### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-14-00590- CV
W. W., Appellan t
v. Texas Depart m ent of Fam ily and P rote ctive Service s, Appellee

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 353 RD JUDICI AL DISTRICT NO. D-1 -F M- 13- 0014 16, H ONO RAB LE DARLENE BY RNE, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N
W.W
. appea ls from the trial court’s tempora r y c o n s e r v a to r s h ip o r d e r, which modified

a final divorce decr ee that had named her the sole manag ing conser vator of her two children, C.W
. and L .W., and instead named her temporar y possessory conser

vator. After W.W .’s son C.W
. made 1

an o u t cry that his stepfathe r had punched him in the fac e, the Texas Depa rtment of Fam i l y an d Protective Service s remove d the children from W.W .’s home on an emer g ency basis and place d the children in foster car e. When the tr i al co u rt hear d the Depa rtment’s ex parte application for temporar y order s (the “initial hear ing” ), instead of naming the Depa rtment temporar

y manag ing

conser vator as the Depa

rtment had reque sted, the court order ed the children place d with their biologica l fathe r, Z .W. (the “show-c ause order ”). At the later full adver sary hear ing, the trial court

We use initials to ref

er to appellant, her children, and their biologica l fathe r. See Tex. Fam. 1 Code § 109.002(d).modified the divorce decr ee and named Z .W. temporar y sole manag ing conser

vator of the children and W.W
. t empora

ry possessory conser

vator of the children. See generally Tex. Fam. Code §§ 156.001-.409 (go v er n ing modification of prior order s conce rning conser vatorship, support, or possession of and acc ess to child); see also id. § 262.205 (g overning suit by g overnme ntal entity for possession of child not in entity ’s possession).

I n six issues on appea l, W.W
. challeng es the temporar y decr ee of conser

vatorship on both evidenc e-suf

ficienc y g rounds and various proce dural complaints. Having revie wed the rec ord and conc luded that W.W . has fa iled to demonstrate a ny reve rsible er

ror, we will affirm.
BACK GR OUND This case arises in the context of a n e merg ency remova l by the Depa rtment of W.W .’s children from their hom e wit h o u t a court order

. See id. § 262.104. The Department removed the children from their home the day befor e it filed suit for their possession. See id. § 262.105. Under these circ umstances, the trial court in which suit has been filed is require d to hold an initial hear ing

on or befor e the first working day afte r the date the children have been taken into possession or the first working day that the court is available and to rende r order s t h at ar e n ecessary to protec t the phy sical health and safe ty of the children. See id. § 262.106. After these temporar y order s have been issued, “unless the child has alre ady been returne d to the pare nt, manag ing conser vator, possessory
conserv ator
. . . or custodian entitled to possession,” the trial court must have a ful l ad v er s ary hear ing to deter

mine whether the Department has pres en t ed sufficie nt evidenc e to justify keeping th e ch i l d re n in the Depa rtment’s temporar

y custody pending full litigation of the question of perma nent custody

. Id. § 262.201 (empha sis add ed ). I n t his case , the t rial court had returned the
2children to Z .W.’s possession afte r the initial hear ing, so it deter mined that th e a d

v e r s a r y h e aring was g overne d by the require ments found in Section 262.205, which g overns hear ings when the children

are not in possession of the Depa rtment, and Section 153.002, which provides that the best interest

o f the child shall alway s be the primary consideration of the court when deter mining i s s u es o f

conser vatorship and possession. W.W
. and Z .W. had two children toge ther, a son, C.W ., and a daug hter, L .W. After 2 they divorce d, W.W
. beg an living with K.S., and Z .W. rema rried. When the Depa

rtment remove d the children from W .W.’s home in connection with this case , C.W
. was seven y ear s old and L .W. was five y ear s old.

I n April 2014, C.W
. was at his fathe r’s house for his visitation period when he made

an outcry to his stepmother (Z .W.’s wife) that K.S. had punche d h im in the fac e. At the time of C.W .’s outcry , K.S. was on a f our-y ear defe rre d-adjudica tion felony probation for felony injury to a child based on his having previously choked, punc hed, and bit C.W., leaving visible bruises and bite marks in January 2013. The Depa rtment had soug ht to ter

minate W.W .’s pare ntal rig hts a fter this abuse of C.W
. by K.S., but it had dismiss ed the case af t er W
. W
. completed court-or dere d service s (the “f

irst CP S case” ). At the c lose of that ca se, W.W . was not orde red, but was strong ly advised by

the Depa rtment, not to allow the children to ha ve unsuper

vised contac t with K.S. On the same day that C.W
. made his outcry , C.W .’s stepmother repor ted it to the Depa rtment, which beg an investiga ting. During an i n t er view with a police detec tive and the

