in the Interest of J.D., a Child , 2014 Tex. App. LEXIS 6218 ( 2014 )

Affirmed and Opinion filed June 10, 2014.
In The
Fourteenth Court of Appeals
NO. 14-14-00076-CV
IN THE INTEREST OF J.D., A CHILD
On Appeal from the 306th District Court
Galveston County, Texas
Trial Court Cause No. 12-CP-0079
OPINION
Appellant, W.D. (the Mother), appeals from the trial court’s judgment
terminating her parental rights to her daughter, J.D. (the Child). In three issues, the
Mother challenges the sufficiency of the evidence to support the trial court’s
termination findings under Chapter 161 of the Texas Family Code. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
On December 6, 2012, the Texas Department of Family and Protective
Services of Galveston County (the Department) filed its Original Petition for
Protection of a Child, for Conservatorship, and for Termination in Suit Affecting
Parent-Child Relationship, requesting to terminate the parental rights of the Child’s
parents. According to the testimony of the Department’s investigative caseworker,
Andi Tavarez, the Department received a referral on December 4, 2012, alleging
physical abuse of the Child, who was then two months old.1 The Child had been
admitted to the hospital, University of Texas Medical Branch at Galveston,
because she suffered a broken left arm while in the Mother’s care. Further testing
revealed that the Child had also suffered a fracture to the end of her thigh bone
approximately two weeks before the broken arm. Testing also showed possible rib
injuries, referred to as “cupping.” Tavarez stated that the Child was hospitalized
for three to four days and required a cast on both her arm and leg before being
discharged.
Tavarez interviewed the Mother at the hospital and testified that the Mother
initially stated she did not know how the Child was injured. The Mother was the
Child’s only caregiver at the time the fractures occurred. After further questioning,
the Mother stated that her five-year-old daughter (the Sister) may have injured the
Child. The Mother stated that only she, the Child, and the Sister were home the
night she discovered the baby’s injured arm. The Mother explained the Child was
in a swing in the living room and the Sister was on the couch nearby when the
Mother went into the adjoining kitchen to prepare a bottle. The Mother stated she
heard the Child make a small noise like a little grunt, but she did not cry or scream.
The Sister said she did not touch the Child. When the Mother returned to the living
room a short time later, the Child was “crooked” or “slanted” in the swing.
According to the Mother, the Sister later stated she tried to take the Child out of the
swing.
The Mother told Tavarez that the night she brought the Child to the hospital,
she allowed her to remain sleeping in the swing until her next feeding because the
1
The record reflects the Child was born September 18, 2012.
2
Child was not crying and the Mother did not know anything was wrong. Tavarez
stated that the Mother told her that when she picked up the Child to feed her, she
noticed her arm “didn’t look right” and was “flimsy and soft,” and she took her to
the hospital in the early morning hours.
After learning that the Child had suffered a prior injury, Tavarez again
interviewed the Mother, who stated she did not know how the Child suffered the
leg fracture. The Mother later claimed as a possible explanation that she once
heard the Child make a noise in the back seat of the car when the Sister was with
her, and that the Sister had once tried to take the Child out of a bassinette.
The Child’s medical records described her arm fracture as a “complete
transverse left sided humeral fracture” and her broken leg as “[s]ubacute
metaphyseal corner fractures of the left distal femur.” Tavarez discussed the
Child’s injuries with one of the treating physicians, Dr. Susan Gerik, who believed
the injuries could not have been accidental and the Child would have screamed in
pain when her arm was broken. Gerik also was of the opinion that the Mother’s
five-year-old daughter was not capable of causing the injuries. The Child’s medical
records also include the doctor’s assessment that given the Child’s age and the type
of fracture, “there is high concern for abuse.” The records reflect that a social
worker and CPS were contacted for further investigation. The records state,
“Further evaluation reveals distal femur fracture (L) approximately 10-14 days old
and possible rib fractures. CPS and law enforcement arrived and interviewed
mother of the patient.” The records additionally reflect that an ophthalmologist was
consulted to rule out retinal hemorrhages caused by shaking. The retinal tests were
negative.
Tavarez also interviewed Dr. Kwabena Sarpong, a child abuse expert at the
hospital. Sarpong examined the Child, obtained a history from the Mother, and
explained the Child’s injuries to the Mother. Sarpong’s report reflects the Mother
3
told him she “mostly” lived alone with the Child; the Sister and an older brother
spent most of their time with grandparents, and the Child’s father is not involved in
her life. Sarpong’s report also reflects that the Mother told him that she was in the
kitchen when the Sister told her she had put a bottle in the baby’s mouth and the
baby began choking. The Sister then picked the Child up by her arm, but the
Mother did not hear the Child cry. The Mother told him the Sister is “jealous of her
baby sister and tries also to play with her like a doll.” Sarpong’s report included his
opinion that the Child suffered physical abuse on more than one occasion.
Tavarez additionally testified that upon consideration of the physicians’
assessments, the medical evidence, the Mother’s statements, and other information
from its investigation, the Department concluded that the Child’s injuries were
consistent with physical abuse. As a result, the Department removed the Child
from the Mother’s care and sought temporary custody.2 In its temporary order, the
trial court found “aggravated circumstances.”3 The Mother initially was granted
limited supervised visitation, but the following month, at the attorney and guardian
ad litem’s request, the Mother was not permitted to visit the Child without an order
from the court.
