Appeal from the 308th District Court Harris County, Texas
Trial Court Case No. 2017-03697
consists of Chief Justice Radack and Justices Higley and
Carter Higley Justice.
an accelerated appeal of the termination, following a bench
trial, of Father's and Mother's parental rights to
their young son, Child. In three issues, Father contends that
the evidence is legally and factually insufficient to support
the trial court's findings under Family Code subsections
161.001(b)(1)(E), (N), and (O). In three issues, Mother
contends that the evidence is legally and factually
insufficient to support the trial court's findings under
Family Code subsections 161.001(b)(1)(N), (O), and (b)(2). We
was born to Mother and Father in 2015. He was about
three-and-a-half years old at the time of trial.
The Department's Current Involvement with
investigation by the Department of Family and Protective
Services (the "Department" or "CPS," as
the trial witnesses and evidence sometimes refer to it) that
led to this suit began while Child was in the hospital. He
was admitted to the hospital in October 2016. He had suffered
scalding burns, apparently from hot water.
January 11, 2017, the Department "received a report
alleging neglectful supervision of" Child. According to
the report, Father and Mother
were involved in an escalating argument with one another in
which father was observed to "spit" on the mother 3
times. . . . [F]ather was subsequently arrested in the lobby
of Children's Memorial Hermann Hospital after assaulting
a hospital visitor who attempted to intervene on behalf of
the mother upon observing the father attempting to assault
the mother. . . . [T]he family has significant CPS history[,
] and "there is believed to be ongoing family violence
between the mother and father."
Department's subsequent investigation led it to file this
suit, seeking to terminate Father's parental rights to
Child under Family Code subsections 161.001(b)(1)(E), (N),
(O), and (b)(2) and to terminate Mother's parental rights
under Family Code subsections 161.001(b)(1)(N), (O), and
(b)(2). The trial court appointed the Department as
Child's temporary managing conservator on April 19, 2017.
Ultimately, the Department's plan was for Child to be
adopted by a non-relative.
suit went to trial in September 2018, but the trial court
later ordered a new trial, which went forward without a jury
in January 2019. After the January 2019 trial, the trial
court rendered its judgment, terminating Mother's
parental rights under statutory predicates (N) and (O) and
Father's rights under statutory predicates (E), (N), and
(O) and finding that the terminations were in Child's
best interest. The trial court also appointed the Department
as Child's sole managing conservator, which neither
Mother nor Father challenge on appeal.
Trial Testimony & Other Evidence
the January 2019 trial, five witnesses testified: a
law-enforcement officer, a hospital clinical social worker,
the Department's caseworker, Father, and Mother.
Law-Enforcement Officer's Testimony
J. Davison works for the Harris County Precinct 4
Constable's Office, patrolling Municipal Utility District
No. 290. In the past, he has responded to calls for service
at Mother's and Father's home for what he called
"[f]amily disturbances; sort of information-type
calls." He responded in four or five such instances
involving Mother and Father from January 2018 to June 2018.
According to him, a "family disturbance . . . occurs
between two family members or two members of the same
household" and "can be as little as a verbal
argument between the two." The family disturbances
involving Father and Mother to which Deputy Davison responded
sometimes involved their children. But "most of the
times that [he] ha[s] been to their residence, it involved
[Father] and [Mother]."
occasion in summer 2018, Deputy Davison responded to
Father's and Mother's home because their daughter
"said that she was assaulted by" Father. Father
told Deputy Davison "that he pulled her feet from
underneath her because she was standing on the couch shouting
or standing over him," that "he restrained her by
holding her down," and that he was "attempting to
get her in control." Deputy Davison added, however, that
Mother "did not believe that anything that occurred was
overdone or that anything took place that would be
assault." Deputy Davison relayed what he learned to the
district attorney's office. The office "stated that
that was not a case of abuse-that it was a case of the father
disciplining the child." There was no "further
reporting of that incident to the" Department.
Davison continued that he "ha[s] not been there to
witness" any instance of Father and Mother "be[ing]
physically combative" with each other. He testified that
"[t]hey don't come [a]cross as overly aggressive
most of the time. I believe just one incident which each
individual in the case of them being a little too
excitable." He also did not know of any allegation by
either Father or Mother that the other had been physically
Father shown signs of "fighting," Deputy Davison
would have removed him from the scene. He has removed Father
from the scene once. On that occasion, he put Father into a
squad car so Father would calm down, and he did calm down.
