In THE INTEREST OF C.E., a CHILD v. the State of Texas

Supreme Court of Texas
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No. 23-0180
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In the Interest of C.E., a Child

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On Petition for Review from the
Court of Appeals for the Second District of Texas
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PER CURIAM

B.K. (Mother) and C.E. (Father) are the parents of C.E. (“Carlo”). 1
Carlo’s skull was fractured when he was seven weeks old, and each
parent blamed the other. A jury made the findings necessary to
terminate Mother’s parental rights under Section 161.001(b)(1)(D), (E),
and (O) and Section 161.003 of the Texas Family Code, and the trial
court rendered judgment on the verdict. The court of appeals reversed
the termination, holding that each ground was unsupported by legally
sufficient evidence. Because we conclude there is legally sufficient
evidence Mother engaged in conduct that endangered Carlo’s well-being,
which supports termination under paragraph (E), we reverse the court

1 We use an alias to identify the child and persons through whom the

child could be identified, and we identify family members by their relationship
to the child. See TEX. FAM. CODE § 109.002(d); TEX. R. APP. P. 9.8(b)(2).
of appeals’ judgment and remand for further proceedings on Mother’s
remaining issues that the court of appeals did not address.

I

The Department of Family and Protective Services (DFPS) began
an investigation after Carlo, a seven-week-old infant, was hospitalized
with a fractured skull, a brain bleed, and retinal hemorrhaging on the
afternoon of February 25, 2021. Nurse Donna Wright, the pediatric
nurse practitioner who treated Carlo in the emergency room, indicated
that the injury to his skull required significant force—such as that
experienced in a major car accident or throwing an infant against a wall.
As no car accident or similar event had occurred, Nurse Wright and
Carlo’s hospital care team determined Carlo’s injuries were intentional.
The hospital therefore notified DFPS and local law enforcement about
Carlo’s injuries.
Carlo’s Mother and Father are veterinarians, and Father is also
a Doctor of Pharmacy. When Carlo was born, Mother was 38 years old
and Father was 45 years old. As the court of appeals recounted in detail,
they had a turbulent domestic relationship. ___ S.W.3d ___, 2023 WL
170762, at *3-11 (Tex. App.—Fort Worth Jan. 12, 2023).
Neither Mother nor Father could provide an explanation for the
injuries, and each blamed the other. Carlo’s only caregivers during the
relevant timeframe were Mother and Father, except for a brief period
when Carlo’s maternal grandfather (Grandfather) cared for him in a
public place.
Investigators were initially concerned that Father had physically
abused Carlo, but, as the investigation progressed, they concluded that

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it was likely Mother who had done so. Both the attorney ad litem and
the court appointed special advocate (CASA) representative for Carlo
recommended terminating Mother’s rights, and DFPS dropped the
termination ground it had alleged against Father at trial. Mother was
Carlo’s primary caregiver, and the timing of Carlo’s symptoms
suggested the injury was likely inflicted when Carlo was in her care.
This evidence, along with additional information such as Mother’s
behavior during the investigation, inability to answer questions
consistently, and relevant mental health indicators, ultimately led
DFPS to seek termination of Mother’s parental rights.
The case was tried to a jury, which heard eight days of testimony
from thirty-four witnesses. After deliberating, the jury made the
findings necessary to terminate Mother’s rights under Section
161.001(b)(1)(D), (E), and (O) and Section 161.003, and the trial court
signed a judgment of termination.
Mother appealed and the court of appeals reversed, holding that
there was legally insufficient evidence to terminate Mother’s rights on
each ground. See 2023 WL 170762, at *15-23. As to the Section
161.001(b)(1)(E) ground, the court was concerned with the possibility
that someone other than Mother could have caused Carlo’s injury, the
testimony of Nurse Wright as to the timing of the injury, and the lack of
causation evidence. See id. at *20-21. DFPS and Father filed petitions
for review in this Court.