The case proceeded to trial before the court in December 2013. At trial, in
addition to Tavarez, the primary witnesses were the Mother, Dr. Sarpong, and the
2
The record reflects that on December 20, 2012, the Regional Attorney for the Texas
Department of Family and Protective Services was substituted as counsel for the Department in
place of the Galveston County Criminal District Attorney’s Office. The Mother’s counsel argued
at trial that the Mother was not treated fairly because the Child’s foster mother was an attorney
employed by the Galveston County District Attorney. The Mother has not raised this complaint
in an issue on appeal.
3
Texas Family Code Section 262.2015 authorizes the trial court to waive the requirement
of a service plan and the requirement to make reasonable efforts to return the child to the parent
if the parent has subjected the child to “aggravated circumstances.” Tex. Fam. Code §
262.2015(a). The court may find aggravated circumstances if, among other things, the child is a
victim of serious bodily injury inflicted by a parent or a parent has engaged in conduct that
would constitute injury to a child under Section 22.04 of the Texas Penal Code. Id. §
262.2015(b)(2), (3)(H). The Mother has not raised an issue challenging this finding on appeal.
4
Sister, who was then age six.
The Mother testified that between the Child’s birth in September 2012 and
the baby’s December 2012 hospitalization, only she, the Sister, and the Child lived
at her apartment. Tavarez testified that the Mother told her a male friend visited her
the night of the injury after the Child and the Sister were asleep. The Mother told
Tavarez that the male friend does not hold or pick up the Child. Tavarez testified
the Mother also said she visited another friend and her mother and brother visited
her shortly before the Child’s injuries were discovered. The Mother acknowledged
that none of these individuals were alone with the Child during the time that her
injuries occurred.
At trial, the Mother claimed for the first time that on Thanksgiving,
November 22, 2012, the Child spent the night with the Mother’s mother (the
Grandmother), and that was the only time the child had been out of the Mother’s
sight. The Grandmother confirmed in her testimony that she kept the Child the
night before Thanksgiving so that the Mother could go to a party. She did not
notice any problem with the Child’s leg and the Child was not cranky or fussy. The
Mother stated that when she picked up the Child the next day, she was “normal”
and “just basically herself.” The Mother never claimed the Grandmother had
injured the Child. When asked if she had told the Department that the Child spent
Thanksgiving night at the Grandmother’s house, the Mother replied, “They never
asked.” The Grandmother denied that she injured the Child and stated she did not
see anyone else do so.
The Mother testified that she first noticed the injury to the Child’s arm
between 12:00 and 1:00 in the morning of the day she took her to the emergency
room. The Mother stated that when the child began to wake up in her swing, “I
noticed that when I bent to pick her up her arm just like flopped down.” The
Mother testified that when she moved the Child before taking her to the hospital,
5
she did not cry or yell. She admitted, however, that she saw the Child cry and yell
at the emergency room when her arm was examined.
The Mother testified that she learned the Child’s arm was broken when the
doctor at the emergency room told her and showed her the child’s x-rays. When
asked whether she told the doctor if she knew how the Child’s arm was broken, the
Mother stated, “Basically when he showed me I was just like I was lost for words.
I was like—I asked him how could this have happened.” The Mother also testified
that she did not know about the Child’s healing leg fracture or possible rib injury
before the Child’s hospitalization. The Mother denied telling Dr. Sarpong her
theory that her five-year-old daughter might have accidentally injured the Child.
The Mother conceded, however, that Sarpong said the Child’s broken arm could
not have been caused by a five-year-old. The Mother stated Sarpong told her that
an adult “would have had to have stepped on [the Child’s] arm.”
The Mother testified that she had taken the Child to the doctor for her two-
month checkup and immunizations on November 26, 2012, eight days before the
Child was hospitalized. She claimed that the doctor moved the Child’s legs to
determine that her hips had the full range of motion and found her normal. The
Mother also stated that the Child did not cry during the examination. The Mother
claimed that she asked Sarpong if the healing injuries would have been seen during
the Child’s recent check-up, and Sarpong told her the Child would have cried at
that examination. The Mother also testified that Sarpong told her that only “shaken
baby syndrome” could have caused the Child’s leg fracture.
Dr. Sarpong testified about his examination of the Child’s injuries. He is a
board certified pediatrician, professor and Medical Director of the Pediatrics
Clinics at the University of Texas Medical Branch in Galveston, Director of the
ABC Center for Child Abuse Services, and a consultant for Texas State Forensic
Assessment Center. Sarpong testified that he reviewed the Child’s x-rays with the
6
radiologist, Dr. Leonard Swischuk. The Child suffered a broken bone in the upper
part of her left arm and a fracture to the end of her left thigh bone. He related that
at the time of the bone survey, the radiologist stated that the child’s leg fracture
was approximately two weeks old. Sarpong additionally stated that the radiologist
found that the Child may also have a “cupping to the ribs” injury, but Sarpong did
not see a rib injury on the x-rays and did not include the possible rib injury in his
report. He testified to his opinion, which was included in the medical records and
stated:
The history that mother gave is not consistent with the injuries
sustained. In my opinion, the injuries the child has sustained are
consistent with inflicted injuries and child physical abuse that
occurred on more than one occasion. This is based on the type of
fractures and the varying ages of the fractures.
