                                                                                    ACCEPTED
                                                                                01-15-00253-CV
                                                                     FIRST COURT OF APPEALS
                                                                             HOUSTON, TEXAS
                                                                            6/2/2015 6:50:12 PM
                                                                          CHRISTOPHER PRINE
                                                                                         CLERK

                       NO. 01-15-00253-CV
   __________________________________________________________
                                                        FILED IN
                                                  1st COURT OF APPEALS
                   IN THE COURT OF APPEALS            HOUSTON, TEXAS
               FOR THE FIRST JUDICIAL DISTRICT6/2/2015 6:50:12 PM
                     OF TEXAS AT HOUSTON          CHRISTOPHER A. PRINE
                                                         Clerk
   ___________________________________________________________

      IN THE INTEREST OF K.M.-J. and D.A.R.-J., CHILDREN
    ________________________________________________________

                         H.J.-A., Appellant

                                 v.

 TEXAS DEPARTMENT OF FAMILY AND PROTECTIVE SERVICES,
                            Appellee
   _________________________________________________________

               On Appeal from the 314th District Court
                       Harris County, Texas
                Trial Court Cause No. 2012-06289J

  ____________________________________________________________

             ORIGINAL BRIEF OF APPELLANT H.J.-A.
   ___________________________________________________________


                               WILLIAM M. THURSLAND
                               TBN 20016200
                               440 Louisiana St., Ste. 1130
                               Houston, TX 77002
                               713-655-0200 x 105; Fax: (713) 655-9035
                               Email: wmthursland@hotmail.com

                               ATTORNEY FOR APPELLANT


ORAL ARGUMENT IS REQUESTED
[IF DEEMED NECESSARY]
              IDENTIFICATION OF PARTIES AND COUNSEL

      Appellant herein states that the names of all parties and counsel to this
appeal are:

H.J.-A, Appellant:

At Trial                                       On Appeal:

Kevin H. George                                William M. Thursland
Attorney At Law                                Attorney At Law
TBN: 07805850                                  TBN: 20016200
440 Louisiana St., Ste. 1130                   440 Louisiana St., Ste. 1130
Houston, TX 77002                              Houston, TX 77002
Tel: 713-655-0200 x 107                        Tel: 713-655-0200 x 105
Fax: 713-9655-9035                             Fax: 713-655-9035


The Texas Department of Family and Protective Services, Appellee:

At Trial:                                      On Appeal:

Marc Ritter                                    Sandra D. Hachem
Assistant County Attorney                      Sr. Assistant Harris County Attorney
TBN: 16951500                                  TBN: 08620460
1019 Congress, 15th Fl                         1019 Congress, 15th Fl
Houston, TX 77002                              Houston, TX 77002
Tel: 713-274-5220                              Tel: 713-274-5293
Fax: 713-437-4700                              Fax: 713-437-4700

K.M.-J. and D.A.R-J., Children at Trial:

Michelle E. Bush
Attorney at Law
TBN: 24036295
14027 Memorial Dr., Ste. 105, Houston, TX 77079
Tel: 281-460-8486 Fax: 713-531-5451




                                           i
J.M.-M, Alleged Father at Trial               J.A.R.-E., Alleged Father at Trial

J.B. Bobbitt                                  Dan J. Spjut
Attorney at Law                               Attorney At Law
TBN: 24078237                                 TBN: 24004933
405 Main, Ste, 620                            405 Main, Ste, 620
Houston, TX 77002                             Houston, TX 77002
Tel: 713-529-6234;                            Tel: 713-225-6800
Fax: 713-802-0688                             Fax: 281-476-7857


                     REQUEST FOR ORAL ARGUMENT

      Appellant requests oral argument if deemed necessary.

                            RECORD REFERENCES

Clerk’s Record:

      The Clerk’s Record consists of one (1) volume and is referred to herein as
CR followed by the page number(s).

Reporter’s Record:

      The court reporter’s record consists of four (4) volumes. The trial testimony
is found in the second and third volumes and is referred to as (RR 1) or (RR 2)
followed by the page and line number(s). The exhibits are found in the forth
volume and are identified by the offering party and exhibit number.

Statutory Citation References:

      Unless otherwise indicated, all statutory references made herein refer to the
Texas Family Code.

                            TABLE OF CONTENTS

IDENTIFICATION OF PARTIES AND COUNSEL                                              i

REQUEST FOR ORAL ARGUMENT                                                          ii

RECORD REFERENCES                                                                  ii

                                         ii
TABLE OF CONTENTS                                           ii

TABLE OF AUTHORITIES                                        iv

STATEMENT OF THE CASE                                       1

ISSUES PRESENTED                                            2

ISSUE ONE:    DID THE TRIAL COURT ABUSE ITS DISCETION BY
              ADMITTING INTO EVIDENCE DFPS EXHIBIT NO. 17
              WHICH CONTAINED OPINIONS OF EXPERTS THAT
              WERE NEVER DISCLOSED IN RESPONSE TO A
              TIMELY SERVED REQUEST UNDER TRCP 194.2(f)

ISSUE TWO:    WAS THE EVIDENCE LEGALLY AND FACTUALLY
              SUFFICIENT TO SUPPORT THE TERMINATION
              FINDING UNDER §161.001(1)(D) and (E)

ISSUE THREE: WAS THE EVIDENCE LEGALLY AND FACTUALLY
             SUFFICIENT TO SUPPORT THE BEST INTEREST
             TERMINATION FINDING


STATEMENT OF FACTS                                          3

SUMMARY OF ARGUMENT                                         13

ARGUMENT: Standard of Review                                16

ISSUE ONE: Authorities & Argument:                          18

ISSUE TWO: Authorities & Argument:                          26

ISSUE THREE: Authorities & Argument:                        37

PRAYER                                                      44

CERTIFICTE OF COMPLIANCE                                    44



                                     iii
CERTIFICATE OF SERVICE                                                    46

                          TABLE OF AUTHORITIES

                                 Federal Cases

Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388 (1982)                   16


                                  State Cases
Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238 (Tex. 1985)          19

Holick v. Smith, 685 S.W.2d 18 (Tex. 1985)                               16

Holley v. Adams, 544 S.W.2d 367 (Tex. 1976)                               38

Clark v. Dearen, 715 S.W.2d 364 (Tex. App. - Houston [1st Dist.]          38
1986, no writ)

Avery v. State, 963 S.W.2d 550 (Tex. App. – Houston [1st Dist.]           29
1997, no writ)

In re A.A.A.., 265 S.W.3d 507 (Tex. App. - Houston [1st Dist.]            40
2008, pet. denied)

In re A.C., 394 S.W.3d 633 (Tex. App. - Houston [1st Dist.]               40
2012, no pet.)

In re A.S., 261 S.W.3d 76 (Tex. App. - Houston [14th Dist.]               27
2008, pet. denied)

In re C.H., 89 S.W.3d 17 (Tex. 2002)                                      38

In re C.L.C., 119 S.W.3d 382 (Tex. App. – Tyler 2003, no pet.)           28

In re E.C.R., 402 S.W.3d 239 (Tex. 2013)                              39, 41

In re E.N.C. 384 S.W.3d 796 (Tex. 2012)                            29, 37, 39

In re G.M.G., 444 S.W.3d 46 (Tex. App. – Houston [14th Dist.]            39
2014 no pet.)

                                        iv
In re J.F.C., 96 S.W.3d 256 (Tex. 2002)                             16, 17

In re J.L., 163 S.W.3d 79 (Tex. 2002)                                  18

In re J.R., 171 S.W.3d 558 (Tex. App. – Houston                       28
[14th Dist.] 2005, no pet.)

In re J.T.G., 121 S.W.3d 117 (Tex. App. – Ft. Worth 2003               26
no pet.)

In re J.W., 152 S.W.3d 200 (Tex. 2006)                                 28

In re R.R., 209 S.W.3d 112 (Tex. 2006)                                 37

In re T.G.R.-M., 404 S.W.3d 7 (Tex. App. - Houston [1st Dist.]         26
2013, no pet.)

