Opinion
06-22-00011-CV
09-29-2022
IN THE INTEREST OF M.A. AND A.A., CHILDREN
Date Submitted: September 28, 2022
On Appeal from the 76th District Court Camp County, Texas Trial Court No. CPS-20-03563
Before Morriss, C.J., Stevens and van Cleef, JJ.
MEMORANDUM OPINION
CHARLES VAN CLEEF JUSTICE.
After M.A. and A.A. suffered injuries consistent with child abuse, they and Father's other child, W.L., were removed from their home by the Texas Department of Family and Protective Services. About one and one-half years later, on February 1, 2022, the trial court entered an order of termination, terminating the parent-child relationship between M.A. and A.A., and their father, pursuant to Grounds D, E, and O., See Tex. Fam. Code Ann. § 161.001(b)(1)(D), (E), (O). In this appeal, Father asserts that (1) the trial court lost jurisdiction of this case because it was not properly extended under the Texas Supreme Court's emergency orders, (2) there was legally and factually insufficient evidence to support the termination of Father's parental rights under Grounds D and E, and (3) he received ineffective assistance of counsel. Because we find that the trial court properly retained jurisdiction of this case and because Father did not challenge the termination of his parental rights under Ground O or the trial court's best-interest finding, we will affirm that part of the trial court's judgment terminating Father's rights under Ground O. However, because we find that legally sufficient evidence did not support the trial court's termination of Father's parental rights under Grounds D and E, we reverse that part of the trial court's judgment terminating Father's parental rights under those Grounds.
We refer to the minor children by their initials and to their family members by pseudonyms. See Tex. R. App. P. 9.8.
Father's parental rights to M.A. and A.A. were terminated in the trial court's cause number CPS-20-03563, which is on appeal under our cause number 06-22-00011-CV. His parental rights to W.L. were terminated in the trial court's cause number CPS-18-03104, which is on appeal under our cause number 06-22-00012-CV. The two cases were consolidated for trial.
The Department also sought the termination of the parental rights of M.A.'s and A.A.'s Mother. However, the trial court incorporated the terms of a mediated settlement agreement between the Department, the children's Mother, and their paternal grandparents, who had intervened in the suit, in its final order. Under the final order and the marital settlement agreement (MSA), the children's Mother was appointed the permanent managing conservator of the children, and the paternal grandparents were appointed their possessory conservator.
Father also asserted that the termination order violated the Indian Child Welfare Act because proper notifications were not given as required by the ICWA and because there had not been a determination of the children's status under that Act. We agreed and abated this appeal to the trial court with instructions to give proper notifications under the ICWA and to determine the status of the children under the ICWA. After proper notices were given and the trial court determined that neither child was an Indian child as defined by the ICWA, the appeal was returned to this court.
I. Jurisdiction Was Properly Retained
The Department filed its original petition seeking termination of Father's parental rights to M.A. and A.A. on July 27, 2020. On that same date, the trial court entered its temporary order appointing the Department as temporary managing conservator of M.A. and A.A. On July 15, 2021, the trial court entered its order retaining the suit on its docket pursuant to the Texas Supreme Court's Thirty-Eighth Emergency Order Regarding the COVID-19 State of Disasterand extended the dismissal date to April 1, 2022.
See Thirty-Eighth Emergency Order Regarding the COVID-19 State of Disaster, 629 S.W.3d 900 (Tex. 2021).
Initially, Father asserts that the trial court lost jurisdiction of this case because, in its order retaining the case, it failed to find that extraordinary circumstances necessitated the extension of the dismissal date and that the extension was in the best interest of the children, as required by Section 263.401(b) of the Texas Family Code. Although Father acknowledges that the case was extended pursuant to the thirty-eighth emergency order, he argues that, under that emergency order, the trial court was required to comply with Section 263.401(b) in order to extend the initial dismissal date provided in Section 263.401(a). See Tex. Fam. Code Ann. § 263.401(a), (b) (Supp.). Since the trial court did not make the findings required by Section 263.401(b), he argues, the trial court lost jurisdiction of the case, and the termination order is void.