Hospital Clinical Social Worker's
Soudelier works as a "clinical social worker in the
Pediatric ICU" for "Children's Memorial
Hermann" hospital. In her role, she is "responsible
for assessment of the patients and family when they arrive
into the ICU." She also "work[s] with families
providing support; resources; community resources; as well as
too, if there is concern of abuse or neglect, making the
appropriate referrals to Child Protective Services and/or law
enforcement as well as assuring for a safe discharge."
She testified that "the children in the families that
[she] work[s] with [are] in some sort of critical medical
first met Child on October 11, 2016, when she "was asked
to see him on the morning that he had been admitted" to
the hospital. He was admitted "for scald burns to his
head, face, [and] chest area." She saw Child's burns
in person while he was in Intensive Care and "on a
breathing machine." His burns "were pretty
extensive to the patterns on the top of his head coming down
to his face" and were on "multiple areas of his
face, chest, and areas of that sort." During the first
part of his hospital stay, Child was sedated due to the
severity of his burns. Soudelier recalled that Child was
discharged from the hospital on either February 1 or February
the hospital stay, Soudelier talked with Father and Mother.
She performed "a psychosocial assessment on the
family," which involves "[g]athering their
demographic information; getting a better understanding from
both of them on their account of what happened to the child
that brought them into the hospital"; and investigating
potential "substance abuse, mental health, [and]
domestic violence in order to complete the full
is not always able to perform psychosocial assessments for
families due to time constraints, but Child's case
"warranted a full assessment." This was because the
physicians treating Child "were concerned that his
injuries were not consistent with the story that was being
told." And when Soudelier first met with Father and
Mother, she too was concerned about "inconsistencies
from the story . . . that [Father] had in stated [sic] the
amount of water could have caused that much damage to the
was concerned about the family's "stability and
their home environment as well as . . . some of the history
that they had shared with [her]." She was concerned
because Father and Mother "said that their relationship
was . . . on the rocks. . . . [A]t first they said they
didn't live together; they were separated; but then they
were together. And [Father] had indicated he came over to
help [Mother] as much as possible in the home, but they . . .
were actually living together." She also was concerned
about "CPS history" relating to Mother and to
Child's having "tested positive at
birth." Shortly after his birth, the Department
removed Child from Mother. And Mother "worked her
services and d[id] what she needed to do" to get Child
back. Nevertheless, Soudelier considered this earlier
incident "a red flag."
testified that, during Child's months-long hospital stay,
Father and Mother visited Child less frequently than once a
week. She noted that Father visited more often than Mother
did. Soudelier's normal work hours, however, were 8:00
a.m. to 5:00 p.m., and she took some vacation days during
Child's hospital stay. Her knowledge of Father's and
Mother's visit frequency came from reports from others
about whether Father or Mother had requested the
hospital's available overnight room.
and Mother's infrequent visits caused her concern:
"There were several times we were not able to
reach" them, and "[w]hen physicians needed consent,
they had not a good working phone number like that when they
were not at bedside." She "tried to offer resources
to help them come and stay frequently." But the hospital
was not always able to reach the parents.
Father and Mother did visit, "there were several
occasions"-about four or more-when "[Soudelier] did
have to interject [sic] them because they were
fighting." One of the fights involved "physically
fighting." Father "was lunging towards [Mother] and
coming aggressively towards her. [Soudelier] did not see him
punch [Mother], but . . . we did have to separate him because
he was lunging toward her." So Soudelier called
security, and Father and Mother "were removed from the
hospital." Soudelier also called security when Father
and Mother "were found . . . at the valet in an
altercation, and bystanders tried to come and help"
Mother. Father "assaulted the bystander" and was
arrested for assault. Soudelier did not witness this incident
and "do[es]n't know what precipitated the
fight." Child's hospital stay was a "highly
emotional" and "stressful" time for Mother and
Father. After the incident, Father "was told that he was
going to get a no-trespass warning, and he was not allowed to
come back" to the hospital.
was also concerned about Mother's "ability to care
for either herself or [Child] while she was at the
hospital." According to Soudelier, Mother has some
"disabilities": Mother "was at times or
oftentime[s] found to have urine at the bottom of her
wheelchair on the floor." Soudelier "tried to
address that with her and tried to help her determine if she
needed supplies, cat supplies, but she denied those services
or those needs." This caused Soudelier, and "also
the medical staff," concern because, "[d]ue to
[Child's] open wounds and burns, it was very important
that the environment has to be clean." But after
Soudelier explained to Mother "that it was very
important for her to remain hygienic so that [Child]
wouldn't catch an infection," and "offered
[Mother] resources to help with that problem,"
"incidents of unsanitary behavior continue[d]."
