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In re A.G.

Court of Appeals of Texas, Eleventh District

December 20, 2013

IN THE INTEREST OF A.G., J.G., M.F., AND B.F., CHILDREN

On Appeal from the 50th District Court Knox County, Texas Trial Court Cause No. 9465

Panel consists of: Wright, C.J., Willson, J., and Bailey, J.

MEMORANDUM OPINION

MIKE WILLSON JUSTICE

This is an appeal from an order terminating the parental rights of the mother and father of M . F. and B.F., whom we refer to in this opinion as "the children."[1]Both parents appeal. In three points of error, the parents challenge the legal and factual sufficiency of the evidence to support termination. We affirm.

I. Termination Standards

The termination of parental rights must be supported by clear and convincing evidence. Tex. Fam. Code Ann. § 161.001 (W e s t Supp. 2013) . To determine if the evidence is legally sufficient in a parental termination case, we review all of the evidence in the light most favorable to the finding and determine whether a rational trier of fact could have formed a firm belief or conviction that its finding was true. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005). To determine if the evidence is factually sufficient, we give due deference to the finding and determine whether, on the entire record, a factfinder could reasonably form a firm belief or conviction about the truth of the allegations against the parent. In re C.H., 89 S.W.3d 17, 25–26 (Tex. 2002). To terminate parental rights, it must be shown by clear and convincing evidence that the parent has committed one of the acts listed in Section 161.001(1)(A)–(T) and that termination is in the best interest of the child. Fam. § 161.001.

With respect to the best interest of a child, no unique set of factors need be proved. In re C.J.O., 325 S.W.3d 261, 266 (Tex. App.—Eastland 2010, pet. denied). But courts may use the non-exhaustive Holley factors to shape their analysis. Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976). These include, but are not limited to, (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 parental abilities of the individuals seeking custody, (5) the programs available to assist these individuals to promote the best interest of the child, (6) the plans for the child by these individuals or by the agency seeking custody, (7) the stability of the home or proposed placement, (8) the acts or omissions of the parent that may indicate that the existing parent-child relationship is not a proper one, and (9) any excuse for the acts or omissions of the parent. Id. Additionally, evidence that proves one or more statutory grounds for termination may also constitute evidence illustrating that termination is in the child's best interest. C.J.O., 325 S.W.3d at 266.

II. Findings as to M.F. and B.F.

In this case, the trial court found that the parents had committed two of the acts listed in Section 161.001(1)—those found in subsections (D) and (E). Specifically, the trial court found that the parents had placed or allowed the children to remain in conditions or surroundings that endangered the children's physical or emotional well-being and that they had engaged in conduct or knowingly placed the children with persons who engaged in conduct that endangered the physical or emotional well-being of the children. The trial court also found, pursuant to Section 161.001(2), that termination of the mother's and the father's parental rights would be in the best interest of M . F. a n d B . F.

III. Evidence at Trial

The record shows that the Department of Family and Protective Services removed nine-month-old B.F. and eight-year-old M.F. from their parents' care after B.F. was hospitalized and diagnosed with "nonaccidental trauma" from being shaken. B.F. was originally taken to the hospital in Knox City, then transferred to a hospital in Abilene, and ultimately transferred to Cook Children's Medical Center in Fort Worth where he remained for one week. Appropriate medical treatment for B.F. was delayed because the parents did not inform medical personnel what had happened to B.F. Not only did the parents fail to assist the hospitals by informing medical personnel what had happened to B.F., the parents allowed a spinal tap to be performed on B.F. to test for meningitis. Medical experts at Cook Children's Medical Center determined that B.F. had been shaken and that his injuries were not consistent with a fall.

During the investigation into B.F.'s injuries, the parents, at times, claimed that B.F. had hit his head when the father accidentally dropped him. At other times, the parents suggested that a babysitter was to blame for B.F.'s injuries; however, the record shows that the parents were the only adults around B.F. near the time—as determined by medical personnel—that the injury occurred. The father also indicated that he did not know what happened to B.F. The father, at one time, indicated that he knew that someone in his house injured B.F., but he said that he did not do it and stated, "I guess that would leave [the mother]." The father changed his story numerous times and was so "overwhelming[ly] deceptive" that the polygraph examiner refused to continue with the exam. The mother was also "deceptive" and failed a polygraph.

At the hearing, the father invoked his Fifth Amendment privilege and refused to answer numerous questions that involved the circumstances surrounding B.F.'s injuries and hospitalization. The father's attorney informed the trial court that the father "has been under investigation continuously since last year by the Te x as Rangers in regards to the injuries to [B.F.]."

The mother testified that, on the night B . F. was hospitalized, B.F. "woke up screaming" and then "started to projectile vomit." The parents took B.F. to the emergency room. The mother claimed that she heard a crash coming from the kitchen and that B.F. had hit his head while he was in the kitchen with the father. The mother also said that she and the father "did not tell any of the hospitals that [B.F.] had hit his head" because they "were afraid of CPS coming in like they had before and ...


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