      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-01-00072-CV



                                       Izzat Davis, Appellant

                                                   v.

              Texas Department of Protective and Regulatory Services, Appellee




      FROM THE DISTRICT COURT OF BELL COUNTY, 146TH JUDICIAL DISTRICT
           NO. 175,084-B, HONORABLE RICK MORRIS, JUDGE PRESIDING




                Appellant Izzat Davis appeals the order terminating her parental rights to two children.

Appellant contends that the order is not supported by sufficient evidence, that the court erred by

admitting evidence of her convictions, and that the termination of her parental rights violates her state

and federal constitutional rights. We will affirm the judgment.

                Appellant and Antonilius Davis, Sr. (“Davis”) had two children together—a boy, T.J.,

born April 24, 1997, and a girl, A.D., born June 29, 1998. Appellee Texas Department of Protective

and Regulatory Services (“the Department”) removed them from appellant’s care after T.J. suffered

fourteen brand-like burns in April 1999. Appellant did not seek medical attention for him until a

representative from Child Protective Services intervened—at least three days after appellant admits

discovering that some of the burns were more than superficial. The boy’s assailant was unidentified

at the time of trial. There was no evidence of injury to A.D. in this incident.
               At trial, the court charged the jury that the court would terminate appellant’s parental

rights only if the Department proved by clear and convincing evidence that at least one of the

following events occurred:


       1. The mother has knowingly placed the child in conditions and surroundings which
          endanger the physical well-being of the child; or

       2. The mother has knowingly placed the child in conditions and surroundings which
          endanger the emotional well-being of the child; or

       3. The mother has knowingly allowed the child to remain in conditions and
          surroundings which endanger the physical well-being of the child; or
       4. The mother has knowingly allowed the child to remain in conditions and
          surroundings which endanger the emotional well-being of the child; or

       5. The mother has engaged in conduct which endangers the physical well-being of
          the child; or

       6. The mother has engaged in conduct which endangers the emotional well-being of
          the child; or

       7. The mother has knowingly placed the child with persons who engaged in conduct
          which endangers the physical well-being of the child; or

       8. The mother has knowingly placed the child with persons who engaged in conduct
          which endangers the emotional well-being of the child.


See also Tex. Fam. Code Ann. § 161.001(1)(D) & (E) (West Supp. 2001). The court also charged

the jury that parental rights could be terminated only if clear and convincing evidence proved that

termination would be in the children’s best interest. See id. § 161.001(2). The court instructed the

jury to consider the following factors in assessing the children’s best interest: (1) the desires of the

children; (2) the emotional and physical needs of the children now and in the future; (3) the emotional

and physical danger to the children now and in the future; (4) the parenting ability of the individuals

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seeking custody; (5) the programs available to assist those individuals to promote the best interest

of the children; (6) the plans for the children of those individuals or by the agency seeking custody;

(7) the stability of the home or proposed placement; (8) the acts or omissions of the parent that may

indicate that the existing parent-child relationship is not a proper one; and (9) any excuse for the acts

or omissions of the parent. See Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976). The jury

found that appellant’s parental rights should be terminated as to both children.1

                We first will consider appellant’s complaints that the court erred by admitting evidence

of her conviction, then address her concerns regarding the evidentiary sufficiency and constitutionality

of the termination of her parental rights.

                Appellant contends that the district court erred by denying her motion in limine to

exclude references to her conviction for voluntary manslaughter of a child. She contends that the

prejudice of this evidence outweighed its probative value and that the Department introduced this

evidence to enrage rather than inform the jury. Appellant did not, however, raise this objection when

evidence of this conviction was repeatedly offered and admitted at trial. She acknowledges that a trial

court’s denial of a motion in limine does not preserve error. See In re R.V., Jr., 977 S.W.2d 777, 780

(Tex. App.—Fort Worth 1998, no pet.). She contends, however, that the fact that her conviction was

mentioned by so many witnesses and documents rendered the “constant vigil” needed to object to all

such modes “impractical.” She cites no authority and we find none creating such an exception to the

requirement of at least an initial objection at trial. See Tex. R. App. P. 33.1(a); see also Chavis v.


