in the Interest Of: J.D.B., a Child , 435 S.W.3d 452 ( 2014 )

AFFIRM and Opinion Filed June 17, 2014.
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-14-00037-CV
IN THE INTEREST OF J.D.B., A CHILD,
On Appeal from the 304th Judicial District Court
Dallas County, Texas
Trial Court Cause No. 12-771-W
OPINION
Before Justices O’Neill, Myers, and Brown
Opinion by Justice Brown
Mother and Father appeal the trial court’s judgment rendered on a jury verdict
terminating their parental rights to their son, J.D.B. In three issues, they contend the evidence is
legally and factually insufficient to support the jury’s findings that they committed acts justifying
termination and that termination of their parental rights was in J.D.B.’s best interest. We affirm.
Background
J.D.B. was born on May 31, 2012 in Florida. On June 22, 2012, when J.D.B. was a little
more than three weeks old, Mother and Father took him to the emergency room after Mother
noticed that his shoulder was swollen. The hospital personnel took a “Babygram” or infant x-ray
of J.D.B.’s chest, abdomen, and pelvis and performed an ultrasound on the area and found no
injuries. According to Mother, the hospital told them J.D.B. was fine and the swelling could
have been from spit-up or J.D.B.’s sleep position. One week later, Mother and Father took
J.D.B. for his four-week wellness check-up with his pediatrician during which Mother expressed
her concerns to the pediatrician about J.D.B.’s swollen shoulder. Mother said the pediatrician
reassured her and completed the wellness exam, noting that the “patient complained of shoulder
pain.”
In early July, Mother and Father moved to Texas. They left Florida on July 9, 2012 and
drove for two-days, stopping overnight in Louisiana. They arrived in Texas around three o’clock
in the afternoon on July 10, 2012. Upon arrival, they undressed J.D.B. so he could cool down
and noticed that his arm was swollen and that he was “not really moving it.” J.D.B. was not
crying and did not seem like he was upset. After consulting with Mother’s step-dad, Brannon, 1
they decided to take J.D.B. to the emergency room at Baylor Medical Center in Garland, Texas.
The professionals at Baylor noted there was “no obvious bruising” and that J.D.B. did not
appear to be in distress. But they indicated his pain level was an eight out of ten and noted that
there was an “obvious deformity” with his left upper arm. After taking an x-ray, the
professionals confirmed J.D.B. had a broken arm and multiple other fractures in different stages
of healing. Mother and Father told the professionals that they did not know how the fractures
occurred or notice any swelling until that day. Due to J.D.B.’s fractures, a social worker referred
the case to the Child Protective Services (CPS) unit of the Texas Department of Family and
Protective Services (the Department), and J.D.B. was transferred to Children’s Medical Center in
Dallas for further evaluation.
During his initial admission at Children’s, J.D.B. was examined by multiple physicians
from various disciplines, including radiologists, a surgeon from the trauma service, and an
orthopedic surgeon. He also was examined by pediatricians in the REACH clinic. 2 The REACH
1
To protect the privacy of the parties, we identify the child’s relatives by their first names only. See TEX. FAM. CODE ANN. § 109.002(d)
(West 2014); TEX. R. APP. P. 9.8.
2
REACH stands for Referral and Evaluation of Abused Children. REACH evaluates any child with concerns or suspicions of child abuse
and neglect.
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physicians that examined J.D.B. were Drs. Cathleen Lang and Matthew Cox, both of whom
testified at trial. Lang further reviewed J.D.B.’s medical records from Florida.
The next day, J.D.B. underwent a skeletal survey that revealed the following injuries: an
acute fracture to the left humerus, a healing fracture to the left clavicle, healing fractures to four
posterior ribs, a healing spiral fracture of the mid and distal right femur, bucket-handle type
fractures (end of bone, corner fracture) of the distal right femoral metaphysis and proximal and
distal tibial metaphyses, fractures at the bases of four metatarsals (bones in the foot), fractures at
the heads of two left metatarsals, healing bucket-handle type fractures of the proximal left tibial
metaphysis and distal metaphysis of the left radius, a healing corner fracture of the distal left
femoral metaphysis, and a possible non-displaced fracture at the base of the left small finger.
J.D.B.’s head scan was normal. He had no bruising. But according to Lang, a lack of bruising is
not unusual and “would actually be expected” because you “really don’t see bruising with
fractures.”
Lang testified that with the amount of fractures sustained by J.D.B., the physicians
wanted to make sure they were not “missing something” so they ordered multiple tests to
determine whether J.D.B. had a bone disorder. Lang also consulted with an endocrinologist and
a radiologist, who was an expert in bone diseases. The medical records indicate the physicians
sought to “[r]ule out non-accidental trauma” as the cause of J.D.B.’s injuries. Mother and Father
reported no family history of bone disease, and specifically, neither parent had known multiple
fractures. They did state, however, that Mother’s grandmother and Father’s grandfather had
“weak bones” but no formal diagnosis for those relatives was given.
Lang said J.D.B.’s radiographic findings did not suggest an underlying bone disease.
Lang explained that J.D.B.’s bones looked normal on the x-ray and because of this, the
physicians directed their treatment toward testing for “the diseases that could have normal bones
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on x-rays but still have fragility to them.” One bone disorder for which they ran specific tests
was osteogenesis imperfecta, a bone disease present in a child’s DNA that can cause brittle bones
and infant fractures. They also tested J.D.B.’s Vitamin D levels to rule out rickets. Lang said
the “most classic form” of rickets is a Vitamin D deficiency, and explained “that can cause
decreased mineralization of the bones because of alterations in your calcium and your
phosphor[u]s.” As part of J.D.B.’s extensive blood testing, the physicians tested for “all the
electrolytes, including calcium, magnesium, and phosphor[u]s because of the electrolytes in the
bone.” J.D.B. had normal calcium and phosphorus levels, but his parathyroid hormone, which
regulates a person’s calcium and phosphorus, was slightly elevated. According to Lang, most
bone disorders with an elevated parathyroid hormone would also have deviations in calcium and
phosphorus levels.
