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In re A.F.G.

Court of Appeals of Texas, Fourteenth District

November 16, 2017

IN THE INTEREST OF A.F.G., B.N.G., A.M.G., AND J.L.G. JR., CHILDREN IN THE INTEREST OF S.N.T.S, A CHILD

         On Appeal from the 247th District Court Harris County, Texas Trial Court Cause Nos. 2013-57363, 2015-70032

          Christopher, Donovan, and Jewell. Justices

          MEMORANDUM OPINION

          John Donovan Justice

         Appellant, V.I.S. (Mother), appeals two trial court final decrees terminating her parental rights.[1] One final decree terminates Mother's parental rights to A.F.G. (Ana), B.N.G. (Bonnie), A.M.G. (Andrea), and J.L.G., Jr. (Julian). The other terminates Mother's parental rights to S.N.T.S. (Sara).[2] Both appoint the Department of Family and Protective Services as sole managing conservator of the children. Mother challenges the sufficiency of the evidence to support the trial court's findings terminating her parental rights and appointing the Department managing conservator. We affirm.

         BACKGROUND[3]

         The Department received a referral on November 18, 2015 related to Mother and Bonnie. Bonnie, who was seven-years-old at the time, presented to school with a dark red bruise on her left eye and cheek and two small bruises to the left upper eye with shattered red dots under the left eye. Bonnie stated her "dad, " J.G.T.[4](Jacob), hit her because she fell asleep doing homework and Mother told her to say she hit her head on the door.

         A Department investigator met with Bonnie and Ana, who was also seven-years-old, at school. After meeting with the two girls at school, the investigator went to the home to meet with the rest of the family. Sara, who was one-year-old, was observed crawling around the room. Sara appeared healthy and had no visible marks or bruises.

         Andrea, who was four-years-old, did not respond to questions asked by the investigator. The investigator noticed Andrea limping and dragging her right leg. When asked about Andrea's limp, Mother stated she was going to get her looked at by a doctor.

         Julian, who was two-years-old, was in a playpen. The investigator noticed vomit coming out of Julian's mouth. Julian did not move or respond when the investigator spoke to him. The investigator asked Mother to pick Julian up. Mother picked Julian up and removed some of his clothing. The investigator noticed that Julian was severely underweight and had a rash on his abdomen. Mother indicated the rash was the result of a new body wash.

         While in the home, the investigator observed that Andrea and Julian were overdressed for the climate of the home. When clothing was removed, both children were observed to be very thin. Mother's father (Grandfather) arrived at the home while the investigator was present. Grandfather stated he had no concerns about the children, except their weight being low. The investigator requested the children be taken to the hospital.

         The children were originally taken to Northwest Medical Center. They were then transported to Texas Children's Hospital. Ana and Bonnie were well-appearing and discharged into the Department's care the same day. Andrea and Julian were admitted to Texas Children's Hospital on November 20 and diagnosed with severe malnutrition.

         On November 23, the Department was named temporary managing conservator of Ana, Bonnie, Andrea, Julian, and Sara due to immediate danger from physical and medical neglect. That same day, the Department filed two petitions for termination in suits affecting the parent-child relationship. The Department sought termination of Mother's parental rights to Ana, Bonnie, Andrea, and Julian in one[5]and sought termination of Mother's parental rights as to Sara in another.[6] The Martins, the current caregivers of Ana, Bonnie, and Sara, intervened in both lawsuits. The Lees, the current caregivers of Andrea and Julian, intervened in the first lawsuit.

         During a jury trial, a Department investigator testified about her investigation at Texas Children's Hospital on November 20. When speaking to the investigator at the hospital, Mother did not think anything was wrong with Andrea and Julian. Mother stated she fed the children daily and gave Andrea and Julian PediaSure. She stated she was a good mother and her children are normal. A Harris County Sheriff's Officer testified that Mother made similar statements to him about the children being regularly fed and her being a good mother. The Officer testified that criminal charges had been accepted against Mother for injury to a child by omission as to Andrea and Julian.

         The doctor who led the child abuse team also testified at trial. The doctor testified Andrea and Julian were profoundly emaciated children who were unable to sit up in a bed with their own muscle control. Andrea had to be held up in a sitting position. Further, Julian maintained a position of permanent contracture and had a hard time straightening out his arms and legs. For Julian to sit up, his head and neck had to be held. Julian's hair was also shedding. Julian weighed 16.7 pounds when admitted on November 20, while prior medical records show he had weighed 17.6 pounds the year before. Both Andrea's and Julian's skin was in bad shape indicating a micronutrient deficiency.

