                        COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH

                             NO. 02-11-00025-CV


IN THE INTEREST OF E.P.C.,
A CHILD




                                   ----------

          FROM THE 323RD DISTRICT COURT OF TARRANT COUNTY

                                   ----------

                                  OPINION

                                   ----------

      On this court’s own motion, we submitted this case en banc to resolve the

conflict among opinions of this court as to whether former family code section

263.405(i) prohibits us from reviewing an issue that was properly preserved for

appellate review in the trial court in compliance with the rules of civil and

appellate procedure.   As explained below, we reaffirm that former section

263.405(i) does not preclude our appellate review of those properly preserved

issues.
                                   I. Introduction

      Appellant J.B.C. (Father) appeals from the trial court’s judgment

terminating his parental rights to his daughter E.P.C. Father contends that the

evidence is legally and factually insufficient to support the trial court’s

endangerment and best interest findings. Appellant A.L.A. (Mother) appeals from

the trial court’s judgment appointing the Texas Department of Family and

Protective Services (the Department) as E.P.C.’s permanent managing

conservator.    Mother argues in one issue that the evidence is legally and

factually insufficient to support the trial court’s best interest finding. We affirm.

                                   II. Background

      Father and Mother were married when E.P.C. was removed from them in

October 2009, and the couple remained together at trial in September and

October 2010.

      Officer Loe Wiggins of the Fort Worth Police Department testified that she

was dispatched to an apartment complex at about 5:00 p.m. on October 5, 2009.

A maintenance man had found E.P.C., approximately ten and one-half months

old, alone in an apartment. The apartment manager had called Father, who had

stated that he was picking up Mother and would return shortly. He was delayed,

and the apartment manager called him again.            The apartment manager also

called the police.

      When Officer Wiggins arrived at the apartment complex office, Mother was

holding E.P.C., who was not crying, and Father had not yet arrived. Mother told


                                           2
Officer Wiggins that she had been out looking for work since 10:30 a.m. and had

left E.P.C. with Father. She called Father to come pick her up, but E.P.C. was

not with Father when he arrived to pick up Mother. Father said that the baby had

finally gotten to sleep after crying all day, and he had not wanted to wake her, so

he left her in the apartment alone.

      Officer Wiggins testified that she contacted the Department because

E.P.C. had been abandoned in the home. Officer Wiggins opined that leaving a

child who is not yet one year old alone in an apartment endangered the child’s

physical and emotional well-being. She admitted that she saw no visible injuries

on the child and that the child appeared healthy, clean, and free of disabilities.

Officer Wiggins also acknowledged that she did not visit the couple’s apartment.

      Department investigator Callie Reynolds testified that the Department

received a call that same day, October 5, 2009, and that the allegation was that

E.P.C. had been left alone in the apartment for at least two hours. Father told

her that E.P.C. had fallen asleep, but he was not sure when. He did not want to

wake her, so he left her sleeping and drove to the Irving Wal-Mart, where Mother

had been grocery shopping.        He also looked for some tires at Wal-Mart.

Reynolds testified that Father told her that he then received the call about the

baby, and he and Mother left Wal-Mart to go home. He dropped Mother off at the

apartment complex office while he went to the apartment to unload groceries.

      Father told Reynolds that he worked nights but was home during the day

with E.P.C. He tested positive for amphetamines but denied any drug use or


                                        3
being on any meds, and the Department did not send his oral swab to a

laboratory for further testing. Father told Reynolds that he was estranged from

his own mother, and Father and Mother told Reynolds that they had no family

members to whom they felt close.

      Reynolds also testified about discrepancies in the parents’ stories:     (1)

Mother had said that she called Father to pick her up at 3:00 p.m., not 4:00 p.m.;

(2) Mother had said that they were changing a tire when the manager called, but

Father had said that he was looking at tires at Wal-Mart; and (3) Mother had said

that she never leaves the child with Father and that “she didn’t have a life” and

never left the home, but Father claimed that he watched E.P.C. often. Reynolds

also testified that the apartment complex employees’ story differed from that of

the parents. The maintenance man found E.P.C. at 3:00 p.m. He waited until

3:15 p.m. in the apartment and then took her down to the office, and an

apartment manager contacted Father at that time. Police were called at 4:57

p.m. Mother arrived at the apartment office at 5:00 p.m.

      Reynolds was concerned primarily because E.P.C. had been left alone but

also because Father showed absolutely no remorse. The Department removed

E.P.C. from her parents that night. Reynolds stated that Mother was very upset

about the removal but that Father appeared to be concerned only about whether

he would lose his job.

      Reynolds took the baby back to her office, where they stayed for a couple

of hours. Reynolds was concerned about the baby’s small size for her age. But


                                        4
E.P.C. did not appear to have been battered; there were no bruises, swelling, or

visible breaks. When changing E.P.C.’s diaper, Reynolds noticed that the bones

in the baby’s back were visible.            Reynolds testified that E.P.C. was

developmentally delayed, in that she was not able to roll over or crawl despite

being over ten months old. She also could not push up. During that two-hour

period, E.P.C. gulped down two eight-ounce bottles of formula “as if she had not

eaten in a long period of time.” Reynolds admitted, however, that the baby had

been in the apartment office for at least six hours and that she did not know

whether E.P.C. had been fed during that time.

      Reynolds testified that Mother appeared to be appropriately bonded to,

and appeared to show affection for, E.P.C. Reynolds further testified that she did

not believe that Mother had any part in the decision to leave E.P.C. alone in the

apartment.

      Amanda     Rogers,    a   Department      investigator,   testified     that   she

accompanied E.P.C. to her first medical visit at Cook Children’s Hospital on

October 6, the day after the removal. Rogers was concerned that E.P.C. was

very small for her age, and Rogers could feel some of E.P.C.’s ribs as she held

the baby during the medical assessment. Rogers said the bones were visible

when E.P.C. was unclothed. Additionally, Rogers, like Reynolds had the night

before, noted that E.P.C. was literally gulping her food, so they “continued to

allow her to eat, because she appeared [to be] still hungry.”               Rogers was

concerned that E.P.C.’s hunger was not “just from her not eating for maybe that


                                        5
morning or the night before” but was “maybe something that had been happening

more than once.” Rogers was also concerned that the baby so quickly formed “a

kind of bond” with her, a stranger. Rogers testified that the examining nurse

practitioner spoke to E.P.C.’s primary care provider, Dr. Goh, who told the nurse

practitioner that E.P.C.’s “growth and weight were on the downward trend as far

as where she should be for her age” but that they were not off the charts.

