In the Interest of K.G. and K.G., Children Appeal from 235th District Court of Cooke County (memorandum opinion by chief justice livingston)

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COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH NO. 02-16-00296-CV IN THE INTEREST OF K.G. AND K.G., CHILDREN ---------FROM THE 235TH DISTRICT COURT OF COOKE COUNTY TRIAL COURT NO. 14-00642 ---------- MEMORANDUM OPINION1 ---------Mother brings three issues and Father brings four issues in this appeal of the termination of their parental rights to their two children, Robert and Sharon, after a bench trial. See Tex. R. App. P. 9.8(b)(2) (requiring court of appeals to protect identity of child in termination appeal by using pseudonyms). We affirm. Robert, a three-month-old infant, and his toddler sister Sharon were removed from Mother and Father’s care after Robert was admitted to the hospital twice in a three-week period and the hospital discovered that he had eleven 1 See Tex. R. App. P. 47.4. fractures in various states of healing. Because Mother’s issues and Father’s first three issues challenge the legal and factual sufficiency of the evidence supporting the termination grounds found by the trial court, we will set forth the pertinent facts in our discussion of those issues. Applicable Law and Standard of Review Termination decisions must be supported by clear and convincing evidence. See Tex. Fam. Code Ann. § 161.001(b) (West Supp. 2016), § 161.206(a) (West 2014); In re E.N.C., 384 S.W.3d 796, 802 (Tex. 2012). Due process demands this heightened standard because “[a] parental rights termination proceeding encumbers a value ‘far more precious than any property right.’” In re E.R., 385 S.W.3d 552, 555 (Tex. 2012) (quoting Santosky v. Kramer, 455 U.S. 745, 758–59, 102 S. Ct. 1388, 1397 (1982)); In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002); see also E.N.C., 384 S.W.3d at 802. Evidence is clear and convincing if it “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); E.N.C., 384 S.W.3d at 802. For a trial court to terminate a parent-child relationship upon the petition of the Department of Family and Protective Services, the Department must establish by clear and convincing evidence that the parent’s actions satisfy one ground listed in family code section 161.001(b)(1) and that termination is in the best interest of the child. Tex. Fam. Code Ann. § 161.001(b); E.N.C., 384 S.W.3d at 803; In re J.L., 163 S.W.3d 79, 84 (Tex. 2005). Both elements must 2 be established; termination may not be based solely on the best interest of the child as determined by the trier of fact. Tex. Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987); In re C.D.E., 391 S.W.3d 287, 295 (Tex. App.— Fort Worth 2012, no pet.). In evaluating the evidence for legal sufficiency in parental termination cases, we determine whether the evidence is such that a factfinder could reasonably form a firm belief or conviction that the Department proved the challenged ground for termination. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005). We review all the evidence in the light most favorable to the finding and judgment. Id. We resolve any disputed facts in favor of the finding if a reasonable factfinder could have done so. Id. We disregard all evidence that a reasonable factfinder could have disbelieved. Id. We consider undisputed evidence even if it is contrary to the finding. Id. That is, we consider evidence favorable to termination if a reasonable factfinder could, and we disregard contrary evidence unless a reasonable factfinder could not. See id. We cannot weigh witness credibility issues that depend on the appearance and demeanor of the witnesses because that is the factfinder’s province. Id. at 573–74. And even when credibility issues appear in the appellate record, we defer to the factfinder’s determinations as long as they are not unreasonable. Id. at 573. We are required to perform “an exacting review of the entire record” in determining whether the evidence is factually sufficient to support the termination 3 of a parent-child relationship. In re A.B., 437 S.W.3d 498, 500 (Tex. 2014). In reviewing the evidence for factual sufficiency, we give due deference to the factfinder’s findings and do not supplant the judgment with our own. In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). We determine whether, on the entire record, a factfinder could reasonably form a firm conviction or belief that the parent committed an act described in section 161.001(b)(1) and that the termination of the parent-child relationship would be in the best interest of the child. Tex. Fam. Code Ann. § 161.001(b); In re C.H., 89 S.W.3d 17, 28 (Tex. 2002). If, in light of the entire record, the disputed evidence that a reasonable factfinder could not have credited in favor of the finding is so significant that a factfinder could not reasonably have formed a firm belief or conviction in the truth of its finding, then the evidence is factually insufficient. H.R.M., 209 S.W.3d at 108. Applicable Facts Injuries to Mother’s Nieces The evidence showed that Mother’s two- and four-year old nieces, Tabitha and Sheila, stayed with Mother and Father for about a month in February and March 2014. Mother was pregnant with Robert at the time, and Sharon was eight months old; Father’s twenty-five year old cousin James was also living with them. A CPS investigator testified that she was called to Cook Children’s Hospital to investigate injuries to Tabitha and Sheila that their mother had discovered the day she picked them up from Mother and Father; both of the girls 4 were admitted to the hospital for their injuries. The investigator testified that those injuries included several linear marks, some red, that appeared