Jordan v. Dorsey, 325 S.W.3d 700 (Tex. App. - Houston [1st Dist.]     28
2010, pet. denied)

Texas Dept. Human Servs. v. Boyd, 727 S.W.2d 531 (Tex. 1987)          27

Vingeard A.S. v. Merrimac Hospitality Systems, Inc. (Tex.             22
App. – Ft. Worth 2001, pet. denied)

Yonko v. DFPS.,196 S.W.3d 236 (Tex. App. - Houston [1st Dist.]        40
2006, no pet.)

Wigfall v. TDCJ.,137 S.W.3d 268 (Tex. App. – Houston [1st Dist.]      19
2004, no pet.)

                                    Statutes

Tex. Family Code Ann. § 161.001(1)                                    18

Tex. Family Code Ann. § 161.001(1)(D)                                  26

Tex. Family Code Ann. § 161.001(1)(E)                                  26

Tex. Family Code Ann. § 161.001(1)(O)                               12, 17


                                          v
Tex. Family Code Ann. § 161.001(2)        18, 26, 37

Tex. Family Code Ann. § 263.307(a)             39

Tex. Family Code Ann. § 263.307(b)             39

Tex. R. App. Pro. 44.1(a)(1)                   24

Tex. R. Civ. Pro. 193.5(a)                     18

Tex. R. Civ. Pro. 193.5(b)                     19

Tex. R. Civ. Pro. 193.6(a)                     23, 24

Tex. R. Civ. Pro. 193.6(b)                     19, 23

Tex. R. Civ. Pro. 194.2(f)                 18, 22, 23




                                     vi
                         NO. 01-15-00253-CV
   ______________________________________________________________

                   IN THE COURT OF APPEALS
               FOR THE FIRST JUDICIAL DISTRICT
                     OF TEXAS AT HOUSTON
 ________________________________________________________________

        IN THE INTEREST OF K.M.-J. and D.A.R.-J., CHILDREN
      ________________________________________________________

                                H.J.-A., Appellant

                                         v.

  TEXAS DEPARTMENT OF FAMILY AND PROTECTIVE SERVICES,
                               Appellee
    _________________________________________________________
                On Appeal from the 314th District Court
                         Harris County, Texas
                  Trial Court Cause No. 2012-06289J
  ______________________________________________________________

TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:

      Appellant, H.J.-A., (also referred to as “mother”), respectfully submits her
brief in the above styled and number appeal.
                              STATEMENT OF THE CASE

      On November 7, 2012, the Texas Department of Family and Protective

Services (“DFPS”) filed its Original Petition for Protection of a Child, for

Conservatorship and Termination In Suit Affecting The Parent-Child Relationship

and Order Setting Hearing wherein it requested, inter alia., to be named the

                                        1
temporary managing conservator of the following K.M.-J., a female born on March

5, 2010 and D.A.R.-J., a male born on December 13, 2011. (CR 5-29) At the

adversary hearing held on November 20, 2012, DFPS was appointed as the

children’s sole temporary managing conservator. (CR 32-38)

       The case was tried before the Honorable John Phillips on January 30, 2014

and October 7, 2014. The trial court found the evidence sufficient to terminate

appellant’s parental rights under §161.001(1)(D) and (E). It also found that

termination of her rights was in the children’s best interest.1 (CR 186-195)

       The court appointed appellate counsel for H,J.-A. and on March 13, 2015

she filed her notice of appeal. (CR 107-108)


                                 ISSUES PRESENTED

ISSUE ONE: DID THE TRIAL COURT ABUSE ITS DISCETION BY
           ADMITTING INTO EVIDENCE DFPS EXHIBIT NO. 17
           WHICH CONTAINED OPINIONS OF EXPERTS THAT
           WERE NEVER DISCLOSED IN RESPONSE TO A TIMELY
           SERVED REQUEST UNDER TRCP 194.2(f)

ISSUE TWO: WAS THE EVIDENCE LEGALLY AND FACTUALLY
           SUFFICIENT TO SUPPORT THE TERMINATION
           FINDING UNDER §161.001(1)(D) and (E)




1
 The parental rights of the alleged fathers, J.A.R.-E. and J.M.-M., were also terminated and they
have not appealed.
                                              2
ISSUE THREE: WAS THE EVIDENCE LEGALLY AND FACTUALLY
             SUFFICIENT TO SUPPORT THE BEST INTEREST
             TERMINATION FINDING

                           STATEMENT OF FACTS

      The bench trial commenced on January 30, 2014. Mother was present with

her attorney. The alleged father, J.A.R.-E., was present without counsel. DFPS

trial counsel asked the court to “start this trial and recess” because “I have a

problem with my doctor witness that was supposed to be available and that’s my

primary problem.” Mother objected because she had served disclosure requests on

DFPS and it failed to identify any of its individual witnesses and experts. The

objection was summarily overruled. She then moved for a continuance but before

her counsel could articulate the basis for her request the motion was denied. (RR

1; p. 5-8)

      DFPS called the custodian of records for Texas Children’s Hospital (“TCH”)

and offered its records into evidence as DFPS #17. Mother objected again because

it was “recently” provided to her counsel and “it contains opinions from doctors

that were not identified in response to my disclosure request.” Mother’s objection

was again summarily overruled and the exhibit was admitted. (RR 1; p. 9-10)

Mother:

      H.J.-A. testified she is the mother of the children. She was present in the

                                          3
house when her son Jonathan was injured. She called the ambulance because her

son was complaining that he hurt “here (indicating).” The DFPS worker later told

her he died because “he was hit in the stomach.” She never personally saw “any

injury or any assault upon her son.” (RR 1 p. 11-13)

       Jonathan was three years old at the time he was injured and not very tall. He

could easily be picked up and carried around the apartment. K.M.-J. was “close to

2” and D.A.R.-J. was “not quite 1.” She and J.A.R.-E.2 lived with the children in a

one-bedroom apartment. The children slept in the bedroom and the parents in the

den. She took care of the children while he worked. (RR 1 p.14-15; L. 1-19)

       On the day the injury occurred mother took all three children to the park.

Jonathan fell and scratched his eye. After she cleaned his eye the children

continued to play and they stayed at the park the rest of the day. J.A.R.-E. returned

from work at about 9:00 or 10:00 pm. She agreed he left and “hung out with his

brother awhile.” When he returned home and watched television. The children

had already eaten and were in bed. (RR 1 p. 15; L. 22-25, p. 16 & p. 17; L. 1-3)

       Mother agreed she told the detective and the DFPS caseworker that she saw

her “boyfriend play boxing with [their] 3-year-old son.” However, she said that


2
 J.A.R.-E. is referred to as “boyfriend” and “father.” He admitted to being the father of both
children. Yet he was never established to be their father despite DNA testing having been
ordered.
                                               4
because she “felt completely pressured to see my son laying . . . down there dead.”

When she put the three children to bed that night Jonathan was “fine . . . [h]e went

to bed in a normal way like any other child.” J.A.R.-E went to the bathroom and

saw Jonathan was “cold.” Appellant called the ambulance because he said he “hurt

. . . and touched himself here (indicating).” She told the ambulance service to

hurry up because her son was dying but they said there was not an ambulance

available for where she lived. He was pronounced dead at the hospital. (RR 1 p.

17; L. 4-25 & p. 18-19)

      Appellant agreed she was told that Jonathan died because his “intestines

literally exploded inside his body.” She again stated he was fine when he went to

sleep but agreed, “he woke up seven hours later moaning” and “only said he hurt

here.” (RR 1 p. 20)

      H.J.-A. has three children. She and J.A.R.-E have no criminal or CPS

history. She never saw him being violent with the children or physically discipline

Jonathan. She confirmed that “everything was normal” with Jonathan that day.

That morning he was relaxed, laughing and playing with his siblings. They

returned home for lunch. Jonathan ate a normal ration of fruit and rice. Mother

then bathed all three children and he did not show any pain or discomfort. They

then watched a movie and later they “all ate normally.” (RR 1 p. 22-23 & p. 24;

                                        5
L. 1-2)

       After dinner appellant brought them to the bedroom where they sleep. She

did not notice any pain or discomfort with Jonathan. The father came home around

9:00 pm when the children were sleeping. They stayed up until about 11:00 pm.

