Opinion issued=20
September 25, 2008
In=20
The
Court of =
Appeals
For=20
The
First District of=20
Texas
NO.=20
01-08-00111-CV
HECTOR ISRAEL =
LOPEZ,=20
Appellant
v.
DEPARTMENT OF =
FAMILY AND=20
PROTECTIVE SERVICES, Appellee
On Appeal from the =
313th=20
District Court=20
Harris County,=20
Texas
Trial Court Cause No.=20
2006=E2=80=9311190J
MEMORANDUM=20
OPINION=20
=
Following=20
a bench trial, the trial court terminated the parental rights of=20
appellant, Hector Israel Lopez, to his two minor children, =
A.L.O.=E2=80=93boy and=20
A.L.O.=E2=80=93girl, and named the Department of Family and =
Protective Services=20
(=E2=80=9Cthe Department=E2=80=9D) as the children=E2=80=99s sole =
managing conservator. Presenting=20
four issues, Lopez (1) contends that the trial court abused its =
discretion=20
by determining his appeal is =
=E2=80=9Cfrivolous=E2=80=9D; ![3DFootnote](3D"")
(2) challenges the =
legal and=20
factual sufficiency of the evidence to support the termination =
order,=20
particularly the predicated finding that Lopez knowingly placed or =
knowingly allowed the children to remain in conditions or =
surroundings=20
which endangered the physical well-being of the =
children
; (3) asserts that =
the=20
evidence is legally and factually insufficient to support a =
determination=20
that termination was in the children=E2=80=99s best =
interest;
and (4) challenges =
the trial=20
court=E2=80=99s determination that the Department should be =
appointed as the=20
children=E2=80=99s sole managing conservator.
=
We=20
affirm in part and reverse and render in part.
Background
<=
/SPAN>On=20
December 4, 2004, Lopez took his two-and-one-half-year old son,=20
A.L.O.=E2=80=93boy, to the emergency room. An examination revealed =
that=20
A.L.O.=E2=80=93boy had=20
a strangulation mark on his neck. A.L.O.=E2=80=93boy also had =
petechial=20
hemorrhaging under his eye and bleeding in his ear canal. Doctors =
believed=20
that the petechial hemorrhaging was caused by =
asphyxiation=20
and indicated that A.L.O.=E2=80=93boy had been strangled. The =
doctors noted that=20
A.L.O.=E2=80=93boy had an =E2=80=9Cold=E2=80=9D chemical burn on =
his leg running from his thigh to=20
past his knee. The doctors further noted that =
A.L.O.=E2=80=93boy=E2=80=99s anal area=20
appeared irritated. A.L.O.=E2=80=93boy also appeared dirty, as if =
he had not been=20
bathed.
=
The=20
Department was contacted regarding the injuries. Lopez, who is =
Spanish=20
speaking, spoke with the Department=E2=80=99s caseworker, Anna =
Scott, through an=20
interpreter. Lopez told Scott that he was present when the injury=20
occurred. Lopez claimed that the injury was accidental. Lopez =
explained=20
that his wife, Aracely=20
Ordonez, and A.L.O.=E2=80=93boy were sleeping on a sofa bed =
when Ordonez=E2=80=99s=20
hair became wrapped around A.L.O.=E2=80=93boy=E2=80=99s neck =
causing the strangulation=20
injury. Lopez told Scott that =E2=80=9Caccidents happen=E2=80=9D =
and that he believed=20
Ordonez had not purposefully hurt A.L.O.=E2=80=93boy.
<=
/SPAN>The=20
Department took emergency custody of A.L.O.=E2=80=93boy and of his =
five-month-old=20
baby sister, A.L.O.=E2=80=93girl, and filed suit for the =
children=E2=80=99s protection.=20
The trial court granted temporary managing conservatorship of the =
children=20
to the Department and ordered Lopez and Ordonez to complete the=20
requirements of the Department=E2=80=99s service plans. =
<=
/SPAN>Ordonez=20
and Lopez were both charged with the criminal offense of injury to =
a=20
child. Ordonez pleaded guilty to the offense, was convicted, and =
sentenced=20
to six months in jail. The criminal charges against Lopez were =
dismissed.=20
<=
/SPAN>Before=20
serving the full six months in jail, Ordonez was deported to =
Guatemala.=20
Lopez is also subject to deportation, but has appealed the =
determination.=20
Four other adult relatives, who resided in the home with Lopez and =
Ordonez=20
at the time of the incident, were also deported to Guatemala. No =
criminal=20
charges relating to A.L.O.=E2=80=93boy=E2=80=99s injuries were =
filed against the four=20
relatives.