    1
       The court submitted a similar charge regarding the parental rights of the children’s father,
omitting items five and six regarding parental conduct that endangers the children’s physical and
emotional well-being. The father does not appeal the court’s termination of his rights in this case.

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Director, State Worker’s Comp. Div., 924 S.W.2d 439, 447 (Tex. App.—Beaumont 1996, no writ).

Because appellant did not preserve the error she raises on appeal, we resolve issue two in favor of

the judgment.

                Appellant’s complaint that the evidence is legally and factually insufficient to support

termination requires review of the entire record. We must determine whether clear and convincing

evidence supports the findings that the parent committed a dangerous act or omission and that

termination is in the children’s best interest. See Tex. Fam. Code Ann. § 161.001 (West Supp. 2001).

Clear and convincing evidence is a level of proof between preponderance of the evidence and proof

beyond a reasonable doubt; it is 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 allegation sought to be established. See

Tex. Fam. Code Ann. § 101.007 (West 1996); Leal v. Texas Dep’t of Prot. & Reg. Servs., 25 S.W.3d

315, 319 (Tex. App.—Austin 2000, no pet.). This heightened standard of proof is incorporated into

the standard of review. Id. at 320. In deciding a challenge to the legal sufficiency of the evidence

in a parental rights termination case, we consider only the evidence and inferences tending to support

the findings and disregard all contrary evidence. See id. at 319 (citing Garza v. Alviar, 395 S.W.2d

821, 823 (Tex. 1965); In re King’s Estate, 244 S.W.2d 660, 661 (Tex. 1951)). We must uphold the

order if it is supported by more than a scintilla of probative evidence. Leal, 25 S.W.3d at 321. In

determining a factual sufficiency challenge, we review all of the evidence, both for and against the

findings, and will set aside the judgment only if the proof is so obviously weak or the findings so

contrary to the weight of the evidence as to be clearly wrong and unjust. See id. (citing Cain v. Bain,

709 S.W.2d 175, 176 (Tex. 1986); Garza, 395 S.W.2d at 823)). We will not substitute our judgment



                                                   4
for that of the trier of fact merely because we would make a different finding. See Westech Eng’g.,

Inc. v. Clearwater Constructors, Inc., 835 S.W.2d 190, 196 (Tex. App.—Austin 1992, no writ).

                We begin our chronological review of the evidence with appellant’s 1988 conviction

for voluntary manslaughter of a child; the victim was one of her four children from previous

relationships. In addition to references to the conviction by many witnesses, the Department read into

the record testimony from a previous proceeding regarding the child’s death. In that prosecution, a

neighbor testified that she heard appellant’s child crying for an extended period of time and saw

appellant shake the child to quiet her, then extend her arms as if she had thrown the child. The

neighbor heard a sound, heard appellant say, “Now will you shut your damn mouth,” and then heard

only silence; the neighbor did not see the child alive again. (In this termination case, appellant denied

causing her child’s death. She posited that the child died of heat stroke.) Appellant was convicted

of voluntary manslaughter by various means of causing trauma to the child’s head.

                When appellant went to prison, her two surviving children were placed permanently

with their maternal grandmother. In 1991, appellant was placed on parole until 2009 and released

from prison. Appellant’s next child, born in 1993, also was placed with appellant’s mother. T.J.,

born in April 1997, was initially removed from appellant’s care, but was returned to her and Davis

at six months of age.

                T.J.’s weight was the subject of much testimony. He weighed nine-and-a-half pounds

at birth. When he was returned to appellant and Davis at six months, he weighed twenty-one-and-a-

half-pounds—the ninetieth percentile for weight for his age. By June 1998, however, he weighed

only sixteen-and-a-quarter pounds; this was well below the twenty-eight pounds his doctor expected



                                                   5
him to weigh. His concerned parents took him in for a medical examination. Medical personnel

testified that they recommended further testing and called the parents twice to set up appointments,

but the parents never followed up; the parents testified that they did not know that the doctors

recommended testing. Regina McCollum, a family friend, testified that, though T.J. had been happy

and active as a six-month-old, he grew quieter and substantially less active over the next year. She

testified that at seventeen months he had lost so much weight that his skin was hanging loosely on

him; the parents denied the boy looked that bad and posited that, if he had, doctors and others would

have called the Department.