Father, Soudelier was concerned about his altercations with
others and about his sometimes appearing "to be under
the influence of a substance." She noted his
"mumbled speech"; "unsteady gait";
"red eyes"; and, coinciding with instances of
mumbled speech or unsteady gait, "aggressive behavior,
where at times his general personality had been calm."
These instances sometimes led Soudelier "to get security
involved." On the other hand, she admitted, red eyes
could have been from lack of sleep because of the stress on
Father surrounding Child's hospitalization.
of the nature of [Child's] injuries," it was
"important that when he was ready for discharge that he
be released to a home that was stable, safe, and clean."
But Soudelier's concerns, "based on [her]
interaction with them during the months that [Child] was in
the hospital," undermined her confidence that Father and
Mother could provide such an environment.
"hospital attempted to provide resources to address the
concerns that they had." But Father and Mother did not
"take [Soudelier] up on" any of "the community
resources" that were offered. They did, however, take
her up on "the in-house resources-Ronald McDonald House
and things like that." Soudelier spoke with Mother
"about housing" and "about SSI, making sure
they had the financial ability." Father and Mother told
Soudelier that they had a house to live in and that they had
SSI too. Soudelier's SSI-related concern was that Father
and Mother had not yet applied for SSI for Child. But Father
and Mother did report that they had the financial means to
care for Child.
"as [Child] got better," Soudelier developed other
concerns about Father's and Mother's ability to care
for him. To care for him, Father and Mother needed "to
learn how to do medication; they had to do dressing changes;
[and] they would have had to comply with the therapy that he
would have needed-the occupational and physical
therapy." They would have to be "educate[d] . . .
on the proper care of the G-tube" that Child was
discharged with to help him eat. They did "come in for
some of those classes" offered by the hospital. And
"they did attend the classes" for wound-care
training. But they did not "complete them to the point
that [Soudelier] would have been comfortable with their
ability to care for [Child] medically." Soudelier
admitted that she has no personal knowledge of whether they
completed the training, but she testified that she learned
about it from notes in Child's medical records.
last saw Child in February 2017, not long before his
discharge from the hospital. She is not aware of what care
Child needs now, whether specialized or otherwise. She is
unaware of what training Mother has had since Child's
discharge. And she admitted that she "ha[s] really
nothing to offer in terms of the current situation for
[Child], [Father], and [Mother]."
Department's Caseworker's Testimony
King was "a conservatorship worker for [Child]" and
worked Child's case for the Department from about
December 2017 to about October 2018. King testified that she
had difficulty making and maintaining contact with Father and
Mother during December 2017 and January 2018. All three
"were kind of . . . playing phone tag." But, King
admitted, Father did call her "on a number of
occasions." For as long as King has been on the case,
Father has not missed a court appearance, save for a time
during which he was recovering from having been shot.
testified that the Department created family service plans
for Father and Mother, in part "to alleviate the
concerns of the abuse and neglect." In January 2018,
King and Father talked by phone, and they "went through
the family plan of service" together. King also
discussed with him Child's "short-term needs."
Father's Family Service Plan
testified extensively about Father's family service plan.
Ultimately, he did not complete all of the services that the
plan asked of him. His plan ordered him to "participate
in random UA/hair follicle testing" for the presence of
illegal drugs. But Father never submitted to a drug test, and
there are no drug-test results for Father. King admitted,
however, that the Department does not allege that Father used
plan also ordered him to "maintain employment to ensure
that all of [Child]'s financial needs are met" and
to "maintain stable, clean, and clutter[-]free
housing." Father explained to King that he was doing
"little odds and ends for his father" to make
money, but she testified that he was unable to provide her
any proof that he was getting paid. Father was "in
process of getting [SSI] started," but he did not
"indicate [that] he was ever able to get that
started" successfully. Father did not indicate to her
"any other type of government assistance."
housing, Father and Mother indicated having an apartment
together, but Father did not provide any lease agreement to
prove it, nor has Father ever requested that King visit his
home. Part of the plan's housing requirement was that
Father "give [caseworker] a copy of his lease as proof
of residency" or, if in a month-to-month rental, "a
letter from his management company stating his rent amount
and [that] he [i]s a resident of the apartment."
