In the Interest of N.L., a Child v. the State of Texas

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-25-00205-CV
___________________________

IN THE INTEREST OF N.L., A CHILD

On Appeal from the 367th District Court
Denton County, Texas
Trial Court No. 23-9813-158

Before Bassel, Womack, and Walker, JJ.
Memorandum Opinion by Justice Walker
MEMORANDUM OPINION

I. INTRODUCTION

The mother and father of N.L. (Nicole)1 each appeal from a judgment––

rendered after an eight-day jury trial––that terminated their parent–child relationships

with Nicole. At trial, the jury heard that when Nicole was seven months old, she

suffered several acute leg fractures––and showed signs of healing rib fractures and a

possible thumb fracture––while in Mother’s and Father’s primary care but also while

in the sole care of her maternal grandmother (Grandmother) for short periods of

time. After (1) hearing testimony from Mother, Father, and Grandmother––during

which all three denied causing the child’s injuries; (2) considering other evidence

regarding Mother’s and Father’s changing stories about the days leading to Nicole’s

acute leg fractures and Grandmother’s generally consistent story throughout the

litigation’s course; (3) considering evidence of Father’s admitted, persistent

untruthfulness during the investigation and service-plan period and Mother’s refusal

to consider Father as a potential actor; and (4) being provided with voluminous

medical records and other exhibits, ten out of twelve jurors determined that Mother’s

and Father’s parent–child relationships should be terminated but that Grandmother––

1
We use aliases to refer to the child and anyone by whom she might be
identified. See Tex. R. App. P. 9.8(b)(2).

2
who had intervened in the suit––should be named the child’s sole managing

conservator instead of the Department of Family and Protective Services.2

In their appeals, Mother and Father primarily raise legal and factual sufficiency

challenges to the predicate-conduct grounds found by the jury––(D) and (O)3 for

Mother and (D), (E), and (O) for Father; Father also challenges the finding that

termination of his parent–child relationship with Nicole is in her best interest. See

Tex. Fam. Code Ann. § 161.001(b)(1)(D)–(E), (O). Because we conclude that the

evidence is sufficient to support the jury’s endangerment and best-interest findings,

that Father’s jury-charge complaint should be overruled, and that we need not address

Mother’s and Father’s other complaints, we affirm the trial court’s judgment.

II. GENERAL BACKGROUND4

On October 21, 2023, Nicole was seen at an urgent care clinic where she was

diagnosed with a “tibia compression fracture” and sent to Dallas Children’s Medical

Center. Subsequent X-rays taken at the hospital revealed additional fractures to both

femurs near the knee, a fracture on Nicole’s eighth right-side rib, and two likely rib

In addition to the Department, Grandmother has filed briefs in response to
2

Mother’s and Father’s briefs.
3
Although the (O) predicate-conduct ground has since been deleted from
Section 161.001(b)(1), it was still applicable to this case at the time it was tried. See
Act of May 14, 2025, H.B. 116, 89th Leg., R.S., ch. 211, § 2.
4
We dispense with an extended introductory background because we discuss
the facts at length in our analysis of Mother’s and Father’s sufficiency complaints.

3
fractures on the left side. A possible fracture of Nicole’s hand was also noted. The

femur and tibia fractures were acute and new while the rib fractures were healing and

probably at least ten days old. The hospital’s REACH5 team––which responds when

there is a concern that a “child [might] be at risk . . . for abuse”––was notified.

A nurse practitioner on the REACH team spoke to Mother and Father about

Nicole’s injuries; both of them told her that the only thing that might have happened

was that the day before Nicole had fallen forward while pulling up. According to the

nurse practitioner, that story was not consistent with the types of fractures that Nicole

had; usually, a child with such injuries is “symptomatic right away,” and according to

the parents, she was “asymptomatic for a time after[]” the fall and pulled to a stand

later in the day. The nurse practitioner did not think a fall from a standing position

caused the breaks, which would have required more force. Additionally, the rib

fractures concerned the REACH team “because their primary cause is encircling the

rib cage and squeezing. So they are what [the team] consider[s] highly specific for

inflicted injury.”

Although Nicole’s vitamin D levels were on the low side of normal, the X-rays

showed that her bones were well-formed and well-mineralized; she did not show signs

of osteopenia, or softer bones.

5
REACH is an acronym for Referral and Evaluation of At-Risk Children.

4
The parents’ lack of an adequate explanation for Nicole’s fractures, especially

considering their different stages of healing, raised the concern for abuse. After the

Department and law enforcement questioned the parents, Nicole was removed from

their care. Although the parents completed many of the court-ordered services

necessary for Nicole’s return to their care and sought a monitored return, the trial

court decided not to return Nicole to their custody, and the Department eventually

sought termination of their parental rights.

III. GENERAL LAW AND STANDARDS OF REVIEW

For a trial court to terminate a parent–child relationship, the party seeking

termination must prove two elements by clear and convincing evidence: (1) that the

parent’s actions satisfy one ground listed in Family Code Section 161.001(b)(1); and

(2) that termination is in the child’s best interest. Tex. Fam. Code Ann. § 161.001(b);

In re Z.N., 602 S.W.3d 541, 545 (Tex. 2020). 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; Z.N.,

602 S.W.3d at 545.

Due process demands the heightened standard of clear and convincing

evidence because “[a] parental rights termination proceeding encumbers a value ‘far

more precious than any property right.’” In re E.R., 385 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 In re E.N.C., 384 S.W.3d 796, 802

5
(Tex. 2012). In a termination case, the State seeks not just to limit parental rights but

to erase them permanently—to divest the parent and child of all legal rights,

privileges, duties, and powers normally existing between them, except the child’s right

to inherit. Tex. Fam. Code Ann. § 161.206(b); Holick v. Smith, 685 S.W.2d 18, 20

(Tex. 1985). Consequently, “[w]hen the State seeks to sever permanently the

relationship between a parent and a child, it must first observe fundamentally fair

procedures.” E.R., 385 S.W.3d at 554 (citing Santosky, 455 U.S. at 747–48, 102 S. Ct.

at 1391–92). For the same reason, we carefully scrutinize termination proceedings

and strictly construe involuntary-termination statutes in the parent’s favor. E.N.C.,

384 S.W.3d at 802; E.R., 385 S.W.3d at 563; Holick, 685 S.W.2d at 20–21.

To determine whether the evidence is legally sufficient in parental-termination

cases, we look at all the evidence in the light most favorable to the challenged finding

to determine whether a reasonable factfinder could form a firm belief or conviction

that the finding is true. Z.N., 602 S.W.3d at 545. The factfinder may draw inferences,

but they must be reasonable and logical. Id. We assume that the factfinder settled any

evidentiary conflicts in favor of its finding if a reasonable factfinder could have done

so. Id. We disregard all evidence that a reasonable factfinder could have disbelieved,

and we consider undisputed evidence even if it is contrary to the finding. Id.; J.F.C.,

96 S.W.3d at 266. That is, we consider evidence favorable to the finding if a

reasonable factfinder could, and we disregard contrary evidence unless a reasonable

factfinder could not. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005). The factfinder is

6
the sole judge of the witnesses’ credibility and demeanor. In re J.O.A., 283 S.W.3d

336, 346 (Tex. 2009); see In re C.E., 687 S.W.3d 304, 308 (Tex. 2024) (“[E]vidence is

not legally insufficient merely due to inconsistencies or disputes in the evidence.”).

We must perform “an exacting review of the entire record” in determining the

factual sufficiency of the evidence supporting the termination of a parent–child

relationship. In re A.B., 437 S.W.3d 498, 500 (Tex. 2014). Nevertheless, we give due

deference to the factfinder’s findings and do not supplant them with our own. In re

H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). We review the whole record to decide

whether a factfinder could reasonably form a firm conviction or belief that the

petitioner proved one or more of the conduct-specific grounds on which the

termination was based and that the termination of the parent–child relationship would

be in the child’s best interest. Tex. Fam. Code Ann. § 161.001(b); In re C.H.,

89 S.W.3d 17, 28 (Tex. 2002). If the factfinder reasonably could form such a firm

conviction or belief, then the evidence is factually sufficient. C.H., 89 S.W.3d at 18–

19.

IV. PREDICATE-CONDUCT GROUNDS UNDER FAMILY CODE
SECTION 161.001(B)(1)

The jury found that Mother and Father had “knowingly placed or knowingly

allowed [Nicole] to remain in conditions or surroundings which endanger[ed her]

physical or emotional well-being” and had “failed to comply with the provisions of a

court order that specifically established the actions necessary for [them] to obtain the

7
return of [Nicole,] who ha[d] been in the permanent or temporary managing

conservatorship of the Department . . . for not less than nine months as a result of

[her] removal from the parent[s] under Chapter 262 for . . . abuse or neglect.” Tex.

Fam. Code Ann. § 161.001(b)(1)(D), (O). The jury also found that Father had

“engaged in conduct or knowingly placed the child with persons who engaged in

conduct which endangers the child’s physical or emotional well-being.”