        Eight days after the removal, Rogers visited Mother and Father’s home.

Rogers observed fourteen cans of baby formula but no baby food. The absence

of food concerned Rogers because of the child’s age, developmental level, and

size.   On that same day, Rogers supervised a parent-child visit.         She was

concerned that the child had “kind of a flat [a]ffect” when interacting with her

parents and felt that the baby was more attached to her, a virtual stranger, than

to her parents. Rogers testified that Mother would hand the child to Father but

that Father would quickly give the child back to Mother. Rogers also testified,

however, that Mother appeared to interact appropriately with the child.

        Nicole Weber, another Department investigator, was also assigned to the

case the day after the removal. In her interview with Mother that day, Weber

learned that Mother had been raised by her grandparents and had little contact

with her parents. Mother had last spoken with her mother a few months before

the removal and has no contact with her father. Mother said that her father had

abused alcohol and drugs when she was a child and that he had been physically

and mentally abusive toward her, breaking her nose in one incident. She also


                                        6
told Weber that there had been domestic violence between her parents during

her childhood and that they had a history of Department intervention. Weber

testified that there had been Department cases with Mother as the victim as

recently as 2006 and 2007 with her parents as the alleged perpetrators and 2008

regarding her relationship with Father.1 Weber also testified that Mother had

been removed from her parents and placed in foster care.             Mother did not

indicate that she wanted E.P.C. placed with either of her parents.

      Mother denied alcohol and drug abuse and any history of mental illness

and stated that she was not employed but was looking for a job. Mother told

Weber that she and Father had been married since February 2009. Mother said

that she had had a normal pregnancy and delivery and that E.P.C. had no

medical conditions. Mother also told Weber that she and Father had never left

E.P.C. alone before and that he occasionally watched the baby during the day

while she looked for work.

      Weber testified that Father told her that he had been raised by his mother

and stepfather and denied being abused or neglected as a child, but Father

stated that he no longer had contact with his mother. Later, Weber testified that

Father had told her that he had suffered emotional abuse at the hands of his

mother when he was a child.        He denied drug or alcohol abuse, domestic


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


                                        7
violence, and any mental health issues. He told her that he was employed as a

security guard, that he had known Mother his whole life, and that they had

married in February 2009.

      P.C., the child’s former foster mother, testified that E.P.C. arrived at her

home about 11:30 p.m. on October 5, 2009. P.C. said that she took E.P.C. to the

doctor a few days later and that the baby weighed only 15.1 pounds. P.C. said

that “the doctor was very concerned because [E.P.C.] was underdeveloped and

underweight for someone her age.”          P.C. described E.P.C.’s physical and

developmental health:

            She seemed very thin at the time. . . . When you would hold
      her up against your chest, you could feel her -- her spine and her
      ribs were very prominent at the time. Her waistline was very small
      also compared to some of the babies we had had in our home as
      well.

            ....

             She ate like a little pig. Excuse my language, but she was so
      hungry. And she would just -- she loved everything that was given to
      her, cereal, her fruits. It’s like she couldn’t get enough. And it
      seemed like once we started giving her food, she just started to
      blossom tremendously. Her teeth started coming in, her hair was
      getting fuller, and she was getting much more active.

            ....

      She was so starved for -- she -- she was so hungry, is what I mean
      to say. It’s like she was -- she tried different things, different foods,
      and seemed to like everything we offered her. And a few months
      down the line, I believe it was in November, I will have to double
      check, she started on table foods, and really progressed well.

            ....



                                         8
             When we first got her, she couldn’t even crawl. And the
      doctor noticed that, because he set her up on the table and he was
      looking at her. And she -- she was trying to get up, but it’s like she
      didn’t quite have the energy to get up there or the strength to get up
      there yet. And so he was -- he was quite concerned.

      P.C. testified that Early Childhood Intervention Services (ECI) evaluated

E.P.C. on October 28, 2009, and then two therapists began treating her two or

three times a week, working with motor skills, balance, and crawling until the

following January. Included in E.P.C.’s records from the pediatrician’s office is

an October 28, 2009 document, titled “Home Health Certification and Plan of

Care,” that provides that his principal diagnoses of E.P.C. were “lack of

coordination,” “muscle weakness,” “failure to thrive,” “[u]nspecified delay in

development,” and “delayed milestones.” A month after her arrival in foster care,

E.P.C. could still wear a dress sized three to six months even though she was

almost twelve months old, but she was wearing clothes sized twelve to eighteen

months by the time she left. By the time E.P.C. left that foster home in mid-

February 2010, she had begun taking steps and had gained weight, at least four

pounds in the first two months.

      E.P.C.’s medical records show that her weight at birth on November 21,

2008, was seven pounds and four ounces. At her three-month checkup, she

weighed twelve pounds and two ounces. At her six-month checkup, she weighed

fifteen pounds. At her nine month checkup, she still weighed fifteen pounds. On

October 12, 2009, a week after removal, she weighed fifteen pounds and one

ounce.


                                        9
      E.P.C. quickly gained weight once she was living in foster care.           On

October 27, 2009, about three weeks after her removal, she weighed seventeen

pounds.   On November 6, 2009, E.P.C. weighed seventeen pounds and six

ounces. On December 2, 2009, she weighed nineteen pounds and one and one-

half ounces. On January 11, 2010, she weighed twenty-one pounds and eleven

ounces. On March 3, 2010, she weighed twenty-four pounds and five ounces.

Finally, at her eighteen-month checkup, she weighed twenty-five pounds.