to be healing and were consistent with whipping; round marks that appeared to be cigarette burns; ringworm; and some bruising. One of the girls had a cigarette burn on her right cheek close to the lips. She also had a burn on the top of her hand. The other child had a “busted” lip. Some of the girls’ wounds were healing by the time they were admitted; thus, the injuries had not happened in the hours before they were admitted. The investigator was present at an interview with Tabitha, who identified Mother as the person who caused her busted lip. Tabitha also said she saw Father burn Sheila’s hand with a lighter and that both Mother and Father “spanked her” and gave her “whoopings.” According to the investigator, the girls’ injuries were consistent with what Tabitha had said. Lindsey Dula, the forensic interviewer who interviewed Tabitha, did not think Tabitha had been coached and also thought that Tabitha seemed to have a low level of suggestibility. CPS found “reason to believe” that both Mother and Father had engaged in “physical abuse and physical neglect of both children.” It ruled out abuse of Mother and Father’s daughter Sharon “but determined that the risk was high due to the injuries sustained by the other two children.” Father testified that at the time of trial, he was under indictment for injury to a child as a result of Tabitha’s and Sheila’s injuries. Father admitted that he had said that he was not happy Mother agreed to watch the girls. But Father denied 5 that either he or Mother caused the girls’ injuries or even disciplined them. He also denied that he or Mother used drugs or got drunk while the girls lived with them. According to Father, Sheila’s hand was burned while she and Tabitha were in the bathroom washing their hands. He and Mother were in the kitchen, and one of the girls ran out of the bathroom screaming, but only for about two seconds. He and Mother noticed later that there was a burn on the child’s hand and got cream for it from Mother’s obstetrician. Although Father admitted smoking cigarettes, he denied knowing that Tabitha and Sheila had cigarette burns on them. Father said that while Mother’s nieces were staying with them, he or Mother could have left them for very a short time with either James or another of his cousins, Mary. Father testified that he did not know of any problems with Tabitha and Sheila until CPS contacted him and Mother. He did not believe that Mother had abused her nieces. Neither Mother nor Father was working when her nieces were living with them. Mother denied striking either niece and said she only gave them timeouts. Mother also denied ever using drugs or being drunk while Tabitha and Sheila were in her and Father’s care. Mother said she had never seen Father act inappropriately with her nieces and that she had never seen James act violently. According to Mother, what CPS and medical staff believed to be a cigarette burn on Sheila was probably ringworm, and the girls’ bruises were from backyard play; she also thought the girls had “ant bites” on them when they first arrived. Mother 6 denied seeing lash-like marks on at least one of the girls, but she admitted that she was the one giving the girls baths and changing their diapers. Mother testified that both Father and James smoked cigarettes. A Cook Children’s pediatric nurse practitioner testified that it was unlikely the burn to Sheila’s hand was caused by hot water under a faucet because of the quick reflex a child would have to pull her hand away and also because there did not appear to be any splash marks around the same area. Circumstances After Robert’s Birth When Robert was born, Father and Mother lived in Father’s grandmother’s house. Robert was born in August 2014 and stayed in the NICU for about a month. The hospital made a referral to CPS during that time because Mother and Father were not engaging with Robert, and Mother refused the hospital’s request that she stay overnight with Robert the night before he was discharged. Father admitted that he did not think Robert was his child at first and that he thought Mother had had an affair. Father admitted calling Robert vulgar names in Facebook conversations with his cousin Mary; an exhibit containing many of those messages was admitted into evidence. Partly because of Father’s belief that Robert was not his child—and according to Mother and Father, because of Mother’s work schedule—when Robert was released from the NICU, he did not come directly home with Mother 7 and Father; instead, he lived with Father’s cousin Mary.2 Father testified that during that time, Mother saw Robert every day, but he did not because he did not want to get attached to Robert if he was not his child. Mother testified that she had concerns about Mary, who was a home health care worker, because she let her children and one of her immobile clients hold Robert. Mary sometimes took Robert to work with her. On the day before Thanksgiving in 2014, after DNA test results had confirmed that Robert was Father’s child, Robert began living with Mother and Father.3 At the time, Mother, Father, and Sharon were living in a motel room that was about the size of the jury box in the courtroom, with one bathroom. Because there was only one room, Father could not get away from Robert’s crying, and he did not like it. According to Father, Robert cried all the time, and he had problems with breathing and spitting up milk. Father testified that after Robert came to live with them, he “did it all” with regard to Robert’s care. But he also said that he and Mother cared for the children “50/50.” Mother admitted that she and Father were the only people who took care of Robert during this time period. 