












[COMMENT1] 
 
 
 
 
 
                                      COURT
OF APPEALS
                                       SECOND
DISTRICT OF TEXAS
                                                   FORT
WORTH
 
 
                                        NO.
2-04-026-CV
 
 
IN THE INTEREST OF J.P.B., A CHILD
 
                                              ------------
 
             FROM
THE 16TH DISTRICT COURT OF DENTON COUNTY
 
                                              ------------
 
                     MEMORANDUM
OPINION[1]
ON REMAND
 
                                              ------------




This is an appeal from the
termination of parental rights. 
Following a jury trial in November 2003, the trial court terminated the
parental rights of Lonnie and Esmeralda in their twenty-month old son, J.P.B.[2]  Lonnie appealed, contending that the evidence
was legally and factually insufficient. 
In one issue, Lonnie contends that the evidence is legally and factually
insufficient to show that he knowingly placed J.P.B. in an environment which
endangered the child=s physical
or emotional well-being or knowingly allowed J.P.B to remain in such an
environment.  Lonnie did not challenge
the jury=s determination that termination of his parental rights would be in
J.P.B.=s best interest.  Esmeralda
appealed raising three issues.




We overruled Esmeralda=s three issues and affirmed the trial court=s judgment regarding the termination of her parental rights.[3]  On appeal, the supreme court affirmed our
judgment as to Esmeralda.[4]  Because we determined that there was legally
insufficient evidence from which a factfinder could reasonably form a firm
belief or conviction that Lonnie knowingly placed J.P.B. or knowingly allowed
J.P.B. to remain in conditions or surroundings which endangered his physical or
emotional well-being, we reversed the trial court=s judgment terminating the parental rights of Lonnie and rendered
judgment that the Texas Department of Protective and Regulatory Services take nothing
on its claim seeking to terminate the parental rights of Lonnie to his son
J.P.B.[5]  The supreme court determined that the
evidence was legally sufficient to support termination of Lonnie=s parental rights and remanded the case to this court for a factual
sufficiency review.[6]  We affirm.
FACTUAL BACKGROUND
At the time of trial, Lonnie
and Esmeralda, the birth parents of J.P.B., were married.  After a difficult and complicated pregnancy,
J.P.B. was born seven weeks prematurely on April 25, 2002, by caesarean
section.  J.P.B. remained in the hospital
until he was released to his parents on May 21, 2002.  Esmeralda stayed home to care for J.P.B.
while Lonnie worked Monday through Friday from 11:30 a.m. until approximately
8:30 p.m. and every other Saturday. 
Because she was recovering from her caesarean section and had difficulty
getting out of bed, Esmeralda cared for J.P.B. while in bed and had his diapers
and formula next to the bed with her.  At
nighttime, both Lonnie and Esmeralda would care for J.P.B.




On July 19, 2002, a skeletal
survey revealed that J.P.B. had suffered approximately twenty-one fractures in
bones throughout his body that were in various stages of healing.  Lonnie and Esmeralda both denied that either
of them had caused the injuries to J.P.B. 
After doctors discovered that J.P.B. had sustained these fractures, the
child was removed from Lonnie and Esmeralda=s care.  The State later sought
termination of Lonnie and Esmeralda=s parental rights.
FACTUAL SUFFICIENCY OF THE
EVIDENCE
Lonnie contends that the
evidence is factually insufficient to support the jury=s finding that he knowingly placed or knowingly allowed J.P.B. to
remain in conditions or surroundings that endangered the physical or emotional
well-being of the child.  Lonnie does not
challenge the factual sufficiency of the evidence to support the jury=s determination that termination of his parental rights would be in
the child=s best
interest.
1.  Standard of Review




A parent=s rights to Athe
companionship, care, custody, and management@ of his or her children are constitutional interests Afar more precious than any property right.@  Santosky v. Kramer, 455
U.S. 745, 758-59, 102 S. Ct. 1388, 1397 (1982); In re M.S., 115 S.W.3d
534, 547 (Tex. 2003).  In a termination
case, the State seeks not just to limit parental rights but to end them
permanentlyCto divest
the parent and child of all legal rights, privileges, duties, and powers
normally existing between them, except for the child=s right to inherit.  TEX. FAM. CODE ANN. ' 161.206(b) (Vernon Supp. 2005); Holick v. Smith, 685 S.W.2d
18, 20 (Tex. 1985).  We strictly
scrutinize termination proceedings and strictly construe involuntary
termination statutes in favor of the parent. 
Holick, 685 S.W.2d at 20-21; In re E.S.S., 131 S.W.3d 632,
636 (Tex. App.CFort Worth
2004, no pet.).
In proceedings to terminate
the parent‑child relationship brought under section 161.001 of the family
code, the petitioner must establish one or more of the acts or omissions
enumerated under subdivision (1) of the statute and must also prove that
termination is in the best interest of the child.  TEX. FAM. CODE ANN. ' 161.001
(Vernon Supp. 2005); In re J.L., 163 S.W.3d 79, 84 (Tex. 2005).  Both elements must be established;
termination may not be based solely on the best interest of the child as
determined by the trier of fact.  Tex.
Dep=t of Human
Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex.
1987).