                Testimony indicated other causes for concern about T.J.’s health, safety, and

development. T.J. went to the emergency room in May 1998 after he reportedly fell from an eight-

inch-high chair; appellant said he never lost consciousness but vomited twice. A doctor described

this as a severe reaction to such a short fall. T.J. had a similar reaction and another emergency room

visit at twenty-one months when a woman reportedly opened a door and knocked him off a three-foot

porch and onto a brick. A physician reviewing T.J.’s medical charts at trial said they showed

developmental delays and a failure to thrive. McCollum also testified that appellant and Davis tried

to potty train T.J. at eleven months, making him sit on his potty chair for hours; others testified that

eleven months was too young for such measures. Appellant denied forcing T.J. to stay on the potty

chair. McCollum also reported that, during a telephone call with her, appellant spanked T.J. for

“looking at her funny.”

                In September 1998, McCollum volunteered to take T.J. into her home in Oklahoma

when he was seventeen months old and Davis was reassigned to Korea for a year. (Appellant moved



                                                   6
in with her mother in Belton and kept her daughter with her.) McCollum testified that T.J. ate

voraciously while in her care until appellant reclaimed him in December 1998. Appellant and the two

children moved into a one-bedroom apartment in Killeen. By April 1999, T.J. was near the fiftieth

percentile in weight for his age.

                 Much of the testimony focused on events from April 18-23, 1999. In early April 1999,

Temeeka Garner temporarily moved into appellant’s apartment with her three children. Also in the

apartment sometimes during this period was Jerry Gibson, an army officer who was married to

someone else. Also staying in the apartment for part of April were three children of another friend

who was in jail. On April 17, 1999, appellant’s three older children also stayed in the apartment.

Appellant returned her three older children to her mother’s home on the morning of April 18.

                 Appellant said that, on her return that afternoon, Garner told her that T.J. had gotten

her curling iron and burned himself. Appellant said she saw a couple of red places on his legs. She

testified that she treated them with antibiotic lotion. She said that some burns “popped out” on April

20, 1999; she also began to suspect that Garner was more involved in the burns than she had

reported. Appellant also testified that she found T.J. on April 20 with one of Garner’s young

daughters pulling on his penis. Appellant said she did not see the burns on T.J.’s back, scrotum, and

penis, even though she bathed him. She did not take T.J. to the hospital, nor did she call her husband

or her mother.

                 Lorinda Vidal, T.J.’s godmother, picked him up on April 22, 1999 to take him with

her and her children on a planned visit to Waco. She said she noticed the burns on his legs when he

used the bathroom; she said Garner told her the burns were from a curling iron accident. Vidal did



                                                   7
not look for or see the burns on his genitals. She said T.J. played with her children without noticeable

discomfort.

               Apparently acting on an anonymous tip that T.J. had been injured, the Department’s

investigator went to appellant’s home at 11:30 p.m. on April 22, 1999 looking for T.J., who was still

with Vidal. Appellant said she did not know how to get into contact with Vidal. Later, though,

appellant went by Vidal’s house and picked up T.J. to take him to appellant’s mother’s house. State

investigators located her there and persuaded her to take T.J. to the hospital.

               David Hardy, the physician who examined T.J. on April 23, 1999, said he found

fourteen burn marks, several bruises, and linear marks consistent with spanking with a switch.

Several of the burn marks indicated precise placement rather than glancing blows; for example, the

burn on his scrotum did not have an associated burn on the inner thigh as would be expected if he had

dropped or accidentally brushed against a curling iron. Some of the burns had distinct edges,

indicating that the hot object was pressed into flesh. Hardy testified that some of the burns on T.J.’s

legs appeared to have been caused by a lighter. He said the bruises on the backs of T.J.’s arms and

legs are consistent with child abuse, possibly caused by someone restraining T.J. while inflicting the

burns. The doctor said the number and severity of the burns would take about thirty minutes to

inflict; both the number and the severity weighed against accidental infliction. Hardy said the burns

on T.J.’s legs would have immediately appeared serious; they would have been partially charred and

blistered. The doctor testified that T.J. would have pain when urinating and when the burns rubbed

against anything—e.g., when his genitals rubbed against his diaper. He testified that he saw no

indication that the burns had been treated.



