in the Interest of J.N. ( 2015 )

In The
Court of Appeals
Ninth District of Texas at Beaumont
____________________
NO. 09-15-00008-CV
____________________
IN THE INTEREST OF J.N.
_________________________________________________________________________
On Appeal from the 317th District Court
Jefferson County, Texas
Trial Cause No. F-218,747
_________________________________________________________________________
MEMORANDUM OPINION
After a bench trial, the trial court entered an order that terminated the
parental rights of J.N. (Jane) and J.W. (John) to their child, J.N. 1 See Tex. Fam.
Code Ann. § 161.001 (West 2014). In this appeal of the judgment terminating their
parental rights, Jane and John each raise four issues. In their appellate issues, Jane
and John challenge the legal and factual sufficiency of the evidence
1
The minor child and his mother both have the initials “J.N.” We will refer
to the minor child as “J.N.,” and we will use the alias “Jane” to refer to J.N.’s
mother and the alias “John” to refer to J.N.’s father. See also Tex. R. App. P. 9.8
(We identify a minor child by initials to protect the child’s identity.).
1
supporting (a) the statutory grounds on which the trial court terminated their
respective parental rights, and (b) the trial court’s finding that terminating their
respective rights was in the best interest of the child. We affirm the trial court’s
judgment.
INITIAL REMOVAL AND PETITION FOR CONSERVATORSHIP AND TERMINATION
Jane gave birth to J.N. on January 3, 2013, when Jane was fourteen years old
and John was fifteen years old. J.N. weighed seven pounds and thirteen ounces at
birth. Jane and John never married. On July 24, 2013, the Department of Family
and Protective Services (the Department) filed a petition for a protective order. The
Department also filed a petition for conservatorship of J.N. and termination of
Jane’s and John’s parental rights. The petition was supported by an affidavit of a
Child Protective Services (CPS) Specialist for the Department that described the
circumstances necessitating removal.
According to the affidavit in support of emergency removal, the Department
received reports that Jane was not providing her child with adequate nutrition. The
affidavit alleged that Dr. Patricia Patterson at Gulf Coast Clinic diagnosed J.N.
with “failure to thrive” and J.N. was hospitalized for one week in June 2013 due to
his condition. The affidavit in support of emergency removal recited that Dr.
Patterson asked Jane how many ounces of formula J.N. was fed. Jane stated five
2
ounces, but Jane’s mother, who was also present during the exam, interrupted and
said he was only fed one-and-a-half ounces of formula. Dr. Patterson ordered a
home health nurse to monitor J.N. in the home. After one week, the family refused
to allow the nurse to continue to monitor J.N. in the home. On July 23, 2013, J.N.
was six months old and weighed nine pounds, fifteen ounces, and Dr. Patterson
informed the Department that J.N. needed to be removed from Jane’s care. That
same day J.N. was taken to the “WIC office” by a Home Health Nurse Supervisor,
who also transported J.N. and Jane to the Southeast Texas Medical Center because
weight and height records demonstrated that J.N. was well below the average
weight and height for his age. According to the affidavit, J.N.’s maternal and
paternal grandmothers indicated that they thought Jane was not properly feeding
J.N.
On August 1, 2013, the trial court entered a Temporary Order Following
Adversary Hearing, wherein the trial court included certain findings and a notice to
Jane and John as follows:
The Court finds and hereby notifies the parents that each of the
actions required of them below are necessary to obtain the return of
the subject child(ren), and failure to fully comply with these orders
may result in the restriction or termination of parental rights.
The Department formulated a Family Service Plan for both Jane and John.
Thereafter, on September 19, 2013, the trial court issued a Status Hearing Order
3
once again requiring Jane and John to comply with the terms of their service plan
and setting a date for the final hearing. A bench trial regarding termination of
Jane’s and John’s parental rights was held in December 2014.
TRIAL TESTIMONY OF CASEWORKER ASSIGNED AFTER J.N.’S REMOVAL
The CPS caseworker for J.N. who was assigned after J.N.’s removal testified
that she received the case in August 2013. Regarding J.N.’s weight loss, Jane told
the caseworker that Jane fed J.N. an ounce or an ounce and a half of formula, every
two hours. She also said that around Easter, J.N. had diarrhea and began to lose
weight and Jane took J.N. to the doctor. Jane never indicated to the caseworker that
Jane did not know how to feed J.N. The medical staff at Texas Children’s Hospital
in Houston determined that J.N.’s weight loss was caused by Jane’s medical
neglect and failing to adequately feed J.N. As a result of J.N.’s malnutrition, J.N.
was required to undergo surgery for a “G-tube[.]” According to the caseworker,
nursing services were provided to J.N.’s maternal grandmother’s home to assist
Jane with feeding J.N. but Jane refused the services. The caseworker testified that
J.N.’s maternal grandmother stated she had tried to teach Jane how to feed J.N., but
that Jane would get upset and stop feeding him. The caseworker explained that
J.N.’s paternal grandmother told her that she had also tried to teach J.N.’s parents
how to feed J.N.
