Court of Appeals of Texas, Second District, Fort Worth
THE 323RD DISTRICT COURT OF TARRANT COUNTY TRIAL COURT NO.
PITTMAN, WALKER, and MEIER, JJ.
MEMORANDUM OPINION 
bench trial, the trial court found by clear and convincing
evidence that (1) Appellant D.H. (Father) and Appellant K.B.
(Mother) engaged in conduct or knowingly placed their son
A.H. with persons who engaged in conduct that endangered his
physical or emotional well-being and (2) termination of the
parent-child relationship between Mother and A.H. and between
Father and A.H. was in A.H.'s best interest. See
Tex. Fam. Code Ann. § 161.001(b)(1)(E), (2) (West Supp.
2017). In four issues, Mother contends: (1) the trial court
abused its discretion by denying her motion for continuance;
(2) the denial of the continuance violated her rights to due
process; (3) the evidence is legally and factually
insufficient to support the endangerment finding against her;
and (4) the evidence is legally and factually insufficient to
support the best interest finding against her. Father does
not challenge the sufficiency of the evidence supporting the
trial court's best interest and endangerment findings
against him. Instead, without numbering or delineating
issues, Father complains: (1) the Texas Department of Family
and Protective Services (TDFPS) failed to provide him an
opportunity to complete his service plan; (2) that failure
resulted in the termination of his parental rights to A.H.;
and (3) the termination of his parental rights resulting from
TDFPS's failure to provide him an opportunity to complete
his service plan violated his rights to due process. We
Circumstances Leading to A.H.'s Removal
First Removal of D.H., A.H.'s Older Brother-August
August 2013, TDFPS received a referral regarding Mother and
Father's treatment of A.H.'s older brother D.H., who
was then several months old. Allegations included domestic
violence, drug use, and excessive drinking. Mother and Father
admitted to TDFPS that they had engaged in domestic violence,
and Father was arrested for allegedly choking Mother. There
was no allegation that either parent was abusing D.H. at that
time, but TDFPS determined that there was reason to believe
that Mother had committed medical neglect and that both
Father and Mother had engaged in neglectful supervision.
was originally placed with another relative. When that
placement fell through, he was returned to his parents.
Mother and her mother had a physical battle with D.H.
present, and he was removed in mid-September 2013 and placed
with foster parents. Mother and Father actively participated
in court-ordered services, and D.H. was placed back in their
home on a monitored return in February 2015. The case against
Mother and Father was dismissed a few months later. Another
child, daughter F.H., was born during the pendency of this
Second Removal of D.H. and Removal of F.H.-April
April 2016, less than a year after TDFPS's first case
against Mother and Father regarding D.H. was dismissed, TDFPS
received a Priority I referral alleging that both parents had
committed physical abuse of D.H. (then three years old) and
neglectful supervision of both D.H. and F.H. (then a
one-year-old). The referral alleged:
â¢ Mother had beaten D.H. and broken his arm,
which resulted in a trip to Cook Children's Medical
Center for treatment;
â¢ A day or two later, Mother and Father left
D.H. home alone. When the parents returned, they discovered
that D.H. had removed his splint and put on his baby
sister's clothes. Mother was then heard beating D.H. She
threw him against the wall, after which he could no longer be
â¢ Mother had beaten D.H. so badly in the
past that his heart had stopped beating and he had to be
â¢ Mother and Father had left D.H. home alone
for hours at a time; . Law enforcement had
â¢ Mother had made comments about not wanting
D.H. and considering "dropping him off at a Safe Baby
â¢ Mother was starving D.H.;
â¢ Domestic violence was an issue between
Mother and Father; and
â¢ Mother had been confined in various
facilities for her mental health issues in the past.
and Father initially did not cooperate with TDFPS's
investigation and tried to hide D.H. When D.H. was finally
found and examined, he had injuries severe enough to require
hospitalization. TDFPS was also concerned that
â¢ Mother and Father had not sought medical
care for D.H.'s serious injuries;
â¢ F.H. had been diagnosed with rickets;
â¢ The children were too young and not verbal
enough to protect themselves from harm; and
â¢ The family had a previous CPS history and
domestic violence issues. The children were removed in April
2016 and placed in D.H.'s former foster home; Mother and
Father were arrested for injury to a child and later released
A.H.'s October 2016 Birth and the November 2016
Termination of Parental Rights to D.H. and F.H.
the only child before the court in this case, was born in
late October 2016, several months after the removal of D.H.
