No. 01- 15 -00253- CV

______________________________________ IN THE COURT OF APPEALS FOR THE FIRST JUDICIAL DISTRICT OF TEXAS AT HOUS TON

__________________________________ In the Interest of K.M-J aka K.M.J. and D.A.R.

__________________________________ H.J. [mother], Appellants

v. Department of Family & Protective Services, Appellee

_______________________________________ On appeal from the 314 th Judicial District of Harris County, Texas; No. 2012-06289J

____________________________________

APPELLEE ’ S BRIEF

____________________________________

VINCE RYAN COUNTY ATTORNEY State Bar #99999939 Sandra D. Hachem (SBN 08667060) Sr. Assistant County Attorney 1019 Congress, 17 th Floor Houston, Texas 77002 Telephone: (713) 274-5293 Facsimile: (713) 437-4700 ATTORNEY FOR APPELLEE, DEPARTMENT OF FAMILY & PROTECTIVE SERVICES ORAL ARGUMENT REQUESTED [If deemed necessary] ACCEPTED 01-15-00253-CV FIRST COURT OF APPEALS

HOUSTON, TEXAS 7/10/2015 5:08:19 PM CHRISTOPHER PRINE

CLERKii TABLE OF CONTENTS TABLE OF CONTENTS

................................ ................................ .......................... ii INDEX OF AUTHORITIES

................................ ................................ .................... i ii STATEMENT OF THE CASE

................................ ................................ .................. v REPLY POINTS

................................ ................................ ................................ ........ v STATEMENT OF FACTS

................................ ................................ ........................ 1 SUMMARY OF ARGUMENT

................................ ................................ ............... 1 6 ARGUMENT AND AUTHORITIES

................................ ................................ ...... 1 8 Reply Point One : HJ’s challenge to the admissibility of Exhibit 17 should be overruled, because it was waived and the record fails to establish exclusion was warranted for untimely disclosure responses.

................................ .. 18 Reply Point Two : There was sufficient evide nce to support the findings for termination of HJ’s parental rights.

................................ ................................ ......... 25 1. Applicable Law and Standard of Review

................................ ................. 25 2. The evidence sufficiently supported the finding that HJ engaged in conduct endangering to a child for a finding under E, because her c hildren all suffered substantial physical injuries or untreated medical conditions under her care which she either caused or allowed.

.................... 27 3. The evidence sufficiently supported the finding that termination was in the children’s best interest considering th e evidence in support of Subsection E, as well as the mother’s failure to honestly address her inappropriate behaviors by the time of trial.

................................ .......... 31 PRAYER FOR RELIEF

................................ ................................ .......................... 3 6 CERTIFICATE OF SERVICE

................................ ................................ ................ 3 6 CERTIFICATE OF WORD COUNT COMPLIANCE

................................ ........... 3 6iii INDEX OF AUTHORITI ES CASES PAGE In re C.H., 89 S.W.3d 17, 25 (Tex. 2002)

................................ ............................... 25 Chrysler Corp. v. Blackmon , 841 S.W.2d 844 (Tex. 1992)

................................ .... 24 Dupree v. Texas Dep't of Protective & Regulatory Servs., 907 S.W.2d 81 (Tex. App.

- Dallas 1995, no writ)

................................ .................. 35 Holley v. Adams, 544 S.W.2d 367 (Tex. 1976)

................................ ........... 31, 32, 34 In re J.D. , 436 S.W.3d 105 (Tex. App.

— Houston [14th Dist.] 2014, no pet.)

...... 3 2 In re J.F.C., 96 S.W.3d 256 (Tex. 2002)

................................ ................................ . 26 Jordan v. Dossey, 325 S.W.3d 700 (Tex. App.

— Houston [1st Dist.] 2010, pet. denied)

................................ ............. 30 In re J.P.B. , 18 0 S.W.3d 570 (Tex. 2005)

................................ ............................... 30 In re L.D.A., No. 01

- 14

- 00782

- CV, 2015 WL 293118 (Tex. App.

— Houston [1 st Dist.] 2015, no pet.)

................................ .................... 34 L. M. v. Dept of Fam. & Prot. Servs. , 2012 WL 2923132 (Tex. App.

— Houston [ 1st Dist.] 2012, no pet.)

................................ .................... 23 Langley v. Com m’n for Lawyer Discipline , 191 S.W. 3d 913 (Tex. App.

— Dallas 2006, no pet)

................................ ................................ ......... 21 PR Investment and Specialty Retailers, Inc. v. State , 251 S.W.3d 472, 480 (Tex. 2008).

................................ ................................ ................................ ..... 24 In re R.N.W., 01

- 13

- 00036

- CV, 2013 WL 3467206 (Tex. App.

— Houston [1st Dist.] 2013, no pet.)

................................ .................... 33 Richard v. Towery, No 01

- 11

- 00132

- CV, 2013 WL 1694861 (Tex. App.

— Houston [1 st Dist.] 2013, no pet.)

................................ .................... 21iv

In re T.L.R. , No. 14

- 14

- 00812

- CV, 2015 WL 1544796 (Tex. App.

— Houston [14 th Dist.] 2015, no pet.)

................................ .................. 34 Texas Dep't of Human Servs. v. Boyd, 727 S.W.2d 531 (Tex.1987)

....................... 27 Wigfall v. Texas Dept of Criminal Justice , 137 S.W.3d 268 (Tex. App.

— Houston [1 st Dist.] 2004, no pet.)

................................ .................... 24

STATUTES Tex. Fam. Code Ann. §161.001 (West 20 08)

................................ .. iv, 25, 27, 31, 33 T ex. Fam. Code Ann. §263.30 7 (W est 2008)

................................ .............. 32, 34, 35

RULES Tex. R. App. P. 33.1

................................ ................................ ................................ . 20 Tex. R. Civ. P. 306

................................ ................................ ................................ ... 25 Tex. R. Evid. 103

................................ ................................ ................................ ..... 20v STATEMENT OF THE CASE On November 7, 2012 , the Department filed a suit for protection of two child ren under the age of 3 and the trial court granted the Department temporary managing conse rvatorship. CR 1 3 and 32

. T rial commenced before the bench on Janua r y 30, 2014 but resumed on a much later date o n October 7, 2014

. CR 81

. A judgment was signed on February 26, 2015. CR 89. The written judgment es tablished the paternity of Jorge as the father of DJ, and ordered termination of his parent

- child relationship

. CR 83

- 85. The parental rights of the mother (HJ) were terminated on findings that it was in the children’s best interest and that she committed the predicate act of Subsection E of Section 161.001(1) of the Family Code. CR 83 . The judgment also terminated the parental rights of KJ’s alleged and unknown father

. CR 85

- 86 . The Department was named the children’s sole managing conservator. CR 86 . N o motion for new trial was filed. H J fil ed a timely notice of appeal on March 13, 2015 . CR 107

. REPLY POINT S Reply Point One : HJ’s challenge to the admissibility of Exhibit 17 should be overruled, because it was waived and the record fails to establis h exclusion was warranted for untimely disclosure responses. Reply Point Two : There was sufficient evidence to support the findings for termination of HJ’s parental rights.