2 Mother claimed that Robert first lived with her and Father for a couple of weeks until she went back to work and that even after that, Robert lived with her and Father when she was off work. 3 Mother testified that because she was off work for the Thanksgiving holiday, she picked up Robert from Mary, but Robert ended up staying with her and Father after that because she lost her job when Robert went to the hospital the first time on December 1, 2014. 8 Robert was admitted to Cook Children’s hospital in Fort Worth on December 1, 2014 and again on December 18, 2014. CPS removed both Robert and his sister from Mother and Father’s care after the hospital discovered during the December 18 visit that Robert had suffered eleven fractures. Mother’s and Father’s Versions of Robert’s Hospital Visits Mother testified that Robert went to the hospital the first time because he had stopped breathing. The prior night, Robert was throwing up his milk and she tried to give him water, but he threw that up too. The next morning, she called and got a doctor’s appointment, but before they could go, Robert stopped breathing while she was trying to feed him, so she and Father took him to the hospital in Gainesville, where they lived. According to Mother, Father was in the motel room watching Sharon when Robert stopped breathing. Mother testified that Robert had a chest X-ray at the Gainesville hospital; the staff there said he was fine, released him without a diagnosis, and told Mother to keep his scheduled doctor’s appointment. According to Mother, Robert’s doctor suggested they take him to Cook Children’s in Fort Worth, but he “went faint” again, so the doctor called an ambulance. The ambulance took Robert to Cook Children’s, who then transferred him to Children’s Medical in Dallas. Mother testified that Robert was at Children’s Medical in Dallas for almost a week with RSV and pneumonia. 9 Father testified that the first time Robert went to the hospital, he “had [an] episode” in front of his pediatrician, so she called the ambulance.4 Before taking Robert to the hospital, Father performed CPR on him at the motel. Father described the event as follows: I know he was laying on the bed. I can’t remember if I held the back of his head or I just kept him flat on the bed. And I remember like feeling on his stomach to see if he was breathing or, you know, he was just struggling to breathe or whatever. And I believe I used my palm, and I just, you know, just -- you know, pressed on him a couple of times, and I breathed in his, you know, in his mouth. But I don’t think I did that maybe like two or three times. .... . . . He actually -- I think he started breathing like after the second time but, you know, he couldn’t really just get nothing out, you know, he was struggling so, you know, I did it again. According to Father, after Robert got back from Children’s Medical the first time, he was fine if he took his medicine, and he did not cry as much. But he still had difficulty breathing. Two days after Mother and Father returned home with Robert, they went back to the hospital in Gainesville because he stopped breathing again. Mother had just moved into an apartment the day before. According to Mother, they were at the apartment, and Father was feeding Robert in his car seat when he stopped breathing. She was in the bathroom with Sharon at the time. Father told her, “[He’s] doing it again,” took Robert out of his car seat, and brought him 4 However, Father also testified that he and Mother took Robert to a nurse practitioner, who, according to Father, was more concerned with Robert’s lack of weight gain, which is why he initially was sent to Cook Children’s. 10 into the living room. Robert was not moving, his eyes were closed, and he looked lifeless. Mother called 911 and Father gave Robert CPR. Father was able to resuscitate Robert, and she and Father took him to the hospital in Gainesville. According to Mother, the same scenario as before occurred; the hospital discharged Robert, she and Father took him to his doctor, and his doctor then transferred him to Cook Children’s. Father described the second episode as follows: When we got up, we got up like around 8:00, 8:30, and I went to his room and got him out the bed, put him in the car seat. And took him into our room. Went and got his medicine out the kitchen. Came back, gave him medicine, and we were told to wait, you know, 15 minutes after to feed him. So I went into the kitchen, started making his bottle, and I left it there, you know, he was still crying. You know, I go back one time, check on him, then I leave and I go outside -- not outside, on the balcony and I smoke and I come back. I said something to [Sharon] and [Mother], and then I said, well, did you feed him? Because, you know, he stopped crying, so she’s like, no. So I was like, you know, forget the 15 minutes, you know, whatever. So I get his bottle and I go in there and, you know, I’m talking to him because his eyes are open, you know, how, you know, kind of tease him or whatever. And then I picked him up and then, you know, that’s when I realized that, you know, he wasn’t moving . . . . Father also testified that Robert was limp, clammy, and not breathing. He was “real warm.” Father described performing CPR on Robert the second time: I don’t think I -- I mainly forgot to put my hand behind his head or whatever and I just -- I breathed in his mouth first and I, you know, kind of like pressed down on his chest or, you know -- but I didn’t like press down how I’m supposed to. I kind of like pressed up instead of pressing down, you know, I don’t know if that’s right or whatever, but I did that like five or six times. 