She went to the bathroom at about 3:00 or 4:00 and checked on Jonathan who was

awake. He told her “he hurt here (indicating).“ She then woke up J.A.R.-E and

called the ambulance. The first person did not speak Spanish who had difficulty

understanding her. About 15 or 16 minutes later the ambulance arrived. (RR 1 p.

24; L. 3-25 & p. 25)

       Mother has no personal knowledge as to Jonathan’s cause of death. Her

information was derived from the investigator and caseworker. She agreed again

that she told the police officer and on another occasion the investigator that she

saw father “play boxing with the child.” Yet that statement was not true. She felt

pressured to make an inconsistent statement because “at that very day when I was

seeing my child dead, I didn’t know what to say because [a detective] told me that

if I didn’t see anything I was going to be put in jail.”3 (RR 1 p. 26)




3
 Appellant further explained she felt pressure to say something because the detective was telling
her if she did not help she could go to jail. She did not want to “go to jail because [she] did
nothing. (RR 1 p. 26; L. 24-15 & p. 27; L. 1-5)
                                              6
      H.J.-A. loves her children very much and only missed two visits because she

did not have the money to pay for a taxi. She has no idea what caused Jonathan to

die and never saw the “father in any way being physically violent with [him].” (RR

1 p. 27)

      When asked by the trial court asked if she felt pressured to say that she saw

J.A.R.-E. play boxing with Jonathan when she was in court last year, appellant

answered, “I was afraid . . .to go to jail for something that I haven’t done.” She

said it was the J.A.T.-E. rather than another person because she “didn’t even know

what to say” and it “was the only thing that occurred to [her].” (RR 1 p. 28-29)

      J.M.-M. is K.M.-J.’s father and J.A.R.-E. is D.A.R.-J.’s father. Appellant

was married to J.M.-M. but he was deported because she brought a domestic

violence charge against him in January 2010. (RR 1 p. 30 & p. 31; L. 1-10)

      On re-cross, the children’s attorney ad litem (“ad litem”) asked a series of

questions regarding the condition of Jonathan’s body at the hospital. Appellant

objected because her questions assumed facts not in evidence. The objection was

overruled and counsel’s request for a running objection was granted. The first

question assumed there were “older bruises.” Mother responded he was born “with

purple marks back there.” The ad litem then claimed the bruises were on her

“baby’s legs from a belt or an extension cord.” Appellant explained she left her

                                         7
children with a friend who has older children because she was going to begin a

new job the next day. On that day they were playing with sticks. (RR 1 p. 31; L.

15-25 & p. 32-33)

      Mother then offered DFPS’ responses to her disclosure request, which was

admitted. (RR 1 p. 34; L. 20-25 & p. 35) (Mother’s #1)

      Trial resumed on October 7, 2014. Before eliciting testimony, DFPS offered

the following relevant exhibits that were admitted into evidence without objection:

      DFPS #8 - The removal affidavit.

      DFPS #9 - The temporary orders following adversary hearing.

      DFPS #10 - The status hearing order.

      DFPS #11 - Appellant’s Family Service Plan (“FSP”)

      DFPS #15 - Autopsy report from Harris County Institute for Forensic

Science.

      DFPS #16 - J.A.R.-E.’s criminal records that contain the indictment and

charge with the probable cause affidavit in cause no. 1367221 wherein J.A.R.-E. is

accused of causing Jonathan’s death. Also is a judgment that reflects he was

convicted of the class B misdemeanor offense of driving while intoxicated on

August 12, 2009 and received a sentence of 37 days in the Harris County Jail.

      DFPS #19 - Photographs of the decedent child Jonathan.

                                        8
(RR 2 p. 7-8)

Father, J.A.R.-E.

      J.A.R.-E. admitted he is the father of K.M.-J. and D.A.R.-J. He was aware

that a child died in his home. When asked, “what happened that night” and “were

all the children fine at 9:00 o’clock the night before the child passed away,” he

invoked he right against self-incrimination. (RR 2 p. 9-10)

Archield – DFPS Caseworker:

      The DFPS caseworker, Casey Archield (“Archield”), testified K.M.-J. is

four and D.A.R.-J. is two. They are in a foster home that is meeting all their

physical and emotional needs. She opined it is in their best interest to terminate

“the parental rights” because “there was . . . a child’s death fatality on the case.”

She did not review any medical records. She believes the children are adoptable.

(RR 2 p. 13-14; L. 1-19)

      Although Archield stated the children have no current needs, K.M.-J. “hears

voices and a baby crying continuously in her head.” At the end of August “a

psychological” was done but the results were still pending at the time of trial. The

foster home is not willing to adopt and a “legal broadcast” has been done. DFPS

looked at family members, including a grandmother in California, but no family

members “have worked out for placement.” (RR 2 p. 14; L. 14-25 & p. 15)

                                          9
      Archield has no “first hand knowledge of the facts of removal” or that

J.A.R.-E. harmed the children. (RR 2 p. 17) Nevertheless, DFPS was seeking to

terminate his parental rights because he stated “he caused the injuries to the child”

and “he is in jail for the injuries of the child.” Her knowledge was based on the

interview he gave to the police officer. (RR 2 p. 19-20)

      Mother completed all the requirements of her FSP. The purpose of the FSP

is “to try to cure all the risks” that caused the child to be brought into care and

eliminate future risk. Archield could not opine on whether mother would be “a

future risk to the children.” She agreed with the trial court “she ain’t been around

long enough.” (RR 2 p. 21-22)

      Archield observed mother interact with her children and agreed they are well

bonded and love each other. In that area, she is meeting their “physical and

emotional needs.” The children have been in foster care since 2012 and “there’s

been no permanency on these kids.” If mother’s rights are terminate “[w]e don’t

know where these kids are gonna end up.” Appellant is employed and has a home.

However Archield has not seen the home. (RR 2 p. 23-24)

      In October 2013 DFPS had a primary goal of relative adoption and

concurrent goal of reunification with the mother. Nothing “factually” has changed

since that date to cause the agency to change its goal. Based on what she heard

                                          10
from others, Archield believes H.J.-A. endangered the children. She tried to learn

what K.M.-J.’s desires are but the child only speaks Spanish and “she’s kind of all

over the place as far as not really responding.” She did not speak to anyone at

DFPS to learn what the children might have told them regarding their desires.

Archield agreed mother “wants these kids back with her” and “she’s done

everything to have that goal accomplished.” However, the therapist told her

“today” that H.J.-A. did not go to as many sessions as she would like. Yet this

happened because DFPS did not provide the “2054’s.” (RR 2 p. 24; L. 25 & p. 25-

26)

Closing Arguments:

      DFPS asked that mother’s parental rights be terminated on (D) and (E)

grounds because “case law says that if there’s only two . . . people in the home and

neither one of them can verify how the injuries occurred, it’s imputed to both of

them.” The court was skeptical and noted, “I haven’t seen any case law that says

that.” It then distinguished this case from a First Court of Appeals case styled: In

re B.R. and I.R., a child, because in the later case an “expert witness that testified

that there’s only one way the injuries could have occurred that results in the

[child’s] death.” In response, DFPS argued, the “autopsy report shows the child

died from blunt force trauma” and mother did not seek treatment for K.M.-J.’s

                                          11
“broken ankle for more than a month.” Counsel specifically referred to DFPS #17.

(RR 2 p. 28-29, p. 31; L. 8-10 & p. 33; L. 1-6)

       Appellant argued that although the autopsy report reflects Jonathan died as a

result of blunt force trauma, whether it was cause by a fall or a punch is unclear.

She noted that there was no damage to other organs and “that blunt force had to

have a pinpoint accuracy like a cruise missile without collateral damage.” (RR 2 p.