      Father’s mother, B.M., testified that Father did not live with her until he was

fifteen or sixteen years of age because she had relinquished her rights soon after

his birth, and he was adopted. B.M. adopted him when he was a teenager after

his former adoptive parents relinquished their rights. He told her that he had

been sexually abused during his childhood by members of his former adoptive

family, as a teenager in an incident at a lake, and during one of his multiple stays

at a mental hospital. B.M. also testified that she and Father had had a sexual

relationship for about twenty-five years, which ended only because he began a

dating relationship with Mother, his first cousin once removed on his mother’s

side. B.M. also testified that Father had hit her hard in the head and had pushed

a large wooden table into her abdomen near the beginning of his relationship

with Mother.

      Quentin Dean Little testified that Father and Mother had lived in his house

from April 2008 until approximately June 2008. He testified that Mother, who was

pregnant, “was dirty. She never picked up anything, never cleaned up anything.


                                        10
She always had to have somebody do it for her. She was waited on hand and

foot. . . . [I]t was a total mess.” He also testified that another friend, Patrick, lived

in the house at the same time. Patrick had Asperger’s syndrome. Little testified

that he saw Mother slap Patrick. Little testified that he would be concerned about

Mother’s ability to parent because Father always took care of everything and

because she “t[ook] care of nothing.” He further testified that she had been given

an orphaned baby rabbit to care for, that his wife had taught her how, that he

never saw Mother feed the baby rabbit, and that it died within two days. Little

also testified that, after E.P.C.’s birth, he had seen Mother and Father without

E.P.C. at Father’s worksite and at Wal-Mart as many as eight times.

        Little testified that he had known Father and B.M. for approximately ten

years. Little also testified that he lived in B.M.’s house for approximately three

months and that B.M. told him about her prior sexual relationship with Father in

March 2009 or 2010 at her husband’s funeral. Little denied having any sexual

relationship with B.M., but he testified that Father approached him at B.M.’s

husband’s funeral and accused him of sleeping with B.M.

        Julie Little, Quentin Little’s wife, testified that Mother “didn’t take care of

herself, [Father] was the one taking care of her. She wouldn’t get up and take a

bath, she wouldn’t help clean anything, she was taking things out of [Julie’s]

room and hiding them underneath the couch kind of like a child would do.” Julie

stated that Father would “make [Mother] get in the bathtub and he would bathe

her.”


                                           11
      Julie also testified that Mother neglected and mistreated animals:

      [Mother would] just abus[e] my dog. I found, you know, I came
      home one day and his ears were bleeding, and, of course, she had
      been mean to him previously, and it’s like she claims she loved him,
      but she would turn around and kind of be rough with him, and I had
      to take him to the vet probably the next month because his ears
      wouldn’t stop bleeding.

Julie admitted that she had not seen Mother hurt the dog but stated that the vet

had said that someone had kicked the dog in his ear, and Mother was the only

one at home with him. Julie confirmed that she had shown Mother how to take

care of the baby rabbit but that Mother would not feed it even though the bottle

“was right next to her where she was l[ying].”

      Julie also testified that she saw Mother “pushing [Patrick] up against the

brick wall and beating on him. She smacked him in the face a couple of times

and then beat him in his chest and told him he was sorry and retarded and

stupid.” Julie stated that Patrick left about two weeks before Father and Mother

moved out because “he was terrified of [them]. They kept on calling him names

and [Mother] would claim he was googly-eyeing her, so [Father] would get all

offensive and tie him to a chair and make him sit in the corner or -- you know, it

was childish stuff.”

      Linda Phillips, the Department caseworker, testified that she first met with

the parents eleven days after the removal and discussed the family service plan

with them. Phillips was concerned because the parents had to be told to allow

the child to drink juice during visitations and because although they brought a



                                        12
blanket and some toys, they never brought food to the visits. When Phillips went

for a home visit, Mother would not let her see the master bedroom and told her

that E.P.C. had “no business” being in there.

      Randy Waters, a Special Investigator with the Department, testified that he

interviewed Father privately after a parent-child visit. When Waters told Father

that he knew that Father had a Department history other than that involving

Mother, Father acknowledged that he had formerly been adopted.            He told

Waters that he had been placed in two church homes as a child because his

adoptive family no longer wanted him. Waters testified that he had information

that Father had assaulted his first adoptive mother and had broken a window,

resulting in one of the church home stays. Father told Waters that the allegations

were not true. Father told Waters that his adoptive mother had thrown a knife at

him and had punched him in the mouth and that one of his adoptive parents had

knocked him out. When Waters asked Father about his stays at Terrell State

Hospital, Father said that the Department had sent him there after removing him

from his first adoptive home because the Department had no other place to put

him. Father denied that he had been placed there because he had hurt people

and pulled a knife on a child. He also denied that he had been sent to Terrell

another time for setting a fire and exhibiting physical violence toward a teacher.

After Father was discharged from Terrell, he was placed in a group home from

which he eventually ran away. He told Waters that he went back home for a few




                                       13
days, his first adoptive mother pulled a knife on him, and then he met and began

staying with his birth mother, B.M.

      Father denied to Waters that anyone had sexually abused him, except that

Father claimed that B.M. had reached into his lap and touched him one time.

Even though Father denied having a sexual relationship with his mother, he told

Waters that B.M. had told Mother that he and B.M. had engaged in a sexual

relationship because B.M. wanted to break up Mother and Father. Father also

told Waters that Little and B.M. had a sexual relationship, and he showed Waters

a picture of Little in a bed that Father claimed was B.M.’s.

      Waters also interviewed Mother. She admitted that she had engaged in

self-mutilation, cutting, while still a minor and showed him scars on her left arm.

She denied purposely letting the baby rabbit die while living with the Littles. She

stated that she and Father had left E.P.C. with relatives in Arkansas for a couple

of weeks when the baby was two months old. Mother also told Waters that

E.P.C. was with a baby sitter when Mother was seen with Father at his worksite.

      Dr. Nichelle Wiggins, a clinical psychologist, testified that she performed

psychological evaluations of both parents. She testified that Father told her that

he was raised by his parents, grandparents, an aunt, and an uncle. He told her

that he had a typical childhood and denied any abuse or mental health issues.

Father also denied that he had ever exhibited assaultive or aggressive behavior.

