In re J.L.

• Decision Date: 12 February 2004
• Docket Number: No. 13-02-044-CV.,13-02-044-CV.
• Citation: 127 S.W.3d 911
• Parties: In the Interest of J.L., A Child.
• Court: Texas Court of Appeals

127 S.W.3d 911

In the Interest of J.L., A Child.

No. 13-02-044-CV.

Court of Appeals of Texas, Corpus Christi-Edinburg.

February 12, 2004.

Stephen A. Dogget, Attorney At Law, Richmond, for Appellant.

Catherine L. Fisher, Attorney At Law, and David C. Newell, Asst. District Attorney, Richmond, Duke Hooten, Austin, for Appellees.

Before Justices HINOJOSA, DORSEY¹ and MAURICE AMIDEI.²

OPINION

Opinion by Justice MAURICE AMIDEI(Assigned).

Appellant, Bettina Chavez, appeals an adverse jury verdict and judgment terminating her parental relationship with her minor son, J.L., and appointing Chris Edwards, the biological father, as sole managing conservator. Appellant contends in her first three issues that the evidence is legally and factually insufficient to terminate her parental rights because there was no proof: (1) that her husband, Frank Chavez, caused the death of one of their children; or (2) that she knew of any conduct of her husband, or any conditions or surroundings which endangered the children, physically or emotionally. Based upon our conclusions and rulings on such issues as stated herein, we reverse and render.

Motion to Dismiss

The State moved to dismiss this appeal for want of jurisdiction on the ground that appellant failed to file her notice of appeal within twenty days after the judgment was signed on August 17, 2001, as required by section 263.405 of the Texas Family Code effective September 1, 2001.³ Tex. Fam.Code Ann. § 263.405(a) (Vernon 2002). The appellant timely filed a motion for a new trial on September 17, 2001.⁴ The trial court overruled the motion for new trial on October 22, 2001, by a signed written order, thereby extending the trial court's plenary power to November 22, 2001, to grant a new trial or to vacate, modify, correct or reform the judgment.⁵ Appellant filed a notice of appeal on October 22, 2001. On October 29, 2001, appellant filed a motion to vacate written judgment and to modify, correct or reform judgment pursuant to the court's plenary jurisdiction, and withdrew her notice of appeal. Tex.R. Civ. P. 329b(g). On November 6, 2001, the trial court signed a final order modifying and correcting its August 17, 2001 order, to-wit: correcting the cause numbers on the severed cause and this cause; stating that the court, rather than the jury, found termination was shown by clear and convincing evidence; correcting the spelling of appellant's trial counsel's first name; adding a provision regarding the child's right to inherit; and deleting an erroneous reference to section 161.205 of the Texas Family Code regarding the dismissal of the Texas Department of Protective and Regulatory Services ("TDPRS").⁶ The trial court was within its plenary jurisdiction to modify its original order. Lane Bank Equip. Co. v. Smith S. Equip. Inc., 10 S.W.3d 308, 309-14 (Tex.2000); see Tex.R. Civ. P. 320, 329b(a),(e), and (g). The notice of appeal perfecting this appeal was filed by appellant on November 9, 2001, well within 20 days after the order was signed as required by rule 26.1(b) of the Texas Rules of Appellate Procedure. See Tex.R.App. P. 26.1(b), 27.3.

The effect of the new judgment date, not the motion for new trial, extended the time for filing the notice of appeal. See id. The State's motion to dismiss is overruled.

Appellant's Motion to Abate Appeal, For Leave to File Out of Time Motion For New Trial, And For Remand To Trial Court To Determine Out-Of-Time Motion for New Trial

Subsequent to the submission of this case, appellant filed her motion to abate this appeal, and to remand to the trial court for a hearing on her out-of-time motion for new trial. Appellant's motion is based on the State's revealing in the two pending criminal cases against appellant and her husband⁷ that it would not call Dr. Patricia Moore, the medical examiner who was the key witness in this termination case, but would instead call Dr. Harry Lee Wilson, a medical examiner from El Paso whose conclusions are in stark contrast to Dr. Moore's conclusions.

Appellant's motion is moot and it is unnecessary that we rule on it, but we take judicial notice of the testimony of Dr. Wilson given in a "Daubert Hearing"⁸ on March 19, 2003, in Cause No. 33,424A, State of Texas v. Frank Andrew Chavez, in the District Court of Fort Bend County, Texas, 268th Judicial District, a copy of which is attached to appellant's motion. Relevant portions of Dr. Wilson's testimony will be discussed hereafter in connection with appellant's first three issues. Tex.R. Evid. 201.

