## In the Court of Appeals Second Appellate Dist rict of Texas at Fort Worth

___ ________ ________________ No. 02

- 21

- 00075

- CV

___________________________

O n Appeal from the 30th District Court Wichita County, Texas Trial Court No. DC30

- FM2019

- 0259 Before Kerr, Womack, and Wallach, JJ. Memorandum Opinion by Ju stice Kerr 

### I N THE 

### I NTEREST OF 

### E.F., A 

### C HILD2 MEMORA NDUM OPINION The sole complaint in this termination

- of

- parental

- rights appeal is that the S tate failed to sufficiently prove that appellant Father enda ngered his child Eric according

to Texas Family Code Section 161.0 01(b)(1)(D) an d (E ), after Er ic suffere d near
- fatal injuries while in Father ’ s care . After r eviewing the ent ire record and determining that the Department proved sufficient ly that Father endangered Eri c, we affirm the trial
court ’ s judgment. Applicable Law and Evidentiary
- S ufficiency Standar d s of Review Because our appellat e review turns solely on applying the F ami ly Code and evid entiary standards of review to the facts adduced at tr ial, we dispense with a n introductory recitation of the background facts an d begin with the a pplica ble law and
sta ndard s of review

. To terminate Father ’ s parenta l righ ts, the Depar tment needed to prove by clear and convincing evidence that Fathe r ’ s action s satisfied at least one conduct ground in Family Code S ection 161.001(b)(1) and that E ric ’ s b est interest warrante d termin ation

. T ex. Fam. Code Ann. § 161.001(b) ; In re E. N.C. , 384 S.W.3d 796, 803 (Tex. 2012); In re J.L. , 163 S.W.3d 79, 84 (Tex. 2005). “ C lear and convincing ” e vidence “ will produce in the mind of the tr ier of fact a firm belief or conviction as to the truth of the all ega tions sought to b e establis hed. ” Tex. Fam. Code Ann. § 101.007; E.N.C. , 384 S.W.3d at 802. Due process demands this heightened burden of proof because

“ [a] parental rights termination pr oceeding encumbers a value ‘ far more prec ious than3 any property right

. ’” In re E.R. , 3 85 S.W.3d 552, 555 (Tex . 2012) (quoting Santosky v. Kramer , 455 U.S. 745, 758

– 59, 102 S. Ct. 1388, 1397 ( 1982) ); In re J.F.C. , 96 S.W.3d 256, 263 (Tex. 2002) ; see also E.N.C. , 384 S.W.3d at 802. H e re, the Depa rtment alleged two con duct grounds beca use of E ric ’ s inj uries: tha t Father had “ (D) knowingly placed or knowingly allowed [E ric ] to remain in conditions or surroundings which endanger [ed E ric ’ s ] physical or emotional well

bein g . . . [ and had ] (E) engaged in conduct or knowingl y placed [ Er ic ] w ith p ersons who e ngaged in conduct which endanger [ed E ric ’ s ] physical or emotional well

- being

. ” Tex. Fam. Code Ann. § 161.001( b) (1) (D)

– (E). “ ‘ [E] ndanger’ means more than a threat of metap hysical injury or potential ill effects of a less

- th an
- ideal family e nvironment, b ut . . . endan gering conduct need not [even] be directed at the child.” E.N.C. , 384 S.W.3d at 803 (quoti ng Tex. Dep’t of Human Servs. v. Boyd , 727 S.W.2d 531, 533 (Tex. 1987) ). A single act or omission can support termination under subsection ( D), which focuse s on either the parent ’ s conduct or the conduct of a person w ith whom the parent placed the child. In re A. B. , 125 S .W.3d 769, 776 (Tex. App.

–– Te xarka na 2003, pet. denied ). Subsection (D) requires us to examine evidence re lated to a child’ s environment t o de termine if it was the source of endangerment

. In re A.S. , No. 02

- 19

- 00429

- CV, 2020 WL 2071944, at *6 (Tex. App.

— Fort Worth Apr. 30, 2020, pet. denied) (mem . op.).4 Under section 161.001(1 )(E), the parent ’ s conduct

–– acts o r failures to act

––
must directly cause the endangerment

. In re R.H. , No. 02

- 20

- 00396

- CV, 2021 WL 2006038, at *13 (Tex. App.

