in the Interest of E.P.C., a Child

381 S.W.3d 670, 2012 WL 3733841, 2012 Tex. App. LEXIS 7328
CourtCourt of Appeals of Texas
DecidedAugust 30, 2012
Docket02-11-00025-CV
StatusPublished
Cited by42 cases

This text of 381 S.W.3d 670 (in the Interest of E.P.C., a Child) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
in the Interest of E.P.C., a Child, 381 S.W.3d 670, 2012 WL 3733841, 2012 Tex. App. LEXIS 7328 (Tex. Ct. App. 2012).

Opinions

OPINION

ANNE GARDNER, Justice.

On this court’s own motion, we submitted this case en banc to resolve the conflict among opinions of this court as to whether former family code section 263.405(i) prohibits us from reviewing an issue that was properly preserved for appellate review in the trial court in compliance with the rules of civil and appellate procedure. As explained below, we reaffirm that former section 263.405© does not preclude our appellate review of those properly preserved issues.

I. Introduction

Appellant J.B.C. (Father) appeals from the trial court’s judgment terminating his parental rights to his daughter E.P.C. Father contends that the evidence is legally and factually insufficient to support the trial court’s endangerment and best interest findings. Appellant A.L.A. (Mother) [674]*674appeals from the trial court’s judgment appointing the Texas Department of Family and Protective Services (the Department) as E.P.C.’s permanent managing conservator. Mother argues in one issue that the evidence is legally and factually insufficient to support the trial court’s best interest finding. We affirm.

II. Background

Father and Mother were married when E.P.C. was removed from them in October 2009, and the couple remained together at trial in September and October 2010.

Officer Loe Wiggins of the Fort Worth Police Department testified that she was dispatched to an apartment complex at about 5:00 p.m. on October 5, 2009. A maintenance man had found E.P.C., approximately ten and one-half months old, alone in an apartment. The apartment manager had called Father, who had stated that he was picking up Mother and would return shortly. He was delayed, and the apartment manager called him again. The apartment manager also called the police.

When Officer Wiggins arrived at the apartment complex office, Mother was holding E.P.C., who was not crying, and Father had not yet arrived. Mother told Officer Wiggins that she had been out looking for work since 10:30 a.m. and had left E.P.C. with Father. She called Father to come pick her up, but E.P.C. was not with Father when he arrived to pick up Mother. Father said that the baby had finally gotten to sleep after crying all day, and he had not wanted to wake her, so he left her in the apartment alone.

Officer Wiggins testified that she contacted the Department because E.P.C. had been abandoned in the home. Officer Wiggins opined that leaving a child who is not yet one year old alone in an apartment endangered the child’s physical and emotional well-being. She admitted that she saw no visible injuries on the child and that the child appeared healthy, clean, and free of disabilities. Officer Wiggins also acknowledged that she did not visit the couple’s apartment.

Department investigator Callie Reynolds testified that the Department received a call that same day, October 5, 2009, and that the allegation was that E.P.C. had been left alone in the apartment for at least two hours. Father told her that E.P.C. had fallen asleep, but he was not sure when. He did not want to wake her, so he left her sleeping and drove to the Irving Wal-Mart,, where Mother had been grocery shopping. He also looked for some tires at Wal-Mart. Reynolds testified that Father told her that he then received the call about the baby, and he and Mother left Wal-Mart to go home. He dropped Mother off at the apartment complex office while he went to the apartment to unload groceries.

Father told Reynolds that he worked nights but was home during the day with E.P.C. He tested positive for amphetamines but denied any drug use or being on any meds, and the Department did not send his oral swab to a laboratory for further testing. Father told Reynolds that he was estranged from his own mother, and Father and Mother told Reynolds that they had no family members to whom they felt close.

Reynolds also testified about discrepancies in the parents’ stories: (1) Mother had said that she called Father to pick her up at 3:00 p.m., not 4:00 p.m.; (2) Mother had said that they were changing a tire when the manager called, but Father had said that he was looking at tires at Wal-Mart; and (3) Mother had said that she never leaves the child with Father and that “she didn’t have a life” and never left the home, [675]*675but Father claimed that he watched E.P.C. often. Reynolds also testified that the apartment complex employees’ story differed from that of the parents. The maintenance man found E.P..C. at 3:00 p.m. He waited until 3:15 p.m. in the apartment and then took her down to the office, and an apartment manager contacted Father at that time. Police were called at 4:57 p.m. Mother arrived at the apartment office at 5:00 p.m.

Reynolds was concerned primarily because E.P.C. had been left alone but also because Father showed absolutely no remorse. The Department removed E.P.C. from her parents that night. Reynolds stated that Mother was very upset about the removal but that Father appeared to be concerned only about whether he would lose his job.

Reynolds took the baby back to her office, where they stayed for a couple of hours. Reynolds was concerned about the baby’s small size for her age. But E.P.C. did not appear to have been battered; there were no bruises, swelling, or visible breaks. When changing E.P.C.’s diaper, Reynolds noticed that the bones in the baby’s back were visible. Reynolds testified that E.P.C. was developmentally delayed, in that she was not able to roll over or crawl despite being over ten months old. She also could not push up. During that two-hour period, E.P.C. gulped down two eight-ounce bottles of formula “as if she had not eaten in a long period of time.” Reynolds admitted, however, that the baby had been in the apartment office for at least six hours and that she did not know whether E.P.C. had been fed during that time.

Reynolds testified that Mother appeared to be appropriately bonded to, and appeared to show affection for, E.P.C. Reynolds further testified that she did not believe that Mother had any part in the decision to leave E.P.C. alone in the apartment.

Amanda Rogers, a Department investigator, testified that she accompanied E.P.C. to her first medical visit at Cook Children’s Hospital on October 6, the day after the removal. Rogers was concerned that E.P.C. was very small for her age, and Rogers could feel some of E.P.C.’s ribs as she held the baby during the medical assessment. Rogers said the bones were visible when E.P.C. was unclothed. Additionally, Rogers, like Reynolds had the night before, noted that E.P.C. was literally gulping her food, so they “continued to allow her to eat, because she appeared [to be] still hungry.” Rogers was concerned that E.P.C.’s hunger was not “just from her not eating for maybe that morning or the night before” but was “maybe something that had been happening more than once.” Rogers was also concerned that the baby so quickly formed “a kind of bond” with her, a stranger. Rogers testified that the examining nurse practitioner spoke to E.P.C.’s primary care provider, Dr. Goh, who told the nurse practitioner that E.P.C.’s “growth and weight were on the downward trend as far as where she should be for her age” but that they were not off the charts.

Eight days after the removal, Rogers visited Mother and Father’s home. Rogers observed fourteen cans of baby formula but no baby food. The absence of food concerned Rogers because of the child’s age, developmental level, and size.

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Cite This Page — Counsel Stack

Bluebook (online)
381 S.W.3d 670, 2012 WL 3733841, 2012 Tex. App. LEXIS 7328, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-the-interest-of-epc-a-child-texapp-2012.