## In The Court of Appeals Sixth Appellate District of Texas at Texarkana

No. 06

- 21

- 00107

- CV

IN THE INTEREST OF S.P., A CHILD

On Appeal from the County Court at Law No. 2

Gregg County, Texas Trial Court No. 2020

- 1949

- CCL2

Before Morriss , C.J., S tevens and Carter , * JJ. Memorandum Opinion by Chief Justice Morriss

____________________________________ *Jack Carter, Justice, Retired, Sitting by Assignment2 

### ME MORANDUM OPINION The Department of Family and Protective Services (Department) brought a p etition for protection of a child, for conservatorship, and for termination of Father ’ s parental rights 1 to two

year - old S.P. 2 Following a bench trial, the trial court found that termination of the parent

- child relations hip was in S.P. ’ s b est interest , a nd it terminated Father ’ s parental rights pursuant to Section 161.001(b ) ( 1), grounds (D) and (E)

. 3 See T EX
. F AM
. C ODE A NN
. §§ 1 6 1.001(b ) ( 1 ) ( D), (E) (Supp.)

. Father ’ s appeal challenges the legal and factual sufficiency of the evidence as to the
statutor y grounds for termination. 4 Because we conclude that the grounds for termination are supported by clear and convincing evidence, we affirm the trial court ’ s judgment. Applicable Law and Standard of Review

“ The natural right ex isting between p arents and th ei r childr en is of constitutional dimensions. ” In re E.J.Z

. , 547 S.W.3d 339, 343 (Tex. App.

— Texarkana 2018, no pet.) (quoting Holick v. Smith , 685 S.W.2d 18, 20 (Tex. 1985)). “ Indeed, parents have a fundamental right to make decisions concer ning ‘ the car e, custody , and control of their children. ’” Id. (quoting Troxel v. Granville , 530 U.S. 57, 65 (2000)). “ Because the termination of parental rights implicates fundamental inter ests, a higher standard of proof

— clear and convincing evidence

— is required at

1 Mother’s r ights w ere also terminated , but she did not appeal the trial court’s order of termination

.
2 To protect the child’s privacy, we r efer to appellant as Father and to the child by initials. See T EX
. R. A PP
. P. 9

. 8 (b)(2).

3 Father su bmits his challenges to the tr ial cour t’s term ination order in t wo points of error

. However, b ecause Section 161.001(b)(1), grounds (D) and (E) , are in ter re lated, we have consolidated the two points of error in our discussion.

4 Fa th e r does not challenge the trial court’s find ing that termina tion of his parental rights was in S.P.’s best interest.3

tr ial. ” I d. (quoting In re A.B. , 437 S.W.3d 498, 502 (Tex. 2014)). “‘ Clear and convincing evidence ’ is that ‘ 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 so ught to be es ta blished. ’” Id. (quoting T EX
. F AM
. C ODE A NN . § 101.007 ) ( citing In re J.O.A. , 283 S.W.3d 336, 344 (Tex. 2009)). Based on this standard, we are required to “ engage in an exacti ng review of the entire record to determine if the evidence is . . . sufficien t to suppo rt the termination of parental rights. ” Id

. (quoting In re A.B. , 437 S.W.3d at 500). Yet, “ [d]espite the profound constitutional interests at stake in a proceeding to termin ate parental rights, ‘ the rights of natural parents are not absolute; pr otection of the child is paramount. ’” Id

. at 344 (quoting In re A.V. , 113 S.W.3d 355, 361 (Tex. 2003) )

. “ A child ’ s emotional and physical interests must not be sacrificed merely to preserve parental rights. ” Id

. (quoting In re C.A.J. , 459 S .W. 3 d 175, 17 9 (Tex. A pp.

— Texar kana 2015, no pet.)).

“ In our legal sufficiency review, we consider all the evidence in the light most favorable to the findings to determine whether the fact

- finder reasonably could have formed a firm belief or conviction th at the ground s for ter mination were proven. ” In re L.E.S. , 471 S.W.3d 915, 920 (Tex. App.

— Texarkana 2015, no pet.) (citing In re J.P.B. , 180 S.W.3d 570, 573 (Tex. 2005) (per curiam ); In re J.L.B. , 349 S.W.3d 836, 846 (Tex. App.

