in the Interest of C.W., a Child

Opinion

NUMBER 13-08-00112-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

IN THE INTEREST OF C. W., A CHILD

On appeal from the 156th District Court of San Patricio County, Texas.

MEMORANDUM OPINION

Before Justices Rodriguez, Garza, and Vela Memorandum Opinion by Justice Rodriguez

Appellant, M.H.,1 appeals from the trial court's order terminating her parental rights

to her son, C.W.2 By two issues, M.H. challenges the legal sufficiency of the evidence to

1 See T EX . R. A PP . P. 9.8(b)(2)(providing that "the court m ust, in its opinion, use an alias to refer to a m inor, and if necessary to protect the m inor's identity, to the m inor's parent or other fam ily m em ber").

2 C .W .'s father, attem pted to appeal from the judgm ent term inating the parental rights of C.W .'s m other, M.H. On January 8, 2009,after severing the father's appeal, this Court, dism issed the father's appeal for want of jurisdiction. See In the Interest of C.W ., No. 13-08-00728-CV, ___ Tex. App. LEXIS ___ (Tex. App.–Corpus Christi January 8, 2009, no pet. h.) (m em . op., not designated for publication). support the findings that she violated section 161.001(1) of the Texas Family Code and

that termination of her parental rights was in the best interest of C.W.3 See TEX . FAM .

CODE ANN . § 161.001(1)(D), (E) (Vernon Supp. 2008). We affirm.

I. BACKGROUND

On April 18, 2007, M.H. took her nineteen-month-old child, C.W., to a chiropractor

after she noticed he was limping. The chiropractor told M.H. to take C.W. to his

pediatrician, who ordered x-rays of the child's leg. According to M.H., C.W.'s pediatrician

informed her that C.W. had a pulled muscle and required warm baths. On April 20, 2007,

M.H. and C.W. traveled out of town to a family reunion with M.H.'s fiancee, J.G. Because

C.W. was limping and required assistance walking, M.H. carried him or put him in a stroller.

On April 22, 2007, during the trip back home, M.H. noticed that C.W.'s leg was

swollen. M.H. took C.W. to the hospital. Nancy S. Harper, M.D., medical director for the

Child Abuse Referral and Education (CARE) Network team at Driscoll Children's Hospital,

found that C.W. had two broken bones. The first was visible on the x-rays taken by C.W.'s

pediatrician. The second break occurred after the first x-rays were taken. In a child-abuse

evaluation dated April 23, 2007, Dr. Harper described the second break as a fragmented

impacted fracture with buckling. According to Dr. Harper, C.W.'s leg was swollen,

deformed, and did not have a pulse. C.W.'s injury required that slits be cut into the

compartments of his lower leg in order to reduce the swelling. A cast was then placed on

3 This Court received a supplem ental brief from M.H. However, M.H. has not sought leave to file the supplem ental brief, which raises substantive issues not addressed in her original brief. Because M.H.'s supplem ental brief has never been filed with this Court, we decline to review it. See T EX . R. A PP . P. 38.7; Standard Fruit and Vegetable Co., Inc. v. Johnson, 985 S.W .2d 62, 65 (Tex. 1998) ("Generally, a party m ust seek leave of court to file an am ended or supplem ental brief, and the appellate court has som e discretion in deciding whether to allow the filing.").

2 his leg. Dr. Harper documented that C.W. had the following injuries: (1) a small midline

abrasion between the eyes; (2) an abrasion to the left eye; (3) a loss of a left upper tooth;

(4) an abrasion to the chin; (5) bruising to the pinna of the ear; (6) maceration and irritation

of the neck folds; (7) hypopigmented scars on the abdomen that were multiple and fairly

linear in configuration; and (8) a moderately swollen left lower extremity with cool toes and

concerns for compartment syndrome.