II

We begin by addressing the correct standard and scope of our
review. To terminate parental rights, the factfinder must find by clear

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and convincing evidence that (1) at least one of the termination grounds
set forth in Section 161.001(b)(1) or other sections of the Texas Family
Code applies, and (2) termination is in the best interest of the child. In
re Z.N., 602 S.W.3d 541, 545 (Tex. 2020). Clear and convincing evidence
“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
§ 101.007.
When the standard of proof is clear and convincing evidence, an
appellate court reviewing the legal sufficiency of the evidence considers
“all evidence in the light most favorable to the finding to determine
whether a reasonable trier of fact could have formed a firm belief or
conviction that its finding was true.” In re J.F.C., 96 S.W.3d 256, 266
(Tex. 2002). Courts “must assume that the factfinder resolved disputed
facts in favor of its finding if a reasonable factfinder could do so,” but
courts “should disregard all evidence that a reasonable factfinder could
have disbelieved or found to have been incredible.” Id.
Here, the court of appeals was concerned that “the record shows
inconsistencies in the facts as to what symptoms developed, when they
developed, and how they were reported,” and it concluded that “[f]or
these reasons, the evidence is legally insufficient to find that Mother—
or any other specific person—caused Carlo’s injuries.” 2023 WL 170762,
at *21. Under the standard of review we have just described, however,
evidence is not legally insufficient merely due to inconsistencies or
disputes in the evidence.
Rather, a core function of the jury under any standard of proof—
including clear and convincing evidence—is to resolve conflicts in

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testimony, weigh evidence, and draw reasonable inferences from basic
facts to ultimate facts. Jackson v. Virginia, 443 U.S. 307, 319 (1979). In
doing so, juries may consider circumstantial evidence, weigh witness
credibility, and draw reasonable inferences from the evidence they
choose to believe. Benoit v. Wilson, 239 S.W.2d 792, 797 (Tex. 1951). A
reviewing court may not substitute its judgment for that of the jury. See
City of Keller v. Wilson, 168 S.W.3d 802, 819 (Tex. 2005) (“Jurors are the
sole judges of the credibility of the witnesses and the weight to give their
testimony. They may choose to believe one witness and disbelieve
another. Reviewing courts cannot impose their own opinions to the
contrary.”).
The court of appeals also misapplied the standard of review by
focusing on part of Nurse Wright’s testimony in isolation and concluding
that, according to that testimony, “the February 24-25 time frame for
Carlo’s injury is no more probable than any other time in the week before
he was seen in the ER on February 25, and it is equally likely that
something occurred before the two-day time period on which [DFPS]
focused at trial and in the investigation.” 2023 WL 170762, at *21. But
reviewing courts must “view each piece of circumstantial evidence, not
in isolation, but in light of all the known circumstances.” City of Keller,
168 S.W.3d at 813-14. As explained below, a holistic review of the
evidence paints a more complete picture of the disputed facts regarding
when Carlo’s injury occurred that a jury could have credited.
Turning to the proper scope of our review, we conclude that the
court of appeals erred in excluding Nurse Wright’s opinion testimony
regarding causation of Carlo’s injury. Mother did not object to Nurse

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Wright’s qualifications to provide such testimony in the trial court, nor
did she raise the issue in the court of appeals. As with challenges to the
reliability of expert testimony, a party wishing to complain that expert
testimony is legally insufficient to support the judgment because the
witness is not qualified must challenge the admission of the testimony
before trial or object when it is offered at trial. See Pike v. Tex. EMC
Mgmt., LLC, 610 S.W.3d 763, 786 (Tex. 2020); Nissan Motor Co. v.
Armstrong, 145 S.W.3d 131, 143-44 (Tex. 2004). 2 In addition, if the trial
court admits the testimony and the party wishes to challenge that ruling
on appeal, it must assign the ruling as error in its brief in the court of
appeals. See TEX. R. APP. P. 33.1(a); Brumley v. McDuff, 616 S.W.3d 826,
830 (Tex. 2021); Sw. Energy Prod. Co. v. Berry-Helfand, 491 S.W.3d 699,
726 (Tex. 2016). Because Mother did neither in this case, the court of
appeals should have considered all of Nurse Wright’s testimony. 3

