

                                                           COURT OF
APPEALS
                                                   EIGHTH DISTRICT OF
TEXAS
                                                              EL
PASO, TEXAS
 



 
 
C.H.,
 
                                   
  Appellant,
 
v.
 
TEXAS DEPARTMENT OF FAMILY
AND PROTECTIVE SERVICES,
 
                                    Appellee.
  
 


 
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                  No. 08-12-00250-CV
 
                         Appeal from
 
143rd District
  Court
 
of Ward County,
  Texas
 
(TC #
  11-07-22,655-CVW)




 


 


 



                                                                  O
P I N I O N
 
C.H. (Mother) is
appealing from a judgment terminating her parental rights to her biological
child, C.H., Jr. (C.H.)[1]  We affirm.
FACTUAL SUMMARY
C.H.
was born two months premature in February of 2011 and was not released from the
hospital until late April 2011.  Over the
course of the next three months, Mother, Father, and C.H. lived with both
maternal and paternal grandparents at various times.  On July 21, 2011, C.H. Sr. (Father) was
changing the baby’s diaper when he heard one of the baby’s legs “pop.”  He explained that the leg simply popped when
he was holding the child by the ankles with one hand and lifting him while he
changed the diaper.  Mother, Father, the
paternal grandparents, and Father’s sister were present when the injury
occurred.  They took C.H. to Ward
Memorial Hospital and it was determined that he had a spiral break of his left
femur.  X-rays showed that the child had
three partially-healed broken ribs and he had also suffered a spiral fracture
of his other leg.  Neither parent knew
how these other bones had been broken or who caused the injuries.  C.H. was transferred from Ward Memorial
Hospital to Covenant Medical Center in Lubbock. 
According to Dr. Patterson at Covenant, all of the injuries appeared to
be non-accidental.  The Department
initiated an investigation because the parents’ explanation about the broken
leg did not comport with the nature of the injury.  On July 29, 2011, the Department filed a
petition to terminate the parental rights of both Mother and Father.  The Department also requested that it be
appointed managing conservator of the child.
The
petition alleged that Mother:  (1)
knowingly placed or knowingly allowed the child to remain in conditions or
surroundings which endanger the physical or emotional well-being of the child;
(2) 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;
(3) executed before or after the suit is filed an unrevoked or irrevocable
affidavit of relinquishment or parental rights; (4) constructively abandoned
the child; and (5) failed to comply with the provisions of a court order that
specifically established the actions necessary for her to obtain the return of
the child.  The child’s maternal
grandmother, C.A., and her husband, A.A., intervened in the case and sought to
be named joint managing conservators, or alternatively, possessory conservators
of the child.  The child’s maternal
grandfather, L.V., and his wife K.E., also intervened and requested that they
be named joint managing conservators.  
Shelby
Couch, the Department’s caseworker assigned to this case, testified that when
the child was brought into the hospital he was dirty as were his parents.  During the course of the Department’s
investigation, Couch learned that Mother had no prenatal care despite a family
history of premature births.  Further,
Mother and Father did not take C.H. to the doctor for his vaccinations due when
he was four months of age.  Additionally,
C.H. had missed five of his weekly physical therapy appointments.  At the conclusion of the investigation, the
Department was unable to determine whether Mother had committed physical abuse
or neglect, but it found that there was reason to believe Father had committed
physical abuse and neglect of the child. 
The Department cleared the maternal grandmother, C.A., of any
wrongdoing.  After making these
determinations, the Department offered services to the parents and Mother
agreed to schedule the child’s missed appointments with his doctors and notify
the case worker when she had taken care of that task.  Mother did not comply.  In August 2011, the child was removed from
the home and the Department was appointed temporary managing conservator of
C.H.  A service plan was created for each
parent setting forth the steps necessary to achieve reunification with the
child.  Both parents were required to
undergo a psychosocial evaluation, counseling, and parenting classes.  Mother completed the required parenting
classes and a psychosocial evaluation but she did not complete MHMR
testing.  Mother attended two of the required
counseling sessions and Father attended one session.  Both parents testified that that the
counselor told them that no additional sessions were required but the counselor
reported to the Department that the parents had failed to schedule the next
appointment and never completed the counseling. 