When asked directly whether “[s]omeone intentionally caused the fractured arm
and leg,” Sarpong replied, “Yes, sir.” He stated it is highly unusual for a two-
month-old to have these injuries, and except for a car accident or similar
occurrence, the injuries could not be caused accidentally.
Sarpong further explained that when a child comes in with a fractured arm
like the Child suffered and abuse is suspected, a “full bone x-ray” is performed
because some fractures, like that to the Child’s leg, are very difficult to find on
examination. He testified that “it is very difficult to fracture that part of the bone”;
to do so, requires “vigorous shaking.” Sarpong also testified that because it is very
difficult to break the tip of the bone, normally it is “chipped,” which is “very
classic certainly in textbooks for child abuse.” He explained that such chips,
“classic metaphyseal fractures[,] cannot be seen by anybody with a naked eye.”
Because of this, he testified that “[i]t would not be unusual” for the Child’s doctor
not to notice such a leg fracture while performing a wellness check and giving
shots a few days before the child came in with a broken arm. Sarpong testified that
7
“normally the kids might cry the first few days, and when the healing process starts
they don’t—we might not find it.”
Sarpong testified that at the time he examined the Child, there was no
suspicion of any congenital issues regarding the fractures. The Mother testified at
trial that when she was born, she (the Mother) had two broken legs. She conceded
that during the days the Child was in the hospital, the Mother did not tell the
doctors about her history or that the Child may have a bone disorder, such as brittle
bones. Another Department caseworker, Abbey Ransom, testified that in May
2013, the trial court ordered the Child tested for osteogenesis imperfecta. Dr.
Sarpong described osteogenesis as a genetic condition that predisposes children to
have multiple fractures. The test was negative for genetic mutations, and the Child
required no follow-up testing or treatment for any bone disorder. The Child
suffered no more broken bones or other injuries after her removal to foster care.
Sarpong testified that he said the leg fracture required “excessive force”,
either “vigorous shaking or the kid was put into some form of machine that shook
the leg.” Sarpong further stated that the “leg is definitively an abusive injury”
unless the two-month-old child had been put in an instrument that shook that part
of the leg or had been in a “very high velocity accident.” He explained that to
cause the transverse fracture to the Child’s arm required either a “direct impact” or
a “forceful break.” He testified that the arm injury was caused by a “major amount
of force,” and a high percentage of children would scream in pain because “That’s
a lot of force, a lot of pain.” When asked, “Is a 5-year-old capable of producing
these injuries, Sarpong answered, “No.” On cross-examination, the doctor
acknowledged that hypothetically, it would be possible for the break to have
occurred if a 50-pound bag fell on the Child.
The Sister also testified. After some initial questions, the court stated its
satisfaction that the six-year-old Sister understood the difference between the truth
8
and a lie. When asked what happened to the Child, she answered, “I broke her
arm.” The Sister initially said “I pushed it” or “hit” it “once,” and that the Child
cried until the Mother came out of the bathroom. She also said that she took the
Child out of the swing that night and “accidentally dropped her.” The Sister
answered “No,” after the Mother’s counsel asked, “And did something else happen
after you dropped her?” Counsel then asked, “Did you fall on her?” and the Sister
answered, “Yes.” The Sister said she then put the Child back in the swing and that
the Child was crying when the Mother came back into the room. The Sister
explained that she did not tell the forensic interviewer that she broke the Child’s
arm because she was afraid something bad would happen to her mother.4 She was
afraid her mother would go to jail, and her mother had been in jail before.
After the conclusion of the trial, the court found by clear and convincing
evidence that termination of the Mother’s parental rights is in the best interest of
the Child. See Tex. Fam. Code § 161.001(2). The court also found clear and
convincing evidence that the Mother engaged in the following conduct as grounds
for termination, as set out in its decree of termination signed January 3, 2014:
1. The Mother knowingly placed or knowingly allowed the child to
remain in conditions or surroundings which endanger the physical or
emotional well-being of the child, pursuant to § 161.001(1)(D), Texas
Family Code; and
2. The Mother 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, pursuant to § 161.001(1)(E), Texas
Family Code.
See Tex. Fam. Code § 161.001(1)(D), (E). The court appointed the Department as
4
In rebuttal, the Department played the compact disc of the Sister’s forensic interview at
the Galveston County Children’s Advocacy Center; however, the audio was too weak for the
trial court to hear the child and the interview was not transcribed.
9
the Child’s permanent managing conservator. This appeal followed. 5
II. BURDEN OF PROOF AND STANDARD OF REVIEW
Involuntary termination of parental rights is a serious matter implicating
fundamental constitutional rights. Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985);
In re D.R.A., 374 S.W.3d 528, 531 (Tex. App.—Houston [14th Dist.] 2012, no
pet.). Although parental rights are of constitutional magnitude, they are not
absolute. In re C.H., 89 S.W.3d 17, 26 (Tex. 2002) (“Just as it is imperative for
courts to recognize the constitutional underpinnings of the parent-child
relationship, it is also essential that emotional and physical interests of the child
not be sacrificed merely to preserve that right.”).
Due to the severity and permanency of the termination of parental rights, the
burden of proof at trial is heightened to the clear and convincing standard. See Tex.