and F.H. from Mother and Father but while the case regarding
D.H. and F.H. was still pending. TDFPS learned about
A.H.'s birth because Mother took him on one of her visits
with D.H. and F.H. On October 28, 2016, TDFPS filed a
petition for the termination of Mother's and Father's
parental rights to A.H. and sought A.H.'s emergency
removal from them based on:
â¢ The injuries D.H. had suffered while in
his parents' care;
â¢ Mother's and Father's alleged
admissions regarding the injuries;
â¢ The criminal charges Mother and Father
faced for injury to a child; . Mother's
and Father's drug use;
â¢ D.H.'s outcries that Mother had hit
him and that Mother and Father had cut him with a black knife
that Father carried in his pocket;
â¢ Mother's failure after D.H.'s
second removal to seek visits with him for about five months,
while seeing daughter F.H. at every opportunity;
â¢ Mother's statements before A.H. was
born that she hoped her unborn child would be a girl because
she did not bond well with boys and that if the child was a
boy, Father would name him and care for him;
â¢ The parents' failure to complete any
services after D.H.'s second removal; and
â¢ Observations that the newborn A.H. had
same day that TDFPS filed the petition, it also obtained an
ex parte order for protection of a child in an emergency,
authorizing the agency to remove A.H. from his parents.
Mother and Father, however, were not cooperative and hid A.H.
from authorities. When a TDFPS special investigator and a DPS
investigator finally located A.H. a week later, he was
removed. After the petition was filed but before A.H. was
physically removed, Mother's and Father's parental
rights to D.H. and F.H. were terminated based on their
affidavits of relinquishment.
Legally and Factually Sufficient Evidence Supports the Trial
Court's Endangerment and Best Interest Findings Against
third point, Mother contends that the evidence is legally and
factually insufficient to support the trial court's
endangerment finding against her. In her fourth point, Mother
contends that the evidence is legally and factually
insufficient to support the trial court's finding that
termination of her parental rights was in the best interest
Burden of Proof
trial court to terminate a parent-child relationship, TDFPS
must establish by clear and convincing evidence that the
parent's actions satisfy one ground listed in family code
section 161.001(b)(1) and that termination is in the best
interest of the child. Tex. Fam. Code Ann. §
161.001(b)(1)-(2) (West Supp. 2017); In re E. N.C. ,
384 S.W.3d 796, 802, 803 (Tex. 2012); In re J.L.,
163 S.W.3d 79, 84 (Tex. 2005). Both elements must be
established; termination may not be based solely on the best
interest of the child as determined by the trier of fact.
Tex. Dep't of Human Servs. v. Boyd, 727 S.W.2d
531, 533 (Tex. 1987); In re C.D.E., 391 S.W.3d 287,
295 (Tex. App.-Fort Worth 2012, no pet.). Evidence is clear
and convincing if it "will produce in the mind of the
trier of fact a firm belief or conviction as to the truth of
the allegations sought to be established." Tex. Fam.
Code Ann. § 101.007 (West 2014); E. N.C. , 384
S.W.3d at 802.
Standards of Review
evaluating the evidence for legal sufficiency in parental
termination cases, we determine whether the evidence is such
that a factfinder could reasonably form a firm belief or
conviction that TDFPS proved the challenged ground for
termination. In re J.P.B., 180 S.W.3d 570, 573 (Tex.
2005). For Mother, we decide whether the trial court could
have reasonably formed a firm belief or conviction that TDFPS
proved that she engaged in conduct or knowingly placed A.H.
with persons who engaged in conduct which endangered his
physical or emotional well-being and that termination of the
parent-child relationship between Mother and A.H. would be in
his best interest. See Tex. Fam. Code Ann. §
review all the evidence in the light most favorable to the
finding and judgment. J.P.B., 180 S.W.3d at
573. We resolve any disputed facts in favor of the
finding if a reasonable factfinder could have done so.
Id. We disregard all evidence that a reasonable
factfinder could have disbelieved. Id. We consider
undisputed evidence even if it is contrary to the finding.
Id. That is, we consider evidence favorable to
termination if a reasonable factfinder could, and we
disregard contrary evidence unless a reasonable factfinder
could not. See id.
cannot weigh witness credibility issues that depend on the
appearance and demeanor of the witnesses because that is the
factfinder's province. Id. And even when
credibility issues appear in the appellate record, we defer
to the factfinder's determinations as long as they are
not unreasonable. Id.
required to perform "an exacting review of the entire
record" in determining whether the evidence is factually
sufficient to support the termination of a parent-child
relationship. In re A.B., 437 S.W.3d 498, 500 (Tex.
2014). In reviewing the evidence for factual sufficiency, we
give due deference to the factfinder's findings and do
not supplant the judgment with our own. In re
H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). Here, we
determine whether, on the entire record, the trial court as
factfinder could reasonably form a firm conviction or belief
that (1) Mother engaged in conduct or knowingly placed A.H.
with persons who engaged in conduct which endangered his
physical or emotional well-being and (2) the termination of
the parent-child relationship between Mother and A.H. would
be in the best interest of the child. See Tex. Fam.