Because a court's jurisdiction to decide a case is a question of law, we conduct a de novo review. In re E.N., No. 06-18-00019-CV, 2018 WL 3384381, at *2 (Tex. App.-Texarkana July 12, 2018, no pet.) (mem. op.) (citing City of Houston v. Rhule, 417 S.W.3d 440, 442 (Tex. 2013); Hearts Bluff Game Ranch, Inc. v. State, 381 S.W.3d 468, 476 (Tex. 2012)). In a suit in which the Department has been appointed temporary managing conservator of a child, Section 263.401(a) provides that a trial court loses jurisdiction over the suit "on the first Monday after the first anniversary of the date the court rendered a temporary order appointing the department as temporary managing conservator," unless it has either "commenced the trial on the merits or granted an extension under Subsection (b) or (b-1)." Tex. Fam. Code Ann. § 263.401(a). When those requirements have not been met, "'the suit is automatically dismissed without a court order' on that same date, and any orders after that date would be void." In re G.X.H., 627 S.W.3d 288, 296 (Tex. 2021) (quoting Tex. Fam. Code Ann. § 263.401(a)). Section 263.401(b) provides that a trial court may extend the dismissal date for 180 days only if it finds "(1) extraordinary circumstances necessitate the children remaining in the Department's temporary managing conservatorship, and (2) continuing the appointment of the Department as temporary managing conservator is in the children's best interest." Id. (citing Tex. Fam. Code Ann. § 263.401(b)).
Nevertheless, because of the COVID-19 pandemic, the Texas Supreme Court has issued a series of emergency orders allowing courts to modify these deadlines and procedures. See, e.g., First Emergency Order Regarding the COVID-19 State of Disaster, 596 S.W.3d 265 (Tex. 2020) (order dated March 13, 2020, stating that courts may "[m]odify or suspend any and all deadlines and procedures, whether prescribed by statute, rule, or order"); Third Emergency Order Regarding the COVID-19 State of Disaster, 596 S.W.3d 266, 267 (Tex. 2020) (order dated March 19, 2020, clarifying that authorization to modify or suspend deadlines and procedures "applies to all proceedings under Subtitle E, Title 5, of the Family Code, and specifically, to the deadlines in Section 263.401"). The thirty-eighth emergency order was issued on May 26, 2021, and provided, in relevant part:
4. In any proceeding under Subtitle E, Title 5 of the Family Code, all deadlines and procedures must not be modified or suspended, unless permitted by statute, after August 1, 2021, except the dismissal date may be extended as follows:
a. for any such proceeding that, on the date of this Order, has a dismissal date that was previously modified under a prior Emergency Order Regarding the COVID-19 State of Disaster, the court may extend the dismissal date for a stated period ending no later than December 1, 2021;
b. for any such proceeding that, on the date of this Order, has been previously retained on the court's docket pursuant only to Section 263.401(b) or (b-1), the court may extend the dismissal date for a stated period ending no later than February 1, 2022;
c. for any such proceeding that, on the date of this Order, has not been previously retained on the court's docket pursuant to Section 263.401(b) or (b-1), the court may extend the initial dismissal date as calculated under Section 263.401(a) for a stated period ending no later than April 1, 2022; or
d. for any such proceeding that is filed on or after the date of this Order, the court may extend the initial dismissal date as calculated under Section 263.401(a) only as provided by Section 263.401(b) or (b-1).
Thirty-Eighth Emergency Order, 629 S.W.3d at 900-01.
In this case, because the Department was appointed temporary managing conservator on July 27, 2020, the initial dismissal date under Section 263.401(a) was August 2, 2021. The trial court timely entered its order retaining the suit on its docket on July 15, 2021. The trial court entered its order pursuant to the thirty-eighth emergency order but did not specifically find that extraordinary circumstances necessitated the children remaining in the Department's temporary managing conservatorship or that continuing the appointment of the Department as temporary managing conservator was in the children's best interests, as required by Section 263.401(b).
Father contends that, without the findings required by Section 263.401(b), the trial court could not retain the suit on its docket, so it lost jurisdiction on August 2, 2021. Father does not contest that the Texas Supreme Court had the authority to modify or suspend the deadlines and procedures in Section 263.401. See Tex. Gov't Code Ann. § 22.0035 (Supp.) ("Notwithstanding any other statute, the supreme court may modify or suspend procedures for the conduct of any court proceeding affected by a disaster during the pendency of a disaster declared by the governor."). Rather, he contends that, after the Supreme Court's eighteenth emergency order, the trial court was required to comply with Section 263.401(b) in order to extend the initial dismissal date provided in Section 263.401(a).
