in the Interest of D.P. and D.P.
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Opinion
In The
Court of Appeals
Ninth District of Texas at Beaumont
__________________
NO. 09-22-00048-CV __________________
IN THE INTEREST OF D.P. AND D.P.
__________________________________________________________________
On Appeal from the County Court at Law No. 3 Montgomery County, Texas Trial Cause No. 21-01-00423-CV __________________________________________________________________
MEMORANDUM OPINION
After a bench trial, Appellant (A.L.)1 (“Alice” or “Respondent”) filed an
appeal of the trial court’s order terminating her parental rights to her three-year-old
twins, D.P. (“Donna”) and D.P. (“Darren”). We affirm.
Background
On January 12, 2021, the Department of Family and Protective Services (“the
Department” or “Petitioner”) filed an Original Petition for Protection of a Child, for
Conservatorship, and for Termination in Suit Affecting the Parent-Child
1 To protect the identity of the children, we use pseudonyms to refer to the children, their parents, and other family members. See Tex. R. App. P. 9.8(b)(2). 1 Relationship (“the Petition”). The Petition named twins Donna and Darren as
children of the suit. 2 Derek was named as Donna’s and Darren’s father, and Alice
as the children’s mother. When the Petition was filed, the twins were not yet two-
years old.
The Petition was supported by an affidavit from a Child Protective Services
(“CPS”) worker and representative of the Department. The affidavit stated that, on
December 19, 2020, the Department received a referral from a hospital stating that
Alice and her boyfriend, Anthony, who brought one-year-old Donna to the
emergency room at Texas Children’s Hospital-The Woodlands due to the child
“breathing weird” while sleeping. Alice reported that Donna’s breathing issues
began the night before. According to the affidavit, Donna’s breathing and heartbeat
were stabilized after she was resuscitated at the hospital. The affidavit states that
Donna’s x-rays showed bilateral rib fractures and other injuries and her mother Alice
had no explanation for Donna’s injuries and denied she had recently fallen or
suffered any injuries. According to the affidavit, Donna’s only caregivers outside of
2 The Petition also named Alice’s other two children, Leon and Amber, as subjects of the suit, Kirk as Leon’s alleged father, and Alex as Amber’s alleged father. Amber’s case was severed into a different cause number, and a nonsuit for Leon was granted on the Department’s motion. At the time of trial, Alice also had another child, five-month-old Andy, and Andy’s alleged father is Anthony. The twins, Donna and Darren, were the only two children in the case at the time of the trial, and we discuss the other children and their alleged fathers only when necessary for an understanding of the record. 2 Alice and Anthony were at the daycare. The affidavit states that due to her injuries,
Donna would be transferred to the main campus of Texas Children’s Hospital.
According to the affidavit, on December 22, 2020, the Department received
another referral after a skeletal survey was done on Donna’s twin brother, Darren.
The affiant states that it was discovered that Darren also had multiple old bilateral
rib fractures and dark colored spots on his abdomen and a few on his left trunk area
that were fingertip-sized. Alice had no explanation for the injuries to Darren.
According to the affidavit, a hospital social worker reported that when Donna
arrived at the emergency room, she was unresponsive. CPR was performed for nine
minutes, and a defibrillator machine was used. After Donna had a pulse, she was
intubated and transferred to Texas Children’s Hospital in Houston. The hospital
social worker reported that Donna had multiple bilateral rib fractures in various
stages of healing, and that most of the front and back ribs on both sides of the chest
had some level of fracture. Donna also suffered from a laceration and contusions on
the liver, and she had contusions in the soft tissue of the brain.
The affidavit states that a doctor at Texas Children’s Hospital reported to the
Department representative that Donna’s brain contusions were hard to assess until
more time had passed and that many of Donna’s rib fractures were inconsistent with
the act of CPR. The doctor told the Department that the nature of the levels of
fracture indicated “a strong possibility of abuse[.]” At the time of the affidavit, the
3 doctor did not yet know what caused Donna’s cardiac arrest but stated that the
medications she was taking would not have caused it and Donna had tested negative
for drugs.
The Department representative stated in the affidavit that she and Officer
Kennard with the Conroe Police Department met with Alice at the hospital and were
able to see Donna. When Officer Kennard interviewed Alice, Alice stated she was
having problems with the children’s daycare, and she changed daycares in October
2020 after Donna had been taken to the hospital “for limping.” According to Alice,
she had taken Donna to the doctor on the morning of December 18, 2020, for a
follow-up visit relating to “swelling/rash” on her jaw and nose, for which she had
been prescribed Amoxicillin. Alice then took Donna to her grandmother’s house and
Alice ran errands, and then picked Donna back up around 4 p.m. Alice reported that
Donna was playing, happy, and eating well, and fell asleep next to Alice and Darren
around 9:20 p.m. Donna said that at approximately 10:30 p.m., she asked Anthony
to put the twins in their shared crib. Alice told the Officer that around midnight,
Alice “jolted” awake and asked Anthony, who was still awake and playing video
games, why Donna was making noises breathing. Alice reported that Anthony
picked Donna up and she was limp. Alice told the Officer that they took Donna to
the hospital.
4 According to the affidavit, when Alice was questioned at the hospital, Alice’s
explanation of what had transpired did not match medical information obtained by
the hospital. Alice denied knowing what happened to Donna, and she said that
neither she nor Anthony had anything to do with Donna’s injuries.
The affidavit states that Detective Morris with the Conroe Police Department
reported that Anthony stated to him that Alice woke up at 10:20 p.m. and asked
Anthony to place the children in their crib. According to the affidavit, Anthony stated
Alice got up and went to the restroom, and then she stayed up and was on her cell
phone that evening.
After a bench trial, the trial court signed a Final Order Affecting the Parent-
Child Relationship and Order for Termination and found terminating Alice’s
parental rights to Donna and Darren would be in their best interest. Under the order,
the trial court terminated Alice’s rights on two of the predicate statutory grounds that
allow a court to terminate a parent’s rights.3 See Tex. Fam. Code Ann. §
161.001(b)(1)(D), (E), (2). Alice timely appealed.
3 The trial court also terminated the parental rights of Derek, the alleged father of Donna and Darren, but Derek is not a party to this appeal. The trial court also terminated the parental rights of any unknown father of Donna and Darren. 5 Evidence at Trial
Testimony of Alice
Alice testified at trial. Donna and Darren were almost three years old by the
time of the trial, and Alice testified that Derek was their father. She testified that she
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In The
Court of Appeals
Ninth District of Texas at Beaumont
__________________
NO. 09-22-00048-CV __________________
IN THE INTEREST OF D.P. AND D.P.
__________________________________________________________________
On Appeal from the County Court at Law No. 3 Montgomery County, Texas Trial Cause No. 21-01-00423-CV __________________________________________________________________
MEMORANDUM OPINION
After a bench trial, Appellant (A.L.)1 (“Alice” or “Respondent”) filed an
appeal of the trial court’s order terminating her parental rights to her three-year-old
twins, D.P. (“Donna”) and D.P. (“Darren”). We affirm.
Background
On January 12, 2021, the Department of Family and Protective Services (“the
Department” or “Petitioner”) filed an Original Petition for Protection of a Child, for
Conservatorship, and for Termination in Suit Affecting the Parent-Child
1 To protect the identity of the children, we use pseudonyms to refer to the children, their parents, and other family members. See Tex. R. App. P. 9.8(b)(2). 1 Relationship (“the Petition”). The Petition named twins Donna and Darren as
children of the suit. 2 Derek was named as Donna’s and Darren’s father, and Alice
as the children’s mother. When the Petition was filed, the twins were not yet two-
years old.