Id. § 161.001(b)(1)(E).

Each parent challenges both the legal and factual sufficiency of the evidence to

prove the respective conduct grounds found by the jury. But because Father failed to

preserve a factual-sufficiency challenge, we will review his complaints for legal

sufficiency only. See In re B.J., No. 02-24-00428-CV, 2025 WL 646633, at *3 (Tex.

App.—Fort Worth Feb. 27, 2025, pet. denied) (mem. op.); see also Tex. R. Civ. P. 324.

We first consider the endangerment grounds found by the jury. In re N.G.,

577 S.W.3d 230, 237 (Tex. 2019).

A. APPLICABLE LAW––ENDANGERMENT

Subsections (D) and (E) of Family Code Section 161.001(b)(1) are the

endangerment predicate-conduct grounds. To endanger means to expose a child to

loss or injury or to jeopardize a child. In re R.R.A., 687 S.W.3d 269, 277 (Tex. 2024).

Endangerment involves “more than a threat of metaphysical injury or the possible ill

effects of a less-than-ideal family environment, [but] it is not necessary that the

8
conduct be directed at the child or that the child actually suffers injury.” Tex. Dep’t of

Hum. Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987).

The primary distinction between subsections (D) and (E) is the source of the

endangerment to the child. In re J.D.B., 435 S.W.3d 452, 463–64 (Tex. App.—Dallas

2014, no pet.) (citing Castaneda v. Tex. Dep’t of Protective & Regulatory Servs., 148 S.W.3d

509, 522 (Tex. App.––El Paso 2004, pet. denied)). Subsection (D) addresses the

child’s surroundings and environment while subsection (E) addresses parental

misconduct. Id. But parental conduct is relevant to the child’s environment under

subsection (D). Id.; In re J.T.G., 121 S.W.3d 117, 125 (Tex. App.––Fort Worth 2003,

no pet.); see also C.E., 687 S.W.3d at 310 (“[T]ermination under (D) requires that the

child’s environment is a source of endangerment, and the parent’s conduct may create

that dangerous environment.”). “That is, ‘[c]onduct of a parent or another person in

the home can create an environment that endangers the physical and emotional well-

being of a child as required for termination under subsection (D).’” J.D.B.,

435 S.W.3d at 464 (quoting Castaneda, 148 S.W.3d at 522); see also R.R.A., 687 S.W.3d

at 278 (“[A] pattern of parental behavior that presents a substantial risk of harm to the

child permits a factfinder to reasonably find endangerment.”); In re E.A.R.,

583 S.W.3d 898, 909 (Tex. App.—El Paso 2019, pet. denied). Inappropriate, abusive,

or unlawful conduct by persons who live in the child’s home is part of the “conditions

or surroundings” of the child’s home under subsection (D). In re M.R.J.M.,

280 S.W.3d 494, 502 (Tex. App.––Fort Worth 2009, no pet.) (op. on reh’g) (“A child

9
is endangered when the environment creates a potential for danger that the parent is

aware of but disregards.”). “Proof that a parent specifically caused an injury is not

necessary.” C.E., 687 S.W.3d at 310.

“A parent acts ‘knowingly’ when the parent is aware that the environment

creates a potential danger to the child but the parent disregards that risk.” In re R.F.,

No. 11-24-00271-CV, 2025 WL 994024, at *6 (Tex. App—Eastland Apr. 3, 2025, pet.

denied) (mem. op) (quoting In re J.S., 675 S.W.3d 120, 128 (Tex. App.—Dallas 2023,

no pet.)); In re A.L.S., 660 S.W.3d 257, 264 (Tex. App.—San Antonio 2022, pet.

denied). “A factfinder may infer endangerment from ‘a course of conduct’ that

presents substantial risks to the child’s physical or emotional well-being.” R.R.A., 687

S.W.3d at 277. Such risks “can be developed by circumstances arising from and

surrounding a parent’s behavior.” In re L.W., No. 05-25-00528-CV, 2025 WL

2808495, at *5 (Tex. App.—Dallas Oct. 2, 2025, no pet. h.) (mem. op.). Conduct that

demonstrates awareness of an endangering environment is sufficient to show

endangerment. In re A.A., No. 13-25-00157-CV, 2025 WL 2475157, at *8 (Tex.

App.—Corpus Christi–Edinburg Aug. 27, 2025, no pet. h.) (mem. op.); In re E.M.,

494 S.W.3d 209, 221 (Tex. App.—Waco 2015, pet. denied).

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

endangerment of the child’s physical well-being was the direct result of the parent’s

conduct, including acts, omissions, or failures to act. E.M., 494 S.W.3d at 222. Either

the parent’s conduct or the conduct of a person with whom the parent knowingly

10
leaves the child that endangers his or her physical or emotional well-being is

sufficient. Id. However, termination under subsection (E) requires “more than a

single act or omission; . . . a voluntary, deliberate, and conscious course of conduct by

the parent” is required. In re K.P., 498 S.W.3d 157, 171 (Tex. App.—Houston

[1st Dist.] 2016, pet. denied). In either subsection (D) or (E), it is the direct result of

the parent’s conduct that results in the termination of the parental rights. E.M.,

494 S.W.3d at 222.

B. DEPARTMENT INVESTIGATION, PARENTS’
INITIAL VERSIONS OF EVENTS, AND NICOLE’S REMOVAL

The Department’s endangerment case focused on the circumstances

surrounding Nicole’s injuries, the evolution of the parties’ versions of those

circumstances throughout the case, and the parents’ conduct afterward that evidenced

both deception and an unwillingness to do things they did not want to do despite the

Department’s reunification attempts. We will recount this evidence in detail to show

how it supports the jury’s endangerment findings.

1. Emergency Investigator

On October 22, 2023, a Department emergency investigator was dispatched to

the hospital and first saw Nicole while she was in a cast that covered her entire lower

body. At that time, Nicole appeared to be well-nourished and otherwise in good

condition.

11
Mother agreed to speak to the investigator and asked to record the

conversation. Mother purported to be Nicole’s primary caretaker and said that she

rarely took her eyes off of the child. But Mother also told the investigator that “she

didn’t really know how the injuries could have occurred.” Mother then explained to

the investigator what had happened the day they took Nicole to urgent care: “[D]ad

was home. They went to the pool. They went to the gym together. And

[Grandmother] lives in the same apartment complex, so [she] was also kind of

involved. And they . . . watched their favorite show that night, which was like a

routine for them, and they went to bed.”

Mother said that on the same day, she heard Nicole crawling into the bathroom

and then heard a thud and Nicole crying.6 Nicole calmed down when comforted and

was “behaving fine” and “like a normal child.”

Mother, Father, and Nicole went to Grandmother’s apartment in the same

complex around 8:00 p.m. when a show they watched started. According to Mother,

all three slept over at Grandmother’s, with Mother and Father sleeping in the living

room and Grandmother and Nicole sleeping in Grandmother’s room; Nicole was on

a pallet on the floor. Both Mother and Grandmother checked on Nicole overnight.

Mother did not say anything about hearing any weird or loud noises overnight.

6
At the time, Nicole could not yet walk but was pulling up.

12
Around 6 a.m., Mother went to check on Nicole because she heard her being

fussy or she heard a “yell.” Mother brought Nicole back into the living room where

they both fell back asleep on the couch. When Nicole woke up, she was still fussy

and “they were kind of trying every little thing to try and soothe her.”

Mother told the investigator that when a pacifier, yogurt, and medication failed

to soothe Nicole, she took the child back to their apartment. Mother noticed Nicole’s

cries were “a little different” than normal. When Mother tried to change Nicole’s

diaper, she noticed that Nicole was lifting her legs and that she seemed to be in pain.

Mother took Nicole back to Grandmother’s apartment, and at some point, Mother

and Father realized Nicole was not putting weight on her legs.

Mother denied that Nicole had had any other falls or that she had been

dropped. But Mother did tell the investigator that she saw “like a dot and a line of

purplish bruising on [Nicole’s] leg.”

Mother denied any domestic violence in the home. She told the investigator

that she had anxiety related to having been in the military, but she refused to allow the

investigator access to her military records.

The investigator noted that Father was nervous, and she thought it was the first

time he had talked to a Department representative. By contrast, Mother was “very

calm,” which is unusual in such a case. Father also denied that domestic violence had

occurred or was occurring in the home, and he denied having any mental-health

concerns.

13
Father told the investigator the same things that Mother had about their day;

Father said that he, Mother, and Nicole went to the pool where Nicole was kicking

her legs and acting fine. He did not see Nicole fall in the bathroom, but he heard a

“loud thud.” He used the same phrase Mother had used to describe Nicole’s fall:

from “standing height.” According to Father, Nicole was acting fine at

Grandmother’s but for some suspected teething. Although he didn’t hear anything all

night, he woke up in the morning because Nicole was “being fussy”; she stayed fussy

all morning. Father did not notice any external injuries on Nicole.