Our sister courts of appeals have recognized that the Supreme Court's emergency orders allow a trial court to modify or suspend the deadlines and procedures in Section 263.401. See E.N. v. Tex. Dep't of Family & Protective Servs., No. 03-21-00014-CV, 2021 WL 2460625, at *5 (Tex. App.-Austin June 17, 2021, no pet.) (mem. op.); In re E.C.R., 638 S.W.3d 755, 766 (Tex. App.-Amarillo 2021, pet. denied); In re M.M., No. 02-21-00153-CV, 2021 WL 4898665, at *1 n.3 (Tex. App.-Fort Worth Oct. 21, 2021, pet. denied) (mem. op.).
The eighteenth emergency order allowed courts to,
b. in all proceedings under Subtitle E, Title 5 of the Family Code:
(i) extend the initial dismissal date as calculated under Section 263.401(a) only as provided by Section 263.401(b) or (b-1);
(ii) for any case previously retained on the court's docket pursuant to Section 263.401(b) or (b-1), or for any case whose dismissal date was previously modified under an Emergency Order of this Court related to COVID-19, extend the dismissal for an additional period not to exceed 180 days from the date of this Order;Eighteenth Emergency Order Regarding the COVID-19 State of Disaster, 609 S.W.3d 122, 123 (Tex. 2020). Subsequent emergency orders through the thirty-sixth emergency order contained identical provisions. See, e.g., Twenty-Ninth Emergency Order Regarding the COVID-19 State of Disaster, 629 S.W.3d 863, 863-64 (Tex. 2020); Thirty-Third Emergency Order Regarding the COVID-19 State of Disaster, 629 S.W.3d 179, 180 (Tex. 2021); Thirty-Sixth Emergency Order Regarding the COVID-19 State of Disaster, 629 S.W.3d 897 (Tex. 2021).
However, the thirty-eighth emergency order, which was issued on May 26, 2021, provided that only in those proceedings under Subtitle E, Title 5, of the Family Code that were "filed on or after the date of [that] Order" was the trial court allowed to "extend the initial dismissal date as calculated under Section 263.401(a) only as provided by Section 263.401(b) or (b-1)." Thirty-Eighth Emergency Order, 629 S.W.3d at 901. In other words, under the thirty-eighth emergency order, only in cases filed on or after May 26, 2021, was the trial court required to make the findings under Section 263.401(b) in order to extend the dismissal date.
This proceeding, however, was pending on May 26, 2021, and had not previously been retained pursuant to Section 263.401(b) or (b-1). For such a proceeding, the thirty-eighth emergency order provided only that "the court may extend the initial dismissal date as calculated under Section 263.401(a) for a stated period ending no later than April 1, 2022." Id. In other words, for proceedings such as this one, the procedures required under Section 263.401(b) and (b-1) were suspended while the thirty-eighth emergency order was in effect. For that reason, the trial court was not required to make the findings under Section 263.401(b) in order to extend the dismissal date.
The thirty-eighth emergency order was renewed as amended by the fortieth emergency order on July 19, 2021. Fortieth Emergency Order Regarding the COVID-19 State of Disaster, 629 S.W.3d 911-12 (Tex. 2021).
Since the trial court properly and timely extended the initial deadline to April 1, 2022, and the trial of this case commenced before that date, we find that the trial court retained jurisdiction over this case. We overrule this issue.
II. Termination of Father's Parental Rights Under Ground O Must Be Affirmed
"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." In re E.J.Z., 547 S.W.3d 339, 343 (Tex. App.- Texarkana 2018, no pet.) (citing Tex. Fam. Code Ann. § 161.001; In re E. N.C. , 384 S.W.3d 796, 798 (Tex. 2012)). "Only one predicate finding under Section 161.001[b](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 L.E.S., 471 S.W.3d 915, 920 (Tex. App.-Texarkana 2015, no pet.) (quoting In re O.R.F., 417 S.W.3d 24, 37 (Tex. App.-Texarkana 2013, pet. denied)). When the trial court makes findings that multiple statutory grounds support termination of parental rights and the appellant does not challenge all of the statutory grounds found, we will affirm the trial court's termination order based on the unchallenged statutory ground, if the trial court's best-interest finding is also unchallenged. See In re A.G.-U., No. 06-17-00078-CV, 2017 WL 5473766, at *1 (Tex. App.-Texarkana Nov. 15, 2017, no pet.) (mem. op.) (order terminating parental rights affirmed when parent did not challenge trial court's findings on one statutory ground and best interest); B.H.-L. v. Tex. Dep't of Fam. & Protective Servs., No. 03-17-00772-CV, 2018 WL 1278720, at *1-2 (Tex. App.-Austin Mar. 13, 2016, no pet.) (mem. op.) (same).