Fam. Code § 161.001; In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002). “Clear and
convincing evidence” means “the measure or degree of proof that 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; accord In re
J.F.C., 96 S.W.3d at 264. While proof by clear and convincing evidence must be
more than merely the greater weight of the credible evidence, there is no
requirement that the evidence be unequivocal or undisputed. See R.H. v. Tex. Dep’t
of Fam. & Protective Servs., ____ S.W.3d ____, 2013 WL 1281775, at *5 (Tex.
App.—El Paso 2013, no pet.). This heightened burden of proof results in a
heightened standard of review. In re C.M.C., 273 S.W.3d 862, 873 (Tex. App.—
Houston [14th Dist.] 2008, no pet.).
When determining legal sufficiency, we review “all the evidence in the light
most favorable to the court’s finding to determine whether a reasonable trier of fact
5
The father’s parental rights were also terminated and he has not appealed.
10
could have formed a firm belief or conviction that its finding was true.” In re
J.F.C., 96 S.W.3d at 266. To give appropriate deference to the fact finder’s
conclusions, we must assume that the fact finder resolved disputed facts in favor of
its finding if a reasonable fact finder could do so. Id. We disregard all evidence that
a reasonable fact finder could have disbelieved or found to have been incredible.
Id. However, this does not mean that we must disregard all evidence that does not
support the finding. Id. Because of the heightened standard, we must also be
mindful of any undisputed evidence contrary to the finding and consider that
evidence in our analysis. Id.
When reviewing a factual sufficiency challenge under the clear and
convincing burden, the analysis is somewhat different in that we must consider all
of the evidence equally, both disputed and undisputed. Id. In reviewing the
evidence for factual sufficiency, we give due deference to the fact finder’s
findings; we cannot substitute our own judgment for that of the fact finder. In re
H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). The fact finder is the sole arbiter when
assessing the credibility and demeanor of witnesses. Id. at 109. We are not to
“second-guess the trial court’s resolution of a factual dispute by relying on
evidence that is either disputed or that the court could easily have rejected as not
credible.” In re L.M.I., 119 S.W.3d 707, 712 (Tex. 2003) (explaining that in a
termination case, an appellate court should not reweigh disputed evidence or
evidence that depends on a witness’s credibility). We must consider whether the
evidence is sufficient to produce in the mind of the fact finder a firm belief or
conviction as to the truth of the allegation sought to be established. In re C.H., 89
S.W.3d at 26. We consider whether disputed evidence is such that a reasonable fact
finder could not have resolved that disputed evidence in favor of its finding. In re
J.F.C., 96 S.W.3d at 266. “If, in light of the entire record, the disputed evidence
that a reasonable fact finder could not have credited in favor of the finding is so
11
significant that a fact finder could not reasonably have formed a firm belief or
conviction, then the evidence is factually insufficient.” Id.
In a proceeding to terminate the parent-child relationship brought under
section 161.001 of the Texas Family Code, the Department must establish, by clear
and convincing evidence, one or more acts or omissions enumerated under
subsection (1) of section 161.001 and that termination is in the best interest of the
child under subsection (2). Tex. Fam. Code § 161.001; In re J.L., 163 S.W.3d 79,
84 (Tex. 2005).
III. ANALYSIS
In three issues, the Mother argues the evidence is legally and factually
insufficient to support the trial court’s findings that (1) she knowingly placed or
knowingly allowed the Child to remain in conditions or surroundings which
endangered her physical or emotional well-being; (2) she engaged in conduct or
knowingly placed the Child with persons who engaged in conduct that endangered
her physical or emotional well-being; and (3) termination was in the best interest of
the Child. See Tex. Fam. Code §§ 161.001(1)(D), (E), and 161.001(2).
A. ENDANGERMENT
We now address the Mother’s first two issues and review the evidence
supporting the trial court’s findings under Section 161.001(1). Both subsections D
and E use the term “endanger.” In this context, endanger means to expose to loss or
injury, or to jeopardize a child’s emotional or physical health. In re M.C., 917
S.W.2d 268, 269 (Tex. 1996); A.S. v. Tex. Dep’t of Fam. & Prot. Servs., 394
S.W.3d 703, 711 (Tex. App.—El Paso 2012, no pet.). Subsection D concerns the
child’s living environment, rather than the parent’s conduct, though parental
conduct is certainly relevant to the child’s environment. In re J.T.G., 121 S.W.3d
117, 125 (Tex. App.—Fort Worth 2003, no pet.). Although the parent need not
12
have certain knowledge that an actual injury is occurring, the parent must at least
be aware of the potential for danger to the child in such an environment and must
have disregarded that risk. In re A.S., 261 S.W.3d 76, 83 (Tex. App.—Houston
[14th Dist.] 2008, pet. denied). Under subsection E, the cause of the endangerment
must be the direct result of the parent’s conduct, including acts, omissions, and
failures to act, and the requirements of the subsection may be satisfied by showing
the parent engaged in a course of conduct that endangered the child’s physical or
emotional well-being. In re U.P., 105 S.W.3d 222, 233 (Tex. App.—Houston [14th
Dist.] 2003, pet. denied). Because the evidence pertaining to subsections D and E
is interrelated, we may conduct a consolidated review. See In re M.C.T., 250
S.W.3d 161, 169 (Tex. App.—Fort Worth 2008, no pet.).