Neither Mother nor Father could explain how Nicole’s fractures had occurred,

and they didn’t blame anyone for them, including Grandmother. The doctors told the

investigator that it was impossible for the leg fractures to have been caused by the

type of fall described by Mother and Father; instead, only a “very high fall” could

have caused such injuries.

The investigator also interviewed Grandmother, who said Nicole was fine

during the night; she mentioned the fall the parents had described. According to

Grandmother, Nicole was fussy at 6 a.m., which woke everybody up; at that time,

Mother told Grandmother, “I’m going to take care of her.” The investigator believed

that Grandmother had told her that, later that morning, Nicole had screamed, which

is when Grandmother “walked out and found the baby sleeping with [Mother] . . .

[on] the couch.” At breakfast, Nicole was “inconsolable,” crying, and screaming.

14
The investigator was in the room when law enforcement also interviewed

Mother and Father; what they told law enforcement corresponded with what they had

told her.

The investigator thought that, during the interviews, Father appeared to be

more upset than anyone else. Additionally, she did not think Mother or Father was

being forthcoming, transparent, or honest when answering her questions. She

thought there was reason to believe that Mother, Father, or Grandmother could have

been the one who hurt Nicole, but she could not say which one. After concluding her

interviews, the investigator was concerned because, in her words, “[W]e have a

vulnerably-aged child [and] no one can provide an explanation for . . . the femur

fractures, a bone that’s pretty hard to break.”7

2. Nonemergency Investigator

A nonemergency Department investigator arrived at the hospital based on a

report that Nicole “had presented to the hospital with fractures in various different

healing stages with no explanation.”8 She first interviewed Dr. Kristen Reeder, who

told her that the fractures could not have been caused by a fall and likely were not

7
She later testified at trial that broken bones in an infant are rare and usually
accompanied by an explanation of blunt-force trauma. In her experience, a child who
is not yet walking cannot get broken bones from just a fall on his or her own.

When this investigator saw Nicole in the hospital, she was happy, smiling, and
8

fussy only when she wanted to eat.

15
accidental. Dr. Reeder also told the nonemergency investigator that there was “no

indication or evidence of any metabolic or congenital bone disease that could have

caused these sort[s] of injuries.”

The nonemergency investigator interviewed Father before Mother. Father told

the investigator that at 1:30 p.m. on October 20, he and Mother “heard a loud boom

and [the child] falling. He described the loud boom as a bowling ball hitting the

ground. He stated that she [had] cried a little bit; but then after that, she was fine. He

said that they decided to go to the pool after that.” According to Father, after he and

Mother took Nicole to the pool, they all went to the gym with Grandmother, where

Nicole sat in a Bumbo seat.9 After they came back from the gym, Nicole crawled

around in her playpen and slept; the family then went to Grandmother’s where Nicole

went back to sleep on a pallet. Nicole was fussy when she woke up the next morning,

and Father thought she was teething. Mother took Nicole back home to bathe and

feed her while he stayed at Grandmother’s apartment with Grandmother.

According to Father, Nicole appeared to be “a little off” when he picked her

up after Mother returned to Grandmother’s apartment. Nicole was crying

hysterically, and he had never heard her cry like that before.

When Mother and Father went back to their apartment, Mother tried to get

Nicole to stand up. She appeared to be favoring her right leg, so they tried the

9
A Bumbo is a movable infant seat with openings for the child’s legs that allows
the child to sit upright.

16
RICE10 method for a few hours, icing both of Nicole’s legs and wrapping a long sock

around the child’s legs for compression.

When asked who he thought injured Nicole, Father told the investigator that if

she had asked him the day before, he would have said he didn’t know but that at that

time, “after thinking about it,” he thought it was Grandmother. But Father did not

clarify why he thought that.

The investigator also interviewed Mother. Mother recorded the interview

because she said she had gotten “several different stories from different nurses the

night before.” By this time, a doctor had told Mother that Nicole’s fractures could

not have been caused by a fall. Mother had also learned that Nicole had several

fractures in different stages of healing.

According to the investigator, Mother did not say anything different from

Father regarding how Nicole’s injuries occurred. Mother said that she found Nicole

face down in the bathroom after the fall and that Nicole had cried in the night when

her pacifier fell out. Mother told the investigator that, initially, she had no concerns

about Grandmother’s care of Nicole but that Grandmother could have stepped on

Nicole accidentally.11

RICE is an acronym for rest, ice, compression, and elevation.
10

The investigator reiterated that nobody told her they had heard Nicole scream
11

in the middle of the night and agreed that it did not make sense that she would not
have cried out if her femur had been broken.

17
Mother told the investigator that “there was a difficult history with”

Grandmother,12 whom Mother called a liar. Mother and Grandmother had been

estranged but had reconciled by that time. Mother told the investigator that

Grandmother “tends to manipulate situations” and “ none of her family members talk

to her.” But Mother didn’t explain to the investigator why, in light of that assessment,

she herself was talking to her.

The investigator and a police detective also interviewed Grandmother.

Grandmother said that she had noticed that when the family was on their way to the

pool,13 Nicole didn’t seem like herself and was sad and crying; Mother told

Grandmother that Nicole had fallen. However, Nicole appeared to be fine at the

gym.

Nevertheless, when Mother and Father brought Nicole back to Grandmother’s

apartment to watch a TV show, Nicole was screaming and crying; she settled down

when they got there, though, and fell asleep within five minutes of lying down on the

pallet. Nicole was still asleep when Grandmother went to bed at 1:00 a.m. According

to Grandmother, Nicole woke up twice during the night but went back to sleep when

12
Grandmother and Mother’s father divorced when Mother was a young child,
and at trial, there was evidence presented that Mother was more bonded to her father
and still harbored resentment toward Grandmother about the divorce. Mother was
also upset that, while she was in the military, Grandmother had tried to claim her as a
dependent on her taxes.

Grandmother saw Mother, Father, and Nicole “on their way to” the pool, but
13

Grandmother did not go to the pool with them.

18
Grandmother gave her a pacifier; she woke up a third time, but Mother tended to her

and laid down with her. Around 8 a.m., Nicole woke up crying like she was hungry

and smiled when Grandmother went to lie down with her. But she gave a

“screeching” cry when Grandmother tried to pick her up. Mother then came and got

Nicole and took her to the couch where they both fell asleep. At some point,

Grandmother picked up Nicole from the couch, and Nicole started crying. “She put

[Nicole] on her leg and she was crying too. And when she bent over to pick up a

pacifier, [Nicole] was really crying, and she could tell her legs were really warm.” But

Grandmother said all of them assumed that Nicole was teething.

According to Grandmother, at some point, Mother took Nicole back to the

family’s apartment by herself to feed and bathe her. During that time, Grandmother

mentioned to Father what she had noticed about Nicole’s legs; “his eyes seemed really

glossy,” and he said he was worried. But after Mother and Nicole came back to

Grandmother’s apartment, she, Father, and Nicole all went back to their apartment.

Although Grandmother had suggested they take the child to urgent care, Mother and

Father did not take Nicole for medical treatment until “hours” after noticing she

could not put weight on her leg.

After speaking with Grandmother, the nonemergency investigator interviewed

Mother and Father together; neither said anything inconsistent from their first

interview with her except that Mother had initially denied that Nicole had ever fallen

19
from Grandmother’s bed but then admitted that she had done so at about five

months old.

The investigator learned that Father worked overnight and that Mother was not

working because she is a disabled veteran.

3. Removal

The nonemergency Department investigator determined that Nicole could not

be sent home with Mother and Father because she could not speak, the parents did

not give any plausible explanations for the injuries, and the Department could not

determine which of her three caregivers had caused the injuries; therefore, the

decision was made to remove Nicole from her parents’ custody and place her with her

paternal great uncle. Mother and Father did not agree with the decision, but Mother

was “calmer” about it. She became emotional when informed about the removal,

which is common, and was concerned about breastfeeding. The Department initially

ruled that there was “reason to believe” that Mother, Father, and Grandmother had

abused Nicole.

C. MATERNAL-UNCLE PLACEMENT AND MONITORED-RETURN HEARING

1. Placement

Nicole lived with her paternal great-uncle and his wife for eleven months after

her removal from her parents’ custody. With the Department’s agreement, Mother

and Father eventually were each allowed up to sixteen hours’ supervised visitation

with Nicole per week; the placement was supposed to supervise this visitation.

20
During that time, the trial court appointed a Court Appointed Special Advocate

(CASA), who worked on the case thereafter for about 500 hours.

An OCOK14 caseworker met with Mother and Father together at the beginning

of the case, and they appeared to have a good relationship; they both reported that

they had strong support and denied that any domestic violence had occurred between

them. They also denied having any mental-health conditions other than that Mother

was taking medication for anxiety. Mother said that she was attending therapy at the

VA.

According to the caseworker’s first assessment, Mother and Father appeared to

be a strong unit. But as the case progressed, the caseworker started to become

concerned that she was seeing signs that Father was financially and emotionally

abusive toward Mother: “It became a type of control and neediness that [he] had that

she was to direct all her attention in to supporting him. And so it appeared that this

relationship took a significant toll on her, when originally it was quite a united front.”