34-35)

       H.J.-A. argued against terminating her parental rights on best interest

grounds by observing she did “everything possible to rehabilitate herself;” she

visited her children; they and mother are bonded; and ,DFPS has not found “any

permanent placement.” (RR 2 p. 37)

       The ad litem requested that appellant’s parental rights be terminated because

she “didn’t do anything once the play boxing death hit came and then the child

died.” She also noted that the autopsy report found “old looped bruises on

[Jonathan’s] legs.”4           (RR 2 p. 38)

       Before rendering its verdict the trial court observed:




4
  This information is found in the removal affidavit and provided by a TCH nurse not the
autopsy report that describes certain finding “curvilinear abrasions” on the “sternoclavicular
junction” and “anterior distal right thigh.” It never uses the term “looped” or opines as to when
or how the abrasions occurred. (DFPS #8) & (DFPS #15, p. 4)
                                               12
      “Now other thing that I think . . . is that in the medical records, although you

didn’t have an expert witness testify, the medical records that have been admitted

on [K.M.-J.] has a statement by the physician that says, patient has clear injury

apparent to anyone and medical treatment was not obtained. This is consistent

with abuse and neglect.”      The court then terminated mother’s rights “under

161.001(D) and (E).” (RR 2 p. 40; L. 16-23 & p. 42; L. 18-19)

                             SUMMARY OF ARGUMENT

      The first witness DFPS called was the TCH custodian of records. Mother

objected to the admission of these medical records that pertain to K.M.-J. because

it was “recently” provided to her counsel and “it contains opinions from doctors

that were not identified in response to my disclosure request.” Her objection was

overruled and the records were admitted. (DFPS #17) (RR 1; p. 9-10)

      In response to appellant’s disclosure request DFPS identified only Dr.

Girardet who was never called as a witness and never treated K.M.-J. The subject

exhibit contained opinions of Dr. Louis, a pediatrician, and Dr. Seghers, a

radiologist. TRCP 193.6(a) provides that a party that fails to amend or supplement

an inaccurate response “may not introduce in evidence the material or information

that was not timely disclosed.” It is undisputed that DFPS never attempted to

amend or supplement its response.

                                        13
      The burden then shifts to DFPS to establish good cause for its failure to

timely supplement its response; or show lack of unfair surprise or unfair prejudice

to the other party. In the instant case there was no attempt much less proof to

establish one of the exceptions under TRCP 193.6(a).

      Appellant must further show that the admitted evidence probably caused an

improper judgment. The trial court’s comments during closing arguments clearly

demonstrate that it gave a great deal of weigh to Dr. Louis’s opinion. It observed,

“. . . in the medical records [DFPS#17], although you didn’t have an expert witness

testify, the medical records that have been admitted on [K.M.-J.] has a statement

by the physician that says, patient has clear injury apparent to anyone and medical

treatment was not obtained. This is consistent with abuse and neglect.”

      The fact that a parent abused or neglect another child is a factor that a

reviewing court can consider in determining if the evidence is sufficient to support

the endangerment as well as best interest findings.

      If the prejudicial evidence contained in DFPS #17 is not admissible, as

argued above, then the remaining evidence is insufficient to support either of the

endangerment findings. Specifically, with regard to the subsection (E) finding, the

evidence does not show that mother engaged in a conscious, intentional course of

conduct that endangered her children. The removal affidavit reveals that when

                                         14
they were first examined by DFPS there were no observable signs of injury. They

came into care because their father, J.A.R-E., struck their half sibling, Jonathan, in

the abdomen with such force that it caused his death. Neither he nor appellant had

any CPS history. His criminal history consisted of one misdemeanor conviction in

2009 for driving while intoxicated. Mother has no criminal history. Moreover,

there is no history of drug use or domestic violence.

       Although there was evidence of bruising on Jonathan’s body, there was no

proof of how they occurred or if they were consistent with physical abuse. No

medical expert testified at trial.

       Finally, mother also argues that the weight of the evidence does not support

the best interest termination finding. While the evidence relating to the Holly

factors was minimal what little there was supports maintain the parent-child

relationship. It is undisputed that mother completed all the services set forth in her

FSP. She and her children are bonded. There was no evidence that they were

bonded to any other adult despite being in DFPS custody for nearly two years.

They were not in an adoptive home and none had been found at the time of trial.

       On the face of this record, DFPS simply did not present enough evidence to

support the best interest finding. Moreover, when the paltry proof that supports the

finding is compared with the compelling proof that weights against it, no

                                         15
reasonable fact finder could form a firm belief or conviction that termination of the

mother’s parental rights is in the children’s best interest.


                                    ARGUMENT

Standard of Review:
      The involuntary termination of parental rights is a serious matter implicating

fundamental constitutional rights. Appellate courts strictly scrutinize termination

proceedings and involuntary termination statutes are strictly construed in favor of

the parent. Holick v. Smith, 685 S.W.2d 18, 20-21 (Tex. 1985) The natural right

existing between a parent and a child is of such a degree as to be of constitutional

dimensions. Santosky v. Kramer, 455 U.S. 745, 758-759, 102 S. Ct. 1388, 1397-98

(1982)

      Due to the severity and permanency of the termination of parental rights the

burden of proof is heightened to the clear and convincing evidence standard. In re

J.F.C., 96 S.W.3d 256, 265-266 (Tex. 2002) The clear and convincing standard

requires “the measure or degree of proof that will produce in the mind of the trier

of fact a firm belief or conviction as to the truth of the allegations sought to be

established.”

      In conducting a legal sufficiency review the reviewing court considers all the



                                          16
evidence in the light most favorable to the finding to determine whether a

reasonable trier of fact could have formed a reasonable belief that its finding was

true. It assumes the fact finder resolved disputed facts in favor of its findings if a

reasonable fact finder could do so. The court should disregard all evidence that a

reasonable fact finder could have disbelieved or found incredible. It should not,

however, disregard all evidence that does not support the finding because doing so

could skew the analysis of whether there is clear and convincing evidence. If the

court determines that a reasonable fact finder could not form a firm belief or

conviction that the allegations were true, then it must conclude that the evidence is

legally insufficient. Id. at 266

      Under a factual sufficiency review the court considers all the evidence

equally, both disputed and undisputed, to determine if the disputed evidence is

such that a reasonable fact finder could not have resolved the disputed evidence in

favor of its finding. If in light of the entire record, the disputed evidence that a

reasonable fact finder could not have credited in favor of the finding is so

significant that a fact finder could not have reasonably formed a firm belief or

conviction, then the evidence is factually insufficient. Id. at 266

      The State bears the burden of proving by clear and convincing evidence the

following: (1) that the parent committed one or more of the acts or omissions

                                          17
specifically listed under §161.001(1); and (2) termination of the parent’s rights is

in the child’s best interest. §161.001(2); In re J.L., 163 S.W.3d at 84

ISSUE ONE:          DID THE TRIAL COURT ABUSE ITS DISCETION BY
                    ADMITTING INTO EVIDENCE DFPS EXHIBIT NO. 17
                    WHICH CONTAINED OPINIONS OF EXPERTS THAT
                    WERE NEVER DISCLOSED IN RESPONSE TO A TIMELY
                    SERVED REQUEST UNDER TRCP 194.2(f)

Applicable Legal Standard

      TRCP 194.2(f) provides that a party may request disclosure for any

testifying expert of:

      (1) the expert’s name, address, and telephone number;

      (2) the subject matter on which the expert will testify;

      (3) the general substance of the expert’s mental impressions and opinions
and a brief summary of the basis for them, or if the expert is not retained by by,
employed by, or otherwise subject to the responding party, documents reflecting
such information.

      TRCP 193.5(a) provides that if a party discovers its responses to written

discovery are incomplete it must amend or supplement its responses “to the extent

that the written discovery sought the identification of persons with knowledge of

relevant facts, trial witnesses, or expert witness.” The supplemental response must

be made reasonably promptly after the party discovers the necessity for such a

response. It is presumed that a supplemental response made less than 30 days


                                         18
before trial was not made reasonably promptly. TRCP 193.5(b)

      TRCP 193.6(a) provides that a party that fails to supplement a response in a

timely manner “may not introduce in evidence the material or information that was

not timely disclosed, or offer the testimony of a witness who was not timely

identified,” unless the court finds that:

      (1) there was good cause for the failure to timely supplement; or

       (2) the failure to timely supplement the discovery response will not unfairly
surprise or unfairly prejudice the other party.