4
The caseworker testified that J.N.’s physical appearance caused the
caseworker concern and that J.N.’s “traumatic weight loss” did not happen until
the summer of 2013. In the caseworker’s opinion, Jane, by failing to feed J.N. even
after she had been trained how to feed J.N., engaged in conduct and placed J.N.
with others that engaged in conduct that endangered J.N.’s physical and emotional
well-being, and she knowingly allowed J.N. to remain in conditions and
surroundings that endangered his physical and emotional well-being.
Jane’s court-ordered service plan formulated by the Department stated the
goal was “relative fictive kin adoption[,]” and the plan required Jane to contact
Good Samaritan Counseling and begin attending “individual counseling to assist
with the grief and loss of her son[,]” attend scheduled family visitations, notify the
Department of any change in contact information, complete background
information forms within ten days, and provide names of relatives for possible
placement. According to the caseworker, Jane did not comply with the service
plan. The caseworker explained that although Jane had provided names of relatives
for possible placement, had completed the required background information forms,
and had attended scheduled family visitations with J.N. on a regular basis, Jane had
not attended the required counseling and Jane had not “maintained contact” with
the Department and the caseworker had to tell Jane to come visit and advised Jane
5
what she needed to do. 2 The caseworker acknowledged that, because Jane was not
eligible for a driver’s license due to her age, Jane would have to rely on someone
else for transportation to counseling, and for some period of time Jane’s mother
was not available to transport Jane. The caseworker also explained that, since
J.N.’s removal, Jane had not been attending school, had not provided any physical
items for J.N., had not asked about J.N.’s medical needs or asked about attending
J.N.’s medical visits, had not received any training or asked for training regarding
taking care of J.N., and had not provided birthday or Christmas presents to J.N.
while in the Department’s care.
The caseworker testified that Jane was on probation with the juvenile
probation department for assault family violence, a felony offense that involved
choking her mother, which occurred just prior to J.N.’s removal by the
Department. After Jane failed to comply with the deferred adjudication agreement
terms, the assault case proceeded to court. The caseworker explained that, at the
time of trial, Jane had not been attending school as she should and there was a
directive to apprehend her for truancy. According to the caseworker, at the
2
We note that “maintaining contact with the Department” is not stated as a
condition within Jane’s service plan. However, the service plan required Jane to
contact the Department “within 3 days (72 hours) of any changes in contact or
locating information[,]” and to “contact caseworker at least 2 hours prior to
visitation notifying [the Department] of her inability to attend visitation.”
6
conclusion of the trial, Jane was to be placed in a detention facility. The
caseworker was aware that Jane’s mother had secured an apartment, and the
caseworker agreed that J.N.’s grandmother loves J.N.
The caseworker further testified that at the time of trial J.N. was
participating in speech therapy to assist with chewing and verbalization, physical
therapy as a preventive measure for his transition to a new placement so he does
not regress, and special skills therapy to assist with all developmental areas. J.N.
also sees a nutritionist monthly to monitor his weight and eating. According to the
caseworker, J.N. has “severe long term issues” and will require continued care in
the future. J.N.’s foster mother attended the trial, and she and her family were
taking care of J.N.’s needs at the time of trial. The caseworker explained that J.N.
was developmentally delayed by “a couple of months” but had made “extreme
progress” both with his weight gain and developmental delays since he has been in
foster care.
With respect to John, the caseworker testified that John has always claimed
he was J.N.’s father and that he reported that he had been helping care for J.N.
prior to the Department’s removal of J.N. The Department developed a service
plan for John, which the court ordered him to comply with at the time of the status
hearing, and the caseworker reviewed the service plan with John. At the status
7
hearing John was present and the trial court warned John that his rights could be
terminated if he did not comply with the service plan.
The service plan required John to complete background information forms
within ten business days, contact Good Samaritan Counseling and begin attending
individual counseling, provide names of relatives for possible placement for J.N.,
attend scheduled family visitations with J.N., and notify the Department of any
changes to his contact information. The caseworker explained she had difficulty
contacting John throughout the case and that he had failed to appear for the prior
hearing. According to the caseworker, John failed to maintain contact with the
Department 3 and failed to complete the background information forms. John
provided the names of relatives for J.N.’s possible placement, but all of the
possible placements suggested by John and Jane were either unqualified or
unwilling to fulfill the obligation. Although at the time of trial J.N. had been in
foster care for almost seventeen months, according to the caseworker, John only
attended about ten visits. The caseworker testified that initially John was attending
the family visitations, but then his attendance became very sporadic and it was not
3
We note that “maintaining contact with the Department” is not a
requirement of John’s service plan. However, the service plan required John to
contact the Department “within 3 days (72 hours) of any changes in contact or
locating information[,]” to “contact caseworker at least 2 hours prior to visitation
notifying [the Department] of [his] inability to attend visitation.”