The Department prepared service plans for Mother and Father. Father signed

his on November 30, 2023, and Mother signed hers on December 13, 2023. During

the course of the case, the Department implemented two safety plans to try to work

toward family reunification. The first plan was implemented because Nicole fell off

OCOK is an acronym for Our Community Our Kids, which is a private entity
14

that contracts with the Department to provide case-management services. In re M.M.,
No. 02-21-00153-CV, 2021 WL 4898665, at *2 n.4 (Tex. App.—Fort Worth Oct. 21,
2021, pet. denied) (mem. op.).

21
the bed at her placement but was not injured. The second one was implemented

when Mother had a physical altercation with the placement in April 2024, amid

concerns that the parents had been having improperly supervised, and possibly

unsupervised, contact with Nicole. No one told the Department about this

altercation even though the police were called.15

2. Monitored-Return Hearing

In May 2024, the trial court held a hearing to determine whether to return

custody of Nicole to Mother and Father on a monitored return.16 See Tex. Fam. Code

Ann. § 263.403.

a. Department witnesses

At the monitored-return hearing, the caseworker testified that both parents had

completed all services requested of them except that they were still “engaged in

individual counseling.” She agreed when asked if they had been cooperative and

“done everything . . . asked of them.” When asked if she had any concerns “with

regard to [their] participation,” she said, “Not with participation, no.” Nevertheless,

she testified that the Department had “numerous concerns” with returning Nicole to

her parents’ custody. The primary concern was that neither parent had shown

15
Mother recorded part of this incident, and the recording was admitted into
evidence at the trial. Mother testified that she did not lose control of her emotions
but that she was upset and yelling because she was afraid Father’s uncle was going to
try to take her phone away from her.
16
The reporter’s record for this hearing was admitted into evidence at the trial.

22
accountability for, or given an explanation regarding, how Nicole could have gotten

the fractures; thus, the Department was unsure how to protect Nicole around them in

the future. Additionally, although the parents had appeared to “check[] the boxes,”

they did not appear to have “learned from their behaviors and the things that put their

child into care.”

The caseworker had no concerns about the parents’ interaction with Nicole

during visits. But she was concerned that they made changes to the schedule

frequently and without the required prior approval. This conduct was ongoing, and

Mother and Father had not changed it even after the caseworker talked to them about

it. She was also concerned that the version of events Mother and Father gave to

service providers kept changing.

The caseworker also testified that Mother and Father “state that they have a

strong connection. They are very complimentary of each other. They’re very playful

with each other. They -- they help each other out. They pick up the slack when the

other one doesn’t have it. So they -- they really report a very positive relationship.”

When asked, “So is it fair to say that if one of them did perpetrate these injuries, then

the other one is – the entire time has had each other’s back?” she answered, “Yes.”

She also agreed that the parents’ lack of honesty regarding other aspects of the case

“indicate[s] that they may know more about how [Nicole] received these injuries than

they are willing to express.” She also agreed that “it would be understandable if they

were both afraid of being arrested and going to jail.” But the fact that neither parent

23
was willing to at least entertain the idea that the other might have hurt Nicole was

concerning.

Mother’s psychological testing showed that she had elevated anxiety levels, was

afraid of making mistakes, and was susceptible to reacting emotionally. Although

Mother was receiving therapy from the VA, that therapist would not talk to the

caseworker about Mother’s treatment or release any of Mother’s VA records because

Mother had not given consent for her to do so. This raised a concern for the

Department that the records showed something Mother did not want it to know

about.

b. Mother and Father

Mother denied knowing how Nicole’s injuries had occurred. She testified that

she had left Nicole in Grandmother’s care “maybe a few hours a couple times a week,

but not [unsupervised] overnight.” Mother noticed Nicole’s leg injuries the morning

of October 21 while in Grandmother’s apartment. She testified that she became

suspicious of Grandmother because Grandmother had sent a text in which she was

specifically concerned about Nicole’s legs.17 Mother also stated, “[Father] and I ha[d]

been parenting [Nicole] for six months prior to all this happening, and [there were] no

concerns whatsoever with either one of our parenting styles and protecting her.”

Mother admitted that she took a nap after realizing that Nicole was hurt: “So I did.

This text, and Mother’s defensive-sounding response to it, were later admitted
17

at the trial.

24
[Father] stayed up inside the playpen with her. So we kind of had her propped up in

the playpen with her legs elevated. This is for the RICE method. And she ended up

falling asleep and taking a nap, and I did as well.”

Mother denied breaking up with or getting back together with Father and

denied having any issues with him. She denied that he could have caused Nicole’s

injuries because they were “together for the entire day and then even the following

morning. Like, we hadn’t left each other’s sight.”18 She suspected Grandmother

because, according to Mother, Nicole was fine until she was with Grandmother all

night. But Mother could not explain how that fact would take into account Nicole’s

rib fractures. Mother admitted that Grandmother had never hurt her or any other

children when she was a child; nevertheless, she still believed Grandmother was

responsible for Nicole’s injuries:

I think that my mother is very capable of manipulating and lying because
she has done so to me and my loved ones as well. So not after all these
years do I think that she turned into an abuser, but I think that she did
something and she doesn’t want to come forth and disclose.

Mother admitted telling the police detective that she sometimes disassociates,

but she explained that she did not fully understand the meaning of that word when

she said it and that the Department representatives had interpreted that word as being

more significant than she meant it. Mother denied refusing to provide a release of her

Mother testified that she and Father took a shower together the night before
18

Nicole’s fractured legs were discovered.

25
VA records since her separation from active duty.19 According to Mother, she had

given a consent for those records, but she had not given a consent for the

Department to get her active-duty medical records because she did not think that the

Department had requested them.

Mother responded to a question about why she and Father had not taken extra

classes not required by the Department by saying, “[W]e’re just kind of tired of doing

kind of these things that[,] for us, we don’t see [as] necessary.” Nevertheless, she

answered, “Absolutely,” when asked if she would agree to comply with any further

counseling requested.

Mother denied not telling the Department in advance about any schedule

changes for visitation: “They’re always aware of schedule changes. We have a group

chat with the CASA, CPS[20] and the kinship guardians, as well as [Father] and I.”

Mother testified that if Nicole were returned to her and Father’s custody, she

would be alone with Nicole for most of the day while Father was at work, and then

Father would be alone with Nicole in the evenings while Mother was at school. If

they ever needed help, they would ask Father’s uncle.

19
Mother later testified at trial that she was honorably discharged in July 2023;
at that time, Nicole was around four and one-half months old.

CPS, an acronym for Child Protective Services, is a subdivision of the
20

Department. L.C. v. Tex. Dep’t of Fam. & Protective Servs., No. 03-07-00055-CV,
2009 WL 3806158, at *1 (Tex. App.—Austin Nov. 13, 2009, no pet.) (mem. op.).

26
In contrast to Mother’s testimony that she and Father had showered together

before the family went to Grandmother’s apartment for the evening, Father testified

that he had showered alone. That night, according to Father, Nicole cried out once,

but it was just a fussy cry. She gave a really alarming, loud, and elevated cry around 8

or 9 a.m. At that time, he and Mother were both on the couch and Grandmother was

with Nicole. But Father didn’t ask Grandmother at the time what had happened.

According to Father, neither he nor Mother realized how severe Nicole’s

fractures were until they got to the hospital; Father said that no one at the urgent care

had explained to them how serious they were. But he also testified, “[T]he day that

we discovered the fractures, she wasn’t able to move at all.” Despite that fact, he

agreed that he and Mother had waited to take Nicole to the doctor because he had

been taught that home remedies should be tried first.

Father continued to believe that Grandmother was responsible for Nicole’s

injuries, but he said that he couldn’t be sure because he wasn’t there when the injuries

occurred. Father did not think Mother could have caused Nicole’s injuries because

she was caring and attentive and they “were together the day before leading up to the

incident.” When asked how he could be so sure about Mother’s innocence

considering how much time she spent alone with Nicole, he said, “Because there was

no sign[] of it prior to. The only sign that occurred was the night of.”21 He also

Father said, “What I do know is that my child was fine before going in that
21

room that night. And when she woke up, she wasn’t fine.”

27
thought Grandmother had broken Nicole’s ribs: “Because [Mother] would not have

do such a thing like that.” Father did not confront Grandmother about the injuries;

he just decided to stop talking to her completely.

According to Father, he did everything the Department had asked him to do

other than missing only one therapy session. Father denied telling Mother in

November 2023 that they were broken up.

c. Grandmother

Grandmother testified that she had moved to Texas on August 12, 2023, to

assist Mother and Father with Nicole. According to Grandmother, Mother was elated

about the move.22 Mother and Father lived a few doors down the hall from her.

Grandmother admitted that after her move and before Nicole’s injuries, she had cared

for Nicole alone three to five times for a few hours each; she saw Nicole four or five

days a week.