The fa ct s rec ited here in are taken from the testimony and exhibi ts prese nted at the full 2 adver sary hear ing. 3Depa

rtment’s investiga tor, C.W
. repe ated that K.S. had punched him in the fac e. C.W
. distinguished this incide nt of punching from the prior 2013 incident of biting and also told the investiga tors that he was attending his new school when the rec ent incident o cc u rr ed , not the school he had been attending when the 2013 incident occur red. C.W
. and his y oung er sister L .W., who had also repor ted seeing K.S. hit C.W ., we re taken to the Center for Child Protection for fore nsic interviews approximately a wee k afte r the Depa rtment’s investiga tion beg an. The police detec tive testified that C.W .’s statements in the fore nsic interview rema ined consistent with his statements to he r and the Depa rtment’s investiga

tor during their interview and “neve r beca me more exagg era tive, more drama tic.

. . . He broug ht up the last case very briefly and then he broug ht up this incident; indicated that it happens quite often.” The detec tive testified to her impress i o n t h at over a period of time, C.W
. was hit in more than one episode a nd that he indicate d “this is something that happens quite often and that he knew when [K.S .] wa s calling him ove r what’s g oing to ha ppen, and that is w hat

scar ed him” and led to C.W
. having problems sleeping at night beca use he thought K.S. was g oing to come in and hit him.

The Department removed the children f ro m W
. W
. ’s home on what it asser ted was

an em er gen cy b asi s due to immediate dang er on the same day that the fore nsic interviews of the children and a medical examination of C.W
. wer e conducte d. See id. § 262.104. I t then place d the children in foster car e. The day afte r the Depa rtment remove d the children, it filed a petition seeking

m odification of the prior order s of conser vatorship and asking for temporar y manag i n g
conser vatorship. See id. § 262.105. As mentioned above, at the initial hear ing the trial court sua spont e p l ac ed the children with Z .W. instead of naming the Depa rtment temporar

y manag ing

4conser

vator. See id. § 262.106. At the subsequent full adver sary hear ing, the trial court named Z .W. temporar y sole manag ing conser

vator and W.W
. t em porar y possessory conser

vator, finding that “ther e wa s sufficient e vidence prese nted under sections 153.002 and 262.205 of the Texas Family Code and that it is in the best interest of the Children to place the Children with the Children’s fathe r, [Z.W.] .” This appe al followed.
ANALYSIS

On appea l, W.W
. ra i s es six issues, complaining of both various “due- proce ss” violations and insufficient evidenc e supporting the trial court’s temp o ra ry decr ee of

conser vatorship. The substance o f s ev eral of W.W .’s “due- proce ss” complaints is essentially an evidentiar y -suffic iency challeng e—chie fly that the Family Code require d the Depa rtment to explore less restric tive o ptions befor e removing the children from W.W .’s home and to make rea sonable eff orts to return the children to W.W
. afte r their remova l. We first consider W.W .’s complaints of proce dural violations and then consider her challeng es to the sufficie ncy of the evidenc e supporting the trial court’s temporar

y decr ee of conser

vatorship, including her “due- proce ss” arg uments that the Depa rtment did not satisfy

the re quirements of the Family Code.

“ Due proce ss” at the initial h earing W.W
. asser

ts that her “due- proce ss” rig hts wer e violated beca use the trial court chang ed the children’ s place ment sua sp o n t e at the initial hear ing in violation of Parag raph 4(b) of the Travis County District Courts’ Fi rs t Am en ded Standing Orde r in child-protec tive-ser

vices case s (“D FPS Standing Orde r”)

. See Travis County District

5Courts’ First Amended Standing Orde r (Oc tober 17, 2007), ¶ 4 (b ), available at

https:/ /w ww . t raviscounty tx .g ov/image s/courts/Docs/StandingO rder _FirstAmende d_CPS _Civil Di strictCPS .pdf. Parag raph 4(b) provides that the Depa rtment may not modify a child’s place ment that has been previously approve d by the trial court, except in an emer g ency , without first providing the child’s attorney and g uardia n ad litem ( if one has been appointed) with thr ee day s’ notice. See id. W.W
. arg ues that the trial court violated Parag raph 4(b) beca use (1) there was no emer g ency at the time of the trial court’s order beca use the children had alre ady been remove d from her home and (2) notice wa s not provided as re quired by Parag raph 4( b). Parag raph 4(b) of the DFPS Standing Orde r does not a pply in this ca se bec ause the Depa rtment remove d the children from W.W .’s home under color of its authority to remove children

on an emer g ency basis to avoid immediate dang er, which is an emer g ency modification of place ment that is i n s t ea d go v er n ed by Parag raph 4(c)