Following
a bench trial, the court found that the Department had established the first,
second, fourth, and fifth grounds by clear and convincing evidence, and that
termination was in the child’s best interest. 
The court appointed the Department as the permanent managing conservator
of C.H. and placed him with his maternal grandmother, C.A.  The court further ordered that the maternal grandfather,
L.V., could have visitation by agreement. 
Mother, Father, and L.V. each filed notice of appeal.[2]  
GROUNDS FOR
TERMINATION
            In Issue One, Mother challenges the
legal and factual sufficiency of the evidence supporting the trial court’s
findings related to the grounds for termination.  A court may order termination of the
parent-child relationship if the court finds by clear and convincing evidence
one of the grounds listed under Section 161.001(1) of the Texas Family Code and
that termination is in the best interest of the child.  Tex.Fam.Code
Ann. § 161.001 (West Supp. 2012); In
re J. L., 163 S.W.3d 79, 84 (Tex. 2005). 
Evidence is clear and convincing if it “will produce in the mind of the
trier of fact a firm belief or conviction as to the truth of the allegations sought
to be established.”  Tex.Fam.Code Ann. § 101.007 (West 2008).
 Due process requires the application of
the clear and convincing evidence standard of proof in parental termination
cases.  In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002).
Standards of Review
            In conducting a legal sufficiency
review in a parental termination case, the reviewing court should consider all
the evidence in the light most favorable to the challenged finding to determine
whether a reasonable trier of fact could have formed a firm belief or
conviction that its finding was true.  In re J.P.B., 180 S.W.3d 570, 573 (Tex.
2005); In re J.F.C., 96 S.W.3d at 266.  To give appropriate deference to the fact
finder’s conclusions and the role of a court conducting a legal sufficiency review,
looking at the evidence in the light most favorable to the judgment means that
a reviewing court must assume that the fact finder resolved disputed facts in
favor of its finding if a reasonable fact finder could do so.  In re J.P.B.,
180 S.W.3d at 573.  A corollary to this requirement is that a
court should disregard all evidence that a reasonable fact finder could have
disbelieved or found to have been incredible. 
Id.  This does not mean that a court must
disregard all evidence that does not support the finding.  Id.  Disregarding undisputed facts that do not
support the finding could skew the analysis of whether there is clear and
convincing evidence.  Id.  Therefore,
in conducting a legal sufficiency review in a parental termination case, we
must consider all of the evidence, not just that which favors the verdict.  Id.; see City
of Keller v. Wilson, 168 S.W.3d 802, 817 (Tex. 2005).  An appellate court must defer to the fact
finder’s determinations on credibility so long as those determinations are not
themselves unreasonable.  In re J.P.B., 180 S.W.3d at 573; Southwestern
Bell Telephone Company v. Garza, 164 S.W.3d 607, 625 (Tex. 2004).
In
reviewing termination findings for factual sufficiency, a court of appeals must
give due deference to the fact finder’s findings and should not supplant the fact
finder’s determination judgment with its own. 
In re H.R.M., 209 S.W.3d 105,
108 (Tex. 2006).  The court should
inquire whether the evidence is such that a fact finder could reasonably form a
firm belief or conviction about the truth of the allegations.  Id.  The reviewing court must give due
consideration to evidence that the fact finder could reasonably have found to
be clear and convincing.  In re J.F.C., 96 S.W.3d at 266.  A court of appeals should consider whether
disputed evidence is such that a reasonable fact finder could not have resolved
that disputed evidence in favor of its finding. 
Id.  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 reasonably
have formed a firm belief or conviction, then the evidence is factually
insufficient.  Id.  In applying this
standard, an appellate court’s review must not be so rigorous that the only
factfindings that could withstand review are those established beyond a
reasonable doubt.  H.R.M., 209 S.W.3d at 108.  A
court of appeals should detail in its opinion why it has concluded that a
reasonable fact finder could not have credited disputed evidence in favor of
the finding.  In re J.F.C., 96 S.W.3d at 266-67. 