Father nor Mother ever asked King to see their homes. She
otherwise "know[s] for a fact that [Father] has a house
or an apartment of some sort," but she "just
ha[s]n't been there." She has not personally
contacted Father or his counsel "ask[ing] to be able to
come to [Father's] home," including during the
several times that she has been in court together with them.
She does not know what condition Father's home is in.
And, though she learned of their address in January 2018, she
testified that there "was no point of going out to the
home" because, "in January, we were getting ready
for trial, but it kept getting reset and reset and
plan also ordered him to "participate in Individual
Therapy and address his role and responsibility in the
current CPS case and explore family[-]of[-]origin
issues." The Department would pay for the therapy.
Though the therapy facility tried to contact him, Father
never started the therapy.
plan also ordered Father to "submit to a Psychological
Evaluation and provide honest and accurate information in
order to determine what psychological needs exist" and
to "follow all recommendations from this
evaluation." The Department would pay for this service
too. Father "was referred for that service" but did
not complete it.
plan originally required him to (1) "participate in
Anger Management in order to discover healthy alternatives to
deal with and express anger"; (2) "participate in
Domestic Violence Abuse Therapy to become educated about the
risk and [e]ffects that domestic violence can have on both
[Mother] and [C]hild's emotional, physical[, ] and mental
states"; and (3) "participate in BIPP (Battering
Intervention and Prevention Training) for perpetrators of
domestic violence" to "provide [him] with knowledge
and understanding of domestic violence and the effects on
its victims." At trial, however, the Department's
counsel announced what she referred to as a
"stipulation": though "Father was to do BIPP,
domestic violence, and anger management," "anger
management and domestic violence were not actually part of
his service plan" and "were stricken from his
plan." Among these three original requirements, then,
this left "only the BIPP class that he was ordered to
testified that Father presented his BIPP certificate to the
court but that "he did not give that certificate
to" her. And she testified that the judge acknowledged
that Father had completed the BIPP requirement.
Father understood his plan's requirements-King discussed
them with him. She recalled his telling her "that he was
unable to successfully complete his service plan because
somebody tried to kill him" when a person shot him. King
does not believe that "placing [Child] in an environment
where somebody's trying to kill [Father]" is "a
safe and stable environment for [Child]."
Mother's Family Service Plan
also testified extensively about Mother's family service
plan. Her plan ordered her too to "participate in random
UA/hair follicle testing" for illegal drugs. She did not
participate, despite being told about the requirement. As
with Father, King admitted that the Department does not
allege that Mother ever used drugs, nor had King read
anything in the case file indicating that drugs were "an
issue that brought [Child] into care." King only
"sent [Mother] one time" for a drug test. There is
no record of any drug-test result.
plan also ordered her "to maintain monthly
face[-]to[-]face contact with Caseworker, as well as
consistent bi-weekly or weekly contact with [Caseworker] to
update on service progress." King testified that Mother
"was not" "successful in that." King and
Mother did not have "consistent contact"-they spoke
only three times. They made contact in January 2018 and then
had "more of a phone-tag type of deal" through
March. King admitted, though, that "there was never any
period of time where [Mother] completely disappeared and
[King] didn't know where [she] was and was completely
unable to make contact with her."
plan also ordered that she "participate in parenting
classes" for six to eight weeks. King did not "talk
with [Mother] about enrolling and completing parenting
with Father's plan before the requirement was stricken,
Mother's plan ordered her to "participate in
Domestic Violence Abuse Therapy to become educated about the
risk and [e]ffects that domestic violence can have on both
her and [C]hild's emotional, physical[, ] and mental
states." Mother was to participate in this because of
her relationship with Father, but Mother did not complete the
service. To King, this service was "especially
important" because "it would show [Mother's]
ability to be able to be protective against [sic] her son;
not only just herself, but also her son." After
discussing it with Mother in January 2018, King did not
"discuss with [Mother] completing that task" again.
plan also ordered Mother to "maintain stable, clean, and
clutter[-]free housing," including "giv[ing] [the
caseworker] a copy of her lease as proof of residency"
or, if in a month-to-month rental, "giv[ing] [the
caseworker] a letter from her management company stating her
rent amount and [that she] [i]s a resident of the
apartment." Mother did not provide King with her lease
agreement or "request for [King] to come to the home and
view its suitability for [Child] to be placed back in that
home." King also did not discuss Mother's living
situation with her. But, according to King, an
"investigator" told her that "the home was not
appropriate," "messy," and "dirty."