8
unusual for him to miss several visits in a row. At the last visitation John attended,
John did not stay the entire visit and left after ten to fifteen minutes. John also
failed to attend free counseling. The caseworker explained that John may have
attempted to contact her “once or twice throughout this case” but that the
caseworker otherwise had to initiate contact with John.
According to the caseworker, at the visits John had trouble getting J.N. to
eat. John brought clothes for J.N. to one visit. In the caseworker’s opinion, John
has not had significant contact with J.N. during the pendency of the case and a
“significant relationship” between them does not exist. The caseworker explained
that: John did not have independent housing appropriate for J.N.; John had not
received training regarding J.N.’s medical needs and had not asked to go to any of
J.N.’s doctor’s appointments; John had not provided any items besides the clothing
he brought to one visit, he had not tried to find out what he could contribute to
J.N.’s medical bills; and, John had not attempted to send J.N. Christmas or
birthday presents. The caseworker also testified that John would not know how to
care for J.N. for twenty-four hours if J.N. were returned to him and that she
believed it is in J.N.’s best interest for John’s parental rights to J.N. be terminated.
According to the caseworker, the Department’s plan for J.N. is unrelated
adoption. The caseworker stated that the Department would complete an adoption
9
broadcast and that some families have already inquired about adopting J.N. At the
time of the trial, J.N. had made a connection with some families who are interested
in him, and the caseworker believes that it is very likely that J.N. will be adopted.
TESTIMONY OF DR. DONARUMA
Dr. Donaruma (Donaruma) is board certified in pediatrics and child abuse
pediatrics, and she is a child abuse pediatrician at the Child Protection Clinic at
Texas Children’s Hospital. Donaruma testified at trial about her treatment of J.N.
and offered opinions pertaining to J.N. Donaruma began treating J.N. after his
diagnosis of “neglect” and “failure to thrive,” and Donaruma was J.N.’s treating
physician at the time of trial. J.N. was diagnosed with severe malnutrition,
developmental delay, alpha thalassemia, 4 and high risk social situation.
Donaruma’s last examination of J.N. was a “couple of weeks” before trial.
Donaruma admitted that the only medical records showing J.N.’s medical history
that she “could get” were from Southeast Texas Medical Center, and that if other
records showed that Jane had consistently sought medical treatment for J.N. and
private nursing care had been provided to Jane, that it might affect Donaruma’s
opinion in the case.
4
Donaruma testified that alpha thalassemia “is a change in the hemoglobin
from normal[.]”
10
Donaruma described “failure to thrive” as “a term that means a child has
failed to stay within his growth trajectory” and “has failed to grow as expected[.]”
She explained that before making such a diagnosis, medical professionals use
imaging, studies, and bloodwork to rule out “an exceptionally long list” of other
possible causes such as an infection, tumor, a problem with absorbing food, and
heart failure. Over the almost year-and-a-half that Donaruma treated J.N., she
found no other organic problem that would explain J.N.’s malnutrition and failure
to gain weight. According to Donaruma, prior to coming into foster care, J.N.
needed extra encouragement to eat, and his caregivers did not provide the
necessary extra encouragement. Donaruma described the degree of neglect for J.N.
as “severe[,]” and Donaruma testified that J.N. “came in at six months old the
weight of a two-week-old baby. It was striking.” Donaruma indicated that it is not
unusual for a child when first hospitalized to drop a little weight and then increase
weight as their hospital stay continued, and that it is not surprising that also
occurred with J.N. Donaruma agreed that the problems with feeding J.N. that she
observed during the time she treated J.N. were consistent with the child having
been denied an appropriate amount of food for a substantial length of time.
According to Donaruma, J.N.’s hospitalizations were for issues secondary to his
11
malnutrition. Donaruma testified that she attempted to contact Jane and John, and
she never received a response from either parent.
Donaruma conducted a swallow study to check for J.N.’s ability to swallow
food and he was determined to have “a little bit of reflux[,]” but treating the reflux
with medication “did not make much difference.” Donaruma stated that because
J.N. could not take in the desired amount of calories he needed for a period of time,
his G-tube was put in because he needed to “catch up.” Once J.N. “caught up[,]”
the G-tube was removed. Since the removal of the G-tube, the open hole from the
G-tube was leaking, which was “causing some skin irritation and possibly a fungal
infection[,]” and if the problem did not resolve over time it might need surgical
closure.