Factual and Procedural Background

Chris Edwards and Bettina Lohner Chavez (appellant) were the biological parents of Hallie Lohner, J.L., and another child (the "infant"), although they were not married to each other when the children were born. On April 15, 2000, appellant and Frank Chavez were married after living together and sharing parental responsibilities as to Hallie and J.L. since March 1998.

On one occasion, appellant disagreed with Frank and confronted him when he spanked J.L. for hitting Hallie on the head with a plastic T-ball bat, thereby leaving a bruise on J.L.'s hand. TDPRS investigated but did not find that there was any abuse.

In December 1998, Hallie was hospitalized and was diagnosed as having had a stroke. The hospital and TDPRS investigated, but again ruled out any abuse. Appellant and Frank took Hallie to her pediatrician and to therapy and she got substantially better, but remained clumsier than a normal child. The Chavez's had their third child on October 15, 1999.

On March 31, 2000, Hallie possibly broke her ribs when she fell off a merrygo-round. At the Chavez' wedding Hallie fell down some stairs.

On April 24, 2000, Hallie urinated in her pants at a Wal-Mart store. Frank became upset. When they went home Hallie was standing at the front door waiting for Frank to unlock the door, but when Hallie did not go in the front door immediately as expected or told, Frank who had his hands occupied holding the infant, who was in a baby car seat, used his foot to push Hallie on her buttocks to get her to go in the door. The State produced a statement written by Detective Sodolak and signed by appellant which uses the word "kick" instead of "push."

Between April 24 and May 3, 2000, Hallie appeared well to various people who saw her, but on May 3, 2000 she became ill and threw up. Frank and appellant did not believe she needed medical care, but as they prepared to go to bed, Hallie turned blue and they attempted to give her CPR. A sheriff's deputy came and tried to give CPR without success. Hallie was taken to a hospital in an ambulance and CPR and other procedures were continued. Hallie was pronounced dead at midnight on May 4, 2000.

Dr. Patricia Moore, the medical examiner, ruled Hallie's death was a homicide due to complications from blunt force trauma to the abdomen, even though there were no bruises to her abdomen. Dr. Moore did not determine her death was intentional and offered no opinion as to who killed Hallie or what caused the blunt trauma, except that the force on Hallie would be the same as a child falling from a ten-story building onto a sharp or blunt object. She testified that Hallie's death was due to complications from blunt trauma to the abdomen.

Dr. Wilson testified he knew of no evidence that Frank caused or knew of the original trauma to Hallie's abdomen and disagreed with Dr. Moore that the trauma was equivalent to a fall from a ten-story building or that it would have caused a hole in Hallie's intestine by compressing it against the spine.

Dr. Paul Radelat, a pathologist, did not feel the autopsy findings supported a determination of homicide or abuse.

TDPRS referred appellant to Dr. Baldwin, a psychologist. Dr. Baldwin stated that she absolutely opposed termination. According to Dr. Baldwin, the children should be returned to appellant because she had good parenting skills, and Dr. Baldwin believed appellant would be protective of the children.

Chris Edwards, Hallie's biological father, told Frank after Hallie died that he appreciated the good job Frank had done with the children. Appellant's friend Carrie Murphy said she never saw Frank become angry or violent during the time they lived together and never saw Frank and appellant fight. Appellant did not feel the family argued excessively, and there was no unusual stress in the household.

The jury found that the parent-child relationship between appellant and J.L. should be terminated, but found that the parent-child relationship between appellant and the infant should not be terminated. Also, the jury found that the parent-child relationship between Frank and the infant should not be terminated. After the jury verdict the trial court severed the case as to the infant.

Sufficiency of the Evidence

In the first three of thirteen issues, appellant attacks the jury findings, contending the evidence is legally and factually insufficient to establish, clearly and convincingly, that: (1) she knowingly placed or knowingly allowed the child to remain in conditions or surroundings which endangered the physical or emotional well-being of the child; (2) she engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangered the physical or emotional well-being of the child; and (3) termination was in the best interest of the child.

In parent-child termination proceedings, there is a strong presumption that the children's best interest is usually served by keeping them with their natural parents. Wiley v. Spratlan, 543 S.W.2d 349, 352 (Tex.1976). In Wiley it was held:

[T]he presumption is based upon a logical belief that the ties of the natural relationship of parent and child ordinarily furnish strong assurance of genuine efforts on the part of the custodians to provide the child with the best care and opportunities possible, and, as well, the best atmosphere for the mental, moral and emotional development of the child. The...