Dr. Wiggins administered a series of tests, and she concluded that Father is

pretty intelligent but that he “is in a great deal of denial.” She described him as


                                         14
“extremely defensive.” When asked if the knowledge that he had been in a

twenty-five-year incestuous relationship with his mother would concern her, she

replied,

      That would certainly speak volumes to one’s -- the effect it would
      have on his emotional functioning, the way he interacts with other
      people in his relationships, like with his wife. It could impact his
      parenting because of lack of boundaries that he had learned and
      been modeled for him. It could affect him on so many levels and the
      people that he comes in contact with, so certainly that would be
      significant information.

She also stated that his marrying his first cousin once removed would go along

with his problem of “lack of boundaries.”      She stated that, if left unresolved,

issues with boundaries and attachment in a parent could put a child at risk:

      Well, you’ll see neglect, and severe neglect, so leaving a child home
      alone would be an example of that. I’ve seen where children who
      are neglected when there are severe attachment issues, they may
      not develop at a healthy rate compared to other children their age
      because they’re not receiving the stimulation, whether it’s emotional,
      physical, or even nutritional-wise, so it can affect a child’s overall
      well-being if there is neglect.

      When asked if a parent experiencing such issues would fail to recognize

that a child was failing to thrive, she responded,

      Now, that happens quite a bit with people who are in total denial.
      Everybody else will see that child and say that child is just too thin,
      and that person can’t see it, and it’s usually denial. That’s one of the
      things I noticed in his psychological: Denial, minimization, and
      repression, so when one uses those types of defenses on a regular
      basis, it can keep them from seeing where there is a need to take
      action and do something different, even if that means their child is
      severely malnourished and too thin. They may not see it that way.




                                         15
      Wiggins administered the same tests to Mother. Wiggins concluded that

Mother was also in denial and repressing her feelings and that Mother tried to

present herself in a positive light.     Wiggins stated that Mother’s physical

responses (turning red and crying) indicated that she “was not sharing everything

that was going on.” She testified that Mother was not sharing very much and that

“it’s difficult to help someone when they will not open up and allow you to help

them.” Wiggins said that while Mother spoke of being abused and eventually

disclosed that she had been sexually abused, Wiggins did not believe that

Mother had resolved those issues.

      Wiggins said that Mother had never been able to live independently and

that she has dependent personality traits. Wiggins also testified that Mother’s

lack of structure has made it difficult for her to know how to impose structure and

had led to her making poor decisions that put her child and herself at risk.

Wiggins stated that Mother had a lack of insight and understanding that seemed

to contribute to her poor decisions. When asked whether her assessment was

consistent with a parent whose child has failure to thrive, Wiggins replied, “Sure.

For a young mother who doesn’t have someone there to help her and guide her,

sure. I mean, that’s not uncommon.” When asked whether a child would be safe

when parented by someone with unresolved child abuse and mental health

issues, Wiggins replied,

      No, not -- if there is aggression towards animals, people, and that
      person is not admitting that they have problems that they need to
      address and want to address, then who is to say that a child would


                                        16
      not become a victim? I mean, I wouldn’t know, but the probability
      does increase that abuse can happen or neglect if you have those
      types of issues unaddressed.

Wiggins testified that Mother admitted that she had a limited support system.

      Jessica Juarez, the CASA advocate, stated that she had seen E.P.C.

approximately twice a month since January 2010. Juarez testified that E.P.C. is

doing very well in her current foster home and is very healthy, sweet, content,

and easy-going. She is bonded with her foster family and comfortable in her

foster home. The foster parents would be interested in adopting her if she were

available. Juarez opined that the foster parents could meet E.P.C.’s needs and

provide her with a safe and loving home. Father and Mother did not testify.

      After the bench trial, the trial court found that both parents (1) engaged in

conduct or knowingly placed E.P.C. with persons who engaged in conduct which

endangered her physical or emotional well-being and (2) knowingly placed or

knowingly allowed E.P.C. to remain in conditions or surroundings which

endangered her physical or emotional well-being. The trial court also found that

termination of the parent-child relationship between Father and E.P.C. would be

in the child’s best interest and terminated the parent-child relationship between

them. But the trial court found that termination of the parent-child relationship

between Mother and E.P.C. was not in E.P.C.’s best interest and denied

termination of that relationship. The trial court also found that the appointment of

either parent as E.P.C.’s managing conservator would not be in her best interest

because the appointment would significantly impair her physical health or


                                        17
emotional development; found that the Department had “made a diligent effort to

locate . . . a relative of the parent and afford [him or her] a reasonable opportunity

to request appointment as managing conservator”; found that the appointment of

the Department as permanent managing conservator was in E.P.C.’s best

interest; and so appointed the Department.

                             III. Standards of Review

      A parent’s rights to “the companionship, care, custody, and management”

of his or her children are constitutional interests “far more precious than any

property right.” Santosky v. Kramer, 455 U.S. 745, 758–59, 102 S. Ct. 1388,

1397 (1982); In re M.S., 115 S.W.3d 534, 547 (Tex. 2003). “While parental rights

are of constitutional magnitude, they are not absolute. Just as it is imperative for

courts to recognize the constitutional underpinnings of the parent-child

relationship, it is also essential that emotional and physical interests of the child

not be sacrificed merely to preserve that right.” In re C.H., 89 S.W.3d 17, 26

(Tex. 2002). In a termination case, the State seeks not just to limit parental rights

but to erase them permanently—to divest the parent and child of all legal rights,

privileges, duties, and powers normally existing between them, except for the

child’s right to inherit. Tex. Fam. Code Ann. § 161.206(b) (West 2008); Holick v.

Smith, 685 S.W.2d 18, 20 (Tex. 1985).            We strictly scrutinize termination

proceedings and strictly construe involuntary termination statutes in favor of the

parent. Holick, 685 S.W.2d at 20–21; In re R.R., 294 S.W.3d 213, 233 (Tex.

App.—Fort Worth 2009, no pet.).


                                         18
      In proceedings to terminate the parent-child relationship brought under

section 161.001 of the family code, the petitioner must establish one ground

listed under subsection (1) of the statute and must also prove that termination is

in the best interest of the child. Tex. Fam. Code Ann. § 161.001 (West Supp.