1 In this brief “CR” refers to the Clerk’s record filed in this appeal on October 17, 2014 from cause no. 2013

- 03157J.No. 01 - 15 - 00253 - CV

______________________________________ IN THE COURT OF APPEALS FOR THE FIRST JUDICIAL DISTR ICT OF TEXAS AT HOUS TON

__________________________________ In the Interest of K.M

- J aka K.M.J. and D.A.R.

__________________________________ H.J. [mother], Appellants

v . Department of Family & Protective Services , Appellee

___________________________________ APPELLEE’S BRIEF

___________________________________ TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS: Department of Family & Protective Services, Appellee, [hereinafter “Department”] submits this brief i n res ponse t o the brief of TM STATEMENT OF FACTS HJ was born on December 15, 1991. RR

- 4 2 p. 13. In 2009, when she was about 17 years of age, she had a son named Jonathan. RR

- 4 p. 90. 3 Her daughter, KJ, was born the next year in 2010. RR

- 4 p. 13. Th e year after that, in 2011, her son, DJ, was born. RR

- 4 p. 14. No one was listed as DJ’s father on his birth

2 In this brief “RR

- 4” refers to the fourth volume of the reporter’s record which contains the exhibits from the trial held in this case. 3 Officer determined the date of birth of the victim/complainant Jonathan was 5/6/2009. RR

- 4 p.90.2

certificate but KJ’s birth certificate named Jose Martinez

- Morales as her father. RR

- 4 p. 13

- 14. On November 4, 2012, the Department received a referral concerning HJ’s family after her son Jonathan, then three years of age, was pronounced dead upon arrival at Texas Children’s Hospital. RR

- 4 p. 23 and 90. The hospital’s medical staff observed Jonathan had signs of external trauma with bruises on his face and neck area. RR

- 4 p. 23. It was also observed that he had abrasions on the bridge of his nose and right frontal area of his forehead. RR

- 4 p. 23. When HJ was asked about the injuries, she stated he fell at the park the previous day. RR

- 4 p. 23. On the date of the referral, the Department’ s worker Shannon spoke with a forensic nurse at Texas Children’s Hospital by telephone . RR

- 4 p. 24. The nurse commented while the bruising on Jonathan’s face could be consistent with the mother’s explana tion of a fall, the child also had bruises behind his ears, lo o ped bruises on his legs and non

- specific bruises on his back. RR

- 4 p. 24. Shannon went to visit the family and observed the two younger children. RR

- 4 p. 26. She did not see any obs ervable i njuries , b ut at some point she learned KJ had a broken ankle because she advised Detective Lujan of the Houston Police Department of that fact in preparation of the parent interview . RR

- 4 p. 26. Shannon also learned from Lisa Kremer, a social worker at Te xas Children’s3

Hospital, that the youngest child, DJ, was developmentally delayed and a CT scan revealed some abnormalities that could indicate previous abuse. RR

- 4 p. 26. Officers from the Houston Police were assigned to investigate Jonathan’s death. RR

- 4 p. 90. HJ advised one of the officers that Jonathan’s father was in Mexico and Jorge was the child’s stepfather. RR

- 4 p. 90. She stated she did not assault the child, but claimed the child fell in the playground days before. RR

- 4 p. 90. The next day an autopsy was performed and the assistant medical examiner, Dr. Phatak, ruled the death a homicide by blunt force trauma to the abdomen. RR

- 4 p. 90. He told one of the officers that he believed the cause of death was a perforated intestine which leaked b ile into the child’s body. RR

- 4 p. 90. He commented that injuries of that type typically take 48

- 72 hours before death results. RR

- 4 p. 90. In speaking with medical personnel, Jorge denied causing any harm to the child, but when Investigator Chavez spoke w ith him, he eventually admitted to “play boxing” with his 3 year old step son on November 2, 2012. RR

- 4 p. 90. HJ claimed she was in another room at the time but hear d Jonathan crying and Jorge told her he was “play boxing” with him. RR

- 4 p. 90. Noneth eless, Dr. Phatak explained to perforate the child’s intestines, “it would have been a ‘substantial’ strike in the torso” and not merely “play boxing.” RR

- 4 p. 90.4

On November 7, 2012, a physician at Texas Children’s Hospital prepared a statement regard ing his conclusion that KJ had injury consistent with abuse or neglect. RR

- 4 p. 153. The doctor ’s statement documented t hat the child was brought to him a ccompanied by her great aunt . RR

- 4 p. 153. The aunt told the doctor that KJ’s injury occurred a mont h earlier and KJ’s mother told her that the injury resulted from an incident when KJ lost balance on a toilet seat. RR

- 4 p. 153. It was noted that KJ evidently reinjured herself recently but the aunt did not know any details about that. RR

- 4 p. 153. The statement detailed what the x - ray revealed. It showed fracture of the distal right tibia and extensive callus formation indicating “repeated trauma” as well as an unexplained healing abrasion of the nose. RR

- 4 p. 153. The doctor also noted the child had unexplained injuries of different ages and swelling and symptoms of injury that apparently were not taken for medical attention . RR

- 4 p. 153. The doctor’s statement indicated the lack of immediate medical treatment for this child was the type neglect that c ould result in permanen t physical damage that could affect growth and cause permanent deformity to the child . RR

- 4 p. 153. T he same date the physician prepared this statement , a complaint was prepared against Jorge for felony murder in connection with Jonathan’s death and an indictment was thereafter issued. RR

- 4 p. 90

- 93. Detective Lujan of the Houston Police told the Department’s caseworker Shannon that Jorge admitted to5

“playfully hitting Jonathan in the stomach.” RR

- 4 p. 26. Shannon asked Jorge ab out that , and he admitted to “playfully hitting” Jonathan but claimed it was not hard enough to hurt him. RR

- 4 p. 26. When Shannon asked HJ about this , HJ admitted “to seeing” Jorge hit Jonathan in the stomach but also described it as in a

“ playful ” mann er. RR

- 4 p. 26. When asked about KJ’ s broken ankle, HJ claimed this happened when KJ stepped out of the tub and landed on her foot in a way that caused her to hurt her ankle. RR

- 4 p. 26. HJ claimed she did not talk about that at her first interview with Shannon because “she was nervous and forgot.” RR

- 4 p. 26. When asked about the possible head injuries seen on her youngest child’s CT scan, she responded that neither she nor Jorge hit the ch ild. RR

- 4 p. 26. She added, however, that possibly her babysitt er or one of the other children did it . RR

- 4 p. 26

. However, w hen Shannon asked HJ for th e babysitter’s contact information , HJ claimed she did not have it . RR

- 4 p. 26. Because the parents provided no or conflicting explanation s regarding the injuries an d possible previous injuries to the children , the Department prepared paperwork to seek temporary managing conservatorship of the children. RR

- 4 p. 27. After the suit was filed, HJ appeared at the adversary hearing and at the conclusion the court signed a written order grant ing the Department’s request for temporary managing conservatorship. RR

