In the Interest of T.T.F., a Child.

331 S.W.3d 461

In the Interest of T.T.F., A Child.

No. 02–09–00382–CV.

Court of Appeals of Texas, Fort Worth.

Dec. 2, 2010.

Brett W. Hale, Iowa Park, for Appellants.Gerry Williams, TDFPS, Gen. Counsel, Johnnie Beth Page, TDFPS, Director of Program Litigation, Duke Hooten, Appellate Atty., Austin, Versel D. Rush, Wichita Falls, for Appellees.Joe B. Steimel, Wichita Falls, for Ad Litem.PANEL: DAUPHINOT, GARDNER, and WALKER, JJ.

OPINION

ANNE GARDNER, Justice.

I. Introduction

Appellant S.M. appeals the trial court's judgment terminating the parent-child relationship between herself and her son, T.T.F. In four issues, S.M. contends that she was denied due process of law and that the evidence is legally and factually insufficient to support the trial court's judgment. We affirm.

II. Background

Child Protective Services (the Department) removed T.T.F. from S.M. for the second time on March 5, 2008. The Department first removed T.T.F. in March 2007 and returned T.T.F. to S.M. in September 2007; T.T.F. was placed with the same foster parents after each removal.

After a jury trial in September 2009, the jury found that S.M.'s parental rights to T.T.F. should be terminated, and the trial court found that S.M. had engaged in at least one activity described in subsections (D) and (E) of family code section 161.001(1) and that termination was in T.T.F.'s best interest.¹ The following witnesses testified at trial.

Dr. Leslie Hollis

Dr. Hollis is a board-certified pediatrician. She testified that she first saw T.T.F. on March 6, 2008, the day after his removal, and that T.T.F. was thirteen and one-half months old at the time. Dr. Hollis testified that T.T.F. was “acutely ill” but stable at the time. She said that T.T.F. had been diagnosed in February 2008 at the hospital with an ear infection, pneumonia, and RSV, which she described as “a common cold virus that can make kids wheeze.” T.T.F. had been discharged from the hospital on breathing treatments to help open his airways, and Dr. Hollis testified that she could not tell whether T.T.F. had been given the breathing treatments at home. Because T.T.F.'s foster mother reported that he had not gained any weight since he was six months old, Dr. Hollis testified that she put T.T.F. on concentrated formula and asked that he return one week later to be weighed. Dr. Hollis testified that she made a working or “rule out” diagnosis of failure to thrive at the initial visit and that she requested T.T.F.'s past medical records because failure to thrive is a “trend over time” that cannot be diagnosed on a single visit or a single weight.

Dr. Hollis testified that failure to thrive is caused by a child not receiving adequate calories for growth and that there are several reasons it occurs; it can be caused by not receiving an appropriate amount of food or calories, by the body not properly absorbing the calories given, or by a metabolic problem such as a thyroid condition. She explained that failure to thrive is dangerous because the majority of brain growth occurs in the first year of life and that failure to thrive means that the body does not have adequate calories for muscle, bone, and brain growth. She also testified that failure to thrive can cause a child to die.

Dr. Hollis testified that failure to thrive is usually diagnosed for any child whose weight falls below the third percentile, meaning that if “you line up a hundred kids their age[,] ... they [will] weigh more than three of them and ... less than 97 of them.” Dr. Hollis testified that failure to thrive is also commonly diagnosed in children that fall from the fiftieth percentile at six months old to the third percentile at nine months old. Dr. Hollis explained, “When kids cross lines like that, that's very concerning that they're not getting adequate calories for bone and muscle growth or for brain growth.”

Dr. Hollis testified that she determined T.T.F. was “around the third percentile,” even though he had been at the fiftieth percentile at birth and through his first six months.² T.T.F. was thirteen and one-half months old at his initial visit with Dr. Hollis, and fully-clothed, he weighed nineteen pounds. One week after the initial visit, without clothing and while living in foster care, T.T.F. weighed eighteen pounds, four ounces.³ A week later, he weighed nineteen pounds without clothing. Over time, T.T.F. gained weight and reached a point between the tenth and twenty-fifth percentiles in July 2009.