2012); In re J.L., 163 S.W.3d 79, 84 (Tex. 2005).             Both elements must be

established; termination may not be based solely on the best interest of the child

as determined by the trier of fact. Tex. Dep’t of Human Servs. v. Boyd, 727

S.W.2d 531, 533 (Tex. 1987); In re D.T., 34 S.W.3d 625, 629 (Tex. App.—Fort

Worth 2000, pet. denied) (op. on reh’g).

      Termination decisions must be supported by clear and convincing

evidence. Tex. Fam. Code Ann. § 161.001; see also id. § 161.206(a). Evidence

is clear and convincing if it “will produce in the mind of the trier of fact a firm belief

or conviction as to the truth of the allegations sought to be established.” Id.

§ 101.007 (West 2008).         Due process demands this heightened standard

because termination results in permanent, irrevocable changes for the parent

and child. In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002); see In re J.A.J., 243

S.W.3d 611, 616 (Tex. 2007) (contrasting standards for termination and

modification).

      In evaluating the evidence for legal sufficiency in parental termination

cases, we determine whether the evidence is such that a factfinder could

reasonably form a firm belief or conviction that the grounds for termination were

proven.   In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005).             We review all the


                                           19
evidence in the light most favorable to the finding and judgment. Id. We resolve

any disputed facts in favor of the finding if a reasonable factfinder could have

done so. Id. We disregard all evidence that a reasonable factfinder could have

disbelieved. Id. We consider undisputed evidence even if it is contrary to the

finding.   Id.   That is, we consider evidence favorable to termination if a

reasonable factfinder could, and we disregard contrary evidence unless a

reasonable factfinder could not. Id.

       We cannot weigh witness credibility issues that depend on the appearance

and demeanor of the witnesses, for that is the factfinder’s province. Id. at 573,

574. And even when credibility issues appear in the appellate record, we defer

to the factfinder’s determinations as long as they are not unreasonable. Id. at

573.

       In reviewing the evidence for factual sufficiency, we give due deference to

the factfinder’s findings and do not supplant the judgment with our own. In re

H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). We determine whether, on the entire

record, a factfinder could reasonably form a firm conviction or belief that the

parent violated subsections (D) or (E) of section 161.001(1) and that the

termination of the parent-child relationship would be in the best interest of the

child. Tex. Fam. Code Ann. § 161.001; C.H., 89 S.W.3d at 28. If, in light of the

entire record, the disputed evidence that a reasonable factfinder could not have

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




                                        20
reasonably have formed a firm belief or conviction in the truth of its finding, then

the evidence is factually insufficient. H.R.M., 209 S.W.3d at 108.

                               IV. Father’s Appeal

      Father argues in one issue that the evidence is legally and factually

insufficient to support the trial court’s endangerment and best interest findings.

A. Father’s Statement of Points for Appeal

      In 2008, in an en banc decision, this court held that former family code

section 263.405(i) is “void as a violation of the separation of powers provision of

the Texas constitution.”    In re D.W., 249 S.W.3d 625, 645 (Tex. App.—Fort

Worth) (en banc), pet. denied, 260 S.W.3d 462 (Tex. 2008) (per curiam).

Specifically, we held in D.W. that section 263.405(i)

      is void because it violates the Separation of Powers Clause of the
      constitution to the extent that it forecloses our power to review
      issues properly preserved for appeal because the statute unduly
      interferes with our substantive power as an appellate court to rehear
      and determine issues on the merits that were decided in the court
      below.

Id. at 640; see also In re A.J.M., No. 02-11-00137-CV, 2012 WL 2877457, at *1

(Tex. App.—Fort Worth July 16, 2012, no pet. h.) (op. on reh’g) (en banc). 2

Thus, if an issue was properly preserved for appellate review in the trial court in

compliance with the rules of civil and appellate procedure, section 263.405(i)


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


                                         21
unconstitutionally interferes with our constitutionally conferred power to review

the issue on the merits on appeal. D.W., 249 S.W.3d at 640, 645; see A.J.M.,

2012 WL 2877457, at *1.

      In this case, Father’s first issue is properly before us. Father was not

required to raise his legal and factual sufficiency complaints in the trial court to

preserve them for appellate review because the case was tried to the bench.

See Tex. R. App. P. 33.1(d) (“In a nonjury case, a complaint regarding the legal

or factual insufficiency of the evidence . . . may be made for the first time on

appeal in the complaining party’s brief.”). Thus, this court’s holdings in A.J.M.

and D.W.—that former section 263.405(i) violates the Separation of Powers

Clause of the Texas constitution—require that we address Father’s legal and

factual sufficiency challenge on its merits. See A.J.M., 2012 WL 2877457, at *1;

D.W., 249 S.W.3d at 640, 645.

B. Endangerment Findings

      We turn now to Father’s legal and factual sufficiency challenge to the trial

court’s endangerment and best interest findings.

      1. Statutory Endangerment

      “Endanger” means to expose to loss or injury, to jeopardize. Boyd, 727

S.W.2d at 533; In re J.T.G., 121 S.W.3d 117, 125 (Tex. App.—Fort Worth 2003,

no pet.). Under section 161.001(1)(E), the relevant inquiry is whether evidence

exists that the endangerment of the child’s physical well-being was the direct

result of the parent’s conduct, including acts, omissions, or failures to act. See


                                        22
J.T.G., 121 S.W.3d at 125; see also Tex. Fam. Code Ann. § 161.001(1)(E).

Additionally, termination under (E) must be based on more than a single act or

omission; the statute requires a voluntary, deliberate, and conscious course of

conduct by the parent. J.T.G., 121 S.W.3d at 125; see Tex. Fam. Code Ann.

§ 161.001(1)(E).   It is not necessary, however, that the parent’s conduct be

directed at the child or that the child actually suffer injury. Boyd, 727 S.W.2d at

533; J.T.G., 121 S.W.3d at 125. The specific danger to the child’s well-being

may be inferred from parental misconduct standing alone. Boyd, 727 S.W.2d at

533; In re R.W., 129 S.W.3d 732, 738 (Tex. App.—Fort Worth 2004, pet. denied).