- 4 p. 29

- 37.6

The court ’s written order provided some tasks the parents were required to complete. RR

- 4 p. 36

- 37. The parents were advised in the written order th at failure to complete those tasks could result in restriction or termination of parental right s. RR

- 4 p. 35. Among the tasks listed w hich the parents were required to perform “no later than thirty days from the date of this hearing” included providing : (1) full name and whereabouts of absent parents; (2) submit the Child Placement Resources Form and “provide to the Department and the Court the full name and current address or whereabouts and phone number of any relatives of the children ... with whom the Department may place the children” (3) sufficient financial information to identify parent’s net resources; (4) sufficient information to establish parentage and i mmigration status, (5) the children’s medical history; and (6) provide a current residence a ddress and telephone number for contact purposes and ensure the Department has any changes to contact information within five (5) days of a change. RR

- 4 pp. 35

- 37. HJ appeared at the next hearing on December 18, 2012. RR

- 4 p. 41. The Court found that HJ reviewed the service plan and understood unless she was willing and able to provide the children with a safe environment, even wi th the assistance of that plan, her parental rights could be terminated. RR

- 4 p. 41. The court ordered HJ’s family service p lan filed with the court on or before that date and incorporated it as part of the court’s order. RR

- 4 p. 42.7

HJ’s service plan noted the injuries to the children as part of the Department’s concerns as of December 2012, but also added concern because H J did not obtain treatment for both KJ and DJ when they were obviously delayed, did not protect her child Jonathan from Jorge, and did not seek medical treatment for KJ’s ankle. RR

- 4 p. 47. The plan also added as concern the fact that HJ had a history of being a victim in relationships, admitted she was physically abused by one of the children’s alleged fathers (Mr. Martinez Morales) 4 who was deported after he was arrested, and HJ did not appear capable of protecting her children from people she brought in to their lives. RR

- 4 p. 47. Consequently, the plan listed as goals that HJ demonstrate willingness and ability to protect her children from harmful people, and demonstrate an ability to change her pattern of behavior that resulted in the abuse/neglect. RR

- 4 p. 47. The service plan included some basic tasks HJ was required to perform including that she obtain stable housing and employment, participate in psychological and therapy services, attend court hearings and visits, complete parenting and domestic v iolence classes, and submit to drug screenings. RR

- 4 p. 48

- 49. However, t he court also signed a separate order that same date that added several other tasks , including that the mother refrain from criminal activity and complete a substance abuse treatment program. RR

- 4 p. 63.

4 Jose Martinez

- Morales was named in KJ’s birth certificate a s her father and alleged to be her father. RR

- 4 p. 13 and 66.8

A permanency report prepared by the Department the next year, in November 2013 , noted that HJ has been comp liant in performing the basic tasks listed in the plan. RR

- 4 p. 70. In particular, it noted HJ provided the agency with
a copy of her apartment lease, provided proof of employment, completed her psychological, provided proof of completing parenting classes and attended visits. RR

- 4 p. 70 With respect to placement, the report n oted HJ reported her mother was will ing to care for t he children and it had been explained to HJ that a home study would need to be completed on her mother’s home. RR

- 4 p. 70. As for other relatives , the caseworker advised HJ that the caseworker c ould not get a hold of th em with the information she provided . RR

- 4 p. 70. The reported noted HJ told the worker she would have the relatives contact the worker. RR

- 4 p. 70. On January 30, 2014, the parties appeared before the court for trial. RR

- 2 p. 1. The Department’s attorney stated some exhibits and a witnes s would be called, but was asking that the court start the trial and then recess because there was a problem with availability of the Department’s doctor witness. RR

- 2 p. 6. HJ’s attorney objected c laiming the persons the Department intended to call were not identified in disclosures. RR

- 2 p. 7. The court overruled that objection. RR

- 2 p. 7. The Department proceeded with examination of Jamal George, who identified himself as the custodian of records for Texas Children’s Hospital. RR

- 2 p. 8. The medical r ecords that Jamal brought to court were referred to as9

Petitioner’s Exhibit 17 and offered as business records. RR

- 2 p. 9. HJ’s attorney objected as follows: “I object to Exhibit 17 on the basis that this document has just recently been provided to me an d it contains opinions from doctors that were not identified in response to my disclosure request.” RR

- 2 p. 9. That objection was overruled and the records were admitted. RR

- 2 p. 9. HJ then proceeded to testify and identified herself as the mother of KJ and DJ. RR

- 2 p. 10. She stated that Jose Martinez was the father of KJ and Jorge was the father of DJ. RR

- 2 p. 30. HJ claimed she was married to KJ’s father, but he was deported after she presented a claim of domestic violence against him. RR

- 2 p. 30. She stated she presented th at in January 2010. RR

- 2 p. 30. HJ stated that her children came in care after Jonathan die d. RR

- 2 p. 10. HJ stated she loved her children very much and only skipped visits with them twice during this case when she did not ha ve money to pay for a taxi. RR

- 2 p. 26

- 27. When asked if Jonathan was fine prior to the day that he was taken to the hospital, she responded, “no” but added “I called the ambulance because my son was complaining that he hurt here (indicating).” RR

- 2 pp. 1 0

- 11. She said the worker told her that her son died as a result of an injury to his stomach but she claimed she n ever saw any injury or assault on her son. RR

- 2 p. 13. HJ confirmed at t he time of the injury , it was just her, her boyfriend and the three c hildren in their single bedroom home. RR

- 2 p. 14. She stated that she took10

care of the children, her boyfriend worked and they slept in the den on the floor while the children stayed in the bedroom. RR

- 2 p. 14

- 15. She stated on “that day,” she took the children to the park and Jonathan fell and scratched his eye, but after she took care of his eye, they continued to play. RR

- 2 p. 15. She stated when she put the children to bed, Jonathan was fine. RR

- 2 p. 18. She stated her boyfriend came home that eve ning around 9 or 10. RR

- 2 p. 15

- 16. She stated he did not play with Jonathan because the children had already gone to bed. RR

- 2 p. 16. When asked if she heard her child moaning a bout 4 am, she responded: “He was going to the bathroom and he saw that the c hild was cold. And so, I called the ambulance.” RR

- 2 p. 18. When asked to clarify why she called the ambulance, she responded he said he hurt. RR

- 2 p. 18. She indicated she told them: “hurry up because my child is dying and the guys from the ambulance sa id that there was not an ambulance available for the area where I lived.” RR

- 2 p. 19. In her initial testimony, she claimed she never told the detective she saw Jorge play box ing with Jonathan , but w hen asked again she admitted she did. RR

- 2 p. 16

- 17

. Sh e also confirmed she told the investigator for CPS th e same thing. RR

2 p. 17. Nevertheless, when asked why her story now, a year later, is that she did not see her boyfriend play boxing, HJ claimed she felt pressured. RR

- 2 p. 17. HJ acknowledged she was told her three year old boy died because his intestines exploded in his body. RR

- 2 p. 19. However, s he claimed he looked fine11

when she put him to bed and she never left him and was always with him either at the park or in t he i r one - bedroom apartment. RR