<=
/SPAN>The=20
Department developed service plans for Lopez and Ordonez. =
Lopez=E2=80=99s service=20
plan required him to complete parenting classes and an anger =
management=20
course, to complete a psychological evaluation, to maintain stable =
housing=20
and employment for six consecutive months, and to cooperate with =
law=20
enforcement regarding the investigation of =
A.L.O.=E2=80=93boy=E2=80=99s injuries. Lopez=20
completed the parenting classes and the psychological evaluation =
but=20
failed to complete the anger management class or to verify =
employment and=20
housing for the required time period.
<=
/SPAN>While=20
the case was pending, the Department agreed to place the children =
with=20
Lopez=E2=80=99s parents, who live in Guatemala. A national =
Guatemalan agency=20
conducted a home study on the grandparents. The agency concluded =
that the=20
grandparents would be a suitable placement for the children. =
Nonetheless,=20
the Department refused to allow the children to be placed with the =
grandparents because the Department learned that the four adult =
relatives,=20
who were living in the home with A.L.O.=E2=80=93boy and his =
parents at the time of=20
the injury, were at the time of the study living with the =
grandparents.=20
The Department also explained that A.L.O.=E2=80=93girl, who =
suffers from a slight=20
developmental delay, might not have access in Guatemala to the =
therapies=20
she needed.
<=
/SPAN>The=20
Department ultimately sought to terminate Lopez=E2=80=99s and =
Ordonez=E2=80=99s parental=20
rights to A.L.O.=E2=80=93boy and to A.L.O.=E2=80=93girl. Among the =
grounds for which the=20
Department sought termination of Lopez=E2=80=99s parental rights =
was its=20
allegation that Lopez had =E2=80=9Cknowingly placed or knowingly =
allowed the=20
children to remain in conditions or surroundings which endanger =
the=20
physical or emotional well-being of the children.=E2=80=9D =
The Department also requested =
that it be=20
appointed the children=E2=80=99s sole managing conservator =
pursuant to Family Code=20
section 153.131.
<=
/SPAN>The=20
case was tried to the bench on February 7, 2008. Only two =
witnesses=20
testified at trial: the Department=E2=80=99s caseworker, Anna =
Scott, and the=20
children=E2=80=99s foster mother, Jacqueline LaBelle. Lopez did =
not testify at=20
trial.
<=
/SPAN>When=20
asked on cross-examination what evidence the Department had to =
show that=20
Lopez knowingly placed or knowingly allowed the children to remain =
in=20
surroundings that endangered their physical or emotional =
well-being, Scott=20
responded,
[Lopez] knew that [A.L.O.=E2=80=93boy] =
was injured because=20
prior to him going to this visit the child had been sick, and he =
had been=20
taking him to the doctor. And he wasn=E2=80=99t following through =
with everything=20
so he=E2=80=94it was obvious that he knew something, that the baby =
had been=20
injured, but I can=E2=80=99t say that he knew that the mother =
injured him.=20
<=
/SPAN>Scott=20
was also asked to identify Lopez=E2=80=99s conduct that =
demonstrated he knowingly=20
allowed A.L.O.=E2=80=93boy to remain in conditions that endangered =
the child.=20
Scott answered,
For one, he allowed the child to =
be=E2=80=93had a chemical=20
burn on his leg at one point, and we can=E2=80=99t find any =
medical records that=20
it was ever treated. For two, the child had obvious signs of =
strangulation=20
and=E2=80=93so I mean, I don=E2=80=99t know. I don=E2=80=99t =
understand what you are trying to ask=20
me.
