IN THE INTEREST OF J.N., M.N., AND M.N., CHILDREN
the 249th District Court Johnson County, Texas Trial Court
Chief Justice Gray, Justice Davis, and Justice Scoggins
trial court terminated the parental rights of Appellant, the
father of J.N., M.N., and M.N., after a bench
trial. 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.
of the Evidence
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.
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
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.
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.
[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.
Presented at Trial
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.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.
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.
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.
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. 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.
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.
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
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.
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