Although Grandmother did not go to the pool with Mother, Father, and Nicole

on October 20, she saw them all before and after they went. After the three went to

the pool, they went back to Mother’s and Father’s apartment for four to five hours,

22
In contrast, Mother had testified that Grandmother had approached her
about moving to Texas because she was trying to get away from a partner and felt
unsafe; Mother and Father purportedly were “hesitant about it” but acquiesced to
Grandmother’s moving to Texas so that she could help them with Nicole.
Grandmother and Mother were just beginning to re-establish their relationship when
Nicole’s injuries were discovered.

28
and then they all went to the apartment gym together from around 9:45 to 10:45 p.m.

At the gym, Grandmother thought Nicole was quiet and not like herself.

After the gym, Mother and Father went back to their apartment to shower and

returned to Grandmother’s apartment closer to midnight; at that time, Nicole was

“screaming and hollering, crying,” and seemed to be in pain. Father put Nicole to bed

on a pallet in Grandmother’s room, which was a normal thing for him to do.

According to Grandmother, she fell asleep on the couch along with Mother and

Father, and she went to bed after waking up around 1:00 a.m.

Grandmother testified that Nicole woke up twice during the night and was a

little fussy, so Grandmother put her pacifier back in. Mother and Father did not wake

up those times. The third time Nicole woke up, Mother took her. Around 8 a.m.,

Grandmother woke up and Nicole was awake; she was not smiling. Mother was in

the door, and when Grandmother went to get Nicole, she gave out a scream and cry

“that [Grandmother] ha[d] never heard before.” Mother told Grandmother that

maybe Nicole was sleepy and took her back to Mother’s and Father’s apartment to

change her; when Mother came back, she and Nicole fell asleep on the couch.23

When Nicole woke up and Grandmother had finished with her morning routine, she

took Nicole to feed her. At that time, she noticed Nicole’s legs were warm, but she

thought it was because she had just awakened from sleeping next to Mother.

23
Grandmother said that she remembered “in hindsight” that after changing
Nicole and coming back, Mother had told her that something was wrong with
Nicole’s legs.

29
Grandmother finally knew something was actually wrong with Nicole when Nicole

dropped her pacifier on the floor and Grandmother bent down to pick it up––Nicole

kept crying.

Father had left the apartment, and Mother left while Grandmother was feeding

Nicole yogurt. Father came back to get Nicole and looked concerned when

Grandmother said something was wrong with her. Mother did not come back.

Grandmother was not sure whether Mother or Father had caused Nicole’s

injuries. Although she lived just a few doors down from them, she had never noticed

anything unusual or seen any warning signs. According to Grandmother, Mother and

Father were doting and involved parents. When asked when she thought Nicole’s

injuries had occurred, she said that she thought they had occurred before everyone

went to the gym or even before Mother and Father went to the pool with Nicole.

d. Nicole’s pediatrician

Nicole’s pediatrician recommended that she not go home with Mother and

Father because she could not tell who had hurt her and “the severity of the injuries

are [sic] massive in a nonambulatory child.” Neither Mother nor Father ever told her

that they thought Grandmother had caused the injuries. She also thought that it was

unusual that Mother and Father did not seem irate that their child had been injured.

There was no indication of Nicole’s rib injuries at her September 12 well-child

check-up. But the pediatrician said the rib injury would have been painful, and it

would have been hard for Nicole to breathe.

30
e. Disposition and Aftermath

The trial court denied Mother’s and Father’s motions for a monitored return.

Ultimately, because of all the concerns with the paternal-uncle placement, Nicole was

placed with a non-relative foster family.

D. THE TRIAL

1. Nature of the Injuries

Dr. Reeder, a board-certified general pediatrician, child-abuse pediatrician, and

member of the Dallas Children’s REACH team, testified about the nature of Nicole’s

injuries. Nicole was already in a cast and splint when Dr. Reeder examined her. Her

records showed that Nicole had been irritable and fussy when her lower legs were

manipulated.

Dr. Reeder testified that Nicole had “fractures of both distal femurs[––]the end

of the bone closest to the knee of both femurs”––and the upper “end of her right

tibia, which is the shin bone or one of the bones of the lower leg . . . closest to the

knee.” Nicole also had “a healing eighth rib fracture on the right,” healing fractures

to her eighth and ninth ribs, and a possible––but not definitive––fracture in one of

her hands.24 The leg fractures were acute, meaning they showed no signs of healing,

24
The team did not focus as much on this fracture because of the other ones,
but Dr. Reeder nevertheless found it “very concerning, especially in an infant[,]
because it’s just not a common thing that we would see, even from accidental injuries
that infants may get themselves into.” And it could not have been caused by the force
of gravity.

31
in contrast to the ribs. The rib fractures did not occur at the same time as the leg

fractures.

The leg fractures were “buckle or compression fractures.”25 A buckle fracture

“requires a loading force on the bone,” such as when a child “falls on the monkey

bars and puts the arm out to protect. All the weight comes down on that bone.”26

She said that leg fractures in an infant are complex and akin to the type of injury seen

when older children jump off something very high or land on their knees.

Dr. Reeder testified that it was not unusual for Nicole not to have bruising to

her legs: “[T]he vast majority of cases that we see, again, as I said, in babies that can

have multiple acute fractures, meaning I think they happened recently, they may have

no bruising at all.”

Dr. Reeder said that it is important for parents to be honest about how the

child’s injuries occurred because the subjective element of a history of what might

have happened to the child is important to a diagnosis. She needs specific

information about a fall to assess whether it could have happened in such a way as to

cause the injury suffered. According to Dr. Reeder, Nicole’s leg injuries could not

The radiologist had described the femur fractures as oblique fractures, but Dr.
25

Reeder thought they looked like “buckle or compression fractures as well.” Dr.
Reeder explained that there was no conflict between her opinion and the radiologist’s
because they were both describing the same fractures in two different ways.

The nurse practitioner who saw Nicole at the hospital described compression
26

fractures like what happens when one crushes a can; such injuries are not typical in
children who are not walking.

32
have occurred from a simple fall from a child’s height to her knees.27 To have

multiple leg fractures together is complex, and she could not “come up with an

explanation of how it happened.” That is why the lack of a history explaining the

injuries was so concerning to her. She explained,

[S]he is an immobile infant and so it’s impossible an infant with these
injuries, regardless if they are caused by trauma . . . and no one would
know what happened. A caregiver should be able to tell me -- should be
able to give me histories of trauma to explain why an immobile infant
has injuries.

Dr. Reeder answered, “Most likely, yes” when asked whether a “complex fall” could

occur from a parent’s being “pushed down” and falling while carrying a child.

Dr. Reeder was shown a video of Nicole at the pool with her parents28 and said

that it was possible Nicole might have already had the fractures and been able to play

in the pool the way she did. Dr. Reeder also thought that Nicole might have been

able to sit in the Bumbo seat at the gym.29 Dr. Reeder explained that Nicole might

not have shown discomfort from kicking or moving but that soft weight-bearing

27
The nurse practitioner also testified that Mother’s and Father’s fall-forward
explanation could not have explained Nicole’s injuries.
28
This video was admitted into evidence for the jury to view.
29
In contrast, the nurse practitioner had testified that the leg injury would have
had to occur after Nicole went to the pool and had a bath: “[T]his type of fracture,
she wasn’t able to pull up. And after going to the pool, they describe going to the
pool afterward, she -- and also after bathing, after the pool. And then she likes to pull
up in the bath, and so she wouldn’t have been able to do that with fractures.” But she
also testified that whether the Bumbo seat would have hurt Nichole depended on
where it hit her legs.

33
would have been a problem. For example, Nicole was noted as having been kicking

her leg while in the ER. Dr. Reeder could not say for sure what Nicole would have

done when her legs were broken, but she expected that Nicole would have given

“some sort of sign of discomfort”; in other words, “she likely gave some sort of

indication she was hurt when it happened.”30

According to Dr. Reeder, in the absence of trauma, the rib fractures would

have occurred because of squeezing or compression of the chest. Dr. Reeder stated

that normal care of an infant, such as holding or swaddling, doesn’t result in those

types of injuries. Dr. Reeder opined, “Rib fractures in the absence of a history of

trauma to explain them, are highly specific for inflicted injury, especially in immobile

infants and especially in a case where I have two sets -- two sets of fractures in

different stages of healing, which indicated they happened at different times.”31 Dr.

Reeder also opined that, based on the signs of healing, one rib fracture was around

ten to fourteen days old, and the other two were about a month old, at least. Dr.

Reeder agreed that it is not unusual for children with rib fractures to be asymptomatic

because “their symptoms could be crying, and a seven-month-old cries for lots of

Dr. Reeder did not think that Nicole’s injuries were exacerbated or worsened
30

from the delay in taking her to urgent care.

The nurse practitioner testified that the rib injury was from squeezing and
31

would have required more force than a hug.