Scott also testified that she had no =
evidence that=20
Lopez participated in or allowed the injuries to =
A.L.O.=E2=80=93boy to occur.=20
<=
/SPAN>LaBelle,=20
the children=E2=80=99s foster mother, testified that the children =
are doing well.=20
LaBelle explained that A.L.O.=E2=80=93boy has no special needs but =
A.L.O.=E2=80=93girl is=20
approximately three months behind developmentally and attends =
physical,=20
speech, and occupational therapy. LaBelle testified that =
A.L.O.=E2=80=93girl had=20
recently made progress, but =E2=80=9Cneeds a lot of work to keep =
her=20
[progressing].=E2=80=9D
<=
/SPAN>LaBelle=20
also testified that Lopez had attended all but one of his =
visitations with=20
the children. LaBelle stated that she observed Lopez interacting =
with the=20
children and perceived him to be a loving father.
<=
/SPAN>At=20
the end of the trial, the trial court concluded that =
Lopez=E2=80=99s and Ordonez=E2=80=99s=20
parental rights to the children should be terminated. With regard =
to=20
Lopez=E2=80=99s parental rights, the judgment provides that the =
trial court found=20
by clear and convincing evidence that Lopez had =E2=80=9Cknowingly =
placed or=20
knowingly allowed the children to remain in conditions or =
surroundings=20
which endangers the physical or emotional well-being of the =
children,=20
pursuant to =C2=A7 161.001(1)(D) of the Texas Family =
Code.=E2=80=9D The decree=20
further recites that the trial court found that termination was in =
the=20
children=E2=80=99s best interest.
<=
/SPAN>The=20
trial court also appointed the Department as the =
children=E2=80=99s sole managing=20
conservator. In support of this ruling, the decree reflects that =
the trial=20
court found the appointment of a parent as managing conservator =
would not=20
be in the children=E2=80=99s best interest because such =
appointment would=20
significantly impair the children=E2=80=99s physical health or =
emotional=20
development, and that appointment of the the Department as sole =
managing=20
conservator would be in the children=E2=80=99s best interest. =
<=
/SPAN>Lopez=20
appeals the trial court=E2=80=99s termination of his parental =
rights to the=20
children and the appointment of the Department as the sole =
managing=20
conservator. Ordonez has not appealed.
<=
/SPAN>Lopez=20
timely filed a statement of appellate points and an affidavit of=20
indigence. Following a hearing, the trial court found Lopez to be =
indigent=20
and determined Lopez=E2=80=99s appeal to be =
=E2=80=9Cfrivolous.=E2=80=9D Despite the frivolousness=20
determination, the appellate record contains all the evidence =
admitted at=20
the termination trial, and the parties have fully briefed the =
issues on=20
the merits.
Legal =
Sufficiency=20
of the Evidence To Support Termination
<=
/SPAN>In=20
his second issue, Lopez challenges the legal sufficiency of the =
evidence=20
to support the trial court=E2=80=99s predicate termination =
finding=E2=80=94that Lopez=20
knowingly placed or knowingly allowed the children to remain in =
conditions=20
or surroundings that endangered their physical or emotional =
well-being,=20
pursuant to Family Code subsection 161.001(1)(D).
A. Burden=20
of Proof, Standard of Review, and Governing =
Principles
<=
/SPAN>Because=20
termination of parental rights imposes permanent, irrevocable=20
consequences, due process requires that termination decisions be =
supported=20
by clear and convincing evidence. See Tex. Fam. Code Ann. =
=C2=A7 161.001;=20
see also In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002). =
=E2=80=9C=E2=80=98Clear and=20
convincing evidence=E2=80=99=E2=80=9D means the measure or degree =
of proof that will=20
produce in the mind of the trier of fact a firm belief or =
conviction as to=20
the truth of the allegations sought to be established.=E2=80=9D =
Tex. Fam. Code. Ann. =
=C2=A7 101.007=20
(Vernon 2002); J.F.C., 96 S.W.3d at 264.
<=
/SPAN>To=20
be legally sufficient under the clear and convincing standard, the =
evidence must be such that a fact-finder could reasonably form a =
firm=20
belief or conviction that the grounds for termination were proven. =
In=20
re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005). In conducting our =
review,=20
we must view all the evidence in the light most favorable to the =
finding=20
and judgment by assuming that the fact-finder resolved any =
disputed facts=20
in favor of its finding, if a reasonable fact-finder could have =
done so.=20
Id. In so doing, we must disregard all evidence that a =
reasonable=20
fact-finder could have disbelieved. Id. Nonetheless, we =
must=20
consider undisputed evidence even if it is contrary to the =
finding.=20
Id. In other words, we must consider evidence favorable to=20
termination if a reasonable fact-finder could and disregard =
contrary=20
evidence unless a reasonable fact-finder could not. Id. As =
a=20
result, we consider all of the evidence, not just that which =
favors the=20
verdict. Id.