      2. Discussion

      Father admittedly left ten-month-old E.P.C. alone in the apartment while he

drove to pick up Mother from the store. The evidence is conflicting as to how

long E.P.C. was alone in the apartment, but Reynolds testified that the apartment

maintenance worker found E.P.C. at 3:00 p.m. and that Mother arrived at the

apartment office at 5:00 p.m. There is also evidence that Father shopped for

tires after leaving E.P.C. alone and that an hour and a half passed between the

time of the first call to Father and the time Mother arrived at the apartment office

to retrieve E.P.C. Reynolds also testified that Father showed no remorse about

leaving E.P.C. alone and appeared to worry more about possibly losing his job.

Father’s act of leaving ten-month-old E.P.C. alone in the apartment endangered

E.P.C.’s physical well-being. See Tex. Fam. Code Ann. § 161.001(1)(E); see

also In re S.M.L., 171 S.W.3d 472, 477 (Tex. App.—Houston [14th Dist.] 2005,


                                        23
no pet.) (stating that “a child is endangered when the environment or the parent’s

course of conduct creates a potential for danger which the parent is aware of but

disregards”). Moreover, the trial court heard additional conflicting evidence that

Mother and Father had been seen in public without E.P.C. as many as eight

other times. See In re H.R., 87 S.W.3d 691, 698–99 (Tex. App.—San Antonio

2002, no pet.) (holding evidence legally sufficient and noting, among other things,

that the appellant left the child in the care of a nine-year-old cousin while she

went out drinking).

       In addition to leaving E.P.C. unsupervised, the trial court heard evidence

that E.P.C. was very small for her age and that the bones in her back were

visible.   Mother mentioned having occasionally used a baby sitter to watch

E.P.C., but Mother and Father were E.P.C.’s primary caregivers. Mother and

Father had taken E.P.C. to the doctor regularly, but her “growth and weight were

on the downward trend as far as where she should be for her age,” even though

they were not off the charts. E.P.C. weighed only fifteen pounds and one ounce

a week after removal. E.P.C. gained two pounds in the next two weeks and a

total of four pounds in the two months after removal. E.P.C. also gained another

two pounds by January 2010.       The medical records reflect that shortly after

removal, E.P.C. was diagnosed with muscle weakness, lack of coordination,

delayed milestones, unspecified delay in development, and failure to thrive. See

In re T.T.F., 331 S.W.3d 461, 484 (Tex. App.—Fort Worth 2010, no pet.)




                                        24
(discussing child’s failure to thrive diagnosis and holding sufficient evidence

supported endangerment finding under subsection (E)).

        Father attempts to separate and minimize the distinct acts of leaving

E.P.C. unattended and not providing her with sufficient nutrition, but Father’s

arguments merely point to conflicts in the evidence.            We must leave the

resolution of those conflicts to the factfinder. See id. (citing J.P.B., 180 S.W.3d at

573).    Moreover, Father’s argument actually highlights that the Department

presented evidence that E.P.C. was exposed to a course of conduct while living

with Father, not a single act or omission, that course of conduct involving both

the failure to provide E.P.C. with proper nutrition and leaving her home alone on

numerous occasions.

        Viewing all the evidence in the light most favorable to the termination

judgment, and disregarding all contrary evidence that a reasonable factfinder

could disregard, we hold that the evidence is legally sufficient to support a

factfinder’s firm conviction or belief that Father engaged in conduct that

endangered E.P.C.’s physical or emotional well-being.          See Tex. Fam. Code

Ann. § 161.001(1)(E); J.P.B., 180 S.W.3d at 573; In re S.G.S., 130 S.W.3d 223,

238 (Tex. App.—Beaumont 2004, no pet.). Likewise, giving due deference to the

factfinder, we hold that the evidence is also factually sufficient to support the trial




                                          25
court’s finding that Father engaged in conduct that endangered E.P.C.’s physical

well-being.3 We therefore overrule this part of Father’s sole issue.

C. Best Interest Finding

      There is a strong presumption that keeping a child with a parent is in the

child’s best interest. In re R.R., 209 S.W.3d 112, 116 (Tex. 2006). Prompt and

permanent placement of the child in a safe environment is also presumed to be

in the child’s best interest. Tex. Fam. Code Ann. § 263.307(a) (West 2008). In

determining the best interest of the child, the trier of fact in a termination case

may use the following factors:

      (A)   the desires of the child;

      (B)   the emotional and physical needs of the child now and in the
            future;

      (C)   the emotional and physical danger to the child now and in the
            future;

      (D)   the parental abilities of the individuals seeking custody;

      (E)   the programs available to assist these individuals to promote
            the best interest of the child;

      (F)   the plans for the child by these individuals or by the agency
            seeking custody;

      (G)   the stability of the home or proposed placement;


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


                                        26
      (H)      the acts or omissions of the parent which may indicate that the
               existing parent-child relationship is not a proper one; and

      (I)      any excuse for the acts or omissions of the parent.

Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976) (citations omitted).

These factors are not exhaustive; some listed factors may be inapplicable to

some cases; other factors not on the list may also be considered when

appropriate. C.H., 89 S.W.3d at 27. Furthermore, undisputed evidence of just

one factor may be sufficient in a particular case to support a finding that

termination is in the best interest of the child.     Id.   On the other hand, the

presence of scant evidence relevant to each factor will not support such a

finding. Id.

      E.P.C. is too young to have expressed any desire concerning the

termination of Father’s parental rights. Mother and Father had taken E.P.C. to

the doctor regularly for checkups, and she did not have any visible injuries and

was clean and appropriately dressed at the time of removal. However, Father

admittedly left ten-month-old E.P.C. alone in the apartment, and Reynolds

testified that Father showed no remorse for having done so. In addition, E.P.C.

was diagnosed with failure to thrive and was noted to have muscle weakness,

lack of coordination, unspecified delay in development, and delayed milestones.