                                                   8
               After this examination, the Department took T.J. and his younger sister and placed

them with foster parents. The foster father testified that T.J. was in pain from the burns. He said

that, for about a month, T.J. would scratch some of the burns until he bled. He also said that T.J. was

aggressive toward women (including the foster mother and teachers) and would hit them. T.J. also

bit himself.

                There was also testimony regarding appellant’s psychological state. Frank Pugliese,

a psychologist who examined her in 1993 and reviewed subsequent reports on her condition,

characterized appellant as having a mixed personality disorder. He found her tense, abrasive, irritable,

defensive, and mistrustful. He said she appeared to be overwhelmed by responsibilities and pressures,

pessimistic, and cynical. A 1999 examination indicated that these symptoms persisted and were

accompanied by an avoidance of responsibility for making decisions. Pugliese found no indications

of problems with self-control or aggression, but conceded that these problems sometimes show only

under a particularly stressful event or after an accumulation of small stressors. He testified that

appellant’s problems may cause her to misinterpret expressions and actions by others—e.g., to think

a child was looking at her funny. He testified that her mistrust would cause her to distort or hide

information regarding child abuse even if she is innocent. He said she might also alter her memories

of events (e.g., her daughter’s death) in order to shield herself from responsibility. There was

evidence that appellant did not take advantage of opportunities for psychological and parenting-skills

counseling.

                Pugliese also testified regarding the gaps between T.J.’s behavior and those expected

for his age; the questions were hypotheticals that appear to be based on McCollum’s observations.



                                                   9
The psychologist said that seventeen-month-old children tend to run around rather than just sitting.

He testified that a child who was seriously underweight and could not walk was having basic

physiological needs neglected.      Pugliese testified that he would be required to report to the

Department if he saw a child whose weight loss caused skin to hang loosely from his body. He

agreed, however, that the fact that T.J.’s weight was normal after five months with appellant indicated

that she was feeding him sufficiently. He testified that aggression and self-mutilation are signs of

post-traumatic stress syndrome in children; though abuse is one trigger for PTSD, Pugliese conceded

that removal from parents could also cause it. He also testified that often, if one child is targeted for

abuse in a family and that kid is removed, the remaining children may be targeted.

                There is very little evidence regarding A.D.’s condition. There is no evidence that she

was injured when T.J. was burned; an examination at the time did not reveal any bruises. There is

no evidence that she endured the weight fluctuations or deficits that T.J. did. Appellant took A.D.

to the emergency room at nine months of age after she fell off of a couch.

                Appellant concedes that T.J. suffered burns, but denied that she is responsible for

them. There is no direct evidence that she inflicted the burns or knowingly and intentionally allowed

them to be inflicted; no witnesses testified to seeing the burning nor was any physical evidence

recovered linking anyone to the instrument used to inflict the burns. Appellant asserts that there was

no evidence that she knew or should have known that her son’s well-being would be endangered by

leaving him with Garner. She contends that there was no evidence that her children were below

norms for growth and development while under her care; T.J.’s weight was in the fiftieth percentile




                                                   10
after five months in her care. There was no evidence of harm to her daughter. There was testimony

that she and her husband loved and cared for their children.

               We conclude that there is factually and legally sufficient evidence to support the jury’s

finding that appellant’s parental rights to T.J. should be terminated. Regardless of whether appellant

was involved in burning T.J., she admitted that she did not seek medical assistance for him until

pressed to do so by the Department. Despite knowing that he was burned, she admitted discovering

only a few of the burns described by the doctor. She testified that she did not notice the burns on his

back or genitals even when she gave him a bath. Some of these burns were so severe they would

have immediately showed charring. Some of these burns became infected and took a month to heal.

Appellant admitted that she did not seek medical assistance or tell her husband about the burns

because she feared the consequences. A jury could reasonably find that the evidence clearly and

convincingly shows appellant committing an act that physically endangered T.J. by failing to discover

the burns and to seek suitable medical care for them.