<=
/SPAN>We=20
must be mindful, however, that we cannot intrude on the province =
of the=20
fact-finder by weighing witness credibility or issues that depend =
on the=20
appearance and demeanor of the witnesses. Id. at 573, 574.=20
Therefore, we must defer to the fact-finder=E2=80=99s credibility =
determinations,=20
if they are reasonable. Id. at 573.
<=
/SPAN>Because=20
the natural rights that exist between parents and their children =
are of=20
constitutional dimension, we are required to strictly scrutinize=20
termination proceedings and to construe involuntary termination =
statutes=20
strictly in favor of the parent. Holick v. Smith, 685 =
S.W.2d 18,=20
20=E2=80=9321 (Tex. 1985). Family Code section 161.001 provides =
the method by=20
which a court may involuntarily terminate the parent=E2=80=93child =
relationship.=20
See Tex. Fam. =
Code.=20
Ann. =C2=A7 161.001. This section permits a court to =
terminate the=20
parent=E2=80=93child relationship only if the court finds, by =
clear and convincing=20
evidence, that (1) one or more of the acts enumerated in section=20
161.001(1) was committed and (2) termination is in the best =
interest of=20
the child. Id. Both elements must be established; =
termination may=20
not be based solely on the best interest of the child. Tex. =
Dep=E2=80=99t of=20
Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex.=20
1987).
<=
/SPAN>Subsection=20
161.001(1)(D) permits termination when clear and convincing =
evidence shows=20
that the parent =E2=80=9Cknowingly placed or knowingly allowed the =
child to remain=20
in conditions or surroundings which endanger the physical or =
emotional=20
well-being of the child.=E2=80=9D Tex. Fam.=20
Code Ann. =C2=A7 161.001(1)(D) (Vernon Supp. 2008). =
Generally,=20
=E2=80=9Cendanger=E2=80=9D means to expose to loss or injury or to =
jeopardize.=20
Boyd, 727 S.W.2d at 533. Evidence of endangerment requires =
more=20
than a showing of a threat of metaphysical injury or the possible =
ill=20
effects of a less-than-ideal family environment, but need not show =
that=20
the conduct was directed at the child or that the child actually =
suffered=20
injury. Id.
<=
/SPAN>Subsection=20
D concerns the child=E2=80=99s living environment, rather than the =
parent=E2=80=99s=20
conduct, though parental conduct may be relevant to the =
child=E2=80=99s=20
environment. See In re D.T., 34 S.W.3d 625, 632 (Tex. =
App.=E2=80=94Fort=20
Worth 2000, pet. denied). The parent need not have certain =
knowledge that=20
an actual injury is occurring, but must at least be aware of the =
potential=20
for danger to the child in such an environment and must have =
disregarded=20
that risk. In re C.L.C., 119 S.W.3d 382, 392 (Tex. =
App.=E2=80=94Tyler 2003,=20
no pet.); In re R.G., 61 S.W.3d 661, 667=E2=80=9368 (Tex. =
App.=E2=80=94Waco 2001,=20
no pet.). Endangerment can be exhibited by both actions and =
failures to=20
act. In re U.P., 105 S.W.3d 222, 233 (Tex. =
App.=E2=80=94Houston [14th=20
Dist.] 2003, pet. denied). Subsection D permits termination of =
parental=20
rights based on a single act or omission by the parent. In re =
L.C.,=20
145 S.W.3d 790, 797 (Tex. App.=E2=80=94Texarkana 2004, no =
pet.).
