Opinion filed August 8, 2017

In The

Eleventh Court of Appeals 

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No. 11-17-00026-CV

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IN THE INTEREST OF T.G., A CHILD

On Appeal from the 35th District Court

Brown County, Texas

Trial Court Cause No. CV 14-09-382

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No. 11-17-00027-CV

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IN THE INTEREST OF C.G., A CHILD

On Appeal from the 35th District Court

Brown County, Texas

Trial Court Cause No. CV 15-10-357
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M E M O R A N D U M O P I N I O N

In separate causes that were joined for trial, the trial court terminated the 

parental rights of the mother of T.G. and C.G. and appointed their father as a 

possessory conservator. In each cause, the mother filed a notice of appeal and 

presents a single issue in which she challenges the sufficiency of the evidence. We 

affirm. 

I. Termination Findings and Standards

The termination of parental rights must be supported by clear and convincing 

evidence. TEX. FAM. CODE ANN. § 161.001(b) (West Supp. 2016). To determine if 

the evidence is legally sufficient in a parental termination case, we review all of the 

evidence in the light most favorable to the finding and determine whether a rational 

trier of fact could have formed a firm belief or conviction that its finding was true. 

In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005). To determine if the evidence is 

factually sufficient, we give due deference to the finding and determine whether, on 

the entire record, a factfinder could reasonably form a firm belief or conviction about 

the truth of the allegations against the parent. In re C.H., 89 S.W.3d 17, 25–26 (Tex. 

2002). To terminate parental rights, it must be shown by clear and convincing 

evidence that the parent has committed one of the acts listed in 

Section 161.001(b)(1)(A)–(T) and that termination is in the best interest of the child. 

FAM. § 161.001(b). 

With respect to the best interest of a child, no unique set of factors need be 

proved. In re C.J.O., 325 S.W.3d 261, 266 (Tex. App.—Eastland 2010, pet. denied). 

But courts may use the non-exhaustive Holley factors to shape their analysis. 

Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976). These include, but are not 

limited to, (1) the desires of the child, (2) the emotional and physical needs of the 

child 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 individuals seeking custody, (5) the 
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programs available to assist these individuals to promote the best interest of the 

child, (6) the plans for the child by these individuals or by the agency seeking 

custody, (7) the stability of the home or proposed placement, (8) the acts or 

omissions of the parent that may indicate that the existing parent–child relationship 

is not a proper one, and (9) any excuse for the acts or omissions of the parent. Id. 

Additionally, evidence that proves one or more statutory grounds for termination 

may also constitute evidence illustrating that termination is in the child’s best 

interest. C.J.O., 325 S.W.3d at 266. 

The trial court found, with respect to both children, that Appellant had 

committed the acts listed in subsections (E) and (O) of Section 161.001(b)(1). 

Specifically, the trial court found that Appellant had engaged in conduct or 

knowingly placed the children with persons who engaged in conduct that endangered 

the children’s physical or emotional well-being and that Appellant had failed to 

comply with the provisions of a court order that specifically established the actions 

necessary for her to obtain the return of the children, who had been in the managing 

conservatorship of the Department of Family and Protective Services for not less 

than nine months as a result of their removal from the parent for abuse or neglect.

With respect to C.G., the trial court additionally found that Appellant committed the 

acts listed in subsections (D) and (Q) when she knowingly placed or allowed C.G. 

to remain in conditions or surroundings that endangered his physical or emotional 

well-being and when she knowingly engaged in criminal conduct that resulted in her 

conviction and confinement and an inability to care for C.G. for at least two years 

from the date of the petition. The trial court also found, pursuant to 

Section 161.001(b)(2), that termination of Appellant’s parental rights would be in 

the best interest of both children.
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II. Evidence at Trial

The record shows that the Department first became involved with Appellant

in 2014 when T.G. was an infant—prior to C.G.’s birth. T.G. suffered a severe injury 

that involved “a brain bleed.” T.G. had to be taken by care-flight to a hospital in 

San Antonio. Appellant claimed that T.G. had “somewhat of a seizure” while

Appellant was trying to give him his medication; Appellant denied that any type of 

trauma had occurred to cause T.G.’s injury. Despite her denial, Appellant was 

indicted for and convicted of the offense of injury to a child based upon the incident 

in which T.G. suffered a brain bleed. Appellant was found guilty of intentionally or 

knowingly causing serious bodily injury to T.G. by shaking or throwing him or by 

causing blunt force trauma to him, and she was sentenced to confinement for twenty 

years for injuring T.G. The indictment and judgment of conviction were admitted 

into evidence at the termination hearing. Additionally, while the termination case 

was pending and while she was pregnant with C.G., Appellant failed a drug test. 

Appellant testified that she thought the results of the drug test were wrong and that 

she did not remember using marihuana or methamphetamine.

At the time of trial, the children were placed with a paternal aunt and uncle. 

The CASA volunteer that had been assigned to this case for over two years testified 

at the termination hearing that her recommendation was for the children to remain 

in their current placement. The children’s guardian ad litem informed the trial court 

that the children “are in a great place” and “[a]re very bonded to the [placement]

family.” The paternal aunt and uncle were taking excellent care of the children, and 

T.G.’s health had improved while in their care. The Department sought to terminate 

Appellant’s parental rights and to continue the placement of the children with their 

aunt and uncle.
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III. Issue Presented and Sufficiency Analysis

In her sole issue in each cause, Appellant contends that the evidence is 

insufficient to support the termination of her parental rights “in light of the erroneous 

global Judicial Notice finding of the Court’s file by the Court.” Appellant’s 

contention is based upon her complaint that the trial court erroneously took judicial 

notice of its entire file in each cause and admitted into evidence, as part of those

files, Exhibit Nos. 3, 4, and 5—the affidavit in support of removal and the CASA 

report to the court for each child.