Section 161.001(1)(D) - Environmental
Endangerment 
            The trial court found that Mother
knowingly placed or knowingly allowed the child to remain in conditions or surroundings
which endanger the physical or emotional well-being of the child.  See
Tex.Fam.Code Ann. § 161.001(1)(D).  This section requires proof of endangerment
which means to expose to loss or injury, or to jeopardize a child’s emotional
or physical health.  Castaneda v. Texas Department of Protective and Regulatory Services,
148 S.W.3d 509, 521-22 (Tex.App.--El Paso 2004, pet. denied), citing Texas Department of Human Services v.
Boyd, 727 S.W.2d 531, 533 (Tex. 1987). 
While endangerment 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 suffer
actual injury.  Castaneda, 148 S.W.3d at 522; Doyle
v. Texas Department of Protective and Regulatory Services, 16 S.W.3d 390,
394 (Tex.App.--El Paso 2000, pet. denied). 

Subsection
(D) requires a showing that the environment in which the child is placed
endangered the child’s physical or emotional health.  Castaneda,
148 S.W.3d at 522.  Conduct of a parent
or another person in the home can create an environment that endangers the
physical and emotional well-being of a child as required for termination under
Subsection D.  Id.; see In re W.S., 899
S.W.2d 772, 776 (Tex.App.--Fort Worth 1995, no writ) (“environment” refers to
the acceptability of living conditions, as well as a parent’s conduct in the
home).  A child is endangered when the environment
creates a potential for danger that the parent is aware of but consciously disregards.
 See
In re M.R.J.M., 280 S.W.3d 494, 502 (Tex.App.--Fort Worth 2009, no pet.); In re S.M.L., 171 S.W.3d 472, 477
(Tex.App.--Houston [14th Dist.] 2005, no pet.).  Inappropriate, abusive, or unlawful conduct by
persons who live in the child’s home or with whom the child is compelled to
associate on a regular basis in his home is a part of the “conditions or
surroundings” of the child’s home under subsection (D).  In re
M.R.J.M., 280 S.W.3d at 502.  The fact
finder may infer from past conduct endangering the child’s well-being that
similar conduct will recur if the child is returned to the parent.  In re
M.R.J.M., 280 S.W.3d at 502.  
We
will first examine the evidence for legal sufficiency.  Taken in the light most favorable to the
challenged finding, the evidence shows that Mother failed to obtain any
prenatal care and C.H. was born two months premature in January of 2011.  Following C.H.’s release from the hospital in
late April 2011, Mother and Father failed to take him for his vaccinations due
at four months of age.  C.H. is a special
needs child because he has hydroencephalitis. 
As a result of his premature birth, he is behind developmentally and
requires physical therapy on an ongoing basis. 
Mother and Father also failed to take C.H. to five of his weekly
physical therapy appointments during June and July of 2011.  Mother and Father took C.H. to the hospital
in July 2011 and it was determined that he had suffered a non-accidental spiral
break of his leg.  Both Mother and Father
insisted that they simply heard the leg “pop” while Father was changing C.H.’s
diaper.  Radiological studies showed that
he had previously suffered broken ribs and a spiral break of the other leg and
these breaks were in various stages of healing. 
C.H. underwent testing to determine whether he had brittle bone disease
or any condition that would have caused unusual fragility but that had been
ruled out.[3]  C.H. has not had any broken bones while he
has been in foster care.  Both Mother and
Father denied any knowledge of these other injuries and did not know how they
had occurred.  The trial court was not
required to believe Mother’s testimony that she did not know C.H. had sustained
these injuries.  One reasonable inference
from the evidence is that Mother did not take C.H. to the doctor for
vaccinations and to physical therapy because she knew that he had these
injuries and feared that they would be discovered.  Even if the trial court believed Mother’s
testimony that she did not have knowledge of C.H.’s injuries, it is undisputed
that she did not take him to his doctor’s appointment for vaccinations or to
physical therapy for an entire month.  We
conclude that a reasonable trier of fact could have formed a firm belief or
conviction that Mother knowingly endangered C.H.’s physical health.
We
have also reviewed the evidence for factual sufficiency.  Mother has not identified any disputed
evidence that a reasonable fact finder could not have credited in favor of the
finding.  As we have already noted, the
trial court was not required to believe Mother’s testimony that she was unaware
of the injuries and did not know how they occurred.  Mother and Father stated they did not have
transportation to take the child to his weekly therapy appointments.  Mother acknowledged that C.H. was on Medicaid
and she knew that Medicaid provides transportation for people to go to their
doctor’s appointments, but she claimed that they were unable to use the
Medicaid transportation system because her request for a food voucher while
C.H. was in the hospital had been denied. 
The caseworker, Shelby Couch, had worked for Medicaid for eight years
and she contradicted Mother’s testimony about the Medicaid transportation
system.  According to Couch, if a person
qualified for Medicaid then the transportation services would be available to