      The burden of establishing good cause or lack of unfair surprise or unfair

prejudice is on the party seeking to introduce the evidence or call the witness.

TRCP 193.6(b)

      A trial court’s decision regarding discovery matters is reviewed under an

abuse of discretion standard. Wigfall v. TDCJ, 137 S.W.3d 268, 272 (Tex. App. –

Houston [1st Dist.] 2004 no pet.) A trial court abuses it discretion if it acts without

reference to any guiding rules and principles. Downer v. Aquamarine Operators,

Inc., 701 S.W.2d 238, 241-42 (Tex. 1985)

Relevant Evidence:

      DFPS counsel moved the court to “start this trial and recess” because “I have

a problem with my doctor witness that was supposed to be available and that’s my


                                            19
primary problem.”

      Mother objected because DFPS had failed to identify any of its individual

witnesses and experts in response to her timely disclosure request. The objection

was summarily overruled. She then orally moved for a continuance but before her

counsel could articulate the reasons supporting her request, it was denied. (RR 1;

p. 5-8)

      DFPS then called the TCH custodian of records to testify and the following

exchange occurred:

      Q. And you are the custodian of records for [TCH]?

      A. Yes.

      Q. Did you bring some records with you today?

      A. Yes.

      Q. And can you hand me those records?

      A. You can keep that.

             Mr. Ritter: Judge, I can go through the process, but I want to offer
these right now as Petitioner’s Exhibit 16 –17 . . . ”

             Mr. George: Judge, I object to Exhibit 17 on the basis that this
document has just been recently provided to me and it contains opinions from
doctor that were not identified in response to my disclosure request.

      Mother’s objection was again summarily overruled and the exhibit was


                                         20
admitted. (RR 1; p. 9-10)

      DFPS served its discovery responses on October 22, 2013. In response to

TRCP 194.2(f), it identified only one testifying expert from TCH, Dr. Rebecca

Girardet. The subject matter of her testimony was described as “[m]edical findings

and recommendations for the child based on medical facts, the family history, and

background of the child(ren) and/or parent(s). Under the heading “mental

impressions/basis” it stated the “best interests of the child(ren) based on

observations of the child; and the family, case and medical history . . . and the

behaviors and needs of the child(ren). (Mother’s #1 p. 172)

      DFPS #17 relates to treatment and examinations K.M.-J. received at TCH

after she came into DFPS care. In particular, it contained a “Physician’s Statement

Regarding Injury to a Child” dated November 7, 2012 wherein Penelope Louis,

M.D. (“Dr. Louis”) wrote: “there are multiple injuries without explanation . . .

[i]njuries different ages. The patient has clear injury apparent to anyone and

medical treatment not obtained. This is consistent [with] abuse & neglect.” (DFPS

#17 p. 153)

      This exhibit also contains the opinion of a radiologist named Victor J.

Seghers. He interpreted K.M.-J.’s XR skeletal survey and concluded:

       The presence of metaphyseal corner fracture of the distal right tibia in
addition to the extensive callus formation involving much of the right tibia and
                                         21
fibula and history of nonaccidental trauma involving a sibling raises concern for
nonaccidental trauma of this child. (DFPS # 17, p.117)

      At closing DFPS supported its request to terminate mother’s parental rights

on endangerment grounds by arguing the “autopsy report shows the child died

from blunt force trauma” and mother did not seek treatment for K.M.-J.’s “broken

ankle for more than a month.” Counsel specifically referred to DFPS #17. (RR 2

p. 33; L. 1-6)

      Similarly, when the trial court found that appellant’s rights should be

terminated under subsections (D) and (E), it expressly referred to DFPS #17 by

observing, “although you didn’t have an expert witness testify, the medical records

that have been admitted on [K.M.-J.] has a statement by the physician that says,

patient has clear injury apparent to anyone and medical treatment was not obtained.

This is consistent with abuse and neglect.” (RR 2 p. 40; L. 16-23)

Analysis & Argument:

      In this case, DFPS wholly failed to disclose the information it was required

to provide under TRCP 194(f)(1)(2) & (3). Thus, this is not a dispute over whether

the required disclosures were timely made. Here DFPS simply never even bothered

to supplement or amend its response. See Vingcard A.S. v. Merrimac Hospitality

Systems, Inc., 59 S.W.3d 847, 854-855, 857 (Tex. App. – Ft. Worth 2001, pet.


                                        22
denied)(trial court erred by permitting an expert to testify whose opinions were not

disclosed in compliance with TRCP 194.2(f) and opposing party objected at trial)

      While the record is not clear as to exactly when DFPS discovered its

response to mother’s TRCP 194.2(f) request was inaccurate, it is clear their

response was never supplemented or amended. The penalty for failing to amend or

supplement discovery responses is equally clear.    TRCP 193.6(a) provides that a

party that fails to amend or supplement a response in a timely manner “may not

introduce in evidence the material or information that was not timely disclosed, or

offer the testimony of a witness who was not timely identified.”

      Moreover, DFPS had the burden of establishing good cause for its failure; or

showing a lack of unfair surprise or unfair prejudice to the other party. TRCP

193.6(b) Here it merely asked the Judge to start and stop the trial because of an

undisclosed “problem” with an unnamed “doctor witness that was supposed to be

available.” DFPS not only failed to explain what attempts it had made to obtain

the doctor’s testimony but it made no attempt to explain why it failed to amend or

supplement its TRCP 194.2(f) response.

      Even if a party fails to meet its burden under TRCP 193.6(b), the court may

grant a continuance or temporarily postpone the trial to allow a response to be

amended or supplemented. TRCP 193.6(c) In the instant case, it was actually

                                        23
appellant and not DFPS, the party seeking to introduce the non-disclosed expert

evidence, that requested the continuance.

      In sum, there was no attempt – much less any evidence offered – to establish

that DFPS’s failure was excused under TRCP 193.6(a)(1) or (2). In the total

absence of any such evidence, the trial court’s implied finding that DFPS’s failure

to amend or supplement its response was excused can only be characterized as

arbitrary and unreasonable. Therefore, the court abused its discretion by admitting

DFPS #17.

      In order to constitute reversible error, however, the trial court’s error in the

admission or exclusion of evidence must have probably caused an improper

judgment. TRAP 44.1(a)(1)

      The record indisputably shows that the fact finder gave a high level of

credibility to Dr. Louis’ opinion. DFPS supported its request to terminate mother’s

parental rights on endangerment grounds by citing K.M.-J.’s medical records,

“they also show that K.M.-J. suffered from a - - - effectively a broken ankle and

that Mom did not seek out treatment for that broken ankle for more than a month.”

      The court however retorted that it had “read the reports from K.M.-J.” and

there was “no statement to that effect.” The court noted it “was pretty much this is

what the x-rays show. So I mean if you can show me where I’m wrong about that,

                                        24
I’ll look at it.” (RR 2 p. 29-30)

      The court correctly noted that K.M.-J.’s XR skeletal survey, by itself, was

inconclusive as to whether the child’s injury was caused by nonaccidenal trauma or

neglect, it merely stated the healing fractures together the “history of nonaccidental

trauma involving a sibling raises concern for nonaccidental trauma of this child.”

(DFPS # 17, p.117)

      In fact, the x-rays were taken on November 5, 2012, revealed the right tibia

and fibula fracture was healed. The records refer to a “faint fracture line visible at

the right distal fibula;” and noted that K.M.-J. “can ambulate without any

indication of pain.” She did not need “any form of immobilization at this time

since her fracture appear (sic) to be healed.” (DFPS # 17, p.112)

      There is no evidence in DFPS #17 to show that the radiologist concluded, as

had DFPS, that mother waited “more than a month before she sought treatment [for

K.M.-J.]” (RR 2 p. 33; L. 5-6)

      Nevertheless, at a later point during closing arguments, the court found Dr.