The Petition was supported by an affidavit from a Child Protective Services
(“CPS”) worker and representative of the Department. The affidavit stated that, on
December 19, 2020, the Department received a referral from a hospital stating that
Alice and her boyfriend, Anthony, who brought one-year-old Donna to the
emergency room at Texas Children’s Hospital-The Woodlands due to the child
“breathing weird” while sleeping. Alice reported that Donna’s breathing issues
began the night before. According to the affidavit, Donna’s breathing and heartbeat
were stabilized after she was resuscitated at the hospital. The affidavit states that
Donna’s x-rays showed bilateral rib fractures and other injuries and her mother Alice
had no explanation for Donna’s injuries and denied she had recently fallen or
suffered any injuries. According to the affidavit, Donna’s only caregivers outside of
2 The Petition also named Alice’s other two children, Leon and Amber, as subjects of the suit, Kirk as Leon’s alleged father, and Alex as Amber’s alleged father. Amber’s case was severed into a different cause number, and a nonsuit for Leon was granted on the Department’s motion. At the time of trial, Alice also had another child, five-month-old Andy, and Andy’s alleged father is Anthony. The twins, Donna and Darren, were the only two children in the case at the time of the trial, and we discuss the other children and their alleged fathers only when necessary for an understanding of the record. 2 Alice and Anthony were at the daycare. The affidavit states that due to her injuries,
Donna would be transferred to the main campus of Texas Children’s Hospital.
According to the affidavit, on December 22, 2020, the Department received
another referral after a skeletal survey was done on Donna’s twin brother, Darren.
The affiant states that it was discovered that Darren also had multiple old bilateral
rib fractures and dark colored spots on his abdomen and a few on his left trunk area
that were fingertip-sized. Alice had no explanation for the injuries to Darren.
According to the affidavit, a hospital social worker reported that when Donna
arrived at the emergency room, she was unresponsive. CPR was performed for nine
minutes, and a defibrillator machine was used. After Donna had a pulse, she was
intubated and transferred to Texas Children’s Hospital in Houston. The hospital
social worker reported that Donna had multiple bilateral rib fractures in various
stages of healing, and that most of the front and back ribs on both sides of the chest
had some level of fracture. Donna also suffered from a laceration and contusions on
the liver, and she had contusions in the soft tissue of the brain.
The affidavit states that a doctor at Texas Children’s Hospital reported to the
Department representative that Donna’s brain contusions were hard to assess until
more time had passed and that many of Donna’s rib fractures were inconsistent with
the act of CPR. The doctor told the Department that the nature of the levels of
fracture indicated “a strong possibility of abuse[.]” At the time of the affidavit, the
3 doctor did not yet know what caused Donna’s cardiac arrest but stated that the
medications she was taking would not have caused it and Donna had tested negative
for drugs.
The Department representative stated in the affidavit that she and Officer
Kennard with the Conroe Police Department met with Alice at the hospital and were
able to see Donna. When Officer Kennard interviewed Alice, Alice stated she was
having problems with the children’s daycare, and she changed daycares in October
2020 after Donna had been taken to the hospital “for limping.” According to Alice,
she had taken Donna to the doctor on the morning of December 18, 2020, for a
follow-up visit relating to “swelling/rash” on her jaw and nose, for which she had
been prescribed Amoxicillin. Alice then took Donna to her grandmother’s house and
Alice ran errands, and then picked Donna back up around 4 p.m. Alice reported that
Donna was playing, happy, and eating well, and fell asleep next to Alice and Darren
around 9:20 p.m. Donna said that at approximately 10:30 p.m., she asked Anthony
to put the twins in their shared crib. Alice told the Officer that around midnight,
Alice “jolted” awake and asked Anthony, who was still awake and playing video
games, why Donna was making noises breathing. Alice reported that Anthony
picked Donna up and she was limp. Alice told the Officer that they took Donna to
the hospital.
4 According to the affidavit, when Alice was questioned at the hospital, Alice’s
explanation of what had transpired did not match medical information obtained by
the hospital. Alice denied knowing what happened to Donna, and she said that
neither she nor Anthony had anything to do with Donna’s injuries.
The affidavit states that Detective Morris with the Conroe Police Department
reported that Anthony stated to him that Alice woke up at 10:20 p.m. and asked
Anthony to place the children in their crib. According to the affidavit, Anthony stated
Alice got up and went to the restroom, and then she stayed up and was on her cell
phone that evening.
After a bench trial, the trial court signed a Final Order Affecting the Parent-
Child Relationship and Order for Termination and found terminating Alice’s
parental rights to Donna and Darren would be in their best interest. Under the order,
the trial court terminated Alice’s rights on two of the predicate statutory grounds that
allow a court to terminate a parent’s rights.3 See Tex. Fam. Code Ann. §
161.001(b)(1)(D), (E), (2). Alice timely appealed.
3 The trial court also terminated the parental rights of Derek, the alleged father of Donna and Darren, but Derek is not a party to this appeal. The trial court also terminated the parental rights of any unknown father of Donna and Darren. 5 Evidence at Trial
Testimony of Alice
Alice testified at trial. Donna and Darren were almost three years old by the
time of the trial, and Alice testified that Derek was their father. She testified that she
had three other children: Leon (age thirteen), Amber (age eight), and Andy (age five
months). Alice testified that she had never been married. According to Alice, she
had worked forty hours a week the past two months for a mortgage company where
she earned an average monthly gross income of $2500, and prior to that, she worked
at a communications company for eight months. She had been living the past two
months in an apartment in Harris County with two of her children, Amber and Andy.
She testified that Derek, Donna’s and Darren’s father, was in Louisiana.
Alice testified that her court-ordered plan required her to undergo a
psychiatric evaluation, attend parenting classes, participate in parent collaborative
group, attend counseling sessions, and to have income and a stable place to reside.
Alice denied having a mental health diagnosis or ever using illegal drugs or drugs
not prescribed to her. Alice agreed that her visits with the children at her mother’s
residence were to be supervised, and Alice denied that she ever saw the children
there without supervision.
Alice testified that she took Donna to a pediatrician on December 17, 2020,
for red patches on her skin and face and a puffy cheek that was diagnosed as cellulitis
6 and for which Donna received antibiotics. Alice said she brought Donna back on
December 18, 2020, for a follow-up visit due to her allergies to some antibiotics.
According to Alice, her children stayed at her mother’s residence on December 19,
2020, while Alice shopped and then Alice picked them up from her mother’s and put
Donna down to sleep around 9 p.m. When she put Donna down, Donna was “still
kind of groggy from being sick[]” but she went to sleep like she normally did. Alice
stated that at that time she was living with all her children and her boyfriend,
Anthony. She said she met Anthony online, they lived together from May 2020
through December 2020 or January 2021, she is no longer in a relationship with him,
and he is the father of her youngest baby, Andy. Her apartment at that time had two
bedrooms, and Donna and Darren shared a crib in Alice’s bedroom at the foot of her
bed.
Alice stated that around midnight or 1 a.m., she was alerted that Donna was
in distress because she “started having this raspy, heavy breathing that wasn’t
normal.” According to Alice, Anthony was sitting in the room playing video games
in a chair next to the crib, Donna was “catty-cornered” to him, and Alice jumped out
of the bed when she heard Donna having difficulty breathing. When Alice picked
Donna up, Donna’s body was limp, and the child would not open her eyes. Alice,
Anthony, and the children rushed out to take Donna to Texas Children’s Hospital in
The Woodlands.
7 According to Alice, when she arrived at the hospital, she told them Donna was
not breathing and they instantly took Donna, who was nonresponsive, and performed
CPR for ten or fifteen minutes. Alice testified that a heavy man performed the chest
compressions with force and at that time Donna weighed around twenty pounds.
