COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

R.H.,

 Appellant,

v.

TEXAS DEPARTMENT OF FAMILY

AND PROTECTIVE SERVICES,

 Appellee. 

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§

§

§

§

§

No. 08-12-00363-CV

Appeal from

65th District Court

of El Paso County, Texas

(TC # 2012DCM00064)

O P I N I O N

This is an appeal from an order terminating the parental rights of a mother and father to 

two of their children. Both parents appeal and the causes have been consolidated for purposes of 

briefing.1 Our recitation of the facts in each opinion will be identical. Issues for review will be 

addressed separately. Since both parents have the same initials, we shall refer to them as Mother 

and Father. What follows is the tragic story of eight of their children and the birth of a ninth.

FACTUAL SUMMARY

The Texas Department of Family and Protective Services became involved with the 

family in 2006 and their parental rights to five children were terminated in 2007. Their rights to 

a sixth child were terminated in New Mexico the following year. Two little boys, EH (born 

July 5, 2008) and HH (born November 29, 2009) are the subject of this suit. In 2010, a case was 

 

1

 Mother’s appeal bears Cause No. 08-12-00363-CV. Father’s appeal bears Cause No. 08-12-00364-CV.
2

opened on EH due to neglect. It was closed a year later after Mother completed in-patient 

therapy, family violence classes, and parenting classes. The boys were ultimately removed from 

the home due to events occurring over the course of New Year’s Eve 2011 which resulted in the 

death of their infant sister, CH. According to the record, the Department received a referral of 

neglectful supervision of the three children. Early in the morning hours of January 1, 2012, 

Mother breast-fed the baby and, being both tired and intoxicated, did not return the infant to the 

playpen where she usually slept. Instead, Mother kept the child in her bed where the boys were 

also sleeping. When the boys woke their mother later in the morning, she found the baby pale, 

cold, and unresponsive. The child died later that day.2 

On January 3, 2012, the Department filed suit and the court issued an order removing the 

boys and placing them in the temporary conservatorship of the Department. Priscilla Cox was

the Department case worker for EH and HH. On January 19, 2012, she met with both parents, 

discussed the Department services they would be required to complete, and made referrals for 

those services. During the month that followed, neither parent made progress with services and 

they were missing visits with the boys. 

Toward the end of January or early February, Cox spoke with Mother about the long 

history of family violence. At the time, Mother was crying, upset, and homeless. She was 

overwrought by the child’s death and had no place to stay. She was living with friends, and 

didn’t know where Father was. Cox referred her to the Center Against Family Violence. Mother 

completed a drug and alcohol assessment and was urged to enter in-patient treatment at Aliviane

to address her use of alcohol and cocaine. She failed to do so. Similarly, Father failed to provide 

proof that he had completed any of the services required by the Department. He never provided 

 

2

 The facts relating to the events of New Year’s Eve were contained within an affidavit attached to the 

Department’s petition and reference a statement Mother gave to police after her daughter’s death. As we will 

discuss below, Mother refused to testify at trial.
3

a report from a psychosocial assessment and Cox did not know if he had completed one. Father 

was referred to the Center Against Family Violence BIP program, but he never offered evidence 

of completion. He provided no employment information. 

Given the parents’ lack of progress, missed visitation opportunities, and the fact that their 

rights to six other children had been terminated, the Department requested an aggravated 

circumstances finding against both parents.3 At a status hearing on March 7, 2012, the trial court 

made the requisite finding as to Father and waived the requirements that the Department provide 

him with a service plan or continue efforts toward reunification. The court denied the request as 

to Mother and gave her another opportunity to comply with court ordered services. At the time

of the hearing, Mother was enrolled in the Aliviane treatment program, but she left three weeks 

later and did not return. Consequently, the court granted the Department’s request for a finding 

of aggravated circumstances as to Mother and set an accelerated trial date.

This case was tried to the bench on June 26, July 27, and December 5, 2012. Cox testified 

on the first day of trial. From the beginning, the parents were having supervised visits with the 

children. The early visits were inconsistent. The parents would be late or did not show up. 