The Department provided expert testimony to show that the Child’s injuries
were intentionally inflicted and they are consistent with physical abuse having
occurred on more than one occasion. The medical records show two fractures
inflicted at different times. The expert testimony further established that a five-
year-old could not have caused the injuries. In addition, subsequent testing ruled
out a genetic bone disorder. A child’s unexplained, non-accidental fractures of
various ages support a reasonable inference that the child’s caregivers knew of the
injuries and their cause, and supports termination under subsection D. In re J.P.B.,
180 S.W.3d 570, 574 (Tex. 2005); see also C.H. v. Tex. Dep’t. of Fam. & Prot.
Servs., 389 S.W.3d 534, 541 (Tex. App.—El Paso 2012, no pet.) (finding sufficient
evidence under subsection D where child’s broken bones were not explained).
The evidence in the record is that the Mother was the Child’s sole caregiver.
The Mother herself testified the Child was never out of her care. Other evidence
reflects that the Mother was generally alone with the Child, and that the Sister and
a brother stayed with their grandparents most of the time. The evidence also
reflects that only the Mother and the Sister were present during the time-frame the
13
arm injury occurred. When interviewed at the hospital, the Mother explained that
only she, the Child, and the Sister were home the night she discovered the baby’s
injured arm.
The Department’s conservatorship caseworker, Ms. Ransom, testified that
she was assigned the case in January 2013. She testified she spoke to the Mother
once a month during the pendency of the case and continued to ask her if anyone
else could have injured the Child. The Mother did not identify anyone other than
her five-year-old who could have caused the injuries. The Mother never told
Ransom that she had left the Child with her mother on Thanksgiving, as the
Mother had claimed in her trial testimony.
The Mother’s description of the events surrounding the Child’s arm injury
and her theories about the leg injury were inconsistent. At first, she had no idea
how the injury could have happened. She later stated the Sister tried to pick up the
Child by the arm. She told one of the doctors that the Sister grabbed the Child
when she started choking after the Sister fed her a bottle. She indicated that the
Child’s leg injury could have occurred the night before Thanksgiving at the
Grandmother’s home. The Mother also later claimed to have heard the Child make
a noise while in the back seat of the car with the Sister, suggesting the Sister may
have hurt the Child’s leg. She also said the Sister had tried to take the Child out of
the bassinette and played with her like a doll. She reported to one of the doctors
that the Sister was jealous of the Child, indicating the Sister may have purposefully
hurt the Child.
The Mother also denied ever hearing the Child cry or scream as a result of
her broken arm, despite the medical testimony that any child would have screamed
after such an injury. Tavarez testified that during her investigation, she visited the
Mother’s apartment. She described it as small. The kitchen and living room share a
wall with an open doorway. Despite the small apartment, the Mother testified she
14
never heard the Child cry at the time the injury to her arm was supposed to have
occurred, explaining that the Child was the type of baby who “did not cry.” The
Child’s medical records reflected that she later cried when her injured arm was
being examined.
Contrary to the Mother’s claim at trial, Dr. Sarpong testified that he never
stated that the only kind of abuse which could have caused the Child’s injuries was
“shaken baby syndrome.” He explained that the term had been used in the past “to
describe bleeding in the brain, retinal hemorrhages,” but the term has been
abandoned, and he now uses terms like “non-accidental injuries” or “child physical
abuse.” He stated that the shaking he described as causing the Child’s leg fracture
was not the type formerly referred to as “shaken baby syndrome.” He further
explained that the Child’s negative retinal exam, showing no hemorrhages, did not
change his opinion of what caused the injuries.
The Supreme Court of Texas in In re J.P.B. reviewed similar evidence of
physical abuse, including that the father was with the mother and child every day
during the period the fractures likely occurred, the child sustained multiple
fractures when under the father’s care, and the fractures were likely caused by
abuse and did not occur all at once. 180 S.W.3d at 574. Based on this evidence, the
Court found the evidence was legally sufficient to allow the jury to reasonably
infer that, although the father sought medical care, he knowingly allowed the child
to remain in an environment that endangered his physical well-being as required
under subsection D. Id. The court also held that it was within the fact finder’s
province to judge the father’s demeanor and to disbelieve his testimony that he did
not know how the child was injured. Id.
Similarly, in In re C.H., the parents took the child to the hospital, where it
was discovered he had a broken leg, but the parents claimed the leg simply
“popped” during a diaper change. 389 S.W.3d at 541. X-rays showed the child had
15
suffered broken ribs, a prior fracture of the other leg, and the breaks were in
various stages of healing. Id. The parents denied knowledge of the other injuries or
how they occurred, tests ruled out brittle bone disease or any other such condition,
and the child sustained no more broken bones while in foster care. Id. The El Paso
Court of Appeals found the evidence legally and factually sufficient to support
termination under subsection D. Id. The court explained that the trial court was not
required to believe the mother’s testimony that she was unaware of the injuries and
did not know how they occurred. Id.
As with In re J.P.B. and In re C.H., the trial court as fact finder in this case
was free to make its own credibility assessments, resolve conflicts in the
testimony, and decide what weight to give the witnesses’ testimony. See In re J.L.,
163 S.W.3d at 86–87 (fact finder is the “sole arbiter when assessing the credibility
and demeanor of witnesses”). Thus, the trial court could credit the expert medical
testimony that a five-year-old was not capable of causing the injuries to the Child,
and the injuries resulted from abuse. The trial court was not required to believe the
Mother’s testimony that she was unaware of the injury until shown the x-ray at the
hospital. The trial court was also not required to believe the Sister’s testimony. The
Sister acknowledged that she was afraid her mother would be returned to jail after
the Child’s injury.