2 This requirement “gives the proponent a fair opportunity to cure any

deficiencies and prevents trial and appeal by ambush.” Pike, 610 S.W.3d at
786.
3 In its erroneous review of Nurse Wright’s qualifications, the court of

appeals held that she was unqualified to provide testimony as to the probable
timeframe of Carlo’s injury because, as a registered nurse, she was “not
qualified to medically diagnose the causation of a patient’s injuries.” 2023 WL
170762, at *20. As this issue was not preserved, we do not reach the merits of
the court’s holding that Nurse Wright was not qualified to provide medical
causation testimony, but we note that some courts have concluded otherwise.
See Gregory v. State, 56 S.W.3d 164, 180-81 & n.12 (Tex. App.—Houston [14th
Dist.] 2001, pet. dism’d); cf. In re R.D., No. 02-21-00125-CV, 2021 WL 4204999,
at *2 (Tex. App.—Fort Worth Sept. 16, 2021, no pet.) (referencing testimony by
pediatric nurse practitioner, permitted by trial court, that child’s traumatic
brain injury “was caused by excessive blunt force trauma” and child’s death
“was caused by nonaccidental trauma most likely inflicted by Father ‘based on
the history that he gave [her]’”).

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III

Having thus defined our standard and scope of review, we
consider whether there was sufficient evidence to terminate Mother’s
parental rights. Under Section 161.001(b)(1)(E), a person’s parental
rights may be terminated if the person “engaged in conduct or knowingly
placed the child with persons who engaged in conduct which endangers
the physical or emotional well-being of the child.” TEX. FAM. CODE
§ 161.001(b)(1)(E). And under Section 161.001(b)(1)(D), parental rights
may be terminated if the person “knowingly allowed the child to remain
in conditions or surroundings which endanger the physical or emotional
well-being of the child.” Id. § 161.001(b)(1)(D).
Importantly, although paragraphs (D) and (E) require conduct
that places the child in danger or knowledge that conditions or other
persons place the child in danger, these paragraphs do not require that
endangering “conduct be directed at the child” or that the child “actually
suffer[] injury.” In re J.W., 645 S.W.3d 726, 748 (Tex. 2022) (internal
quotation marks omitted). Instead, termination under (D) requires that
the child’s environment is a source of endangerment, and the parent’s
conduct may create that dangerous environment. In re W.J.H., 111
S.W.3d 707, 715 (Tex. App.—Fort Worth 2003, pet. denied). And
termination under (E) requires that a parent’s conduct endanger the
child’s physical or emotional well-being. Proof that a parent specifically
caused an injury is not necessary. Tex. Dep’t of Hum. Servs. v. Boyd, 727
S.W.2d 531, 533 (Tex. 1987). A finding of endangerment is supported “if
the evidence . . . shows a course of conduct which has the effect of

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endangering the physical or emotional well-being of the child.” Id. at
534.
Here, the court of appeals reversed the jury’s termination of
Mother’s rights under the endangerment paragraphs because it
concluded there was insufficient evidence that Mother endangered Carlo
either by directly causing his injuries or due to her mental health. But
as just discussed, the paragraphs at issue do not require evidence that
Mother directly harmed Carlo. And applying the correct standard of
review to the entire record, we conclude there is legally sufficient
evidence that Mother engaged in conduct that endangered the physical
or emotional well-being of Carlo, which supports the jury’s finding under
paragraph (E).
As explained below, the evidence shows that only Mother and
Father were alone with Carlo in a nonpublic place during the relevant
window of time when Carlo’s injury could have occurred, Mother was the
primary caregiver while Father worked, and neither parent provided an
explanation for Carlo’s serious injuries. Both parents were medical
professionals, and the jury heard extensive testimony about the
turbulent nature of their relationship, which the court of appeals
recounted in detail. See 2023 WL 170762, at *3-11. Given this evidence,
it was within the jury’s province to determine that both parents’
inability to explain the violent injuries suffered by their baby was not
credible. See Benoit, 239 S.W.2d at 797. And it was for the jury to weigh
the parents’ conflicting attempts to point fingers at each other and
choose which evidence to credit. See id. We hold that circumstantial

