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In re J.N.

Court of Appeals of Texas, Tenth District

February 22, 2017

IN THE INTEREST OF J.N., M.N., AND M.N., CHILDREN

         From the 249th District Court Johnson County, Texas Trial Court No. DC-D201500101

         Affirmed

          Before Chief Justice Gray, Justice Davis, and Justice Scoggins

          MEMORANDUM OPINION

          REX D. DAVIS Justice

         The trial court terminated the parental rights of Appellant, the father of J.N., M.N., and M.N., after a bench trial.[1] The trial court found that Appellant had violated Family Code subsections 161.001(b)(1)(D), (E), and (L) and that termination was in the children's best interest. Appellant appeals in ten issues. We will affirm.

         Sufficiency of the Evidence

         In his first eight issues, Appellant contends that the evidence is legally and factually insufficient to support the trial court's findings that he violated Family Code subsections 161.001(b)(1)(D), (E), and (L) and that termination 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 (b)(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(b)(1), (2) (West Supp. 2016); 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. "Clear and convincing evidence" is defined as "that measure or degree of proof which 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." In re G.M., 596 S.W.2d 846, 847 (Tex. 1980).

         Both legal and factual sufficiency reviews in termination cases must take into consideration whether the evidence is such that a factfinder could reasonably form a firm belief or conviction about the truth of the matter on which the petitioner bears the burden of proof. In re J.F.C., 96 S.W.3d 256, 264-68 (Tex. 2002) (discussing legal sufficiency review); In re C.H., 89 S.W.3d 17, 25 (Tex. 2002) (discussing factual sufficiency review).

In a legal sufficiency review, a court should look at all the evidence in the light most favorable to the finding to determine whether a reasonable trier of fact could have formed a firm belief or conviction that its finding was true. To give appropriate deference to the factfinder's conclusions and the role of a court conducting a legal sufficiency review, looking at the evidence in the light most favorable to the judgment means that a reviewing court must assume that the factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could do so. A corollary to this requirement is that a court should disregard all evidence that a reasonable factfinder could have disbelieved or found to have been incredible.

J.F.C., 96 S.W.3d at 266.

         In a factual sufficiency review, a court of appeals must give due consideration to evidence that the factfinder could reasonably have found to be clear and convincing. Id.

[T]he inquiry must be "whether the evidence is such that a factfinder could reasonably form a firm belief or conviction about the truth of the State's allegations." A court of appeals should consider whether disputed evidence is such that a reasonable factfinder could not have resolved that disputed evidence in favor of its finding. 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. (footnotes and citations omitted); see C.H., 89 S.W.2d at 25.

         Evidence Presented at Trial

         CPS investigator James Rost testified that the Department initially received a call involving Appellant on or about January 21, 2015. The concern at that time was that M.N. and M.N., twin boys who were about four months old, were being medically neglected.[2]The twins had been born four weeks prematurely. Around October 2014, they were taken to the emergency room. M.N. had a severe fever and bronchiolitis and needed urgent care. Follow-up care was necessary but was not obtained. The children were not taken to the doctor again until January 21, 2015. At that time, M.N. was so severely ill that the doctor insisted that he be rushed to the emergency room at Cook Children's Hospital in Fort Worth.

         Rost testified that he arrived at Cook Children's Hospital on the morning of February 7, 2015, because there were additional concerns that the children were being abused or neglected. Appellant had called 911 on February 6, 2015, because one of the children was choking. When EMS arrived, M.N. was unresponsive and was rushed to Cook Children's Hospital. It was discovered at that time that both M.N. and N.M. had brain hemorrhaging related to head trauma. N.M. was responsive, but M.N. was completely unresponsive and near death. M.N. was having seizures and had had brain strokes over nearly one hundred percent of his brain. M.N. had to be put in isolation, intubated, and placed in a neck brace. Rost also had to consent to multiple procedures to remove bleeding and fluid off of M.N.'s brain.

         Rost stated that the hospital did full skeletal X-rays of the children and that the children did not have any fractures, including skull fractures, which meant that the injuries were from abusive head trauma. Hospital staff informed Rost that M.N.'s injuries were not the result of a single incident. Although the hospital staff could not age the injuries, they knew that the brain hemorrhaging and strokes had definitely occurred multiple times-"upwards of close to 50 times." Rost stated that the person who caused the injuries would have had to have been someone with frequent regular contact with the children because of the multiple incidents of trauma.

          Rost testified that he spent the initial weekend communicating with the hospital staff about M.N.'s and N.M.'s care and assisting with the placement of K.V.[3] and J.N. into a foster home. Rost had no other involvement with Appellant or the children once the case transitioned out of the investigatory stage. He stated that he did not know M.N.'s current condition but that it was his understanding that M.N. would have a lifetime of permanent injuries and brain damage.

         Rost testified that law enforcement became involved in the case and investigated whether Appellant caused the injuries. K.V., whom Rost believed was five years old at the time, was interviewed and stated that he had seen Appellant shake M.N. violently at one time. Appellant, on the other hand, blamed the injuries on other people that were caregivers of the children for short periods of time. Appellant also blamed some of the incidents on sixteen-month-old J.N. throwing things at the twins. Rost stated that Appellant did not provide an adequate explanation for what had caused the severity of M.N.'s injuries. Rost acknowledged during cross-examination, however, that he had no proof that Appellant actually committed the acts.

         Rost testified that he would have concerns if the children were returned to Appellant. It was his concern, based on M.N.'s and N.M.'s condition in the hospital, that Appellant knowingly placed or allowed the children to remain in conditions or surroundings that endangered their physical or emotional well-being. He also believed, based on K.V.'s statement, that Appellant engaged in conduct or knowingly left the children with persons who engaged in conduct that endangered their physical or emotional well-being.

         Johnson County Sheriff's Office Detective Leona Yocham testified that she had been assigned to M.N.'s case. During her investigation, she discovered that Appellant's wife, the children's mother, worked outside the home and that Appellant was the primary caregiver of the children. Although there were other people that had contact with the children, Appellant was the one alone with M.N. when the older and newer injuries were inflicted. Yocham stated that she was very confident that Appellant inflicted the injuries to M.N. and that he did it intentionally.

         Yocham testified that she presented an injury-to-a-child case against Appellant to the District Attorney's office because she believed that there was enough evidence to prove that Appellant was responsible for M.N.'s injuries. The District Attorney's office proceeded against Appellant for injury to a child. The offense falls under section 22.04 ...


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