Alice testified that Donna was admitted instantly as a trauma patient and within ten
or fifteen minutes, Alice was informed that CPS was being notified, which surprised
Alice because she “do[es]n’t abuse any of [her] children.”
Alice testified that when she took Donna to the hospital, Donna was not
breathing. Alice was told by the hospital that Donna had suffered fractured ribs, and
Donna was transferred to Texas Children’s Medical Center. Alice agreed that the
medical records also showed that Donna had a laceration to her liver. Alice testified
that the hospital did a skeletal survey on Darren and she agreed that it was reported
to her that he also had rib fractures but of a “different age” than Donna’s. Alice did
not know whether to believe the medical professionals when they told her that Donna
had several healing fractures and an injured liver because it was her “first time
hearing something like that.” Alice testified that she did not believe hospital
personnel when they informed her that they also found healing fractures on Darren.
Alice stated that she did not abuse any of her children and that she did not know how
Donna was injured. According to Alice, she took the children to their pediatrician
four to eight weeks before Donna’s hospitalization and the medical records did not
8 mention any rib fractures. Alice testified that child abuse charges have never been
brought against her, and no pediatrician had ever reported Alice to CPS for child
abuse.
According to Alice, she had previously brought Donna to Children’s
Memorial Hermann Hospital in October 2020 after Alice had picked Donna up from
daycare and noticed that Donna was limping and had a knot on her leg. Alice testified
that the daycare did not have accident reports for Donna’s scratches, and on another
occasion, when Alice picked Donna up and questioned the daycare about a dark area
under Donna’s eye, the daycare did not have an accident report and the daycare said
Donna probably fell. According to Alice, Darren did not have problems at that
daycare but only had “scratches and things like that” but not “to the severity of
[Donna].” The day of the incident with Donna’s leg in October was Donna’s last day
at that daycare, and Alice moved the children from that daycare to another daycare.
Alice testified that she had not had any concerns with the new daycare, and she did
not believe the children had been injured there.
Alice testified that at the October 2020 hospital visit, Donna was diagnosed
with a hematoma on her leg and severe anemia, and “[t]hey wanted to transfuse her.”
Alice agreed that Donna suffered from anemia that caused her to be fatigued and
lethargic, and Donna was prescribed iron drops and a modified diet.
9 Alice believed that Donna’s injuries were caused by a “[m]ixture of day care
and the process of her being resuscitated[,]” and that it was the hospital’s and
daycare’s fault. Alice agreed that she did not ask the hospital if Donna’s resuscitation
could have caused her injuries, and Alice admitted that she had not filed a lawsuit
against the Hospital. Alice testified that she did not believe Anthony caused Donna’s
injuries and did not know if he had charges brought against him. Alice denied ever
witnessing Anthony lose patience or use any type of corporal punishment against
any of her children, and she said he had never been confrontational or physically
violent against her. According to Alice, if Anthony had done so, she would have
ended the relationship, and if he ever used violence against her children, she would
have called the police. Alice also denied that her older son Leon had ever told her
that Anthony hit him. Alice said she was not aware that Anthony had bond conditions
that prohibited contact with her, and when asked if she thought that it was important
for her to know for her children’s safety, she responded, “It hasn’t been brought to
my attention. This is the first time I’m hearing this today.” She testified that the last
time she spoke with law enforcement they left a voicemail with her mother that they
were closing the case, but Alice never asked them the status of the charges against
Anthony because “it’s not [her] case.” She denied that there was ever any physical
violence between her and Anthony, and when questioned about one occasion when
he knocked out her car window, she explained that it was because Donna got locked
10 inside the vehicle and they were not aware they could call 911 for first responders
to come open the door. She agreed that Donna and Darren were left alone with
Anthony briefly when she had to go to the grocery store. She also agreed that when
she was interviewed by the detective in this case about what happened, she had
Anthony listening on her cell phone. When asked if she was aware of Anthony’s
criminal history, she testified that he had “[s]omething back in 2010” that
“involv[ed] money or something.” Alice testified that she continued to reside with
Anthony through the end of December 2020 and into January 2021 until they broke
up, and that they broke up because she was pregnant and focusing on herself and not
because she felt he injured her children. According to Alice, Anthony had been
involved with their child, Andy, “[s]poradically[,]” and her last communication with
Anthony was via FaceTime several months before trial. She testified that Anthony
was most recently at her residence in July, when he was dropping off gifts for the
baby with his sister.
Alice testified that her plans for the children if they were returned to her was
“[a] lot of counseling [and] [a] lot of making up for lost time.” Alice named several
relatives as possible placements if the children were not returned to her. According
to Alice, her children were loved, and she wanted them to come home and participate
in counseling, and she believed there should not “even be an option for unrelated
adoption when they have family.” Alice asked the trial court not to terminate her
11 parental rights because she “went above and beyond proving that [she’s] willing to
do whatever[,]” her children were loved and deserve to be at home, and she had
social workers and family willing to help her.
Testimony of Department Caseworker
A Department Caseworker testified that she was the caseworker assigned to
the case and she had been the caseworker since the beginning of the case. The
Caseworker testified that her last contact with Derek, the alleged father of Donna
and Darren, was in October 2021, a few months before trial, when she went to
Derek’s residence to see if he wanted to take the children. According to the
Caseworker, Derek was back and forth between Louisiana and Texas and had no
knowledge of the twins. Derek had not been confirmed by DNA to be Donna’s or
Derek’s father, no one else had been alleged to be their father, and no one had
contacted the Department claiming to be their father.
The Caseworker testified that a criminal investigation of the injuries to the
children resulted in a warrant for Anthony’s arrest. However, when the Caseworker
had a conversation with Alice about who might have caused the injuries, Alice said
it was the daycare. The Caseworker had concerns because of the severity of the
injuries to the young children and because Alice had not given any indication of the
cause of the injuries except that the daycare or the hospital caused them. The
12 Caseworker testified that Donna had been hospitalized for about two weeks after her
injuries, and Alice did not visit Donna during that time.
The Caseworker testified that the services that were court-ordered for Alice
included parenting classes, a collaboration group, individual counseling, a
psychological evaluation, and an empowerment class. According to the Caseworker,
Alice did not complete the personal empowerment class, did not provide verification
that she completed the individual counseling, and did not provide proof of
employment or residency. Alice was granted visitation one hour a week, and during
those visits Alice was nurturing to the children, did not appear to be a danger to the
children, and the children were happy to see Alice and bonded with her.
The Caseworker stated that she requested that Alice communicate with her
every month. But Alice had not maintained regular contact with her. The Caseworker
had no contact with Alice between December 2020 and March 2021; she met with
Alice on March 5, 2021, when Alice signed her family plan of service; and, after
that all communication was via email. The Caseworker testified that during the time
Alice was not communicating with the Department, she never told the Department
that it was due to being pregnant or any other medical condition. According to the
Caseworker, Alice’s visits were initially at Alice’s mother’s house, where the
children were placed during that time, and later the visits were at the Department
office. In March of 2021, a safety plan was established between Alice, Alice’s
13 mother, and the Department as a result of allegations from the daycare as well as the
school that Alice was having unsupervised visits with the children. The children
were removed from the maternal grandmother’s house on June 25, 2021, because
“she was not keeping the kids safe [and] violated a safety notice that was put into
place.”
According to the Caseworker, Alice was uncooperative throughout the entire
case. The Caseworker attempted to contact Alice, but Alice had changed her phone
number without telling the Caseworker. The Caseworker also attempted to visit the
residence Alice had listed when she signed up for services, but the Caseworker
learned Alice did not have a lease at that apartment complex. The Caseworker went
to the other residence Alice had listed and then located Alice as she was leaving the
residence with her mother and the children. The Caseworker testified that on March
25, 2021, she found the children, and they had been left with Alice unsupervised.