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evidence the jury could have credited is legally sufficient to support the
inference that Mother was the person whose conduct endangered Carlo.
First, Carlo’s injuries likely occurred on the evening of
February 24. Nurse Wright initially opined that Carlo was injured
within a week before he was brought to the hospital on the afternoon of
February 25. She acknowledged that, because “everyone is different,” it
is impossible to say with certainty precisely when the injuries occurred
within that window due to the parents’ lack of explanation. But she
emphasized objective assessment, explaining:
The only things that we’re able to look at is to -- to look at
symptoms of what -- when a baby or a child is doing
something that is not normal for him. That -- that is when
we know that at some point around that time is when he
would have been injured.
Applying this methodology, Nurse Wright concluded that the injury
likely occurred on February 24.
The symptoms of Carlo’s head trauma included seizures,
vomiting, abnormal eating patterns, crying out in pain, irritability, and
abnormal fussiness. Nurse Wright testified that if the onset of
symptoms was Carlo’s fussiness, noted by both parents on the evening
of February 24, then that was likely when the injury occurred.
Nurse Wright also testified that Carlo presented at the
emergency room with swelling on the afternoon on February 25, but he
did not have swelling two hours earlier when he was seen by his
pediatrician. She explained that “swelling can occur within a matter of
minutes to hours, even to – it can even take a day.” This evidence also
makes it more likely that Carlo’s injuries happened within twenty-four
hours before he came to the emergency room.

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Second, Mother and Father were Carlo’s only caregivers during
this time, except for one short period of time in a public place, as shown
by Mother’s meticulous feeding log for Carlo. Mother kept this detailed
log, down to the individual hour, each day from January 6 to
February 24, 2021. The log included documentation of Carlo’s feeding,
bowel movements, and notations of where Mother nursed Carlo and for
how long. According to the log, the only documented times Carlo was
not in Mother’s care before he was hospitalized were when:
(1) Grandfather cared for Carlo on February 24 while Mother attended
a psychiatric appointment for approximately an hour; and (2) Father
cared for Carlo during the night of February 24 while Mother slept.
Grandfather testified that he did not injure Carlo, that Carlo acted
normally when he saw him, and that he was only with Carlo in public
places.
Third, neither Mother nor Father provided a plausible
explanation for Carlo’s injuries, which supports an inference that at
least one of them knew their cause. See In re L.M.M., 522 S.W.3d 34, 45
(Tex. App.—Houston [1st Dist.] 2017, no pet.) (explaining that primary
control of child combined with unexplained, nonaccidental fractures
supports reasonable inference that child’s caregivers knew of injuries
and their cause). Mother’s and Father’s stories about what happened
the evening of February 24 differed, and it was Father’s story that
remained most consistent.
Father testified that both Carlo and Mother were acting
abnormally when he arrived home around 7:15 p.m. Carlo was
“screaming, fussing” in an abnormal way, and Mother appeared more

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stressed than he had ever seen her and screamed at Father to get a
bottle for Carlo. Father consistently maintained that Carlo was
uncharacteristically “fussy” and “crying hysterically.” He explained that
Carlo would scream any time he was adjusted or moved: “As I was
sitting there, any time you moved just slightly, he -- he would jump.”
Father testified that Mother then tried to feed Carlo, but he did
not eat much. After Father ate dinner, he took Carlo to try to soothe
him. Father talked with Mother for “about an hour,” and she kept
repeating, “I’m afraid you’re going to take the baby from me.” Father
described Mother as “just kind of absent.” Mother declined needing to
go to the hospital and said she was “just tired,” and at one point she
abruptly started talking about going to the “Swiss Alps and be[ing]
pulled in a sled by horses in the snow.” Mother agreed to go to sleep
between 10:00 and 10:30 p.m. Carlo slept on Father’s chest during that
time, and Mother woke up at 2:30 a.m. and took Carlo from Father.
Mother’s position regarding when Carlo started acting
abnormally has not been consistent. Mother told Nurse Wright that she
had come home around 4:30 p.m. and Father came home around the
same time. Mother also told her that Carlo had been a little fussy
around 7:00 p.m., and the feeding log noted she had fed him at 6:30;
Mother told a caseworker that Carlo had begun getting fussy around
6:30 or 7:00 p.m.
Dr. Shannon Lee Watts, Carlo’s pediatrician, testified that
Mother told her Carlo “became more fussy than usual” between 7:00 to
9:00 that evening. Mother told the jury that she only noticed Carlo’s
fussiness around 8:00 or 8:30 p.m. But Mother told a friend while at the

