In the Interest of M.M.F., No. 2-08-014-CV (Tex. App. 12/18/2008)

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IN THE INTEREST OF M.M.F., J.J.F., AND E.F.

No. 2-08-014-CV.

Court of Appeals of Texas, Second District, Fort Worth.

Delivered: December 18, 2008.

Appeal from the 323rd District Court of Tarrant County.

Panel: HOLMAN, WALKER, and McCOY, JJ.

MEMORANDUM OPINION¹

SUE WALKER, Justice.

I. INTRODUCTION

Appellant Michael F. appeals the trial court's judgment terminating his parental rights to his three children—Matt, John, and Eric.² In ten points, Michael argues that the evidence is factually insufficient to support the trial court's endangering environment and endangering conduct findings, that the evidence is factually insufficient to support the trial court's best interest finding, that the trial court abused its discretion by denying his motion for continuance, that the trial court committed reversible error when it admitted photographs without proper predicate, and that section 263.405 of the Texas Family Code violates the Due Process Clause, the Equal Protection Clause, and the separation of powers doctrine. We will affirm.

II. FACTUAL AND PROCEDURAL BACKGROUND

Melisa and Michael are the biological parents of Matt, John, and Eric. At the time of trial, Matt was four, Molly was three,³ John was two, and Eric was one and a half. Because Melisa did not perfect an appeal from the judgment terminating her parental rights, we limit our discussion of the facts to those that are pertinent to Michael's appeal of the termination of his parental rights.

A. Previous CPS History

On July 9, 2003, CPS received a referral alleging physical neglect and physical abuse of Matt by Melisa because she was bipolar and was not taking her medication. CPS gave the case a disposition of "reason to believe" and instituted a safety plan, which Michael signed, stating that Melisa would have no unsupervised contact with the child.

The next referral came in on December 24, 2003, and involved allegations of physical neglect and medical neglect. Michael and Matt were staying at the Salvation Army, and Michael was not cooperative with the program; he appeared volatile and unstable. Matt had an open lesion on his left ankle; hard, cracked skin over his body; and a distended abdomen. CPS ruled out that case.

On May 23, 2005, a referral came in for physical neglect and neglectful supervision of Matt and John by Melisa. The referral came in after Melisa gave birth to John because there was a concern regarding her ability to properly care for him due to her diagnosis of bipolar disorder and her inclination not to take her medication. CPS ruled out that case but left it open for services to be provided through Catholic Charities.

On February 6, 2006, a referral came in for physical neglect of Matt, Molly, and John by Michael and Melisa. The allegations included a dirty kitchen, dirty clothes throughout the home, and John was yellow and had his hands bound with a piece of rag, possibly to keep him from scratching his skin. All three children were seen at Cook Children's Medical Center. Molly and Matt had no problems. John, however, had a skin condition, and his weight was just below the fifth percentile. All three children were sent home with Michael and Melisa, along with a safety plan. CPS ruled the case reason to believe for medical neglect and ruled out the allegations of physical neglect.

Even though a case was opened in May 2006 for family based safety services, the Department went a number of months without seeing the children because Michael, Melisa, or both would not allow anyone from the Department to see any of the children. Because Michael and Melisa were not cooperative with CPS and would not allow family, friends,⁴ or professionals to enter their home to see their children, the court signed an order providing services for the family on January 30, 2007.

B. The February 1, 2007 Psych Call

Two days later, Shawn Burton, a paramedic with MedStar, received a psych call.⁵ He responded to the call and found Melisa⁶ in the kitchen working on family scrapbooks. He noticed a child, Eric, in a car seat or carrier on the kitchen counter and three children in the living room. When Burton and another paramedic removed the layers of blankets that were on Eric, they saw that he was severely malnourished, that he had almost no musculature, that he was very dehydrated, that his eyes were sunken in, that he was covered in eczema, and that his arms had been wrapped behind his back.