Donaruma opined that J.N.’s foster mother and her husband have provided
“exceptional” care and that Donaruma is optimistic that J.N. will grow and be
healthy. Donaruma noted that based on J.N.’s growth chart, J.N. has gained weight
and improved while in foster care. Donaruma also stated, however, that she is “a
little guarded because of the degree of neglect” and “that there’s a possibility of
some emotional problems, some learning problems, and possibly some behavioral
problems around food and eating as he gets older.” Donaruma stated that she
suspects that J.N.’s problems have the potential to be life-long and he will need
12
special attention for years. Donaruma testified that J.N. is short and that he may
have behavioral and emotional problems as a result of his “maltreatment[.]” She
explained that J.N. showed mild developmental delays.
In Donaruma’s expert opinion, J.N. would be in danger if the trial court
returned J.N. to his parents. Donaruma explained that she believes J.N. was the
victim of neglect that damaged his physical and emotional well-being, and that J.N.
needs a highly attentive parent to avoid regressing.
TESTIMONY OF JANE
Jane testified that she first saw problems with J.N. when he had diarrhea and
vomiting and, on April 1, 2013, and April 2, 2013, she took J.N. to Gulf Coast
Clinic. According to Jane, up until that point, J.N. had been gaining and not losing
weight. A nurse told Jane to take J.N. to the emergency room for the diarrhea. Jane
took J.N. to the emergency room, and she was advised to not feed J.N. milk for that
day but instead to feed him cereal and water. She followed those instructions and
returned to the doctor on April 5, 2013, because J.N. still had diarrhea and he was
not eating properly. The doctor told Jane to give him cereal and water and
Pedialyte instead of milk that day, and the doctor provided Jane with a can of milk
for J.N. Jane followed those instructions and then began giving J.N. the “new
milk” provided by the doctor.
13
Jane testified that sometime between April 5th and May 31st, she took J.N.
to St. Mary’s Hospital emergency room because J.N. did not want to eat. The
hospital did an examination, diagnosed J.N. with diarrhea, and discharged J.N.
with instructions for Jane to continue feeding him with the different milk. J.N.
continued to drink about only one ounce and would not swallow anymore. Jane
testified she became “more worried.”
According to Jane, she returned to Gulf Coast Clinic on May 31, 2013, for a
follow-up appointment, and she told the doctor she was concerned that J.N. was
not eating and it was apparent to Jane that the child was not developing
appropriately. The doctor changed the milk back to a previous kind, gave Jane
some medicine and a breathing machine for J.N.’s chest congestion, and told her to
come back in ten days. Jane continued to feed J.N. the milk the doctor suggested,
but she testified he would not eat during the day, and it would take him the whole
evening to finish a five-ounce bottle. Jane testified she was trying to feed J.N.
every hour, but he would not swallow the milk and he spit it out.
Jane testified that she took J.N. back to Gulf Coast Clinic on June 7, 2013,
with the same concerns and she requested a different doctor. J.N. was then
admitted to the Medical Center of Southeast Texas on June 7, 2013, and he was
discharged on June 14, 2013. Jane testified she stayed up at the hospital with J.N.
14
throughout that week. According to Jane, the hospital staff initially had difficulty
getting J.N. to eat. After J.N. was discharged, Jane took J.N. for a follow-up visit at
the Gulf Coast Clinic and J.N. had lost more weight. Jane testified that at this
appointment she made a “request[] for nurses.” At the next appointment on July 5,
2013, J.N. had lost more weight, and the doctor at the Gulf Coast Clinic had a
doctor from Houston look at J.N. After Jane left the July 5th appointment, the
doctor at the Gulf Coast Clinic later that same day advised Jane to bring J.N. to the
emergency room because J.N. was dehydrated. Jane took J.N. to the emergency
room, J.N. was admitted to The Medical Center of Southeast Texas, and then he
was transferred to Texas Children’s Hospital. Jane testified that CPS workers
asked her to leave prior to J.N.’s transfer, and she did not visit J.N. at Texas
Children’s Hospital because CPS would not allow her to go.
Jane testified that private nursing assistance was not made available to her
until the week prior to J.N.’s removal by the Department, and that she never
declined private care nursing assistance for J.N. Jane explained at trial that she was
J.N.’s primary caregiver and that from April to July 2013, she and J.N. were living
in a house with her mother, her aunt, and her grandmother. Jane was living with
her mother and siblings at the time of trial. Jane testified that she knew how to care
for J.N. and that she was currently in school. She stated that when she had
15
possession of J.N., she was also in school. While she was at school Jane’s mother
cared for J.N. Although Jane did not have a job at the time of trial, she testified that
she had an upcoming job interview.
