In the Interest of Baby Boy J., a Child v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: April 4, 2023
• Docket: 05-22-01136-CV
• Status: Published

Opinion

Affirm and Opinion Filed April 4, 2023

S In The Court of Appeals Fifth District of Texas at Dallas No. 05-22-01136-CV

IN THE INTEREST OF BABY BOY J., A CHILD On Appeal from the 302nd Judicial District Court Dallas County, Texas Trial Court Cause No. DF-21-00644-U

MEMORANDUM OPINION Before Justices Molberg, Partida-Kipness, and Carlyle Opinion by Justice Partida-Kipness Appellants C.J. (Mother) and A.G. (Father) both separately appeal the

termination of their parental rights to Baby Boy J. Mother contends the evidence was

legally and factually insufficient to support the jury’s findings under Texas Family

Code section 161.001(b)(1)(D), (E), (O), the jury’s best interest finding, and the

appointment of the Texas Department of Family and Protective Services (the

Department) as Baby Boy J’s managing conservator. Father argues the evidence was

legally and factually insufficient to support the jury’s findings under section

161.001(b)(1)(D), (E), the jury’s best interest finding and the appointment of the

Department as managing conservator. Father also contends the trial court erred by allowing hearsay statements of another child into evidence. We conclude Mother

and Father failed to preserve their sufficiency challenges, and we find no abuse of

discretion concerning the admission of evidence challenged by Father. We overrule

all appellate issues and affirm the termination orders.

BACKGROUND

Baby Boy J was born on November 23, 2020. He is the youngest of Mother’s

three children. His older siblings, T.L. and K.B.J. (KJ) were removed from Mother’s

custody in April 2020 after KJ suffered severe injuries that resulted in permanent

brain damage while in Mother’s care. Medical records show KJ suffered an

intracranial hemorrhage, skull fractures, an injury to his liver, had bruises from his

head to his feet, bilateral black eyes, and old scars all over his body. Mother told

hospital staff that KJ passed out in the shower and suffered an asthma attack. She

also claimed Father caused KJ’s injuries by hitting KJ with a belt. Mother was

arrested for criminal injury to a child. At the time of the termination trial related to

Baby Boy J, Mother was facing felony charges for KJ’s injuries. As a condition of

Mother’s bond in her criminal injury to a child case, she was to have no contact with

children, including T.L. and KJ.

In June 2020, the Department became aware of Mother’s pregnancy with

Baby Boy J. Because of the Department’s history with Mother and her older

children, the Department was concerned Baby Boy J’s safety would be jeopardized

if he was not removed from Mother and Father’s custody at birth. The Department,

–2– therefore, took steps to remove Baby Boy J as soon as he was born. But Mother and

Father took steps to hide the child’s birth from the Department and avoid his

removal.

During a video call in December 2020, Mother told her Department

caseworker she had not yet given birth. Once the Department determined Baby Boy

J had been born, Mother refused to turn him over to the Department or provide his

location. Mother even rented a room at the Budget Suites under another name so law

enforcement would not discover that Father and Baby Boy J were staying there.

Similarly, Father removed a court-ordered1 ankle monitor to prevent authorities from

locating him and Baby Boy J. Father eventually made phone contact with the

Department to confirm that Baby Boy J was safe, and allowed a video visit so the

caseworkers could visually see Baby Boy J.

When Father and Baby Boy J were eventually located, authorities arrested

Father on outstanding warrants. When Baby Boy J was recovered, he had no injuries

and appeared properly nourished, but was behind on his shots. After observing Baby

Boy J, the Department released him to the custody of his aunt, A.B.

In January 2021, the Department filed a petition to terminate Mother and

Father’s parental rights to Baby Boy J. The Department alleged termination was

warranted due to Mother’s open case regarding the physical injuries she inflicted on

1 At the time of the termination trial, several criminal charges unrelated to the termination proceeding were pending against Father. –3– KJ, Father’s alleged participation in KJ’s injuries, Father’s drug history and

unwillingness to participate with the Department. Department caseworkers testified

that Mother had previously been ordered to complete court-ordered services in KJ’s

case and had completed some, but not all, of those services. Eventually, Mother

stopped communicating with the Department. The termination petition proceeded to

trial before a jury in June 2022. Mother did not appear at trial, but was represented

by counsel. Father appeared with counsel and testified.

The jury found by clear and convincing evidence that both Mother and Father

(1) knowingly placed or allowed Baby Boy J to remain in conditions or surroundings

which endangered his physical or mental well-being; and (2) engaged in conduct or

knowingly placed Baby Boy J with persons who engaged in conduct which

endangered his physical or emotional well-being. See TEX. FAM. CODE §

161.001(b)(1)(D), (E). The jury also found that Mother failed to comply with the

provisions of a court order that specifically established the actions necessary for

Mother to obtain the return of the child who has been in the permanent or temporary

managing conservatorship of the Department. See id. § 161.001(b)(1)(O). The jury

also found the termination of Mother and Father’s parental rights was in Baby Boy

J’s best interest and the Department should be named the permanent managing

conservator. Neither Mother nor Father moved for an instructed verdict, objected to

the submission of the issues to the jury, or filed a motion for a judgment

notwithstanding the verdict, motion to disregard any jury findings, or motion for a

–4– new trial as required to preserve error in a parental termination case. Both Mother

and Father appealed their respective terminations.