34
reasons.” Most of time, there are no external signs of injury, and it is not uncommon

for parent not to know a child’s ribs are broken.

At the hospital, Mother and Father asked to speak to Dr. Reeder alone; Mother

wanted to know if Nicole’s injuries could have happened “in the bedroom alone with

[Grandmother] overnight” and asked her multiple questions about how Nicole’s

injuries could have occurred.32 Mother and Father also asked if they could have

occurred from rolling off a pallet. Dr. Reeder told Mother and Father that Nicole’s

injuries could not have occurred from being stepped on or just rolling off the bed.

Dr. Reeder also checked for possible medical reasons that Nicole could have

presented with the multiple fractures and found no evidence of a medical condition33

that could have caused them. The rest of Nicole’s bones looked normal, and there

were no signs of osteogenesis imperfecta (OI).34 When Nicole’s X-rays were repeated

32
Mother and Father did not tell Dr. Reeder that Nicole had cried out at any
time during the night, as they later testified to. All they told her was that Mother had
nursed Nicole and they went back to sleep until 10:40 or 11 a.m. the next day, which
was first time Mother noticed that Nicole was uncomfortable.
33
The nurse practitioner testified that Nicole’s creatinine was a bit low, which
has nothing to do with fractures; also, her alkaline phosphatase was a bit high, which
will elevate with fractures. Two other blood-count measurements were also a little
low, but not in a significant way.
34
According to Dr. Reeder, OI––sometimes referred to as “brittle bone
disease”––“affects collagen in the body.” Dr. Reeder explained that OI is congenital;
it does not develop because of diet. When asked why Nicole was not tested for OI,
she explained that it involves genetic testing, is “very expensive,” not 100% accurate,
and not necessary here. After reviewing Nicole’s X-rays, she also ruled out rickets
because that disease would show changes to bones that were not present here. She

35
five to six months later, the rib fractures were “nearly completely healed.” No new

fractures were seen by Dr. Reeder or reported to her at Nicole’s next appointment.

Dr. Reeder summed up her concerns about Nicole’s injuries: “At the end my

assessment or my concerns were that I have a seven-month-old, mostly immobile

[child] with multiple fractures that required multiple different types of mechanisms, of

varying stages of healing. So I was concerned for – they were mostly -- sorry -- most

consistent with repeated episodes of inflicted injury.” In her expert opinion, Nicole’s

injuries were most consistent with child abuse. According to Dr. Reeder, at Nicole’s

age, a caregiver should have been able to explain how the injuries occurred if they

were accidental. If a parent knew that a child was being repeatedly abused, she would

expect the parent to remove the child from that environment.

2. Status of Criminal Investigation

A police detective assigned to investigate possible criminal charges described

Mother as cooperative and giving the impression of caring deeply for Nicole. The

detective testified that charges against Mother and Father––but not Grandmother––

had been referred to, and had remained pending with, the grand jury for six months

before the termination trial. But no one had been arrested or indicted for Nicole’s

injuries at the time of trial.

affirmed that child abuse is more common than rickets. Dr. Reeder further explained
that OI and rickets tend to show different types of fractures and are developmental to
a child’s beginning to walk.

36
3. Mother’s, Father’s, and Grandmother’s Testimony

Mother, Father, and Grandmother all testified at length, and the reporter’s

record of the monitored-return hearing was admitted into evidence. Thus, not only

did the jury have the opportunity to consider the credibility of all three in person but

also it was able to weigh evidence of the accounts of events that each had given

during the course of the case.

a. Mother

The Department spent much time eliciting testimony about Mother’s mental-

health history before and after her discharge from the military and during the early

months of Nicole’s life.

Mother agreed when asked, “You were referred to medical management for

unspecified anxiety disorder characterized by uncontrollable worry, social anxiety,

obsessive thinking, irritability and impaired focus, restlessness, insomnia and

compulsive behaviors, correct?”35 Mother admitted that in June and July 2023, she

had reported having obsessive thoughts and that she had feared hurting someone or

herself or being responsible for something terrible happening. According to Mother,

she was constantly worried about saying the wrong thing and hurting someone’s

35
In June 2023, Mother was experiencing panic attacks, compulsive skin
picking, obsessive thinking, irritability, impaired focus, obsession with germs, and
avoidance of odd numbers. Around the same time, she also took an assessment in
which she admitted being afraid of acting on unwanted impulses and being bothered
by intrusive sounds and thoughts.

37
feelings. She had met with a social worker because, according to Mother, sometimes

in her relationship with Father she would “say things that weren’t very nice” and she

had no filter.

At the time of trial, Mother was on full disability from the military. She had

been receiving mental-health services until the month of her discharge, but she was

not able to finally initiate services from the VA until January 2024, after Nicole’s

removal.36

Despite testifying at the monitored-return hearing that on October 20 she and

Father had taken a shower together after going to the gym––leaving Nicole in the

playpen––Mother testified at trial that she put Nicole in the playpen and then

showered alone and that, while in the shower, she heard Nicole crying. According to

Mother,

Well, while I was in the shower, I yelled out to [Father], What happened?
He didn’t answer me. But he came into the bathroom shortly after
[Nicole] had stopped crying and I didn’t hear any more. I asked again
what happened while I was standing in the shower; he said nothing[,] she
just cried and crawled to the pillow and fell asleep so I didn’t think
anything more.37

She had tried to set up services in November 2023, but her call to the VA was
36

disconnected in the middle of intake, and she could not reconnect until January 2024.

Mother also testified at trial that Father had been responsible for the first shift
37

of feeding Nicole at night, for which she pumped breastmilk. She also recounted
other occasions during which Father had been alone with Nicole.

38
Mother nevertheless admitted that she had been “one hundred percent sure it was”

Grandmother who had injured Nicole, but by the time of trial, she was not sure

whether Grandmother or Father was responsible for Nicole’s injuries.

Mother also admitted that during an argument in August 2023, Father had

threatened to run her over with a car after she had stood in front of it; he hit her with

it. Mother admitted being overwhelmed in her relationship with Father, stated that

her anxiety attacks had been related to the “stress of her relationship with” Father,

and said that she had stopped having anxiety attacks after they broke up.

According to Mother, she and Father had not totally broken up at the time of

the monitored-return hearing. She said he had lied about them breaking up in

November 2023 but that they were no longer sleeping in the same room by May 2024.

b. Father

Father testified that he knew about the mental-health issues Mother was

experiencing the summer Nicole was born but that he nevertheless left Mother alone

with the child. He testified that even though Mother is manipulative and aggressive,

he chose to leave Nicole with her because Nicole is her child and he did not think

Mother was capable of “doing such a thing.”

After previously denying that any domestic violence had occurred between him

and Mother, Father testified about a prior incident in which he said he was holding

Nicole while he and Mother were arguing. Mother wanted him to give Nicole to her,

but he refused to do so. In the midst of their argument, he tried to go to the

39
bathroom for privacy but then Mother pushed him, so he gave her the child and left

her with Mother even though Mother was still angry.38

Father admitted lying “repeatedly to everyone in this case,” including under

oath during the monitored-return hearing. At trial, he purported to tell the truth,

though, about when he and Mother broke up––in November or December 2023––

and claimed to have lied to the caseworker (and Mother) when he had previously said

he and Mother were still together at that time.39 According to Father, although he had

lied about other things, he had not lied about what happened to Nicole: Father said

that Mother had lied if she told the caseworker that he had committed any domestic

violence against her. According to Father, Mother had a problem with lying.

A recording of Father’s two-hour-long March 24, 2024 phone call with

Grandmother (before the monitored-return hearing) was admitted into evidence.

During the call, Father told Grandmother that, based on what the Department was

telling him about how the injuries could have occurred––with a post-partum mother

38
Mother explained what had happened when she pushed him: “He was
holding [Nicole], and I reached for her to feed her. And he kneed me, and I just
pushed his knee out of the way.”
39
According to Father, he and Mother continued to live together in 2024 until
May 31 or June 1, even though they had broken up and were no longer in a romantic
relationship. However, Father had also previously told a therapist that he and Mother
were still in a romantic relationship.

40
with mental-health issues––Mother “fit the profile.”40 To Father, Grandmother again

recounted her version of the events leading up to the discovery of Nicole’s broken

legs and denied being the one who hurt her. Father told Grandmother that it was the

Department’s idea that someone had stepped on Nicole and that he had never actually

suspected her but just went along with that idea; according to Father, Grandmother

was the initial suspect in causing Nicole’s injuries until all three of them became

suspects. He also told Grandmother that once he learned Nicole’s leg and rib injuries

had occurred at different times, he knew Grandmother had not caused the injuries.

Father told Grandmother that if he were to get custody of Nicole, he wanted to make

sure that she had a relationship with Grandmother even if he had to conceal their

contact.

Father also testified that after Nicole was removed, Mother and her family

conspired to get Grandmother drunk in an attempt to get her to confess to causing

Nicole’s injuries. According to Father, Grandmother did not confess, and they left

her passed out on the floor of her closet.41

Father agreed that he had not kept Nicole safe.

