In re Interest of E.J.Z.

• Decision Date: 04 April 2018
• Docket Number: No. 06-17-00109-CV,06-17-00109-CV
• Citation: 547 S.W.3d 339
• Parties: IN the INTEREST OF E.J.Z. and G.E.Z., Children
• Court: Texas Court of Appeals

547 S.W.3d 339

IN the INTEREST OF E.J.Z. and G.E.Z., Children

No. 06-17-00109-CV

Court of Appeals of Texas, Texarkana.

Date Submitted: April 2, 2018

Date Decided: April 4, 2018

Micah Belden, Micah Belden, PC, 711 N Travis St., Sherman, TX 75090, Steven R. Miears, Attorney at Law, 206 East College, Ste 200, Grapevine, TX 76051, for appellant.

Mark T. Zuniga, Office of General Counsel, TDFPS, MC: Y–956, 2401 Ridgepoint Drive, Bldg H–2, Austin, TX 78754, for appellee.

Before Morriss, C.J., Moseley and Burgess, JJ.

OPINION

Opinion by Justice MoseleyThe Department of Family and Protective Services (the Department) filed a petition to terminate Mother’s and Father’s parental rights to their children, Emily and Greg.¹ The trial court entered orders terminating Mother’s and Father’s parental rights after a Fannin County jury determined: (1) that they had engaged in conduct or knowingly placed the children with persons who engaged in conduct which endangered their physical or emotional well-being; (2) that they had failed to comply with the provisions of a court order that specifically established the actions necessary for them to obtain the return of the children, who had been in the permanent or temporary managing conservatorship of the Department for not less than nine months as a result of their removal for abuse or neglect; and (3) that termination of their parental rights was in the best interests of the children.² See TEX. FAM. CODE ANN. § 161.001(b)(1)(E), (O), (2) (West Supp. 2017).

In her sole issue on appeal, Mother argues that the evidence is factually insufficient to support the jury’s verdict. Father also argues that the evidence was factually insufficient to support the verdict and that the trial court erred in refusing his request for an instruction that "[f]ailure to complete the service plan can be excused if it was unreasonable for the parent to be required to complete that plan."

We conclude that Mother did not preserve her sole point of error on appeal. We further find that the evidence was sufficient to support a finding (1) that Father engaged in conduct or knowingly placed the children with persons who engaged in conduct which endangered their physical or emotional well-being and (2) that termination of Father’s parental rights was in the best interests of the children.³ Accordingly, we affirm the trial court’s judgment.

I. Mother Did Not Preserve Her Sole Point of Error on Appeal

Mother challenges the factual sufficiency of the evidence supporting the jury’s verdict. The State argues that Mother has waived her sole point of error on appeal because she did not file a motion for new trial. We agree.

The Texas Rules of Civil Procedure require the filing of a motion for new trial as a prerequisite to asserting a complaint on appeal regarding the factual sufficiency of the evidence supporting a jury finding. In re A.L. , 486 S.W.3d 129, 130 (Tex. App.—Texarkana 2016, no pet.) (citing In re O.M.H. , No. 06-12-00013-CV, 2012 WL 2783502, at *2 (Tex. App.—Texarkana July 10, 2012, no pet.) (mem. op.); see TEX. R. CIV. P. 324(b)(2) ; Cecil v. Smith , 804 S.W.2d 509, 512 (Tex. 1991) ). "Where, as here, there is no motion for new trial raising factual sufficiency challenges to the jury’s verdict, ‘[f]actual sufficiency is not preserved for appeal.’ " Id. (quoting O.M.H. , 2012 WL 2783502, at *2 ) (footnote omitted) (citing In re M.S. , 115 S.W.3d 534, 547 (Tex. 2003) ); see In re L.G.D. , No. 06-17-00061-CV, 2017 WL 4507673, at *1 (Tex. App.—Texarkana Oct. 10, 2017, pet. denied) (mem. op.).

Because Mother has not preserved a factual sufficiency challenge to the jury’s verdict, we overrule her sole point of error on appeal.

II. Factually Sufficient Evidence Supports the Jury’s Verdict Terminating Father’s Parental Rights

A. Standard of Review

"The natural right existing between parents and their children is of constitutional dimensions." Holick v. Smith , 685 S.W.2d 18, 20 (Tex. 1985). Indeed, parents have a fundamental right to make decisions concerning "the care, custody, and control of their children." Troxel v. Granville , 530 U.S. 57, 65, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000). "Because the termination of parental rights implicates fundamental interests, a higher standard of proof—clear and convincing evidence—is required at trial." In re A.B. , 437 S.W.3d 498, 502 (Tex. 2014). This Court is therefore required to "engage in an exacting review of the entire record to determine if the evidence is ... sufficient to support the termination of parental rights." Id. at 500. "[I]nvoluntary termination statutes are strictly construed in favor of the parent." In re S.K.A. , 236 S.W.3d 875, 900 (Tex. App.—Texarkana 2007, pet. denied) (quoting Holick , 685 S.W.2d at 20 ).