— Texarkana 2011, no pet.)). “ We
assume t he trial court, ac ting as fact

- finder, resolved disputed facts in favor of the finding, if a reasonable fact

- finder could do so, and disregarded evidence that the fact

- finder could ha ve reasonably disbelieved or the credibility of which reason ably could be doubted. ” Id. (c iting In re
J.P.B. , 180 S.W.3d at 573).4

“ In our review of factual sufficiency, we give due consideration to evidence the trial court could have reasonably found to be cl ear and convincing. ” Id. (citing In re H.R.M. , 209 S. W.3d 105, 109 (Tex. 2006) (p er curiam )). “ We consider only that evidence the fact

- finder reasonably could have found to be clear and convincing and determine ‘ whether the evidence is such that a fact[

- ]finder could reasonably form a firm belief or convict ion about the truth of the

. . . alle gations. ’” Id. (quoting In re H.R.M. , 209 S.W.3d at 109 (quoting In re C.H. , 89 S.W.3d 17, 25 (Tex. 2002) )) ( citing In re J.F.C. , 96 S.W.3d 256, 264, 266 (Tex. 2002) )

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

- find er could not have credited in favor of the finding is so significant that a fact

- finder could not reasonably have formed a firm belief or conviction, then the evidence is factually insufficient. ” Id. (quoting In re J.F. C. , 96 S.W.3d at 266)

.

“ Only one predicat e findin g under Section 161.001[b](1) is necessary to support a judgment of termination when there is also a finding that termination is in the child ’ s best interest. ” In re O.R.F. , 417 S.W.3d 24, 37 (Tex. App.

— Te xarkana 2013, pet. denied) (quoting
In re A.V. , 113 S.W. 3d at 362) ( citing In re K.W. , 335 S.W.3d 767, 769 (Tex. App.

— Texarkana 2011, no pet

. )). Yet, because the trial court ’ s finding under ground s D and E “ may have implications for

. . . parental right s to other chi l dren, ” due process demands that w e review the trial court ’ s findings under th e s e ground s . In re N.G. , 577 S.W.3d 230, 234 (Tex. 2019) (per curiam)

.5

Sufficient Evidence Supports Termination Under Grounds D and E When the record demonstrates c lear and con v i n cing evidence that a parent has

“ k nowingly placed or knowingly allowed the child to remain in conditions or surroundings which endanger the physical or emotional well

- being of the child, ” termination is proper on ground D. T EX
. F AM
. C ODE A N N . § 161.001 ( b ) ( 1 ) ( D). “ A child is endangered w h en the

e nvironment creates a potential for danger that the parent is aware of, but disregards. ” In re
N.B. , No. 06

- 12

- 00007

- CV, 2012 WL 160 5457, at *9 (Tex. App.

— Texarkana May 8, 2012, no pet.) (mem. op.). “‘ Environme n t ’ refers to the acceptability of t h e child ’ s living conditions and a parent ’ s conduct in the home. ” In re D.A.B. , No. 04

- 19

- 00629

- CV, 2020 WL 1036433, at *3 (Tex. App.

— San An tonio Mar. 4, 2020, no pet.) (mem

. op.). “ [S]ubsection (D) permits termination [ o f parental rights] based on a sin g le act o r omission [by the parent]. ” In re L.C. , 145 S.W.3d 790, 797 (Tex. App.

— Texarkana 2004, no pet.); see In re A.B. , 125 S.W.3d 769, 776 (Tex. App.

— Texarkana 2003, pet. denied). “ Inappropriate, abusiv e, or unlawf u l conduct by a parent . .

. can cre a te an en vironment that endangers the physical and emotional well

- being of a child as required for termination under subse ction ( D ). ” In re R.W. , 627 S.W.3d 501, 511 (Tex. App.

— Texarkana 2021 , no pet. )

. “ En danger ” mean s , for purposes of grounds D and E, “ to

ex pose to loss or injury; to jeopardize. ” Tex. Dep ’ t of Human Servs. v. Boyd , 727 S.W.2d 531, 533 (Tex. 1987); see In re L.E.S. , 471 S.W.3d at 923. Termination is permitted on ground E when there is c lear and con v i n cing evidence that the parent “ engaged i n con duct . . . which endangers the physical or emotional well

- being of the child. ” T EX
. F AM
. C ODE A NN . § 161.001(b ) ( 1 ) ( E)

. “ It is not necessary that the conduct be6

directed at the child or that the child actual l y suffer injury. ” L.E.S. , 471 S.W.3d at 9 23. “ Under subsecti on (E), it is sufficient that the child ’ s well

- being is jeopardized or exposed to loss or injury. ” Id

. (citing Boyd , 727 S.W.2d at 533; I n re N.S.G. , 235 S.W.3d at 367). “ Furthe r, termination u n der subsection (E) must be based on more than a sin gle act or omission. Instead, a

“ voluntary, deliberate, and conscious course of conduct by the parent is required. ’” Id

. (quoting Perez v. Tex. Dep ’ t of Protective & Regulatory Servs. , 1 48 S.W.3d 427, 4 3 6 (Tex. App.

