In re S.C.

1

IN THE INTEREST OF S.C. and M.E.B., Children

No. 04-22-00125-CV

Court of Appeals of Texas, Fourth District, San Antonio

August 17, 2022

From the 150th Judicial District Court, Bexar County, Texas Trial Court No. 2019PA01853 Honorable Rosie Alvarado, Judge Presiding

Sitting: Patricia O. Alvarez, Justice, Beth Watkins, Justice Lori I. Valenzuela, Justice

MEMORANDUM OPINION

Patricia O. Alvarez, Justice

In this parental rights termination case, the trial court terminated (1) Mom's rights to her children S.C. and M.E.B. and (2) Dad's rights to his child M.E.B.^[1]

In separate briefs, Mom and Dad challenge the legal and factual sufficiency of the evidence for the trial court's findings on the single statutory ground and the best interests of the children.

Having reviewed the evidence under the elevated burden of proof and sufficiency standards, we conclude it was legally and factually sufficient to support the trial court's findings.

We affirm the trial court's order.

Background

S.C and M.E.B., who are siblings, are the children who are the subject of this appeal.

A. M.E.B.'s History

M.E.B. was born on June 14, 2019. At his two-month well-child checkup in mid-August, which comprised an in-depth examination "from head to toe," the examining nurse practitioner did not find any issues or concerns with M.E.B.'s health. Some days later, Mom brought M.E.B. back to the pediatrician because M.E.B. was spitting up his food and vomiting a green substance, which the nurse practitioner diagnosed as caused by nasal congestion or excess phlegm.

B. M.E.B.'s Hospitalization

On the morning of September 10, 2019, M.E.B. again spit up a green substance, he cried loudly when his stomach was touched, and nothing Mom and Dad did could console him. Mom and Dad were worried, and they took M.E.B. to the emergency room.

C. Initial Examination, Emergency Surgery

At The Children's Hospital of San Antonio, the triage nurse was very concerned about M.E.B.'s distended abdomen and possible bruises on his abdomen. The emergency room physician confirmed the abdominal distention, she "noted some dark marks that appeared to be bruising on his abdomen," and she ordered some laboratory tests and x-ray images. The x-rays revealed that M.E.B. had free air in his abdomen, and he underwent emergency surgery. The pediatric surgeon determined that M.E.B. had two perforations of his jejunum, which he repaired.

D. Other Examinations

M.E.B.'s other examinations also revealed bruising on his abdomen in the same area as the perforations, bruises on his right foot and right thigh, and multiple bone fractures with different ages of healing. Mom and Dad explained that they did not know what had happened to M.E.B. to cause his injuries.

E. Medical Inquiry

The hospital's emergency department contacted the Center for Miracles regarding their concerns about M.E.B.'s injuries. Based on his injuries and the surrounding circumstances, the hospital contacted the Department, and Department personnel and law enforcement officers interviewed Mom and Dad. The parents told the police, Department case workers, and medical staff that they did not know that what happened and could not explain how M.E.B. was injured.

F. Referral to Department

The Department petitioned to remove the three children living in the home: M.E.B., S.C., and another child, and the children were removed. The Department created service plans for both parents, which they worked.

G. Bench Trial

In the seven-day bench trial, the Department presented expert witnesses who testified with reasonable medical certainty that M.E.B.'s injuries were caused by physical abuse. The parents' primary expert witness testified that M.E.B. suffered from a metabolic bone disease that made his bones especially susceptible to fractures.

After the parties rested and closed, the trial court found that the parents engaged in conduct or knowingly placed M.E.B. with a person who endangered the child and that terminating Mom's and Dad's parental rights to M.E.B. (their child) and Mom's parental rights to S.C. (her child) was in the children's best interests.

H. Parents' Appeals

Mom and Dad filed separate notices of appeal. Both parents challenge the legal and factual sufficiency of the evidence supporting the statutory ground and best-interests-of-the-children findings.

Before we address the sufficiency issues, we briefly recite the applicable evidentiary and appellate review standards.

Elevated Evidentiary Standard

When the Department petitions to terminate a parent's rights to a child, the Department must prove by clear and convincing evidence that (1) the parent's acts or omissions met one or more of the grounds for involuntary termination listed in section 161.001(b)(1) of the Family Code and (2) terminating the parent's rights is in the best interest of the child. Tex. Fam. Code Ann. § 161.001(b); In re J.F.C., 96 S.W.3d 256, 261 (Tex. 2002).