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hospital that she saw Father holding a crying Carlo around midnight on
February 24, then heard a “bloodcurdling scream,” and thereafter Carlo
“was having issues with his head.” And Mother also told the jury that
on the night of February 24 into the early morning of February 25, Carlo
suddenly became “fussy” and began strangely vomiting.
Mother disputed that she and Father had any disagreement
about the bottle or that she was angry. Instead, Mother testified that
Father was angry and the disagreement was about the cohabitation
agreement he gave her that night, as it was an agreement used when
the relationship is ending—which was not what she expected. When
Mother said she would not sign the cohabitation agreement, Father
became “very irritated,” raised his voice, and told her, “No, you’re going
to sign that. It’s non-negotiable.”
Mother told the jury she went to bed around 10:00 p.m. and got
up around 1:30 a.m., at which point Carlo was getting fussy again, as he
vomited after being fed and was hard to settle down. Father woke up
again around 4:30 a.m. so Mother could sleep more, Mother woke up
again at 6:30, and Father then left for work by 7:15. Carlo’s fussiness
continued throughout the morning of February 25, and Mother took
Carlo to Dr. Watts at 2:00 p.m. after noticing Carlo’s leg was twitching.
Dr. Watts was very concerned that Carlo could be having a seizure and
advised Mother to take him to the emergency room, at which point
Carlo’s skull fractures were discovered.
Fourth, Carlo’s injuries were severe and very likely intentional.
Carlo was hospitalized for eleven days. His retinas were actively
hemorrhaging, his brain bleeding was so severe that he was placed in

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the pediatric critical care unit, and it was unclear if he would survive or
live a normal life if he recovered.
The jury heard extensive evidence that the injuries were
intentional. They were the result of significant force, such as that from
a serious car accident (which had not occurred) or from throwing Carlo
against a wall. Nurse Wright performed tests to rule out bleeding,
metabolic, and genetic disorders that could have caused Carlo’s brain to
deteriorate or degenerate. She also consulted peer-reviewed research,
including a meta-study examining hundreds of research articles and
literature on short falls and the significance of brain trauma. Carlo’s
brain hemorrhaging resulted from vessels that tore with significant
force due to the acceleration and deceleration of the brain, and Nurse
Wright gave the example of a car accident as illustrative of such
movement. The retinal hemorrhaging in Carlo’s eye was consistent with
a “very high fall or shaking -- or a baby being hit by something or thrown
into something.” Nurse Wright explained that if the injury was
unintentional or the result of some other less culpable explanation, that
information would have very likely been shared with DFPS by Mother
or Father. As she explained, “[h]is injuries were only to his head, so if
-- if they are not an accident, then it’s intentional or abuse.”
Fifth, Mother made inconsistent statements throughout the
DFPS investigation. A caseworker observed that Mother was unable to
recollect any facts out of sequence without referring to her notes. DFPS
investigators explained that they employed a technique of asking
questions out of order, which makes it more difficult to maintain a
coherent, false narrative. One investigator testified that when “we

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asked about something specific the day prior or out of any kind of order,
she -- she couldn’t answer.” Mother did not initially mention the
“bloodcurdling scream” to Dr. Watts. When asked about the
inconsistency, Mother stated that she didn’t think the scream was
important to mention earlier. Mother spoke about Carlo’s injuries being
caused by “specific, blunt trauma,” then immediately thereafter
mentioned a 10:30 p.m. “bloodcurdling scream” and said that “Father
was sitting on the couch holding [Carlo].”
Mother also indicated that Father was responsible for Carlo’s
injuries, but with little supporting information. Mother told
investigators that Father “attacked the child,” that she “was held
hostage,” and that “she escaped.” But when investigators asked for more
details about how Father attacked the child, Mother could not provide
any further information. At trial, Mother testified, “I did not cause these
injuries and I know that [Father] did,” and “I know that he hurt my baby
. . . [b]ecause I didn’t hurt my baby.” Mother never provided more
support for her contention that Father injured the child. Mother also
accused DFPS, law enforcement, and others she interacted with of bias
and tampering with evidence.
Sixth, DFPS caseworkers and other investigators expressed
concerns regarding Mother’s behavior during the investigation and
around Carlo. Special Investigator Brandi Dees testified that Mother
asked, unprompted, during an interview, “Well, could [Carlo] have been
dropped on a tile floor?” But Mother denied dropping or injuring him in
any way. Officer George Zamarron testified that Mother appeared
surprised by the seriousness of the fractures and that when he and