. See id. at ¶ 4(c) ; see also Tex. Fam. Code § 262.106 (gov er n ing initial hear ing afte r taking possession of child in emer g ency without court order ). “E m erge ncy ” is define d in Parag raph 4(c) as “(1) an immediate dang er to the phy sical health or safe ty of the child; or (2) an imminent, substantial risk of harm to the child or involving the child.” See DFPS Standing Orde r at ¶ 4(c)

. The Depa rtment remove d the children from W.W .’s home on
an emer g ency basis on the same day that it conducted forensic interviews of the children and a medical examination of C.W
. The day afte r t h e children wer e remove d, the trial court hear d the Depa rtment’s application for temporar y order s as require d under Parag raph 4(c) of the DFPS Standing Orde r, which g overns emer g ency modifications of place ment. See DFPS Standing Orde r

6at ¶ 4(c) ; see also Tex. Fam. Code § 262.106(a)

. We conclude that Parag raph 4(c) g overne d the

initial hearing in this case.

Parag raph 4(c) provides that (1) in the event of an emer g ency , the Depa rtment may modify a previously approve d place ment without first obtaining approval of other parties or the court; and (2) if an emer g ency modification of a child’s place ment occur s, the Depa rtment must seek leave of the district court to approve the chang e in place ment not later than three business day s afte r the emer g ency modification if the child has no attorney or g uardia n ad litem. I n t h i s ca s e, the hear ing was held ex parte , which is specific ally permitted by the Family Code. See Tex. Fam. Code § 262.106(b). Parag raph 4(c) likewise does not contain any notice require ment re l at ed t o the subsequent reque st by the Depa rtment for leave of court to approve the emer g ency place ment. See DFPS Standing Orde r at ¶ 4(c)

. Consequently , we conclude that neither the local rule nor the statute
was violated based on W.W .’s lack of notice of the initial hea ring

. And to the extent that W.W
. is complaining that the abse nce of notice g ives rise to some “due- proce ss” violation bey ond this, we observe that the show-ca use order contemplated “only a temporar y interruption of custody to be followed by proper notice, appropr iate pleading s, and a fu l l hear ing.” Page v. Sherrill , 415 S.W .2d 642, 646 (Tex. 1967). The or der did not violate due proce ss of law. See id.

Finally , to the ex tent W.W .’s complaint i s that the trial cour t sua sponte pl ace d the children with their father, as opposed t o some other care g iver, we find no reve rsible error. At the hear ing, the trial court was char g ed with rende ring “orde rs that are nece ssary to protec t the phy sical health and safe t y ” o f the children. Tex. Fam. Code § 262.106(a)

. The Depa rtment prese nted evidenc e in the form of a sworn aff idavit by the Depa

rt m en t’s investiga tor. See id. § 262.106(b)

7(“[P] roof may be by sworn petition or aff idavit if a full adver sary hear ing is not prac ticable.” ). The aff idavit included alleg ations rela ted to C.W .’s 2 0 1 4 o u tc r y , K.S.’s prior conduct, W.W .’s denial that phy sical abuse was occur

ring , and W.W .’s pattern of continuing to leave the children unsupervised with K.S. despite K.S .’s prior conduct. Ba sed on this proof, the trial cou rt i ssued t he show-cause order , which dire cted the pare nts to appea r at a show-ca

use hear ing twe lve day s later to dete rmine whether the Depa

rtment should be named temporar y manag ing conser

vator. The order also place d the children with their fathe r, who was alre ady a possessory conser vator under t h e fi n al divorce d ec ree. Nothing in either the DFPS Standing Orde r or Section 262.106 prec luded the court fr o m placing the children with a possessory conser vator instead of the Depa

rtment at the initial hear ing. 3 Having deter

mined that the initial hear ing was conducte d in a ccor dance with the Family Code and the Tra vis County

District Courts’ local rule , we ove rrule W.W.’s fifth issue.