In this regard, the record shows that, during the testimony of the Department’s

investigator, Breawna Ballard, the Department offered into evidence Ballard’s 

affidavit in support of the removal of T.G. Appellant objected on hearsay grounds.

The trial court then “on its own motion” took judicial notice of both files. The trial 

court explained:

Now -- so, that being said, it -- it’s solely considered by the Court 

as a part of the Court file, and -- and it’s not going to be given some 

special significance otherwise, so it is just part and parcel of the whole, 

and I’m not gonna consider hearsay, except to show that it was included 

as a basis when the application was filed. But I’m not gonna consider 

it at this time as any evidence in the matter today, other than as a part 

of the Court file. 

So, it is sort of a -- it is admitted as a part of the Court file as an 

exhibit, and yet the hearsay objection is noted and sustained, but the 

exhibit itself is admitted.

(Emphasis added). The trial court followed a similar course of action later in the 

trial when the Department offered the CASA reports into evidence.

A. Trial Court’s Judicial Notice of its Files

A trial court may take judicial notice of the contents of its file, but a trial court

may not take judicial notice of the truth of any factual allegations contained in its 

file. In re F.E.M., No. 11-12-00257-CV, 2013 WL 1092716, at *1 (Tex. App.—
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Eastland Mar. 14, 2013, pet. denied) (mem. op.); In re J.E.H., 384 S.W.3d 864, 870 

(Tex. App.—San Antonio 2012, no pet.); see TEX. R. EVID. 201. The record does 

not indicate that the trial court took judicial notice of the truth of any disputed matter 

contained in its files. The trial court specifically sustained Appellant’s hearsay 

objection and ruled that it would not consider the contents of the trial court’s files as 

evidence at the termination hearing. The trial court later reiterated, when it admitted 

the CASA reports into evidence, that it would not consider “the things that are not 

supported by exceptions to the Hearsay Rule.” The trial court’s admission of 

Ballard’s affidavit and the CASA reports into evidence despite the court’s

acknowledgment that these exhibits contained inadmissible hearsay and while, at the 

same time sustaining a hearsay objection, was improper. See TEX. R. EVID. 802. 

However, we note that this was not a jury trial and that the trial court indicated that 

it would not consider the hearsay contained within those exhibits. We will not 

consider the contents of those exhibits in our review of the sufficiency of the 

evidence. See J.E.H., 384 S.W.3d at 870 (noting that, because the trial court could 

not take judicial notice of the affidavit or the allegations made in the family service 

plan, neither the affidavit nor the allegations contained in the family service plan can 

support the judgment). 

B. Findings under Section 161.001(b)(1)

Based upon our review of the testimony presented at the termination hearing 

and the indictment and judgment of conviction, we conclude that the record contains 

clear and convincing evidence from which the trial court could reasonably have 

formed a firm belief that Appellant engaged in conduct that endangered the 

children’s physical or emotional well-being. See FAM. § 161.001(b)(1)(E). Under 

subsection (E), the relevant inquiry is whether evidence exists that the endangerment 

of the child’s well-being was the direct result of the parent’s conduct, including acts, 

omissions, or failures to act. In re D.O., 338 S.W.3d 29, 33 (Tex. App.—Eastland 
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2011, no pet.). Additionally, the offending conduct does not need to be directed at 

the child, nor does the child actually have to suffer an injury. In re J.O.A., 283 

S.W.3d 336, 345 (Tex. 2009). In J.O.A., the Texas Supreme Court stated that “the 

endangering conduct may include the parent’s actions before the child’s birth, while 

the parent had custody of older children.” Id.

Clear and convincing evidence showed that Appellant, who had 

been convicted of causing seriously bodily injury to T.G., had engaged in conduct 

that endangered T.G.’s physical or emotional well-being. Based on that same 

conduct, we also conclude that clear and convincing evidence showed that Appellant 

had engaged in conduct that endangered C.G.’s physical or emotional well-being. 

See J.O.A., 283 S.W.3d at 345. Consequently, we hold that the evidence is legally

and factually sufficient to support the trial court’s finding under 

Section 161.001(b)(1)(E) as to each child. 

Because a finding that a parent committed one of the acts listed in 

Section 161.001(b)(1)(A)–(T) is all that is required and because we have held that 

the evidence is sufficient to support the trial court’s finding under subsection (E), 

we need not address the sufficiency of the evidence to support the findings made by 

the trial court pursuant to the other subsections of Section 161.001(b)(1). See

TEX. R. APP. P. 47.1. 

C. Finding of Best Interest of the Children

Based on the evidence presented at trial and in light of the Holley factors, the 

trial court could reasonably have formed a firm belief or conviction that termination 

of Appellant’s parental rights would be in the best interest of the children. See 

Holley, 544 S.W.2d at 371–72. Upon considering the record as it relates to the 

emotional and physical needs of the children now and in the future, the emotional 

and physical danger to the children now and in the future, the parental abilities of

Appellant and of the children’s aunt and uncle, the plans for the children by the
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Department, the stability of the children’s placement, Appellant’s conviction for 

seriously injuring T.G., and Appellant’s incarceration and inability to care for the 

children, we hold that the evidence is sufficient to support the findings that 

termination of Appellant’s parental rights is in the best interest of the children. See 

id. Appellant’s sole issue in each appeal is overruled. 

This Court’s Ruling

We affirm the orders of the trial court. 

MIKE WILLSON

JUSTICE

August 8, 2017

Panel consists of: Wright, C.J.,

Willson, J., and Bailey, J.