In light of the evidence in this case that the Child sustained an arm fracture
and a leg fracture at different times while in the Mother’s care, the injuries were
not accidental, but instead were abusive injuries caused by extreme force, and the
Child would have screamed in pain so that her caregiver should have been aware
of the arm fracture, the trial court could have reasonably inferred that the Mother
knowingly allowed the Child to remain in an environment that endangered her
physical well-being and that she engaged in conduct that endangered her physical
well-being. It was within the trial court’s province to judge the Mother’s
16
demeanor, to disbelieve her testimony that she did not know how the Child was
injured, and to infer that she knew of the Child’s injuries and how they occurred,
supporting its findings under subsections D and E.
After reviewing all of the evidence, we conclude that the disputed evidence
is not so significant that a reasonable trier of fact could not have formed a firm
belief or conviction that the findings under subsections D and E are true. See In re
J.F.C., 96 S.W.3d at 266. After applying the appropriate standards of review, we
hold that the evidence is legally and factually sufficient to support the trial court’s
findings under subsections D and E. See Tex. Fam. Code §§ 161.001(1)(D), (E).
Accordingly, we overrule the Mother’s first and second issues.
B. BEST INTEREST
In her third issue, the Mother asserts the evidence is legally and factually
insufficient to support the trial court’s finding that termination of her parental
rights is in the Child’s best interest. See Tex. Fam. Code § 161.001(2).
There is a strong presumption that the best interest of a child is served by
keeping the child with his or her natural parent, and the burden is on the
Department to rebut that presumption. In re D.R.A., 374 S.W.3d 528, 533 (Tex.
App.—Houston [14th Dist.] 2012, no pet.). In reviewing the sufficiency of the
evidence to support a finding that termination is in the child’s best interest, a court
examines several factors, including (1) the desires of the child, (2) the present and
future physical and emotional needs of the child, (3) the present and future
emotional and physical danger to the child, (4) the parental abilities of the persons
seeking custody, (5) the programs available to assist those persons seeking custody
in promoting the best interest of the child, (6) the plans for the child by the
individuals or agency seeking custody, (7) the stability of the home or proposed
placement, (8) acts or omissions of the parent which may indicate the existing
17
parent-child relationship is not appropriate, and (9) any excuse for the parent’s acts
or omissions. Holley v. Adams, 544 S.W.2d 367, 372 (Tex. 1976). This list is not
exhaustive, and evidence is not required on all nine factors to support a best
interest finding. Id.; In re D.R.A., 374 S.W.3d at 533.
For cases in which the Department or another government agency is the
petitioner, section 263.307(a) of the Texas Family Code provides that “the prompt
and permanent placement of the child in a safe environment is presumed to be in
the child’s best interest.” Tex. Fam. Code § 263.307(a). Section 263.307(b) lists
the factors to consider in determining whether a parent is “willing to provide the
child with a safe environment.” Id. § 263.307(b). Those factors include: (1) the
child’s age and physical and mental vulnerabilities; (2) the frequency and nature of
out-of-home placements; (3) the magnitude, frequency, and circumstances of the
harm to the child; (4) whether the child has been the victim of repeated harm after
the initial report and intervention by the Department or other agency; (5) whether
the child is fearful of living in or returning to the child’s home; (6) the results of
psychiatric, psychological, or developmental evaluations of the child, the child’s
parents, other family members, or others who have access to the child’s home; (7)
whether there is a history of abusive or assaultive conduct by the child’s family or
others who have access to the child’s home; (8) whether there is a history of
substance abuse by the child’s family or others who have access to the child’s
home; (9) whether the perpetrator of the harm is identified; (10) the willingness
and ability of the child’s family to seek out, accept, and complete counseling
services and to cooperate with and facilitate an appropriate agency’s close
supervision; (11) the willingness and ability of the child’s family to effect positive
environmental and personal changes within a reasonable period of time; (12)
whether the child’s family demonstrates adequate parenting skills, including
providing the child and other children under the family’s care with: (A) minimally
18
adequate health and nutritional care; (B) care, nurturance, and appropriate
discipline consistent with the child’s physical and psychological development; (C)
guidance and supervision consistent with the child’s safety; (D) a safe physical
home environment; (E) protection from repeated exposure to violence even though
the violence may not be directed at the child; and (F) an understanding of the
child’s needs and capabilities; and (13) whether an adequate social support system
consisting of an extended family and friends is available to the child. Id. With
these considerations in mind, we review the evidence below.
The Desires of the Child
At the time of trial, the Child was only fourteen months old. When children
are too young to express their desires, the fact finder may consider that the children
have bonded with the foster family, are well-cared for by them, and have spent
minimal time with a parent. In re J.M., 156 S.W.3d 696, 706 (Tex. App.—Dallas
2005, no pet.); In re U.P., 105 S.W.3d at 230.
The evidence at trial was that the Child was well-cared for by her foster
family. In contrast, the Mother had not seen the Child in almost a year. The Mother
acknowledged that she only had two visits with the Child since the Child was
removed from her care in December 2012. The last visit the Mother had with the
Child was in January 2013, before the trial court ended her visitation.