“ Due proce ss” at the adversar y hearing After the show-ca

use order was is s u e d , W. W. r e q u e s te d a f u ll a d v e r s ary hear ing under Family Code Sections 262.201 or 262.205. See id. §§ 262.201 (re quiring full adver sary hear ing no later than 14th day afte r date child is taken into possession by g overnme ntal entity unless extension g rante d or child has alre ady been returne d to person entitled to possession and temporar y order has been dissolved), .205 (governing suits by g overnme ntal entity to obtain possession of child not alre ady in its possession). At the hearing , W.W
. was repre sented by counsel, as wer e K.S., Z .W.,

I n fac t, if the initial hear ing is not timely held, the statute contemplates that “the child shall 3 be returne d to the pare nt, manag ing conser vator, possessory conserv ator , g u ar d i an , car etake r, or custodian who is presently enti t l ed t o possession of the child.” Tex. Fam. Code § 262.106 (empha ses adde d). 8and the children, and the court hear d testimony from W.W ., K.S., and Z .W., in addition to the police

investiga tor, the De partment’s inve stiga tor, and a CASA supervisor. W.W
. contends that her “d u e-pr ocess” rig hts wer e violated when conser vatorship,

v i s i t at ion, and child support wer e chang ed at the adver sary hear ing beca use the trial court sho u l d have applied a “totality of t he circumstance s” analy sis to determine tha t C.W .’s “unc orrobor ated” outcry and W.W .’s prior conduct in past CPS case s did not suffice to support t h e ch i l d re n ’s
remova l from her home, rely ing on Gates v. Texas Departme nt of Protective & Regulatory Servic es , 537 F.3d 404 (5th Cir. 2008). The test applied by the Fifth Circuit in Gates is not applicable here

. There , the Fif

th Circuit was deter

mining whether the Four

th Amendment rig hts of children se ized from their homes had been violated. See id. at 427-30. W.W
. has not raised a Four th A mendment challeng e on the children’ s behalf here

. We will consider W.W .’s asser tion that C.W .’s outcry and W.W .’s prior conduct wer e insufficient to support the order toge ther with her other challeng es to the sufficie ncy

of the e vidence . We overrule W.W .’s six th issue. “Due proce ss” relate d to rem oval of the children I n her third issue, r ely ing on Family Code Section 262.1015, W.W . asser ts that the Depa rtment violated her “due- proce ss” rig hts by removing the children from her home without first exploring alterna tives to remova l, such as remova l of K.S. from the children’ s residenc e or place ment with a family member of K.S.’s who was approve d for place ment during W.W .’s first CPS case . W.W
. arg ues that Section 262.1015 require d the Depa rtment to e x plore the alterna tive 4

W.W
. provides no leg al authority to support her ar gu m en t that her “due- proce ss” rig hts 4 wer e violated beca

use the Depa

rtment did not place the children with K.S.’s rela tive who had been 9o p t ion of removing K.S. from her home instead of removing the children. Howeve r, t h e p l ai n

lang uag e of Section 2 6 2
. 1 0 1 5 p rovides the Depa rtment with discretion to make such a deter mination: If the department determine s afte r an investiga

tion that child abuse has occur red and that the child would be protec ted i n the child’s home by the re moval of the a lleg ed perpetrator of the abuse, the depar tment shall file a petition for the remova l of the alleg ed perpe trator from the residenc e of the child rathe r than attempt to remove the child from the r esidenc e.
Tex. Fam. Code § 262.1015 (empha sis added)

. I n this case , th e De p artment deter mined that an imm ed i at e dang er to the children exis ted in W.W .’s home, based on C.W .’s outcry and on the Depa rtment’s post-investiga tion conce rns that phy sical abuse had continued afte r the first case , that W.W
. had continued to be unprotec tive of the children despite the finding s in the previous case , and that she wa s leaving the childre n unsupervised w ith K.S. Thus, it remove d the children without a court orde r. Whil e the Family Code does g ive the district court “broa d authority t o p rot ect children short of separ ating them from their p ar en t s and placing them in foster car e,” In re Texas Dep’ t of Family & Protective Servs. , 255 S.W .3d 613, 615 (Tex. 2008), in a case in which remova l has alre ady occur

red, the Code only require s the court to find “suff icient evidenc e to satisfy a person of ordinary prudenc e and caution that:

. . . rea sonable eff orts have been made to preve nt or eliminate

approve d for place ment with the children during the first CPS case . As we explain, the Fa mily Code provides the Depa

rtment with discretion to deter mine whether the children’ s remova l from the home is nece ssary , see Tex. Fam . Code § 262.104 (allowing Depa rtment to take possession of child without court order ), and also provides the district court with the power to subsequently revie w the Depa rtment’s ac tions, see, e .g. , id. §§ 262.105, .107, .201, .205. 10the nee d to remove the child[ren] fr om the child[ren]’s home.” Tex. Fam. Code § 262.205(b) (1);

see also id. § 262.107(a) (3) (at i nitial hear ing court must be satisfied that rea sonable eff orts, “consistent with the circ umstances and providing for the safe ty of the child,” wer e made to preve nt
or eliminate need for remova l of child taken in possession without c ourt order ). Due proce ss doe s not require the Depa

rtment or the distr i ct co urt to do more than the Family Code require s, and there fore , we o v errule W.W .’s third issue. To the extent that W.W .’s arg ument can also be construed as a challeng e to the sufficie ncy of the ev idence supporting the trial court’s implied finding under Section 262.205(b)( 1) that the Depa rtment made rea sonable eff orts to preve nt or eliminate the need to r emove the children from W.W .’s hom e, we will consider that asser tion toge ther with her other c halleng es to the suffic iency of the e vidence supporting the conser vatorship orde r. I n her fourth issue, W.W
. simil arly arg ues that her “due- proce ss” rig hts wer e violated when the Depa

rtment failed to make rea sonable eff orts “to enable the child to return home,” relying

on Family Code Section 262.201(b)( 3) and asser ting that the Depa

rtment did not prese nt sufficie nt evidenc e under Section 262.201(b)( 3) to support that it made rea sonable eff orts to return the children to her afte r their remova l. The Depa rtment, howeve r, contends that Section 206.201 does not provide the applicable standard here beca use the children had alre ady been place d with their fathe r, making Section 262.205 the section that g overne d the full adver sary hear ing in which the De p ar t m ent soug ht to remove W.W
. as sole manag ing conser vator. Compare id. § 262.201 5

The Depa rtment arg ued at the adver sary hear ing that beca use W.W .’s children with Z .W. 5 had been returne d to t h ei r fathe r and the Depa rtment was no longe r seeking custody of them, the hear ing for those children was “a temporar y order s hear ing under [C hapter ] 153 [of the Fa mily Code in which] the standard is preponde ranc e of the evidenc e and

. . . t h e issue to be resolved is best interest [of the children].” The adver sary hear ing conce rned not only W.W .’s childre n with Z .W., 11(estab l i s hing require ments for full adver sary hear ing when child has not been returne d to pare nt

entitled to possession and temporar y order has not been dissolved) with id. § 262.205 (establishing require ments for hear ing in suit by Depa rtment reque sting possession of child). After arg ument by counsel at the hear ing about whether the hear ing had been conducte d under Chapter 153 or Chapter 262, the trial court stated in the temporar y decr ee of conser

vatorship its finding “that there

was sufficie nt evidenc e prese nted under sections 153.002 and 262.205 of the Texas Family Code and that it is in the best interest of the Children to place the Children with the Children’s fathe r, [Z.W.] .” Acco rd i n gl y , we construe W.W .’s fourth issue as challeng ing the sufficie ncy of the evidenc e supporting the trial court’s implied finding under Section 262.205(b)( 2) that “allowing the child to
re m ai n in the home would be contra ry to the child’s welfa

re,” and we will consider it toge t h er with her other challeng es to the sufficie ncy of the evidenc e supp o rt i n g t h e temporar y
conser vatorship orde r.
Suf fi ciency of the evidence supporting the tem porary conser vatorship order I n her first two issues, W.W
. asser ts that the evidenc e is fac tually and leg ally insufficient “to support the Depa rtment’s remova l of the children from W.W .” At the hear ing, the trial court considered whether to remove W. W
. as sole manag ing conservator under Family Code Sections 153.002 and 262.205. W.W
. frames her evidentiar y challeng e only in terms of whether the

but also her child with K.S. , wh o re m ai n ed in the Depa rtment’s custody and had been place d in foster car e with pater

nal rela tives at the time of the adver sary hear ing, so the Depa rtment arg ued the hear ing for that child’s possession was a Chapter 262 hear ing. I n its order rela ted to C.W
. and L .W., the trial co u rt fo u n d that sufficie nt evidenc e had been prese nted under both sections 153.002 and 262.205. 12Depa

rtment prese nted sufficie nt evidenc e to support a statutory basis for remova l, asser t ing that C.W .’s “uncor

robora ted” outcry and W.W .’s past conduct wer e insufficient. W.W
. does not asser t that the Depa

rtment failed to show either that there had been a materia l chang e in circ umstances or that modification would be in the be st interest of the c hildren. See id. §§ 153.002 (best intere st of child shall alway s be co u rt ’s primary consideration in deter mining conser

vatorship issues), 156.101(a) (1)( A) (establishing g rounds for modifica ti o n o f c o n s e r

v a tor ship order ). Acc ording ly , we only addre ss whether the Depa rtment prese nted sufficie nt evidenc e to satisfy the require ments of Sect i o n 2 6 2
. 2 05. See id. § 262.205; see also In re J.A.J