In addition to the multiple new and healing fractures, J.D.B. had healing linear scratches
to his chin and a torn frenulum. Specifically, Lang observed that the frenulum underneath
J.D.B.’s tongue had been “ripped open” and was in stages of healing. Lang testified that the
frenulum injury is “indicative of something happening to the child” because a 41-day old infant
like J.D.B. would not be able to self-inflict this injury; it means that someone had to forcefully
shove something into his mouth to cause the injury. She was less concerned about the scratches
to J.D.B.’s chin, but in her affidavit attached to the petition for protection of J.D.B., she stated
that the abrasions on his face are “deeper than would be expected from self-inflicted scratching.”
Cox agreed the scratches were “deeper injuries” and not consistent with a baby scratching his
face with his fingernails.
While at Children’s, Mother and Father met with a social worker and Lang during which
Mother told them she was shocked when she found out J.D.B. had a broken arm because he was
not fussy and did not seem to be in pain. The parents had no explanation for what may have
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caused J.D.B.’s fractures. Mother also told them that she and Father were J.D.B.’s primary
caregivers and that no one else had cared for him. Mother and Father said J.D.B. “scratches his
face and also scratched the inside of his mouth a few weeks ago.” According to Mother, she
showed the scratch inside J.D.B.’s mouth to his Florida pediatrician, and they subsequently
trimmed his nails.
Based on the severity of his injuries and his age and because CPS believed J.D.B. would
be at serious risk for further harm if he remained with his parents, CPS removed J.D.B. from his
parents’ care. When J.D.B. was discharged from Children’s on July 12, 2012, CPS took him into
custody and placed him with a foster family. The Department then filed its original petition for
protection of J.D.B. for conservatorship and for termination of Mother’s and Father’s parental
rights. J.D.B. was subsequently placed with Mother’s step-grandfather, Duane, and Mother and
Father were permitted to have supervised visits with J.D.B.
At the time the Department filed its petition, the results for J.D.B.’s testing for
osteogenesis imperfecta and Vitamin D were pending, but there no physical findings on his
exams to suggest a genetic bone disorder. In her affidavit, Lang noted that there was no history
of trauma to explain J.D.B.’s injuries, and she said that although J.D.B. was being tested for bone
disorders, “his injuries are extensive and highly concerning for repeated inflicted injury.” She
added that his other injuries, like the frenulum tear, are not explained by a bone disorder. Lang
testified that another test to rule out a medical explanation for the fractures is to remove the child
from the environment to see if the child sustains new fractures. That is, if the child had a bone
disease, the child would still continue to get fractures. But “if you remove the child and you
don’t get any additional fractures, that’s your guideline right there. The cause is the
environment.” It shows that “whatever was happening, happened in the home.”
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J.D.B. had a second skeletal survey on August 1, 2012. Lang explained the purpose of
repeating the skeletal survey is to make sure everything is healing properly and to identify any
additional fractures that were not previously seen. Lang testified that some types of fractures are
not seen in an x-ray until the healing process begins. She said that a fracture starts healing in ten
to fourteen days at which time the healing is noticed by a callus formation or periosteal reaction
showing the callus formation. Lang testified that after the second skeletal survey, the physicians
found additional old fractures that were identified because of the healing but “no new fractures.”
The skeletal survey was repeated again in October 2012. Lang testified that the October skeletal
survey showed that J.D.B. was still in phases of healing, but there were no new fractures;
“[e]verything had already been previously identified and was continuing to heal.”
The results of J.D.B.’s Vitamin D tests showed that his Vitamin D level was on the low
end of the normal range. According to Lang, forty percent of patients have a Vitamin D level in
that range. And even when a child has low Vitamin D, she would not expect to see fractures in a
child J.D.B.’s age. Lang testified that the only other findings on J.D.B.’s lab results were
consistent with abundant healing. For example, J.D.B.’s elevated alkaline phosphatase was a
“marker of healing” and his mild elevation in his parathyroid hormone “also is something that is
seen in the healing process.” J.D.B.’s endocrinologist similarly noted that the elevated findings
“could be due to the fractures themselves.” The elevated findings normalized in follow-up
testing.
The results of the genetic testing for metabolic bone disorder were negative, and Lang
concluded that based on the negative results, J.D.B. did not have a bone disorder or rickets.
Lang specifically testified that J.D.B.’s Vitamin D level was “not at a level that could cause
Rickets.” Further, the various tests performed to check for forms of osteogenesis imperfecta
were negative. Cox agreed with Lang’s assessment; he did not identify any underlying bone
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disease process to explain J.D.B.’s multiple injuries. He also agreed that J.D.B. did not have
rickets.
From the skeletal surveys, the physicians identified a total of twenty-six fractures that
were of different types. J.D.B. had a spiral fracture in his thigh bone, which is caused by a
twisting type of mechanism. The fracture in his arm was a displaced fracture, which meant that
the bone was in two separate pieces. Lang said J.D.B.’s arm fracture would “probably be
painful” and he would be in “obvious pain” any time the arm is moved. J.D.B. also had bucket-
handle fractures, which are caused when something forcefully pulls the un-calcified portion of
the end of the bone away and a chip of the calcified portion goes with it. The little bones in
J.D.B.’s foot also had “little chips coming off the top.” Lang testified that it takes a
“considerable amount of force” to break a bone in a baby because a baby’s bones are more
elastic and can take stress better than adults. She explained that “it’s not something that’s going
to happen in normal, daily activity such as changing diapers or something like that. It’s
something that, when it’s done, you know that it’s done, and the child is in pain.”