Dr. Hollis testified that not getting enough nutrition is a non-organic cause of failure to thrive. She testified that non-organic failure to thrive is diagnosed by removing the child from the current living situation, providing the child with adequate calories, tracking the number of calories taken in, and monitoring the child's growth. She explained that children will typically grow very rapidly once they are given concentrated calories. Dr. Hollis testified that, in her opinion, T.T.F. had non-organic failure to thrive caused by his environment. Dr. Hollis testified that she could not say if T.T.F.'s failure to thrive was caused by not getting enough food, not getting the appropriate type of food, or not being given sufficient time to eat, but she agreed that all three relate to the nutrition T.T.F. was given by S.M. And after being given the legal definition of endangerment, Dr. Hollis testified that T.T.F.'s failure to thrive meant that he had been endangered. She testified that T.T.F. was in danger of severe bodily injury or death at the time she first saw him in March 2008. She also testified that she considers it medical neglect for a child to lose weight or fail to gain sufficient weight such that the child weighs the same at six months and one year. And from treating T.T.F. and reviewing his records, Dr. Hollis testified that there is not a “normal” reason that T.T.F. would weigh the same at six months and one year.

Dr. Hollis testified that in addition to failure to thrive, T.T.F. had recurrent ear and sinus infections and upper respiratory infections that quickly became ear infections. Those occurred both before and during the first six months that she treated him. She explained that untreated ear infections can cause hearing loss and that children with five to six ear infections within one year are referred for surgery to have tubes placed in the ears. T.T.F. had tubes placed in his ears and has not had any ear infections after the procedure. Dr. Hollis testified that she believes it is medical neglect for a person to allow a child to develop a significant ear infection but not take the child to the doctor.

Dr. Hollis also testified that as of the time of trial, T.T.F. no longer had a failure to thrive diagnosis and was between the tenth and twenty-fifth percentile but that she could not know until much later if he would develop learning disabilities or other deficiencies associated with poor brain growth. Dr. Hollis testified that T.T.F. was “a very healthy little boy” at the time of trial.

S.M.

S.M. testified that she has never been married, that she has six children, and that T.T.F., born January 21, 2007, is the second-youngest. She also testified that T.T.F.'s father voluntarily relinquished his parental rights to T.T.F. S.M. testified that the Department initially took custody of T.T.F. in March 2007 because she made “a stupid decision” and tested positive for cocaine after getting high. Her other four children were already in the Department's custody at the time.⁴

S.M. testified that she has a large file with the Wichita Falls Police Department because she has “called the police on people a lot of times.” She denied involvement in an aggravated robbery for which she was arrested and testified that the aggravated robbery charge was dismissed after investigators conducted DNA testing. However, S.M. admitted stating in a psychological evaluation that she has had problems with family violence and aggravated assault, and S.M. acknowledged that some of the incidents occurred in the presence of her children.⁵ S.M. agreed that children should not be exposed to aggravated assault or family violence, but she said, “[T]hat's my past.”

S.M. testified that in the ten years before trial—she was twenty-nine at the time of trial—she had only supported herself in the previous four months. She testified that she worked at Whataburger in 2006 but “that was only like two days, so that don't even count.” Otherwise, S.M. had not been employed; she lived on the child support payments made by her children's fathers. S.M. testified that she had applied to work at McDonald's, Subway, Sonic, and “everywhere” but that she could not find a job because of the aggravated robbery on her record. However, she also testified that the last time she applied for a job was before November 2008, more than ten months before trial. She said that she had not obtained her G.E.D. because she had no one to watch her youngest child while she pursued a G.E.D. S.M. also testified that Social Security has deemed her unable to work and that she receives disability payments as a result.

S.M. testified that she first became involved with the Department in May 2002 because she fainted after smoking marijuana. She admitted that her oldest child, J.K.P., was a little boy at the time and that he was with her when she fainted. S.M. also testified that in December 2005, she left her four children, J.K.P., J.G.K.P., T.M.J., and D.J.F., with a friend's neighbor while she went to Wal–Mart; the neighbor's first name was Dorothy, but S.M. did not know Dorothy's last name. S.M. testified that while she was gone, D.J.F. stopped breathing, someone called 9–1–1, and D.J.F. was taken to the hospital. S.M. testified that she subsequently learned that Dorothy was mentally ill; S.M. said that she “felt so stupid” for leaving her children with an inappropriate caregiver she did not know.

Beginning in August 2007, S.M.'s children were returned to her,...