. , 243 S.W .3d 611, 616 (Tex. 2007) (conse rvatorship de cisions are g overne d by preponde ranc e-of

-the-e vidence standard)

. Be caus e “[ w] e g ive wide latitude to a trial court’s decision on custody , control, possession, and visita t i o n matters,” we revie w a trial court’s conser vatorship deter

minations for abuse of discretion and may reve rse “only if the decision is arbitra ry and unrea sonable.” In re J.A.J

. , 243 S.W .3d at 616 (citing Gillespie v. Gilles p i e , 644 S.W .2d 449, 451 (Tex. 1982)); see also W orford v. Stamper , 801 S.W .2d 108, 109 (Tex. 1990) (per curia m) (trial court abuses its discretion when it acts without ref

ere nce to any g uiding rules or principles). When we revie w conser vatorship modification under an abuse- of-discr e ti o n s ta n d a r d , leg al and fac tual sufficie ncy are not independe nt g rounds of err or; instead, they are rele vant fac tors in deciding whether t h e trial court abused its discretion. Zeifman v. Miche ls , 212 S.W .3d 582, 587 (Tex. App.—Austin 2006, pet. denied)

. When deter mining whether the trial court abused its discretion, we consider (1) whether the trial court had sufficie nt information upon which to exercise its discretion, i.e., the traditional sufficie ncy revie w, and (2) if it had sufficie nt information, whether the trial court err ed in its application of discretion.

13C o b u r n v. Moreland , 433 S.W .3d 809, 823 (Tex. App.—Austin 2014, no pet.); see Lindsey

v. Lindsey , 965 S.W .2d 589, 592 (Tex. App.—El Paso 1998, no pet.).

When, as here, no finding s of fact or conclusions of law were requeste d or filed, it i s i mplied that the trial court made all the finding s nece ssary to support its judgme nt. W orfo r d , 801 S.W .2d at 109. We will uphold its judgme nt on any leg al theory supported by the evidenc e. Id. An abuse of discretion does not occur wher e the trial court bases its decisions on confl i ct i n g evidenc e. Da vi s v. Hu ey , 571 S.W .2d 859, 862 (Tex. 1978). Fur thermore , a trial court does not abuse its discretion if there is some evidenc e of a substantive and probative char acte r to support the court’s decision. Coburn , 433 S.W .3d at 823. The trial judge is in the best position “to observe and

assess the witnesses’ demea nor and cre dibilit y , and to sense ‘the forc es, power s, and influence s’ that may not be appar ent from mere ly rea ding the rec ord on appea l.” In re A.L.E. , 279 S.W .3d 424, 427 (Tex. App.—Houston [14t h Dist.] 2009, no pet.). There fore , we defe r to the trial court’s resolution of underly ing fac tual issues and any cre dibil ity deter minations that may have aff ecte d those resolutions, and we may not substitut e our judgme nt for the trial court’s judgme nt on these matters. George v. Je

ppeson , 238 S.W .3d 463, 468 (Tex. App.—Houston [1s t Dist.] 2007, no pet.). Section 262.205 provides as f ollows:
After the hear ing, the court may g rant the requ est to remove the child from the pare nt, manag ing conser vator, possessory conser vator, g uardian, car etake r, or custodian entitled to posse ssion of the child if the court finds sufficie nt evidenc e to satisfy a per son of ordinar

y prudenc e and c aution that: (1) rea sonable eff

orts have been made to preve nt or eliminate the need to remove the child from the c hild’s home; and

14(2) allowing the chi l d t o rema in in the home would be contra ry to the child’s welf

are .
Tex. Fam. Code § 262.205(b). Taking the require ments in order , we return to W.W .’s arg ument that the Depa rtment d i d n o t m ak e rea sonable eff orts to preve nt or eliminate the need to remove the children from W.W .’s home. See id. § 262.205(b)( 1). The Depa rtment’s investiga tor attested in the aff idavit submitt ed in connec tion with the initial hear ing that when she first interviewe d W.W
. afte r C.W .’s out cry , W.W
. i n d i cate d that she st ill does not believe that K.S. abused C.W

. the first time and that she wanted to know why C.W
. “see s their life differ ently than how their life rea lly is.” W.W
. admitted at the hear ing that she continued to allow K.S. “minimal” unsupervised acc ess to the children ag ainst the Depa

rtment’s advice , despite the fac t that the first suit had been based on K.S.’s abuse of C.W ., leading to K.S.’s pleading g uilty to criminal char g es. W.W .’s disbelief of C.W
. led the Depa rtment to be conc erne d about the childre n’s safe ty if they rema ined in her home