Lang also testified that they ruled out the medical possibilities for the fractures and the
fact that J.D.B. stopped getting fractures after he was removed from the home was “consistent
with a diagnosis of abusive trauma.” In describing the number and type of fractures, Lang said
J.D.B.’s injuries fall on the “severe end of abuse.” According to Cox, Mother and Father did not
believe the injuries were inflicted, rather they felt there was an underlying disease process. But
Cox testified that J.D.B. had a “very comprehensive assessment” to look for an underlying
disease and he cannot think of another test to identify a potential cause. He added that time is
part of the diagnosis; J.D.B. has not had any more injuries since he was six weeks old.
As part of the trial court’s temporary orders, Mother and Father were required to, among
other things, participate in parenting classes and attend counseling. For the court-ordered
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counseling, Mother and Father were referred to Matilda Frederick, a therapist, who testified to
her counseling sessions with Mother and Father. Frederick met with them as a couple and
individually. Frederick said generally that the parents attended the sessions, had good attitudes,
participated, and completed the services. But Frederick had concerns. One of Frederick’s
biggest concerns was Mother’s lack of empathy. Frederick testified that Mother said she did not
harm her child, but Frederick never observed Mother sobbing or crying when they discussed
J.D.B.’s injuries. Rather, Mother offered “more of an explanation of what the injuries were
about,” and Mother would not consider any explanation other than a bone disease. Frederick
testified that neither parent had an explanation for why J.D.B. had no injuries after leaving their
care other than telling her J.D.B. was “recovering from brittle bone disease.” Mother also denied
having any life problems other than being involved in a CPS case. Because Mother denied
having any problems, Frederick could not measure the success of the counseling and did not
think she made any therapeutic progress with Mother. Frederick had the same concerns with
Father. Although Father similarly denied having any issues, Frederick said they made progress
with respect to Father’s employment search. Frederick admitted that CPS wanted her to focus on
the fact that the parents were denying any type of physical abuse. And she agreed that if the
parents believed the child had a bone disorder that they would not have admitted to any physical
abuse.
Darlene Carpenter, the CPS caseworker, testified that from the beginning, the parents
denied harming their child and sought a medical reason for J.D.B.’s injuries. So when the
parents asked for more testing, J.D.B. received more testing. Carpenter said that when a parent
denies harming the child, Carpenter goes to the medical experts to determine whether there is a
plausible medical explanation for the injuries. Carpenter worked closely with Lang and other
physicians at Children’s and testified that no medical professional has told her there was a
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medical explanation for J.D.B.’s injuries. Based on the information she reviewed, Carpenter said
CPS’s recommendation in this case is for termination of Mother’s and Father’s parental rights
and to continue J.D.B.’s placement with Duane. She also said CPS would consent to J.D.B.’s
adoption by Duane, who testified that he would adopt J.D.B. if he were available for adoption.
Duane became involved in this case after the first court hearing in July 2012. And since
August 28, 2012 (when J.D.B. was placed in Duane’s care), J.D.B. has not received any new
fractures. Duane testified that it would not be in J.D.B.’s best interest to return J.D.B. to his
parents because they appear to lack the normal instincts in caring for a child and “put other
events and circumstances ahead of the interest of their own child.” He also said they “seemed to
struggle at times, even after doing the parenting classes.” He came to this conclusion after
observing the parents’ visits with J.D.B. and considering the injuries J.D.B. sustained before
being removed from their care. Duane also testified that Mother has told him that if she and
Father regain custody of J.D.B., she will file for sole custody because she is no longer with
Father. Duane said Mother further explained that she has concerns for J.D.B.’s safety and well-
being due to Father’s “anger issues.” Duane said, however, that Mother defends Father’s actions
and seems protective of Father. Although Duane has talked to J.D.B.’s physicians about his
injuries, he has not talked about the injuries with Mother and Father because “they are for sure it
was bone disease.” Duane testified that J.D.B. is not on any special medications and is growing
and healthy.
Dr. Charles Hyman testified as an expert for Mother and Father. Hyman testified that
J.D.B. was not a victim of child abuse; rather, Hyman concluded that “there are medical
explanations for [J.D.B.’s] fractures.” Specifically, Hyman said J.D.B. has a bone fragility
disorder, which means that fractures can occur with minimal force and “regardless of how the x-
rays look or even more quantitative tests.” Hyman also said that based on the x-ray and
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laboratory evidence, J.D.B. definitely had rickets, which he described as the less than ideal
mineralization of the growth plate and a contributing force to bone fragility. Hyman concluded
that rickets caused a percentage of J.D.B.’s fractures. And based on the “plain as day” laboratory
results that he says supports a diagnosis of rickets, Hyman believed that the physicians at
Children’s who did not diagnose J.D.B. as having rickets are wrong.
Hyman explained that genetics affects a person’s bone strength. And when you consider
suspicious fractures, the physician should check to see if the fracture is through a normal bone.
Hyman testified that cellular metabolism affects bone failure, and he highlighted various factors
from J.D.B.’s medical records that “could have had a negative impact on his cellular biology,
which could have adversely impacted his bone quality and strength and put him at risk for bone
fragility.” Those factors included Mother’s late prenatal care, her poor diet and high body mass
index, Mother’s exposure to secondhand smoke, gestational hypertension, maternal anxiety
disorder, and her regular use of TUMS during pregnancy. In addition, J.D.B. was partially
breastfed (which affects Vitamin D levels because there is less Vitamin D in breast milk than in
formula) and exposed to secondhand smoke.