ANALYSIS

Mother raises five issues regarding legal and factual sufficiency of the

evidence to support the jury’s findings: under section 161.001(b)(1)(D), (E), (O); the

jury’s best interest finding; and the appointment of the Department as the managing

conservator. Father raises similar issues regarding the legal and factual sufficiency

of the evidence to support the jury’s findings: under section 161.001(b)(1)(D), (E);

the jury’s best interest finding; and the appointment of the Department as managing

conservator of Baby Boy J. Father also argues the trial court erred by admitting

hearsay statements of another child into evidence.

I. Sufficiency of the Evidence

Both Mother and Father argue the evidence was legal and factually

insufficient (1) to support termination of their parental rights under section

161.001(b)(1)(D) and (E) of the family code; (2) to support the jury’s finding the

termination was in the child’s best interest; and (3) to support the appointment of the

Department as the child’s managing conservator. Mother further challenges the

sufficiency of the evidence to support termination under section 161.001(b)(1)(O)

of the family code.

Because an order terminating a parent’s rights under subsection (D) or (E) can

be used as the basis for future terminations under subsection (M), the Texas Supreme

–5– Court has directed us to review the evidence supporting findings on grounds (D) and

(E), even if a termination appeal is being resolved on a different ground, because

those findings may affect subsequent proceedings involving the parent. See In re

N.G., 577 S.W.3d 230, 234 (Tex. 2019) (citing TEX. FAM. CODE §

161.001(b)(1)(M)). However, we are not required to conduct such a review when

the party fails to preserve error on a sufficiency challenge. In re A.P., No. 05-19-

01536-CV, 2020 WL 3071708, at *6 (“although Mother challenges the sufficiency

of the evidence supporting the jury’s predicate statutory findings on grounds (D) and

(E), we need not review the evidence supporting those findings because Mother did

not preserve error.”).

To preserve a legal sufficiency challenge following a jury trial, a party must

first raise the issue with the trial court in: (1) a motion for instructed verdict, (2) a

motion for judgment notwithstanding the verdict, (3) an objection to the submission

of the question to the jury, (4) a motion to disregard the jury’s answer to a vital fact

question, or (5) a motion for new trial. In re D.T., 625 S.W.3d 62, 75 n.8 (Tex. 2021)

(citing Aero Energy, Inc. v. Circle C Drilling Co., 699 S.W.2d 821, 822 (Tex. 1985));

see, e.g., In re E.M.E., No. 04-22-00273-CV, 2022 WL 17660991, at *2 (Tex.

App.—San Antonio Dec. 14, 2022, no pet.) (mem. op.) (concluding appellant did

not preserve legal or factual sufficiency challenges); In re A.R.S., No. 05-21-00655-

CV, 2022 WL 224812, at *1 (Tex. App.—Dallas Jan. 26, 2022, no pet.) (mem. op.)

(stating appellant did not preserve legal or factual sufficiency challenges); In re

–6– M.X.R., No. 04-20-00042-CV, 2020 WL 2736465, at *2 (Tex. App.—San Antonio

May 27, 2020, no pet.) (mem. op.) (concluding appellant did not preserve challenges

to legal sufficiency of evidence because she did not make a motion for new trial or

any other motion or objection in trial court that would preserve those challenges).

Preservation of a factual sufficiency challenge requires a motion for new trial.

In re D.T., 625 S.W.3d at 75 n.8; In re A.R.S., 2022 WL 224812, at *1; E.N. v. Tex.

Dep’t of Fam. & Protective Servs., No. 03-21-00014-CV, 2021 WL 2460625, at *6

(Tex. App.—Austin June 21, 2021, no pet.) (mem. op.) (concluding appellant failed

to preserve challenge to factual sufficiency); In re M.X.R., 2020 WL 2736465, at *3

(stating appellant did not preserve her challenges to factual sufficiency because she

did not raise a motion for new trial).

Neither Mother nor Father filed or made an oral motion for instructed verdict

or a motion for judgment notwithstanding the verdict. Neither parent objected to any

issue submitted to the jury, asked the trial court to disregard the jury’s answer, or

filed a motion for new trial. In the absence of any of these measures, neither Mother

nor Father’s issues regarding the legal and factual sufficiency of the evidence are

preserved for our review. See In re D.T., 625 S.W.3d at 75 (confirming waiver in

termination of parental rights cases based on non-compliance with above-listed

grounds); In re A.R.S., 2022 WL 224812, at *1. Because neither Mother nor Father

properly preserved their sufficiency challenges, those issues are waived. We,

–7– therefore, overrule Mother and Father’s sufficiency challenges and affirm the jury’s

findings.