<=
/SPAN>The=20
Department contends that Lopez=E2=80=99s presence when Ordonez =
inflicted the=20
strangulation injury and his later false statement that the injury =
was an=20
accident is circumstantial evidence from which a fact finder =
could, by=20
reasonable inference, form a firm conviction or belief that Lopez=20
knowingly allowed A.L.O.=E2=80=93boy to be in an endangering =
environment. Although=20
a single act or omission may support a subsection D finding, no =
evidence=20
was presented of Lopez=E2=80=99s actions, or failure to act, at =
the time of, or=20
before, the injury occurred. The evidence showed only that he was =
present=20
at the time of the injury and then took A.L.O.=E2=80=93boy to the =
emergency room=20
for treatment of the injury. No evidence revealed any of the =
circumstances=20
surrounding the injury, and the undisputed evidence showed that =
criminal=20
charges against Lopez relating to the injury were dismissed. =
<=
/SPAN>In=20
addition, the Department presented no evidence indicating that =
Lopez was=20
aware Ordonez posed a risk to A.L.O.=E2=80=93boy before the injury =
occurred.=20
Cf. In re A.B., 125 S.W.3d 769, 775 (Tex. =
App.=E2=80=94Texarkana 2003, pet.=20
denied) (upholding subsection D endangerment finding when evidence =
showed=20
parent was aware that children=E2=80=99s environment put them at =
risk for sexual=20
assault). Moreover, Lopez=E2=80=99s false post-injury statement =
regarding=20
Ordonez=E2=80=99s conduct does not, standing alone, support a =
subsection D=20
termination finding without additional contextual evidence =
indicating that=20
Lopez knowingly allowed A.L.O.=E2=80=93boy to remain in an =
environment where he=20
was at risk for injury.
<=
/SPAN>The=20
Department points to evidence that A.L.O.=E2=80=93boy has =
an=E2=80=9Cold=E2=80=9D chemical burn on=20
his leg extending from his thigh to his knee and had an =
=E2=80=9Cirritated=E2=80=9D anus=20
at the time of the strangulation injury. The Department suggests =
that this=20
is evidence from which past abuse could be inferred. We disagree. =
No=20
evidence was presented to show the circumstances under which the =
chemical=20
burn occurred. More precisely, nothing in the record suggests that =
the=20
chemical burn resulted from abuse or neglect, or whether =
A.L.O.=E2=80=93boy was=20
under Lopez=E2=80=99s or Ordonez=E2=80=99s care when the burn =
occurred. Evidence of a=20
single chemical burn, without additional evidence, is not clear =
and=20
convincing evidence that Lopez permitted A.L.O.=E2=80=93boy to =
remain in a=20
dangerous environment. Cf. J.P.B., 180 S.W.3d at =
573=E2=80=9374 (concluding=20
that medical evidence of child=E2=80=99s 21 bone fractures likely =
caused by=20
abusive treatment while in the care of appellant=E2=80=99s spouse =
was legally=20
sufficient evidence to show appellant allowed child to remain in =
dangerous=20
environment). Similarly, no evidence, medical or otherwise, was =
admitted=20
to describe the nature or possible causes of =
A.L.O.=E2=80=93boy=E2=80=99s anal irritation.=20
<=
/SPAN>The=20
Department also cites the caseworker=E2=80=99s testimony that the =
Department could=20
find no medical records to indicate that the chemical burn had =
been=20
treated. The Department contends that failure to provide medical =
care has=20
been found sufficient in other cases to support termination. While =
the=20
Department=E2=80=99s statement of the law may be correct, =
testimony that the=20
Department was not able to locate medical records showing that the =
burn=20
had been treated is too meager, by itself, to support an inference =
that=20
Lopez did not ensure that his son=E2=80=99s burn was properly =
treated.