Termination of parental
rights is a drastic remedy and is of such weight and gravity that due process
requires the petitioner to justify termination by clear and convincing
evidence.  TEX. FAM. CODE ANN. '' 161.001, 161.206(a); In re J.F.C., 96 S.W.3d 256, 263 (Tex.
2002).  This intermediate standard falls
between the preponderance standard of ordinary civil proceedings and the
reasonable doubt standard of criminal proceedings.  In re G.M., 596 S.W.2d 846, 847 (Tex.
1980); In re K.W., 138 S.W.3d 420, 425 (Tex. App.CFort Worth 2004, pet. denied). 
It is defined as the Ameasure 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 Ann. ' 101.007
(Vernon 2002).
This higher burden of proof
elevates the appellate standard of factual sufficiency review.  In re C.H., 89 S.W.3d 17, 25 (Tex.
2002).  A[A] finding that must be based on clear and convincing evidence cannot
be viewed on appeal the same as one that may be sustained on a mere
preponderance.@  C.H., 89 S.W.3d at 25.  In considering whether the evidence of
termination rises to the level of being clear and convincing, we must determine
whether the evidence is such that a factfinder could reasonably form a firm
belief or conviction that the grounds for termination were proven.  Id. 
Our inquiry here is whether, on the entire record, a factfinder could
reasonably form a firm conviction or belief that the parent violated one of the
conduct provisions of section 161.001(1) and that the termination of the parent=s parental rights would be in the best interest of the child.  Id. at 28.




The distinction between legal
and factual sufficiency lies in how we review the evidence.  J.F.C., 96 S.W.3d at 266.  In a factual sufficiency review, in
determining whether the evidence is such that a factfinder could reasonably
form a firm belief or conviction that its finding was true, we must consider
whether disputed evidence is such that a reasonable factfinder could not have
resolved it in favor of the 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 in the truth of its finding, then the
evidence is factually insufficient.  Id.  If we reverse on factual sufficiency grounds,
then we must detail in our opinion why we have concluded that a reasonable
factfinder could not have credited disputed evidence in favor of its
finding.  Id. at 266-67.
2.  Grounds for Termination




We review the evidence supporting
the jury=s finding that Lonnie knowingly placed J.P.B. or knowingly allowed him
to remain in conditions or surroundings which endangered his physical or
emotional well-being.  See Tex. Fam. Code Ann. ' 161.001(1)(D) (Vernon Supp. 2005).[7]  Family code section 161.001(1)(D) permits a
court to order termination if it finds by clear and convincing evidence that
the parent has Aknowingly
placed or knowingly allowed the child to remain in conditions or surroundings
which endanger the physical or emotional well-being of the child.@  Id.
3.  Review of the Evidence Presented
Lonnie testified that on May
23, 2002, he and Esmeralda took J.P.B. for a follow-up appointment at
PediPlace.  On May 31, 2002, J.P.B. saw
Dr. Fitzgerald at PediPlace, who diagnosed J.P.B. with thrush[8]
and prescribed an antibiotic.  Sometime
during the month of June, J.P.B. had a 
blood test done at a hospital in Lewisville and another blood test
performed at a clinic in Lewisville. 
Lonnie testified that at no time during those two appointments did any
doctor inform him that J.P.B. was acting abnormally in any way.  On June 28, 2002, J.P.B. received
immunizations at PediPlace.  Lonnie
testified that he informed the doctor that J.P.B. was crying all the time, and
the doctor performed an examination of J.P.B. but told Lonnie that J.P.B. was
still suffering from thrush.  Lonnie
testified that the doctor examined J.P.B.=s arms and legs, but the doctor never commented that he saw any
abnormalities in them.




Lonnie testified that around
July 1, 2002, he noticed that J.P.B. did not move or kick his leg and was
constantly crying.  Therefore, on that
date, Lonnie took J.P.B. to Trinity Medical Center (Trinity).  He testified that he noticed that one of
J.P.B.=s legs was swollen and that he thought it may have been an allergic
reaction to the immunization shots that J.P.B. had recently received. According
to Lonnie, the doctors took x-rays of J.P.B. but did not mention anything about
fractures.  He testified that the doctors
at Trinity instructed Lonnie and Esmeralda to give J.P.B. suppositories for
constipation.  Dr. Farah Naz testified
that she was aware that J.P.B. went to Trinity on or around July 1, 2002, but
he was not admitted to the hospital and she was unaware whether x-rays were
taken of J.P.B. at that time.