The Caseworker testified that the Department’s initial plan for Donna and
Darren was reunification with Alice, but that changed after Alice was not in contact
with the Department or her children for four months. The Caseworker investigated
relative placement for the twins, but neither of the home studies on Alice’s
stepbrother nor sister had been approved by the time of trial. The permanency plan
for the children then changed to unrelated adoption with a concurrent goal of relative
adoption by their current foster parents. Donna and Darren had been in foster
14 placement for almost a year by the time of the trial. The foster parents were licensed
to adopt and wanted to adopt Donna and Darren if parental rights were terminated.
According to the Caseworker, Donna had special needs and participated in
occupational, speech, and physical therapy. Donna was developmentally delayed
due to the brain injury and was still learning how to walk. The Caseworker had no
concerns with Donna’s and Darren’s current foster placement.
The Caseworker was concerned about Anthony being in the children’s lives
and about their safety if they were around Anthony. The Caseworker believed that
Anthony was physically abusive to all the children in Alice’s care, and she said that
she believed that Alice was aware of the physical abuse. The Caseworker also
expressed concern as to whether Alice would be protective of the children around
other people like Anthony. The Caseworker had “safety concerns” because Alice
and her mother did not follow the rules early in the case and the children had to be
moved from their maternal grandmother’s home. According to the Caseworker, this
was an indication that Alice did not follow the rules nor think there was a problem,
which suggested a higher level of risk. The Caseworker testified that Alice had five
children, including a baby, and there were four different fathers. The Caseworker
also noted that Leon, the oldest child, did not want to have visits with Alice and he
had since been placed elsewhere. According to the Caseworker, in terms of this case
and the severity of young children’s injuries, it caused her even greater concern that
15 they were not going to have an older sibling to help them out. The Caseworker
testified that she was concerned that Anthony was still around Alice, and while
Anthony was still being investigated, a vehicle registered to him was located at
Alice’s apartment as recently as July 2021. The Caseworker agreed that now that
Alice shared a child with Anthony, there was more reason for him to come around.
In the Caseworker’s opinion, termination of Alice’s parental rights as to
Donna and Darren was in their best interest. Donna and Darren were safe in their
current placements, and the Caseworker believed placement with the foster family
was in Donna’s and Darren’s best interest.
Testimony of the Court Appointed Special Advocate (CASA)
The CASA testified that he was assigned to the case from the beginning and
visited with Donna and Darren at least monthly, sent them cards, attended visits
where the children got together, and attended supervised visits between the children
and Alice. The CASA also visited with the oldest child, Leon, prior to Leon’s case
being severed. The CASA explained to the trial court that when he was visiting Leon
in the foster parents’ home, Leon made spontaneous, unprovoked outcries to the
CASA telling the CASA that Anthony had physically abused Leon. The CASA
testified that Leon also chose not to continue visits with Alice. The CASA believed
termination of Alice’s parental rights was in the best interest of Donna and Darren
and the CASA had concerns for the safety of the children because they had severe
16 unexplained injuries. The CASA explained he observed that Donna and Darren were
bonded with their mother, were not scared of her, and she did not appear to be
abusive towards them. The CASA was not aware of Alice being criminally charged
with any child abuse regarding Donna or Darren. The CASA was concerned that if
the children were returned to Alice, even if the person believed to have caused the
injuries was no longer present, similar injuries could still be caused by that same
individual or other individuals. According to the CASA, Donna and Darren were
doing very well in their current placement.
Other Evidence
The trial court took judicial notice of its file. Alice’s court-ordered service
plan was part of the trial court’s file and it was also admitted into evidence. A Notice
of Filing Business Records Affidavit was timely filed with the clerk prior to trial,
and the affidavit included 4526 pages of medical records for medical care Donna
received from Texas Children’s Hospital. The medical records on Donna were
admitted into evidence as part of Petitioner’s Exhibits 6 and 7. The trial court also
admitted Respondent’s Exhibit 14, which included some medical “well care” visits
and shot records on Darren. Donna’s medical records indicated that on December
19, 2020, Donna was presented to the hospital in “cardiac arrest,” she had facial
bruising on the initial encounter. A skeletal survey that was done after she was
resuscitated showed “multiple healing rib fractures at least 4-6 weeks of age”
17 bilaterally, the rib fractures were described as “healing posterior rib fractures,” and
the records described a “probable healed nondisplaced fracture of the right femur,”
a “liver laceration,” and other conditions. One of the documents in Petitioner’s
Exhibits 6 and 7 included the “Physician’s Statement of Injury to a Child,” wherein
the ER physician stated Donna’s injuries were the result of “NTI” which was later
explained in the records to be “[n]on-accidental traumatic injury to child.” In the
Physician’s Statement the Physician also states that the child’s injuries were not
consistent with the explanation given by Alice, but the injuries were consistent with
“abuse/neglect.” An MRI of the brain taken on December 21, 2020 also showed
some edema in the soft tissues of the brain. Other conditions noted during Donna’s
treatment included respiratory failure requiring intubation, pulmonary contusion,
encephalopathy, impaired balance, seizures, acute urinary retention, and urinary
tract infection.
Issues
Appellant raises six issues on appeal. In her first two issues, she argues the
evidence is legally and factually insufficient to support the trial court’s finding of
condition endangerment and conduct endangerment, the predicate grounds for
terminating a parent-child relationship under subsections 161.001(b)(1)(D) and (E).
In issue three, Alice challenges the legal and factual sufficiency of the evidence to
support the trial court’s finding that terminating Alice’s parental rights was in the
18 children’s best interest. In issue four, Alice argues the trial court erred when it
appointed the Department as the children’s permanent managing conservator. In
issue five, Alice argues her court-appointed trial counsel provided ineffective
assistance. And, in issue six, Alice argues the trial court abused its discretion when
it admitted the medical records from Texas Children’s Hospital because the records
did not fall under a hearsay exception under Rules 803(6) or 902(10) of the Texas
Rules of Evidence and because “the trial was finished.”
Standard of Review
The decision to terminate parental rights must be supported by clear and
convincing evidence. Tex. Fam. Code Ann. § 161.001(b). Under the Family Code,
“‘[c]lear and convincing evidence’ means 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.” Id. § 101.007; In re J.L., 163 S.W.3d 79,
84 (Tex. 2005). The movant must show that the parent committed one or more
predicate acts or omissions and that termination is in the child’s best interest. See
Tex. Fam. Code Ann. § 161.001(b); In re J.L., 163 S.W.3d at 84.
In reviewing the legal sufficiency of the evidence in a parental rights
termination case, we must consider all the evidence in the light most favorable to the
finding to determine whether a reasonable factfinder could have formed a firm belief
or conviction that the finding was true. In re J.O.A., 283 S.W.3d 336, 344-45 (Tex.
19 2009) (citing In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002)). We assume the
factfinder resolved the disputed facts in favor of its finding if a reasonable factfinder
could do so, and we disregard all evidence that a reasonable factfinder could have
disbelieved. Id. In a factual sufficiency review, we “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. We must determine “‘whether the
evidence is such that a factfinder could reasonably form a firm belief or conviction
about the truth of the State’s allegations.’” Id. (quoting In re C.H., 89 S.W.3d 17, 25
(Tex. 2002)). “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 cases tried to the bench, the trial court in its
role as factfinder determines the credibility and weight of the witnesses’ testimony
and resolves any inconsistencies or conflicts in the evidence. See Webb v. Crawley,
590 S.W.3d 570, 578 (Tex. App.—Beaumont 2019, no pet.); In re R.J., 568 S.W.3d
734, 754 (Tex. App.—Houston [1st Dist.] 2019, pet. denied). Only one statutory
ground under section 161.001(b) is required to terminate parental rights. See In re
Z.M.M., 577 S.W.3d 541, 542 (Tex. 2019). “All evidentiary standards, including
clear and convincing evidence, recognize the relevance of circumstantial evidence.”