Code Ann. § 161.001(b)(1)(E), (2); In re C.H.,
89 S.W.3d 17, 28 (Tex. 2002).
Parents' Invocation of the Privilege Against
Self-Incrimination Produced Evidence Against Them.
parents' repeated invocations of the Fifth Amendment
privilege against self-incrimination nevertheless resulted in
evidence against them. "A party may invoke his Fifth
Amendment privilege against self-incrimination in a civil
proceeding if he reasonably fears that the answer sought
might incriminate him." In re A.B., 372 S.W.3d
273, 275 (Tex. App.-Fort Worth 2012, no pet.) (citing
United States v. Balsys, 524 U.S. 666, 671-72, 118
S.Ct. 2218, 2222 (1998)). A termination trial is a civil
proceeding for purposes of the privilege against
self-incrimination. Murray v. Tex. Dep't of Family
& Protective Servs., 294 S.W.3d 360, 367 (Tex.
App.-Austin 2009, no pet.); In re C.W., No.
02-17-00025-CV, 2017 WL 2289115, at *3 (Tex. App.-Fort Worth
May 25, 2017, no pet.) (mem. op.). In a civil case, a
factfinder may draw negative inferences from a party's
assertion of the privilege against self-incrimination.
See Tex. R. Evid. 513(c); Wilz v. Flournoy,
228 S.W.3d 674, 677 (Tex. 2007); see also Baxter v.
Palmigiano, 425 U.S. 308, 318, 96 S.Ct. 1551, 1558
(1976) (holding Fifth Amendment does not forbid adverse
inferences against parties to civil actions when they refuse
to testify in response to probative evidence offered against
them); Tex. Dep't of Pub. Safety Officers Ass'n
v. Denton, 897 S.W.2d 757, 760 (Tex. 1995);
C.W., 2017 WL 2289115, at *3.
The Evidence is Legally and Factually Sufficient to Support
the Finding of Endangering Conduct by Mother.
Law on Endangerment
As this court has often discussed,
Endangerment means to expose to loss or injury, to
jeopardize. . . .
â¢ . . . Under subsection (E), the relevant inquiry is whether
evidence exists that the endangerment of the child's
physical or emotional well-being was the direct result of the
parent's conduct, including acts, omissions, and failures
to act. . . .
To support a finding of endangerment, the parent's
conduct does not necessarily have to be directed at the
child, and the child is not required to suffer injury. The
specific danger to the child's well[-]being may be
inferred from parental misconduct alone. . . . As a general
rule, conduct that subjects a child to a life of uncertainty
and instability endangers the child's physical and
â¢ . . .
We have also stated that abusive or violent conduct by a
parent may produce an environment that endangers the
child's physical or emotional well-being.
Further, even though imprisonment alone does not prove that a
parent engaged in a continuing course of conduct that
endangered the physical or emotional well-being of his child,
it is nevertheless a factor that we may properly consider on
the issue of endangerment.
In re I.C., No. 02-15-00300-CV, 2016 WL 1394539, at
*7 (Tex. App.-Fort Worth Apr. 7, 2016, no pet.) (mem. op.)
(citations and internal quotation marks omitted).
consider evidence of the parent's conduct occurring
before and after the child's birth. Tex. Dep't of
Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987);
In re R.W., 129 S.W.3d 732, 738 (Tex. App.-Fort
Worth 2004, pet. denied). "[E]vidence of abuse of
another child, coupled with a present or future danger to the
child in question, is relevant to determine whether a parent
has engaged in an endangering course of conduct, even if the
abuse occurred prior to the birth of the subject child."
In re E.A.W.S., No. 2-06-00031-CV, 2006 WL 3525367,
at *10 (Tex. App.-Fort Worth Dec. 7, 2006, pet. denied) (mem.
op.); see also In re R.S., No. 02-15-00137-CV, 2015
WL 5770530, at *6 (Tex. App.-Fort Worth Oct. 1, 2015, no
pet.) (mem. op.).
b. Evidence of Endangerment
Detective William Maddox's Testimony
William Maddox of the Crimes Against Children Unit of the
Fort Worth Police Department testified as follows:
â¢ He was contacted in April 2016 after TDFPS
had attempted to locate three-year-old D.H. because it had
reason to believe that he was in danger or had recently been
â¢ Patrol officers had helped TDFPS find
D.H., who had been hidden in the family's home;
â¢ Detective Maddox met with patrol officers
and the family at Cook Children's Hospital, where D.H.
and F.H. had been taken for evaluation;
â¢ D.H. appeared to be small;
â¢ Detective Maddox "observed a large .
. . knot on [D.H.'s] forehead as well as two rows of . .
. evenly spaced circular wounds . . . [and] numerous other
smaller scars that appeared to be inflicted injuries";
â¢ The rows of circular wounds were visible
on some of the pictures of D.H. admitted into evidence;
â¢ On D.H.'s right side, the wounds went
from the top of the shoulder to his buttocks;
â¢ The circular wounds appeared to be old
â¢ S.N., the foster mother, told Detective
Maddox that when D.H. was originally returned to his parents,
"he had two small scars from an infection on his hip and
no other scars";
â¢ Mother initially told Detective Maddox
that she never used corporal punishment on D.H. but that
â¢ Father initially told Detective Maddox
that D.H. tapped his head on the wall during a punishment
time-out, causing the large knot on his head, and that D.H.
hurt his ...