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investigator Holly Mizer interviewed Mother on March 1, Mother
“lacked emotion . . . no crying, no pleading as to how the injury
happened or who could have done it.”
During visits with Carlo, DFPS caseworkers observed Mother
acting inappropriately with Carlo given his injuries, as well as her
refusal to receive advice about how to care for Carlo with those injuries.
Mother appeared to fixate on Carlo’s head, often putting headbands,
hats, and rabbit ears on his head to take photos despite his severe brain
injuries. Mizer testified that Mother was inappropriately rough with
Carlo given his injuries, “tickling and kind of digging on him.” CASA
representative and Carlo’s guardian ad litem, Becky Bollinger, testified
that Mother appeared to lack the ability to soothe Carlo and refused to
take advice. Jada Green, permanency specialist, noted that Mother
talked over a required education video discussing how to soothe a baby
and coping skills to prevent injuring a child, wanting to discuss “a
shaken baby case that she was familiar with.” Mother would frequently
express disagreement with Green’s written record of her visits with
Carlo, writing things in a space for parent feedback so that the record
“c[a]me across as two different visits.”
Bollinger testified that Carlo exhibited a strong and persistent
“fear response” during Mother’s visits. His whole demeanor was
different with Mother than with anybody else, as he tried to push
Mother away, would cry hysterically for long periods of time, and started
throwing things in anger during her visits. Once Carlo became mobile,
he would run or crawl away to hide in a corner and beat his head against
the wall.

15
In contrast, Mizer described Father as “emotional” during visits
with Carlo—he would see the baby and start tearing up. Mizer also
testified that Father would get on the floor with Carlo and engage with
him appropriately and that he asked a lot of questions about Carlo’s
health and his medical treatment. Maggie Ray, a permanency
specialist, testified that “[Father] has shown that he can . . . work
collaboratively with professionals, that he acknowledges that [Mother]
may be a danger in the future to his child and that he is going to take
steps to make sure that [Carlo] is safe in the future.”
Seventh, we note that Mother has a history of mental health
issues that the jury could have viewed as relevant to Carlo’s injuries.
Mother had been voluntarily hospitalized in the past, and she
commented to her psychiatrist on the morning of February 24 that she
felt she was “going into crisis.” We emphasize that mental health
conditions, standing alone, are not sufficient to show endangerment, and
the party seeking termination must show actual endangering conduct.
See, e.g., In re S.R., 452 S.W.3d 351, 363 (Tex. App.—Houston [14th
Dist.] 2014, pet. denied) (Busby, J.); Carter v. Dall. County Child Welfare
Unit, 532 S.W.2d 140, 141-42 (Tex. Civ. App.—Dallas 1975, no writ).
But a parent’s mental instability may contribute to a finding that the
parent engaged in a course of conduct that endangered a child’s physical
or emotional well-being. See In re S.R., 452 S.W.3d at 363-65; Carter,
532 S.W.2d at 141-42; Jordan v. Dossey, 325 S.W.3d 700, 724 (Tex.
App.—Houston [1st Dist.] 2010, pet. denied).
* * *

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We conclude that this evidence, taken together, is legally
sufficient to support the jury’s finding that Mother engaged in conduct
that endangered the physical or emotional well-being of Carlo. See TEX.
FAM. CODE § 161.001(b)(1)(E). The jury, as the sole arbiters of the
credibility of the witnesses and the weight to give to their testimony,
was entitled to choose to believe one witness and disbelieve another with
respect to the disputed facts of this case. Under the governing standard
of review, courts must defer to the jury’s resolution of these disputes.
Having found sufficient evidence to uphold the termination of Mother’s
parental rights under paragraph (E), we need not address paragraph
(D).
Accordingly, without hearing oral argument, see TEX. R. APP. P.
59.1, we grant DFPS’s and Father’s petitions for review, reverse the
judgment of the court of appeals, and remand for further proceedings on
Mother’s remaining issues that the court of appeals did not address.

OPINION DELIVERED: March 1, 2024

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