In re Interest of J.J.G.
| Decision Date | 15 August 2017 |
| Docket Number | NO. 01-16-00104-CV,01-16-00104-CV |
| Parties | IN the INTEREST OF J.J.G., L.K.G., H.A.G., and A.G.G., Children |
| Court | Texas Court of Appeals |
William Michael Thursland, Lyric Centre, 440 Louisiana, Ste. 1225, Houston, TX 77002, for Appellant/Mother, M.C.
Donald M. Crane, 810 South Mason Road, Suite 350, Katy, TX 77450, for Appellant/Father.
Vince Ryan, County Attorney, Sandra D. Hachem, Sr. Assistant County Attorney, 1019 Congress, 17th Floor, Houston, TX 77002, for Appellee.
Panel consisted of Chief Justice Radack and Justices Jennings and Lloyd.
En banc reconsideration was requested. Tex. R. App. P. 49.7.
The en banc court consists of Chief Justice Radack and Justices Jennings, Keyes, Higley, Bland, Massengale, Brown, and Lloyd.
A majority of the justices of this Court voted in favor of reconsidering the case en banc.
In this accelerated appeal, appellants, M.G. ("Mother") and J.R.G. ("Father"), challenge the trial court's final decree, entered after a bench trial to a master, awarding the Department of Family and Protective Services ("DFPS") permanent managing conservatorship of their four children, J.J.G., L.K.G., H.A.G., and A.G.G. A panel of this Court reversed the trial court's decree and DFPS filed a motion for en banc reconsideration. We now grant DFPS's motion for en banc reconsideration, withdraw our opinion of August 4, 2016, vacate our judgment of the same date, and issue this en banc opinion and judgment in their stead. See TEX. R. APP. P. 49.7.
In challenging the trial court's decree naming DFPS as the children's managing conservator, Mother contends on appeal that the trial court erred: (1) by failing to appoint her as the children's managing conservator, or alternatively, as their possessory conservator; and (2) by failing to approve the master's recommended judgment without hearing more evidence and applying Government Code section 54.817 in such a way that it denied her due process protections. Father contends on appeal that the evidence was legally and factually insufficient to support the trial court's determinations that (1) appointing him as the children's joint managing conservator would significantly impair the children's physical health or emotional development; and (2) the best interest of the children was served by appointing DFPS as the children's managing conservator.
Because we conclude that the evidence was sufficient to support the trial court's determination that naming either parent as managing conservator would significantly impair the children's physical health or emotional development and that naming DFPS as their managing conservator was in the children's best interest, we overrule Mother's first issue and Father's issues on appeal. We further conclude that Mother failed to preserve any complaint regarding the trial court's application of the rules governing the use of a master in cases such as this case, and, accordingly, we overrule Mother's second issue on appeal.
We affirm the final decree of the trial court.
This case was filed by DFPS on February 5, 2014, after the youngest child, A.G.G., sustained life-threatening injuries attributable to abuse. DFPS removed all of the children from Mother's home. At that time, J.J.G. was three years old, L.K.G. was two years old, H.A.G. was less than two years old, and A.G.G., the injured child, was seven months old. DFPS created family service plans for both Mother and Father, and both parents participated in the services ordered as part of the family service plans and had visitation with the children.
DFPS believed that both Mother and Father failed to make adequate progress to justify reunifying them with their children. Accordingly, on December 1, 2014, DFPS amended its petition to seek managing conservatorship of the children and termination of Mother's and Father's parental rights. The case was tried before a master on July 10 through 13, 2015.
At the bench trial, DFPS presented evidence regarding the circumstances under which the children came to be in DFPS's care. DFPS received a referral that A.G.G., who was seven months old at the time, had been physically abused by an "unknown perpetrator." A.G.G. had been under the care of several different caregivers, including Mother, at the time he sustained his injuries. Mother could not provide an explanation for A.G.G.'s injuries, which included brain bleeding
, broken bones, and bruising. DFPS concluded that A.G.G.'s injuries constituted a "non-accidental trauma" and were "consistent with abuse and/or neglect."
