C. H. v. Texas Department of Family and Protective Services

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS

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C.H., No. 08-12-00251-CV
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Appellant, Appeal from
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v. 143rd District Court
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TEXAS DEPARTMENT OF FAMILY of Ward County, Texas
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AND PROTECTIVE SERVICES,
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Appellee.

OPINION

C.H. (Father) is appealing from a judgment terminating his parental rights to his

biological child, C.H., Jr. (C.H.)1 We affirm.

FACTUAL SUMMARY

C.H. was born two months premature on February 10, 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

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.
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 Father: (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

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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. Father completed the required parenting classes and a psychosocial evaluation

but he 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

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 Mother’s parental rights. See C.H. v. Texas Department of Family and

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 SUFFICIENCY OF THE EVIDENCE

In Issues One and Two, Father challenges the legal and factual sufficiency of the

evidence supporting the trial court’s finding that termination of Father’s parental rights is in the

best interest of C.H. 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 factfinder’s conclusions and the role of a court conducting a

legal sufficiency review, looking at the evidence in the light most favorable to the judgment

means that a reviewing court must assume that the factfinder resolved disputed facts in favor of

its finding if a reasonable factfinder could do so. 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 factfinder could

have disbelieved or found to have been incredible. Id. This does not mean that a court must

Protective Services, No. 08-12-00250-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).

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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

factfinder’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 factfinder’s findings and should not supplant the factfinder’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 factfinder 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 factfinder 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 factfinder 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 factfinder could not have credited in favor of the finding is so significant that a

factfinder could not reasonably have formed a firm belief or conviction, then the evidence is

factually insufficient. Id. 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 factfinder could not have credited disputed evidence in

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favor of the finding. In re J.F.C., 96 S.W.3d at 266-67.

Best Interest

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

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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. Father argues that the

Department presented no evidence of C.H.’s physical and emotional needs. We disagree.

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 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 non-

accidental 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. The trial court was not required to believe Father’s testimony about how the

most recent broken leg occurred or his assertions that he was unaware of the other injuries.

Further, the court could have found that Father did not take the child to his medical care

appointments because he knew about the prior injuries and feared they would be discovered.

When Mother and Father took C.H. to the hospital, he had not been bathed and was dirty.

Even if the trial court believed Father’s assertions that he did not intentionally harm C.H., the

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 inability of Father 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. Father visited C.H. six times out of ten opportunities to

visit.

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 Father completed the parenting classes as required by the service plan,

he has shown an inability to care for C.H.

5. Available assistance programs. The Department provided parenting classes, which Father

completed, but he failed to complete counseling or the MHMR assessment.

6. The plans for the child by the individuals or agency seeking custody. Father did not

introduce evidence of his plans for C.H.’s future other than reuniting with and caring for him.

The Department recommended that Father’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 of her home,

Mother and Father moved to Dallas a few days before Christmas and stayed with her father,

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 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 in August 2011.

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

Father’s parental rights is in the best interest of the child. The evidence is also factually

sufficient to support the challenged finding. We overrule Issues One and Two and affirm the

judgment terminating Father’s parental rights.

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October 17, 2012 _______________________________________________
ANN CRAWFORD McCLURE, Chief Justice

Before McClure, C.J., Rivera, and Antcliff, JJ.

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