There is also evidence that E.P.C. had “kind of a flat [a]ffect” when interacting

with her parents at a visitation eight days after removal, bonded easily with

strangers, became very attached to each of her foster families, and excelled



                                          27
since being placed into foster care. The trial court also heard testimony that

Father only interacted briefly with E.P.C. at visitations and would quickly give the

child back to Mother. Father completed his service plan, but there is evidence

that he was not particularly forthcoming during the process and should have

learned more than what he did from working services.

      In addition, Father is estranged from his mother, and there is evidence that

he may have engaged in an incestuous relationship with his mother for twenty-

five years. Father denied having had any such relationship with his mother, but

the trial court heard evidence that Father physically confronted Quentin Little,

accusing him of having an intimate relationship with his mother, and that Father

told Julie Little about the incestuous relationship before she learned of the

relationship from B.M.    The trial court also heard testimony that Father had

physically assaulted his mother as recently as 2008, that Father has a history of

physically assaultive behavior, and that he was exposed to sexual and physical

abuse as a child.

      Father, however, represented to Dr. Wiggins that he had a typical

childhood, denying any abuse or mental health issues. Dr. Wiggins testified that

Father is intelligent but that he is extremely defensive and has a “great deal of

denial.” She also described how Father’s relationship with B.M. “could affect him

on so many levels,” including problems with a lack of boundaries and attachment

disorders. Dr. Wiggins opined that Father had not dealt with these issues and

that they could lead to his failure to recognize neglect—such as leaving a child


                                        28
home alone or failing to feed and nurture the child—and prevent him from

bonding with his own children.

       Viewing the evidence in the light most favorable to the finding and

judgment, we conclude that the evidence is such that the factfinder could

reasonably form a firm belief or conviction that termination of Father’s parental

rights is in E.P.C.’s best interest. See J.P.B., 180 S.W.3d at 573. We also

conclude, viewing all the evidence in a neutral light, that the factfinder could

reasonably form a firm conviction or belief that termination is in E.P.C.’s best

interest. See H.R.M., 209 S.W.3d at 108. We therefore hold that the evidence is

legally and factually sufficient to support the trial court’s best interest finding, and

we overrule the remainder of Father’s sole issue.

                                 V. Mother’s Appeal

       In one issue, Mother contends that the evidence is legally and factually

insufficient to support the trial court’s finding that the appointment of the

Department as E.P.C.’s permanent managing conservator is in the child’s best

interest.

A. Applicable Law

       The Supreme Court of Texas has explained,

             Section 153.002 provides that the primary consideration in
       determining issues of conservatorship and possession of and access
       to the child is always the child’s best interest. Section 153.005
       authorizes the appointment of a managing conservator, and
       provides that the managing conservator must be “a parent, a
       competent adult, an authorized agency, or a licensed child-
       placement agency.” The Code creates a rebuttable presumption


                                          29
      that a parent will be named a child’s managing conservator, unless
      the court finds that such appointment would not be in the child’s best
      interest “because the appointment would significantly impair the
      child’s physical health or emotional development.” . . .

            ....

             . . . [T]he quantum of proof required to support a termination
      decision differs from the level necessary to support a
      conservatorship appointment.        Termination decisions must be
      supported by clear and convincing evidence. Due process compels
      this heightened standard because terminating the parent-child
      relationship imposes permanent, irrevocable consequences. On the
      other hand, a finding that appointment of a parent as managing
      conservator would significantly impair the child’s physical health or
      emotional development is governed by a preponderance-of-the-
      evidence standard. These differing proof standards, in turn, affect
      the method of appellate review, which is more stringent for
      termination decisions than for those regarding conservatorship. In
      evaluating the factual sufficiency of evidence supporting termination,
      an appellate court must consider “whether the evidence is such that
      a factfinder could reasonably form a firm belief or conviction about
      the truth of the State’s allegations.” Legal-sufficiency review is
      similarly heightened when parental rights have been terminated.
      Conservatorship determinations, in contrast, are subject to review
      only for abuse of discretion, and may be reversed only if the decision
      is arbitrary and unreasonable. Because different standards apply,
      evidentiary review that results in reversal of a termination order may
      not yield the same result for a conservatorship appointment. As we
      have said, a “finding that must be based on clear and convincing
      evidence cannot be viewed on appeal the same as one that may be
      sustained on a mere preponderance.”

J.A.J., 243 S.W.3d at 614–16 (citations omitted).

      In light of this recent explanation by the Supreme Court of Texas of the

different standards of review for termination and conservatorship, we decline

Mother’s entreaty that we apply a heightened standard to the trial court’s




                                       30
conservatorship determination in this case. Instead, as we explained a few years

ago,

              The trial court has wide latitude in determining the best
       interests of a minor child. We will reverse the judgment of the trial
       court only when it appears from the record as a whole that the court
       has abused its discretion. A trial court abuses its discretion if it acts
       arbitrarily and unreasonably or without reference to guiding
       principles. An abuse of discretion does not occur as to factual
       matters as long as some evidence of a substantive and probative
       character exists to support the trial court’s decision. Legal and
       factual sufficiency are not independent grounds for review in
       conservatorship cases, but they are relevant factors in deciding
       whether an abuse of discretion occurred. In determining whether
       there has been an abuse of discretion because the evidence is
       legally or factually insufficient to support the trial court’s decision, we
       engage in a two-pronged inquiry: (1) Did the trial court have enough
       information upon which to exercise its discretion; and (2) did the trial
       court err in applying its discretion? The traditional sufficiency review
       comes into play with regard to the first question. With regard to the
       second question, we determine, based on the elicited evidence,
       whether the trial court made a reasonable decision.

             ....

              A court’s primary consideration in any conservatorship case
       shall always be the best interest of the child. Courts may use the
       nonexhaustive list of Holley factors to determine the child’s best
       interest. . . .

In re W.M., 172 S.W.3d 718, 724–26 (Tex. App.—Fort Worth 2005, no pet.)

(citations omitted). Because the Holley factors are set forth above, we do not

repeat them here, but we apply them in deciding whether the trial court abused

its discretion by finding that the appointment of the Department as E.P.C.’s

permanent managing conservator is in E.P.C.’s best interest. See id. at 725–26.