In order to terminate parental rights, the trial court must find, by clear and convincing evidence, that the parent has engaged in at least one statutory ground for termination and that termination is in the child’s best interest. TEX. FAM. CODE ANN. § 161.001 (West Supp. 2017); In re E.N.C. , 384 S.W.3d 796, 798 (Tex. 2012). " ‘Clear and convincing evidence’ is that ‘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) ; see In re J.O.A. , 283 S.W.3d 336, 344 (Tex. 2009). This standard of proof necessarily affects our review of the evidence.

In our review of factual sufficiency, we give due consideration to evidence that the jury could have reasonably found to be clear and convincing. In re H.R.M. , 209 S.W.3d 105, 109 (Tex. 2006) (per curiam). We consider only the evidence that the fact-finder reasonably could have found to be clear and convincing and determine "whether the evidence is such that a fact[-]finder could reasonably form a firm belief or conviction about the truth of the ... allegations." Id. (quoting In re C.H. , 89 S.W.3d 17, 25 (Tex. 2002) ); In re J.F.C. , 96 S.W.3d 256, 264, 266 (Tex. 2002). "If, in light of the entire record, the disputed evidence that a reasonable fact[-]finder could not have credited in favor of the finding is so significant that a fact[-]finder could not reasonably have formed a firm belief or conviction, then the evidence is factually insufficient." J.F.C. , 96 S.W.3d at 266. "[I]n making this determination," we must undertake "an exacting review of the entire record with a healthy regard for the constitutional interests at stake." A.B. , 437 S.W.3d at 503 (quoting C.H. , 89 S.W.3d at 26 ).

Despite the profound constitutional interests at stake in a proceeding to terminate parental rights, "the rights of natural parents are not absolute; protection of the child is paramount." In re A.V. , 113 S.W.3d 355, 361 (Tex. 2003) (quoting In re J.W.T. , 872 S.W.2d 189, 195 (Tex. 1994) ); see In re M.S. , 115 S.W.3d 534, 547 (Tex. 2003). "A child’s emotional and physical interests must not be sacrificed merely to preserve parental rights." In re C.A.J. , 459 S.W.3d 175, 179 (Tex. App.—Texarkana 2015, no pet.) (citing C.H. , 89 S.W.3d at 26 ).

B. The Evidence at Trial

The heart of this case concerns extensive injuries sustained by Greg on April 10, 2016, when he was approximately ten weeks old. At trial, the main issue was whether Greg sustained these injuries as a result of abuse or a medical condition. Consequently, we review Greg’s medical history in detail.

Mother was diabetic during her pregnancy with Greg, who was born by scheduled cesarean section

January 20, 2016, weighing eleven pounds and seven ounces. Greg experienced respiratory complications at birth, required additional days in the hospital, was diagnosed with jaundice, and was discharged January 24, 2016, weighing ten pounds. Timothy Brumitt, Greg’s pediatrician who had also treated Mother as a child, saw Greg at a follow-up visit on January 27 and testified that his weight loss was within normal limits considering that Greg’s birth weight was in the ninety-seventh percentile and that Mother had consistently reported that Greg was not eating properly and was often throwing up.

Testimony at trial established that Greg was sick, cried often, and sometimes experienced discoloration. Mother testified that Greg began choking on January 31 and that she "held him over the couch on the palm of [her] hand and started to pat his back." Mother and Father both testified that they were able to clear Greg’s airway, but on February 1, 2016, Greg presented to the Texoma Medical Center Emergency Room where Mother and Father reported that he was coughing, turning purple while crying, and congested. Greg’s chest x-rays

appeared to be normal, and he was discharged. However, on February 3, 2016, Greg returned to the emergency room after Mother and Father reported that he was choking. Greg was diagnosed with colic, and, after a February 5 follow-up appointment, was also diagnosed with sinusitis and an upper respiratory infection. Photographs taken of Greg on February 7, 2016, depicted discoloration under his eyes and on his face. Although Greg weighed less than he did at birth at another February 10 appointment, Brumitt testified that he was unconcerned by Greg’s weight in light of his complications.

Brumitt discovered that Greg had a heart murmur. On February 15, 2016, Greg went to Pediatrix Cardiology, where doctors discovered two small holes in his heart, which were predicted to close on their own, and, according to Mother, a hole in his lung. Greg’s March 21 appointment was routine, and Brumitt testified that he was still unconcerned by Greg’s weight. Brumitt explained that Greg was stripped down at every checkup and that he never saw any bruising on the child. Mother testified that Greg was also thoroughly examined at a Women, Infants, and Children (WIC) appointment on April 4.

On April 10, 2016, Mother and Father took Emily and Greg to a family gathering. Family members testified that they did not see any unexplained bruises or injuries on...