Father did not challenge the trial court's finding that his parental rights should be terminated under Ground O or that termination was in the best interest of M.A. and A.A. For that reason, we affirm the trial court's order terminating Father's parental rights under Ground O.
III. Trial Court's Findings Under Grounds D and E Are Not Supported by Legally Sufficient Evidence
Although only one statutory ground finding is necessary to support a judgment of termination, in In re N.G., "the Texas Supreme Court held that due process demands that we review the evidence supporting findings under Grounds D and E when they are challenged on appeal because termination of parental rights under these Grounds 'may have implications for . . . parental rights to other children.'" In re L.W., 609 S.W.3d 189, 195-96 (Tex. App.- Texarkana 2020, no pet.) (quoting In re N.G., 577 S.W.3d 230, 234 (Tex. 2019) (per curiam)). Father has challenged the legal and factual sufficiency of the evidence supporting the trial court's findings under Grounds D and E. Father argues that, although there was evidence that M.A. and A.A. had received significant injuries and that Father and his mother were the primary caregivers of the children, there was no evidence of when those injuries occurred or who had possession of the children when the injuries occurred. Since Father, his mother, and the twins' Mother all had possession and access to the children and there was no evidence showing who caused the injuries or who had possession of the children when the injuries occurred, Father contends that the evidence was insufficient to support the trial court's findings under Grounds D and E. The Department relied on Ground O supporting the termination judgment and did not address the sufficiency of evidence supporting the trial court's findings under Grounds D and E.
See Tex. Fam. Code Ann. § 161.001(b)(1)(M) (court may terminate parental rights of a parent who has had his or her parental rights to another child terminated under Ground D or E).
A. Standard of Review
"The natural right existing between parents and their children is of constitutional dimensions." In re E.J.Z., 547 S.W.3d at 343 (quoting 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.'" Id. (quoting Troxel v. Granville, 530 U.S. 57, 65 (2000)). "Because the termination of parental rights implicates fundamental interests, a higher standard of proof-clear and convincing evidence-is required at trial." Id. (quoting In re A.B., 437 S.W.3d 498, 502 (Tex. 2014)). This Court is 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. (quoting In re A.B., 437 S.W.3d at 500). "[I]nvoluntary termination statutes are strictly construed in favor of the parent." Id. (quoting In re S.K.A., 236 S.W.3d 875, 900 (Tex. App.-Texarkana 2007, pet. denied)).
The Family Code requires the trial court's findings on the statutory grounds for termination to be supported by clear and convincing evidence. Tex. Fam. Code Ann. § 161.001(b); In re E. N.C. , 384 S.W.3d at 798. "'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.'" In re E.J.Z., 547 S.W.3d at 343 (quoting Tex. Fam. Code Ann. § 101.007) (citing In re J.O.A., 283 S.W.3d 336, 344 (Tex. 2009)). "This standard of proof necessarily affects our review of the evidence." Id.
"In our legal sufficiency review, we consider all the evidence in the light most favorable to the findings to determine whether the fact-finder reasonably could have formed a firm belief or conviction that the grounds for termination were proven." In re L.E.S., 471 S.W.3d 915, 920 (Tex. App.-Texarkana 2015, no pet.) (citing In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005) (per curiam); In re J.L.B., 349 S.W.3d 836, 846 (Tex. App.-Texarkana 2011, no pet.)). "We assume the trial court, acting as fact-finder, resolved disputed facts in favor of the finding, if a reasonable fact-finder could do so, and disregarded evidence that the fact-finder could have reasonably disbelieved or the credibility of which reasonably could be doubted." Id. (citing In re J.P.B., 180 S.W.3d at 573).