Jane admitted she attacked her mother on June 17, 2013, when J.N. was
staying with John. Jane also testified that after court she would be going to a
detention facility for truancy. According to Jane, she did everything the
Department required of her except she admitted she did not attend any counseling.
Jane testified that she never received a call from Dr. Donaruma. Jane testified that,
in her opinion, if she had more help from the doctors or nurses “it would have been
better[.]” She did not believe she neglected J.N. because she “did everything that
[she] could do . . . followed everything the doctor[s] told [her] to do.”
TESTIMONY OF JOHN
John testified that he is J.N.’s father. John had been expelled from school in
2009, 2010, and 2012, and a judge sent John to the Jefferson County Youth
Academy. John testified that at the time of trial he was living with his mother, but
he did not know her address.
John testified that when he was not working he would go and help Jane with
J.N. According to John, Jane tried consistently to feed J.N., and both John and Jane
had difficulty getting J.N. to eat. John explained that J.N. spent the night with him
16
on two occasions between April and July 2013, but John could not remember the
dates of the overnight visits. During that time period, John said he noticed J.N.
getting thinner. As to John’s understanding of the reason for J.N. being thin, John
explained that John was small when John was young, but as far as J.N.’s weight, “I
seen it was a problem. I asked - - that’s why I went to the doctor with her and
stuff.” When asked if John was ever present when the doctors made the changes in
the formula and milk, John explained, “I don’t like hospitals. I don’t like going to
the doctors. You pull out needles, I’m going to take off running.” John saw J.N.
one week prior to when J.N. was admitted to the hospital. According to John, he
was never told that he could visit J.N. at Texas Children’s Hospital in Houston.
At trial, when the Department showed John photographs depicting J.N.’s
appearance at the time of removal, John stated that J.N. looked hungry in the
photographs, and John agreed that the average parent or caregiver would have
concern with the child’s appearance. John acknowledged at trial that in the
photographs of J.N. taken two months before trial that J.N. looked healthy and
well-nourished. When asked at trial if John would have “gone back” and changed
any of his conduct in the three weeks prior to the Department’s removal of J.N.,
John stated that he would have tried “to be there more” and “be a parent” and
“have [his] own house, [his] own car[.]”
17
John explained that in the two years prior to trial he worked at Sonic. John
testified that he went to Arkansas to get a job and because he did not want to go to
school in Port Arthur. He explained that he went to Arkansas for two months, came
back, and then left again, and that he was in Arkansas for “[p]robably, like, eight . .
. [m]aybe seven” months of the sixteen months that J.N. was in the care of CPS.
According to John, during the sixteen-month timeframe that J.N. was with CPS,
John provided no financial support for J.N., but John did provide clothes for the
child on one occasion. John explained at trial that he did not give the Department
financial support for J.N.’s care because “I’m not going to give them my money
and I’m not going to give them nothing because they came and took my child.”
John testified that while J.N. was with CPS, John visited J.N. when John was in
Texas and that he had seen J.N. “more than ten times.” John stated he did not visit
J.N. more because John was in Arkansas.
According to John, the Department had not tried to work with him in regards
to getting J.N. back. John explained he left “multiple messages” with the
Department. John testified that he provided the Department with names of relatives
that had offered to take J.N. John stated that his plan is to go to Job Corps the
following month and get his GED, but that he would have to move to be placed in
a program, and he could not take J.N. with him during his completion of the
18
program. John admitted that as part of his service plan he was ordered to attend
counseling. He testified he did not go to counseling “because when I was younger,
me and my mom had took it and I felt like it was no need to[.]”
CASA REPORT
A court-appointed special advocate (CASA) prepared a report that was
admitted into evidence at trial. The CASA report stated that J.N. had not formed a
bond with Jane or John and that no family member seemed able or willing to
provide a permanent home for J.N. According to the report, J.N. was progressing
well with the foster parent and that the respite family had expressed interest in
providing a permanent home for J.N. The CASA agreed with the Department’s
goal of unrelated adoption. The CASA recommended that the Department be
named J.N.’s permanent conservator, that Jane’s and John’s parental rights be
terminated, that J.N.’s placement be approved and continued, and that the respite
family be considered as a permanent placement for J.N.