. Fur t her evidenc e was prese nted at the full adver sary hear ing rela ted to the Depa rtment’s efforts t o put a safety plan i n place for the chil dren. The Department’ s investiga tor testified that W.W
. at first ref used to ag ree to a safe ty plan until she reta ined leg al counsel. Then she and K.S. stated they would ag ree to a safe ty plan that prohibited unsupervised contac t betwee n K.S. and the children and discussion of the alleg ations with the children, but they ultimately did not sign it beca use the Depa

rtment would not ag ree that the Depa rtment and law enfor ceme nt could not come to speak to the c hildren. They also ref used to c onsent to f

orensic interviews of the childre n and a 6

W.W
. testified that they signe d a safe ty plan, but abuse of discretion does not occur wher e 6 t h e t ri al court bases its decisions on conflicting evidenc e. Davis v. Huey , 571 S.W .2d 859, 862 (Tex. 1978). 15medical examination of C.W
. by the Dell Children’s Hospital CARE team, which spec i al i z es i n

ex am i n i n g children who may have been abused. Although W.W
. had C.W
. examined by his pediatric ian, she did not sign a rele ase to allow the p ed i at ri ci an to talk to the Depa rtment. The Depa rtment had to get a co u rt order to have the children fore nsically interviewe d and to have the medical e x amination perf ormed a t Dell. After the i nterview s, the i nvestig ator contacted W .W. ag ain and asked her to place the children out or ag ree to a safe ty plan and she ag ain ref used to ag ree to any

thing without talking to leg al counsel. Howeve r, the investiga tion had been underw ay for a wee k at this point, and she still had not reta ined counsel. W.W
. reque sted that instead the children be allowed to rema in in the home and K.S. would leave

. The Depa rtmen t ’s i n v estig ator explained to her that the Depa rtment had safe ty conce rns with her ability to protec t the children beca use she ref

used to have K.S. leave the home afte r the last case and beca use she did not believe C.W
. then or when he made his outcry this time. W. W. did not offe r to have the children place d with the rela tive that they had stay ed with during the fi rs t CPS case until afte r the emer g ency remova l of the children had occur red. Considering this substantive and probative evidenc e, we conclude that the trial court did not abuse its discretion beca

use there was eviden ce sufficie nt to satisfy a person of ordinary prudenc e and caution that the Depa

rtment made rea sonable eff orts to preve nt or eliminate the need to remove the children from W.W .’s home. See id. ; see also City of Keller v. W ilson , 168 S.W .3d 802, 828 (Tex. 2005); Cain v. Bain , 709 S.W .2d 175, 176 (Tex. 1986).

Much of the e vidence supporting the Depa rtment’s orig inal decision to remove the children from W.W .’s home also supports the trial court’s implied fi n d i n g t h at allowing the

16children to rema in in W.W .’s home would be contra ry t o t h e children’ s welfa re. See Tex. Fam. Code § 262.205(b)( 2). Th e evidence rela ted to W.W .’s belief that C.W
. had not been hit, her unwillingness to participa te in the Depa rtment’s investiga tion, and her ref usal to have K.S. leave the home befor e the Depa

rtment was rea dy to execute the children’ s emer g ency remova l is all rele vant to that findin g. I n addition, the trial court hear d evidenc e from the police detec tive and the Depa rtment’s investiga tor about the emotional eff ect on C.W
. of K.S.’s abuse and also watche d the videos of C.W.’s and L .W.’s forensic inter views. The police detec tive who first interviewe d C.W
. with the Depa rtment’s investiga tor testified that C.W
. told her when K.S. g ets mad at him, he does not fee l safe and that he had not told h is mother about K.S. hitting him beca use she would tell him he was ly ing. C.W
. descr ibed h i s perf ect life as not being bullied at home. Both the detec tiv e an d t h e Depa rtment’s investiga tor commented that C.W .’s demea nor during his interview was that he was very distressed when talking about being hit—his head was lowere d and he sai d h e wanted to cry . During both the police interview and his fore nsic interview, C.W
. stated when asked about g etting hurt at home, “I like to keep tha t inside my

head.” 7 The trial court also hear d evidenc e from oth er wi tnesses from which it could have conclude d that rema ining in W.W .’s home would be contra ry to the children’ s welfa

re. When asked at trial about her fee lings for K.S. and whether she would continue to keep K.S. out of her home even if she never knows exactly what happene d to C.W ., W.W
. stated “I am a logic al person who can see