Louis’ statement wherein she wrote: “there are multiple injuries without

explanation . . . [i]njuries different ages. The patient has clear injury apparent to

anyone and medical treatment not obtained. This is consistent [with] abuse &

neglect.” (DFPS #17 p. 153)

                                          25
      The weight the court gave to Dr. Louis’ opinion is amply illustrated by the

following remark:

      “Now other thing that I think . . . is that in the medical records, although you

didn’t have an expert witness testify, the medical records that have been admitted

on [K.M.-J.] has a statement by the physician that says, patient has clear injury

apparent to anyone and medical treatment was not obtained. This is consistent

with abuse and neglect.” (RR 2 p. 40; L. 16-23)

      Evidence as to how a parent treated another child is relevant regarding

whether a course of endangering conduct has been established. In re: T.G.R.-M.,

404 S.W.3d 7, 14 (Tex. App. – Houston [1st Dist.] 2013, no pet.)

      In conclusion, the court improperly admitted DFPS #17 into evidence. This

error probably caused an improper judgment because the fact finder gave great

weight to Dr. Louis’ report that opined K.M.-J. suffered from abuse and neglect.

ISSUE TWO:          WAS THE EVIDENCE LEGALLY AND FACTUALLY
                    SUFFICIENT TO SUPPORT THE TERMINATION OF
                    APPELLANT’S PARENTAL RIGHTS UNDER
                    §161.001(1)(D) & (E)

Applicable Legal Standard

      The evidence pertaining to subsections (D) and (E) is interrelated because

both focus on endangerment. Therefore, for convenience, the endangerment


                                        26
termination findings are addressed in one point of error. In re J.T.G., 121 S.W.3d

117, 126 (Tex. App. - Ft. Worth 2003, no pet.)

      Both subsections use the term “endanger.” Endangerment is defined as “to

expose to loss or injury; to jeopardize.” Although “endanger” means more than a

threat of metaphysical injury or the possible ill effects of a less-than-ideal

environment, it is not necessary that the conduct be directed at the child or that the

child actually suffers injury. Texas Dept. of Human Servs. v. Boyd, 727 S.W. 2d

531, 533 (Tex. 1987)

      To support a subsection (D) finding the evidence must show that the parent

“knowingly placed or knowingly allowed the child to remain in conditions or

surroundings which endanger the physical or emotional well-being of the child.”

§161.001(1)(D) To sustain a subsection (E) finding, the evidence must establish

that the parent “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.” §161.001(1)(E)

      A subsection (D) inquiry focuses on the “child's living environment rather

than the parent's conduct, though parental conduct is certainly relevant to the

child's environment.” In re A.S., 261 S.W. 3d 76, 83 (Tex. App. - Houston [14th

Dist.] 2008, writ denied) Living conditions that are merely “less than ideal” do not

                                          27
support a finding under this section.” Boyd, 727 S.W. 2d at 533 The relevant time

period is before DFPS removes the child. In re J.R., 171 S.W.3d 558, 569 (Tex.

App. - Houston [14th Dist.] 2005 no writ) The parent need not have certain

knowledge that an actual injury is occurring but must at least be aware of the

potential for danger to the child in such an environment and must have disregarded

that risk. In re C.L.C., 119 S.W.3d 382, 392 (Tex. App. - Tyler 2003, no pet.)

      Under subsection (E) the danger must arise solely by the parent's actions or

failure to act. The inquiry focuses on whether evidence exists that the child's

physical or emotional well-being is endangered by parental conduct, including

acts, omissions or failure to act. In re J.W, 152 S.W. 3d 200, 205 (Tex. 2006) A

termination finding must be based on more than a single act or omission and

requires a voluntary, deliberate and conscious course of conduct by the parent. In

re J.T.G., 121 S.W.3d at 125

      The cause of the endangerment must be the direct result of the parent's

conduct alone and must be the result of a conscious course of conduct rather than a

single act or omission. In re A.S. 261 S.W.3d at 83 Thus, the relevant inquiry is

whether evidence exists that a parental course of conduct endangered the child’s

physical or emotional well-being. Jordan v. Dossey, 325 S.W. 3d 700, 713 (Tex.

App. – Houston [1st Dist.] 2010, pet. denied) Evidence of a parent's past conduct,

                                        28
including criminal history, may be relevant if it shows a conscious course of

conduct occurring both before and after a child's birth. Avery v. State, 963 S.W.2d

550, 553 (Tex. App.—Houston [1st Dist.] 1997, no writ)

      The Department bears the burden of producing evidence concerning the

engendering conduct and establishing that it was part of a voluntary course of

conduct that endangered the child’s well-being. In re E.N.C., 384 S.W.3d 796, 805

(Tex. 2012)

Relevant Evidence:

      H.J.-A. testified she was present in the house when her son Jonathan was

injured. She called the ambulance because he complained of hurting in the

abdomen area. She later learned he died because “he was hit in the stomach.” She

never personally saw “any injury or any assault upon her son.” (RR 1 p. 11-13)

      Jonathan was three years old at the time. He lived with his mother,

stepfather and two siblings in a one-bedroom apartment. The children slept in the

bedroom and the parents in the den. Mother took care of the children while J.A.R.-

E. worked. (RR 1 p.14-15) On or about November 4, 2012, HPD officers

searched the apartment. They wrote in the probable cause affidavit; “Inside the

residence, there was not much notable, except that the floor was mopped and the

mop with bucket was nearby, and it appeared the floor had recently been cleaned.”

                                       29
(DFPS #16)

         On the day before Jonathan died mother took all three children to the park.

He fell and scratched his eye. She cleaned his eye and the children continued to

play at the park the rest of the day. (RR 1 p. 15-16)

         J.A.R.-E. admitted to “playfully hitting Jonathan in the stomach.” to HPD

investigator Chavez (“Chavez”). Mother told the HPD investigator and the DFPS

caseworker that she saw her “boyfriend play boxing with [their] 3-year-old son”

the Friday before Jonathan died. Specifically, she told Chavez she “was in another

room and went to her son after hearing him cry.” She asked J.A.R.-J. what

happened and he said “he was play boxing with [Jonathan] and struck him in the

abdomen.” (DFPS #8; p. 5 & DFPS #16, probable cause affidavit) Later she

testified that statement was not true. She felt pressured to say that because “at that

very day when I was seeing my child dead, I didn’t know what to say because [a

detective] told me that if I didn’t see anything I was going to be put in jail.” (RR 1

p. 26)

         Appellant never saw J.A.R.-E. being violent with the children or physically

discipline Jonathan. She stated, “everything was normal” with Jonathan that day.

That morning he was relaxed, laughing and playing with his siblings. They

returned home for lunch. Jonathan ate a normal ration of fruit and rice. Mother

                                          30
then bathed all three children and he did not show any pain or discomfort. They

then watched a movie and later they “all ate normally.” (RR 1 p. 22-24)

      After dinner she brought them to the bedroom where they sleep. She did not

notice any pain or discomfort with Jonathan. J.A.R.-E. came home around 9:00

pm when the children were sleeping. They stayed up until about 11:00 pm. When

mother went to the bathroom at about 3:00 or 4:00. She checked on Jonathan who

was awake and told her “he hurt here (indicating).“ She then woke up J.A.R.-E

and called the ambulance. The first person did not speak Spanish who had

difficulty understanding her. About 15 or 16 minutes later the ambulance arrived.

(RR 1 p. 24; L. 3-25 & p. 25)

      J.A.R.-E. told a DFPS investigator he arrived home at about 8 pm; ate; took

a showed and then checked on Jonathan because mother told him he fell at the park

and hurt his head. He appeared to be “ok.” He went to the bathroom at about 4 am

and heard moaning. He opened the bedroom door; turned the light on and found

K.M.-J. and Jonathan awake. Jonathan was holding his side and fell down. H.J.-

A. called the ambulance. (DFPS #8, p. 4)

      H.J.-A. has no criminal or CPS history. J.A.R.-E has no CPS history and his

only prior conviction was in 2009 for the class B misdemeanor offense of driving

while intoxicated.