Hyman also explained the radiological findings that supported his conclusion. For
example, Hyman said J.D.B. did not have uniform bone density; rather, his bones had a moth-
eaten appearance. In addition, Hyman said some of the fractures identified by the Children’s
physicians as bucket-handle or corner fractures were actually growth plate fractures, which are
found in children with metabolic bone problems. He testified that the alternating dense and
lucent lines on J.D.B.’s x-rays show a healing metabolic problem that are part of the normal
anatomy. Hyman also said the images of J.D.B.’s femurs are “classic views of healing Rickets”
because of the cupping of the bone and dots of mineralization. He testified that other x-rays, like
J.D.B.’s July x-ray of his ankle, shows a mineralization problem, not a fracture.
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The fact that J.D.B.’s fractures were silent fractures, meaning no one knew he had
fractures, also was relevant to Hyman’s diagnosis. Hyman testified that clinically silent fractures
are seen with increased frequency in those with bone fragility disorders. And he said that while
it is possible to have fractures without bruises, Hyman testified that as the number of fractures
increases, “it becomes unheard of to not have any other type of cutaneous injury.” According to
Hyman, J.D.B. was “unscathed” and did not look “sick or traumatized” when he presented. But
Hyman did not examine J.D.B.; he only reviewed the medical records provided to him by Mother
and Father.
Hyman acknowledged that the types of problems he testified to show up in only 2.5
percent of the population, and he agreed that statistically, “it’s not the most common
presentation,” making the parents of a baby like J.D.B. “very unlucky” parents. He also agreed
that if a baby is placed in foster care and does not receive any additional fractures, then the lack
of fractures after removal “could be” indicative of child abuse. But he claims it also could be
changes in cellular biology, which could change a child’s situation. He added that J.D.B.’s x-
rays show changes of his increased mineralization. Hyman said he does not know whether
J.D.B. will suffer more fractures because J.D.B. still could have an underlying metabolic bone
disease. He also said that a torn frenulum is not necessarily a sign of child abuse.
Mother testified she was very confused when she was told that J.D.B. had multiple
fractures. She told CPS that she did not know “what could have caused all of these injuries” and
that J.D.B. had seen other doctors in Florida who said he was fine. Mother said that when Lang
discussed the diagnosis of non-accidental trauma with her, Mother concluded that diagnosis was
wrong because she knew that neither she nor Father or anyone else in their family had hurt their
son. Mother explained she was around J.D.B. except for one hour of his life and she knew
“exactly what was going on” and “how he was handled.” Mother testified that Father is a “great
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dad” and she did not have any concerns with how Father held or treated J.D.B. She also said she
would be able to tell if Father was the one who was harming J.D.B. because J.D.B. would be
screaming or yelling. Nobody in their family expressed any concerns about their handling of
J.D.B. or his health at any time before they moved to Texas.
Mother said that J.D.B.’s torn frenulum was just a surface cut that happened when she
tried to force J.D.B. to stay on her nipple as instructed by the breastfeeding experts. She
explained she used a nipple shield because she had difficulty breastfeeding. She noticed blood
on the nipple shield and thought J.D.B. “could have scratched the inside of his mouth” or the
scratch could have come from “nipple shield itself, between him rocking his head back and forth
and the forcefulness [she] had to use.” Both Lang and Cox disagreed that a nipple shield would
cause the frenulum injury because the shields are soft, flexible pieces of plastic.
Because she knew there was “no way” J.D.B.’s injuries could have been non-accidental
trauma, Mother researched different things online and contacted doctors to “figure out what it
was.” Mother agreed that she asked for J.D.B. to be retested for various forms of osteogenesis
imperfecta and the tests ruled out that diagnosis. She also agreed that in October 2012, she told
Carpenter that she thought J.D.B. had temporary brittle bone disease, which Mother discovered
through her research. Mother further agreed that in March of 2013, she thought J.D.B. had
metabolic bone disease. And now she believes that based on Hyman’s testimony, J.D.B. has
healing rickets and her mind is not open to any other possibility.
Mother testified that they completed the parenting classes as ordered by the court. And
although she completed the required counseling, she complained that there was not much
counseling going on because Frederick would spend their time talking about irrelevant things.
Mother also felt like Frederick directed a lot of hateful energy to Mother and would accuse her of
hurting J.D.B. Mother believes J.D.B. was wrongfully removed and that CPS concluded J.D.B.
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was abused early on in the case. She explained that in the beginning, the plan was for J.D.B. to
be returned to them, but before that could happen, CPS wanted the parents to either accept
responsibility for J.D.B.’s injuries or offer a plausible explanation for his injuries. Mother
testified that even though she found Hyman and Hyman provided a reason for J.D.B.’s injuries, it
was “not good enough” for CPS. Mother believes Hyman’s diagnosis is accurate.
Father similarly testified that he is not open to the possibility that somebody intentionally
hurt J.D.B. He said that he knew Mother did not hurt their son. He also denied having any anger
issues or problems requiring counseling. Father disagrees with the diagnosis of child abuse and
testified that after hearing all the physicians testify, he’s “with Dr. Hyman” because Hyman’s
testimony is “all that makes sense to [him].”