The paramedics questioned Melisa about why Eric's arms were secured behind his back, and she said that it was to keep him from scratching. She also told them that Eric had eaten five times that day, and then she took an almost-empty box of dry cereal out of the refrigerator to make her point. However, they did not find anything that would confirm that Eric had eaten during the day, and Melisa was unable to show them any bottles anywhere in the house. They found no food in the cabinets and little to no food in the refrigerator. Burton checked on the three other children, who were all under the age of four, and noted that they were well fed and were playing in the living room.

They explained to Melisa the seriousness of Eric's condition and that they were going to take him to the hospital. They also notified the police to come interview Melisa. Melisa was not cooperative and did not want them to take Eric. She told them that she did not think it was a good idea and that she wanted her husband to make the decision. So they called Michael and explained that they needed to take Eric to the hospital. He, too, was not cooperative at first and told them that he would take Eric to the doctor the next day. They explained that due to the seriousness of Eric's condition, they "were going to have to take him anyways." Michael finally agreed.

Burton's partner took Eric to the ambulance and began working on him while they waited for the police to arrive and look after the children because Melisa was agitated and not alert to what was going on. The neighbors told him that Melisa does not take her medicine. When he asked Melisa whether she had taken her medicine, she would not answer.

C. Eric's Hospitalization

Dr. Jayme Coffman, who was qualified as an expert on child abuse because she is a pediatrician and medical director of the Care Team (the child abuse program at Cook Children's Medical Center), testified that she came into contact with Eric on February 2, 2007, when she was asked to consult on his case. Eric had been admitted to the pediatric intensive care unit the day before and was severely malnourished.

Dr. Coffman testified that Eric, who was seven and a half months old, weighed 3.8 kilograms or a little over 8 pounds; had no body fat; had a sodium level of 115, which is incompatible with life; and had "severe, severe eczema." Eric was "way off the growth charts, not only on weight, but on length and head size as well" and had been starved long enough for it to affect his length and brain growth. Dr. Coffman testified that this was not an overnight process that caused Eric's body to quit growing and his brain to atrophy. She further testified that Eric did not have a preexisting medical condition that caused this, that his condition was the result of someone not feeding him, and that his condition was obvious enough that it could be observed with the naked eye. Dr. Coffman said that Eric presented with "the worst case of malnourishment that [she had] seen that survived" and determined that his condition was abuse due to severe malnutrition and starvation.

Dr. Coffman said that Eric was in the hospital a couple of weeks because "when they're that malnourished, it's difficult to refeed them. Their gut is not used to the food, and so it's difficult to get them to eat again, basically, and to absorb the nutrition." So they reintroduced food slowly and diluted it so that his intestines could learn to deal with normal nutrition.

Dr. Coffman testified that at the time of trial, Eric was a typical kid who may have some special educational needs. Her main concern for Eric, based on his brain atrophy, is future learning difficulties or developmental delays. She said that he will need lots of developmental assistance through early childhood and Head Start, but even with that, she was not sure that he could reach the potential that he would have had if he had not been starved. He does not require special living circumstances, only someone who will keep up with appointments and be aggressive in following through to make sure that Eric gets his educational needs met.

Dr. Coffman looked at previous emergency room visits during which one of Eric's older siblings—John—was diagnosed as "failure to thrive [malnourished] with eczema" and noted that Eric's medical records stated that Eric's mother and father were his primary caregivers. Dr. Coffman therefore felt that it was appropriate that CPS remove the children. Dr. Coffman said that she would have concerns if Eric was returned to the caregivers who had allowed him to get into the state he was in.

D. The Department's Investigation

Stephanie Nick, formerly an investigator with the Department, testified that on February 1, 2007, the Department received a referral that alleged medical neglect and physical neglect of Eric by both of his parents. She met with law enforcement and went to the residence, where she met Melisa and her three older children. When Nick arrived at the home, she noticed signs of violence, including that the screen on the front porch had been smashed, that the living room had a broken window, and that there were holes in the walls throughout the home, but Melisa would not permit her to take any photographs.

Melisa told Nick that she fed Eric several times a day, that she breastfed him, that he ate Enfamil with iron, and that he also ate baby cereal and jars of baby food. Melisa showed Nick the box of Beachnut baby cereal, a couple of containers of baby food, and an unopened, three-pack of...