<=
/SPAN>Lastly,=20
the Department relies on the reason given by its caseworker at =
trial to=20
support termination:
[Lopez] knew that [A.L.O.=E2=80=93boy] =
was injured because=20
prior to him going to this visit the child had been sick, and he =
had been=20
taking him to the doctor. And he wasn=E2=80=99t following through =
with everything=20
so he=E2=80=94it was obvious that he knew something, that the baby =
had been=20
injured, but I can=E2=80=99t say that he knew that the mother =
injured him.=20
<=
/SPAN>Despite=20
the Department=E2=80=99s reliance, the cited testimony is not =
legally sufficient=20
to support a subsection D termination finding. It is unclear from =
the=20
record to what =E2=80=9Cvisit=E2=80=9D the caseworker is =
referring. It is equally unclear=20
what the caseworker meant when she testified that Lopez was not =
=E2=80=9Cfollowing=20
through with everything.=E2=80=9D No other testimony or evidence =
was given to=20
clarify the caseworker=E2=80=99s cited testimony.=20
=
=
We=20
conclude that the evidence at trial was not such that a =
fact-finder could=20
reasonably form a firm belief or conviction that Lopez knowingly =
placed or=20
knowingly allowed A.L.O.=E2=80=93boy and A.L.O.=E2=80=93girl to =
remain in conditions or=20
surroundings which endanger their physical or emotional =
well-being. We=20
hold that the evidence is legally insufficient to support the =
trial=20
court=E2=80=99s subsection D finding.=20
=
=
We=20
sustain Lopez=E2=80=99s second issue on the basis that the =
evidence was legally=20
insufficient to support the predicate termination finding. =
Appointment of the=20
Department as Sole Managing Conservator
<=
/SPAN>In=20
his fourth issue, Lopez challenges the trial court=E2=80=99s =
appointment of the=20
Department as the children=E2=80=99s sole managing conservator. =
<=
/SPAN>We=20
give wide latitude to a trial court=E2=80=99s decision on custody, =
control,=20
possession, and visitation matters. Earvin v. Dep=E2=80=99t of =
Family &=20
Protective Servs., 229 S.W.3d 345, 350 (Tex. =
App.=E2=80=94Houston [1st Dist.]=20
2007, no pet.). We review a conservatorship determination by the =
trial=20
court for abuse of discretion, and may reverse the determination =
only if=20
the decision is arbitrary and unreasonable. In re J.A.J., =
243=20
S.W.3d 611, 616 (Tex. 2007); Earvin, 229 S.W.3d at 350. =
When=20
applying an abuse of discretion standard, challenges to the legal =
and=20
factual sufficiency of the evidence are not independent grounds of =
error=20
but are factors used in assessing whether the trial court abused =
its=20
discretion. In re B.P., Jr., No. 02-07-251-CV, 2008 WL =
2639264, at=20
*1 (Tex. App.=E2=80=94Dallas July 3, 2008, no pet. h.) (mem. op.); =
Gardner v.=20
Gardner, 229 S.W.3d 747, 751 (Tex. App.=E2=80=94San Antonio =
2007, no=20
pet.).
<=
/SPAN>Family=20
Code section 153.131(a) provides for the appointment of the parent =
as sole=20
managing conservator or the parents as joint managing =
conservators, unless=20
the court finds the appointment would not be in the best interest =
of the=20
child because it would significantly impair the child=E2=80=99s =
physical health or=20
emotional development. =
Tex. Fam.=20
Code Ann. =C2=A7 153.131(a) (Vernon 2002).
For the court to award managing=20
conservatorship to a non-parent under section 153.131, the =
non-parent must=20
prove by a preponderance of credible evidence that appointing the =
parent=20
as a managing conservator would result in serious physical or =
emotional=20
harm to the child. Whitworth v. Whitworth, 222 S.W.3d 616, =
623=20
(Tex. App.=E2=80=94Houston [1st Dist.] 2007, no pet.). Evidence =
must be presented=20
to support the logical inference that some specific, identifiable =
behavior=20
or conduct of the parent will probably cause that harm. Id. =
This=20
link between the parent=E2=80=99s conduct and harm to the child =
may not be based=20
on evidence that merely raises a surmise or speculation of =
possible harm.=20
Id.
<=
/SPAN>An=20
adult=E2=80=99s future conduct may be somewhat determined by =
recent past conduct.=20
Id. In and of itself, however, evidence of past misconduct =
may not=20
be sufficient to show present unfitness. Id. Further, it is =
wholly=20
inadequate simply to present evidence that a non-parent would be a =
better=20
choice as custodian of the child. Id. (citing Lewelling =
v.=20
Lewelling, 796 S.W.2d 164, 167 (Tex. 1990)). The non-parent =
must offer=20
evidence of specific acts or omissions of the parent that =
demonstrate an=20
award of custody to the parent would result in physical or =
emotional harm=20
to the child. Id. Specific acts or omissions of a parent=20
implicating a significant impairment to a child=E2=80=99s =
emotional development=20
may be inferred from direct evidence. Id.