Mother later complied with weekly visits while Father did not. Mother was still living with 

Father. Cox related that the boys have special needs. She offered her opinion that neither 

Mother nor Father are capable or willing to give the children the love and support necessary to 

meet their physical and emotional needs. When questioned about their “special needs”, Cox 

recounted that the boys needed speech therapy, noting, “They do not speak.” Neither child 

would make eye contact. The younger child has a cleft pallet and needed additional surgery. 

The older boy was unable to verbalize his thoughts or feelings and was not developmentally on 

 

3

 An aggravated circumstances finding allows the court to waive the requirement of a service plan and the 

requirement that the Department make reasonable efforts towards reunification. TEX.FAM.CODE § 262.2015 (West

2012).
4

target for his speech. The Department arranged for speech therapy on a weekly basis. The 

parents were aware of the cleft pallet issues but did not believe either boy had speech issues. 

Cox then described the interaction of the parents and children during the visitation 

periods. Mother “went through the motions” but Cox had not observed any love, any attachment 

or any bond. “It’s very superficial.” Father would sit in a chair and play with the children a little 

bit, but he did not move. Mostly, he directed Mother to take them to wash their faces, or use the 

bathroom. He would leave early. After an hour or so, the children usually asked for their foster 

mother. As to the circumstances at the time of trial, Cox related that Mother and Father were 

still “in the same boat they were back in January 1st of 2012,” noting that they lived in the same 

home. They were still drinking. Mother was pregnant again. There had been no change in their 

environment or within themselves. They had no support group. Mother did not complete her 

treatment at Aliviane and left after three weeks, expressing anxiety because of her interaction 

with other patients. She did begin the out-patient program but Cox had not been informed that 

Mother completed the treatment. She never received any certificates of completion of services 

for either parent. They had not said they wanted the children back nor did they indicate what 

their plan would be if the family were reunited. EH had eye surgery but neither parent attended. 

Cox also explained that the couple never moved past supervised visits. Father was controlling

and would not allow Mother to speak unless he gave permission. Cox needed to make sure the 

children were safe, protected, and had a secure environment. The children considered their 

foster parents as Mom and Dad and had become more verbal. They were talking. They were 

able to vocalize their needs instead of pointing at objects and grunting. Cox believed termination 

to be in the children’s best interest because they needed stability and a home free from domestic 

violence. 
5

Before the second scheduled hearing in July, Father’s counsel notified the court that 

criminal indictments for the death of CH were anticipated. Counsel announced his client would 

invoke his Fifth Amendment right against self-incrimination and sought a continuance. The 

continuance was granted, but at the December hearing, Father still declined to testify, invoking 

his constitutional protection to the following questions:

• whether he is the father of either child;

• whether he and Mother are married;

• whether he complied with a service plan;

• whether he was arrested for family violence assault against Mother in 2002;

• whether he was arrested and convicted of family violence against Mother in 2008 and 

again in 2009;

• whether he was arrested for public intoxication;

• whether he was arrested for possessing a controlled substance;

• whether he was arrested for injury to a child in 2001;

• whether he was arrested for assault bodily injury in 2003;

• whether he was arrested for theft in 2004;

• whether he was arrested and convicted of driving while intoxicated; 

• whether he spent thirty days in jail for the DWI conviction;

• whether his parental rights were terminated with regard to six children;

• whether he was living with Mother on December 31, 2011;

• whether Mother is an alcoholic; and

• what transpired in the home on New Year’s Eve when CH died.

Mother also invoked her Fifth Amendment rights and refused to answer the following questions:

• whether she is the mother of EH and HH;
6

• whether she is living with Father;

• whether she is married to Father;

• whether she is a victim of family violence;

• whether her paternal rights to six other children have been terminated;

• whether she is employed;

• whether she has sought services;

• whether the boys slept in bed with her and how many beds were in the home; and

• what transpired on New Year’s Eve 2011 when CH died.