               The jury’s findings are supported by other evidence. The personal characteristics that

led appellant to avoid seeking medical help for T.J., coupled with her failure to seek help in changing

those characteristics, demonstrate a risk that appellant might in the future forego seeking medical

treatment for T.J. His weight loss and her failure to pursue treatment for it after the initial

appointment support the finding. The severity of T.J.’s symptoms after his reported fall off of a short

chair, his scars from being hit by a switch, and his developmental delays are cause for concern.

Looming in the background is the possibility that appellant herself inflicted the burns; regardless,

appellant admitted that she allowed Garner to stay in her apartment even after she suspected that



                                                  11
Garner might have helped inflict the burns. Appellant’s conviction for killing her daughter and her

denials of involvement in her daughter’s death lend support to the jury’s findings, as does her failure

to avail herself of opportunities for counseling. There is no evidence of the children’s desires, though

T.J.’s hostility to mother figures is disturbing. There is no evidence regarding the suitability of a

particular placement, but there was testimony that the children were adoptable and could thrive in a

more hospitable environment. The evidence is legally and factually sufficient to support the jury’s

finding that termination is warranted and in T.J.’s best interest.

                This evidence also supports the jury’s finding that appellant’s parental rights to A.D.

should be terminated despite the paucity of evidence that A.D. herself was ever physically harmed.

The statute and the jury charge require that the Department show that A.D. was physically or

emotional endangered. See Tex. Fam. Code Ann. § 161.001(1)(E). The supreme court has written

that, “[w]hile we agree that ‘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.” Texas Dep’t of Human Servs. v. Boyd,

727 S.W.2d 531, 533 (Tex. 1987). Misconduct directed towards one child can support a finding that

the parent engaged in a course of conduct that endangered another child. See Trevino v. Texas Dept.

of Prot. & Reg. Servs., 893 S.W.2d 243, 248 (Tex. App.—Austin 1995, no pet.). The jury

reasonably could have concluded that appellant’s handling of the burning incident showed, at

minimum, a dangerous inattention to her child’s physical condition and well-being, a subordination

of her child’s health to her concerns, and a refusal or inability to take action to improve her child’s

safety. There is also evidence that if the target of abuse is removed from the home, the abuse will be



                                                  12
refocused on a remaining child, increasing the risk to A.D. The evidence shows conduct and

characteristics of appellant causing present and future danger to children in her care, indicating that

her children’s best interest is served by termination of her parental rights. We resolve issue one in

favor of the judgment.

                By her third issue, appellant contends that termination of her parental rights violates

her state and federal constitutional rights. The parties agree that the Department must show that its

interest is compelling, that its interest is particularly promoted by terminating the relationship, and

that it cannot achieve its goal through less restrictive means before terminating a parental relationship.

See In re S.H.A., 728 S.W.2d 73, 91-92 (Tex. App.—Dallas 1987, writ ref’d n.r.e.). Appellant

argues that the Department’s failure to present clear and convincing evidence to support its case

renders the termination unconstitutional; this argument fails because, as discussed above, the

Department satisfied its evidentiary burden. Appellant also argues that the Department failed to show

that it tried less draconian remedies. The State was faced with clear and convincing evidence that the

children were in danger in their home and that the danger would persist. During more than a decade

of her intermittent involvement with the child-protection system, appellant failed to meaningfully

engage in psychiatric counseling, either through the Department or the army, and did not complete

parenting skills training. She distrusted the Department so much that she declined to seek medical

treatment for burns that she insisted were inflicted either accidentally or by someone else. Because

the Department has a compelling interest in protecting its youngest citizens, because there was no

indication that appellant would participate meaningfully in a less intrusive alternative to termination

(i.e., a program to remove the danger to her children by improving her parenting skills), and because



                                                   13
termination promotes the State’s interest in protecting the children by creating the possibility that the

children could be adopted into a home in which they can prosper, the Department’s actions do not

violate the state or federal constitutions. See S.H.A., 728 S.W.2d 73 at 91-92. We resolve issue

three in favor of the judgment.

                We affirm the judgment terminating appellant’s parental rights to T.J. and A.D.




                                                David Puryear, Justice

Before Justices Kidd, B. A. Smith, and Puryear

Affirmed

Filed: December 13, 2001

Do Not Publish




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