20 In re Lipsky, 460 S.W.3d 579, 589 (Tex. 2015); see also In re R.H.W. III, 542 S.W.3d
724, 734 (Tex. App.—Houston [14th Dist.] 2018, no pet.).
Statutory Grounds D and E
In her first two issues, Alice argues the evidence is legally and factually
insufficient to support the trial court’s finding of “condition endangerment” and
“conduct endangerment,” the predicate grounds for terminating a parent-child
relationship under subsections 161.001(b)(1)(D) and (E). See Tex. Fam. Code Ann.
§ 161.001(b)(1)(D), (E). While similar, the subsections are not identical. Under
subsection D, the Department had the burden to prove, by clear and convincing
evidence, that Alice knowingly placed or allowed Donna and Darren to remain in
conditions or surroundings that endangered their physical or emotional well-being.
Id. § 161.001(b)(1)(D). Under subsection E, the Department had the burden to prove,
by clear and convincing evidence, that Alice knowingly placed Donna and Darren
with a person or allowed them to remain in a condition with a person who engaged
in conduct that endangered Donna’s and Darren’s well-being. Id.
§ 161.001(b)(1)(E). Under either subsection D or E, the term endanger means
“expose to loss or injury; to jeopardize.” In re J.F.-G., 627 S.W.3d 304, 312 (Tex.
2021) (quoting “endanger,” Webster’s New Twentieth Century Dictionary of the
English Language 599 (1976)). Generally, a parent’s conduct that subjects a child to
a life of uncertainty and instability endangers a child’s physical and emotional well-
21 being. See In re J.O.A., 283 S.W.3d at 345 n.4 (citing In re R.W., 129 S.W.3d 732,
739 (Tex. App.—Fort Worth 2004, pet. denied)).
“Subsection D requires the endangerment to the child to be the direct result of
the child’s environment.” See In re J.H., No. 09-20-00056-CV, 2020 Tex. App.
LEXIS 6189, at *34 (Tex. App.—Beaumont Aug. 6, 2020, no pet.) (mem. op.)
(citation omitted). “Endangerment under subsection (D) arises from a child’s
environment and a parent’s disregard for the potential for danger created by the
environment.” In re I.V.H., No. 01-19-00281-CV, 2019 Tex. App. LEXIS 8659, at
*14 (Tex. App.—Houston [1st Dist.] Sept. 26, 2019, pet. denied) (mem. op.) (citation
omitted). We consider the child’s environment before the Department obtained
custody in our subsection D endangerment analysis. See In re J.L.V., No. 09-19-
00316-CV, 2020 Tex. App. LEXIS 2070, at *34 (Tex. App.—Beaumont Mar. 11,
2020, pet. denied) (mem. op.). Under subsection D, termination may be based on a
parent’s single act or omission. In re A.B., 125 S.W.3d 769, 776 (Tex. App.—
Texarkana 2003, pet. denied). It is unnecessary that a parent know with certainty the
child is in an endangering environment; instead, awareness of the potential for
danger and disregarding the risk is enough to show endangering conduct. See In re
J.H., 2020 Tex. App. LEXIS 6189, at *35. To terminate a parent’s rights under
subsection E, the evidence must “show a conscious course of conduct.” In re C.M.C.,
22 554 S.W.3d 164, 172 (Tex. App.—Beaumont 2018, no pet.) (citing In re J.T.G., 121
S.W.3d 117, 125 (Tex. App.—Fort Worth 2003, no pet.)).
The medical records show that Donna’s and Darren’s injuries were consistent
with physical abuse having occurred on more than one occasion. The medical
records demonstrated that during Donna’s hospitalization in December 2020, she
had cardiac arrest, respiratory failure requiring intubation, a pulmonary contusion,
encephalopathy, facial bruising, liver laceration, multiple fractures of ribs, seizures,
acute urinary retention, and urinary tract infection. The medical personnel
characterized Donna’s injuries as “[n]on-accidental traumatic injury to child.”
Alice admitted that on occasions she left Donna and Darren alone with
Anthony. The trial court heard testimony that just prior to Donna arriving
unresponsive at the hospital, Alice had put Donna in the crib at the foot of the bed
near Anthony, who was playing video games. The trial court heard Alice’s testimony
that she awakened to Donna having difficulty breathing and Donna was limp and
would not open her eyes. Despite Alice’s testimony that she believed Donna’s
injuries could have resulted from the daycare she had last attended months prior to
her hospitalization or from being resuscitated at the hospital, the trial court had
medical records evidence that Donna arrived at the hospital in cardiac arrest, that
Donna’s injuries were characterized as “[n]on-accidental traumatic injury to
child[,]” and were consistent with “child abuse” and showed multiple fractures in
23 various stages of healing. The affidavit attached to the Petition noted that a doctor
had informed the Department that Donna’s rib fractures were inconsistent with being
caused by the act of CPR and that the nature of the levels of fracture suffered by
Donna indicated “a strong possibility of abuse[.]” The trial court heard testimony
where Alice admitted she did not ask the hospital if Donna’s resuscitation could have
caused her injuries, and that the hospital’s skeletal survey on Darren also showed he
had rib fractures in different stages than Donna’s fractures. The trial court heard
Alice testify that she was not sure what caused Donna’s or Darren’s injuries.
Additionally, the trial court took judicial notice of the file which also contained a
summary of the allegations of abuse made by an older sibling, Leon. The CASA
testified that Leon outcried to him and described that Anthony had physically abused
Leon, and that Leon had chosen to stop having visits with Alice. The trial court heard
the Caseworker’s testimony that Anthony was investigated regarding the children’s
injuries and there was a warrant for his arrest. The trial court heard Alice testify that
she did not believe Anthony caused the injuries to Donna or Darren, and further that
she did not inquire into the status of the charges against Anthony because “it was
not [her] case.” The trial court also heard Alice admit that when she was interviewed
by the detective in this case, she had Anthony listening on her cell phone. The trial
court also heard the Caseworker testify that: Alice was uncooperative during the
case, the Caseworker had concerns about Anthony being in the children’s lives and
24 concerns about their safety around Anthony, the Caseworker was concerned that
Anthony was physically abusive to all the children in Alice’s care, and that she had
reason to believe that Alice was aware of the physical abuse.
A child’s unexplained, non-accidental fractures of various ages support a
reasonable inference that the child’s caregivers knew of the injuries and their cause,
and supports termination under subsection D. In re J.P.B., 180 S.W.3d 570, 574
(Tex. 2005); see also C.H. v. Tex. Dep’t of Family & Protective Servs., 389 S.W.3d
534, 541 (Tex. App.—El Paso 2012, no pet.) (finding sufficient evidence under
subsection D where parents denied knowledge of the child’s multiple fractures and
did not know how the fractures occurred).
The Supreme Court of Texas in In re J.P.B. reviewed similar evidence of
physical abuse as presented here, including that the father was with the mother and
child during the period the fractures likely occurred, the child sustained multiple
fractures when under the father’s care, and the fractures were likely caused by abuse
and did not occur all at once. 180 S.W.3d at 574. Based on this evidence, the Court
found the evidence was legally sufficient to allow the jury to reasonably infer that,
although the father sought medical care, he knowingly allowed the child to remain
in an environment that endangered his physical well-being as required under
subsection D. Id. The Court also concluded that it was within the fact finder’s
25 province to judge the father’s demeanor and to disbelieve his testimony that he did
not know how the child was injured. Id.