M.H. entered into a safety plan with the Department of Family and Protective

Services (the Department) wherein C.W. was placed with J.G.'s parents and M.H. was

allowed supervised visitation. M.H. testified that she violated the safety plan by taking

C.W. from J.G.'s parents' home to live at the residence she shared with J.G. The following

morning, J.G. found C.W. not breathing. J.G. woke up M.H., and M.H. called 911. C.W.

was transported to the emergency room. Dr. Harper was again consulted and conducted

another child-abuse evaluation (May 17 child-abuse evaluation).

The Department removed C.W. from M.H.'s home and a service plan was

developed that included counseling, a psychological evaluation, parenting classes, drug

testing, and supervised visitation. On May 30, 2007, the Department filed its original

petition for protection of a child, requesting conservatorship and termination of the parent-

child relationship. After a hearing, the trial court ordered termination of M.H.'s parental

rights. This appeal ensued.

II. APPLICABLE LAW

Involuntary termination of parental rights involves fundamental constitutional rights

and divests the parent and child of all legal rights, privileges, duties and powers normally

3 existing between them, except for the child's right to inherit from the parent. Holick v.

Smith, 685 S.W.2d 18, 20 (Tex. 1985); see In re D.S.P., 210 S.W.3d 776, 778 (Tex.

App.–Corpus Christi 2006, no pet.). Termination must be supported by clear and

convincing evidence. In re J.L., 163 S.W.3d 79, 84 (Tex. 2005); In re D.S.P., 210 S.W.3d

at 778. This intermediate standard falls between the preponderance of the evidence

standard of civil proceedings and the reasonable doubt standard of criminal proceedings.

In re G.M., 596 S.W.2d 846, 847 (Tex. 1980); In re C.S., 208 S.W.3d 77, 83 (Tex.

App.–Fort Worth 2006, pet. denied). It is defined as 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." TEX . FAM . CODE ANN . § 101.007 (Vernon 2002).

Before terminating parental rights, the trial court must find that the parent committed

an act prohibited by section 161.001(1) of the Texas Family Code and that termination is

in the best interest of the child. Id. § 161.001 (Vernon Supp. 2008); id. § 153.002 (Vernon

2002); In re J.L., 163 S.W.3d at 84. Here, the trial court found clear and convincing

evidence that M.H. (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" and (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."

See TEX . FAM . CODE ANN . § 161.001(1)(D), (E). "[A] child is endangered when the

environment or the parent's course of conduct creates a potential for danger which the

parent is aware of but disregards." In re S.M.L., 171 S.W.3d 472, 477 (Tex. App.–Houston

[14th Dist.] 2005, no pet.).

4 When considering whether parental termination is in the child's best interest, the

following non-exhaustive list of factors should be considered: (1) the desires of the child;

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

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

parties seeking custody; (5) the programs available to assist the parties seeking custody;

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

proposed placement; (8) the acts or omissions committed by the parent which may indicate

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

omissions committed by the parent. Holley v. Adams, 544 S.W.2d 367, 372 (Tex. 1976).

The party seeking parental termination is not required to prove all nine factors. See In re

C.H., 89 S.W.3d 17, 27 (Tex. 2002) (providing that these considerations are not

exhaustive, "or that all such considerations must be proved as a condition precedent to

parental termination"); In re J.R.S., 232 S.W.3d 278, 284 (Tex. App.–Fort Worth 2007, no

pet.) ("These factors are not exhaustive; some listed factors may be inapplicable to some

cases; other factors not on the list may also be considered when appropriate.").

III. STANDARD OF REVIEW

In reviewing the legal sufficiency of the evidence supporting parental termination,

we must "look at all the evidence in the light most favorable to the 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.L., 163 S.W.3d at 85. We must assume that the trier of fact

resolved disputed facts in favor of its finding if it was reasonable to do so. Id. We must

also consider undisputed evidence, if any, that does not support the finding. Id. at 86.

5 IV. ANALYSIS

A. Violation of Section 161.001(1)(D) and (E)

By her first issue, M.H. challenges the evidence as legally insufficient4 to support the

trial court's finding that she violated sections 161.001(1)(D) and (E) of the family code.