                                       31
      The medical examiner who performed the autopsy, Dr. Phatak, told the HPD

investigator that Jonathan died from blunt force trauma to the abdomen that

perforated the intestine. This caused bile to leak into the body causing his death.

Typically it “takes 48-72 hours before death results.” The autopsy noted the “body

is well-developed, well-nourished, male Hispanic toddler whose appearance is

compatible with his . . . stated age.” It goes on to note the contusion on his

abdomen where the blunt force was applied causing the rupture of his intestine.

There were also abrasions on the right side of his forehead; “curvilinear” abrasions

to the right facial area; “sternoclavical junction;” and anterior distal right thigh.

(DFPS #15)

      Shannon Frost (“Frost”), a forensic nurse at TCH, told Lightfoot that

Jonathan had bruising “behind his ears, looped bruises on his legs, and non-

specific bruises on his back.” She said the bruising on the face could be consistent

with a fall but not the other bruises. Importantly, she also said she had “no other

information about Jonathan or the source of the injuries.” Mother told the DFPS

investigator the bruises behind his ear might have been caused when he was

playing with K.M.-J.; he was born with what appeared to be bruises on his back;

the bruises on his legs were caused while playing. She stated neither she nor

J.A.R.-E. ever spanked or hit any of the children. (DFPS #8 p. 3-4)

                                          32
      At trial mother again stated Jonathan was born “with purple marks back

there.” She also stated some bruises might have occurred when she left the children

with a friend whose older children were playing with sticks. (RR 1 p. 31)

      On November 4, 2012 DFPS examined K.M.-J. and D.A.R.-J. and neither

had “observable injuries.” (DFPS #8, p. 5)

Analysis & Argument:

      The evidence pertaining to mother’s actions or omissions that endangered

the children is insufficient to support the subsection (D) and (E) findings.

      The children came into DFPS custody because J.A.R.-E. delivered a fatal

blow to Jonathan’s abdomen that caused his intestine to rupture. He admitted to

law enforcement hitting Jonathan while “play boxing.” At the time of trial he was

charged with causing the child’s death. The autopsy report confirms his blow

caused the child’s death.

      H.A.-J. gave patently inconsistent statements as to whether or not she saw

J.A.R.E. play boxing with Jonathan. She initially claimed she was in the kitchen

when she heard him crying. When she asked J.A.R.-E. what happened, he

answered they were play boxing. However, Mother consistently reported that after

the incident Jonathan appeared to be fine. The next day he was playing in the park

and appeared to be normal until in the early morning hours after he went to sleep.

                                         33
This comports with what Dr. Phakat told the police; i.e. the blunt force trauma

caused bile from the intestines to leak into Jonathan’s body, which “takes 48-72

hours before death results.”

       Appellant testified neither she nor J.A.R.-E. physically abused or assaulted

any of the children. Moreover, she never saw him mistreat any of the children.

Nor was there any admissible evidence that K.M.-J. or D.A.R.-J. were abused or

neglected.5 This was noted when they came into DFPS care. The police who

inspected their home observed there was “not much notable.” Again neither parent

had CPS history. Mother had no criminal history and J.A.R.-E.’s only criminal

conviction was for the class B misdemeanor offense of driving while intoxicated in

2013. Finally, there is no evidence of drug abuse or domestic violence between

H.A.-J. and J.A.R.-E.

       Thus far the evidence does not establish that mother was engaging in a

conscious course of conduct that endangered her children. It does show that

J.A.R.-E. struck Jonathan in the abdomen with such force that it result in his death.

Nevertheless, there was no evidence she was aware that he was capable of

inflicting such a horrific injury. In regard to subsection (D), there was virtually no


5
 Appellant recognizes that Dr. Louis’ statement regarding K.M.J.’s ankle provides some
evidence that she was medically neglected. Nevertheless, for the reasons set forth under the first
point of error that evidence should not have been admitted.
                                               34
evidence regarding the children’s living environment except when the police

pointed out that there was “not much notable” in the condition of their home.

       Mother concedes there is some evidence, albeit slight and underdeveloped,

that shows Jonathan may have sustained other injuries. First, there is the Frost

hearsay statement contained in the removal affidavit wherein she claims that

Jonathan had bruising behind his ears, looped bruises on his legs, and non-specific

bruises on his back. She had no other information about Jonathan or the source of

the injuries. While she stated the bruising on his face could be consistent with a fall

the other bruises could not have been caused in that way.

       Secondly, the autopsy report noted in addition to the contusion on his

abdomen, there were abrasions on the right side of his forehead as well as

“curvilinear” abrasions to the right facial area, sternoclavical junction and anterior

distal right thigh.

       Mother explained the bruises behind his ear might have been caused when

he was playing with K.M.-J.; he was born with what appeared to be bruises on his

back and the bruises on his legs were caused while playing.

       Frost and Dr. Phatak did not testify at trial. Frost concluded that the fall may

have caused the bruises on Jonathan’s face but could not have caused the other

bruises. She specifically told Lightfoot she had no “other information about

                                         35
Jonathan or the source of the injuries.” Thus while she observed other bruises on

Jonathan she could offer no theory as to what caused the bruise.6 Mother’s

explanation of how those bruises may have occurred was not challenged.

       Dr. Phatak noted “curvilinear” bruising on the right facial area,

sternoclavical junction and anterior distal right thigh. The term “curvilinear” is

never defined in the record. The Merriam Webster dictionary defines it as

“consisting of or bounded by curved lines.” Thus, the definition may encompass

the term “looped” but it can certainly encompass other type of lines. Significantly,

the autopsy report noted that the “curvilinear” bruises were not confined to the

back of the right leg but were also found on the face and sernoclavical junction. So

whereas Frost distinguished the bruises to the back of the leg from the other

contusions, the autopsy report does not. In short, there is no evidence as to how or

when the bruising occurred or when, if ever, mother became aware that someone,

presumably J.A.R.-E., was causing the bruising.

       In conclusion, this record contains scant evidence that appellant knew or

should have known that J.A.R.-E. was capable of striking Jonathan with such force

that it would cause his death. The evidence that shows mother engaged in a


6
 DFPS investigator Amato told appellant “the bruises on Jonathan’s legs were looped and
appeared to be caused by a belt or a cord.” Yet the source of his information was never revealed.
(DFPS #8, p. 4)
                                              36
continuing course of endangering conduct is, at best, speculative. It consists

primarily of the bruising to Jonathan’s body. However, the source of these injuries

is unknown. Involuntary termination statutes are construed strictly in the favor of

the parent and DFPS is required to “support its allegations against [appellant] by

clear and convincing evidence; conjecture is not enough.” In re E.N.C., 384

S.W.3d at 802, 8110 (Tex. 2012) Therefore, based on the speculative nature of the

scant evidence pertaining to the endangerment findings, appellant’s second point of

error should be sustained.

ISSUE THREE: WAS THE EVIDENCE LEGALLY AND FACTUALLY
             SUFFICIENT TO SUPPORT THE BEST INTEREST
             TERMINATION FINDING

                              Applicable Legal Standard

      DFPS must prove by clear and convincing evidence that termination of

appellant’s parental rights is in the child’s best interest. §161.001(2)

      There is a strong presumption that the child’s best interest is served by

keeping the child with the natural parent. In re R.R., 209 S.W. 3d 112, 116 (Tex.

2006) Termination of the parent-child relationship is not justified when the

evidence shows that a parent’s failure to provide a more desirable degree of care

and support of the child is due solely to misfortune or the lack of intelligence or

training, and not to indifference or malice Clark v. Dearen, 715 S.W.2d 364, 367

                                          37
(Tex. App. – Houston [1st Dist.] 1986, no writ) The same evidence may be

probative of both §161.001(1) grounds and best interest. In re C.H., 89 S.W.3d at

27

      In Holley v. Adams, 544 S.W. 2d 367 (Tex. 1976), the court identified nine

nonexclusive factors to consider in determining whether termination of parental

rights is in a child’s best interest. Those factors are: (1) the desires of the child; (2)

the child’s emotional and physical needs now and in the future; (3) any emotional

and physical danger to the child now and in the future; (4) the parental abilities of

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

individuals seeking custody to promote the best interests of the child; (6) the plans

for the child by the parties seeking custody; (7) the stability of the home or

proposed placement; (8) the parent’s acts or omissions that may indicate that the

existing parent-child relationship is improper one; and (9) any excuses for the

parent’s acts or omissions.