40
Mother testified that she first started to suspect that Father could have caused
Nicole’s injuries when she found out about this phone call; she could not think of any
other reason he would even talk to Grandmother if he still suspected her of hurting
their child. Because he had been so in agreement with her that Grandmother had
caused the injuries, she had never suspected that he could have been responsible.

Grandmother thought she might have been drugged that night because she
41

had drunk only two alcoholic beverages.

41
c. Grandmother

When asked how she felt when hearing that Father had left Nicole alone with

Mother while she was experiencing such intense mental-health problems,

Grandmother said, “Terrified.” She did not think that the situation was a safe and

stable one for a newborn. Grandmother had not seen any red flags or mental-health

concerns when Mother was a child.

Grandmother denied that Nicole gave a big cry during the night. She agreed

that although it was not unusual to put Nicole on a pallet, it was the first time it had

ever been done at her house. Any other time the family had stayed over at

Grandmother’s, Nicole had slept in the living room with Mother. Grandmother

suspected that Nicole had already been injured when the family came over to her

apartment for the night. She found it odd that when they had gone to the gym,

Mother and Father had carried Nicole in and out in the Bumbo seat and never took

her out; they had never done that before.

4. Other Relevant Evidence

The trial court admitted into evidence a screenshot of Grandmother’s and

Mother’s text exchange on October 21, before Mother and Father took Nicole to

urgent care. At 3:49 p.m., Grandmother texted, “Hey y’all, check her legs to see if

they are warm because it felt like it earlier so y’all may wanna take her to Urgent care.

Just to be on the safe side.” Mother replied at 5:49 p.m.:

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Hey ma, we know you’re concerned for [Nicole] as well and I don’t want
to come off rude towards you or anything but I want you to give us
space to discuss as parents with one another what’s best for [Nicole] and
how to go about her care. We will ask you for advice and guidance
when we need it but just think about how frequently we get unsolicited
advice or suggestions when [Father] and I have already discussed, done
research, spoke to her pediatrician etc. from people on both sides of our
families. It’s not that you’re wrong but just trust that we got her. She’s
ours and we’ll ALWAYS do what’s best for her. If there’s something we
need from anyone we’ll ask.

Grandmother agreed that this language told her, “[e]ssentially, [to] back off.”

The caseworker testified that as she started to hear things that made her

suspect Mother was a victim of emotional and financial abuse, she also became

concerned about Mother’s living with Father even when they were supposedly no

longer in a romantic relationship. Specifically, she had heard “[s]tatements about him

booby trapping the house. Statements about him locking her out of her belongings.

Statements about sort of financial control as she would, like, pay rent for both her and

him. Statements of kind of intimidation of him losing his temper.” The caseworker

started becoming concerned about the anger.

Although Father’s service plan required him to participate in a Batterer’s

Intervention Protection Program (BIPP), he never attended such a program and

testified at trial that he did not think he needed to.42 He did complete an anger-

management course.

In his brief, Father claims––citing his own testimony––that the Department
42

wanted Father to complete this program because Mother pushed him. But the service

43
When asked if Mother had endangered Nicole, the caseworker answered,

“[S]he was aware, in her description of her relationship with [Father], about his

nature, his temper, his controlling. So she still continued to allow him to parent her

child.” She believed that Father had endangered Nicole because of the domestic

violence that had occurred, his knowledge of Mother’s mental-health issues, and the

fact that Nicole seemed to have been used as a tool in his and Mother’s arguments

even if they did not involve physical violence.

Mother finally told the CASA a few months before trial that she thought

Nicole’s legs might have been hurt before the family went to the pool. The CASA

explained why she did not think Grandmother had caused Nicole’s injuries:

But the small window of time in the last seven to ten days where
[Grandmother] was alone with [Nicole], both she and the parents have
said, at various points, that [Nicole] didn’t seem like herself before they
even got to [Grandmother’s] apartment. And [Grandmother] is the one
who first noticed something was wrong with [Nicole], in spite of not
being her parent, and urged the parents to go get medical treatment for
[her].

She -- I have gone back and looked at her interviews with the
police, with the hospital staff, with the CPS investigators. I’ve talked to
her about this as early as February of 2024. I’ve spoken with various
professionals involved in this case. Her story has remained the same,
whereas both parents’ stories ha[ve] changed significantly in almost every
aspect.

plan including BIPP as an item notes that Mother had accused Father of being
controlling and angry while they were still living together post-removal.

44
The CASA did not think Mother and Father took their services seriously and did not

think that they had been honest with their service providers, showing that they did

not want “to get as much out of the services as they possibly [could] to help their

child.”

The CASA testified that Father had FaceTimed Grandmother in December

2024 during one of his visits with Nicole. Father admitted this to the CASA, and he

told her that he had wanted to keep the Facetiming with Grandmother a secret from

OCOK. But even though the CASA thought Nicole was enjoying seeing

Grandmother, Father stopped the FaceTime calls when Grandmother filed her

petition in intervention.

Mother’s VA therapist testified that during the course of her treatment, it

became clear that Mother wanted to separate from Father and that it seemed like

there was emotional or psychological abuse going on.

E. ANALYSIS

No expert could say for sure who inflicted Nicole’s injuries, and Nicole’s

injuries were not externally visible. Neither Mother nor Father would admit injuring

Nicole, and for the better part of the case, they refused to admit that the other might

have been responsible, despite the fact that they both later admitted to instances of

domestic violence and discord in their relationship––which they had falsely painted as

45
supportive and free of strain.43 They gave no plausible explanation for how Nicole

had seven broken bones, including the theory that Grandmother had stepped on

Nicole.44 The caseworker and the CASA also suspected––from what Mother finally

started to tell them about her relationship with Father––that Mother was a victim of

financial and emotional abuse as well as possible physical abuse. See In re K.M.,

No. 02-18-00073-CV, 2018 WL 3288591, at *8 (Tex. App.––Fort Worth July 5, 2018,

pet. denied) (mem. op.) (concluding that continuing to live with violent partner, along

with child, shows failure to remove the child from a dangerous environment).

Despite this, Mother at best chose to doggedly cling to her belief that Grandmother

was a liar and manipulative and thus must have been lying about not having injured

Nicole––despite the fact that Grandmother had urged Mother and Father to take

Nicole to the doctor much earlier than they did.45 At worst, she and Father knew

43
It was for the jury to weigh the conflicting attempts to “point fingers at each
other and choose which evidence to credit.” See C.E., 687 S.W.3d at 310.
44
Mother argues in her brief that we have not and should not follow the
reasoning set forth in In re J.P.B., in which the Texas Supreme Court held that the jury
could have reasonably inferred that a child’s father endangered his infant son by
leaving him in the care of his mother when the child had repeated unexplained,
nonaccidental injuries for which the father had to take him to the emergency room.
180 S.W.3d 570, 573–74 (Tex. 2005). Because the Texas Supreme Court has recently
employed the same inference in a sufficiency review, we rely on that authority. See
C.E., 687 S.W.3d at 311 (stating that “neither Mother nor Father provided a plausible
explanation for [the child’s] injuries, which supports an inference that at least one of
them knew their cause”).
45
Father and Grandmother discussed in their recorded call that Mother thought
this text was indicative of Grandmother’s guilt––that she knew Nicole’s legs were

46
exactly how and when Nicole had been injured and chose to try to use Grandmother

as a scapegoat. The jury could have determined that neither Mother nor Father had

been appropriately protective of Nicole.

Moreover, the jury was entitled to consider Mother’s and Father’s conduct that

showed an awareness of an endangering environment. A.A., 2025 WL 2475157,

at *8. Instead of immediately taking Nicole to the doctor when she was obviously

injured and crying inconsolably, Mother and Father chose to take her home, apply

home remedies, and wait hours before taking her to the doctor. Regardless of the fact

that, according to Dr. Reeder, this conduct did not exacerbate Nicole’s injuries, it is

indicative of guilt––that they did not want the extent of her injuries to be discovered.

Father admitted lying to the caseworker and the CASA and even admitted lying under

oath; Mother withheld information from the Department about the seriousness of her

mental-health condition and her relationship with Father. See C.E., 687 S.W.3d

at 313–14; In re L.M.M., 522 S.W.3d 34, 44 (Tex. App.––Houston [1st Dist.] 2017,

pet. denied). Additionally, Mother and Father did not take their service plans and

placement rules seriously despite the fact that they each had considerable visitation

time with, and access to, Nicole. See In re K.J., No. 02-25-00093-CV, 2025 WL

1600219, at *6 (Tex. App.—Fort Worth June 5, 2025, pet. denied) (mem. op.).

injured because she is the person who injured them. But the jury could have placed a
different significance on this evidence––that Mother ignored Grandmother’s advice
because she knew how Nicole had been injured.