- 2 p. 20. HJ also stated she never saw the father being violent with the children and claimed she n ever physically discipline d the children. RR

- 2 p. 21. She stated before her child died, everything was going okay with that child. RR

- 2 p. 23. He
ate norm ally and when the children finished eating she gave all three of the children a bath. RR

- 2 p. 23. She stated Jonathan did not manifest discomfort during the bath. RR

- 2 p. 23. She also claimed he had no discomfort and looked normal when she put him to bed . RR

- 2 p. 23. She said the father came home when they were already asleep and they went to bed around 11 pm. RR

- 2 p. 24. She heard her child in pain around 3 or 4. RR

- 2 p. 24. When he indicated he was hurting, she then woke the father and they called 9 11. RR

- 2 p. 24

- 25. She indicated she initially had difficulty because they could not speak in Spanish but they eventually came in 15 or 16 minutes. RR

- 2 p. 25. HJ acknowledged to the court that she told two people that she saw her boyfriend play boxing wi th her son. RR

- 2 p. 26

- 27. However, she was now saying the father never was play boxing with the child. RR

- 2 p. 26. She claimed she made this inconsistent statement because on that day when she saw her child dead she did not know what to say. RR

- 2 p. 2 6. Also, because the man was saying: “If you don’t help me, you can go to jail

... And I don’t want to go to jail because I12

did nothing.” RR

- 2 p. 26. She stated she had no idea what happe ne d to the child to cause him to die. RR

- 2 p. 27. She stated if she was aware the father was physically violent, she “would make him pay.” RR

- 2 p. 27. The court then asked HJ about her statement in court the last year that her boyfriend play boxed with her child. RR

- 2 p. 28. The court asked HJ if she felt pressured on that day in court when she said that. RR

- 2 p. 28. HJ responded, “Yes, because I was afraid.” RR

- 2 p. 28. She added she was afraid to go to jail for something she did not do so she made up the story about the play boxing by her boyfriend. RR

- 2 p. 28

- 29. When asked why she came up with a story involving h er boyfriend , she stated it was the only thing that came to her mind. RR

- 2 p. 29. Upon further examination, HJ was asked about the older bruises on Jonathan that were not brand new. RR

- 2 p. 31. She stated: “That’s because when he was born, he was born with purple marks back there.” RR

- 2 p. 31

- 32. When asked again how the bruises got on her dead baby’s legs and who did that, she responded: “I didn’t do it. I went to see a friend of mine the day befo re and the children

– my children played with her children who are older than mine. “ RR

- 2 p. 32. She claimed when they play ed she asked: “Why were they doing that to the child?” RR

- 2 p. 32.13

At the conclusion of HJ’s testimony, the court stated that it would be a good time to continue the case. RR

- 2 p. 34. However, before being dismissed, HJ’s attorney stated: I am going to offer the responses to disclosures as Respondent’s No. 1. RR

- 2 p. 34. The court then asked who they were from and HJ’s attorney

r esponded: From the county attorney to me. RR

- 2 p. 34. After that statement the court stated the document w as admitted. RR

2 p. 34. Strangely, this document admitted as “the responses to disclosures ” “ from the county attorney ” indicated it did not com e from this case . RR

- 4 p. 171. Namely, the second page of the document provided a different court number (2010

- 01939J), involving a different child (Darwin Wilfredo Vargos) and a different court (the 315 th ). RR

- 4 p. 171. Also the Assistant County Attorn ey identified in the document as the county attorney who filed the document was Gene Gundersen , and not the Assistant County Attorney in volved in this case

. Id. Several months passed before the court resumed trial on October 7, 2014. RR

- 3 p. 1. Prior to that time, another permanency report was filed on September 18, 2014 that advised the court that both children were doing well in their fos ter care placements, but concern was reported about KJ who was saying she was14

hearing voices and a baby crying. RR

- 4 p. 156 and p. 159. The foster mother was seeking a psychological evaluation for her . RR

- 4 p. 159. With respect to parental
progress, the status about HJ’s compliance in performing basic tasks in the service plan appeared the same as in the prior report

. RR

- 4 p. 2 6

. The first witness examined when trial resumed was Jorge. RR

- 3 p. 9. He stated he was the father of DJ. RR

- 3 p. 9. He suggested he was also the father of KJ. RR

- 3 p. 9. He acknowledged a child died in his home. RR

- 3 p. 9. However, when qu estions were attempted regarding the situation when th at child died, his attorney instructed him not to answer and no further questions were attempted in that regard. RR

- 3 p. 9

- 10. He did acknowledge, however, that he was asking the court to return DJ to him and stated he was capable of caring for him and had family support. RR

- 3 p. 11. The next witness was the Department caseworker assigned for the children: Casey Arshield. RR

- 3 p. 13. She confirmed that the children were at that time ages 4 and 2. RR

- 3 p. 13. She stated that all their physical and emotional needs were being met in their placement in foster care. RR

- 3 p. 13. She stated that the children had been in foster care since 2012, and the foster home where they had been placed for a long time was willing to adopt. RR

- 3 p. 14

- 15 and p. 23

. She acknowledged they tried for a long time to place with family members, including a15

grandmother in California, but no family members worked out for placement and it was time for the children to have permane ncy. RR

- 3 p. 15. She stated the children did not have special needs, but KJ had been hearing a baby crying continuously in her head and at the end of August, her foster parent took her for a psychological. RR

- 3 p. 14. They did not have the results yet
. RR

- 3 p. 14

- 15. Casey stated that they were ask ing that Jorge’s parental rights be terminated because he stated he cause d th e injuries to the child that died and was in jail for injuries of th at child. RR

- 3 p. 19

- 20. As for the alleged father, Jose, Casey stated he was believed to be in Mexico based on information from the mother. RR

- 3 p. 20. As for HJ, Casey confirmed she just got placed on the case a month prior and could not personally give an opinion on HJ because she had not been on the case long eno ugh. RR

- 3 p. 15

- 16 and 22. Casey acknowledged she told HJ’s attorney that HJ completed the family service plan. RR

- 3 p. 21. In particular, she acknowledged that HJ had a home and was employed. RR

- 3 p. 24. She also acknowledged that the purpose of a ser vice plan is to try and cure the risks that brought the child in care and eliminate future risks. RR

- 3 p. 22. She acknowledged the mom interacted well with her children and they loved each other. RR

- 3 p. 23. When asked if she spoke with the children16

reg arding their desires, she noted that DJ was only two and KJ had not really responded about that . RR

- 3 p. 25

- 26. During closing argument, the Department’s attorney specifically referred to P17 and the document’s statement that indicated KJ’s injury had been in existence for more than a month. RR

- 3 p. 31

- 33. When HJ’s attorney responded to the Department’s closing argument, no claim was made regarding the admissibility of P17 or any clarification on the disclosure claim previously suggested at trial and inste ad the attorney focused solely on the evidence regarding Jonathan’s death. RR