Similarly, in C.H. v. Tex. Department of Family & Protective Services, the
parents took the child to the hospital, where it was discovered he had a broken leg,
and the parents told the hospital that the leg simply “popped” during a diaper change.
389 S.W.3d at 537, 541. X-rays showed the child had suffered broken ribs, a prior
fracture of the other leg, and the breaks were in various stages of healing. Id. at 541.
The parents denied knowledge of the other injuries or how they occurred, tests ruled
out brittle bone disease or any other such condition, and the child sustained no more
broken bones while in foster care. Id. The court explained that the trial court was not
required to believe the mother’s testimony that she was unaware of the injuries and
did not know how they occurred. Id.
As in In re J.P.B. and C.H., the fact-finder in this case was free to make its
own credibility assessments, resolve conflicts in the testimony, and decide what
weight to give the witnesses’ testimony. See In re J.L., 163 S.W.3d at 86-87 (fact
finder is the “sole arbiter when assessing the credibility and demeanor of
witnesses[]”). The trial court could have believed based on the medical records that
the injuries to Donna were non-accidental and consistent with child abuse. The
medical evidence showed that both children had fractures showing multiple injuries
in various stages of healing which suggested they were caused by physical abuse
26 inflicted at different times in the past. The trial court could have reasonably inferred
that Alice knowingly allowed both Donna and Darren to remain in an environment
that endangered their physical well-being and that she engaged in conduct that
endangered their physical well-being. It was within the trial court’s province to judge
Alice’s demeanor, to disbelieve her testimony that she did not know how Donna and
Darren were injured, and to infer that she knew of their injuries and how they
occurred, supporting its findings under both subsection D and E.
Deferring to the trial court’s credibility determinations and reviewing all the
evidence in the light most favorable to the findings under subsection D and E, as we
must, the trial court could reasonably have formed a firm belief or conviction that
Alice knowingly placed or allowed Donna and Darren to remain in conditions or
surroundings that endangered their physical or emotional well-being and that Alice
knowingly placed Donna and Darren with a person or allowed them to remain in a
condition with a person who engaged in conduct that endangered Donna’s and
Darren’s well-being. We conclude that the Department established, by clear and
convincing evidence, that Alice committed the predicate acts enumerated in
subsections D and E. See Tex. Fam. Code Ann. § 161.001(b)(1)(D), (E). Further,
considering the entire record, we conclude the disputed evidence the trial court could
not reasonably have credited in favor of its endangerment findings is not so
significant that the court could not reasonably have formed a firm belief or
27 conviction that the findings under subsections D and E are true. See In re J.F.C., 96
S.W.3d at 266. We overrule issues one and two.
Best Interest of the Children
In issue three, Alice challenges the legal and factual sufficiency of the
evidence to support the trial court’s finding that terminating Alice’s parental rights
is in the children’s best interest. Trial courts have wide latitude in determining a
child’s best interest. See Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982).
There is a strong presumption that the best interest of a child is served by keeping
the child with his parent. In re R.R., 209 S.W.3d 112, 116 (Tex. 2006); In re D.R.A.,
374 S.W.3d 528, 533 (Tex. App.—Houston [14th Dist.] 2012, no pet.); see also Tex.
Fam. Code Ann. § 153.131(b). Prompt and permanent placement of a child in a safe
environment is also presumed to be in the child’s best interest. Tex. Fam. Code Ann.
§ 263.307(a). When determining the best interest of the child, a court may consider
circumstantial and direct evidence, subjective factors, and the totality of the
evidence, and evidence supporting the statutory grounds for termination may also be
used to support a finding that the best interest of the child warrants terminating the
parent-child relationship. See In re C.H., 89 S.W.3d at 28; In re N.R.T., 338 S.W.3d
667, 677 (Tex. App.—Amarillo 2011, no pet.).
The Family Code outlines nonexclusive factors to be considered in
determining whether a parent is willing and able to provide a safe environment for a
28 child including: the child’s age and physical and mental vulnerabilities; whether
there is a history of abusive or assaultive conduct by the child’s family or others who
have access to the child’s home; the willingness and ability of the child’s family to
seek out, accept, and complete counseling services and to cooperate with and
facilitate an appropriate agency’s close supervision; the willingness and ability of
the child’s family to effect positive environmental and personal changes within a
reasonable period of time; whether the child’s family demonstrates adequate
parenting skills, including providing the child with minimally adequate health and
nutritional care, a safe physical home environment, and an understanding of the
child’s needs and capabilities; and whether an adequate social support system
consisting of an extended family member and friends is available to the child. Tex.
Fam. Code Ann. § 263.307(b); see also In re R.R., 209 S.W.3d at 116.
The Texas Supreme Court has articulated several additional factors that may
be considered when determining whether termination of parental rights is in the best
interest of the child, including: the desires of the child, the emotional and physical
needs of the child now and in the future, the emotional and physical danger to the
child now and in the future, the parental abilities of the individuals seeking custody,
the programs available to assist these individuals to promote the best interest of the
child, the plans for the child by these individuals or by the agency seeking custody,
the stability of the home or proposed placement, the acts or omissions of the parent
29 that may indicate that the existing parent-child relationship is not a proper one, and
any excuse for the acts or omissions of the parent. See Holley v. Adams, 544 S.W.2d
367, 371-72 (Tex. 1976) (setting forth the “Holley factors” and noting “[t]his listing
is by no means exhaustive[]”). No specific Holley factor is controlling, and evidence
of one factor may be enough to support a finding that termination is in the child’s
best interest. See M.C. v. Tex. Dep’t of Family & Protective Servs., 300 S.W.3d 305,
311 (Tex. App.—El Paso 2009, pet. denied) (“Undisputed evidence of just one factor
may be sufficient to support a finding that termination is in the best interest of a
child.”) (citing In re C.H., 89 S.W.3d at 27); In re A.P., 184 S.W.3d 410, 414 (Tex.
App.—Dallas 2006, no pet.).
As to the grounds on which the trial court found Alice’s rights to the children
should be terminated, the medical records and the testimony discussed above
allowed the trial court to conclude that Alice failed to protect Donna and Darren
from risks that endangered their well-being when they lived in her home. Both
children suffered unexplained injuries while in her care, injuries consistent with
being abused. And after Donna was seriously injured, Alice did not visit Donna in
the hospital for two weeks. After the Department removed the children from Alice’s
home, she did not follow the rules of the Department that restricted her to having
supervised visits with her children, she was uncooperative during the entire case,
and she did not communicate with the Department or her children for a period of
30 four months at one point in the case. The trial court heard the Caseworker and the
CASA testify that terminating Alice’s parental rights to Donna and Darren was in
their best interest. Although Donna suffers from developmental delays, according to
the Caseworker, she is receiving occupational, speech, and physical therapy in foster
care. And according to the Caseworker, the Department has no concerns with
Donna’s and Darren’s current placement, a placement where the foster parents desire
to adopt Donna and Darren if the court terminates the parents’ rights to them.
The trial court also heard the Caseworker testify about her concerns that
Anthony is still around Alice, Anthony is under investigation by the Department,
and a vehicle registered to him was seen in the parking lot at Alice’s apartment.