Ms. Ransom testified that in her monthly contact with the Mother, she told
the Mother how the Child was doing. Ransom related that the Mother has asked for
pictures of the Child and seemed interested in her. The Mother testified that the
baby “screamed” and “clutched” her shirt when she put her down at the end of her
last visit in January 2013. This evidence contrary to the trial court’s finding,
however, is not so significant that a fact finder could not reasonably have formed a
firm belief or conviction that termination of the Mother’s parental rights is in the
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Child’s best interest.
Present and Future Emotional and Physical Needs of the Child
Regarding this factor, we note that the need for permanence is a paramount
consideration for the child’s present and future physical and emotional needs. See
In re D.R.A., 374 S.W.3d at 533. The goal of establishing a stable, permanent
home for a child is a compelling government interest. Id.
The evidence supporting the trial court’s finding relevant to this factor is that
the Child has been placed in her current foster home for most of her life, since she
was two months old. The Department provided evidence the Child’s foster home is
safe and provides for all the Child’s needs. The plan is for the foster parent to
adopt the Child.
The evidence is undisputed that while in the Mother’s care, the Child
suffered broken bones requiring hospitalization. A fact finder may infer from a
parent’s past inability to meet a child’s physical and emotional needs an inability
or unwillingness to meet a child’s needs in the future. See Castorena v. Tex. Dep’t
of Prot. & Reg. Servs., No. 03-02-00653-CV, 2004 WL 903906, at *10 (Tex.
App.—Austin Apr. 29, 2004, no pet.) (mem. op.).
Present and Future Emotional and Physical Danger to the Child
The same evidence of acts or omissions used to establish grounds for
termination under section 161.001(1) may be probative in determining the best
interest of the child. In re C.H., 89 S.W.3d at 28; In re D.R.A., 374 S.W.3d at 533.
Specifically, the court was permitted to consider the evidence of physical abuse
recited above. A fact finder may infer that past conduct endangering the well-being
of a child may recur in the future if the child is returned to the parent. In re D.L.N.,
958 S.W.2d 934, 934 (Tex. App.—Waco 1997, pet. denied), disapproved on other
grounds by In re J.F.C., 96 S.W.3d at 267.
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In addition to the abuse evidence previously described, the Mother also
conceded that she was convicted in 2011 of possession of marijuana. She
acknowledged she spent time in jail as a result of the conviction. The Sister stated
that she was afraid the Mother would be put in jail the night the Child was
hospitalized because “[s]ometimes” the Mother was sent to jail. See In re C.T.E.,
95 S.W.3d 462, 466 (Tex. App.—Houston [1st Dist.] 2002, pet. denied)
(recognizing a parent’s criminal history including incarceration, though not
dispositive, is a factor that may be considered in determining the best interest of a
child).
The Mother provided evidence that the Child appeared well-cared for other
than the broken bones. At her two-month check-up, the Child appeared healthy and
happy. This evidence against the trial court’s finding that termination is in the
Child’s best interest, however, is not so great that a reasonable fact finder could not
have resolved the disputed evidence in favor of its finding. See In re J.F.C., 96
S.W.3d at 266.
Parenting Ability
A parent’s inability to provide adequate care for her children, unstable
lifestyle, lack of a home and income, lack of parenting skills, and poor judgment
may be considered when looking at the children’s best interest. In re C.A.J., 122
S.W.3d 888, 893 (Tex. App.—Fort Worth 2003, no pet.). The Mother was
unemployed before the Department filed suit, and she lacked employment and her
own housing to provide for the Child’s needs at the time of trial. She was last
employed in October 2013, but she worked for only three or four months in that
job.
The Mother testified that she had three children, and at the time of trial, she
was pregnant with a fourth child. She testified that her children have different
21
fathers. Her son and the Sister had been living with the Mother’s father for about a
year at the time of trial. The trial court may have considered the Mother’s failure to
care for her other children in evaluating her parenting abilities. A parent’s failure
to show that she is stable enough to parent a child for any prolonged period entitles
the trial court “to determine that this pattern would likely continue and that
permanency could only be achieved through termination and adoption.” In re
B.S.W., No. 14-04-00496-CV, 2004 WL 2964015, at *9 (Tex. App.—Houston
[14th Dist.] Dec. 23, 2004, no pet.) (mem. op.).
A fact finder may measure a parent’s future conduct by her past conduct and
determine that it is in a child’s best interest to terminate her parental rights.
Castorena, 2004 WL 903906, at *10. Although evidence of past misconduct or
neglect alone may not be sufficient to show present unfitness, the fact finder may
permissibly infer that a parent’s future conduct may be measured by recent past
conduct as it relates to the same or a similar situation. See In re A.N.D., No. 02-12-
00394-CV, 2013 WL 362753, at *2 (Tex. App.—Fort Worth Jan. 31, 2013, no
pet.) (mem. op.). As recited above, the evidence shows the Child was the victim of
child abuse, resulting in non-accidental fractures, while in the Mother’s care. She
blamed her five-year-old daughter despite unequivocal medical testimony
disputing that possibility. The Mother was convicted of drug possession and has
been jailed in the past. The Sister was afraid the Mother would be put in jail the
night the Child was hospitalized. The trial court properly could infer that the
Mother’s endangering conduct that resulted in the Child’s broken bones might
recur in the future if the Child was returned to her.