- 3 pp. 36

- 37. At conclusion of the case, t he court orally announced that he was terminating the mother’s parental rights under both Subsections D and E. RR

- 3 p. 42. Neverthe less, t he written decree only had the court’s finding under E . CR 83. SUMMARY OF ARGUMENT Appellant’s Brief essentially raises two challenges . The first challenge is to the admission of Department’s Exhibit 17 and the second challenge claims insufficient evidence in support of the findings that support ed the court’s decision to terminate HJ’s parental rights. Both challenges should be overruled. First, with respect to the admissibility of Exhibit 17, this claim should be overruled because the objection to that exhibit was waived and the basis for exclusion was not established. HJ’s objection was waived because it was not specific enough to preserve error for review. Namely, neither the particular17

disclosure request or doctor opinion in P17 were identif ied for the court to consider a specific claim about a discovery violation. In addition, the challenge should be overruled because the record does not establish a discovery violation occurred as claimed in the objection. Th e objection claimed something i n Exhibit 17 contained “opinions from doctors that were not identified in response to [HJ’s] disclosure request.” Nevertheless, HJ’s attorney provided no proof of the alleged disclosure request that would have related to th os e unidentified documents. Not ably, at the end of the hearing on the first day of trial HJ offered, and the court admitted, a document that HJ’s attorney described as the response to disclosures . H owever, that document was not admitted until long after the objection was lodged and did not appear to even involve thi s case. Consequently, HJ’s claim of exclusion based

on an alleged discovery violation by the Department was not established to support the objection raised. With respect to the court’s findings in support of parental termina tion, the evidence was more than sufficient. The evidence was undisputed that all three of HJ’s children had suspicious injuries that led to the referral of this case to the Department , the medical examiner concluded the oldest child’s death resulted from homicide, and a doctor who examined KJ concluded the child had a broken ankle, untreated for a mo nth, for which no medical care was provided and there were signs of repeated trauma

. Also, the mother acknowledged she had been in a18

situation of domestic violence with the father of her oldest child and the father of her youngest child admitted he caused the injury to the oldest child before the child’s death

– though he described it as playful hitting. HJ was given ample opportunity to either acknowledg e and address the abusive circumstances in her home or provide a feasible e xplanation for the injuries that occurred there . S he did neither. The record confirms she typically gave inconsistent or unbelievable explanations or no explanation at all. Consi dering she claimed she was always with her children in a single bedroom home, the trier of fact had more than sufficient basis to disbelieve her claim that she played no part in the injuries that occurred to her children. The court had more than sufficien t basis to conclude that the mother engaged in conduct that caused or allowed the injuries her children suffered for the court’s finding under Subsection E. Moreover, considering the young age of the children, the inability to find a suitable relative and the willingness of the foster parents to adopt the children, the court had more than sufficient basis to conclude that termination was in the children’s best interest. The court’s judgment should be affirmed. ARGUMENTS AND AUTHORITIES Reply Point One : HJ’s challenge to the admissibility of Exhibit 17 should be overruled, because it was waived and the record fails to establish exclusion was warranted for untimely disclosure responses .19

HJ’s first point of error claims the trial court erred in admittin g Exhibit 17 over HJ’s objection, because it contained doctor opinions that were required to be excluded under Tex. R. Civ. P. 193.6. This claim should be overruled because it was waived and unsupported. First, this claim should be overruled because it was waived. The single objection made at trial when Exhibit 17 was offered for admission at trial was as follows: “I object to Exhibit 17 on the basis that this document has just recently been provided to me and it contains opinions from doctors that wer e not identified in response to my disclosure request.” RR

- 2 p. 9. As indicated, this objection claims Exhibit 17 is inadmissible, because the document contains “opinions from doctors” that were “not identified in response to my [HJ’s] disclosure request .” No further clarification was given identifying particular statements in Exhibit 17 that allegedly constituted “ opinions from doctors

. ” Moreover, while it appears to be a challenge for a discovery violation, the record does not contain a certificate of d iscovery establishing disc overy was timely sent to the Department , the alleged discovery was not admitted for the court to consider the discovery claim when this objection was made , and no explanation wa s given regarding what the discovery request said, wh en it was sent, or who it was propounded upon . These inadequacies in the20

objection meant the objection lacked the specificity and proof necessary to preserve error concerning a discovery violation. Namely, as provided in Tex. R. App. P. 33.1, to preserve error in the trial court, there must be a timely and specific objection and it must be in conformity with any rule or statutory requirements. The specific rule concerning the admission of evidence provides: “Error may not be predicated upon a ruling which admits ... evidence unless a substantial right of the party is affected and ... a timely objection or motion to strike appears of record, stating the specific ground of objection , if the specific ground was not apparent from the context.” Tex. R. Evid. 103 ( emphasis added)

. As indicated, this specific rule has two parts. T he first part requires the complaining party show a “substantial right” was affected by the court’s ruling to admit the evidence . That means the record show s the complaining party establish ed a right to exclu sion of the challenged evidence , and the party’s right was “substantial.” The second part requires the record to show the objection to the admission of evidence was made “timely” and with clear enough explanation for the court to determi ne the “specific ground of objection” upon which the alleged substantial right is based. In this case, n either part was met to permit HJ to predicate error on the court’s decision to admit Exhibit 17

. In particular, though HJ claims in this appeal that s he had a right to exclusion of Exhibit 17 based on her objection about un timely responses to21

requests for disclosures about doctor opinions, the record does establish she proved any right to exclusion on that basis. Namely, there is no proof the Departmen t was timely served with certain discovery requests by HJ in this case, and no proof the Department actually received a specific disclosure request that would have required the Department to provide disclosure of doctor opinions contained within Exhibit 17

. See Richard v. Towery, No 01

- 11

- 00132

- CV, 2013 WL 1694861 *5 (Tex. App.

― Houston [1 st Dist.] 2013, no pet.) ( no error established because complaining party failed to identify the specific requests to which the complained documents applied); Langley v. C omm’n for Lawyer Discipline , 191 S.W

. 3d 913, 915 (Tex. App. Dallas 2006, no pet) (an appellate court cannot say a court abused its discretion in admitting documents not produced in dis covery when the record does not contain the relevant discovery requests ). In this connection, it should be noted that n o motion to compel was filed prior to this case concerning unanswered discovery, and no further discussion or hearing was held explaining or proving up alleged untimely responses to discovery concerning doct or opinions. It is acknowledged that long after the court overruled HJ’ s objection to Exhibit 17 but before the conclusion of the first day of trial, HJ’s attorney offered what was described as “the responses to disclosures as Respondent’s No. 1.” RR

- 2 p. 34. Though the court inquired for a little more description of that exhibit , HJ’s attorney only added t hey a re : “From the county attorney to me.” RR

- 2 p. 34.22

Consequently, HJ’s attorney did not represent when these responses were received by HJ, or when the requests for the responses were sent out or to which party

. Id. Though the court admitted this document, it did little to clarify or prove up HJ’s previous objection, especially considering HJ did not re

- urge her objection at the time this document w as admitted. Moreover , a s discussed in the Statement of Facts above, the admitted document was confusing because parts did not even come from this case. RR