Lonnie and Esmeralda again
took J.P.B. to Trinity on July 7, 2002, because Lonnie noted that the child was
again crying and was having bowel problems. 
Dr. Naz testified that she received a call from Trinity Hospital on July
7, 2002.  The hospital physician informed
her that J.P.B. had swelling in his right thigh, and the emergency room
physician had seen him twice that week with the same problem, but now he was
even more irritable and fussy, and the swelling looked worse.  When Dr. Naz examined him at Trinity, she
noticed that his right leg would not move very much, and he would flinch when
she touched it.  A bone scan and
ultrasound were performed on J.P.B.; the result of the bone scan was normal and
the result of the ultrasound showed inflammation of the muscle.
Lonnie testified that after
the doctors took x-rays of J.P.B.=s leg on July 7, 2002, they never mentioned anything about
fractures.  He also testified that the
doctors at Trinity never mentioned to him that it appeared that J.P.B. was
abused.  Dr. Naz transferred J.P.B. to
Children=s Medical Center in Dallas (Children=s) on July 12, 2002, to have an MRI. 
However, physicians at Children=s performed a spinal tap, rather than an MRI.  When doctors at Children=s released J.P.B. on July 15, 2002, they had diagnosed him with
myositis, or muscle inflammation, and prescribed medication to treat it.
Lonnie testified that when he
asked the doctors at Children=s whether they had performed an MRI on J.P.B., the  doctors informed him that they decided that
J.P.B. did not need an MRI.  Lonnie
testified that the first time he heard J.P.B. shriek in pain was when the
doctors at Children=s performed
the spinal tap.




Dr. Naz testified that after
J.P.B.=s release from Children=s, a nurse employed by her clinic called and scheduled an appointment
for J.P.B. at the clinic because Dr. Naz had read the discharge summary from
Children=s and noted that an MRI was not performed on J.P.B.  Lonnie testified that he did not recall
whether a nurse from Dr. Naz=s office called to schedule the July 19, 2002 appointment or whether
he was the one to call and schedule the appointment, but he testified that he
took J.P.B. to the appointment.  Dr. Naz
testified that at the appointment, Lonnie was concerned that J.P.B. was not
moving his leg and was not getting better. 
Lonnie testified that when he informed Dr. Naz that Children=s did not perform the requested MRI, she again made arrangements for
J.P.B. to get an MRI at Children=s.  She also testified that
Lonnie was attentive, and when she saw both parents together, he was the one
answering questions, while Esmeralda was more passive.  Dr. Naz expressed her concern that both
parents were uneducated about problems associated with a premature baby.  Dr. Naz sent J.P.B. to the emergency room at
Children=s to have an MRI performed because Trinity did not have the
capabilities to perform an MRI on babies.




On July 19, 2002, at Children=s, an x-ray was taken of J.P.B.=s right leg, which revealed a fracture.  Because this fracture was revealed, a
skeletal survey was ordered and performed on J.P.B. to determine whether any
other parts of his body were injured. 
The skeletal survey revealed multiple old healing fractures in the ribs,
femur, radius, and ulnar.  According to
Dr. Thomas Abramo,  these fractures were
likely caused by yanking J.P.B.=s leg, picking him up by the thigh or femur, or throwing him against
something.  He testified that the
fractures were at various stages of healing and could be anywhere from seven
days to four weeks old.
He testified that because of
the various stages at which the fractures were healing, it was likely that
J.P.B. had been physically battered multiple times.  He testified that a child with a femur
fracture would be intensely fussy and constantly crying and that changing
diapers would have caused extensive pain for the child.  In his opinion, a parent without medical
training would know that the child was injured by this type of high-pitched,
constant, and intense cry.
Dr. Eugene Sheffield, who
specializes in pediatric radiology, testified that the x-ray taken on July 7,
2002, at Trinity reveals an acute fracture in J.P.B.=s eighth rib on his left side that appeared to have occurred within
one to two days of when the x-ray was taken, or on the 5th, 6th or 7th of
July.  Lonnie testified that he was off
work on July 4th through 7th, the dates that Dr. Sheffield testified that the
rib injuries likely occurred.  Dr.
Sheffield also found additional rib fractures when reviewing the x-rays taken
by Children=s on July
19, 2002 that were between two and four weeks old as of that date.  Lonnie had no explanation for how the rib
injuries occurred to J.P.B.




Dr. Sheffield also reviewed
the x-rays taken of J.P.B.  When
testifying regarding the injury to J.P.B.=s arm, Dr. Sheffield explained that a bruise may or may not have
appeared on the child depending on whether he sustained a direct blow or
whether the injury was a yanking-type injury. 
He testified that these fractures could not have been caused by the
usual activities of daily living, such as changing a child=s diaper.  Dr. Sheffield also
testified that the fracture in the right leg could not have been caused by
immunizations because dramatically more force would have been applied to cause
the fracture.  In his opinion, it is
likely that the fracture to the femur was caused by a direct blow to J.P.B.=s leg or by someone trying to snap the limb.  He also testified that the fractures were in
various stages of healing, meaning that they had occurred at different times,
which is indicative of child abuse.
Esmeralda testified that
J.P.B. cried all the time, from the first time he came home from the hospital
after he was born.  She testified that
she was able to console his cries.  She
was unable to recall whether she took J.P.B. to see a doctor between the time
he was initially released from the hospital on May 21, 2002, and the July 7,
2002 visit to Trinity when J.P.B. saw Dr. Naz. Esmeralda denied that either she
or her husband caused the injuries to J.P.B., although she acknowledged that
she and her husband were the only two people who had access to the child.  Esmerelda suggested that the doctors or
nurses at the hospital inflicted the injuries to J.P.B. when the staff would
take him for a procedure, such as an x-ray or a bone scan.




