No. 01-15-00253-CV

______________________________________ 

IN THE COURT OF APPEALS FOR THE 

 FIRST JUDICIAL DISTRICT OF TEXAS AT HOUSTON 

__________________________________ 

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 314th 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, 17th 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

CLERK

 FILED IN 1st COURT OF APPEALS HOUSTON, TEXAS 7/10/2015 5:08:19 PM CHRISTOPHER A. PRINE Clerk
ii

TABLE OF CONTENTS

TABLE OF CONTENTS.......................................................................................... ii

INDEX OF AUTHORITIES.................................................................................... iii

STATEMENT OF THE CASE..................................................................................v

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

STATEMENT OF FACTS ........................................................................................1

SUMMARY OF ARGUMENT...............................................................................16

ARGUMENT AND AUTHORITIES......................................................................18

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 evidence 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 

children 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 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. ..........................................31

PRAYER FOR RELIEF ..........................................................................................36

CERTIFICATE OF SERVICE ................................................................................36

CERTIFICATE OF WORD COUNT COMPLIANCE...........................................36
iii

INDEX OF AUTHORITIES

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.)...... 32

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., 180 S.W.3d 570 (Tex. 2005) ...............................................................30

In re L.D.A., No. 01-14-00782-CV, 2015 WL 293118 

 (Tex. App.—Houston [1st 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. Comm’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 [1st Dist.] 2013, no pet.)....................................................21
iv

In re T.L.R., No. 14-14-00812-CV, 2015 WL 1544796 

 (Tex. App.—Houston [14th 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 [1st Dist.] 2004, no pet.)....................................................24

STATUTES

Tex. Fam. Code Ann. §161.001 (West 2008).................................. iv, 25, 27, 31, 33

Tex. Fam. Code Ann. §263.307 (West 2008)..............................................32, 34, 35

RULES

Tex. R. App. P. 33.1.................................................................................................20

Tex. R. Civ. P. 306...................................................................................................25

Tex. R. Evid. 103 .....................................................................................................20
v

STATEMENT OF THE CASE

On November 7, 2012, the Department filed a suit for protection of two 

children under the age of 3 and the trial court granted the Department temporary 

managing conservatorship. CR13 and 32. Trial commenced before the bench on 

January 30, 2014 but resumed on a much later date on October 7, 2014. CR 81. A 

judgment was signed on February 26, 2015. CR 89. 

The written judgment established 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. No motion for new trial was 

filed. HJ filed a timely notice of appeal on March 13, 2015. CR 107. 

REPLY POINTS

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.

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 DISTRICT OF TEXAS AT HOUSTON

__________________________________

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 in response to 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. The 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 explanation of a fall, the child also had bruises behind his ears, looped 

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 observable injuries, but 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 Texas Children’s 
3

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 bile 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 with 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 heard Jonathan crying and Jorge 

told her he was “play boxing” with him. 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. 
4

On 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 doctor’s statement documented that the child was 

brought to him accompanied by her great aunt. RR-4 p. 153. The aunt told the 

doctor that KJ’s injury occurred a month 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 could result in permanent physical damage that

could affect growth and cause permanent deformity to the child. RR-4 p. 153. 

The 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 to 
5

“playfully hitting Jonathan in the stomach.” RR-4 p. 26. Shannon asked Jorge 

about 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” manner. 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 child. RR-4 p. 26. She added, 

however, that possibly her babysitter or one of the other children did it. RR-4 p. 26. 

However, when Shannon asked HJ for the babysitter’s contact information, HJ

claimed she did not have it. RR-4 p. 26. 

Because the parents provided no or conflicting explanations regarding the 

injuries and 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 granting 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 that failure

to complete those tasks could result in restriction or termination of parental rights. 

RR-4 p. 35. Among the tasks listed which 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 immigration status, (5) the children’s medical history; and 

(6) provide a current residence address 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 with the 

assistance of that plan, her parental rights could be terminated. RR-4 p. 41. The 

court ordered HJ’s family service plan 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 HJ 

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 into 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 violence classes, and submit to drug screenings. RR-4 p. 

48-49. However, the 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 as 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 compliant 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 noted HJ reported her mother 

was willing to care for the 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 could not get a hold of 

them 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 witness 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 claiming 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 records that Jamal brought to court were referred to as 
9

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 and 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 that in January 2010. RR-2 p. 30. 