TERMINATION ORDER
After the bench trial, the trial court signed a final order of termination on
December 8, 2014, terminating Jane’s and John’s parental rights to J.N. and
naming the Department as permanent managing conservator of the child. In
addition to finding that the termination was in the child’s best interest, the trial
19
court found that Jane and John (1) knowingly placed or knowingly allowed the
child to remain in conditions or surroundings that endangered the physical or
emotional well-being of the child; (2) engaged in conduct or knowingly placed the
child with persons who engaged in conduct that endangered the child’s physical or
emotional well-being; and (3) failed to comply with the provisions of a previous
court order. See Tex. Fam. Code Ann. § 161.001(1)(D), (E), (O), (2). The trial
court also found that John had constructively abandoned J.N. See id. §
161.001(1)(N). The trial court filed its Findings of Facts and Conclusions of Law,
which stated the statutory grounds for terminating Jane’s and John’s parental rights
as to J.N., and that termination was in the best interest of J.N.
STANDARD OF REVIEW IN PARENT-CHILD TERMINATION CASES
In proceedings to terminate the parent-child relationship brought under
section 161.001 of the Texas Family Code, the petitioner must establish at least
one ground listed under subdivision (1) of the statute, and must also prove that
termination is in the best interest of the child. See Tex. Fam. Code Ann. § 161.001;
In the Interest of J.L., 163 S.W.3d 79, 84 (Tex. 2005). Due process requires the
petitioner to justify termination by clear and convincing evidence. See Tex. Fam.
Code Ann. §§ 161.001, 161.206(a) (West 2014); In the Interest of J.F.C., 96
S.W.3d 256, 263 (Tex. 2002). “Clear and convincing evidence” is the “measure or
20
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 Ann. § 101.007 (West 2014).
In reviewing the legal sufficiency of the evidence supporting an order
terminating parental rights, we look at all the 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.” J.F.C., 96 S.W.3d at 266. “To
give appropriate deference to the factfinder’s conclusions and the role of a court
conducting a legal sufficiency review, looking at the evidence in the light most
favorable to the judgment means that a reviewing court must assume that the
factfinder resolved disputed facts in favor of its finding if a reasonable factfinder
could do so.” Id. In other words, we will “disregard all evidence that a reasonable
factfinder could have disbelieved or found to have been incredible.” Id.
In a factual sufficiency review, we consider whether the disputed evidence is
such that a reasonable factfinder could not have resolved the disputed evidence in
favor of its finding. Id. “If, in light of the entire record, the disputed evidence that a
reasonable factfinder could not have credited in favor of the finding is so
significant that a factfinder could not reasonably have formed a firm belief or
conviction, then the evidence is factually insufficient.” Id. (footnote omitted).
21
STATUTORY GROUNDS FOR TERMINATION
A. Termination of Jane’s Rights Pursuant to Section 161.001(1)(D) and (E)
In part, the trial court’s order terminating Jane’s parental rights to J.N. is
based on subsections 161.001(1)(D) and (E), which provide that the court may
order termination of the parent-child relationship if the court finds by clear and
convincing evidence that the parent has:
(D) knowingly placed or knowingly allowed the child to remain
in conditions or surroundings which endanger the physical or
emotional well-being of the child [or]
(E) 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[.]
See Tex. Fam. Code Ann. § 161.001(1)(D), (E).
In Jane’s first and second issues, she challenges the sufficiency of the
evidence supporting termination under section 161.001(1)(D) and (E). See id.
Endangerment means “to expose to loss or injury; to jeopardize.” Tex. Dep’t of
Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987). Although “‘endanger’
means more than a threat of metaphysical injury or the possible ill effects of a less-
than-ideal family environment, it is not necessary that the conduct be directed at
the child or that the child actually suffers injury.” Id.; see In the Interest of P.E.W.,
105 S.W.3d 771, 777 (Tex. App.—Amarillo 2003, no pet.). Subsection (D)
requires the endangerment to the child to be the direct result of the child’s
22
environment. In the Interest of R.D., 955 S.W.2d 364, 367-68 (Tex. App.—San
Antonio 1997, pet. denied). Conduct of a parent in the home can create an
environment that endangers the physical and emotional well-being of a child. In
the Interest of J.T.G., 121 S.W.3d 117, 125 (Tex. App.—Fort Worth 2003, no pet.).
Because the evidence pertaining to subsections (D) and (E) is interrelated, we
conduct a consolidated review. In the Interest of T.N.S., 230 S.W.3d 434, 439 (Tex.
App.—San Antonio 2007, no pet.); J.T.G., 121 S.W.3d at 126.