Esmeralda testified that she
never saw Lonnie do anything harmful to J.P.B. 
She testified that Lonnie expressed his concern that J.P.B. was in some
kind of pain because J.P.B. was crying. 
She recalled that Lonnie took J.P.B. to PediPlace one time without
her.  She testified that she informed
Lonnie that J.P.B. was constantly crying. 
She testified that the doctors at Trinity informed her that nothing was wrong
with J.P.B, other than inflammation of the leg.
Dr. Mark Foster, a clinical
and forensic psychologist appointed by the court to evaluate Lonnie and
Esmeralda, testified that Lonnie was very defensive and tried to portray
himself during the evaluation in a positive light, more so than the average
person.  He also testified that Lonnie is
the kind of person who would be resistant to @rocking the boat@ or
confronting a situation head-on.




Susan Gleghorn, a Court
Appointed Special Advocate (CASA) volunteer who reviewed J.P.B.=s case, testified and recommended that Lonnie and Esmeralda=s parental rights be terminated. 
She stated that in her review of J.P.B.=s case, she concluded that Esmeralda abused her child and that Lonnie
possibly did, too.  Although she did
acknowledge that she thought it was reasonable for Lonnie to rely on what the
medical professionals were telling him, she knew that Lonnie lived in the
home.  She testified that it was her
opinion that Lonnie should have known that there was something desperately
wrong because he lived in the house with J.P.B. and Esmeralda.
Tonya Vossekuil, an
investigator for TDPRS, interviewed Lonnie and Esmeralda in conjunction with
the investigation of J.P.B.=s case at Children=s after the fractures were discovered. 
She testified that when she interviewed Lonnie, he stated that J.P.B.
had been very fussy for the preceding three to four weeks, especially when he
changed the child=s diaper,
and he did not know what was wrong with him. Cassidy Baker, a social worker for
TDPRS, testified that she recommended that the parental rights of both Lonnie
and Esmeralda be terminated because, although the department does not know who
inflicted the injuries, both parents either placed the child in a situation
where he could be harmed or failed to remove him from a situation where he
could be harmed.




Lonnie testified that when he
was informed of the fractures in J.P.B.=s bones, he initially believed that a bone disease caused the
fractures, and at the time of trial he still was unaware of whether the child
actually has a bone disease.  Esmeralda
informed Dr. Foster during his evaluation of her that she believed that J.P.B.
sustained these injuries as a result of having a bone disease.  Esmeralda later testified that she did not
think that J.P.B. sustained these fractures as a result of a bone disease and
that J.P.B. does not have a bone disease. 
After J.P.B was removed from Lonnie and Esmeralda=s home and was in the care of Lonnie=s parents, Lonnie, Sr. and Karen, Lonnie, Sr. and Karen took the child
to Houston to have tests performed to determine whether the child suffered from
a bone disease.  At the time of trial Lonnie
Sr. and Karen were unwilling to rule out the possibility that he did not have a
bone disease because, according to them, all the tests had not been
completed.  However, Dr. Sheffield
testified that, by looking at the x-rays, he determined that J.P.B. does not
have a bone disease and had appropriate bone density for his age.
4.  Application of Law to Facts




Lonnie cites In re D.P.
to support his contention that the evidence is factually insufficient to
support termination of his parental rights. 
See 96 S.W.3d 333, 338-39 (Tex. App.CAmarillo 2001, no pet.).  The
State contends that the present case is distinguishable from D.P.
because here much more circumstantial evidence was presented to produce a firm
belief or conviction in the mind of a rational trier of fact that Lonnie
knowingly placed or allowed J.P.B. to remain in an environment that endangered
his physical and emotional well-being.  See
id.  We find that D.P. is
distinguishable from the present case because in D.P., there was
evidence that the child was in the care of a baby-sitter, as well as the mother
and another male who resided in the home. 
See id. at 335, 339.  The
evidence reveals that Lonnie and Esmrealda shared in J.P.B.=s care, and no other person served as J.P.B.=s primary caregiver. Although Esmeralda testified that she believed
the medical staff at either Trinity or Children=s caused these injuries to J.P.B., Dr. Sheffield negated the
possibility that the hospital staff caused these injuries because the
technicians generally work in groups of two or three.
Based on Dr. Sheffield=s review of the July 7, 2002 x-ray from Trinity, J.P.B. had at least
one rib fracture that likely occurred between July 4 and July 7, 2002, a time
when Lonnie testified that he and Esmeralda were home alone with J.P.B.  Additionally, the evidence demonstrates that
the twenty-one fractures, which were likely caused by excessive force, would
have caused J.P.B. to emit high-pitched screams that the parents should have
noticed.  The evidence also indicates
that J.P.B. sustained these fractures over a period of time and that they were
a result of ongoing mistreatment. 
Finally, Lonnie left the constantly crying child at home alone with
Esmeralda during the day, and Esmeralda testified that she and Lonnie had total
care of J.P.B.