— Fort Worth May 20, 2021, no pet. ) ; J.F. v. Tex. Dep ’ t of Family & Protective Ser v

s . , No. 03

- 16

- 0 0593

- CV, 2016 WL 7584309, at *7 (T ex. App.

— Austi n D ec. 22, 2016, no pet.) (mem. op.). Absenc e of self control and propensity for violence may be considered as evidence of endangerment. J.F. , 2016 WL 7584309, a t *7; In re J.I.T.P. , 99 S.W. 3d 841, 845 (Tex. App.

–– Houston [14th Dist.] 2003, n o pet.). When a party c hallenges whether the Department produced legall y sufficient evidenc e to prove a conduct ground , we look at all the evidence in the light most favorable to the challenged finding t o determine whethe r a reasonable factfinder

c ould for m a firm beli ef or conv iction tha t the finding is true. In re J.P.B. , 180 S.W.3d 570, 573 ( Tex. 2005). We assum e the factfinder settled any evidentiary conflicts in favor of it s finding if a reasonable f actfinder could ha ve done so , and we disregar d all

ev idence that a re asonabl e factfinder could have disbelieved ; we consider undisput ed evidence even if contrary to the challenged finding. Id. When a party challenges whether th e D epartment ’ s conduct

- grou nd evidence is fac tually sufficient, we must perform “ an exacting rev iew of the entire record

. ” In re A.B. , 437 S.W.3d 498, 500 (Tex. 2014). But in doing so, we sti ll give due deference to the factfinder ’ s finding ; we may not sup plant the verdict with our own. In re H.R.M. , 209 S.W.3d 105, 108 (Tex. 2006). We must decide wh ether a factfinder could5 reasonably form a firm conviction or belief t hat t he Department prove d th e alleged conduct ground

. See Tex. Fam. Code Ann. § 161.001(b) ; In re C.H. , 89 S.W.3d 17, 28 (Tex. 2002). I f the factfinder reasonably could fo rm such a fi rm convict ion or belief, then the evidence is fact ually sufficient. C.H. , 89 S .W.3d at 18

– 19. Un der either review, we must remember that o nly t he factfinder may judge the witnesses ’ credib ility and demeanor

. In re J.O.A. , 283 S.W.3d 336, 346 ( Tex. 2009). Ap plicabl e Facts Eric ’ s Injuries Eric was 28 days old on July 5, 2019, th e da y he was so s everely injured. Mo ther had left Eric in Father ’ s care wh ile she ran errands. Great

- grandm o ther , who was over 60 year s old, had arri ved at th e house only a sh ort time before Eric was injured

. Only Father and Gre at

- grandmother stayed in the house with Eric

. Afte r Mo ther had been gone for about 45 minutes to an hour , Father called her to tell her E ric was “ breath ing weird. ” S he went home immediately to fin d E ric ’ s face swollen, h is lips turning blue, and his breathing sh allow. Mother “ eventually ” called the police. 1 Emer gency responders t ook Eric to Un ited Regio nal in Wichita Fal ls. The hospital staff intubated Eric

. They also gave him a blood t ransfusion. Alo ng with a bruise on Eric ’ s righ t j a w, hospital staff no ted swollen lips and b ruise s

1 According to the police report, she called Father ’ s mother first.6 on his l eft c hin, forehea d, and lower back. Lat er tha t night, Eric wa s airlifted to Cook Chi ldren ’ s Me di cal Center in Fort Worth. After E ric arrived a t Coo k Children ’ s , t he staff di scovered that he had head and skull fra ctures, hematomas on both si des, hip

- and pelvic

- area fractures resulting from a twisting motion , f ractures under both knees, and a fracture above one of hi s feet. The ho spita l informed the police that Eric h ad also s uffered “ s evere hypoxic isch emic brain injury, ” a “ thrombosed bridging vein, ” a “ possible contusional tear of the right frontal pole of the brain, ” and “ multile v el ligamentous s prain of t he cerv ical spine. ” Hospital staff diagnosed Eric with “ [t]r aumatic brain injury from non accidental
trauma. ” Eri c stayed at Cook Children ’ s for two weeks