M.H. specifically asserts that there is no evidence to explain why C.W. stopped breathing,

other than that he has asthma and apnea.5 M.H. contends that "[i]t is not reasonable to

believe that someone caused C[.]W[.] to stop breathing, when the ultimate fact is no one

knows why or how C[.]W[.] stopped breathing."

In our legal sufficiency review, we first consider the evidence supporting the trial

court's finding that M.H. knowingly placed or knowingly allowed C.W. to remain in

conditions or surroundings which endangered his physical or emotional well-being. See

In re J.L., 163 S.W.3d at 85 (citing TEX . FAM . CODE ANN . § 161.001(D), (E)). We also

consider the evidence supporting the finding that M.H. engaged in conduct or knowingly

placed C.W. with persons who engaged in conduct that endangered C.W.'s physical or

emotional well-being. See TEX FAM . CODE ANN . § 161.001(D), (E). This evidence includes

4 Although in her issues M.H. states that the evidence is factually insufficient to support the trial court's findings, she only provides argum ents and authority regarding legal sufficiency and does not provide a substantive analysis of her factual sufficiency claim s. Furtherm ore, M.H. prays that this Court reverse the trial court's judgm ent, but does not seek rem and. To the extent that M.H. m ay be com plaining in her two issues that the evidence is factually insufficient to support the trial court's findings, we conclude that she has waived those argum ents because she has not cited to the record or to any authority. See T EX . R. A PP . P. 38.1(h); Ryan v. Abdel-Salam, 39 S.W .3d 332, 336 (Tex. App.–Houston [1st Dist.] 2001, pet. denied) ("W hen a party fails to include any citation of authority or discussion of relevant facts to support its sufficiency contention, 'we will not perform an independent review of the record and applicable law to determ ine whether the error com plained of occurred.'") (quoting Happy Harbor Methodist Home, Inc. v. Cowins, 903 S.W .2d 884, 886 (Tex. App.–Houston [1st Dist.] 1995, no writ)).

5 W e note that C.W . had m ultiple injuries. The Departm ent presented evidence showing that som e of those injuries could not have been accidental. M.H. does not com plain of the evidence regarding C.W .'s other injuries.

6 Dr. Harper's May 17 child-abuse evaluation. In her evaluation, Dr. Harper wrote the

following:

[C.W.] is a 19-month-old male who is referred to the CARE team physician by the emergency room for evaluation for non-accidental trauma after he presented with apnea. The presentation for apnea was quite concerning as [C.W.] had been previously evaluated for non-accidental trauma after he presented with compartment syndrome of the left leg, and an impacted and fragmented distal left tibia with impaction and buckling of the left fibula. This fracture is considered highly suspicious for non-accidental trauma as it would require a high energy axial load. The fracture was not consistent with mere lateral displacement or separation of the previous toddler's fracture (spiral fracture of the tibia).

....

Apnea is very unusual in older children and is especially worrisome in a child previously evaluated for non-accidental trauma. . . . The differential diagnosis for apnea in a toddler includes suffocation or asphyxiation, seizure disorder, ingestion or poisoning, metabolic disorders and cardiac arrhythmia . . . . With such a highly suspicious fracture and a recent return home, this is again very concerning for non-accidental trauma such as suffocation. [C.W.] requires a close follow-up by CPS due to this unusual presentation and previous concerns for non-accidental trauma. If [C.W.] is returned to the care of an alleged perpetrator, he is at grave risk of further injury, disability, and mortality.

On cross-examination by C.W.'s attorney ad litem, Dr. Harper testified that the hospital

conducted a comprehensive evaluation of C.W., and that she was very concerned that

there was suffocation. Dr. Harper stated that because she did not know who injured C.W.,

she was "very concerned about him returning to that same environment for fear of future

injury, morbidity, or even death."