A no evidence point will be sustained when (a) there is a complete absence of evidence of a vital fact, (b) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact, (c) the evidence offered to prove a vital fact is no more than a mere scintilla, or (d) the evidence conclusively establishes the opposite of the vital fact.King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003) (quoting Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997)). "Less than a scintilla of evidence exists when the evidence is 'so weak as to do no more than create a mere surmise or suspicion' of a fact." Id. (quoting Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983)). "More than a scintilla of evidence exists when the evidence 'rises to a level that would enable reasonable and fair-minded people to differ in their conclusions.'" Id. (quoting Merrell Dow Pharms., 953 S.W.2d at 711).
"In our review of factual sufficiency, we give due consideration to evidence the trial court could have reasonably found to be clear and convincing." In re L.E.S., 471 S.W.3d at 920 (citing In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006) (per curiam)). "We consider only that evidence 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 H.R.M., 209 S.W.3d at 108)). "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." Id. (quoting In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002)). In making this determination, we undertake "an exacting review of the entire record with a healthy regard for the constitutional interests at stake." Id. (quoting In re A.B., 437 S.W.3d at 503).
B. Requirements Under Grounds D and E
"Termination under Ground D is proper when there is clear and convincing evidence that a parent has 'knowingly placed or knowingly allowed the child to remain in conditions or surroundings which endanger the physical or emotional well-being of the child.'" In re D.R., 631 S.W.3d 826, 833 (Tex. App.-Texarkana 2021, no pet.) (quoting Tex. Fam. Code Ann. § 161.001(b)(1)(D)). "Under [Ground D], we must examine the time before the child[]'s removal to determine whether the environment itself posed a danger to the child's physical or emotional well-being." In re L.C., 145 S.W.3d 790, 795 (Tex. App.-Texarkana 2004, no pet.). "A child is endangered when the environment creates a potential for danger that the parent is aware of, but disregards." In re N.B., No. 06-12-00007-CV, 2013 WL 1605457, at *9 (Tex. App.-Texarkana May 8, 2012, no pet.) (mem. op.). "[S]ubsection (D) permits termination [of parental rights] based on a single act or omission [by the parent]." In re L.C., 145 S.W.3d at 797; see In re A.B., 125 S.W.3d 769, 776 (Tex. App.-Texarkana 2003, pet. denied). "'[A]busive or violent conduct by a parent or other resident of a child's home can produce an environment that endangers the physical or emotional well-being of a child.'" In re B.E.T., No. 06-14-00069-CV, 2015 WL 495303, at *5 (Tex. App.-Texarkana Feb. 5, 2015, no pet.) (mem. op.) (quoting In re B.R., 822 S.W.2d 103, 106 (Tex. App.-Tyler 1991, writ denied)).
Termination under Ground E requires clear and convincing evidence that the parent "engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangers the physical or emotional well-being of the child." Tex. Fam. Code Ann. § 161.001(b)(1)(E). "'Endanger' means to expose to loss or injury; to jeopardize." Tex. Dep't of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987); In re L.E.S., 471 S.W.3d at 923; In re N.S.G., 235 S.W.3d 358, 367 (Tex. App.-Texarkana 2007, no pet.). "It is not necessary that the conduct be directed at the child or that the child actually suffer injury." In re L.E.S., 471 S.W.3d at 923. "Under subsection (E), it is sufficient that the child's well-being is jeopardized or exposed to loss or injury." Id. (citing Boyd, 727 S.W.2d at 533; In re N.S.G., 235 S.W.3d at 367). "Further, termination under subsection (E) must be based on more than a single act or omission. Instead, a 'voluntary, deliberate, and conscious course of conduct by the parent is required.'" Id. (quoting Perez v. Tex. Dep't of Protective & Regulatory Servs., 148 S.W.3d 427, 436 (Tex. App.-El Paso 2004, no pet.)); see Boyd, 727 S.W.2d at 533; In re N.S.G., 235 S.W.3d at 366-67.
"[Subsection E] refers only to the parent's conduct, as evidenced not only by the parent's acts, but also by the parent's omissions or failures to act." In re S.K., 198 S.W.3d 899, 902 (Tex. App.-Dallas 2006, pet. denied); see In re N.S.G., 235 S.W.3d at 366-67. "The conduct to be examined includes what the parent did both before and after the child was born." In re S.K., 198 S.W.3d at 902; see In re N.S.G., 235 S.W.3d at 367. "To be relevant, the conduct does not have to have been directed at the child, nor must actual harm result to the child from the conduct." In re Z.M., 456 S.W.3d 677, 686 (Tex. App.-Texarkana 2015, no pet.) (quoting Perez, 148 S.W.3d at 436); see In re E. N.C. , 384 S.W.3d at 803; In re N.S.G., 235 S.W.3d at 367.
