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In re A.Y.

Court of Appeals of Texas, Tenth District

December 12, 2013

IN THE INTEREST OF A.Y. AND P.J.T., CHILDREN

From the 74th District Court McLennan County, Texas Trial Court No. 2012-1734-3

Before Chief Justice Gray, Justice Davis, and Justice, Scoggins

MEMORANDUM OPINION

REX D. DAVIS Justice

After a jury trial, the trial court entered an order terminating Appellant C.T.'s parental rights to her two children, A.Y. and P.J.T. Raising five issues, Appellant appeals. We will affirm.

The jury found the following predicate violations as grounds for termination of Appellant's parental rights: (1) Appellant knowingly placed or knowingly allowed the children to remain in conditions or surroundings that endangered the children's physical or emotional well-being (Family Code subsection 161.001(1)(D)); (2) Appellant engaged in conduct or knowingly placed the children with persons who engaged in conduct that endangered the children's physical or emotional well-being (Family Code subsection 161.001(1)(E)); and (3) Appellant failed to comply with provisions of a court order specifically establishing actions necessary for the parent to obtain return of the children (Family Code subsection 161.001(1)(O)). The jury also found that termination of Appellant's parental rights was in the children's best interest.

In a proceeding to terminate the parent-child relationship brought under section 161.001, the Department must establish by clear and convincing evidence two elements: (1) one or more acts or omissions enumerated under subsection (1) of section 161.001, termed a predicate violation; and (2) that termination is in the best interest of the child. Tex. Fam. Code Ann. § 161.001(1), (2) (West Supp. 2013); Swate v. Swate, 72 S.W.3d 763, 766 (Tex. App.—Waco 2002, pet. denied). The factfinder must find that both elements are established by clear and convincing evidence, and proof of one element does not relieve the petitioner of the burden of proving the other. Holley v. Adams, 544 S.W.2d 367, 370 (Tex. 1976); Swate, 72 S.W.3d at 766. If multiple predicate violations under section 161.001(1) were found in the trial court, we will affirm based on any one ground because only one predicate violation under section 161.001(1) is necessary to a termination judgment. In re T.N.F., 205 S.W.3d 625, 629 (Tex. App.—Waco 2006, pet. denied), overruled in part on other grounds by In re A.M., 385 S.W.3d 74, 79 (Tex. App.— Waco 2012, pet. denied).

Predicate Violation

In issue one, Appellant contends that there is no or insufficient evidence to support the jury's verdict for each child that she failed to comply with provisions of a court order specifically establishing the actions necessary for the parent to obtain return of the child who has been in the permanent or temporary managing conservatorship of the Department for not less than nine months as a result of the child's removal from the parent under Chapter 262 for the abuse or neglect of the child.[1]

The standards of review for legal and factual sufficiency in termination cases are well established. In re J.F.C., 96 S.W.3d 256, 264-68 (Tex. 2002) (legal sufficiency); In re C.H., 89 S.W.3d 17, 25 (Tex. 2002) (factual sufficiency). In reviewing the legal sufficiency, we view all the evidence in the light most favorable to the finding to determine whether a trier of fact could reasonably have formed a firm belief or conviction about the truth of the Department's allegations. In re J.L., 163 S.W.3d 79, 84-85 (Tex. 2005); J.F.C., 96 S.W.3d at 265-66. We do not, however, disregard undisputed evidence that does not support the finding. J.F.C., 96 S.W.3d at 266. In reviewing the factual sufficiency of the evidence, we must give due consideration to evidence that the fact finder could reasonably have found to be clear and convincing. Id. We must consider the disputed evidence and determine whether a reasonable fact-finder could have resolved that evidence in favor of the finding. Id. If the disputed evidence is so significant that a fact-finder could not reasonably have formed a firm belief or conviction, the evidence is factually insufficient. Id.

Appellant admitted at trial that she did not complete her court-ordered service plan; in her own words, she "gave up." But on appeal, Appellant argues that there is no or insufficient evidence that the children were removed based on abuse or neglect of the children. More specifically, Appellant asserts that there is no clear and convincing evidence that Appellant "actually" abused A.Y. and that there is no evidence at all of any abuse or neglect of P.J.T.