. During part of t hat time, he requ ired “ ongoi ng vent i la tory support . ” Cook Childr en ’ s removed his tube after about a week ; at th at t ime, the family had accepted the possibility of “ imminent death , ” and Mother had to prep are for end

- of

- life care for him. Cook C hild ren ’ s discharged Eric to Hospice of Wi chita F a lls where Eric ended up i mp rov ing

. By the ti me of trial, Eric had made “ wonderful progress ” accordin g to Mo ther , although h e did not use his left arm and hand “ as much ” b ecause it stayed curled , and his right foot turned in and caused him t rouble walking

. He also saw a neurologist peri odically to assess his brain function.7 Hospital Notes ’ Narration of Ev ents Th e transfer repor t t o Cook Children ’ s state s that Gre at

- g randmother suffere d from demen tia and a nger issues and that , reportedly, Father had left E r ic on either the

c ouch or a chair when he went ou tside and that Great

- grandmo ther was in the roo m with E ric w hen Father came back in. At that time, E r i c “ was not acting like himself ” and was l eth argic. It was r eported to emergency responders t hat when Mother came home, Eric “ was mildly responsive, p ale [, and ] mottled

. ” The ho spital notes also indicate that al thou gh Fat her tol d the ambul ance serv ice tha t Great

- grandmother

“ maybe had something to do w ith this , ” the investigating police detective “ noted t hat great grandmom had some diffi culty getting up and d own and required a cane. ” Arrest
- Wa rrant and Police
- Notes Version At the time of trial, Father was i n jail awai ting trial for allegedly causing Eric ’ s injuries

. According to po lice re cords , wh en officers searched th e home, the y found

“ blood stain evidence ” on a bassi ne t , pacifier , a nd baby wi pe in the m aster b edr oom and on the right and left sides of the kitch en sink. They also found a soiled diaper and baby wipes in the master

- be droom trash can. Because th e bloody baby wipe was found in the tra sh can under th e soil ed diap er, the investigators believed that “ the

c hild was treated for bleeding sometime before being changed fo r the soiled diaper. According to the affidavit attached to Father ’ s arrest warrant, when th e first of fi cer arrived at t he home, Paternal Grandmother was h olding Eric, who wa s8 nonresponsive and breathing erratically. When t h e paramedics arrived , they began immediately to assess E r ic ; at that ti me, Father

–– without being asked

–– pointed to a bruise u n der E ric ’ s jaw and stated t hat the bruise was no t from abuse. T he office r

“ found that stat ement t o b e od d since abuse was not determined at that moment. ” About an hour after the police arr ived a t the home , a nurse called the police department to r ep o rt that E ri c was “ showing s igns of abuse trauma , ” that he was being s ent to Cook Children ’ s, and that she was making a referral to the Department of Family a nd Protec tive Services for “ ass aul t. ” During the police investigation, Mo ther said that she had been g on e about 45 minut es when F a ther contac ted her and that when she got home, she first called Father ’ s mo ther to come help. Mother told the police that before she left that day, she had fed E ric a nd left him sleepin g in his ba ssi net ; he was “ f ine

. ” F ather told the p olice that after Moth er had left, he fed E r i c a bott le and then went to the kitchen to make him an other one. While at the kitchen window, he saw an old friend ou tside and went to go talk to hi m. Father gave differen t names fo r the friend. Father told police he was outsi de for abo ut five minutes and had a video and audio baby monit or in his pocket , 2 but he never heard anyth ing

. When Father went back inside, E ric “ was br eathing funny and unresponsive. ”

2 A lthough the police

- department notes state t hat Father said he had th e mo nitor ’ s volum e t ur ned all the way up , this information is not in the arrest affidavit.9 Great

- grandmothe r told t he pol ice that after Mother left the house, Father w as inside the bedroom with E r ic. E ric was cry in g a lot but then stopped. A s hort time later, E ric whi mp ered. 3 Great

- grandmo ther l ooked into the bedroom and saw Father

“ cha nging [ E ri c ’ s ] diaper ” f or w hat she though t wa s a long time. Fath er came out of the bedroom holding E ric face up; he t ook E ric to the sink and began putting wate r on him. But Father never wiped the wate r off, which Great