<=
/SPAN>Although=20
clear and convincing evidence was not presented to support a =
determination=20
that Lopez knowingly placed or allowed the children to remain in=20
conditions that would endanger their physical or emotional =
well-being,=20
evidence was presented indicating that appointment of Lopez as =
managing=20
conservator would significantly impair the children=E2=80=99s =
physical or=20
emotional development. Specifically, the following supports the =
trial=20
court=E2=80=99s determination that appointment of Lopez as =
managing conservator=20
would significantly impair the children=E2=80=99s physical health =
or emotional=20
development:
<=
/SPAN>=E2=80=A2 Lopez=20
told hospital personnel and the Department that =
A.L.O.=E2=80=93boy=E2=80=99s strangulation=20
injury was accidental. Lopez denied that Ordonez had intentionally =
injured=20
the child and provided an implausible explanation for the injury.=20
<=
/SPAN>=E2=80=A2 Ordonez=20
subsequently pleaded guilty to intentionally injuring =
A.L.O.=E2=80=93boy by=20
strangling him.
<=
/SPAN>=E2=80=A2 A.L.O.=E2=80=93boy=20
has an old chemical burn on his leg from his thigh to his knee. At =
the=20
time of the strangulation injury, doctors noted that he had an =
irritated=20
anus and had not been bathed.
<=
/SPAN>=E2=80=A2 Lopez=20
was unable to maintain stable employment and housing as required =
by the=20
Department=E2=80=99s service plan.
<=
/SPAN>=E2=80=A2 Lopez=20
failed to comply with the service plan by completing anger =
management=20
classes.
<=
/SPAN>=E2=80=A2 A.L.O.=E2=80=93girl=20
has a developmental delay requiring speech, occupational, and =
physical=20
therapy.
<=
/SPAN>The=20
record also contains the following evidence that weighs against =
the trial=20
court=E2=80=99s conservatorship determination:
<=
/SPAN>=E2=80=A2 Lopez=20
took A.L.O.=E2=80=93boy to the hospital following the =
injury.
<=
/SPAN>=E2=80=A2 Lopez=20
went to all but one of his visitations with his children after the =
Department gained custody.
<=
/SPAN>=E2=80=A2 The=20
foster mother testified that Lopez interacted with the children =
during the=20
visits and appeared to be a loving father.
<=
/SPAN>While=20
evidence was presented that Lopez cares for his children, other =
evidence=20
indicates Lopez=E2=80=99s unwillingness to place his =
children=E2=80=99s welfare first.=20
When faced with telling authorities about the cause of =
A.L.O.=E2=80=93boy=E2=80=99s=20
injuries, the evidence indicates that Lopez chose to protect his =
wife. By=20
failing to be forthcoming about his wife=E2=80=99s assault of =
A.L.O.=E2=80=93boy, Lopez=20
risked placing his children in a potentially harmful environment. =
Indeed,=20
while evidence of A.L.O.=E2=80=93boy=E2=80=99s chemical burn =
injury is not clear and=20
convincing evidence to support termination, it is probative of =
Lopez=E2=80=99s=20
inability to protect his children from serious injury.
<=
/SPAN>Given=20
this evidence, coupled with evidence of Lopez=E2=80=99s inability =
to maintain=20
stable housing and employment, it was within the trial =
court=E2=80=99s discretion=20
to find that appointing Lopez as the children=E2=80=99s managing =
conservator would=20
significantly impair their physical and emotional development. =
Thus, we=20
hold, under the appropriate standards of review that the trial =
court=20
properly exercised its discretion by appointing the Department as =
the=20
children=E2=80=99s sole managing conservator. See Earvin, =
229 S.W.3d at 351=20
(holding that trial court did not abuse discretion by appointing =
the=20
Department as child=E2=80=99s sole managing conservator when =
evidence showed=20
father=E2=80=99s unwillingness to provide environment that was in =
child=E2=80=99s best=20
interest).
<=
/SPAN>We=20
overrule Lopez=E2=80=99s fourth issue.
Conclusion
<=
/SPAN>We affirm the =
portion of the=20
decree assigning the Department as the sole managing conservator =
of=20
A.L.O.=E2=80=93boy and A.L.O.=E2=80=93girl. We reverse the =
portions of the decree related=20
to the termination of Lopez=E2=80=99s parental rights and render =
judgment denying=20
the Department=E2=80=99s petition for termination of =
Earvin=E2=80=99s parental rights.=20
&n=
bsp; &nb=
sp; &nbs=
p; =
; &nbs=
p; Laura=20
Carter Higley
&=
nbsp; &n=
bsp; &nb=
sp; &nbs=
p; =
; Justice
Panel=20
consists of Chief Justice Radack and Justices Nuchia and=20
Higley. |