According to the Caseworker, now that Alice shares a child with Anthony, he has
additional reasons to see Alice, which the Caseworker said raised concerns about
returning the children to Alice considering that Donna had been seriously injured
while in Alice’s and Anthony’s care. The trial court heard the Caseworker testify
that Donna and Darren are safe in their current placement, that home studies for two
of Donna’s relatives had not yet been approved, and that the foster parents were
licensed to adopt and intended to adopt Donna and Darren if the trial court
terminated their parents’ rights. The trial court also had before it the opinions of the
Caseworker and the CASA, who testified that that terminating Alice’s parental rights
would be in the best interest of the children. The Caseworker also opined that
31 allowing the twin’s current foster parents to adopt them would be in their best
interest. As to Alice, the trial court heard Alice testify that she was employed, living
in an apartment, planned on having the children participate in counseling if the court
returned her children to her, and if not, she suggested the court should place them
with some of her relatives.
Deferring to the trial court’s determinations on witness credibility, the
resolution of conflicts of evidence, and the weight to be given the testimony, we
conclude the evidence supports the trial court’s statutory and best interest findings.
See Tex. Fam. Code Ann. §§ 161.001(b)(2), 263.307; In re J.F.C., 96 S.W.3d at 266;
Holley, 544 S.W.2d at 371-72. Accordingly, we overrule Alice’s first two issues.
Appointment of Department as Permanent Managing Conservator
In issue four, Alice argues the trial court erred when it appointed the
Department as the children’s permanent managing conservator. Alice argues that
evidence at trial supports that there were family members seeking placement, no
factual evidence supported the Department being named the children’s managing
conservator, and that the only reason the Department was appointed was because
Alice’s parental rights were wrongfully terminated.
Conservatorship determinations are subject to review for abuse of discretion.
In re J.A.J., 243 S.W.3d 611, 616 (Tex. 2007). We will reverse the trial court’s
appointment of a managing conservator only if we determine it was arbitrary or
32 unreasonable. Id.; In re N.T., 474 S.W.3d 465, 479 (Tex. App.—Dallas 2015, no
pet.). The Family Code creates a rebuttable presumption that a parent will be named
the child’s managing conservator unless that court finds that such appointment
would not be in his best interest “because the appointment would significantly impair
the child’s physical health or emotional development[.]” Tex. Fam. Code Ann.
§ 153.131(a).
As discussed above, sufficient evidence supports the trial court’s order
terminating Alice’s parental rights.
When the parents’ rights have been terminated, Family Code section 161.207
governs the appointment of a managing conservator. See id. § 161.207; In re N.T.,
474 S.W.3d at 480-81. Section 161.207(a) provides, “If the court terminates the
parent-child relationship with respect to both parents or to the only living parent, the
court shall appoint a suitable, competent adult, the Department of Family and
Protective Services, or a licensed child-placing agency as managing conservator of
the child.” Tex. Fam. Code Ann. § 161.207(a). We cannot conclude that the trial
court abused its discretion by appointing the Department as the children’s managing
conservator. See In re J.A.J., 243 S.W.3d at 616; In re N.T., 474 S.W.3d at 480-81.
We overrule issue four.
33 Ineffective Assistance of Counsel
In issue five, Alice argues her court-appointed trial counsel provided
ineffective assistance. Specifically, Alice argues that her trial counsel was
ineffective in failing to object to hearsay in Alice’s service plan, hearsay in the
child’s medical records as entered on December 8, 2021, hearsay in the child’s
medical records as entered on December 10, 2021 when the evidence was reopened,
hearsay in skeletal scan results, hearsay regarding Anthony’s vehicle being parked
at Alice’s apartment, and failure to subpoena Anthony to testify. According to Alice,
these were “serious and deficient errors” and the errors prejudiced her because there
is a reasonable probability that, but for counsel’s unprofessional errors, the result of
the proceeding would have been different.
A parent who cannot afford to retain counsel in Texas parental-termination
cases has a right to an appointed attorney who provides effective assistance. In re
D.T., 625 S.W.3d 62, 69-70 (Tex. 2021); In re M.S., 115 S.W.3d 534, 544 (Tex.
2003); see also Tex. Fam. Code Ann. § 107.013(a). Ineffective-assistance-of-
counsel claims in parental-termination cases, as in criminal cases, are governed by
the United States Supreme Court’s two-prong test articulated in Strickland v.
Washington. In re M.S., 115 S.W.3d at 544-45 (citing Strickland v. Washington, 466
U.S. 668 (1984)). First, the parent must show that counsel’s performance was
deficient. Id. at 545. This requires showing that counsel made errors so serious that
34 counsel was not functioning as the “counsel” guaranteed by the Sixth Amendment.
Id. Second, the parent must show that the deficient performance prejudiced the case.
Id. This requires showing that counsel’s errors were so serious as to deprive the party
of a fair trial—a trial whose result is reliable. Id.
In examining counsel’s performance under the first prong, “we must take into
account all of the circumstances surrounding the case, and must primarily focus on
whether counsel performed in a ‘reasonably effective’ manner.” Id. (quoting
Strickland, 466 U.S. at 687). Counsel’s performance falls below acceptable levels
only when the “‘representation is so grossly deficient as to render proceedings
fundamentally unfair[.]’” Id. (quoting Brewer v. State, 649 S.W.2d 628, 630 (Tex.
Crim. App. 1983)). We give great deference to counsel’s choices and indulge “‘a
strong presumption that counsel’s conduct falls within the wide range of reasonable
professional assistance,’ including the possibility that counsel’s actions are
strategic.” Id. (quoting Strickland, 466 U.S. at 689). The challenged conduct will
constitute ineffective assistance only when “‘the conduct was so outrageous that no
competent attorney would have engaged in it[.]’” Id. (quoting Garcia v. State, 57
S.W.3d 436, 440 (Tex. Crim. App. 2001)).
In conducting the harm analysis under the second prong of Strickland,
reviewing courts must determine whether there is a reasonable probability that, but
for the deficient performance, the result of the proceeding would be different. Id. at
35 549-50. In this context, “[a] reasonable probability is a probability sufficient to
undermine confidence in the outcome.” Strickland, 466 U.S. at 694. Thus, a parent
must also show that “counsel’s ‘deficient performance prejudiced the defense[.]’” In
re J.O.A., 283 S.W.3d at 344 (quoting Strickland, 466 U.S. at 687).
An allegation of ineffective assistance of counsel in a termination proceeding
must be firmly founded in the record, and the record must affirmatively demonstrate
the alleged ineffectiveness and the resulting harm. In re L.G.R., 498 S.W.3d 195,
209 (Tex. App.—Houston [14th Dist.] 2016, pet. denied). We may not speculate and
find trial counsel ineffective when the record is silent regarding counsel’s reasons
for his actions. In re Z.M.R., 562 S.W.3d 783, 794 (Tex. App.—Houston [14th Dist.]
2018, no pet.). Alice bears the burden of demonstrating a reasonable probability that
her parental rights would not have been terminated if not for her trial counsel’s
conduct. See In re V.V., 349 S.W.3d 548, 559-61 (Tex. App.—Houston [1st Dist.]
2010, pet. denied) (op. on reh’g en banc).
Alice did not file a Motion for New Trial or other evidence as to the basis for
counsel’s reasoning for not objecting on the grounds she alleges and for not
subpoenaing Anthony to testify. Because the record is silent as to the reasons for
counsel’s conduct, we may not speculate to find counsel’s performance deficient.
See In re Z.M.R., 562 S.W.3d at 793-95; Walker v. Tex. Dep’t of Family & Protective
Servs., 312 S.W.3d 608, 623 (Tex. App.—Houston [1st Dist.] 2009, pet. denied).
36 Without evidence about strategic reasons for counsel’s behavior, Alice fails to
overcome the strong presumption that counsel’s conduct fell within the wide range
of reasonable professional assistance. See In re M.S., 115 S.W.3d at 545; see also
Strickland, 466 U.S. at 689.