However, King did not "talk with [Mother] about
that" and "didn't make any arrangements to view
that home as an appropriate placement."
point "during the pendency of this case, [Mother] was in
a rehab facility," which the Department considers not to
be "stable housing for a child to be placed" in.
This was not a drug rehab but a medical rehab-Mother had an
infection in her legs. Otherwise, Father and Mother lived
together in an apartment for "[t]he majority" of
the time the Department's current involvement with Child
plan in particular ordered her not to "allow [Father]
access to the home to prevent [C]hild from being exposed to
the risk of physical abuse and domestic violence."
Theirs was an "ongoing volatile relationship" and
was "a concern for the agency." It caused King
concern that "at least in the last several months the
police have still been called to their home four or five
times." This suggested to King "that though
[Father] has finished his BIPP class, perhaps there is more
that he can learn regarding domestic violence."
"[C]oncerns with ongoing domestic violence between"
Father and Mother caused King concern "[b]ecause we
don't know what type of environment the home is in if we
place the child back in the home."
plan also ordered her to "participate in Individual
Therapy and address her role and responsibility in the
current CPS case and explore family[-]of[-]origin
issues." Mother did not "complete that
service," though it was offered to her at no cost. King
did not talk with Mother about it.
plan also required the "Psychological Evaluation"
for Mother and that she "provide honest and accurate
information in order to determine what psychological needs
exist." This too would be free of cost to Mother, but
King did not "get an assessment back from any
provider" about such an evaluation taking place. King
did not make a referral to Mother for such an evaluation.
Family History & Current Circumstances
addition to explaining the parents' family service plans
and whether they complied with them, King also testified
about Father's, Mother's, and Child's history and
current circumstances. Child had been the subject of an
earlier proceeding with the Department. Father and Mother
"completed all of their services" in that instance,
"[a]nd so as a result they were able to get their
time, Child has "ongoing medical needs": "a
G-tube" and "learning to eat solid food." So
"the environment that he's living in" must
"be clean and sanitary so that his G-tube is not
infected." Mother and Father "have been aware that
[Child] was on a G-tube and that he is getting occupational
and speech therapy . . . and physical therapy." But King
does not recall talking with Mother "about her going and
learning how to care for [Child]." King did not
"discuss with [Father and Mother] at any time that they
would need-particularly [Mother]- would need a special
training on how to care for [Child]."
the pendency of this case," Father and Mother did not
"visit with [Child]," nor "[d]id they request
visits with [Child]," "outside of the
hospital" until about 18 months into the case.
Visitation was available to them though.
in March 2018, Father asked to visit Child. He made more such
requests after March too. And Mother requested a visit with
Child "[i]ndirectly through [Father]" about two or
three times, beginning in May 2018. King refused to set up a
visit "[b]ecause, at the time, they had not had contact
with [Child] in over a year." King met with her supervisor
and with Child's attorney ad litem about the
request for visits. Afterward, she told Father that the
Department "was not in agreement to continue his visits
but that, if he wanted to, he should ask his attorney to have
a special hearing." King admitted that, "if [Father
and Mother] asked to see [Child] even to this day, if the
court stated that they could see their child, and they asked
to see their child, [King] would have to at least make some
type of accommodations so they could see their child."
Neither Father nor Mother asked the court to order visits.
told King that "he did not want to visit the child as
long as [the visit] was at a CPS office." According to
King, Father also told the court that he did not want to
visit because "it would be hard on him to have to see
[Child] when [Child] goes back home to a foster home."
King testified that Mother gave similar reasons.
and Mother have not "been able to bond with
[Child]" because they failed to visit him. Mother
"has not had any contact with" Child while King has
been the caseworker. Neither Father nor Mother gave birthday
or Christmas gifts to Child. They did not "ask ...