- grandmother thought was strang e. She ask ed Father what was wrong, but he d id not respon d. Duri ng this time, Father was try ing to call Mother. Cook Chi ldren ’ s confirmed to the police that E ric had suffere d a subdural hematoma, a subar a chnoid hem orr h age , and retinal hem orrhag es ; he was also h aving seizu re s. Eric ’ s injuri es were lif e
- threa tening , and when he arrived, he was not stable enough for t hem to perform an MRI

. Father ’ s Version Father tes tifie d after b eing warned of his Fifth Amendment rights. Father

co nfirmed that he wa s in the Wichita County jail and that he h ad been “ pi cked up on ” injury to a child

. Accor ding to Father, though, he had been indicted only for family violence

. 4 Fa ther ’ s trial d ate had not y et been set , a nd he did not ex pect o ne for at le ast two y ears b ecause of the C OVID

- 19 pan d e mic

. When asked why he had

3 The ho spital report notes that Grea t

- grandmother told the detective that the baby was crying while Father was in t he bed room with him; then, she heard “ sudden scre aming , ” which sto pped a nd was replaced by whimper ing.10 considered pleading guilty to child endangerment, Fa ther answered th at he believed that was “ more along the lines ” of what he was guilty of

. Father den ied causing Eric ’ s injuries. Fat her said th at when E r ic was in jured, Mother had gone out for about fifte e n
to twenty min utes to get groce ries, and he was out side o n the p orch

. He ha d left Eric in his “ baby rocker ” in the bedr oom , and Great

- gra ndmother was in the li ving room lying down on the couch

. Father went out to t he porch for a bou t five to ten minute s. When asked what happened n ext, Father first in voked his Fifth Am endm ent right

. After takin g the Fifth , thoug h, F ather tes t ifie d that when he came back in the house, E r ic was still strapped into his rocker 5 but was ha ving tr ouble breathing. Great

- grandmother was still on th e cou ch , which wa s about ten to twelve feet away , up a two

- st ep stai r case to the bedro om . But she was sitting up on the far side of the

cou ch instead of lyin g down as she had been when he went outside

. F ather said that when he found E r ic, his breaths were short a nd r apid ; he was limp and did not respond w hen Fa ther blew in h i s face. Father called Mother inste ad

o f 911 ; he admitted that he had not “ ass ess[ed] the situation properly. ” After Moth er

4 The trial court admitted the indictment into evidence; it c harges F a ther with committing continuous family violence under Family Code Secti on 71.003 both by allegedly c ausing Eric ’ s injur i es on July 5, 201 9, and by impedin g Mot her ’ s norm al breat hing or blood circulation on or about June 25, 2019. Tex. Fam. Code Ann. § 71.003.

5 A ccording to Father, E ric had never fallen out of his ro cker , and the rocke r was not c apable of fall in g over.11 got home, Father called his mother , and either she o r Mothe r then called 911. Father estimated th at about five to t en m inutes pas se d between the time he no ti ced E ric ’ s inj uries and 911 was called. When aske d what typ e of first a id he provided, Father said, “ I didn ’ t know what to do. ” Father told t he police that he had a baby m oni tor with h im that had both a udio and video c apability

. But Fa t h er never heard E ric cry . A lthoug h F ather spoke to la w enforcement , he did not talk to the doctors at Cook C h ildren ’ s because he was

“ extrem ely upset. ” Accordi ng to F ather, Great

- gra n dmot her wa s th e only one in the house when E ric ’ s injuries occurred. Nevertheless, he did not ask her what had happened while he
was out because , according to Father, “ I k new she hurt . . . my baby. ” He could n ot

s a y why he never spoke to her, saying th at it wa s “ pro bably not the right t hing for me to just ask her about that, no t me . ” But when trying to explai n why he told law enforcement that he did not think Great

- grandmoth er had hurt E ric , Father explained th at he did not think so “ at f irst ” ; he did no t think Great

- gra ndmot her had done anything to E ric until he “ was cal ling ” Mother. Father said he was in sho ck and had
not noticed E ric ’ s injuries, including t he broken bones and bleeding from the mouth. Whe n asked whether he had endange re d his son , Father admitted t hat his being outside and not watching ov er E ric “ led to circumstances ” that endangered him