After hearing all the testimony, the jury found that both Mother and Father had allowed
J.D.B. to remain in an endangering environment and had engaged in conduct that endangered
J.D.B.’s physical or emotional well-being. See TEX. FAM. CODE ANN. § 161.001(1)(D), (E)
(West 2014). The jury also found that it was in J.D.B.’s best interest for Mother’s and Father’s
parental rights to be terminated and conservatorship to be granted to the Department for the
purpose of placing J.D.B. with a relative or other suitable person. Id. § 161.001(2). On
December 20, 2013, the trial court signed a final judgment adopting the jury’s findings and
terminating Mother’s and Father’s parental rights to J.D.B. Mother and Father filed a motion for
new trial, which the trial court denied. This appeal followed. 3 In three issues, Mother and Father
3
We note that at the hearing on the motion for new trial, counsel for Mother and Father informed the trial court that Father had passed
away. Generally, the death of a party can render an appeal by the party moot unless the judgment affects the party’s property rights as opposed to
purely personal rights. Olson v. Comm’n for Lawyer Discipline, 901 S.W.2d 520, 522–23 (Tex. App.—El Paso 1995, no writ). In this appeal, the
judgment does affect property rights because if we determine that the termination decree should be reversed, the parent-child relationship
between Father and J.D.B. would be restored, and J.D.B. would potentially be entitled to a share of Father’s estate. In re S.N., 272 S.W.3d 45, 57
(Tex. App.—Waco 2008, no pet.) (op. on reh’g). In addition, although an order terminating the parent-child relationship divests the parent and
the child of all legal rights and duties with respect to each other, “the child retains the right to inherit from and through the parent unless the court
otherwise provides.” TEX. FAM. CODE ANN. § 161.206(b). Here, the trial court’s judgment terminating Father’s parental rights does not contain
provisions that would affect the child’s right to inherit from Father.
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challenge the legal and factual sufficiency of the evidence supporting the judgment terminating
each of their parental rights.
Standard of Review
Because termination of parental rights is “complete, final, irrevocable and divests for all
time” the natural right existing between parents and their children, the evidence in support of
termination must be clear and convincing “before a court may involuntarily terminate a parent’s
rights.” Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985) (citing Santosky v. Kramer, 455 U.S.
745, 747–48 (1982)); In re A.B., No. 13-0749, 2014 WL 1998440, at *3 (Tex. May 16, 2014).
“Clear and convincing evidence” is “the measure or 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).
On appeal, we apply a standard of review that reflects the elevated burden at trial. In re
A.B., 2014 WL 1998440, at *3; In re A.T., 406 S.W.3d 365, 370 (Tex. App.—Dallas 2013, pet.
denied). This means both legal and factual sufficiency review of a decree terminating parental
rights require a reviewing court to consider all the evidence to determine whether the fact-finder
could reasonably form a firm belief or conviction that the grounds for termination are proven.
See In re J.F.C., 96 S.W.3d 256, 265–66 (Tex. 2002). In evaluating the evidence for legal
sufficiency in a termination case, we view the evidence in the light most favorable to the finding.
Id. at 266; In re T.A.D., 397 S.W.3d 835, 839 (Tex. App.—Dallas 2013, no pet.). We “consider
all the evidence, not just that which favors the verdict,” and we assume the fact-finder resolved
disputed facts in favor of its finding if a reasonable fact-finder could do so. In re J.P.B., 180
S.W.3d 570, 573 (Tex. 2005) (per curiam); In re J.F.C., 96 S.W.3d at 266. We also disregard all
evidence that a reasonable fact-finder could have disbelieved or found to have been incredible.
In re J.F.C., 96 S.W.3d at 266.
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In reviewing termination findings for factual sufficiency, we consider and weigh all of
the evidence. Id.; see also In re A.B., 2014 WL 1998440, at *3 (noting reviewing court must
undertake “exacting review of the entire record with a healthy regard for the constitutional
interests at stake”). We give due deference to the decisions of the fact-finder because the fact-
finder is the sole arbiter when assessing the credibility and demeanor of witnesses and do not
supplant the judgment with our own. In re A.B., 2014 WL 1998440, at *3; In re H.R.M., 209
S.W.3d 105, 108 (Tex. 2006) (per curiam). We determine, on the entire record, whether the
evidence is such that a fact-finder could reasonably form a firm conviction or belief about the
truth of the allegations against the parent. In re A.B., 2014 WL 1998440, at *3.
Statutory Grounds for Termination
A trial court may terminate the parent-child relationship if the fact-finder finds by clear
and convincing evidence that (1) the parent committed one or more of the enumerated acts or
omissions justifying termination under section 161.001(1) of the Texas Family Code and (2)
termination of parental rights is in the child’s best interest. TEX. FAM. CODE ANN. §
161.001(1)(A)–(T), (2). Both elements must be established, and each required finding must be
based on clear and convincing evidence. In re A.T., 406 S.W.3d at 370. “Only one predicate
finding under section 161.001(1) is necessary to support a judgment of termination when there is
also a finding that termination is in the child’s best interest.” In re A.V., 113 S.W.3d 355, 362
(Tex. 2003).
In this case, the jury found Mother and Father each had engaged in conduct proscribed by
subsections (D) and (E) of section 161.001(1) of the family code. That is, the jury found Mother
and Father each had (1) knowingly placed or knowingly allowed J.D.B. to remain in conditions
or surroundings which endangered his physical or emotional well-being, TEX. FAM. CODE ANN. §
161.001(1)(D), or (2) engaged in conduct, or knowingly placed J.D.B. with persons who engaged
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in conduct, which endangered his physical or emotional well-being, id. § 161.001(1)(E). They
challenge the legal and factual sufficiency of the evidence to support these findings in their first
and second issues.