                                           31
B. Discussion

      Reynolds testified that Mother appeared to be appropriately bonded to and

to show affection for E.P.C. Rogers similarly testified that Mother appeared to

interact appropriately with the child. The trial court also heard testimony that

Mother successfully completed her service plan and that Mother did not have any

part in the decision to leave E.P.C. alone in the apartment. However, Mother

does have responsibility for E.P.C.’s failure to thrive diagnosis because the

evidence establishes that Mother was one of E.P.C.’s primary caretakers.

      There is also evidence of Mother’s occasionally callous behavior toward

others. Quentin Little testified that he saw Mother slap Patrick, the man with

Asperger’s syndrome who was living at the Littles’ home when Mother and

Father lived there, and Julie Little testified that she had seen Mother push, hit,

and verbally abuse Patrick. In addition, there is evidence that Mother allowed a

baby rabbit to die after begging the Littles to keep it and promising to care for it

and that Mother abused the Littles’ family dog.

      Mother has also not ever been able to live independently and has

dependent personality traits, and her lack of structure causes her to make poor

decisions that put herself and her child at risk. Dr. Wiggins opined that Mother’s

condition was consistent with someone whose child had been diagnosed as

failure to thrive. Mother is not close with her family and does not have anyone

other than Father to help her care for the child. She also has been the victim of

physical and mental abuse through her childhood. Mother also admitted having


                                        32
self-mutilated. Dr. Wiggins testified that Mother has not addressed the issues

from her childhood and that she has repressed those feelings.

      The evidence presented to the trial court is obviously conflicting, but we do

not resolve the conflicts, for that is within the factfinder’s province. We thus hold

that the trial court had sufficient information upon which to exercise its discretion

and did not abuse its discretion by naming the Department as E.P.C.’s

permanent managing conservator. See W.M., 172 S.W.3d at 725. We therefore

overrule Mother’s sole issue.

                                 VI. Conclusion

      Having overruled Father’s and Mother’s respective issues, we affirm the

trial court’s judgment.




                                                    ANNE GARDNER
                                                    JUSTICE


EN BANC

DAUPHINOT, J., filed a concurring opinion.

WALKER, J., filed a concurring opinion, in which GABRIEL, J., joins.

DELIVERED: August 30, 2012




                                         33
                         COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                              NO. 02-11-00025-CV


IN THE INTEREST OF E.P.C.,
A CHILD



                                     ----------

        FROM THE 323RD DISTRICT COURT OF TARRANT COUNTY

                                     ----------

                          CONCURRING OPINION

                                     ----------

      I agree with the majority’s conclusion that the trial court did not abuse its

discretion by appointing the Texas Department of Family and Protective Services

as E.P.C.’s permanent managing conservator.         I further agree that the trial

court’s judgment should be affirmed.       But for the reasons expressed in my
dissenting and concurring opinion in In re A.J.M.,1 I believe that J.B.C. (Father)

forfeited his conclusory sufficiency issue.

      In his sole issue, Father contends that the evidence is legally and factually

insufficient to support the trial court’s endangerment and best interest findings.

In his timely-filed statement of points, Father stated,

      A new trial should be granted to [Father] because the evidence is
      legally and factually insufficient to support this Court’s judgment.
      Specifically, the evidence is legally and factually insufficient to
      support this Court’s judgment in that the State produced insufficient
      evidence to justify the termination of [Father’s] parental rights.

      Former section 263.405(i) provided that “a claim that a judicial decision is

contrary to the evidence or that the evidence is factually or legally insufficient is

not sufficiently specific to preserve an issue for appeal.”2         Based on the

reasoning of my




      1
       See No. 02-11-00137-CV, 2012 WL 2877457, at *12–14 (Tex. App.—Fort
Worth July 16, 2012, no pet. h.) (op. on reh’g) (en banc) (Dauphinot, J.,
dissenting and concurring).
      2
        Act effective Sept. 1, 2005, 79th Leg., R.S., ch. 176, § 1, 2005 Tex. Gen.
Laws 332, 332 (adding subsection (i), requiring statement of points, to section
263.405 of the family code), repealed by Act effective Sept. 1, 2011, 82nd Leg.,
R.S., ch. 75, §§ 5, 8, 2011 Tex. Gen. Laws 348, 349 (deleting subsection (i) but
noting that former section 263.405, including subsection (i), is still in effect for
final orders rendered before September 1, 2011).


                                          2
dissenting and concurring opinion in In re A.J.M.,3 I believe that Father forfeited

his issue.



                                                   LEE ANN DAUPHINOT
                                                   JUSTICE

DELIVERED: August 30, 2012




      3
       See 2012 WL 2877457, at *12–14.


                                        3
                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-11-00025-CV


IN THE INTEREST OF E.P.C.,
A CHILD



                                    ----------

        FROM THE 323RD DISTRICT COURT OF TARRANT COUNTY

                                    ----------

                         CONCURRING OPINION

                                    ----------

      I concur in the majority opinion’s disposition of this appeal.     For the

reasons set forth in my concurring opinion in In re A.J.M., No. 02-11-00137-CV,

2012 WL 2877457, at *10–12 (Tex. App.—Fort Worth July 16, 2012, no pet.) (op.

on reh’g) (en banc) (Walker, J., concurring), I would hold that Father waived his

sole issue on appeal by not including that issue in his statement of points and

also by not making an as-applied challenge to former Texas Family Code section

263.405(i). See Act effective Sept. 1, 2005, 79th Leg., R.S., ch. 176, § 1, 2005

Tex. Gen. Laws 332, 332 (adding subsection (i), requiring statement of points, to
section 263.405 of the family code), repealed by Act effective Sept. 1, 2011,

82nd Leg., R.S., ch. 75, §§ 5, 8, 2011 Tex. Gen. Laws 348, 349 (deleting

subsection (i) but noting that former section 263.405 remains in effect for final

orders rendered before September 1, 2011). Accordingly, I would affirm the trial

court’s termination order. Because the majority opinion affirms the trial court’s

termination order on different grounds, I respectfully concur.




                                                   SUE WALKER
                                                   JUSTICE


GABRIEL, J., joins.

DELIVERED: August 30, 2012




                                         2