The jury, which is solely
responsible for determinations of credibility and demeanor, heard testimony
that Lonnie is the kind of person who would be resistant to @rocking the boat@ or
confronting a situation head-on. 
Furthermore, although the doctors treating J.P.B. initially failed to
diagnose the fractures, these doctors did not live in the home, and the jury
heard testimony from the CASA volunteer that it was her opinion that Lonnie
should have known that something was desperately wrong.  Lonnie hired a criminal defense lawyer on
July 22, 2002, three days following the discovery of the fractures, and he
testified that he hired the lawyer because he was concerned with whether he and
his wife were going to be charged with a crime. 
Based on the foregoing testimony, the jury could rationally determine
that Lonnie was in fact attempting to hide his knowledge of how these injuries
were inflicted upon J.P.B.
Additionally, the supreme
court has opined that although Lonnie may have reacted appropriately to
symptoms of abuse, the evidence supports a finding that he knowingly failed to
ameliorate the underlying cause.  In
re J.P.B., 180 S.W.3d at 574.
After reviewing all of the
evidence, we conclude that the evidence supports the jury=s finding by clear and convincing evidence that Lonnie knowingly
placed or allowed J.P.B. to remain in conditions or surroundings that endangered
his physical or emotional well-being. 
Accordingly, we hold that the evidence is such that a factfinder could
reasonably form a firm belief or conviction that the ground for termination was
proven.  We overrule Lonnie=s sole issue.
 




CONCLUSION
Having overruled Lonnie=s sole issue, we affirm the trial court=s judgment.
 
DIXON W. HOLMAN
JUSTICE
 
PANEL
B:  HOLMAN, WALKER, and MCCOY, JJ.
 
WALKER,
J. filed a dissenting opinion.
 
DELIVERED:  May 4, 2006
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 















 
 
 
 
 
 
                                COURT
OF APPEALS
                                       SECOND
DISTRICT OF TEXAS
                                                   FORT
WORTH
 
 
                                         NO.
2-04-26-CV
 
 
IN
THE INTEREST OF J.P.B., A CHILD
 
 
                                              ------------
 
             FROM
THE 16TH DISTRICT COURT OF DENTON COUNTY
 
                                              ------------
 
                        DISSENTING
OPINION ON REMAND 
 
                                              ------------
 




Because there was factually
insufficient evidence to support the jury=s finding that Appellant Lonnie=s parental rights should be terminated, I respectfully dissent.  Giving due consideration to evidence that the
jury reasonably could have found to be clear and convincing, I would hold that
the jury could not have reasonably formed a firm belief or conviction that
Lonnie knowingly placed J.P.B. or knowingly allowed J.P.B. to
remain in conditions that endangered his physical or emotional well‑being.  See Tex.
Fam. Code Ann.'
161.001(1)(D) (Vernon Supp. 2005); In re C.H., 89 S.W.3d 17, 25 (Tex.
2002); In re J.T.G., 121 S.W.3d 117, 124 (Tex. App.CFort Worth 2003, no pet.).
A parent=s rights to Athe
companionship, care, custody, and management@ of his or her children are constitutional interests Afar more precious than any property right.@  Santosky v. Kramer, 455
U.S. 745, 758-59, 102 S. Ct. 1388, 1397 (1982); In re M.S., 115 S.W.3d
534, 547 (Tex. 2003).  Termination of
parental rights is a drastic remedy and is of such weight and gravity that due
process requires the petitioner to justify termination by clear and convincing
evidence.  TEX. FAM. CODE ANN. '' 161.001, 161.206(a); In re J.F.C., 96 S.W.3d 256, 263 (Tex.
2002).  A[A] finding that must be based on clear and convincing evidence cannot
be viewed on appeal the same as one that may be sustained on a mere
preponderance.@  C.H., 89 S.W.3d at 25.  In considering whether the evidence of
termination rises to the level of being clear and convincing, we must determine
whether the evidence is such that a factfinder could reasonably form a firm belief
or conviction that the grounds for termination were proven.  Id.