      The Holly factors are not exhaustive. The absence of evidence pertaining to

some of the factors will not preclude a termination finding on best interest grounds.

However, scant evidence relevant to each Holly factor will not support such a

finding. In re C.H., 89 S.W.3d at 27 (Tex. 2002) A lack of evidence pertaining to

one of the factors cannot be used as if it were evidence supporting a termination

                                           38
finding. In re E.N.C. 384 S.W.3d at 809 (Tex. 2012) The appellate court reviews

the entire record in deciding a challenge to the court’s best interest finding. In re

E.C.R., 402 S.W.3d 239, 250 (Tex. 2013)

      In cases where a governmental agency is the petitioner §263.307(a) states

“the prompt and permanent placement of the child in a safe environment is

presumed to be in the child’s best interest.” §263.307(b) provides a list of factors

to consider in determining whether a parent is willing to provide the child with a

safe environment. In re G.M.G., 444 S.W.3d 46, 55 (Tex. App. – Houston [14th

Dist.] 2014, no pet.)

                                Analysis & Argument

      When all the evidence is considered in light of the Holly and §263.307(b)

factors it is clear that no rational trier of fact could have formed a strong conviction

or belief that severing the mother-child bond was in the children’s best interest.

An analysis of the evidence pertaining to each relevant factor is discussed below.

Children’s Desires:

      At the time of trial K.M.-J. was four and D.A.R.-J. was two. Archield tried

to learn what K.M.-J. desired but the child only spoke Spanish and “she’s kind of

all over the place as far as not really responding.” She did not speak to anyone at

DFPS to learn what the children might have told them regarding their desires. It is

                                          39
unclear if D.A.R.-J. was able to express his feelings. See In re A.C., 394 S.W.3d

633, 643 (Tex. App. – Houston [1st Dist.] 2012, no pet.)(“The young age of the

child rendered consideration of the child’s desires neutral.”)

      Nevertheless, the evidence was undisputed that H.J.-A. loves her children

and only missed two visits because she lacked taxi money. Archield observed her

interact with them and agreed they are well bonded and love each other. In that

area, mother is meeting their “physical and emotional needs.” On the other hand,

there was no evidence that the children were bonded to any other adult, such as a

foster parent. See Yonko v. DFPS, 196 S.W.3d 236, 245 (Tex. App. – Houston [1st

Dist. 2006, no pet.)(“We agree that the child’s desire to remain with a parent is

only one factor to consider among many, but the love for a parent cannot be

ignored as a reflection of the parent’s ability to provide for the child’s emotional

needs. Where the evidence of the parent’s failures is not overwhelming, the

desires of the child weigh against termination of parental rights.”)

Permanency:

      Prompt and permanent placement of the child in a safe environment is also

presumed to be in the child’s best interest. §263.307(a) In re A.A.A., 265 S.W.3d

507, 517 (Tex. App. – Houston [1st Dist.] 2008, pet. denied)(“the goal of

establishing a stable, permanent home for a child is a compelling state interest”)

                                         40
        On this factor the evidence also weighs against termination of the mother’s

rights. Archield testified the foster home is not willing to adopt the children. At

the time of trial the children had been in DFPS custody for almost two years and

no prospective adoptive family had yet been located. This situation exists despite

her opinion that they are adoptable and a “legal broadcast” having already been

done.

        In fact, Archield agreed that “there’s been no permanency on these kids” and

if mother’s rights are terminate “[w]e don’t know where these kids are gonna end

up.”

Compliance with the FSP:

        The trial court may properly consider a parent’s compliance with the FSP as

a factor in making its best interest determination. In re E.C.R., 402 S.W.3d at 249

(“many of the factors supporting termination under subsection O also support the

trial court’s best interest finding.”) Archield testified mother completed all the

requirements of her FSP.7 She also stated the purpose of the FSP is “to try to cure

all the risks” that caused the child to be brought into care and eliminate future risk.

She declined to opine on whether mother would be “a future risk to the children”

because “she ain’t been around long enough.” (RR 2 p. 21-22) Nevertheless, she

7
 Although appellant’s therapist told Archield on the day of trial she wanted her to attend more
sessions, she did not only because DFPS failed to provide the required “2054’s.”
                                              41
agreed H.A.-J. “wants these kids back with her” and “she’s done everything to

have that goal accomplished.”

Children’s Present & Future Needs:

      Archield testified the children are in a foster home that is meeting all their

physical and emotional needs. Yet she also stated K.M.-J. “hears voices and a

baby crying continuously in her head.” At the end of August “a psychological” was

done but the results were still pending at the time of trial.

Parental Abilities of The Persons Seeking Custody:

      Appellant was the only individual seeking custody. Archield agreed mother

is employed and has a home which she has not seen the home. Most importantly,

she further agreed mother “wants these kids back with her” and “she’s done

everything to have that goal accomplished.”

Other Factors:

      Although Archield did not review the medical records or have first hand

knowledge of “the facts of removal,” she believes H.J.-A. endangered the children

based on what she heard. Similarly, DFPS had a primary goal of relative adoption

and concurrent goal of reunification with the mother as late as October 2013. Even

though nothing had “factually” changed since that date the goal was changed to

termination.

                                          42
          Appellant has no CPS or criminal history. It is undisputed that J.A.R.-E.

caused Jonathan’s death. While there was bruising on the child’s body the source

of those injuries was never revealed. There was no evidence that H.A.-J. was

aware of J.A.R.-E.’s ability to inflict such a devastating injury or that she coul have

prevented it.

Conclusion:

          The children came into care because J.A.R.-E. fatally injured Jonathan. At

the time of trial, he was incarcerated in the Harris County jail for that offense.

Thus, the person whose conduct clearly endangered the children is no longer a

threat.

          It is undisputed that mother and her children are bonded and love each other.

She has done everything possible to be reunited with them; including completing

all of the services on her FSP. Importantly, after two years, DFPS has been unable

to find permanency for them. While Archield concluded the children have no

special needs, the fact that K.M.-J. hears voices, cannot focus and required a full

psychological evaluation at four years of age indicates she is not faring well in

foster care.

          Finally, when all the evidence pertaining to the best interest factors is

weighed a rational fact finder could not conclude that terminating mother’s

                                             43
 parental rights is in the children’s best interest. Therefore, the termination finding

 on best interest grounds should be reversed.

                                        PRAYER


        Appellant, H.J.-A., prays that the Court reverse the trial court’s judgment

 terminating her parental rights. Appellant further prays for general relief.




                                          Respectfully submitted,

                                          /s/ William M. Thursland
                                          ___________________________
                                          William M. Thursland
                                          TBN: 20016200
                                          440 Louisiana St., Ste. 1130
                                          Houston, Texas 77002
                                          (713) 655-0200; Fax: (713) 655-9035
                                          Email: wmthursland@hotmail.com

                                          Attorney for Appellant, H.J.-A.


                         CERTIFICATE OF COMPLIANCE

        I certify that the foregoing computer generated brief complies with word
limit requirements of TRAP 9.4 (3). Relying on the word count of the computer
program used to prepare this document, the number of words, is 9,614 excluding the
caption, identify of parties and counsel, table of contents, index of authorities,
statement of the case, statement of issues presented, statement of procedural history,

                                           44
signature, proof of service, certificate of compliance and appendix.

                                         /s/ william m thursland
                                         _______________________
                                         William M. Thursland



                            CERTIFICATE OF SERVICE

        I certify that a true and correct copy of appellant’s brief was served in
accordance with TRAP on June 2, 2015 to Sandra D. Hachem, Sr. assistant Harris
County attorney, 1019 Congress, 16th Fl., Houston, TX 77002, by electronic
delivery.


                                         /s/ William. M. Thursland
                                         _________________________
                                         William M. Thursland




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