that person.  Further, an adult who is
not covered by Medicaid can use the transportation services to take a minor who
is covered to a doctor’s appointment.  It
was not unreasonable for the trial court to infer that Mother and Father failed
to take C.H. to his medical appointments because they knew he had suffered the
broken bones and feared the injuries would be discovered by the medical
personnel.  We find the evidence
factually sufficient to support the finding that Mother knowingly endangered
C.H.’s physical health.  
Having
found the evidence both legally and factually sufficient to support termination
based on Section 161.001(1)(D), we will not address the trial court’s findings related
to Subsections (E), (N), and (O).  We
overrule Issue One.
BEST INTEREST
            In Issue Two, Mother contends that
the evidence is legally and factually sufficient to establish that termination
is in the best interest of the child.  There
is a strong presumption that a child's best interests are served by maintaining
the parent-child relationship.  In the Interest of S.M., --- S.W.3d
----, 2012 WL 4381372 at *8 (Tex.App.--El Paso 2012, no pet. h.); In the Interest of L.M., 104 S.W.3d 642,
647 (Tex.App.--Houston [1st Dist.] 2003, no pet.).  The Supreme Court has set forth a list of
non-exclusive factors which can be used to determine a child’s best interests.  In re
S.M., --- S.W.3d ----, 2012 WL 4381372 at *8, citing Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976).  The determination of a child’s best interest
does not require proof of any unique set of factors, and it does not limit
proof to any specific factors.  Id.  Under Holley,
in reviewing the sufficiency of the evidence to support a best-interest
finding, courts may consider (1) the desires of the child, (2) the present and
future physical and emotional needs of the child, (3) the present and future
emotional and physical danger to the child, (4) the parental abilities of the
persons seeking custody in promoting the best interest of the child, (5) the
programs available to assist these individuals to promote the best interest of
the child, (6) the plans for the child by the individuals or agency seeking
custody, (7) the stability of the home or proposed placement, (8) acts or
omissions of the parent which may indicate the existing parent-child
relationship is not appropriate, and (9) any excuse for the parent’s acts or
omissions.  In re S.M., --- S.W.3d ----, 2012 WL 4381372 at *8, citing Holley, 544 S.W.2d at
371-72.  The same evidence of acts or
omissions used to establish grounds for termination under Section 161.001(1)
may be probative in determining the best interests of the child.  In re
S.M., --- S.W.3d ----, 2012 WL 4381372 at *8, citing In the Interest of C.H., 89 S.W.3d 17, 28 (Tex. 2002).  Termination of the parent-child relationship
is not justified when the evidence shows merely 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.  In re S.M., --- S.W.3d ----, 2012 WL 4381372 at *8, citing Clark v. Dearen, 715 S.W.2d 364,
367 (Tex.App.--Houston [1st Dist.] 1986, no writ).
1.      The desires of the child.  At the time of trial, C.H. was only eighteen
months of age and there is no evidence that he could articulate his desires.  
2.      The present and future physical and
emotional needs of the child.  C.H. has
hydroencephalitis and is a special needs child. 
As a result of his premature birth, he is behind developmentally and is
currently receiving physical therapy and speech therapy.  He will need physical therapy on an ongoing
basis.  He will also need additional
medical care.  Simply put, C.H. has
significant present and future physical and emotional needs.
3.      The present and future emotional and
physical danger to the child.  Despite
C.H.’s needs, Mother and Father failed to take C.H. for five of his weekly
physical therapy appointments.  They also
failed to take him to the doctor for vaccinations.  C.H. suffered multiple broken bones during
the twelve-week period he lived with Mother and Father following his release
from the hospital, yet both parents claimed to have been unaware of those
injuries.  When Mother and Father took
C.H. to the hospital, he had not been bathed and was dirty.  The inability of Mother and Family to
recognize that a lack of medical care and hygiene presented a physical danger
to C.H. indicates there is a risk of future physical danger.  There is also evidence of present and future
emotional danger.  After C.H. was removed
from the home and before the parents moved to Dallas, Mother and Father visited
the child between twelve and fifteen times out of twenty available visits.  After they moved to Dallas, they did not
visit C.H. at all or communicate with the caseworker to inquire about him.  They subsequently returned to Monahans and
resumed visitation but Mother visited the child only four times out of ten
available visits.  
4.      The parental abilities of the persons
seeking custody in promoting the best interest of the child.  There is substantial evidence that Mother and
Father failed to provide a safe and stable home for C.H.  While Mother completed the parenting classes
as required by the service plan, she has shown an inability to care for
C.H.  
5.      Available assistance programs.  The
Department provided parenting classes, which Mother completed, but she failed
to complete counseling or the MHMR assessment. 