In determining a factual
sufficiency point, we must give due consideration to evidence that the trier of
fact could reasonably have found to be clear and convincing and then determine
whether, based on the entire record, a factfinder could reasonably form a firm
conviction or belief that its finding was true. 
C.H., 89 S.W.3d at 25.  We
must consider all the evidence in the record, both that in support of and
contrary to the trial court=s findings.  C.H., 89
S.W.3d at 27‑29.
Here, the jury found that
Lonnie did not engage in conduct or knowingly place J.P.B. with persons who
engaged in conduct that endangered J.P.B.=s physical or emotional well-being. 
Thus, our only inquiry is whether, on the entire record, a factfinder
could reasonably form a firm conviction or belief that Lonnie knowingly placed
J.P.B. or knowingly allowed J.P.B. to remain in conditions or surroundings that
endangered his physical or emotional well-being.  Id. at 28.  The following chart demonstrates the evidence
supporting and contradicting the jury=s finding that Lonnie knowingly placed J.P.B. or knowingly allowed J.P.B.
to remain in conditions or surroundings that endangered his physical or
emotional well-being.




 
Evidence Against Finding


 
Evidence Supporting Finding



















































 
$  
   Lonnie quit school in the tenth grade
   and obtained his GED.  He testified
   that he has no medical training.
 
$  
   Before Esmeralda had J.P.B., Lonnie
   and Esmeralda had one unplanned pregnancy, but she had a miscarriage.  The couple planned their second pregnancy
   with J.P.B.  They understood that
   because of Esmeralda=s
   long-term diabetes, her pregnancy would be difficult and would put her life
   at risk.  But both were willing to
   take this risk in order to have a baby.
 
J.P.B.
   was born seven weeks prematurely. 
   J.P.B. stayed in the hospital for one month after his birth.
 
$  
   After J.P.B. was born Lonnie bought
   bought gum cigars and passed them out to his friends; he also bragged to
   everyone at work that he had a baby boy.
 
$  
   Lonnie worked Monday through Friday
   from 11:30 a.m. until approximately 8:30 p.m. and every other Saturday.  Every evening when Lonnie came home from
   work, he and Esmeralda would go to the hospital, stay three to four hours,
   and return home to sleep there for the rest of the night.
 
$  
   J.P.B. was released from the hospital
   on May 21, 2002.  Esmeralda stayed
   home with J.P.B. while Lonnie worked.
 
$  
   Esmeralda testified that from the
   moment they took J.P.B. home, he cried constantly, especially when she
   changed his diapers.
 
$  
   Lonnie took J.P.B. to either a doctor=s
   office or a hospital eight times between May 23, 2002 and July 19,
   2002.  Until July 19th, no doctor or
   any other hospital personnel informed Lonnie that J.P.B. had any
   abnormalities other than those specifically discussed below, and Lonnie
   testified that he believed what all the doctors said about J.P.B.
 
$  
   On May 23, 2002,  Lonnie and Esmeralda took J.P.B. to
   PediPlace for a follow-up.  The
   doctors did not express any concerns about J.P.B. at that time.
 
$  
   On May 31, 2002, Lonnie took J.P.B. to
   PediPlace for another follow-up and told the doctor that J.P.B. was crying
   alot; the doctor diagnosed that J.P.B. had thrush and explained that J.P.B.
   was probably crying because he had thrush. 
   The doctor had no other concerns about J.P.B. and did not see any
   abnormalities.  The doctor prescribed
   an antibiotic for thrush. Lonnie testified that at that time, he did not
   notice anything abnormal about the way J.P.B. moved his arms or legs.
 
$  
   In the middle of June, Lonnie and
   Esmeralda took J.P.B. to a hospital for blood tests.  Lonnie told the doctor that J.P.B. was
   crying alot but that another doctor had recently diagnosed J.P.B. with
   thrush and had prescribed an antibiotic. 
   Lonnie testified that none of the medical personnel commented that
   J.P.B. was behaving abnormally in any way.
 
$  
   In mid- to late June, Lonnie and
   Esmeralda took J.P.B. to a specialty clinic for another blood test.  J.P.B. was crying, and a doctor helped the
   parents try to pacify J.P.B. because the doctor was drawing blood.  No medical personnel told either parent
   that J.P.B. was acting abnormally or that he needed any other treatments.
 
$  
   On June 28, 2002, Lonnie took J.P.B.
   to PediPlace for immunization shots. 
   Lonnie told the doctor that J.P.B. was crying all the time, but the
   doctor examined J.P.B. and told Lonnie that J.P.B. was still suffering from
   thrush.  Lonnie testified that during
   the examination, the doctor moved J.P.B.=s
   arms and legs to see if he had good reflexes and that the doctor never said
   he saw any abnormalities in J.P.B.
 
$  
   On July 1, 2002, Lonnie took J.P.B to
   the emergency room because he was constipated, was crying alot, and his leg
   was swollen.  Lonnie testified that
   the doctors took x-rays but that they did not diagnose any fractures.  Lonnie testified that J.P.B.  was diagnosed with Agas  bubbles inside his stomach@
   and that the hospital staff gave Lonnie some suppositories to give J.P.B.
   Lonnie testified that a doctor examined J.P.B. and did not express any
   concerns that J.P.B. had any abnormalities. 
   Lonnie testified that he relied on the doctor=s
   advice.
 