The evidence also established M.H. was aware that someone had injured C.W. on

other occasions. When M.H. took C.W. to the hospital because of his swollen leg, she was

informed that C.W. had multiple breaks in his left leg. M.H. testified that Dr. Harper told

her that the only way C.W. could have sustained the second break to his leg was if

7 someone had slammed him down feet first. According to M.H., she did not slam C.W.

down feet first. When the Department asked, "So I think we can all agree that somebody

purposefully hurt [C.W.]," M.H. answered, "That's what they say, yes."

Furthermore, although M.H. had been told that C.W.'s injuries were not accidental

and that someone had caused his injuries, M.H. violated the safety plan by returning with

C.W. to J.G.'s home. M.H. asserted that she did not know whether J.G. had ever been

arrested or had used drugs. M.H. testified that although she suspected that J.G. could

have hurt C.W., she has been in continued contact with him, including seeing him one

week before the parental termination hearing. According to Johnny Segovia, an

investigator with the San Patricio County Sheriff's Department, M.H. was still "working" for

J.G. approximately one month before the parental termination hearing, and M.H. told him

she was in daily contact with J.G. M.H. testified that she was concerned about allowing

J.G. future unsupervised visits with their unborn child.

In our legal sufficiency review, we must resolve any disputed fact issue in favor of

its finding if it was reasonable to do so. See In re J.L., 163 S.W.3d at 85. In this case,

M.H. has challenged the cause of C.W.'s apnea. However, it is up to the finder of fact to

resolve any conflicts within the evidence. See In re J.P.B., 180 S.W.3d 570, 574 (Tex.

2005) (providing that "when credibility issues are reflected in the written transcript," we

must defer to the factfinder's credibility determinations as long as those determinations are

not unreasonable); In re J.L., 163 S.W.3d at 85 ("[A] reviewing court must assume that the

factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could do

so."). Dr. Harper testified that apnea is rarely seen in older children and that she was

concerned that C.W. had been suffocated. When M.H. called 911 to report that C.W. was

8 not breathing, she requested police officers because she suspected that J.G. may have

hurt C.W. Megan Douglas, an investigator for child protective services, testified that she

came to the conclusion that an unknown perpetrator physically abused C.W. while in the

care of M.H. or J.G. Because we conclude that it was reasonable to do so, we must

assume that the trial court resolved this disputed fact in favor of its finding. See In re J.L.,

163 S.W.3d at 85.

Finally, we must also consider any undisputed evidence that does not support the

trial court's finding. See id. at 86. However, M.H. has not pointed to such evidence, and

we find none.

In viewing the evidence in the light most favorable to the trial court's findings, we

conclude that there was legally sufficient evidence for a reasonable factfinder to form a firm

belief or conviction that M.H. knowingly placed or knowingly allowed C.W. to remain in

conditions or surroundings that endangered his physical or emotional well-being and

engaged in conduct or knowingly placed C.W. with persons who engaged in conduct that

endangered C.W.'s physical or emotional well-being. See TEX . FAM . CODE ANN . §

161.001(1)(D), (E); In re J.L., 163 S.W.3d at 87. Therefore, the evidence, under a clear

and convincing standard, is legally sufficient to support the trial court's finding that M.H.

endangered C.W. under section 161.001(1)(D), and (E). See TEX . FAM . CODE ANN . §

161.001(1)(D), (E); In re J.L., 163 S.W.3d at 88. We overrule M.H.'s first issue.

B. Best Interest of the Child

By her second issue, M.H. contends that the evidence is legally insufficient to

support the trial court's finding that termination of her parental rights was in the best

9 interest of C.W. Specifically M.H. argues that there is no evidence of the identity of the

perpetrator or that she knew that a perpetrator caused the injury. M.H. also asserts that

"there was not clear and convincing evidence what the emotional and physical needs of

the child were or that [M.H.] would not be best able to meet those needs."

In our legal sufficiency review, we evaluate the evidence supporting the trial court's

finding that termination of M.H.'s parental rights was in C.W.'s best interest. In re J.L., 163

S.W.3d at 84. In support of the trial court's finding, we consider all of the evidence as set

out above that supported the trial court's finding that M.H. endangered C.W. in the manner

described in sections 161.001(1)(D) and (E). See id. at 87; In re C.H., 89 S.W.3d at 27.