On April 24, 2012, Tanya McFatridge, who was a Department investigator at the time, was assigned to investigate a confidential report that A.Y. had been physically abused by Appellant—that Appellant had hit A.Y. in the nose and caused a nosebleed. As a part of her investigation, McFatridge researched Appellant's history and learned of Appellant's previous involvement with the Department. The first involvement was in October 2010. Between October 2010 and December 2010, the Department received four call referrals involving Appellant. The allegation in the October 2010 call referral was that Appellant had hit A.Y. in the nose and caused a nosebleed. Another call alleged that Appellant had physically abused P.J.T., who had a bruise on his face and a bruise on his back. The other two allegations involved other family members. Three of the reports were ruled as "unable to determine, " and one report against an uncle was "ruled out." McFatridge explained that the three investigations were ruled "unable to determine" because, although the children had visible injuries, they could not provide consistent explanations of what had happened because of P.J.T.'s age and A.Y.'s speech impairment.

Because of those four reports, the Department offered Appellant Family Based Safety Services (FBSS) in February 2011. Appellant received parenting classes, individual counseling, and anger management. Not long after offering these services to Appellant, the Department received yet another referral alleging that Appellant had hit A.Y. in the face and caused injury. The Department offered services to Appellant over an eight-month period, and after she completed her services, the Department closed its case. About six months later, on April 23, 2012, the Department received the referral resulting in the instant case.

On April 27, McFatridge contacted Appellant and asked her to bring A.Y. to her office. Upon arrival, McFatridge noticed that A.Y., who was age eight, had a "fat, " "swollen" lip. McFatridge spoke with A.Y. privately and asked her how she got the swollen lip, and A.Y. first said that she had hit it on the television but then said she did not know how it had happened. Before McFatridge completed her interview with A.Y., Appellant barged into McFatridge's office, "irate" and "screaming and yelling, " telling McFatridge that she had no right to ask A.Y. questions. Appellant took A.Y. and left the office.

To continue her investigation and interview of A.Y., a few days later, McFatridge, with law enforcement, went to A.Y.'s school to speak with A.Y. again. A.Y. told McFatridge that Appellant had hit her in the mouth with a closed fist, causing the swollen lip. A.Y. also said that Appellant had hit her in the nose with an open hand and had caused the nosebleed. McFatridge said that the only time that A.Y.'s story deviated was the first time at the Department's office when Appellant was just outside of McFatridge's office.

Appellant came to the school to pick up A.Y., and when she learned that McFatridge was there talking to A.Y., Appellant became "very irate" and was "screaming and yelling." They all agreed to move the meeting to the Hewitt Police Department, and there they agreed that the children would stay with P.J.T.'s paternal grandmother, Robyn, while the Department continued its investigation, which resulted in a "reason-to-believe" finding. Robyn had been listed first by Appellant as a relative for the children to be temporarily placed with. A few weeks later, Appellant was arrested for injury to a child.

P.J.T., who was age three, initially said that Appellant had hit A.Y. in the nose with an open hand, but he later said that a shampoo bottle had fallen in the bathtub and had hit A.Y. in the nose. Appellant also said that a shampoo bottle had hit A.Y. to cause the nosebleed. Appellant initially denied hitting the children but invoked her privilege against self-incrimination when asked if A.Y. was telling a lie when reporting that Appellant had hit her. Appellant's mother said that she did not see any injury on A.Y. later on the day that Appellant was alleged to have hit A.Y. in the face and caused the nosebleed.

McFatridge concluded that Appellant engaged in conduct that placed the children in danger, that it endangered their physical or emotional well-being, and that the children had been knowingly placed or knowingly allowed to remain in conditions that endangered the children's physical or emotional well-being.

Slade Dickson, the children's therapist, testified that A.Y. told him that her mother had hit her on the face. E.L., Robyn's live-in boyfriend, said that A.Y. ...


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