$  
   On July 7, 2002, Lonnie again took
   J.P.B. to the emergency room because he was crying and constipated.  J.P.B.=s
   leg was still swollen, and the hospital staff took x-rays of his leg, a bone
   scan, and an ultrasound.  Medical
   personnel showed Lonnie the x-rays but did not tell Lonnie that they saw any
   fractures.  Dr. Naz examined J.P.B.
   but did not state that J.P.B. had any abnormalities.  Dr. Naz testified that J.P.B. was moving
   his legs less than normal and would flinch slightly when she dealt with his
   right leg.  J.P.B. was admitted to the
   hospital that day because the hospital staff did not know why his leg was
   swollen, and J.P.B. stayed at the hospital for three days.
 
Dr. Naz testified that
   Lonnie was concerned that J.P.B. was not moving his leg, that Lonnie was
   attentive, and that he answered questions.$      On July 12, 2002, Dr. Naz transferred
   J.P.B. to a children=s
   hospital to have an MRI because the children=s
   hospital was better equipped to do MRIs on children. However, medical
   personnel at the children=s hospital did not do an
   MRI on J.P.B.; instead, they did a spinal tap to determine whether J.P.B.
   had cystic fibrosis.  The doctors at
   the children=s
   hospital diagnosed J.P.B. with myositis, which is muscle inflammation, and
   prescribed a medicine to treat it. The hospital discharged J.P.B. on July
   15, 2002.  Lonnie testified that
   before J.P.B. was released, he asked the hospital staff whether they were
   going to do an MRI on J.P.B. and that the staff told him that J.P.B. did not
   need an MRI.
 
$  
   Lonnie took J.P.B. to Dr. Naz on July
   19, 2002, for a follow-up visit. J.P.B.=s
   leg was still swollen, and Dr. Naz examined it.  Lonnie told Dr. Naz that the staff at the
   children=s
   hospital did not do an MRI, and Dr. Naz had Lonnie take J.P.B. back to the
   children=s
   hospital for an MRI.  Lonnie picked up
   Esmeralda from home, and the two took J.P.B. to the children=s
   hospital.  Medical personnel at the
   children=s
   hospital took two sets of x-rays of J.P.B.=s
   legs.  After almost ten hours in the
   hospital, a doctor informed Lonnie and Esmeralda that they had found
   fractures in J.P.B.=s
   x-rays.  This was the first time that
   any medical professional told Lonnie that J.P.B. had fractured bones and the
   first time that anyone suggested that J.P.B. had been abused.
 
$  
   Although the State introduced five
   x-rays of J.P.B.=s
   body, neither Lonnie nor the State introduced into evidence the majority of
   J.P.B.=s
   medical records, which could support or disprove Lonnie=s
   testimony about what he told the doctors during each of his visits.  But the State, not Lonnie, had the burden
   of proof.  See J.F.C., 96
   S.W.3d at 263.
 
$  
   Lonnie introduced a record of J.P.B.=s
   June 28, 2002, visit to PediPlace for immunization shots, which included a
   handwritten note that the parents were concerned that J.P.B. was Afussy
   after feeds all the time.@  Lonnie also introduced the discharge
   instructions from J.P.B.=s July 15, 2002, hospital
   visit that diagnosed J.P.B. with myositis.
 
Esmeralda
   testified that Lonnie was worried about J.P.B. because he was always crying
   and that she never saw Lonnie get angry or frustrated with J.P.B. when
   J.P.B. would cry.$      A TDPRS investigator who investigated the
   allegation that J.P.B. was abused testified that Lonnie told her J.P.B. had
   been very fussy over the past three to four weeks, especially when he
   changed the child=s
   diapers, and that Lonnie did not know what was wrong with J.P.B.


 
$  
   Lonnie testified that he and his wife,
   Esmeralda, were the only people with unlimited access to J.P.B.
 
$  
   A July 7, 2002 x-ray revealed that
   J.P.B. suffered rib fractures that likely occurred between July 5, 2002 and
   July 7, 2002.  Lonnie testified that
   he was off work during those dates and that he and Esmeralda were home alone
   with J.P.B.
 
$  
   TDPRS=s
   radiology expert, Dr. Eugene Sheffield, testified that twenty-one fractures
   were detected in J.P.B.=s July 19, 2002 skeletal
   survey and that the fractures were approximately two to four weeks old and
   were at various stages of healing.
 
$  
   Dr. Thomas Abramo testified that a
   parent should have known that something was wrong with a child with such
   injuries and should have heard high-pitched screams from the child.
 
$  
   Although Lonnie testified that he told
   J.P.B.=s
   doctor that J.P.B.=s
   leg was swollen during the July 1st and 7th hospital visits, J.P.B.=s
   doctor testified that she did not think Lonnie pointed out any swelling in
   J.P.B.=s
   legs during either visit.
 