The Plans for the Child by the Individuals or Agency Seeking Custody
The Stability of the Home or Proposed Placement
The fact finder may compare the contrasting plans for a child by the parent
and the Department and consider whether the plans and expectations of each party
22
are realistic or weak and ill-defined. D.O., 851 S.W.2d at 356. The stability of the
proposed home environment is an important consideration in determining whether
termination of parental rights is in the child’s best interest. See J.N.R., 982 S.W.2d
137, 143 (Tex. App.—Houston [1st Dist.] 1998, no pet.). Stability and permanence
are paramount in the upbringing of children. In re T.D.C., 91 S.W.3d 865, 873
(Tex. App.—Fort Worth 2002, pet. denied).
The Mother testified that she had lived with the Grandmother since April or
May 2013, and admitted, “I don’t pay for anything right now.” If the Child were
returned to the Mother, the plan was to live with the Grandmother for some period
of time. The Mother conceded that the Grandmother has had Department cases,
although she had earlier denied knowing about her mother’s history. Evidence
showed the Grandmother had been investigated by CPS at least three times in the
past three or four years. The Grandmother acknowledged that some of her children
had been removed from her home, but they were eventually returned without
termination of her parental rights.
The Mother claimed, “When I get [the Child] back [the Child] is going to be
in daycare. That’s very important.” She also claimed the Child would be clean and
clothed and fed because her children are her “first priority.” The Mother said that
having the Child in a safe environment would be her “top priority,” and claimed
she “would use all the support that I have to make sure this never happens again,
ever.” The Grandmother stated that she would be a support system for her daughter
and the Mother would live with her until she obtained an apartment. The trial court
may have discounted the Mother’s testimony about her plans for the Child and
determined they were unrealistic in light of the testimony that the Mother was
unable to maintain employment or independent housing. See In re A.M., 385
S.W.3d 74, 83 (Tex. App.—Waco 2012, pet. denied) (the fact finder is free to
reject parent’s assertions of future stability and of having learned from her
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mistakes).
Moreover, there is little evidence in the record that the Mother had an
adequate support system. The Grandmother confirmed that she did not request and
was not considered for placement of the Child based on her history with the
Department. The trial court could reasonably have determined it was not in the
Child’s best interest to live with her Grandmother because of this history. The
Mother identified relatives for possible placement of the Child, but they were
eliminated from consideration. The Child could not be placed with her great-
grandmother because her husband had a murder conviction. The great-
grandmother’s sister did not pass a home inspection.
Evidence supporting the trial court’s best interest finding reflects that the
Child has been placed in her current foster home since she was released from the
hospital in December 2012. Ransom testified that she has visited the Child at least
once a month while the case has been pending. She testified that the Child’s foster
home is safe and provides for all the Child’s needs. The Child has not suffered any
injuries during her foster placement. The Department’s plan is for the Child’s
foster parent to adopt her if the Mother’s parental rights are terminated. Ransom
testified that termination is in the Child’s best interest. She further testified the
Child would be at risk if she were returned to the Mother.
Based upon the evidence in the entire record, a fact finder could reasonably
conclude that the Child’s best interest would be better served through the
Department’s plan for her to be adopted. See In re C.H., 89 S.W.3d at 28 (noting
evidence about placement plans and adoption are relevant to best interest but must
be considered in context of entire record).
Acts or Omissions of the Parent Which May Indicate that the Existing
Parent-Child Relationship Is Not a Proper One
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As discussed, while in the Mother’s sole care, the evidence reflects that the
Child was the victim of physical abuse and suffered non-accidental broken bones.
The Mother subjected the Child to uncertainty and instability by failing to maintain
stable housing and employment during pendency of the case. Additionally, she had
not obtained independent housing or employment to provide for the Child’s needs
at the time of trial. The Mother continued to blame her five-year-old child, despite
unequivocal medical testimony to the contrary. Further, the Mother has been
convicted for drug possession and jailed on more than one occasion, also
subjecting the Child to uncertainty and instability. See In re S.B., 207 S.W.3d 877,
887–88 (Tex. App.—Fort Worth 2006, no pet.) (“A parent’s drug use, inability to
provide a stable home, and failure to comply with his family service plan support a
finding that termination is in the best interest of the child.”).
Other Factors
Due to the child’s young age, there is no record evidence relevant to some of
the statutory factors that have not already been discussed. However, the court may
have considered the seriousness of the injuries to the Child and the Child’s
vulnerability because of her tender age. See Tex. Fam. Code § 263.307(b)(1), (3).
Although the court was not required to order a family service plan, there is no
evidence that the Mother otherwise sought out any counselling or other services.
See id. at (b)(10). There is likewise no evidence of the steps the Mother may have
taken to seek employment or obtain her own residence. See id. at (b)(11).
In sum, considering the relevant factors under the appropriate standards of
review, we hold that the evidence presented at trial and summarized above is
legally and factually sufficient to support the trial court’s finding by clear and
convincing evidence that termination of the parent-child relationship between the
Mother and the Child is in the Child’s best interest. See Tex. Fam. Code §
106.001(2); Holley, 544 S.W.2d at 371–72. We overrule the Mother’s third issue.
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IV. CONCLUSION
Having determined the evidence is legally and factually sufficient to support
termination of the Mother’s parental rights, we order the judgment of the trial court
affirmed.
/s/ Martha Hill Jamison
Justice
Panel consists of Justices Christopher, Jamison, and McCally.
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