Both subsections (D) and (E) require proof of endangerment. See id. § 161.001(1)(D),
(E). “Endanger” means to expose to loss or injury, or to jeopardize a child’s emotional or
physical health, but it is not necessary that the conduct be directed at the child or that the child
actually suffer an injury. Castaneda v. Tex. Dep’t of Protective & Regulatory Servs., 148
S.W.3d 509, 521–22 (Tex. App.—El Paso 2004, pet. denied) (citing Tex. Dep’t of Human Servs.
v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987)). The primary distinction between the two
subsections is the source of the physical or emotional endangerment to the child. Id. at 522.
Subsection (D) addresses the child’s surroundings and environment while subsection (E) address
parental misconduct. Compare TEX. FAM. CODE ANN. § 161.001(1)(D), with id. § 161.001(1)(E).
Parental conduct, however, is relevant to the child’s environment under subsection (D). In re
J.T.G., 121 S.W.3d 117, 125 (Tex. App.—Fort Worth 2003, no pet.). That is, “[c]onduct of a
parent or another person in the home can create an environment that endangers the physical and
emotional well-being of a child as required for termination under subsection (D).” Castaneda,
148 S.W.3d at 522; see also In re W.S., 899 S.W.2d 772, 776 (Tex. App.—Fort Worth 1995, no
writ) (stating that “environment” refers not only to the acceptability of the living conditions but
also to a parent’s conduct in the home). Inappropriate, abusive, or unlawful conduct by persons
who live in the child’s home is part of the “conditions or surroundings” of the child’s home
under subsection (D). In re M.R.J.M., 280 S.W.3d 494, 502 (Tex. App.—Fort Worth 2009, no
pet.) (“A child is endangered when the environment creates a potential for danger that the parent
is aware of but disregards.”).
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In this case, the Department presented evidence that J.D.B.’s injuries were intentionally
inflicted and that the nature of his injuries were consistent with a diagnosis of non-accidental
trauma. J.D.B.’s medical records show that when Mother and Father took J.D.B. to Baylor, he
had a broken arm, which was a new fracture, and multiple healing fractures of his clavicle, ribs,
feet, and femur, that occurred at other times. And after Children’s performed three skeletal
surveys, the physicians identified a total of twenty-six fractures that were in different stages of
healing. J.D.B. was seen by multiple physicians at Children’s and underwent extensive testing to
rule out the possibility that his fractures were caused by a bone disease or some other underlying
medical condition that caused unusual bone fragility, such as rickets. Lang testified that the
radiological, blood, and DNA testing ruled out the possibility that J.D.B. had a bone disease, and
his Vitamin D levels were not at a level that could cause rickets. In addition, Lang and Cox, both
of whom examined J.D.B., testified that after the comprehensive testing and consultation with
other physicians, they could not identify any underlying medical explanation for J.D.B.’s
fractures. Both physicians also testified that the fact that J.D.B. had not suffered any new
fractures after being removed from his parents’ care was indicative of abuse rather than a disease
process. Lang specifically testified that if you remove the child from the environment and there
are no additional fractures, it shows that “whatever was happening, happened in the home.”
J.D.B. also had deep healing scratches on his face and a torn frenulum, neither of which
would be explained by an underlying bone disease. According to Lang and Cox, J.D.B. could
not have self-inflicted these injuries. The scratches were deeper than what would be expected by
an infant scratching his face, and the frenulum injury would be caused by someone forcefully
shoving something into J.D.B.’s mouth.
The parents presented the testimony and report of Hyman to show there was another
reason, other than abuse, for J.D.B.’s fractures. Hyman told the jury that based on J.D.B.’s
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skeletal images and lab results, J.D.B. had a metabolic bone process and bone fragility brought
on by the risk factors to which he testified. He said J.D.B. also had rickets. Hyman’s opinion
conflicted with the testimony offered by Lang and Cox and the conclusions written by the
multiple other physicians in J.D.B.’s medical records. But that conflict in testimony as to the
cause of J.D.B.’s fractures, was a matter of credibility left to the determination of the jury. See
In re H.R.M., 209 S.W.3d at 108. The jury was free to believe the medical testimony presented
by the Department and disbelieve the parents’ medical explanation for J.D.B.’s fractures.
Mother and Father argue the termination finding under subsection (D) is not supported by
sufficient evidence because there is no evidence showing they “knowingly” caused J.D.B.’s
fractures, tore the child’s frenulum, or caused the scratches on his face. Regarding J.D.B.’s
fractures, Mother and Father denied harming J.D.B. and maintained throughout the proceedings
that they did not know what could have caused J.D.B.’s fractures other than a bone disease.
Mother testified that she knew the diagnosis from the physicians at Children’s was wrong and
that she searched for other causes of infant fractures on the Internet, which led her to Hyman’s
research. Mother admitted during her testimony that none of the physicians at Children’s
concluded J.D.B. had a bone disease or rickets and that the testing J.D.B. underwent at
Children’s specifically ruled out those possibilities. But despite this evidence, she believes
Hyman’s testimony that J.D.B. had healing rickets. Father agreed that the only testimony that
made sense to him was Hyman’s testimony. Carpenter testified that Mother’s only explanation
for why J.D.B. did not receive any new fractures after being removed from their care was that
J.D.B. was healing from brittle bone disease. The record contains no other explanation by either
parent for why J.D.B. did not receive additional fractures after removal. Hyman offered only
that J.D.B.’s cellular biology changed his situation and his x-rays showed changes of increased
mineralization.
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Regarding J.D.B.’s other injuries, Mother said J.D.B.’s torn frenulum was just a surface
cut caused by the nipple shield, but that testimony was contradicted by Lang and Cox; they said a
nipple shield could not cause a frenulum tear. Mother and Father also told the physicians and
CPS that J.D.B. scratched his face and that they trimmed his nails and used “scratch mittens.”