- 4 p. 171. Namely, the second page of the document provided a different court number (2010

- 01939J), involving a different child (Darwin Wilfredo Vargos) and a different court (the 315 th ). RR

- 4 p. 171. Also the Assistant County Attorney identified in the document as the county attorney who filed the document was Gene Gundersen. and not the Assistant Co unty Attorney involved in this case. Id. The first page of HJ’s exhibit did include reference to parties in this case and had a reference in one of the requests to the cause number in this case ; however, other pages t hat might have indicated these were d iscovery in t his case were mysteriously missing and this document was combined with discovery responses from another case. RR

- 4 pp. 170

- 81. In light of th at fact, the trier of fact had more than sufficient basis to question the weight of this document as proof of anything for purposes of this case. Therefore, this record does not prove a discovery violation occurred to entitle HJ to any right of exclusion.23

In addition, the second part of Rule of Evidence 103 wa s not established as a predicate to HJ’s cl aim on appeal , because the specific ground of HJ’s objection

wa s not clear. HJ’ s objection referred to “doctor opinions” not produced in response to disclosure requests . However, HJ never clearly identified the particularly doctor opinions at issue or the particular disclosure requests these may have been responsive to

. In this connection it is important to note that Exhibit 17 was not just doctor opinions. It was the medical records from Texas Children’s H ospital. RR

- 4 p. 102

- 154. HJ’s objection did n ot challenge the medical records as a whole

– only the doctor opinions. Exhibit 17 included an affidavit confirming it was the business records of the hospital kept in the regular course of its business to permit its admissibility as a business record

. RR

- 4 p. 102; Tex. R. Evid. 803(6). Consequently, even if HJ preserved error regarding some unspecified doctor opinions contained within Exhibit 17, a general objection to evidence as a whole that does not point out the objectionable part is not reversible e rror. See L.M. v. Dept of Fam. & Prot. Servs. , 2012 WL 2923132 (Tex. App.

– Houston [1 st Dist.] 2012, no pet.) (citing Speier v. Webster Coll., 616 S.W.2d 617, 619 (Tex. 1981)). Lastly , the Supreme Court has clarified even when a discov ery sanction is warranted for a discovery violation that does mean exclusion is the only action the court can take. A court is never to impose a sanction more severe than necessary to2 4

satisfy the legitimate purposes underlying the discovery process , and courts have the r ight to c onsider less stringent remedies in response to a discovery violation

. PR Investment and Specialty Retailers, Inc. v. State , 251 S.W.3d 472, 480 (Tex. 2008). Consequently, even when a party fails to establish “good cause” for failure
to timely pr ovide discovery responses, the Supreme Court has recognized a trial judge has the power to consider other options, including grant ing a continuance

. Id. In this connection, the court in this case essentially crafted a continuance remedy that addressed a ny alleged harm or prejudice based on late responses , because the court cut short the first day of trial and did not resume trial until several months later. See RR

- 2 p. 1 and RR

- 3 p. 1 (from January to October). With such a lengthy delay in the proceedin g, HJ’s attorney had more than enough time to investigate, prepare and respond to the evidence in Exhibit 17 that he suggested w as not provided timely enough. As such, even if HJ had a right to exclusion of Exhibit 17 for untimely responses , the court’s de cision to delay continuation of the trial for several months provided an appropriate remedy to address the legitimate purpose s underlying the discovery process at issue

. See Chrysler Corp. v. Blackmon , 841 S.W.2d 844, 850 (Tex. 1992) (whether sanction
to address a discovery violation is just considers whether party moving for sanctions is unable to prepare for trial without the requested discovery) ; See also Wigfall v. Texas Dept of Criminal Justice , 137 S.W.3d 268, 274 (Tex. App.

—25

Houston [1 st Dist.] 200 4, no pet.) (no error could be predicated on party’s claim concerning failure to timely designate expert witness where complaining party did not request a continuance or contend he was unable to conduct his own discovery in preparation of trial). Accordin gly, t his point should be overruled. Reply Point Two : There was sufficient evidence to support the findings for termination of HJ’s parental rights. 1. Applicable Law and Standard of Review Section 161.001 of the Family Code authorizes termination of par ental rights on a finding by clear and convincing evidence that (1) the parent committed at least one of several predicate acts or omissions listed under section 161.001(1) of the Family Code and (2) that termination is in the child’s best interest. Tex. Fam. Code Ann. §161.001 (West 2008). In this case, the court made these requisite findings in the court’s written decree, as required by Tex. R. Civ. P. 306, and specifically conclud ed that HJ committed the predicate act provided at S ubsection E and that termination was in the children’s best interest. CR 83 . Appellant’s Brief challenges the legal and factual sufficiency of the evidence to support the predicate findings. With respect to the applicable standard of review, this court’s standard consider s the clear and convincing burden of proof at trial. See In re C.H., 89 S.W.3d 17, 25 (Tex. 2002) (“burden of proof at trial necessarily affects appellate review of the evidence.”). In that connection, both legal and factual sufficiency26

challenges consider the standard of proof for clear and convincing evidence by considering whether the evidence is such that a fact

- finder could reasonably form a firm belief or conviction about the truth of the State's allegations. Id . The Supreme Court explained, in light of the identical inquiries made to the clear and convincing standard, the distinction between legal and factual sufficiency when the burden of proof is clear and convincing evidence may be a fine one `in some cases, but clarified that there is a distinctio n in how the evidence is reviewed. In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002). In a legal sufficiency review, a court should look at all of the evidence in the light most favorable to the finding to determine whether a reasonable trier of fact could hav e formed a firm belief or conviction that its finding was true, giving appropriate deference to the trier of fact. Id . In a factual sufficiency review, a court of appeals must give due consideration to evidence that the factfinder could reasonably have f ound to be clear and convincing and with respect to disputed evidence, a court should consider whether the disputed evidence is such that a reasonable factfinder could not have resolved that disputed evidence in favor of its finding. Id . If, in light of th e 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 insufficien t. 96 S.W.3d at pp. 266

- 67.27

2. The evidence sufficiently supported the finding that HJ engaged in conduct endangering to a child for a finding under E , because her children all suffered substantial physical injuries or untreated medical conditions unde r her care which she either caused or allowed. Subsection ( E ) of Section 161.001(1) of the Family Code involve s proof that a parent engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangers the child’s physical or emotional well

- being. Tex. Fam. Code Ann. §161.001(1)(D)(E) (West 2008). The definition of endangerment includes its general meaning: that is, exposing a child to loss or injury or jeopardizing a child's emotional or physical health. Texas Dep't of Hu man Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex.1987). As explained by the Supreme Court, the proof for endangerment does not have to be established as an independent proposition, but can be inferred from parental misconduct alone. Boyd , 727 S.W.2d at p. 533. Also, it is not necessary that the parental misconduct be directed at the child, occur in the child’s presence or that the child actually suffer injury from it