The result would be the same even if error had been preserved because the

evidence was sufficient to support the jury’s finding. Mother was under felony

indictment for the traumatic injuries KJ suffered and was ordered to stay away from

the children. The Department had a legitimate concern for Baby Boy J being in

Mother’s custody based on his brother’s almost fatal injuries and his sister’s

statements that Mother caused part of those injuries. Regarding Father, T.L. stated

that Father participated in “whipping” KJ and was complacent in allowing Mother

to hit KJ. Mother also told law enforcement that Father injured KJ, although he was

never criminally charged for any abuse. Father did, however, withhold and hide

Baby Boy J from the Department knowing it was attempting to locate them. The

evidence presented supported the jury’s determination of sufficient evidence to

terminate both Mother and Father’s parental rights. Because Mother and Father

waived their sufficiency challenges, we overrule Mother’s five appellate issues and

Father’s first four issues.

II. Hearsay Statement

In his fifth issue, Father alleges the trial court abused its discretion by allowing

a Department caseworker to testify about statements made by a child, T.L., regarding

Father.

–8– We review a trial court’s decision to admit evidence for an abuse of

discretion. Fleming v. Wilson, 610 S.W.3d 18, 21 (Tex. 2020). A trial court abuses

its discretion if it acts without reference to any guiding rules or principles—that is,

if its act is arbitrary or unreasonable. Low v. Henry, 221 S.W.3d 609, 614 (Tex.

2007); Cire v. Cummings, 134 S.W.3d 835, 838–39 (Tex. 2004). An appellate court

cannot conclude that a trial court abused its discretion merely because the appellate

court would have ruled differently in the same circumstances. E.I. du Pont de

Nemours & Co. v. Robinson, 923 S.W.2d 549, 558 (Tex. 1995); see also Low, 221

S.W.3d at 620. An appellate court must also uphold the trial court’s evidentiary

ruling if the record shows any legitimate basis for the ruling. Owens-Corning

Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex. 1998). “‘Hearsay’ is a

statement, other than one made by the declarant while testifying at the trial or

hearing, offered in evidence to prove the truth of the matter asserted.” TEX. R. EVID.

801(d). The proponent of hearsay has the burden of showing that the testimony fits

within an exception to the general rule prohibiting the admission of hearsay

evidence. Volkswagen of Am., Inc. v. Ramirez, 159 S.W.3d 897, 908 n.5 (Tex. 2004).

At trial, the Department caseworker explained she was present and viewed the

forensic interview of T.L., who was six years old at the time, and heard T.L. state

that Mother hit KJ. When asked if Father ever hit KJ, counsel objected to hearsay.

The Department stated there was an exception relating to a child under the age of

–9– twelve under the family code. See TEX. FAM. CODE § 104.006. Section 104.006

states:

In a suit affecting the parent-child relationship, a statement made by a child 12 years of age or younger that describes alleged abuse against the child, without regard to whether the statement is otherwise inadmissible as hearsay, is admissible as evidence if, in a hearing conducted outside the presence of the jury, the court finds that the time, content, and circumstances of the statement provide sufficient indications of the statement’s reliability and:

(1) the child testifies or is available to testify at the proceeding in court or in any other manner provided for by law; or

(2) the court determines that the use of the statement in lieu of the child’s testimony is necessary to protect the welfare of the child.

Id. The trial court held a hearing outside the presence of the jury. Father’s trial

counsel argued that section 104.006 required T.L. to be the victim of the offense and

not just a witness. The Department argued T.L. was also a victim of child abuse

based on what she observed in her home and the fact she had also been removed.

The trial court overruled Father’s counsel’s objections, found that allowing the

testimony protected T.L.’s welfare, and allowed the caseworker to testify regarding

T.L’s statements. The caseworker stated T.L. saw Father “whip KJ with a belt and

just that he didn’t interfere when [Mother] was whipping KJ either. Neither one of

them interfered with the other.”

The trial court held the appropriate hearing to determine if the testimony of

the caseworker was necessary to protect T.L. By finding the caseworker’s testimony

–10– was needed to protect T.L., the trial court did not abuse its discretion in allowing the

testimony. We concluded there was a legitimate basis for the court’s ruling and it

was not an abuse of discretion. We overrule Father’s fifth issue.

CONCLUSION

Based on the record before us, we affirm the trial court’s judgment terminating

both Mother and Father’s parental rights.

/Robbie Partida-Kipness/ ROBBIE PARTIDA-KIPNESS JUSTICE

221136F.P05

–11– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT

IN THE INTEREST OF BABY BOY On Appeal from the 302nd Judicial J., A CHILD District Court, Dallas County, Texas Trial Court Cause No. DF-21-00644- No. 05-22-01136-CV U. Opinion delivered by Justice Partida- Kipness. Justices Molberg and Carlyle participating.

In accordance with this Court’s opinion of this date, the judgment of the trial court is AFFIRMED.

Judgment entered this 4th day of April 2023.

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