Even if Alice had met Strickland’s first prong, we conclude she has also failed
to show that, but for counsel’s alleged errors, the result of the proceeding would have
been different. See Strickland, 466 U.S. at 694. As set forth in our analysis above,
the trial court had sufficient evidence in the record to support its findings under
section 161.001(b)(1)(D) and (E) and to support the trial court’s finding that
termination of Alice’s parental rights was in the children’s best interest. We overrule
issue five.
Admission of Medical Records
In her sixth issue, Alice argues the trial court abused its discretion when it
admitted the medical records from Texas Children’s Hospital because she argues the
records did not fall under a hearsay exception under Rules 803(6) or 902(10) of the
Texas Rules of Evidence and because “the trial was finished.” According to Alice,
exhibits admitted as Petitioners Nos. 6 and 7 were hearsay and could only be
admitted into evidence under the business record exception pursuant to Rules 803(6)
or 902(10).
37 At the trial conducted on December 8, 2021, the Department offered
Petitioner’s No. 6, which it described as “a notice of the filing of the business records
affidavit and records filed in this case September 2, 2021, from the Texas Children’s
Hospital.” Alice objected to Petitioner’s No. 6 on the basis that “[t]here are some
inaccuracies in those records in - - with regards to there is another patient’s name on
page 30 and also on page 32[,] [s]o I would object to those two pages coming in or
the entire exhibit as a whole.” The trial court overruled the objection and admitted
Petitioner’s No. 6.
On December 10, 2021, the trial court orally rendered judgment, then in the
same hearing withdrew its ruling because the trial court had not received one of the
preadmitted exhibits, Respondent’s No. 14. The trial court recessed for the exhibit
to be presented to the trial court and for the trial court to review all the exhibits
admitted and then render judgment later that day. After the recess, the same day the
trial court stated on the record the following:
So let me just start by saying a couple of things. Generally speaking, once everyone has rested and closed whatever evidence has been provided to the Court at that time is all that can be reviewed by the Court. But in this case, it appears that neither side provided the Court with all of the preadmitted, agreed upon exhibits in reviewable form. And so based on that, I’m going to reopen the evidence for the purpose of allowing both the petitioner and the respondent to ensure that all of your preadmitted exhibits are actually what each of you agreed upon and that they’re properly in evidence in a reviewing form. So the main issue was with Respondent’s No. 14 and Petitioner’s 6. But since – in order to address the issues with Respondent’s 14 and 38 Petitioner’s 6, I have to reopen the evidence. I’m going to give both petitioner and respondent an opportunity to clear up any of the remaining issues with the agreed upon exhibits. So I think we need to go through and make sure that everything is in order.
The trial court went through the Respondent’s exhibits, confirmed the trial court now
had received Respondent’s No. 14, confirmed that the Department had now
reviewed the exhibit, and confirmed that the Department did not have any objections
to the exhibit.
Next, when the trial court went through the Petitioner’s preadmitted exhibits
with the parties, the trial court brought to the parties’ attention that Petitioner’s No.
6, which appeared to be approximately forty pages of medical records, actually had
a disc of over 4500 pages of medical records attached but it was password protected
and not in a reviewable form. Respondent stated that as to the paper form of
Petitioner’s No. 6, it had been preadmitted, she was making “that same objection
right now” and objected to page 30 and page 32, she objected to the 4500 pages of
medical records as “just full of hearsay[,]” and she “would have objected to those
records in their entirety if they would have been offered to me as an exhibit for
purposes of trial.” The trial court reiterated that Respondent had objected to the paper
pages on hearsay grounds, the trial court had overruled those objections at trial, and
the paper records were admitted at trial. The Department argued that when the
medical records were offered, all 4526 pages of the records were filed with the trial
court as business records and with the business records affidavit which was offered 39 as part of Petitioner’s No. 6 and listed as a trial exhibit, and that the forty “paper”
pages were just the pages the Department referred to in its argument because the
Department was not going to make paper copies of the complete voluminous medical
records. The Department argued that its intent was that all 4526 pages would be
admitted as Petitioner’s No. 6 because they had been filed with the court and
accessible for Respondent’s counsel to review. The trial court pointed out that the
disc provided to the court was not in reviewable form, but that it had now reopened
the evidence, and the trial court renamed the entirety of the medical records pursuant
to the business records affidavit as Petitioner’s No. 7 and asked Respondent’s
counsel if she had any objections to the exhibit. Respondent’s counsel explained that
her perception was that only the forty “paper” pages were being offered and admitted
as Petitioner’s No. 6 and she lodged the following objection as to Petitioner’s No. 7:
Yes, Your Honor. I’m going to object to P-7 based on it being full of hearsay statements, Judge. It’s so many different signatures in that document, so many different statements in that document to where I would have to object to P-7 coming in because, you know, as I stated before, that’s not what I received as the intended exhibit to be used at trial. So, you know, I would have to object to P-7 coming in at this point.
The trial court then recessed until a later date to allow Respondent to review the
entirety of the medical records offered as Petitioner’s No. 7. On January 12, the
proceedings resumed, and the trial court asked Respondent if she objected to
Petitioner’s No.7. Respondent’s counsel objected to the exhibit on the grounds that
40 she was not served with the 4500 pages the day before the trial and she was only
served with the excerpt of the medical records. Counsel for the Department
responded that such objection was not made at the time the Department filed and
served the summary of exhibits that included “the excerpt which I had on here
referring to the business records specifically stated notice of filing of business
records affidavit for Texas Children’s Hospital filed September 2nd, 2021, . . . with
4,526 pages of records.”
The trial court took judicial notice of the court’s entire file and noted that there
was a notice of filing of business records affidavit for Texas Children’s Hospital
with 4526 pages in the file. Respondent’s counsel conceded that she had received
the notice on September 2, 2021, and that she had not filed any objection because
she relied on the physical documents she had been presented. The trial court noted
on the record that on December 13 the trial court recognized the confusion, reopened
the evidence for the exhibit to be clarified, and allowed Respondent’s counsel time
to review Petitioner’s No. 7 for any objections. The trial court also noted on the
record that the proceedings were resumed on January 12 and the trial court was
overruling the objections and admitting Petitioner’s No. 7, the medical records
described in the business records affidavit filed with the trial court on September 2,
2021. The trial court stated it would render judgment no later than January 18.
41 As for Alice’s argument that the trial court abused its discretion in admitting
Petitioner’s No. 6 and No. 7 because they were hearsay that did not fall under a
hearsay objection under Rules 803(6) or 902(10) of the Texas Rules of Evidence,
Alice made a blanket hearsay objection. A blanket hearsay objection that does not
identify which parts of a document contain hearsay is not sufficiently specific to
preserve error with respect to those parts. Flores v. City of Liberty, 318 S.W.3d 551,
560 (Tex. App.—Beaumont 2010, no pet.); see also Tex. R. App. P. 33.1.; Speier v.
Webster Coll., 616 S.W.2d 617, 619 (Tex. 1981) (“A general objection to a unit of
evidence as a whole, . . . which does not point out specifically the portion objected
to, is properly overruled if any part of it is admissible.”). As for Alice’s statement
on appeal that the trial court abused its discretion in admitting the medical records
because “the trial was finished[,]” she has failed to brief this argument. See Tex. R.
App. P. 38.1(i). We overrule issue six.
We affirm the trial court’s order of termination.
AFFIRMED.
_________________________ LEANNE JOHNSON Justice
Submitted on June 7, 2022 Opinion Delivered July 28, 2022
Before Kreger, Horton & Johnson, JJ.
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