The affidavit in support of removal stated that the Department had received
concerns that Jane was not providing J.N. with adequate nutrition, and that
although Jane told the doctor at Gulf Coast Clinic that Jane fed J.N. five ounces of
formula, Jane’s mother interrupted and told the doctor that Jane only fed J.N. one-
and-a-half ounces of formula. The affidavit also stated that when J.N. was six
months old he weighed under ten pounds and that J.N.’s maternal and paternal
grandmothers believed Jane was not properly feeding J.N. The trial court heard
testimony from the caseworker that J.N.’s “traumatic weight loss” did not happen
until the summer of 2013; that the medical staff at Texas Children’s Hospital ruled
out medical causes for J.N.’s weight loss; that J.N.’s maternal grandmother
attempted to teach Jane how to properly feed J.N., but Jane would get upset and
stop feeding him; and that Jane refused nursing services to assist her with feeding
23
J.N., and that Jane’s failure to properly feed J.N. endangered J.N.’s physical and
emotional well-being.
The trial court also heard Dr. Donaruma’s expert testimony that at the time
of admittance to Texas Children’s Hospital, six-month-old J.N. weighed only as
much as a two-week-old baby and appeared severely neglected. The trial court
heard Donaruma explain that, in the year-and-a-half time period she had been
treating J.N., she did not find an “organic” problem that would explain J.N.’s
malnutrition, and J.N. was gaining weight and improving while in foster care.
Donaruma also testified that J.N. was the victim of neglect that damaged his
physical and emotional well-being and that J.N. would be in danger if he was
returned to his parents. Although Jane testified that she consistently tried to feed
J.N. and that she sought medical care for J.N., the trial court could have found the
witnesses that stated Jane was not properly feeding J.N. to be more credible. The
trial court also heard evidence from the CASA that Jane had not bonded with the
child. And the evidence and testimony established that Jane had attacked her own
mother, and that she was to be placed in a detention facility for truancy.
On this record, the trial court could have determined that Jane’s conduct
demonstrated evidence of endangerment under section 161.001(1)(E). The trial
court also could reasonably have formed a firm belief or conviction that Jane
24
engaged in conduct and knowingly placed or knowingly allowed J.N. to remain in
conditions that endangered his physical or emotional well-being. See Tex. Fam.
Code Ann. § 161.001(1)(D), (E). We conclude that the evidence is legally and
factually sufficient to support the trial court’s decision to terminate Jane’s parental
rights under section 161.001(1)(D) and (E). See J.F.C., 96 S.W.3d at 265-66. We
overrule Jane’s first and second issues. Accordingly we need not consider Jane’s
arguments as to the trial court’s finding under section 161.001(1)(O). See In the
Interest of A.V., 113 S.W.3d 355, 362 (Tex. 2003).
B. Termination of Father’s Rights Pursuant to Section 161.001(1)(D) and (E)
As part of John’s third and fourth issues, he challenges the sufficiency of the
evidence supporting termination under section 161.001(1)(D) and (E). 5
The trial court heard John’s testimony that John noticed J.N. getting thinner
from April 2013 to July 2013. The trial court heard John explain that John was not
present with Jane when the doctor made changes in J.N.’s formula and milk,
because he does not “like hospitals. . . . [o]r like going to the doctors.” At trial,
5
In John’s first and second issues, he challenges the sufficiency of the
evidence establishing his neglect of J.N. Although the trial court made no specific
finding of neglect, we regard evidence of neglect as part of the trial court’s finding
of endangerment under section 161.001(1)(D) and (E) as to John. See In the
Interest of M.C., 917 S.W.2d 268, 270 (Tex. 1996) (Endangerment can occur
through both acts and omissions of a parent, and parental neglect can be as
dangerous to a child’s well-being as direct abuse.).
25
when John was shown pictures of J.N. at the time of removal, the trial court heard
John admit that the average parent or caregiver would have concern with the
child’s appearance. John acknowledged that he and Jane had difficulty getting J.N.
to eat. The trial court also heard Dr. Donaruma’s expert testimony that at the time
of admittance to Texas Children’s Hospital, six-month-old J.N. weighed only as
much as a two-week-old baby and appeared severely neglected. Donaruma
explained that, in the year and a half she had been treating J.N., she did not find an
“organic” problem that would explain J.N.’s malnutrition, and J.N. was gaining
weight and improving while in foster care. According to Donaruma, J.N. was the
victim of neglect that damaged his physical and emotional well-being and J.N.
would be in danger if he was returned to his parents. Although John testified that
he had kept J.N. on two nights, John’s own testimony established that he left J.N.
with Jane and that he had moved out of state for several months.
Considering this evidence, the trial court could reasonably have formed a
firm belief or conviction that John engaged in conduct and knowingly placed or
knowingly allowed J.N. to remain in conditions that endangered his physical or
emotional well-being. See Tex. Fam. Code Ann. § 161.001(1)(D), (E). We
conclude that the evidence is legally and factually sufficient to support the trial
court’s decision to terminate John’s parental rights under section 161.001(1)(D)
26
and (E). See J.F.C., 96 S.W.3d at 265-66. Accordingly we need not consider
John’s other arguments challenging the trial court’s findings under sections
161.001(1)(N), and (O). See A.V., 113 S.W.3d at 362.