— El Paso 2004, no pet.) (citing In re K. M.M. , 993 S.W.2d 225, 228 (Tex. App.

— Eastland 1999, no pet.))). Courts may further consider parental co nduct that did not occur in the child ’ s presence, including conduct before the chil d ’ s birth or a f t e r the child was removed from a parent ’ s care. Walker v. Tex. Dep ’ t Family & Protective Servs. , 312 S.W.3d 608, 617 (Tex. App.

— Houston [1 st Dist.] 2009, pet. denied). Because they are interrelated, we consolidate our examination of ground s D and E.
K i m berly DeGrasse, an investigator with the Depar t ment, testified that she was the investigator assigned to S.P. ’ s case, which also involved two other children , Z.B. and E.P. 5 Initially, DeGrasse received a report concerning the physical abu se of E.P. aft e r E.P. had been taken to the emergency room by F ather. DeGrasse said that she arrived at the hospital around 1:00 a.m., when she learned that E.P. was going to be air lifted to Children ’ s Hospital in Dallas. But before E.P. was airlifted, DeGr asse was ab l e to take photographs of E.P. , who had

“ noticea b le marks and bruises to his face ” and “ a small bruise in the inside of his ear. ” E.P. also had an abrasion on his left cheek, bruising on his right eye, and dried blood on his lower lip.

5 DeGrasse recalled that at the time of the investigatio n, Z. B. was seven years old , S.P. was eighteen months old , and E.P. was eight mo nt h s old. This appeal involves the terminatio n of Fat her’s pa rent al rights to S.P.7

DeG rasse conceded t h a t an eight

- month

- old child might get bruises and bumps while learning to walk

. But she did not believe that E.P. ’ s injuries were caused in that manner, stating, “ [ T]he marks and bruises that I observed on his head and fac e were consistent with physical a b use. ” Although DeGrasse was not able to s p eak to Father at the hospital, she did have the opportunity to speak to detectives who had spoken to Father. DeGrasse was told by detectives that Father h ad been the only paren t with the children the night o f t he incident. According to the detectives, F a ther told them “ that he had tripped and fallen over a boot, and that he blacked out at some point and he wasn ’ t re ally sure what had happened. ” The detectives also told De Grasse that there had been several i n c o nsistencies in F ather ’ s story and that those inconsistencies caused her to be concerned. Yet, Father told the emergency room staff that “ he had

- - was falli ng and tossed [ E. P.] up onto the bed, and [E. P .]

- - [E. P .] must have rolled off his bed and that w o uld be how he sustained the injury. ” In addition , E. P

. ’ s mother (Mother) told DeGrasse that on her way home from eating dinner with a friend, she receive d a pho ne call from Father informing her that E .P. was hav ing a difficult time breathing and that h e could not support his head. Accord i ng to DeGrasse, the incident resulting in E. P

. ’ s injuries occurred around 7:30 p.m., but Father did not take E. P . to th e hospital until around 9:30 p.m. There was also evidence that Father did not take E.P. to the

ne a r e st hospital. On October 26, 2020, a fter the decision had been made to remove him from life support, E. P . passed away. Suzanne Dakil, M.D., who is board certified in child abuse pediatrics, testified that she

s aw E.P. while he was in the pediatric in t e n sive care unit on October 24, 2020. According to8

Dakil, E.P. arrived at the hospital unresponsive. Dakil immediately set out to understand the events lea ding up to E.P. ’ s injuries. Initially, Dakil spoke with M other on the telephone