Dr. Reena Isaac, a physician on the child protection medical team at Texas Children's Hospital, testified that she examined A.G.G. after Mother brought him to the hospital on January 23, 2014. Dr. Isaac diagnosed him as "a victim of abusive head trauma
," noting that he had several skeletal injuries, two subdural hematomas, a cerebral contusion on the left side of his head, significant retinal hemorrhages in both of his eyes, and scratches on his back. A.G.G. also had a recent subdural hematoma around the back of his head and a more remote one on the frontal area of his head, indicating that he had suffered head trauma on more than one occasion. The recent subdural hematoma had likely occurred within one to three days of his arrival at the hospital, and the more remote subdural hematoma had likely occurred at least several weeks prior to that. Dr. Isaac noted that the subdural hematomas were markers of head injuries caused by acceleration and deceleration forces applied to A.G.G. In other words, "the child's head [was forced to] mov[e] very rapidly and then stop[ped] suddenly."
According to Dr. Isaac's Physician's Statement, which was also admitted into evidence, Mother reported several different incidents as possible explanations for A.G.G.'s severe injuries. Mother recounted an incident that occurred several days before Dr. Isaac's examination in which A.G.G., who had been strapped into his car seat, fell when the car seat dislodged while Mother was driving her car. Mother also described an incident in which A.G.G. had fallen off a bed while at home with her. Dr. Isaac concluded that neither of the incidents described by Mother could have caused A.G.G.'s subdural hematomas
because they could not have generated the rapid acceleration and deceleration forces necessary to cause the hematomas that had occurred in his brain. Nor could these incidents have caused the retinal hemorrhaging found in A.G.G.'s eyes. In short, Mother's story was inconsistent with the evidence of A.G.G.'s injuries at the hands of an unknown perpetrator.
Dr. Isaac also testified that A.G.G. had suffered fractures to both of his distal tibias, i.e., "the long bones of the legs near the ankles," sclerosis, or an injury to one of the bones within his left foot, and an impaction fracture on his right radius. The fractures to the tibias
, approximately seven to ten days old, were likely to have occurred at the same time as the result of a direct application of force in a twisting motion. Dr. Isaac testified that the force that caused the fractures was greater than any force required for the normal care of a child. Although Mother reported to Dr. Isaac that A.G.G. "may have gotten [his] legs caught in [his] crib," Dr. Isaac testified that such an occurrence would not have explained his leg injuries, which were more serious and intentional. She also stated that A.G.G.'s siblings were unlikely to have caused any of his injuries with the possible exception of some of the bruises or scratches on his back, which were superficial. A.G.G.'s injuries were serious, would have been caused by "significant force," and were likely caused by an adult.
The evidence at trial, including the testimony of both Mother and DFPS caseworker Nicole Franco, demonstrated that three people had cared for A.G.G. during the time he sustained his serious injuries: Mother, her sister-in-law Veronica, and her friend Nelly. Neither Dr. Isaac nor DFPS and police investigators were able to determine which of these three adults had abused A.G.G., and at the time of trial, two-and-one-half years later, the investigation was ongoing, with Mother remaining a suspect.
At the time of trial, A.G.G. was legally blind and had trouble walking. A.G.G.'s siblings, J.J.G., L.K.G., and H.A.G., did not show signs of abuse or neglect at the time they were removed from Mother's care. The DFPS investigator described them as "awake, alert[,] and very active," and concluded they "appeared to be healthy and developmentally on target for their ages." At that time, the family had no prior history of drug or alcohol abuse, mental illness, domestic violence, or past or current involvement with law enforcement or DFPS. Dr. Isaac reported that A.G.G.'s siblings had been examined by the medical staff at the hospital and found to be healthy, although the children were anemic and at least one of them was underweight.
Franco acknowledged that the issues with A.G.G.'s siblings were not severe enough by themselves for DFPS to have removed the children from Mother's care. However, she also testified that, at the time of trial, each child had his or her own "unique special need." J.J.G. required speech therapy and participated in individual play therapy; L.K.G. required speech therapy and individual play therapy; H.A.G. required speech therapy, was not potty-trained, and required "PPCD," which is "[s]upport services through ... school"; and A.G.G. required continued treatment by an ophthalmologist, additional surgery "around the age of five" related to his eyes, and occupational, physical, and speech therapy. Franco also noted that J.J.G. and L.K.G., who were five years old and four years...
To continue reading
Request your trial
- Moody v. Nat'l W. Life Ins. Co.
- In re Interest of D.L.W.W.
-
Moody v. National Western Life Insurance Co.
... ... (16) Moody Jr.'s status as potential beneficiary of his ... father's significant interest in Group ... The ... boards concluded that no further investigation was necessary ... and that a suit by Group or ... ...
- Magro v. Magro