HJ stated that her children came in care after Jonathan died. 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 have 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. 10-11. She said the 

worker told her that her son died as a result of an injury to his stomach but she 

claimed she never saw any injury or assault on her son. RR-2 p. 13.

HJ confirmed at the time of the injury, it was just her, her boyfriend and the 

three children in their single bedroom home. RR-2 p. 14. She stated that she took 
10

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 evening 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 about 4 am, she 

responded: “He was going to the bathroom and he saw that the child 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 said 

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 boxing with Jonathan, but when asked again she admitted she did. RR-2 

p. 16-17. She also confirmed she told the investigator for CPS the same thing. RR2 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, she claimed he looked fine 
11

when she put him to bed and she never left him and was always with him either at 

the park or in their one-bedroom apartment. RR-2 p. 20. 

HJ also stated she never saw the father being violent with the children and 

claimed she never physically disciplined 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 normally 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 911. 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 with 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. 26. 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 I 
12

did nothing.” RR-2 p. 26. She stated she had no idea what happened 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 

her 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 before and the children – my 

children played with her children who are older than mine. “ RR-2 p. 32. She 

claimed when they played 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 

responded: 

From the county attorney to me.

RR-2 p. 34. After that statement the court stated the document was admitted. RR2 p. 34. 

Strangely, this document admitted as “the responses to disclosures” “from 

the county attorney” indicated it did not 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 315th). 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 County Attorney involved 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 foster 

care placements, but concern was reported about KJ who was saying she was 
14

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. 26.

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 questions were attempted regarding the situation when that 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 a 
15

grandmother in California, but no family members worked out for placement and it 

was time for the children to have permanency. 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 asking that Jorge’s parental rights be terminated 

because he stated he caused the injuries to the child that died and was in jail for 

injuries of that 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 enough. 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 service 

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 children 
16

regarding 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 

instead the attorney focused solely on the evidence regarding Jonathan’s death. 

RR-3 pp. 36-37. At conclusion of the case, the court orally announced that he was

terminating the mother’s parental rights under both Subsections D and E. RR-3 p. 

42. Nevertheless, the 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 supported 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 particular 
17

disclosure request or doctor opinion in P17 were identified 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. The objection claimed something in 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 those unidentified documents. Notably, 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. However, 

that document was not admitted until long after the objection was lodged and did

not appear to even involve this 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 termination, 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 month, for which no medical care was provided and there were 

signs of repeated trauma. Also, the mother acknowledged she had been in a 
18

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 acknowledge and address the 

abusive circumstances in her home or provide a feasible explanation for the 

injuries that occurred there. She did neither. The record confirms she typically 

gave inconsistent or unbelievable explanations or no explanation at all. 

Considering 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 sufficient 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 admitting 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 were 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 discovery establishing 

discovery 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 was given regarding what the discovery request said, 

when it was sent, or who it was propounded upon. These inadequacies in the 
20

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.

The 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 shows

the complaining party established a right to exclusion 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 determine the “specific ground of objection”

upon which the alleged substantial right is based. In this case, neither 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 she had a right to 

exclusion of Exhibit 17 based on her objection about untimely responses to 
21

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 Department 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 [1st Dist.] 2013, no pet.) (no error established because 

complaining party failed to identify the specific requests to which the complained 

documents applied); Langley v. Comm’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 discovery when the record 

does not contain the relevant discovery requests). In this connection, it should be 

noted that no 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 doctor 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 they are: “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 was admitted.

Moreover, as 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 315th). 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 County 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 that might have indicated these were discovery in this case were 

mysteriously missing and this document was combined with discovery responses 

from another case. RR-4 pp. 170-81. In light of that 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 was not established as a 

predicate to HJ’s claim on appeal, because the specific ground of HJ’s objection 

was 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 Hospital. RR-4 p. 102-

154. HJ’s objection did not 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 error. See L.M. v. 

Dept of Fam. & Prot. Servs., 2012 WL 2923132 (Tex. App. – Houston [1st 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 discovery 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 to 
24

satisfy the legitimate purposes underlying the discovery process, and courts have 

the right to consider 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 provide discovery responses, the Supreme Court has recognized a trial 

judge has the power to consider other options, including granting a continuance. Id. 