Grace Gonzales then testified that she is employed by Child Protective Services as a case

worker assistant. She had been supervising weekly visits with EH and HH since March 2012. 

These visits lasted two hours. Gonzales believed Mother felt comfortable with her while Father 

was usually upset or confrontational. She described Mother as arriving early while Father had a 

habit of being very late. He had shown up intoxicated at least twice. He would “get in [her] face 

and be very upset” if the foster parents had already taken the boys home. In Gonzales’ opinion, 

Mother interacted with the children more than Father. Mother had told her there was violence in 

the home and that she was afraid of Father. She admitted to drinking problems but claimed to 

have stopped drinking. On the other hand, she complained that Father drinks every day. Mother 

told Gonzales that she had been living with her mother for the past two weeks. 

Cox testified again at the December hearing. At this point, she had received Mother’s 

certificate of completion of the substance abuse program at Aliviane. She had completed family 

violence classes, but she was still lacking individual therapy and a psychosocial assessment. Cox 

had recently conducted a home visit to check for space and availability. Mother and Father were 

together at the residence with their newborn baby. Father never emerged from the bathroom. 
7

Cox described the small home as consisting of a kitchen, living room, and one bedroom. The 

bedroom still contained a full size bed. There were no beds for the boys but there was a playpen 

for the baby. Cox continued to be concerned about where the boys would sleep. She feared they

would sleep in the full size bed with their parents. She wanted separate living spaces for each 

child so that the same thing would not happen again. 

BURDEN OF PROOF

The natural right of a parent to the care, custody, and control of their children, is one of 

constitutional magnitude. Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985); see also Santosky v. 

Kramer, 455 U.S. 745, 758-59, 102 S.Ct. 1388, 1397, 71 L.Ed.2d 599 (1982)(acknowledging 

that a parent’s rights to “the companionship, care, custody, and management” of their children 

are constitutional interests, “far more precious than any property right.”) Not only is a parent’s 

interest in maintaining custody of and raising his or her children “paramount;” it is quite possibly 

the oldest fundamental liberty recognized by our Courts. See In the Interest of M.S., E.S., D.S., 

S.S., and N.S., 115 S.W.3d 534, 547 (Tex. 2003)(noting that Texas courts recognize that “a 

parent’s interest in maintaining custody of and raising his or her child is paramount”); Troxel v. 

Granville, 530 U.S. 57, 65, 120 S.Ct. 2054, 2060, 147 L.Ed.2d 49 (2000)(in discussing the 

constitutional stature of parental rights, the United State Supreme Court said, “the interest of 

parents in the care, custody, and control of their children--is perhaps the oldest of the 

fundamental liberty interests recognized by this Court.”); see also In re M.S., 115 S.W.3d at 549 

(“Termination of parental rights is traumatic, permanent, and irrevocable.”).

Although parental rights are of constitutional magnitude, they are not absolute. In the 

Interest of C.H., 89 S.W.3d 17, 26 (Tex. 2002)(“Just as it is imperative for courts to recognize 

the constitutional underpinnings of the parent-child relationship, it is also essential that 
8

emotional and physical interests of the child not be sacrificed merely to preserve that right.”). A 

parent’s rights may be involuntarily terminated through proceedings brought under Section 

161.001 of the Texas Family Code. See TEX.FAM.CODE ANN. § 161.001 (West 2012). Under 

this provision, the petitioner must establish one or more of the acts or omissions enumerated 

under subsection (1) as grounds for termination and must also prove that termination is in the 

best interest of the child. See id. 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. Texas Department 

of Human Services v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987).

Because of the elevated status of parental rights, and the severity and permanency of 

termination, the quantum of proof required in a termination proceeding is elevated from the 

preponderance of the evidence to clear and convincing evidence.4 Santosky, 455 U.S. at 747, 

102 S.Ct. at 1391; accord Holick, 685 S.W.2d at 20-21.; see In re M.S., 115 S.W.3d at 547 and 

In the Interest of D.S.P. and H.R.P., 210 S.W.3d 776, 778 (Tex.App.--Corpus Christi 2006, no 

pet.)(cases recognizing that involuntary termination of parental rights is a drastic remedy which 

divests the parent and child of all legal rights, privileges, duties, and powers normally existing 

between them, except for the child’s right to inherit from the parent.); see also In the Interest of 

B.L.D., 113 S.W.3d 340, 353-54 (Tex. 2003)(noting that because of the severity and permanency 

of termination, due process requires the party seeking to terminate parental rights prove the 

necessary elements by the heightened burden of proof of clear and convincing evidence.). 