. Mother explaine d t o Dakil that Father contacted her b y telephone and told her “ something was wrong with [E.P.] ” Dakil stated, “ [Mother ’ s] understanding of what had happened was that F ather had been carrying [E.P.] and had fallen p otentially tr ipped over something that w a s on the floor and fallen while carry i ng [E.P.]; and that was the extent of what she knew. ” Dakil testified that her initial medical assessment for E.P. “ wa s that he had significant brain swelling and subdural hemo rrhage associ ated with trauma. The seve r i t y of his trauma was not consistent w ith a simple fall, even from an adult ’ s height, and [she] was highly concerned for child abuse. ” Dakil stated that, af ter E.P. arrived at the hospital, the hospital staff did a CT scan of his brain. Explaining
E.P. ’ s i njuries, Dakil stated, “ He had what we would say is global cerebral edema, meaning the entire brain was enormously swollen, which can lead to irreversible brain damage. ” According to Dakil, E.P. was not responsiv e and was not breathing on his own

. She s a id that the ultimate cause of E.P. ’ s death was that “ [t]he brain swelling ultimately resulted in hi s inability

- - to live without massive amounts of suppo rt. And if I remember correctly , ultimately, he was brain dead

. ” Dakil stated that what had been r e p orted as causing E.P. ’ s injuries did not match the child ’ s injuries, and that based on her training and experience, his injuries were more likely to hav e been caused by “ [s]eve re shaking, rapid acceleration, de celeration, back and forth movement resulti n g in bleeding around the brain, bl e eding in the back of the eye and swelling of the brain tissue. ”9

On cross

- examination, Dakil stated that E.P. could n ot have caused his own injuries, and , when asked if the inj uries were inf licted intentionally, she st at e d , “ So the

- - the acts that were done, whatever they were, would have been intentional; it wouldn ’ t have been accidental to shake the child. Whether or not t he intention w as to kill the child, I can ’ t spea k to that. ” 6 Dusty Seay, a physical evidence s p e cialist with the Longview Police Depa r tment , 7 explained that it was her responsibility to go to Mother and Father ’ s trailer to document the scene and to dete rmine if the trailer was a suitable place for a child to live

. Seay described the trailer as h a v i n g a large amount of clutter. The flo o rs , which were reinforced with what she believed to be plywood, “ were very weak where you could feel the moisture had

- - had weakened [them]. ” Seay said that she was concerned about the children falling through th e f l oor while playing or jumping. She ex p lained, “ It was very weak to the point tha t we stepped over it rather than on it in that area. ”

6 By the time trial commenced, Father had been indicted on criminal charges resulting from E.P.’ s death. Consequently, he asserted his Fifth Amendment right to remain s il en t to most questions he was as ked

. Father refused to answer the following questions: (1) Did you take E.P. to the Longview Hospital on or ab out October 23, 2020 , or on or about October 24, 2020? (2) On or about October 23, 2020, what h ap pe n e d to E.P.? (3) On or about October 23, 2020, were you presen t when E .P. suffered some type of injury that ultimately led to his death? (4) On or about October 23, 2020, was there a reason why you took E.P. to Longview Regional Hospital instead of t ak in g him to Good Shepherd Hospital? (5) W er e you the primary care take r of your children on October 23, 2020? (6) Were you in the hotel that evening? (7) H ow many nights did you stay in the hotel? (8) Were you bug bom bing your residence on or about October 23 , 2 0 20? (9) Have you ever noticed a ny mar ks or bruises on t he genit als of Z.B.? (10) Did you cause the death of E.P.?

7 At the time of trial, Seay was a sergeant in training assigned to the patrol div ision of the Longview Police Department , a SWAT te am m e m ber, and an instructor for the interme diate crime scene

.10

The kitchen sink co ntained several filthy baby bottles, and there w as what looked like a dead roach next to the fa u c e t

. Seay stated that there were “ [r]oa c hes, othe r small insects [she was] not familiar with, signs of small brown and black cylindrical fecal matter of insect s, and pupal shells from where a fly had hatched