In this connection, the court in this case essentially crafted a continuance 

remedy that addressed any 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 proceeding, HJ’s attorney had more than enough 

time to investigate, prepare and respond to the evidence in Exhibit 17 that he 

suggested was not provided timely enough. As such, even if HJ had a right to 

exclusion of Exhibit 17 for untimely responses, the court’s decision to delay 

continuation of the trial for several months provided an appropriate remedy to 

address the legitimate purposes 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 [1st Dist.] 2004, 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). Accordingly, this 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 parental 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 concluded that HJ committed the predicate act provided at Subsection 

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 

considers 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 sufficiency 
26

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 distinction 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 have 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 found 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 the entire record, the disputed 

evidence that a reasonable factfinder could not have credited in favor of the finding 

is so significant that a factfinder could not reasonably have formed a firm belief or 

conviction, then the evidence is factually insufficient. 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 under her care which she either caused or allowed.

Subsection (E) of Section 161.001(1) of the Family Code involves 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 Human 

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.

The 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, the trial court ordered 

the children into State 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 that did not 

explain the bruises behind his ears, looped bruises on his legs and nonspecific 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 

that could indicate previous abuse. RR-4 p. 26.

2. The 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 advised 

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 

that, because “she was nervous and forgot.” RR-4 p. 26.

3. The 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 48-72 hours before death results. RR-4 p. 90.

4. Jorge initially denied causing harm to Jonathan, but eventually admitted 

to “play boxing” with him on November 2, 2012. RR-4 p. 90. HJ 

claimed she was in another room at the time but admitted she “heard”

Jonathan 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 issued against Jorge for felony 

murder in connection with Jonathan’s death. RR-4 p. 90-93.

5. On 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 indicating “repeated 
29

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 admitted 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 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. When asked about the possible 

head injuries seen on her 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. JJ claimed she did not have her

babysitter’s contact information. RR-4 p. 26.

These facts alone provided proof that HJ endangered her children. As 

indicated, contrary to the parents’ story about play boxing, the assistant medical 

examiner concluded the force that perforated three year old Jonathan’s intestines

would have come from a “substantial strike in the torso.” RR-4 p. 90-93 & 26. 

Also, a doctor who spoke with the child’s aunt learned HJ told the aunt she was 

aware of DJ’s broken ankle injury yet it remained untreated for about a month. RR4 p. 153. That same doctor noted the child’s x-ray revealed “repeated trauma,” an 

unexplained healing abrasion of the nose, unexplained injuries of different ages and 

swelling and symptoms of injury that apparently were not taken for medical 

attention and which could have permanent consequences on the child’s growth. RR4 p. 153. 
30

Considering HJ confirmed at trial that she was always 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 would have likely continued to jeopardize her children. 325 S.W.3d at p. 724.

It is acknowledged 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 trier of fact to judge her demeanor and decide whether to believe her. Id. 

This is especially 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 she admitted to someone else “to seeing” 

Jorge hit Jonathan in the stomach in a “playful” manner. RR-4 p. 26 and 90. At 
31

the time of trial, she initially 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 that 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 

sufficient 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 trier of fact had sufficient 

basis to conclude HJ was unwilling to admit or address her neglectful and 

dangerous conduct and that 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 interest 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 statutorily 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. Those 
32

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 individuals 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 factors 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 and Section 263.307 of the Family Code in this 

appeal, the best interest finding is firmly supported.

First, the same evidence already discussed above which indicated HJ 

engaged in conduct endangering to her children supported the court’s conclusion 
33

that termination 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) may 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, the evidence discussed above that indicated HJ was being 

deceitful about how she might have caused or allowed 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 unsafe 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 best 

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, because 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 evidence 

that her completion of the basic tasks 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 [1st Dist.] 2015, no pet.). While 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 [14th 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 children 

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 responded 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 she was hearing a baby cry constantly in her head, there 
35

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 willingness to adopt. 

RR-3 p. 14-15 and 23. Solutions had been sought with family members, including 

a grandmother in California, 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 solution 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 present 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 children’s best 

interest. The 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 equity.

Respectfully submitted,

VINCE RYAN

COUNTY ATTORNEY

By: /s/ Sandra Hachem 

Sandra Hachem State Bar 08667060

Sr. Assistant County Attorney

1019 Congress, 17th Floor

Houston, Texas 77002

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 10th 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 COMPLIANCE

This is to certify, pursuant to Tex. R. App. P. 9.4(i)(3), that the foregoing 

computer generated brief consists of no more than 15,000 words, excluding the 
37

caption, identify of parties and counsel, table of contents, index of authorities, 

statement of the case, statement of issues presented, 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