A
   psychologist who interviewed Lonnie after Child Protective Services took
   J.P.B. into custody testified that Lonnie was very defensive and that he is
   the type of person who would be resistant to Arocking
   the boat@
   and could be resistant to confronting a situation head on if he needed to
   know something.




 




The above
chart demonstrates that, in light of the entire record, the disputed evidence
that a reasonable factfinder could not have credited in favor of its finding is
so significant that a factfinder could not have reasonably formed a firm
conviction or belief in the truth of its finding.  See J.F.C., 96 S.W.3d at 266.  The evidence supporting the finding permits
an inference that Lonnie should have known that J.P.B. was somehow
injured in his surroundings, but the State had to prove by clear and convincing
evidence that Lonnie knowingly placed J.P.B. or knowingly allowed
J.P.B. to remain in conditions that endangered his physical or emotional
well-being.  See TEX. FAM. CODE ANN. '' 161.001, 161.206(a); J.F.C., 96 S.W.3d at 263; In re D.P.,
96 S.W.3d 333, 338-39 (Tex. App.CAmarillo 2001, no pet.) (holding that factually insufficient evidence
existed to support finding that mother acted knowingly when the child=s injuries were internal and when there was no direct evidence as to
how or when the child sustained the injuries or who injured the child).  Because the jury failed to find that Lonnie
caused J.P.B.=s injuries
and failed to find that Lonnie knowingly placed J.P.B. with persons who caused
J.P.B.=s injuries, it is especially difficult to understand how, based on the
evidence, the jury could have reasonably formed a firm conviction or belief
that Lonnie  knowingly placed J.P.B. or
knowingly allowed J.P.B. to remain in conditions or surroundings that
endangered J.P.B.=s physical
or emotional well-being.  That is, the
jury failed to find that Lonnie caused the fractures and failed to find that
Lonnie knew Esmeralda was causing the fractures, but nonetheless found that
Lonnie placed or allowed J.P.B. to remain in detrimental conditions or
surroundings.




Lonnie took
premature J.P.B. to doctors eight times in less than two monthsCfour of the doctor=s visits occurred during the two to four weeks when the fractures allegedly
occurredCand doctors failed to notice any bruising or abnormalities with
J.P.B.  Yet the majority holds that
LonnieCwho received his GED and has no medical trainingCshould have been able to determine what the doctors did not, that
J.P.B. was suffering from fractured bones indicating that the conditions or
surroundings in which J.P.B. was placed were endangering him.  Viewing the evidence under the appropriate
standard of review, I would hold that, on the entire record, a factfinder could
not reasonably have formed a firm conviction or belief that Lonnie knowingly
placed or knowingly allowed J.P.B. to remain in conditions that endangered his
physical or emotional well‑being.  See
Tex. Fam. Code Ann.' 161.001(1)(D); C.H., 89 S.W.3d at 25; J.T.G., 121
S.W.3d at 124.  I would sustain Lonnie=s issue and remand the case concerning termination of Lonnie=s parental rights on this basis for a new trial.
 
SUE WALKER
JUSTICE
 
DELIVERED:  May 4, 2006




[1]See Tex. R. App. P. 47.4.


[2]To
protect the privacy of the parties involved in this appeal, we identify the
child by initials only and Appellants by first names only.  See Tex.
Fam. Code Ann. '
109.002(d) (Vernon 2002). 


[3]In re
J.P.B., No. 2‑04‑026‑CV, 2005 WL 327168, at *3-*9 (Tex.
App.CFort
Worth Feb. 10, 2005, pet. granted), aff=d in
part, rev=d in
part, 180 S.W.3d 570 (Tex. 2005).


[4] In
re J.P.B., 180 S.W.3d at 575.


[5]In re
J.P.B., 2005 WL 327168, at *10-*11.


[6]In re
J.P.B., 180 S.W.3d at 573-74.


[7] The
jury answered Ayes@ to
the question of whether they found by clear and convincing evidence that Lonnie
Aknowingly
placed or knowingly allowed the child, [J.P.B.], to remain in conditions or
surroundings which endangered the physical or emotional well-being of the
child.@  The jury charge also included a question
asking the jury whether it found by clear and convincing evidence that Lonnie Aengaged
in conduct, or knowingly placed the child, [J.P.B.], with persons who engaged
in conduct, which endangered the physical or emotional well-being of the child.@  The jury answered the question in Lonnie=s
favor.


[8]Thrush
is a disease caused by a fungus, Candida albicans, that occurs most often in
infants and children, characterized by small, whitish eruptions in the oral
cavity. Webster=s Third New Int=l Dictionary of the English Language 2386
(3rd ed. 2002).






 [COMMENT1]
MAJORITY BY JUSTICE HOLMAN,
DISSENT BY JUSTICE WALKER