. ” She continued, “ There was an unusually larg e

n u mber of mattresses and box springs in the living room and the back bedroom. ” Because there were bug bombs in the trailer, Seay speculated that the mattresse s were standing “ up on their side . . . to allow bug bombs to kill the insects, maybe bedbugs. ” A c cording to Seay, the
mattress es were f

ilthy and had a lot of stains on them. “ [The mattresses] were not fit for anyone to sleep on. And there were some red stains on them believed to be blood. ” 8 On cros s examination, Seay was asked if the stains on t h e mattresses could have been cause d by “ the d ishes in the sink and the litter in the litter box, ” to which she responded, “ Possibly. ” In Seay ’ s opinion, the home w as very unsanitar y , and she did not believe that it was a safe environment for the childre n. De G r a s se was also responsible for S.P. and Z.B. while the Department looked for a placement home for them. 9 DeGrasse described S.P. ’ s and Z.B. ’ s condition, sta ti ng, “ They were both very dirty, had very d irty clothing on. ” At one point, Z.B. “ indicat ed ” to D e G r asse that he needed to use the bathr o om. DeGrasse had been unaware that Z.B., who was around six or seven years old at the time, was stil l wearing diapers. When Z.B. came out of the bathroom stall ,

8 Seay e xplained that the Texas Department of Public Safety had done presumptive testing on th e mattresses, and the results showed tha t the stains on the mattresses were blood. Seay conceded th at s h e did not know how the bloody s tains g ot on the mattresse s, but s he said the stains “were red, some of them bright red which would indicate to [her] th ey were newer . ”

9 At the time of the incident, the children and parents were staying at a hotel. Mo th er t old DeGrasse that they were “bomb ing their trailer for bugs ” and had rented a hotel room for the night.11

DeGrasse noticed that he had urinated on his pants. D e G rasse found some clean clothes for Z

. B., but when he began to get dressed “ it was apparent that

. . . his diaper had not been chang ed in quite a while. ” Sh e said, “ There were different degrees of d ried feces on him which indicated to me that he had no t b e en changed or cleaned

. . . in a lon g time. ” She also noticed that “ there were different colored markings on Z.B. ’ s genital area. There were different shor t strokes and then circular patterns that were not visible until his diaper was removed. ” DeGr a s s e said she had never seen any other ch i ld with similar marks on his genitals and that she was concerned fo r his safety. Specifically, DeGrasse was concerned that Z.B. had been sexually abused. DeG rasse explained that children who have been sexu ally ab u s e d “ exhibit regressive bathroom behavi o rs such as bedwetting, still wearing diapers, freq uent accidents, things like that. ” She recalled that , when she was c hanging and cleaning Z.B., “ he cried the entire time and pulled away from [her] as if he did not w a n t to be seen or touched, which is also c onsistent with sexual abuse. ” Althoug h E

. P . was not the subject of th e termination proceeding, there was evidence that S.P. had been in th e h otel room at the time E.P. sustained the injuries that result ed in h i s d eath. If S.P. actually witnessed the incident , which was, according to the evidence , an intentional act on the part of Father , that would have had a negative impact on S.P. ’ s emotional wel l

- b eing

. Likewise, Z.B. was not the subject of th e term ination proceedi n g, b ut there was evidence that he had also been subje cted to physical mistreatment on an ongoing basis while living in Father ’ s home

. Father ’ s intentional or negligent behavior of fa ili ng t o c are for Z.B. would likewise have a negative im pact on S.P. ’ s e m ot i o nal well

- being , if witnessed or known about

. Moreover, the12

Department present ed evidence that related direc tly to S.P. DeG r asse testified that when she had initial contact with S.P. and Z.B., they were both ve ry d irty and were wearin g very d irty clothing. Notably, at the time t he D epartment became involved with S.P. , she had prev iously been in the sole care o f Father. As previously mentioned , S.P. ’ s home environment was clearly substandard. Moreover, the trial court could consid er Fathe r ’ s refusal to answer questions by asserting his Fifth Amendment privilege. “ In a civil case, the fact [

- ] finder may draw reasonable inferences from a party ’ s assertion of the privilege agains t se l f

- incrimination. ” Lozano v. Lozano , 52 S.W.3d 141, 150 (Te x. 2001). Tha t does not change just because there are pending criminal charges arising out of the same c onduct. Geb hardt v. Gallardo , 891 S.W.2d 327, 330 (Tex. App.

— San Antonio 1995, no writ ). C o nsequently, the trial court was free to draw a
neg ative in ference from F ather ’ s refusal to answer questions about E.P. ’ s death or his ability or inability to care for his chil dren. Considering the entire record, we conclude that the evidence was bot h le g a lly and factually sufficient to support termi natio n under grounds D and E. As a result, we overrule Father ’ s points of error.13

We affirm the judgment of the trial court.

J osh R. Morriss, III Chief Justice

Date Submitted: January 3, 2 02 2 Date Decided: January 26 , 2022