The same evidence used to prove the parent's acts or omissions under section 161.001(b)(1) may be used in determining the best interest of the child under section 161.001(b)(2). In re C.H., 89 S.W.3d 17, 28 (Tex. 2002); In re D.M., 452 S.W.3d 462, 471 (Tex. App.-San Antonio 2014, no pet.); see also Tex. Fam. Code Ann. § 161.001(b).

"Evidence that a person has engaged in abusive and violent conduct in the past permits an inference that the person will continue to engage in violent behavior in the future." In re M.D.M., 579 S.W.3d 744, 765 (Tex. App.-Houston [1st Dist.] 2019, no pet.); accord In re D.M., 452 S.W.3d at 471.

Standards of Review

"[I]n a bench trial, the judge as the trier of fact weighs the evidence, assesses the credibility of witnesses and resolves conflicts and inconsistencies." In re S.J.R.-Z., 537 S.W.3d 677, 691 (Tex. App.-San Antonio 2017, pet. denied) (quoting In re D.D.D.K., No. 07-09-0101-CV, 2009 WL 4348760, at *6 (Tex. App.-Amarillo Dec. 1, 2009, no pet.) (mem. op.)); see In re J.O.A., 283 S.W.3d 336, 346 (Tex. 2009).

As the factfinder, the trial court "may choose to believe one witness and disbelieve another." City of Keller v. Wilson, 168 S.W.3d 802, 819 (Tex. 2005); accord Catholic Diocese of El Paso v. Porter, 622 S.W.3d 824, 834 (Tex. 2021).

On review, an appellate court must not "substitute its own judgment for that of a reasonable factfinder." In re Commitment of Stoddard, 619 S.W.3d 665, 668 (Tex. 2020); accord In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006) (per curiam); City of Keller, 168 S.W.3d at 819. The appellate court must give appropriate deference to the trial court's findings and credibility determinations. In re H.R.M., 209 S.W.3d at 108; In re M.I.A., 594 S.W.3d 595, 604, 607 (Tex. App.-San Antonio 2019, no pet.).

A. Legal Sufficiency

When a clear and convincing evidence standard applies, a legal sufficiency review requires a court to "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." In re J.L., 163 S.W.3d 79, 85 (Tex. 2005) (quoting In re J.F.C., 96 S.W.3d at 266). If the court "determines that [a] reasonable factfinder could form a firm belief or conviction that the matter that must be proven is true," the evidence is legally sufficient. See id.; see also In re A.B., 437 S.W.3d 498, 506 (Tex. 2014).

B. Factual Sufficiency

For a factual sufficiency review under a clear and convincing evidence standard, we must consider "whether disputed evidence is such that a reasonable factfinder could not have resolved that disputed evidence in favor of its finding." In re J.F.C., 96 S.W.3d at 266; accord In re H.R.M., 209 S.W.3d at 108. If, when reviewing all the evidence in a neutral light, "a factfinder could reasonably form a firm belief or conviction about the truth of the State's allegations," the evidence is factually sufficient. In re C.H., 89 S.W.3d at 25; accord In re A.B., 437 S.W.3d at 506.

Evidence of Endangering a Child

The trial court found Mom and Dad engaged in conduct or knowingly placed the children with persons who engaged in conduct which endangered the children. See Tex. Fam. Code Ann. § 161.001(b)(1)(E).

In their first issues, Mom and Dad each argue that there was no evidence to support the trial court's statutory ground findings. Specifically, they contend that there is no evidence that either of them abused M.E.B. or allowed him to be injured by anyone else. They contend that the marks on M.E.B.'s abdomen were not bruises, his fractures were due to rickets or a genetic disorder, and his bowel perforations could have been caused by a disease or condition other than blunt force trauma.

The Department counters that neither Mom nor Dad could explain how M.E.B. was injured, and its child abuse pediatrician, pediatric radiologist, and board-certified pediatrician, each testified that M.E.B.'s injuries were caused by non-accidental blunt force trauma. Its pediatric surgeon testified that M.E.B.'s abdominal injuries were caused by external blunt force trauma, and its board-certified pediatric emergency medicine physician testified that M.E.B.'s injuries were highly suspicious of non-accidental trauma.

Before we examine the evidence, we recite the single ground on which the trial court terminated Mom's and Dad's respective parental rights.

C. Statutory Ground Finding

A parent's rights to their child may be terminated "if the court finds by clear and convincing evidence . . . that the parent has . . . engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangers the physical or emotional well-being of the child." Tex Fam. Code Ann. § 161.001(b)(1)(E). "Termination under subsection E must be based on...