. T he primary evidence of endangering conduct by HJ in this case involves the many injuries and untreated medical conditions which were found to have been endured by her children while under her care, including the injury that resulted in the death of her oldest child, Jonathan. As the record establishes, th e trial court ordered the child ren into S tate care after the following facts were learned:28

1. On November 4, 2012, a referral came to the Department after the death of HJ’s 3 year old son Jonathan and hospital staff noticed Jonathan had signs of external trauma with bruises on his face and neck area , abrasions on the bridge of his nose and right area of his forehead. RR

- 4 p. 23 and 90. A forensic nurse stated while the bruising on Jonathan’s face could be consistent with the mother’s explanation of a fall at the park th at did not explain the bruises behind his ears, looped bruises on his legs and non

specific bruises on his back. RR

- 4 p. 24. A social worker at Texas Children’s Hospital also advised that the youngest child, DJ, was developmentally delayed and a CT scan revealed he had abnormalities t hat could indicate previous abuse. RR

- 4 p. 26. 2. T he Department worker did not initially see any observable injuries on HJ’s younger children when she went for the family interview , but not long afterward she learned KJ had a broken ankle because she advise d the Houston Police Department of that in preparation of the parent interview. RR

- 4 p. 26. HJ later claimed she did not tell the worker about th at, because “she was nervous and forgot.” RR

- 4 p. 26. 3. T he assistant medical examiner ruled Jonathan’s death a homicide by blunt force trauma to the abdomen. RR

- 4 p. 90. He told one of the officers he believed the cause of death was a perforated intestine which leaked bile into the child’s body. RR

- 4 p. 90. He commented that injuries of that type typically take 4 8

- 72 hours before death results. RR

- 4 p. 90. 4. Jorge initially denied causing harm to Jonathan , but e ventually admitted to “play boxing” with hi m on November 2, 2012. RR

- 4 p. 90. HJ claimed she was in another room at the time but admitted she “ heard ” Jonat han crying and Jorge told her he was “play boxing

. ” RR

- 4 p. 90. Nonetheless, Dr. Phatak explained to perforate the child’s intestines, “it would have been a ‘substantial’ strike in the torso” and not merely “play boxing.” RR

- 4 p. 90. An indictment was i ssued against Jorge for felony murder in connection with Jonathan’s death. RR

- 4 p. 90

- 93. 5. O n November 7, 2012, a physician at Texas Children’s Hospital prepared a statement regarding his conclusion that KJ had injury consistent with abuse or neglect. RR

- 4 p. 153. The aunt confirmed KJ’s ankle injury occurred a month earlier and said HJ told her the injury resulted when KJ lost balance on a toilet seat. RR

- 4 p. 153. KJ’s x

- ray showed fracture of the distal right tibia and extensive callus formation indicati ng “repeated29

trauma” as well as an unexplained healing abrasion of the nose. RR

- 4 p. 153. The child had unexplained injuries of different ages and swelling and symptoms of injury that apparently were not taken for medical attention. RR

- 4 p. 153. 6. Jorge ad mitted to “playfully hitting” Jonathan but claimed it was not hard enough to hurt him. RR

- 4 p. 26. HJ admitted “to seeing” Jorge hit Jonathan in the stomach but described it as in a “playful” manner. RR

- 4 p. 26. When asked about KJ’s broken ankle, HJ cla imed this happened when KJ stepped out of the tub and landed on her foot in a way that caused her to hurt her ankle. RR

- 4 p. 26. When asked about the possible head injuries seen on h er youngest child’s CT scan, HJ said neither she nor Jorge hit the child but claimed possibly her babysitter or one of the other children did. RR

- 4 p. 26. J J claimed she did not have her babysitter’s contact information. RR

- 4 p. 26. T hese facts a lone provided proof that HJ endangered her children . As indicated, contrary to th e parents’ story about play boxing, th e assistant medical examiner concluded the force that perforated three year old Jonathan’s intestines would have come f

rom a “substantial strike in the torso .” RR

- 4 p. 90

- 93 & 26

. Also, a doctor who spoke with the ch ild’s aunt learned HJ told the aunt she was aware of DJ’s broken ankle injury yet it remained untreated for about a month . RR

4 p. 153. That same doctor noted the child’s x

- ray revealed “repeated trauma,” an unexplained healing abrasion of the nose, unex plained injuries of different ages and swelling and symptoms of injury that apparently were not taken for medical attention and which could have permanent consequence s on the child’s growth. RR

4 p. 153.30

Considering HJ confirmed at trial that she was alwa ys with Jonathan and the other children in a one bedroom apartment or at the park, the trier of fact had more than sufficient basis to conclude the injuries observed on her children indicated she caused or allowed her children to be an abusive environment for a finding under Subsection E. RR

- 2 p. 14 & 20

. See Jordan v. Dossey, 325 S.W.3d 700, 724 (Tex. App.

— Houston [1st Dist.] 2010, pet. denied) (“Abusive and violent criminal conduct by a parent can produce an environment that endangers the well

- being of a child.”). Moreover, because there was evidence of injuries that would have occurred on more than one occasion, described as “repeated trauma” and of different ages ( RR

- 4 p. 153 ), this permitted an inference that she engaged in a pattern of behavior that w ould have likely continued to jeopardize her children. 325 S.W.3d at p. 724. It is acknowledge d that HJ denied she ever injured the children; however, a trier of fact was entitled to disbelieve that claim

. See In re J.P.B. , 180 S.W.3d 570, 574 (Tex. 2005 ) (just because father claimed he did not know about child’s injuries did not prevent trier of fact from concluding otherwise). It was within the province of the tr i er of fact to judge her demeanor and decide whether to believe her

. Id. T his is especiall y true considering the trier of fact heard her story change so much. For example, she first claimed she “heard” Jonathan crying during the time Jorge said he was play boxing with him ; but s he admitted to someone else “to seeing” Jorge hit Jonathan in the stomach in a “playful” manner. RR

- 4 p. 26 and 90. At31

the time of trial, she i nitially denied she said she saw Jorge play boxing with Jonathan, but when asked again she admitted she did. RR

- 2 p. 16

- 17. Moreover, she changed her story again and claimed she never saw her boyfriend play boxing, and claimed she made th at story up. RR

- 2 p. 17. The judge asked her to clarify if she was admitting she made that story up when she made that statement in court. RR

- 2 p. 28. She admitted she did. Id. . Consequently, the judge had more than suffi cient basis to conclude HJ had a pattern of being untruthful, even while under oath in court. As such, there was little basis to conclude she was any more truthful by the time of trial. With such lack of truthfulness, the tr ier of fact had sufficient basis to conclude HJ was unwilling to admit or address her neglectful and dangerous conduct and t hat would , of course, make it impossible to ensure she could provide a safe environment for her children

. On these facts, the court had overwhelming proof to support a finding of endangering conduct by HJ which was both legally and factually sufficient for a finding under Subsection E. 3. The evidence sufficiently supported the finding that termination was in the children’s best interes t considering the evidence in support of Subsection E, as well as the mother’s failure to honestly address her inappropriate behaviors by the time of trial. The terms “best interest of the child” used in section 161.001(2) of the Family Code is not statu torily defined; however, the Supreme Court in Holley v. Adams, 544 S.W.2d 367, 371

- 72 (Tex. 1976), recognized a non

- exhaustive list of factors that have been considered in determining a child's best interest. Those32

factors include: (1) the child's desires; (2) the child's emotional and physical needs, now and in the future; (3) the emotional and physical danger to the child, now and in the future; (4) the parental abilities of the individual seeking custody; (5) the programs available to assist these indivi duals in promoting the child's best interests; (6) the plans for the child by the individual or the agency seeking custody; (7) the stability of the home or proposed placement; (8) the parent's act or omissions which may indicate the existing parent

- child relationship is not a proper one; and (9) any excuse for the parent's acts or omissions. Id

. Moreover, Section 263.307 of the Family Code provides factors that this court has found relevant to the best interest determination. See In re J.D. , 436 S.W.3d 105, 121 (Tex. App.