I n connec tio n wi th a discussion of what kind of thera py C.W
. would be require d to 7 participa t e i n , the trial judge commented on being struck by “how sad C.W
. is that his mother doesn’t believe him” afte r viewing the video of the fore nsic interview. 17that if someone is say ing they ’re being hit, but there ’s no signs of that , then t here —then s omeone

is not being hit.” She further indicated that based on C.W .’s alleg ations, she would expect to have

seen or hear d something to aler t her to K.S.’s abuse. The trial court also hear d testimony from the 8 CASA supervisor that CASA had serious conce rns about W.W .’s ab i l i t y to be protec tive of the children even if K.S. was not in the home. CASA also had conce rns about C.W .’s emotional safe ty if he were to be placed with W.W . and re commended tha t C.W . rec eive sig nificant ther apy with a trauma- focuse d thera

pist, as well as C.W
. and W.W
. attending thera py toge ther. The Depa

rtment’s investiga tor also testified t o her opinion that if the children were to be returned home, they would be at r isk for continued phy sical abuse and W.W. di d not have the a bility to keep them pr otected. W
. W
. contends that the “outcr y of a seven y ear old without any corr oborati n g evidenc e” is fac tually and leg ally insufficient to support remova l of W.W
. as manag ing conser vator, but she provides no leg al authority in support of this a rg ument. Moreove r, L .W. cor robora ted that K.S. had punched C.W
. in the fac e. The trial court acknow ledg ed “that there ’s some inconsistencies in [L .W.] ’s recitation and [ C.W .]’s,” but it ultimately fou nd “[C.W .]’s testimony to be credible.” I n addit ion, we note that the testimony of a single cre dible witness is sufficie nt to support termination of pare ntal rig hts, which i s subject to a heig htened standard of proof as compar ed to modification of conser

vatorship. See In re E.A.G. , 373 S.W .3d 129, 140-43 (Tex. App.—San Antonio 2012, pet. denied) (upholding termination based on cre dible testimony of single witness);

W.W
. also arg ues that past pare nt conduct alone i s n o t a sufficie nt statutory basis for 8 remova l, but W.W .’s continuing disbelief of C.W
. is indicative that she might not continue to keep K.S. out of her home. 18see also I

n re J.A.J

. , 243 S.W .3d at 616 (contra sting standards for termination and modification of

conser vatorship orde r). W.W
. also arg ues that beca use there was no visible injury to C.W
. and no adult saw any injury , the evidenc e is fac tually and leg ally insufficient. C.W
. told the police detec tive and the Depa rtment’s investiga tor, as well as the fore nsic interviewe r, that he had no mark from the punch. The police detec tive testified th at a ch i ld can be phy sically abused without the abuse leaving a phy sical mark. Moreove r, the Depa rtment’s investiga tor testified that C.W .’s evalua tion at Dell did not occur until 11 day s afte r C.W .’s outcry
. The Dell CARE team informed the Depa rtment’s investiga tor that it was not surprising that no injuries wer e found g iven the amount of time that had passed since the outcry

. 9

We con cl u de that the Depa rtment prese nted some evidenc e of a substantive and probative char acte r that supported t h e court’s decision. See Coburn , 433 S.W .3d at 823. Consequently , the tr i al co u rt d id not abuse its discretion beca use there was evidenc e sufficie nt to
s at i s fy a p er son of ordinary prudenc e and caution that allowing the children to rema in in W.W .’s home would be contrary to their welfare

. S ee T ex . Fa m. Code § 262.205(b)( 2); see also City of 1 0 Keller , 168 S.W .3d at 828; Cain , 709 S.W .2d at 176. There fore , we overr ule W.W .’s first, second, and four th issues.

We note that K.S. told the Depa rtment’s investiga tor that C.W
. had had a bruise on his fac e 9 within the month before the interview tha t the family believed c ame f

rom a socc er g ame. I n addition, we note that the Depa rtment ultimately place d the children with their 1 0 noncustodial pare nt, which was pr oper unde r the statute. See Tex. Fam. Code § 262.205(e )(1)

. 19CONCLUSION Having conclude d that sufficie nt evidenc e supports the trial court’s order modify ing

conserv atorship and that W.W .’s “due- proce ss” rig hts wer e not violated, we aff irm the trial court’s or der.

__________________________________________ Cindy Olson Bour land, J ustice Be fore J ustices Pury ear , Pemberton, and B ourland Affir med Filed: Mar ch 13, 2015

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