BEST INTEREST OF THE CHILD
Jane’s fourth issue and John’s third and fourth issues challenge the
sufficiency of the evidence supporting the finding that termination of their
respective parental rights is in J.N.’s best interest. The Texas Supreme Court has
recognized a non-exhaustive list of factors that are pertinent to the inquiry of
whether termination of parental rights is in the best interest of the child including:
(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) 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
which 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. See Holley v. Adams,
544 S.W.2d 367, 371-72 (Tex. 1976); see also Tex. Fam. Code Ann. § 263.307
(West 2014). No particular Holley factor is controlling, and evidence of one factor
27
may be sufficient to support a finding that termination is in the child’s best interest.
In the Interest of A.P., 184 S.W.3d 410, 414 (Tex. App.—Dallas 2006, no pet.).
The best interest determination may rely on direct or circumstantial evidence,
subjective factors, and the totality of the evidence. In the Interest of N.R.T., 338
S.W.3d 667, 677 (Tex. App.—Amarillo 2011, no pet.).
As to whether termination of Jane’s parental rights is in the child’s best
interest, the trial judge could have considered that Dr. Donaruma testified that at
the time J.N. was removed he was suffering from failure to thrive and severe
malnutrition due to not being adequately fed, that at six months of age J.N.’s
weight was only that of a two-week old baby, and that J.N. would be in danger if
returned to Jane’s care. The trial court heard testimony that J.N. gained weight
under the care of medical personnel and also with his foster parent, but lost weight
when under his parents’ care. At the time of trial Jane was on probation for assault
family violence against her mother, and she had violated her probation by failing to
attend school. See In the Interest of R.R., 294 S.W.3d 213, 235 (Tex. App.—Fort
Worth 2009, no pet.) (evidence of a parent’s past convictions may support the trial
court’s best interest finding). In weighing Jane’s stability and ability to provide
adequate care for J.N., the trial court could have also considered Jane’s age, the
fact that she would be going into a detention center after the trial because she
28
violated her probation, and her failure to recognize the need for counseling. See In
the Interest of C.A.J., 122 S.W.3d 888, 893 (Tex. App.—Fort Worth 2003, no pet.).
The trial court also heard evidence that Jane did not comply with the provisions of
her service plan. See In the Interest of M.R., 243 S.W.3d 807, 821 (Tex. App.—
Fort Worth 2007, no pet.) (a parent’s noncompliance with a service plan may be
considered by the fact-finder when determining the child’s best interest). The trial
court could have also considered the CASA’s report regarding lack of an emotional
bond between J.N. and Jane. See In the Interest of C.N.S., 105 S.W.3d 104, 106
(Tex. App.—Waco 2003, no pet.). The trial court heard the CPS caseworker’s
testimony that J.N. was making progress while placed with the foster parents and
Dr. Donaruma’s testimony that the foster mother was providing J.N. with
“exceptional” care. The trial court could have considered the CASA’s
recommendation of non-relative adoption, and the CPS caseworker’s testimony
that Jane would not be able to meet J.N.’s need if he was returned to Jane.
As to whether termination of John’s parental rights is in the child’s best
interest, the trial court could have considered that John failed to regularly visit J.N.
and had not seen J.N. in the last four months prior to trial. The trial court heard
testimony that John had difficulty getting J.N. to eat during scheduled family visits,
dropped out of school, left the state for several months, failed to attend counseling
29
in accordance with his service plan, and failed to financially support J.N. during
the case even though he testified he had been gainfully employed. John also
testified that he planned on going into a Job Corps program and that he would not
be able to care for J.N. while in the program. The court heard John’s testimony that
J.N. appeared hungry in the photographs taken at the time of removal and that the
average parent would have been concerned with the child’s appearance. The trial
court could have also considered the CASA’s recommendation of unrelated
adoption and the caseworker’s testimony that J.N. was thriving in the foster home
and would likely be adopted.
Accordingly, we conclude that the Department established by clear and
convincing evidence that termination of Jane’s and John’s parental rights is in the
child’s best interest. We overrule Jane’s fourth issue and John’s third and fourth
issues. The trial court’s judgment is affirmed.
AFFIRMED.
_________________________
LEANNE JOHNSON
Justice
Submitted on April 1, 2015
Opinion Delivered May 21, 2015
Before McKeithen, C.J., Kreger and Johnson, JJ.
30