C. Analysis
In the unusually brief final hearing, the Department first elicited testimony from Krystal Hosmer, an employee of CASA, who testified that she had been present at a September 1, 2020, adversary hearing in which she heard the testimony of Dr. Elizabeth Peeler. Without objection, she agreed that she heard Peeler say that A.A. had a fracture of the right femur above the knee that was caused by forceful yanking or pulling, that A.A. had a buckle fracture of the right tibia close to the top of the knee, that A.A. had a left tibia fracture caused by yanking or pulling of the foot, that A.A. had left posterior broken sixth, seventh, and eighth ribs caused by compression of the chest, that A.A. had conjunctival hemorrhage of the left eye caused by punching or gouging, and that A.A.'s injuries were not caused at birth and were caused by more than one episode.
The total testimony consisted of less that twenty-nine pages in the single-volume reporter's record.
Court Appointed Special Advocates. Hosmer did not disclose her position at CASA.
Hosmer also agreed, again without objection, that she heard Peeler testify that M.A. had right posterior fractures of the eighth and ninth ribs caused by compression that were not caused by birth. She also identified Exhibit P-1 as Peeler's affidavit concerning the injuries of A.A. and Exhibit P-2 as Peeler's affidavit concerning the injuries of M.A. Exhibits P-1 and P-2 were admitted without objection. Hosmer also testified that she heard the testimony of Stephanie Castro, an investigator for the Department, at the same hearing. She agreed that she heard Castro testify that Father was involved in another investigation concerning a child, for whom he was a caregiver, who had swollen eyes, hemorrhages, and bruising to her cheek and clavicle. Hosmer also agreed that the testimony at the adversary hearing was that Father was the primary caretaker of A.A., M.A., and W.L.
In addition to discussing her examination of A.A. and A.A.'s injuries that was consistent with the above testimony, Peeler's affidavit stated that A.A. was a three-month-old twin baby girl who presented to Children's Medical Center Dallas on July 24, 2020, for leg swelling and that Peeler had spoken with A.A.'s mother, examined A.A., and reviewed medical records. The affidavit also stated,
Mother stated [A.A.] was healthy until Monday (7/20/2020). Mother stated [A.A.] developed facial swelling therefore Father and paternal grandmother brought her to the ER at Pittsburg where she was diagnosed with an allergic reaction. Mother stated she was not able to go [to] the ER because she was working. . . . Per Mother it was not until Tuesday (7/21/2020) morning upon waking that the family noticed that [A.A.]'s right leg was "swollen," "huge," and that "she wasn't moving it at all."
Per review of the medical records from the pediatrician's office from 7/23/2020, [A.A.] was brought in by Dad and grandmother for concerns of leg swelling first noticed one day prior during a diaper change. An x-ray of the right femur was performed which revealed soft tissue swelling but no fracture. Per documentation, [A.A.] was referred to the ED for further testing.
Per review of the medical records from Titus Regional ER on 7/23/2020, [A.A.] had bloodwork and x-rays performed. X-rays of the pelvis were read as soft tissue swelling about the right lateral thigh but no fractures. Blood work revealed a white blood cell count of 19,500 and CRP of 5.8 (markers of inflammation).
Per review of the medical records from Imaging Plus Mt Pleasant on 7/24/2020, blood work and a CT of the right femur [were] performed. The CT was read as diffuse soft tissue swelling and joint effusion worrisome for septic joint but with no bony fractures.In her affidavits, Peeler also opined that the injuries suffered by the twins were consistent with child physical abuse.
On cross-examination, Hosmer agreed that there was no testimony regarding who caused the injuries to the children and that she did not know if it was Father, the twins' Mother, the paternal grandmother, or the paternal grandfather. She also agreed that there was no testimony regarding when the injuries occurred. She acknowledged that the twins' Mother was working in the area at the time and that it was never proven who caused the twins' injuries.