         Andrea and Julian had bruises and broken bones which the doctor discussed. Andrea had bruising to her jaw and ear and a broken forearm and hand. The doctor suspected the broken hand was a defensive wound. Julian had bruising to his eyelid and ear and a healing rib fracture. Julian's contracted position suggested he had been in a confined space for prolonged periods of time. Additionally, Julian had a decubitus ulcer (bed sore) on his lower back. Neither child had subcutaneous fat stores.

         The doctor stated Andrea and Julian were victims of maltreatment; they were physically abused and starved. She testified that no underlying medical conditions were found which might explain their appearance. Further, she stated Mother's history of this happening over a few months is unbelievable.

         As a result of Mother's pending criminal charges, Mother often invoked her right against self-incrimination during the jury trial and did not testify during the bench trial. Accordingly, Mother's testimony does not explain how Andrea's and Julian's malnutrition developed.

         The Department called witnesses to testify regarding the children's current placements and well-being. Ana, Bonnie, and Sara had been placed with the Martins where they had been living over a year. Both Ana and Bonnie participated in psychosocial and forensic interviews and therapy related to emotional and physical abuse. Ana and Bonnie were stated to be good students.

         Andrea and Julian were placed with the Lees where they have been living over a year. Andrea has had therapy related to her medical issues, a psychosocial evaluation, and therapy related to emotional and physical abuse. Julian has participated in physical, speech, and occupational therapy related to his medical issues.

         The Department caseworker and Child Advocate testified the children were flourishing in their current placements. The caseworker stated the placements were meeting all of the children's physical and emotional needs.

         The caseworker and Child Advocate also testified regarding potential relative placements for the children. Mother had submitted her mother (Grandmother) and Grandfather as potential relative placements. The Department determined neither was a viable option because both observed Andrea and Julian in their emaciated state without taking action. The Department did conduct a home study as to Grandfather and the court denied placement with Grandfather. Additionally, Grandmother reported to the Department that she did not think anything was wrong with Andrea and Julian.

         The Martins and Lees testified about how well the children were doing in their respective homes. The Martins and Lees planned to adopt the children currently placed with them. Both families also testified about efforts to keep the siblings involved with each other's lives. Specifically, the families testified about visiting weekly, on holidays, and going on vacation together.

         After a jury trial, Mother's parental rights to Ana, Bonnie, Andrea, and Julian were terminated under Family Code sections 161.001(b)(1)(D) and (E).[7] The trial court also found termination of Mother's parental rights was in the best interest of the children. The Department was appointed sole managing conservator of the children.

         Subsequently a bench trial was held regarding Mother's parental rights to Sara. At the conclusion of the bench trial, Mother's parental rights to Sara were terminated under Family Code sections 161.001(b)(1)(D), (E), and (M). The trial court also found termination of Mother's parental rights was in the best interest of the child. The Department was appointed sole managing conservator of Sara.

         ANALYSIS

         Parental rights can be terminated upon proof by clear and convincing evidence that (1) the parent has committed an act prohibited by section 161.001(b)(1) of the Family Code; and (2) termination is in the best interest of the child. Tex. Fam. Code Ann. § 161.001(b)(1), (2) (West Supp. 2016); In re J.O.A., 283 S.W.3d 336, 344 (Tex. 2009).

         A. Standard of Review

         Involuntary termination of parental rights is a serious matter implicating fundamental constitutional rights. Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985); In re D.R.A., 374 S.W.3d 528, 531 (Tex. App.-Houston [14th Dist.] 2012, no pet.). Although parental rights are of constitutional magnitude, they are not absolute. In re C.H., 89 S.W.3d 17, 26 (Tex. 2002) ("Just as it is imperative for courts to recognize the constitutional underpinnings of the parent-child relationship, it is also essential that emotional and physical interests of the child not be sacrificed merely to preserve that right.").

         Due to the severity and permanency of the termination of parental rights, the burden of proof is heightened to the clear and convincing evidence standard. SeeTex. Fam. Code Ann. § 161.001; In re J.F.C., 96 S.W.3d 256, 265-66 (Tex. 2002). "Clear and convincing evidence" means "the measure or degree of proof that 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." Tex. Fam. Code Ann. § 101.007 (West 2014); In re J.F.C., 96 S.W.3d at 264. This heightened burden of ...


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