But the jury also heard that the scratches were deeper that what a child J.D.B.’s age could inflict.
Hyman did not offer an explanation for the scratches to J.D.B.’s face or his torn frenulum. He
offered only that a torn frenulum is not necessarily a sign of child abuse.
The jury heard that except for one hour, Mother and Father were J.D.B.’s primary
caregivers. Mother said she knew “exactly what was going on” the entire time and how J.D.B.
was handled. Although Mother and Father both testified that they did not have concerns about
the other, the jury also heard that Mother told Duane she would seek sole custody of J.D.B. due
her concerns about Father’s anger issues. Mother said she did not remember discussing this with
Duane.
Mother testified that the during the time J.D.B. was in their care, he never seemed like he
was in pain and he was not fussy, unless he was hungry or wet. And they took J.D.B. to receive
care whenever they noticed a problem, and that the physicians in Florida said J.D.B. was fine.
But while it is true that Mother and Father sought medical care the times they noticed a problem,
that evidence does not negate the jury’s finding that Mother and Father each permitted J.D.B. to
remain in a setting that was dangerous to him. See In re J.P.B., 180 S.W.3d at 574. The
evidence shows that J.D.B. sustained twenty-six fractures, which Lang described as on the severe
end of child abuse, during the time when he was under their care and that those fractures were
caused by non-accidental trauma. The evidence also shows that the fractures did not occur all at
once; rather, the fractures were in different stages of healing. Lang testified that it takes a
considerable amount of force to break an infant’s bones and that when it happens, you know it
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and the child is in pain. In light of this evidence, a reasonable jury could infer that, even though
J.D.B. was not fussy and Mother and Father sought medical treatment when they noticed a
problem, they nevertheless knowingly allowed J.D.B. to remain in an environment that
endangered his physical well-being. Id.; see also C.H. v. Tex. Dep’t of Family & Protective
Servs., 389 S.W.3d 534, 541 (Tex. App.—El Paso 2012, no pet.) (concluding sufficient evidence
exists to support finding under subsection (D) where child’s broken bones were not explained);
In re J.D., No. 14-14-00076-CV, 2014 WL 2583784, at *7 (Tex. App.—Houston [14th Dist.]
June 10, 2014, no pet. h.) (“A child’s unexplained, non-accidental fractures of various ages
support a reasonable inference that the child’s caregivers knew of the injuries and their cause,
and supports termination under subsection D.”). Further, it was within the province of the jury to
judge Mother’s and Father’s credibility and demeanor and disbelieve their testimony that they
did not know how the fractures could have occurred.
After viewing all of the evidence under the appropriate standards of review, we conclude
the fact-finder could reasonably form a firm belief or conviction that Mother and Father each
knowingly placed or allowed J.D.B. to remain in conditions or surroundings that endangered his
physical or emotional well-being. In re J.F.C., 96 S.W.3d at 266. Accordingly, we conclude the
evidence was legally and factually sufficient to support the termination finding for Mother and
Father under subsection (D). We overrule Mother’s and Father’s first issue.
A single predicate finding under section 161.001(1) is sufficient to support a judgment of
termination when there is also a finding that termination is in the child’s best interest. See In re
A.V., 113 S.W.3d at 362. Here, the jury also made best interest findings as to each parent, and as
will be explained in more detail below, the evidence is legally and factually sufficient to support
those findings. Thus, we do not address Mother’s and Father’s second issue, which challenges
the finding that each had engaged in conduct proscribed by subsection (E). TEX. R. APP. P. 47.1.
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Best Interests of the Child
Before terminating a parent’s rights, the fact-finder also must find that terminating the
parent’s rights is in the child’s best interest. TEX. FAM. CODE ANN. § 161.001(2); see also In re
A.V., 113 S.W.3d at 362 (noting that primary focus of termination proceeding in the trial court
and on appeal is protecting the best interest of the child). In their third issue, Mother and Father
challenge the legal and factual sufficiency of the evidence supporting the best interest findings.
In reviewing the sufficiency of the evidence to support a finding that termination is in the
child’s best interest, a court examines several factors, including the desires of the child; the
child’s current and future emotional and physical needs; any emotional or physical danger to the
child; the parental abilities of the persons seeking custody and their plans for the child; the
programs available to assist those persons seeking custody in promoting the best interest of the
child; the stability of the home; acts or omissions by a parent tending to show the existing
relationship is not a proper one; and any excuse for the acts or omissions of the parent. Holley v.
Adams, 544 S.W.2d 367, 371–72 (Tex. 1976) (listing factors used for determining best interest of
the child). These factors are not exhaustive, and some of the listed factors may be inapplicable
to some cases. In re C.H., 89 S.W.3d 17, 27 (Tex. 2002).
While there is a strong presumption that keeping the child with a parent is in the child’s
best interest, see TEX. FAM. CODE ANN. § 153.131(b), the prompt and permanent placement of
the child in a safe environment also is presumed to be in the child’s best interest. Id. §
263.307(a). Section 263.307(b) of the family code lists the factors to consider in determining
whether the child’s parents are willing and able to provide the child with a safe environment.
See TEX. FAM. CODE ANN. § 263.307(b)(1)–(13). The statutory best interest factors include,
among other things, the child’s age and physical and mental vulnerabilities; the magnitude,
frequency, and circumstances of the harm to the child; whether the perpetrator of the harm is
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identifiable; the willingness and ability of the child’s family to effect positive environmental and
personal changes; and whether the child’s family demonstrates adequate parenting skills. Id.
In answering the “best interest portion of the questions,” the jury was instructed to
consider both the statutory and Holley factors. Mother and Father, however, focus their
combined legal and factual sufficiency argument on just the Holley factors. We therefore limit
our discussion to those factors.