“Clear and convincing evidence” means the measure or degree of proof that “will 

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

sought to be established.” TEX.FAM.CODE ANN. § 101.007 (West 2012); see In the Interest of 

 

4 This heightened standard is likewise statutorily mandated. See TEX.FAM.CODE ANN. § 161.001 (West 

2012)(stating that, “The court may order termination of the parent-child relationship if the court finds by clear and 

convincing evidence . . . .” [Emphasis added]).
9

J.F.C., 96 S.W.3d 256, 263 (Tex. 2002); see also In the Interest of J.A.J., 243 S.W.3d 611, 616 

(Tex. 2007)(contrasting the standards applied in termination proceedings and the standards 

applied in modification proceedings); In the Interest of C.D., No. 02-10-00070-CV, 2011 WL 

1743688, at *4 (Tex.App.--Fort Worth May 5, 2011, no pet.). This intermediate standard falls 

between the preponderance of evidence standard of ordinary civil proceedings and the reasonable 

doubt standard of criminal proceedings. State v. Addington, 588 S.W.2d 569, 570 (Tex. 1979); 

In re D.T., 34 S.W.3d 625, 630 (Tex.App.--Fort Worth 2000, pet. denied)(op. on reh’g). 

Although the proof must be more than merely the greater weight of the credible evidence, there 

is no requirement that the evidence be unequivocal or undisputed. Addington, 588 S.W.2d at 

570. We strictly scrutinize termination proceedings, and construe any statutes involving 

involuntary termination in favor of the parent. Holick, 685 S.W.2d at 20-21; In the Interest of 

A.V., 849 S.W.2d 393, 400 (Tex.App.--Fort Worth 1993, no writ).

STANDARDS OF REVIEW

When reviewing legal sufficiency or “no evidence” challenges to termination findings, 

we consider all of the evidence in the light most favorable to the trial court’s finding, “to 

determine whether a reasonable trier of fact could have formed a firm belief or conviction that its 

finding was true.” In the Interest of J.P.B., 180 S.W.3d 570, 573 (Tex. 2005), quoting In re 

J.F.C., 96 S.W.3d at 266. We give deference to the fact finder’s conclusions, indulge every 

reasonable inference from the evidence in favor of that finding, and presume the fact finder 

resolved any disputed facts in favor of its findings, so long as a reasonable fact finder could do 

so. Id.; In re J.F.C., 96 S.W.3d at 266. We disregard any evidence that a reasonable fact finder 

could have disbelieved, or found to have been incredible, but we do not disregard undisputed 

facts. In re J.P.B., 180 S.W.3d at 573; In re J.F.C., 96 S.W.3d at 266. A legal sufficiency or no 
10

evidence point will only be sustained when the record discloses one of the following: (1) a 

complete absence of evidence of a vital fact; (2) the court is barred by rules of law or evidence 

from giving weight to the only evidence offered to prove a vital fact; (3) the evidence offered to 

prove a vital fact is no more than a scintilla of evidence; or (4) the evidence establishes 

conclusively the opposite of a vital fact. See Swinney v. Mosher, 830 S.W.2d 187, 194 

(Tex.App.--Fort Worth 1992, writ denied).