6.      The plans for the child by the individuals
or agency seeking custody.  Mother
did not introduce evidence of her plans for C.H.’s future.  The Department recommended that Mother’s
parental rights be terminated and that C.H. be placed with his maternal
grandmother.  
7.      The stability of the home or proposed
placement.  There is evidence that
Mother and Father cannot provide a stable home for C.H. because they frequently
move from the home of one relative to another. 
After the Department removed C.H. from the home, Mother and Father lived
with C.A. until December 2011.  When C.A.
asked them to move out, Mother and Father moved to Dallas a few days before
Christmas and stayed with her father, L.V., for a short period of time.  They subsequently moved to Rockwall, Texas to
live at her grandparents’ house.  Mother
and Father moved back to Monahans in April 2012.  Mother had been unable to keep a job for more
than six weeks and Father had quit two jobs to move to a town where he did not
have a job.  At the time of trial, Mother
was working with Father at a tire shop in a job she described as
temporary.  Father testified that he had
had six jobs since C.H. had been removed from their care.  
8.      Acts or omissions of the parent which may
indicate the existing parent-child relationship is not appropriate.  During the twelve weeks C.H. lived with
Mother and Father, he suffered multiple broken bones, including spiral breaks
of both legs.  Mother and Father insisted
they were unaware of these injuries and did not know who was responsible, but
the evidence belies these assertions. 
The trier of fact could have inferred from the evidence showing Mother
and Father failed to take C.H. for weekly physical therapy and for his
vaccinations that they were aware of the injuries and did not want them to be
discovered.  This is certainly evidence
that the parent-child relationship is inappropriate.  
9.      Any excuse for the parent’s acts or
omissions.  Mother and Father offered
various excuses for failing to take C.H. to the doctor and to complete the
service plan but those excuses were contradicted by other evidence and shown to
be unfounded.  There is no excuse for
causing a child to suffer broken ribs or spiral fractures of both legs.
Having
reviewed all of the evidence under the standard for legal sufficiency, we
conclude that a reasonable trier of fact could have formed a firm belief or
conviction that termination of Mother’s parental rights is in the best interest
of the child.  The evidence is also
factually sufficient to support the challenged finding.  We overrule Issue Two and affirm the judgment
terminating Mother’s parental rights.
 
 
October 17, 2012                                _______________________________________________
ANN CRAWFORD
McCLURE, Chief Justice
 
Before McClure, C.J., Rivera, and Antcliff, JJ.
 




[1]  Appeals from a judgment terminating parental
rights are accelerated.  See Tex.R.App.P.
28.4.  The Texas Supreme Court has
determined that an appellate court should dispose of these appeals within 180
days after the notice of appeal is filed. 
Tex.R.Jud’l Admin.
6.2(a).  The Court appreciates the
efforts of counsel for Appellant and the Texas Department of Family and
Protective Services in filing their respective briefs in a timely manner in
this super-accelerated format.


[2]  In an opinion and judgment issued on the same
date as the opinion and judgment issued in this case, we affirmed the trial
court’s judgment terminating Father’s parental rights.  See
C.H. v. Texas Department of Family and Protective Services, No.
08-12-00251-CV (Tex.App.--El Paso Oct. 17, 2012).  Likewise, in a separate opinion and judgment,
we affirmed the trial court’s judgment placing the child with C.A.  See
L.V. v. Texas Department of Family and Protective Services, No.
08-12-00252-CV (Tex.App.--El Paso Oct. 17, 2012). 


[3]  The reporter’s record reflects that the
caseworker testified that C.H. underwent testing to determine whether he had
any genetic disease or condition that would have caused unusual “fertility” but
it is apparent from the context that the witness was discussing the fragility
of the child’s bones. 


