                                                              Page 25
refusal to find that their appointment as joint managing conservators is in the best

interest of M.H. and G.H.      They contend in their third and fourth issues that the

challenged findings are against the great weight and preponderance of the evidence.

Sandra incorporates these issues as part of her third issue.

        The evidence relevant to Bradley and Paula regarding the Holley factors and

keeping the girls together in a single family does not vary appreciably from what has

already been stated, so we will not repeat it.

        For their no-evidence claim, the issue on appeal is whether the evidence

conclusively establishes that it would be in M.H.’s and G.H.’s best interests for Bradley

and Paula to be appointed as their managing conservators. See Hunter, 305 S.W.3d at

205.

        The Department’s primary argument was (and is) that Bradley and Paula are not

willing to protect the children from Sandra. There is ample evidence in the record to

support the Department’s position. After viewing all the evidence in the light most

favorable to the verdict, we cannot say that the evidence conclusively establishes that it

would be in M.H.’s and G.H.’s best interests for Bradley and Paula to be appointed as

their managing conservators.

        Nor do we agree that the challenged findings are against the great weight and

preponderance of the evidence.       Id. at 206.   The jury heard conflicting evidence

regarding what is in the best interest of the children and determined that the

appointment of Bradley and Paula as managing conservators would not be in their best

interest. We must defer to the jury on its resolution of these issues. See Harris v. Tex.


In the Interest of M.H.                                                            Page 26
Dep’t of Family & Protective Servs., 228 S.W.3d 819, 829-30 (Tex. App.—Austin 2007, no

pet.); Hunter, 305 S.W.3d at 206.

        For these reasons, we overrule Bradley’s and Paula’s second, third and fourth

issues and that part of Sandra’s third issue which incorporates these issues by reference.

                             Denial of Summary Judgment

        Sandra contends in her second issue that the court erred by denying her no-

evidence summary-judgment motion.         “Where a motion for summary judgment is

denied by the trial court and the case is tried on its merits, the order denying the

summary judgment cannot be reviewed on appeal.” Moore v. Jet Stream Invs., Ltd., 261

S.W.3d 412, 427 (Tex. App.—Texarkana 2008, pet. denied) (citing Ackermann v.

Vordenbaum, 403 S.W.2d 362, 365 (Tex. 1966)).

        We overrule Sandra’s second issue and affirm the judgment.



                                                       FELIPE REYNA
                                                       Justice
Before Chief Justice Gray,
       Justice Reyna, and
       Justice Davis
       (Chief Justice Gray concurring with note)*
Affirmed
Opinion delivered and filed May 5, 2010
[CV06]


*       (Chief Justice Gray concurs in the judgment of the Court to the extent it affirms
the trial court’s judgment. He joins no part of the Opinion including its designation as
such rather than as a memorandum opinion. A separate opinion will not issue, due in
part to the already lengthy time this appeal has been pending.)




In the Interest of M.H.                                                            Page 27