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Based on the foregoing, we conclude that the evidence is both legally and

factually sufficient to support the jury’s finding that Mother knowingly placed or

knowingly allowed Nicole to remain in conditions or surroundings which endangered

her physical or emotional well-being and legally sufficient to support the jury’s

findings that Father knowingly placed or knowingly allowed Nicole to remain in

conditions or surroundings which endangered her physical or emotional well-being

and engaged in conduct that endangered her physical or emotional well-being. We

overrule Mother’s first issue and the first part of Father’s first issue.

V. BEST INTEREST

In the second part of his first issue,46 Father contends that the evidence is

legally and factually insufficient to support the finding that termination of his parental

rights is in Nicole’s best interest. Because he did not preserve a factual-sufficiency

challenge, we address the legal sufficiency of the finding only.

A. APPLICABLE LAW

There is a strong presumption that keeping a child with a parent is in the child’s

best interest. In re R.R., 209 S.W.3d 112, 116 (Tex. 2006). We review the entire

46
Because we have held that the evidence is sufficient to support the jury’s
endangerment findings, we need not address Mother’s and Father’s second issues
related to the jury’s subsection (O) predicate-conduct findings. See In re K.J., No. 02-
25-00093-CV, 2025 WL 1600219, at *10 n.12 (Tex. App.—Fort Worth June 5, 2025,
pet. denied) (mem. op.). We also need not address Mother’s third issue challenging
the jury’s decision to award Grandmother sole managing conservatorship of Nicole
because it is brought in the alternative if we were to sustain her sufficiency challenge.
See Tex. R. App. P. 47.1.

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record to determine the child’s best interest. In re E.C.R., 402 S.W.3d 239, 250 (Tex.

2013). The same evidence may be probative of both a Subsection (b)(1) predicate

ground and best interest. Id. at 249; C.H., 89 S.W.3d at 28. Factors that the trier of

fact in a termination case may also use in determining the best interest of the child

include (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

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. Holley v. Adams,

544 S.W.2d 367, 371–72 (Tex. 1976); see E.C.R., 402 S.W.3d at 249 (stating that in

reviewing a best interest finding, “we consider, among other evidence, the Holley

factors”); E.N.C., 384 S.W.3d at 807. These factors are not exhaustive, and some

listed factors may not apply to some cases. C.H., 89 S.W.3d at 27. Furthermore,

undisputed evidence of just one factor may be sufficient to support a finding that

termination is in the child’s best interest. Id.

B. APPLICABLE FACTS AND ANALYSIS

We will group our analysis by each factor for ease of reference.

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1. Nicole’s Desires

Nicole was almost three years old at the time of trial and thus unable to express

her wishes. But she was bonded to Father, and he behaved appropriately with her at

observed visits. Nicole also had a large extended family on both Father’s and

Mother’s sides that stayed in contact.

Before Nicole was removed from her parents’ care, Grandmother saw her

daily. At the time of trial, Grandmother had not seen Nicole since she was in the

hospital; the Department had initially decided there was “reason to believe” that

she—along with Mother and Father––was responsible for Nicole’s injuries because

Grandmother had been with Nicole around the time her injuries were discovered and

because no one would give an adequate, plausible explanation for Nicole’s injuries.

After Grandmother appealed the Department’s determination, it changed the finding

as to her to “unable to determine.” The CASA implied that Nicole enjoyed seeing

Grandmother when Father FaceTimed her in December 2024.

2. Nicole’s Present and Future Needs and Parties’ Stability and Plans For Her

Nicole’s injuries had healed, and she was developmentally on track. She

participated in gymnastics and had not suffered any new broken bones.

Father testified that he had an apartment and a job. The caseworker thought

Father’s apartment was appropriate. But she was concerned that he had changed jobs

frequently throughout the case. Father planned to put Nicole in Montessori school

and, because he worked Friday through Sunday, he planned for his uncle––the same

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one with whom Nicole had initially been placed––to care for her on the weekends.

Father no longer planned to have 50/50 joint custody with Mother.

Grandmother had a full-time job with a steady income and worked from home,

setting her own schedule. Grandmother’s home study appeared appropriate to the

caseworker, but the Department had not placed Nicole with her because she was

“part of a timeline” during the period in which Nicole was injured. Grandmother

testified that she was able to meet Nicole’s needs and would provide her with a loving

and nurturing environment. Grandmother was not sure if she would allow Nicole to

have contact with any of the extended family.

The Department’s plan for Nicole was adoption by a nonrelative. Nicole’s

foster parents were bonded to her and wanted to adopt her. The CASA

recommended that the Department be named Nicole’s conservator but that Nicole

should be placed with Grandmother; Nicole’s ad litem argued that the jury should

name Grandmother managing conservator.

3. Parental Abilities of Those Seeking Custody

Nicole was Father’s only child. Father had taken parenting classes and,

according to the instructor, was very engaged and showed that he was learning. But

the caseworker did not think the parenting classes facilitated Father’s learning

protective measures to prevent what led to the injuries in the first place: “We were

still seeing the same parenting style[, and t]hey were very resistant to changing [it]

because they were very proud of their parenting style.” The caseworker did not

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believe that Father could identify a safe environment. Grandmother did not think

Father was mature enough at the time of trial to parent Nicole, nor did she think that

he would protect her from Mother.

Grandmother had raised two children––Mother and her brother––and had

cared for many children in her extended family, at church, and as a volunteer.

4. Danger to Child and Excuses for Acts and Omissions

The jury was entitled to give great weight to the evidence about Nicole’s

injuries, the nature of them, and the fact that Father showed a pattern of dishonesty

and an unwillingness to attend BIPP to try to address the concerns about his

relationship with Mother. See In re C.D.L., No. 04-23-00105-CV, 2024 WL 3349099,

at *12 (Tex. App.––San Antonio July 10, 2024, no pet.) (mem. op.). Mother and

Father never gave an adequate explanation for how Nicole got hurt. According to the

nonemergency investigator, Mother and Father were both aware when Nicole’s legs

were broken that she was in pain. Nevertheless, the caseworker thought that Mother

and Father considered themselves victims in the case and that Father had

“minimized” the seriousness of the impact on Nicole.

Instead of acting like a concerned parent trying to regain custody of his child,

Father lied under oath; refused to engage in meaningful therapy to confront the

circumstances leading to Nicole’s injuries until well into the case; failed to show an

appreciation of appropriate boundaries; failed to appreciate and help Mother attempt

to deal with her mental-health issues; and persisted in presenting a “united front” with

52
Mother in blaming Grandmother until his relationship with Mother had started to

unravel, at which point he tried to get Grandmother on his side under the guise of

blaming Mother.

Based on the foregoing, we conclude that the evidence is legally sufficient to

support the jury’s finding that terminating Father’s parent–child relationship with

Nicole was in her best interest. We overrule the remainder of Father’s first issue.

VI. JURY-CHARGE COMPLAINT

In his third issue, Father contends that the trial court’s refusal to include a

requested definition of “significant impairment” in the part of the jury charge

addressing parent access and conservatorship confused the jury and forced it to

choose termination over access. The requested definition was read into the record

during the charge conference:

Significant impairment must be proved by a preponderance of the
evidence indicating that some specific identifiable behavior or conduct
of the parent demonstrated by specific acts or omissions of the parent
will probably cause harm.

This link between the parent’s conduct and harm to the child may
not be based on evidence that raises mere surmise or speculation of
possible harm. The nonparent’s heavy burden is not satisfied by merely
showing that the nonparent would be a better custodian of the child and,
quote, close calls, end quote, should be decided in favor of the parent.

Acts or omissions that constitute significant impairment include,
but are not limited to, physical abuse, severe neglect, abandonment, drug
or alcohol abuse, or immoral behavior on the part of the parent. When
determining fitness of a parent, the material time to consider is the
present. Evidence of past misconduct may not, by itself, be sufficient to
show present unfitness . . . .

53
The charge asked the jury to answer the termination-related questions first and

contained separate, alternative conservatorship sections for it to answer depending on

its answers to the termination questions––Section Two only if it had answered yes to

the required termination questions and Section Three only if it did not answer yes to

all of the required termination questions. Father contends that the jury must have

been trying to choose between termination and some type of conservatorship or

parental access because it sent a note asking, “[C]an we get a legal definition of the

right to have physical possession?” But the “right to have physical possession” is

included in the Section Two that the jury was instructed to answer if it was trying to

decide between Grandmother and the Department as Nicole’s permanent managing

conservator. The term “significant impairment” is not used until Section Three,

which the jury was instructed not to answer if it had answered yes to the required

termination questions. We presume that the jury followed the trial court’s

instructions. See Credit Suisse AG v. Claymore Holdings, LLC, 610 S.W.3d 808, 827 (Tex.

2020). Nothing in the record indicates otherwise. Thus, even if the trial court had

erred by failing to include the requested definition, Father cannot show harm. See

Tex. R. App. P. 44.1(a)(1). We overrule Father’s third issue.

VII. CONCLUSION

Having overruled Mother’s and Father’s dispositive issues, we affirm the trial

court’s judgment.

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/s/ Brian Walker

Brian Walker
Justice

Delivered: October 27, 2025

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