The twins' Mother testified that the twins were removed in 2020 and that they had been injured. She was at work when they were taken to the emergency room. While she was working, Father and his mother were the caregivers for the children. She testified that she had worked and completed her services and that the twins were back in her care. She also testified that she had a divorce pending but that Father refused to cooperate. She did not believe that the paternal grandparents or W.L.'s mother caused any harm to the twins.
Julie Morriss, a supervisor with the Department, testified as to what services Father was required to complete under his family service plans in both this case and the case involving W.L. Of his required services, Father only completed his psychological evaluation and parenting classes. He was unsuccessfully dismissed from counseling, and he quit doing any services in December 2020. Morriss testified that, as a result, his visitation with the children was suspended. Father had stopped communicating with the Department, refused to say where he was living, and had not accepted any responsibility for the children's removal. She recommended termination of Father's parental rights because he had not worked his services and had not been involved in the children's lives since December 2020. She also testified that he had been indicted for A.A.'s injuries. Although she admitted that there had been no allegations of any injuries to W.L. and that W.L. had a relationship with Father, she testified that it was in all of the children's best interests to terminate Father's parental rights.
Sharon Jones, the CASA volunteer in this case and the case involving W.L., also testified that, in her opinion, termination of Father's parental rights was in the best interests of the children because he had plenty of time to complete his services, stopped his visits, and did not maintain a job. She claimed that, based on Peeler's affidavit, W.L. had seen things that were disturbing to her mental health. She also testified that W.L. needed to feel secure, which she did with her grandparents, who also met her physical and emotional needs. Jones also noted that M.A. and A.A. were three and one-half months old when they were removed and that they had not bonded with Father. Although she testified that W.L. loved Father, she also noted that W.L. needed stability and security.
Peeler's affidavits do not mention W.L.
On cross-examination, she admitted that it was unknown who caused the twins' injuries, when the injuries happened, or who was in charge of the twins when the injuries occurred. She also admitted that the injuries could have occurred when they were under the care of Father, his mother, or the twins' Mother.
This record shows that, during the first three months of M.A.'s and A.A.'s lives, they suffered significant injuries that were consistent with child abuse. However, there was no evidence of who caused the injuries, when the injuries occurred, or who was caring for the twins when the injuries occurred. The twins' Mother testified that the twins were under the care of Father and his mother when A.A. was taken to the emergency room, and Peeler's affidavit indicated that it was Father and his mother who took A.A. to the pediatrician and to the emergency room because of her swollen right leg. However, this evidence would do no more than create a mere surmise or suspicion that Father caused A.A.'s injuries or that she was under his care when they occurred. See King Ranch, Inc., 118 S.W.3d at 751.
Even construing this record in the light most favorable to the trial court's findings, the evidence was not legally sufficient to support an inference (1) that Father caused the injuries to the twins, (2) that the injuries occurred during his care, (2) that he knowingly placed the twins in an endangering environment, (3) that he allowed the twins to remain in an endangering environment, or (4) that he knowingly placed the twins with persons whose conduct endangered them. For that reason, we find that a reasonable fact-finder could not have formed a firm belief or conviction that Grounds D and E were proven. See In re L.E.S., 471 S.W.3d at 920. Because no evidence supported the trial court's findings, we find that the evidence was not legally sufficient to support the trial court's findings under Grounds D and E. We sustain these issues and reverse that portion of the trial court's judgment terminating Father's parental rights under Grounds D and E.,
Because we have found that the evidence was not legally sufficient to support the trial court's findings under Grounds D and E, we need not address Father's contention that the evidence was factually insufficient to support these findings. See Windrum v. Kareh, 581 S.W.3d 761, 781 (Tex. 2019).
Father also complains that he received ineffective assistance of counsel because his trial counsel failed to object to the hearsay statements of Peeler admitted through Hosmer and to the admission of Peeler's affidavits. However, Father asserts that the harm caused by the alleged ineffective assistance was that it was the only evidence that A.A.'s and M.A.'s injuries were consistent with child abuse and therefore supported the termination of his parental rights under Grounds D and E. Since we have reversed the trial court's termination of Father's parental rights under Grounds D and E, we need not address this issue.
IV. Disposition
For the reasons stated, we affirm the trial court's judgment terminating Father's parental rights under Ground O, and we reverse the trial court's judgment terminating Father's parental rights under Grounds D and E.