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

finder’s findings, and we cannot supplement such judgment with our own. In the Interest of 

H.R.M., 209 S.W.3d 105, 108 (Tex. 2006), citing In re C.H., 89 S.W.3d 17, 27 (Tex. 2002) and 

Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex. 2003). “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 reasonably have formed a firm belief or 

conviction, then the evidence is factually insufficient.” In re H.R.M., 209 S.W.3d at 108; 

quoting In re J.F.C., 96 S.W.3d at 266 (internal quotations omitted). Moreover, in applying this 

standard, our review “must not be so rigorous that the only factfindings that could withstand 

review are those established beyond a reasonable doubt.” In re C.H., 89 S.W.3d at 26; citing 

Santosky, 455 U.S. at 767-69, 102 S.Ct. 1388; see also In re H.R.M., 209 S.W.3d at 108.

STATUTORY PREDICATES

Mother’s parental rights were terminated pursuant to Section 161.001(1)(M).

5

 She has 

not challenged the finding nor complained that the evidence is legally or factually insufficient. 

She has thus conceded the statutory predicate for termination.

 

5

 The statute provides that a parent’s rights may be terminated if the court finds by clear and convincing evidence 

that she had her parental rights terminated with respect to another child based on a finding that her conduct was in 

violation of Paragraph (D)(“knowingly place or knowingly allowed the child to remain in conditions or surroundings 

which engaged the physical or emotional well-being of the child”) or Paragraph E (“engaged in conduct or 
11

BEST INTEREST OF THE CHILDREN

There is a strong presumption that a child’s best interests are served by maintaining the 

parent-child relationship. In the Interest of L.M., 104 S.W.3d 642, 647 (Tex.App.--Houston [1st 

Dist.] 2003, no pet.). The Supreme Court has set forth a list of non-exclusive factors which can 

be used to determine a child’s best interests. See Holley v. Adams, 544 S.W.2d 367, 371-72 

(Tex. 1976). The determination of a child’s best interest does not require proof of any unique set 

of factors, and it does not limit proof to any specific factors. Id. Under Holley, in reviewing the 

sufficiency of the evidence to support a best-interest finding, courts may consider (1) the desires 

of the child, (2) the present and future physical and emotional needs of the child, (3) the present 

and future emotional and physical danger to the child, (4) the parental abilities of the persons 

seeking custody in promoting the best interest of the child, (5) the programs available to assist 

these individuals to promote the best interest of the child, (6) the plans for the child by the 

individuals or agency seeking custody, (7) the stability of the home or proposed placement, (8) 

acts or omissions of the parent which may indicate the existing parent-child relationship is not 

appropriate, and (9) any excuse for the parent’s acts or omissions. Id. The same evidence of acts 

or omissions used to establish grounds for termination under Section 161.001(1) may be 

probative in determining the best interests of the child. In re C.H., 89 S.W.3d at 28; In re L.M., 

104 S.W.3d at 647. Termination of the parent-child relationship is not justified when the 

evidence shows merely that a parent’s failure to provide a more desirable degree of care and 

support of the child is due solely to misfortune or the lack of intelligence or training, and not to 

 

knowingly placed the child with persons who engaged in conduct which endangers the physical or emotional wellbeing of the child”) or substantially equivalent provisions of the law of another state. Petitioner’s Exhibit 5 is a 

Texas order dated July 10, 2007, revealing that Mother’s rights to five children were terminated on both of these 

grounds. 
12

indifference or malice. Clark v. Dearen, 715 S.W.2d 364, 367 (Tex.App.--Houston [1st Dist.] 

1986, no writ). 

As we have noted, Mother did not challenge the statutory predicate for termination. She 

does bring three issues for review with regard to the trial court’s finding of best interest. In Issue 

One, she complains that the trial court failed to apply the equal inference rule6and that 

inferences from her invocation of the Fifth Amendment could not have been considered for any 

purpose. Her argument stems from the form of the questions propounded by the Department. 

For example, she quotes the following exchange:

Q: And Ma’am, you have not completed all the services that CPS has asked you to do; 

correct?

Counsel: Objection as to form, Your Honor.

The Court: Overruled.

The Witness: I am not going to answer any question under the Fifth Amendment.