. Fat her said that wh ile out on th e p orch, he had been talking to a high

- school friend12 whos e las t name he could not rem ember ; Fat her pl e ad ed the Fifth when a sked how his friend had come to be at the ho use. 6 Father admitted that Great

- grandm othe r had some troubl e walking and used a walker “ [m]ost of the time. ” He confirmed that whe n she wal ked out of the hous e the day Eric w as injured, she needed assistance

. B ut Fa ther thought Great

- grandmother

“ was mil kin g it. ” W he n asked how Great

- grandmo ther could have gotten up from the

c ou ch, injured E r ic, left him in his ro cker, and got ten back to the co uch i n such a

s hort a mount of time, F ather said that although she ne eded help walking with either a wal ker or shoulder to lean on “ most of the time, ” whic h he estimated to be about 95 %, he did not believe she needed help “ all the time. ” He had seen her walk w ithout assistance before and did not wish to speculat e on how she could have injured E r ic. She “ abso lutely ” could lift things. Father believed G reat

- grandmother c ould have gotten in to the bedroom, caus ed E ric ’ s i n juries, and gotten back to the c o uch in such a short time be c ause “ she was only w eak in her legs. ” Mother ’ s Perspective Mother origi nally thought tha t Great

- grandmother had caused Eric ’ s injuries, but after hearin g the police evidence

–– blood in the s ink and bass i net a nd the fact th a t Fa ther had a friend over h e did not tell M o ther about

–– she be liev ed Father had caused the inj uries. A ccording to Mo ther, Great

- grandmo ther ha d a chronic back

6 Other evi dence showed that police had arrested Father many times , including at least on ce for drug

- parapher nalia possession.13 issue and a broken spine; she c ould no t walk mor e than five or s ix steps by hers e lf and had falle n the day E r i c was injured. Mother did no t think Great

- grandmo ther was strong enough to cause Eric ’ s severe injuries in such a short time , b ut she did think Father was stro ng enough. Mo ther was als o conc erned that F ather never ca lled for

me dical or law

- enfor cement he lp. Great
- grandmot her ’ s History Father t estified that Great

- grandmo ther ha d a “ mental heal t h h istory ” and a

“ bad family violence history. ” Father had heard Grea t

- gran dmo the r ve rbally t hreat en Mother and her relatives , and he “ b elieve[d] ” that “ they ’ ve all been physically abused by ” Great

- grandmother. Gr eat

- grandmother had lived with him and Mother several times before and engaged in “ violent . . . mental a nd ve rbal abuse ” a n d “ someti mes p hysical abuse , ” in cluding to ward the dog. On e time before Eric was born , Father and Mother called law enforcement because Great

- grandmother had threatened Mother and her unborn

son ; l aw enforcement took Great

- grandm other to th e state hospita l on a mental

heal th warrant. Mother confi rmed Father ’ s testimony that Gr eat

- grandmother had threatened her and Eric with harm and that they had to call the police to have Great

grandmother removed on a me ntal

- h ealth warrant

. Father und erstood and Mothe r

co nfirme d that Great

- grandmothe r had been kicked out o f residential “ care
- type setting s ” for “ violent behavior

. . . [and ] conduct to wards staff and other residents, adult s. ” Neverthe less , when Fath e r left Great

- grandmother in the house with Er ic14 t hat day, he did not thin k that she could have hurt him b ecause he “ thought she c o uld have a change of heart ” and would not “ hurt a little baby. ” Mother had previously t estified th at Great

- grandmoth er had raised her until sh e was sixteen or seven teen ; her childhood “ wasn ’ t horrible. ” Great

- grandmother ’ s mental health did not deterior ate un til January 2019. But in June 2019, Great

grandmother had threatened to kill h er twice while the polic e were prese nt. According to Mot her, that was the o n ly time Great

- grandmother had been violent or aggressive toward Mother , and she had not seen her act that way with anyone else

. Mother said t hat, physically, Great

- grand mother had needed help to walk up the five p orch steps into h er house; whoever helped her “ would put on e arm under hers a nd assist her up. ” Mother d id not think it possible for Great

- grandmother to go up those steps by h erself. She did not think Great

- gran dmother coul d have inflicted the t wisting injury to Eric ’ s legs because “ [s]he has no strength