Douglas did not believe that C.W. would be safe if returned to M.H., even if J.G. was

ordered not to have any contact with M.H. and C.W. Douglas testified that termination was

in C.W.'s best interest because "if [C.W.] were to return home it could result in further injury

to the child, and he received injuries over a period of time that are unexplained . . . I do not

feel that he is safe to return home." According to Douglas, the Department was also

concerned because the injuries to C.W. were progressively worse each time. Douglas

stated, "It was not just one injury, [C.W.] received numerous injuries. So the child was

allowed to remain in an environment that was causing bodily injury to him." M.H.'s counsel

asked Douglas what specifically led her to believe that M.H. had been neglectful, and

Douglas replied, "That it was determined that these injuries were a result of child abuse.

This child was in [M.H.'s] care at the time he received these injuries. And we don't know

who the perpetrator is." Douglas stated that the Department determined that the

perpetrator was either M.H. or J.G.. In Douglas's opinion, this was one of the worst cases

of physical abuse of a child she has seen, and C.W. would not be safe if he were returned

10 to M.H.'s home. Douglas stated that she did not believe that C.W. would be safe with

M.H., even if J.G. was ordered not to have contact with M.H. and C.W., because "she

allowed [C.W.] to remain in an environment where he received injury, and I cannot rule her

out as a perpetrator in the physical abuse."

According to Jocelyn Hargrove, a caseworker for child protective services, under the

Department's service plan, M.H. needed to address the continuous maltreatment of C.W.

by stopping the physical abuse and by not associating with J.G.6 Hargrove testified that

the goal of the plan was for M.H. to accept services, to protect C.W. from abuse, and to

grasp an understanding that C.W. was physically abused. Hargrove did not believe that

M.H. had met those goals because M.H. continued to indicate that she was not sure that

C.W. had been abused. Hargrove testified that M.H. was not protective of C.W. and that

although M.H. had completed parenting classes, M.H. had not demonstrated, as required

by the service plan, that she had learned from the classes how to protect C.W. Hargrove

stated that M.H. could have demonstrated this by indicating that she knew C.W. had been

physically abused and that she would be willing to take "whatever steps necessary to

protect him." However, M.H. denied she abused C.W. and, according to Hargrove, M.H.

did not believe that J.G. was capable of physically abusing C.W. or that he abused C.W.

This pattern of behavior, according to Hargrove, placed C.W. in danger by continuing a

relationship with the person who may have abused C.W. Furthermore, although M.H. did

6 Under the service plan, M.H. was also required to obtain full-tim e em ploym ent and provide incom e verification to dem onstrate that she was able to care for C.W . without assistance. The record reflects that M.H. did neither.

11 take advantage of the services offered by the Department, she continued the pattern of

behavior that the Department informed her endangered C.W.'s well-being.

As noted above, we must also consider undisputed facts that do not support the trial

court's finding. See In re J.L., 163 S.W.3d at 86. However, M.H. has not pointed to any,

and we find none.

Therefore, considering the non-exhaustive list of factors identified in Holley, and

viewing the evidence in the light most favorable to the trial court's finding, we conclude that

there was legally sufficient evidence for a reasonable factfinder to form a firm belief or

conviction that termination of M.H.'s parental rights was in C.W.'s best interest, including

evidence supporting a finding that M.H. knew that a perpetrator caused the injury and

evidence supporting a finding that M.H. would not be best able to meet the emotional and

physical needs of C.W. See In re J.L., 163 S.W.3d at 88; Holley, 544 S.W.2d at 372. The

evidence, under a clear and convincing standard, is legally sufficient to support the trial

court's finding that termination was in C.W.'s best interest. Id. We overrule M.H.'s second

issue.

V. CONCLUSION

We affirm the trial court's judgment.

NELDA V. RODRIGUEZ Justice

Memorandum Opinion delivered and filed this 22nd day of January, 2009.