At the time of trial, J.D.B. was less than two years old and was too young to express his
desires. But the evidence shows he bonded with Duane and his family and was well-cared for by
them. In re J.M., 156 S.W.3d 696, 706 (Tex. App.—Dallas 2005, no pet.). While he has had
visitation with Mother and Father since the time of his removal from their care, the visits were
limited to a few hours at a time, one or two days each week, and Duane testified J.D.B. was
hesitant around his parents. Duane also described the relationship between J.D.B. and Mother
and Father as “strained.” Duane testified J.D.B. is healthy and growing and that he would adopt
J.D.B. if he were available for adoption. The Department supports J.D.B.’s adoption by Duane.
Mother’s family members testified to their concerns about J.D.B. staying with Duane because of
his character. But the character attacks were not so significant that the jury could not have
reasonably formed a firm belief or conviction that J.D.B.’s placement with Duane was in his best
interest. And the jury is the sole judge of the credibility of those witnesses and was free to
disbelieve their testimony. Importantly, although the family members testified to their concerns
regarding Duane’s character, no person testified that J.D.B. was not well-cared for by Duane.
Further, neither Mother nor Father asked for J.D.B. to be removed from Duane’s care and placed
somewhere else. Nor did any of the family members that testified to their concerns about Duane.
Regarding J.D.B.’s present and future emotional and physical needs and the danger to
him, the evidence shows that while in Mother’s and Father’s care (which was forty-one days),
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J.D.B. suffered twenty-six fractures, a torn frenulum, and scratches to his face. Mother and
Father said they were his primary caregivers, and Mother could account for only an hour when
J.D.B. was not in her care. She saw how he was handled not only by Father but also by other
family members. After J.D.B. was removed from their care, he has had no further injuries. He is
not on any special medications to treat for an underlying bone disease and is growing and
healthy.
Mother and Father consistently denied any knowledge of how J.D.B.’s fractures
occurred, and their explanation for his fractures was rejected by the lab results and the physicians
who treated him. They also denied having any problems that could be addressed by counseling.
The fact-finder may infer from past conduct endangering the child’s well-being that similar
conduct will recur if the child is returned to the parents’ care. In re M.R.J.M., 280 S.W.3d at
502. Frederick was especially troubled by the fact that Mother persisted in explaining the causes
of J.D.B.’s fractures as bone disease and lacked the empathy she would expect to see from a
Mother whose child sustained these types of injuries.
In addition to the evidence presented above, Duane testified that Mother and Father
lacked parental instincts and seemed to struggle caring for J.D.B., even after attending the
parenting classes. Although Mother and Father provided differing testimony as to how the visits
with J.D.B. went, again, they did not dispute that J.D.B. was well-cared for by Duane.
The need for stability and permanence are important considerations in determining a
child’s best interest. See In re T.D.C., 91 S.W.3d 865, 873 (Tex. App.—Fort Worth 2002, pet.
denied). Mother testified to their plans for J.D.B. if he was returned to them. Specifically, the
jury heard that Mother and Father were no longer together; according to Mother, they broke up
because their “future goals for [themselves] and plans for [J.D.B.] were slightly different.” But
she said they are on good terms. Mother stated she and Father would share joint custody of
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J.D.B. with Father clarifying that J.D.B. would primarily reside with Mother. If their parental
rights were terminated, they also asked for J.D.B. to be placed with Mother’s mother, Stephanie,
and Mother’s step-father, Brannon, instead of remaining with Duane. Stephanie and Brannon
were separated at the time of trial. Before Mother and Father broke up, they lived together at
Stephanie’s; after they broke up, Mother moved into an apartment with her new boyfriend, who
has a pending criminal charge.
Brannon claimed that Duane lacked stability because of Brannon’s speculation about
Duane’s employment. Despite Brannon’s claims, the jury heard that Duane had been employed
by the same company for over twenty years and was financially able to provide for J.D.B. The
jury was free to compare the plans for J.D.B. described by Mother and Father with J.D.B.’s
current placement and the Department’s future plans for him, which was for J.D.B. to remain
with Duane. J.D.B. has lived with Duane for the majority of his life, and the evidence showed
that he was thriving in that environment.
In addition to the above, the jury also may have considered the magnitude and
circumstances of J.D.B.’s injuries, which Lang described as severe, and J.D.B.’s vulnerability
because he was an newborn. TEX. FAM. CODE ANN. § 263.307(b)(1), (3). Based on our review
of the record, we conclude the evidence presented at trial and summarized above is legally and
factually sufficient to support the findings that termination of Mother’s and Father’s parental
rights was in J.D.B.’s best interest. See TEX. FAM. CODE ANN. § 161.001(2); Holley, 544 S.W.2d
at 371–72. We overrule Mother’s and Father’s third issue.
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Having overruled Mother’s and Father’s three issues, we affirm the trial court’s judgment
terminating Mother’s and Father’s parental rights.
/Ada Brown/
ADA BROWN
JUSTICE
140037F.P05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
IN THE INTEREST OF J.D.B., A CHILD On Appeal from the 304th Judicial District
Court, Dallas County, Texas
No. 05-14-00037-CV Trial Court Cause No. 12-771-W.
Opinion delivered by Justice Brown.
Justices O’Neill and Myers participating.
In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.
It is ORDERED that appellee, the Texas Department of Family and Protective Services,
recover its costs of this appeal from appellants, Darlyn Ashley Harrell and Adam Zacharus
Bonham.
Judgment entered this 17th day of June, 2014.
/Ada Brown/
ADA BROWN
JUSTICE
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