From this she concludes that a reasonable inference may not be drawn:

First, there are multiple factual issues suggested by the question and under the 

equal inference rule, portions of the question may be ‘correct’ and other portions 

may be ‘incorrect’; there is no single inference which may be drawn. Is it correct

that CPS asked [Mother] to complete Services? . . . Alternatively, is it correct 

that [Mother] completed some, but not all services (whether CPS asked her to 

complete them or not)?

Directing our attention to Lozano v. Lozano, 52 S.W.3d 141, 150 (Tex. 2001) and Texas Dept. of 

Public Safety v. Sanchez, 82 S.W.3d 506, 513 (Tex.App.--San Antonio 2002, no pet.), Mother 

argues that a fact finder may draw reasonable inferences from a party’s assertion of the privilege 

against self-incrimination, but the privilege must be asserted in response to a specific inquiry so 

 

6

 The “equal inference rule” provides that a fact finder may not reasonably infer an ultimate fact from meager 

circumstantial evidence “which could give rise to any number of inferences, none more probable than another.” 

Hammerly Oaks, Inc., v. Edwards, 958 S.W.2d 387, 392 (Tex. 1997).
13

that a judge may evaluate whether an answer to the question would tend to incriminate the 

witness.

The Department counters that the equal inference doctrine is misplaced, referencing the 

following direct evidence: (1) Mother has an extensive history with the Department; (2) has 

been in and out of drug and alcohol treatment for more than a decade yet has relapsed; (3) is in a 

physically violent relationship with Father; (4) has had her parental rights to six other children 

involuntarily terminated; (5) has not expressed any desire to have the children returned to her; 

(6) did not complete services in the case; (7) had one child die while in her care; (8) has not 

made any changes to her home since the children were removed; and (9) does not have the 

ability to provide for their needs. 

Assuming without deciding that the equal inference rule is applicable here, we 

nevertheless conclude that there is clear and convincing direct evidence from other witnesses that 

supports the best interest finding. We overrule Issue One, which brings us to the next two issues. 

In Issues Two and Three, Mother challenges the legal and factual sufficiency of the evidence to 

support the best interest finding because (1) there was no plan of permanency other than foster 

care; (2) Mother had engaged in meaningful services; (3) Mother was observed to engage in 

appropriate nurturing with the children; and (4) the children would be safe with their Mother if 

they all lived with the maternal grandmother. As to a permanency plan, the Department 

established that the boys were in foster care, the foster parents do not wish to adopt them, but 

adoption is the goal. Cox recounted the services requested by the Department, the finding of 

aggravated circumstances, the services Mother completed and those she did not. We have 

detailed the testimony of Cox and Gonzalez concerning Mother’s interaction with the children 

during visitation. Mother told Gonzalez just two weeks before the final day of trial that she was 
14

living with the grandmother, but when Cox arrived for a home study, she found Mother and 

Father still living together with their newborn. The circumstances were exactly the same as on 

the tragic night that CH died. The baby was sleeping in a playpen. Mother and Father had a full 

size bed, but there were no other beds for the boys. Mother had admitted to the caseworkers that 

there was family violence in the home and that she was afraid of Father, yet she remained with 

him. She claimed to have stopped drinking but admitted Father drank regularly. She remained 

with him. She herself has been in and out of substance abuse therapy since 2000 and has 

frequently relapsed. The repetitive pattern of violence, substance abuse, and ultimate 

termination of rights to her children is sadly apparent. The trial court could have reasonably 

found Mother’s past conduct indicative of her inability to nurture the boys or to meet their

physical and emotional needs. See In re T.G., No. 14-09-00299-CV, 2010 WL 1379977, at *9 

(Tex.App.--Houston [14th Dist.] Apr. 8, 2010, no pet.). In light of all of the evidence, the trial 

court could have reasonably formed a firm belief or conviction that termination of Mother’s 

parental rights was in the best interest of the children. Because the evidence is both legally and 

factually sufficient, we overrule Issues Two and Three and affirm the trial court’s order.

March 28, 2013

ANN CRAWFORD McCLURE, Chief Justice

Before McClure, C.J., Rivera, and Rodriguez, JJ.