— Houston [14th Dist.] June 10, 2014, no. pet.). In particular, that section provides “the prompt and permanent placement of the child in a safe environment is presumed to be in the child's best interest ,” and then goes on to list fact ors for a court to consider in determining a parent’s willingness and ability to create a safe environment for the child. Id. ; Tex. Fam. Code Ann. § 263

. 307(a) (Vernon 2008). In reviewing the evidence with respect to the applicable factors from Holley a nd Section 263.307 of the Family Code in this appeal, the best interest finding is firmly supported. First, t he same evidence already discussed above which indicated HJ engaged in conduct endangering to her children supported the court’s conclusion33

that te rmination was in the best interest of the children. In re R.N.W., 01

- 13

- 00036

- CV, 2013 WL 3467206 (Tex. App.

— Houston [1st Dist.] 2013, no pet.) (“The same evidence of acts or omissions used to establish grounds for termination under subsection 161.001(1) m ay be probative in determining the best interests of the child.”)

. A trier of fact could have also concluded that the risks from HJ’s inappropriate behaviors prior to removal would likely reoccur and weighed in favor of a finding that parental termination was in the children’s best interest. See In re J.D. , 436 S.W.3d at p. 118 (A fact finder may infer that past conduct endangering the well

- being of a child may recur in the future if the child is returned to the parent). In addition , t he evidence discuss e d above that indicated HJ was being deceitful about how she might have caus ed or allow ed her children’s injuries demonstrated that she was unwilling to address her unsafe behaviors through this
process . As such, she did not show she had addressed her unsa fe behaviors to allow a court to conclude she was willing to provide a safe, permanent place for her children without the risks previously present in her home

. That would, therefore, mitigate in favor of a finding that termination is in the children’s bes t interest. See Tex. Fam. Code Ann. § 263.307(a) (presuming the placement of the child in a safe and permanent placement to be in the child’s best interest).34

CJ’s brief contends that, under Holley , the evidence was insufficient to support termination , b ecause HJ had a loving relationship with her children and finished the basic tasks she was required to perform under the Department’s service plan

. As far as her completion of service plan tasks, there was no eviden ce that her completion of the basic task s changed her positively or changed the risks that occurred in her home. Also, evidence that a child loves a parent is only marginally relevant under the Holley factors and cannot overrule a child’s needs for safety and emotional health. See In re L.D.A. , No. 01

- 14

- 00782

- CV, 2015 WL 293118 *6 (Tex. App.

– Houston [1 st Dist.] 2015, no pet.). Whi le her children may reflect a loving response to her, that does not mean they felt safe with HJ and the evidence indicates they were not. See In re T.L.R. , No. 14

- 14

- 00812

- CV, 2015 WL 1544796 (Tex. App

. — Houston [14 th Dist.] 2015, no pet.) (while there was evidence the children missed their mother, that did not outweigh finding that termination was in children best interest, especially considering one of the childr en expressed she did not feel safe with her mother). Moreover, no one testified that the children stated they wanted to go back to their mother, and the caseworker noted that youngest child (DJ) was too young to express his desires and KJ had not respond ed to that inquiry. RR

- 3 p. 25

- 26. Considering the situation these children must have endured under HJ’s care and the fact KJ was now reporting s he was hearing a baby cry constantly in her head, there35

was more than sufficient basis for the trial judge to be concerned about continuing HJ’s parent

- child relationship with her children. RR

- 3 p. 14

. Also, these children were very young when they came into State care and were only 4 and 2 by the time of trial. RR

- 3 p. 13. The children’s physical and emotional needs had been met in foster care and the home where they had been living for a long time while this case was pending expressed willing ness to adopt. RR

- 3 p. 14

- 15 and 23. Solutions had been sought with family members, including a grandmother in Califor nia, but no family member had worked out. RR

- 3 p. 15. Because the need for permanence is a paramount consideration in evaluation of a child’s present and future needs , a trier of fact likely would have considered the plan for adoption to be the best solut ion to ensure the children’s present and future needs could be met

. See Dupree v. Texas Dep't of Protective & Regulatory Servs., 907 S.W.2d 81, 87 (Tex. App.

— Dallas 1995, no writ) (“The need for permanence is the paramount consideration for the child's pres ent and future physical and emotional needs.”); see also Tex. Fam. Code Ann. §263.307(a) (Vernon 2008). Consequently, considering the facts in this case, the court had more than sufficient evidence to find termination of HJ’s parental rights was in the chi ldren’s best interest. T he trial court’s finding should be affirmed.36

WHEREFORE, PREMISES CONSIDERED, the Department requests that this court affirm the trial court’s judgment and for such other and further relief to which it may be entitled in law or in e quity. Respectfully submitted, VINCE RYAN COUNTY ATTORNEY
By: /s/ Sandra Hachem Sandra Hachem State Bar 08667060 Sr. Assistant County Attorney 1019 Congress, 17 th Floor Houston, Texas 770 02 Phone: 713/274

- 5293 ; Fax: 713/ 437

- 4700 Email: sandra.hachem@cao.hctx.net Attorney for Appellee, Department of Family & Protective Services

CERTIFICATE OF SERVICE I hereby certify that on this the 1 0th day of July 2015 a true and correct copy of this brief was sent to all parties to this appeal by sending a copy by electronic transmission to the Appellant care of her attorney of record William Thursland at his email address of wmthursland@hotmail.com

. A copy on this same date was also sent to the attorney ad litem for the children, Michelle Bush, by electronic transmission to her fax number: 713/513

- 5451. /s/ Sandra D. Hachem Sandra D. Hachem CERTIFICATE OF WORD COUNT COMPLIANC E This is to certify, pursuant to Te x. R. App. P. 9.4(i)(3), that the foregoing computer generated brief consists of no more than 15,000 words, excluding the37

caption, identify of parties and counsel, table of contents, index of authorities, statement of the case, statement of issues presente d, statement of procedural history, signature, proof of service, certification, certificate of compliance and appendix. Relying on the word count of the computer program used to prepare this document, the number of words, subject to count under the rules, is 9,061 words. /s/ Sandra Hachem Sandra Hachem