. ” Other Evidence Mother t estified that Fathe r had been physically violent wit h her in th e past; he would get angry when “ he didn ’ t get hi s way, ” and he had choked he r , bruised her, taken her money a nd car keys, a nd punch ed holes in the wall

. When asked whether he had physically as s aulte d Mother when E r ic was only a f ew days old , Father denied any physical contact with Moth e r but s aid he remem bere d “ more of a v erb al alterc ation ” with “ [ t]h e only physical damage . . . to the drywall of the house. ”15 The trial court admitted medic al rec ords for Father showing that in April 2019,

a couple of months before Eric ’ s birth, Father was ad mitted to the e mer gency room wit h nausea and vomiting and h ad admitted to drinking “ 2

- 3 drinks per day ” for a couple of weeks

. He was diagnosed with al cohol

- i n duced acute pancreati tis without infection or necrosis. He left ag ains t medical advice. A lthough Fa t her ’ s health recor ds also indicate that he had drug

- a buse problems as a t ee n a ger , Father denied having a drug problem when Eric was injured

. In the jail whi le awaitin g trial on hi s ch ar ge f or allegedly injur ing Eric , Father had b een on suicide wa tch three time s. But Fat her told at least one mental

- health evaluator t hat he had wan ted merely to stay out of the general jail p opulation because of the nature of hi s charges. Mother told the social worker at Hospi ce that she and F a the r had previously had a good relationshi p but that h e had started showing signs of mental illness and re fu sed to get help. Application and Conclusion Father r elie s primarily o n hi s own t est imony to ar gue that the State failed to prove b y cl ear and convincing evidence that he endangered E ric. Mother did confirm

some but not all of Father ’ s testimony about Great

- grandmother

. Although we consider what M other confirme d as undisputed, m uch of Fathe r ’ s te stimony was contradicted; therefore, the tr ial court did not ha ve to take that evidence as true, nor did the trial court have to consider Father credible. See , e.g. , In re J.F. , 2016 WL 7584309, at *7 ( “ The trial court c ould reasonably ha ve reso lved any co nfl ict16 in t he evidence by not crediting J.F

. ’ s explanation and forming a firm conviction or belief that J.F. caused the injuries to the children

. ”). Eve n without direct evidence of who caused a child ’ s sev ere injuries c onsi stent with chi ld abus e, st rong c ircumstanti al evidence can still meet the c lear

- and

convi ncing standard. See , e.g. , id. Here, strong c ircumstan tial evidence existed that Father was responsible for E r ic ’ s injuries, including (1) the circum stances of the inj uries and phys ical ev idenc e at t he scene , w hich corresponded to what Great

grandmother told officer s rather than what Father told them; (2) Fa ther ’ s evasiveness with officers , the implausible nature of part of what he told them, and his c onduct consistent with a guilty consci e nce ; (3) hi s prop ensit y for violent behavior ; and (4) evidence of Great

- grandmo ther ’ s physical infi rmity and age ju xtaposed with the

extent of Eric ’ s injuries

. The trial court was not required

–– nor are we
–– to give mor e weight to Fathe r ’ s char acteriz ation o f Gre at

- gra ndm other ’ s physical abilities than to Mothe r ’ s characterization or to the police officer ’ s direct observations

. Nor are we required to fo cus on the absence of expert evi dence, a s Father urges us to do. Base d on ou r review of t he record , i ncludi n g Fath er and Mother ’ s history as well as t he July 5, 2019 eve nts , we hold that the Department pre sented legally and factually sufficient evide nce to support the trial court ’ s subs ection (D) and (E)

en dangerment finding s . See id. ; In re K .S. , No. 09

- 14

- 002 2 2

- CV, 2014 WL 4755500, at *3 (Tex. App.

— Be aumont Sept. 25, 2014, pet. denied) (mem. op.) ; In re D.A. , No. 02

- 14

- 00076

- CV, 2014 WL 3778234, at *22

– 23 (Tex. App.

–– F ort Worth July 31, 2014,17 no p et.) (mem . op.)

. We therefore overrule Father ’ s two is sue s on ap p eal and af firm the trial co urt ’ s judgment.

/s/ Elizabeth Kerr Elizabeth Kerr Justice Delivered: September 9, 2021