11 Father did not know exactly how he used his hand to perform CPR, but he did not use his fingers. Both Mother and Father denied breaking Robert’s bones or shaking him. And neither believed that the other caused the injuries intentionally. Mother thought Robert’s injuries occurred while Father was performing CPR; Father said that was the only thing he could think of that would have caused Robert’s injuries. According to Mother, Father was “pumping” Robert; his hands were big and “all over” Robert, even his knees. Mother testified that she had become certified in infant CPR after the children’s removal but Father had not; she knew that infant CPR was supposed to be done with the fingers rather than the entire hand. Mother said that when Robert was discharged from the NICU one month after his birth, someone at the hospital showed them basic CPR but never discussed with them how to do infant CPR. According to Mother, the demonstration consisted of wiggling the child’s leg a little bit and asking if he or she were ok; the person who showed them did not use her fingers to demonstrate the CPR. Mother also testified that Robert had stopped breathing in the NICU after he was born but that the hospital never told her about it. Father’s cousin Mary told Mother that Robert “breathe[d] funny.” Mother also told someone that one of Robert’s legs was broken from something she was doing when he had gas. 12 Medical Evidence of Robert’s Injuries Donna Wright, a pediatric nurse practitioner at Cook Children’s who is a sexual assault nurse examiner and is trained in child abuse, testified that she is part of a practice group that specializes in child abuse and maltreatment cases. She became involved in Robert’s care on December 18, 2014 when the hospitalist on duty requested a care team consult. She obtained medical information from both Mother and Father, including Robert’s previous medical history; performed a head-to-toe checkup; reviewed X-rays and lab tests that had already been done; and ordered additional lab tests on bone density and bone fragility. At one of the visits to Cook Children’s, Robert was tested for rhinovirus; he also had a swallowing study that showed no reflux or other problems. Father told Wright that on December 18, Robert was crying after he gave him medicine and then left the room. Father knew something was wrong when Robert quit crying; when he went back into the room, Robert was staring at the wall, was not breathing, and was pale and clammy. Father said he gave Robert CPR for two minutes. According to Wright, a skeletal survey that had already been done showed that Robert had eleven “fractures to different areas of his body that were in different stages of healing.” The fractures were of at least two different ages, indicating that the injuries did not happen at the same time. Wright described the location of the fractures as follows: 13 healing fractures to the left posterior, so left back, second and third ribs. He had fractures on the right lateral, so underneath the arm, number 8 and number 9 ribs and a fracture on the left lateral 7th rib. So, under his arm. He also had what we call classic metaphyseal lesions, which are fractures that were both femurs near his knee, so, distal femur metaphyses. Robert also had buckle fractures closer to his ankle on one leg. After consultation with a radiologist, Wright learned that the rib fractures were one to two weeks old,5 but that the leg bone fractures were more difficult to date. Robert’s injuries were “[a]bsolutely consistent with child abuse.” Although he had no bruising, that is not unusual with rib fractures. Wright testified that, in hindsight, Robert should have been evaluated for possible child abuse at the December 1 visit to Cook Children’s. When he was transferred to Children’s Medical in Dallas, his liver enzymes were “excessively high,” which typically occurs because of infection or trauma. High liver enzymes are commonly seen in children who have a bruised liver from abdominal trauma or laceration. Additionally, elevated liver enzymes can occasionally result from a fractured bone. According to Wright, not all of Robert’s injuries could have been caused by CPR since only one of them was a lateral rib fracture, which is the type of injury generally caused by performing CPR on infants. Additionally, the fractures to Robert’s legs were from “a torsion, a twisting-type motion, or a[n] 5 Therefore, the medical evidence indicates that the injuries occurred after Robert was in the sole care and custody of Mother and Father. 14 acceleration, deceleration.” In other words, they occurred as a result of a shaking or twisting of the legs instead of pushing. Wright also testified that such injuries could not occur from changing diapers, burping, or any other normal care, even if performed roughly. Babies’ bones are more difficult to break than those of older children or adults. Wright opined that Robert could not have caused the injuries himself due to his lack of mobility. Wright also opined that Robert did not have any health condition that would cause his bones to break, such as bone fragility, a problem with bone density, or brittle bone disease. He did not have low calcium or Vitamin D that would cause the bones to break. Although she had heard of some experts testifying about something called temporary brittle bone disease in certain criminal cases, their work had not been peer-reviewed. According to Wright, the likelihood that Robert’s injuries occurred from child abuse was much greater because of the number of fractures. And the leg fractures could not have been caused by an accident. Wright opined that Robert’s injuries resulted from “a significant amount of force” and that he would have cried a lot. She was one hundred percent certain that all of the fractures occurred at different times. Wright also testified that Robert never stopped breathing while at Cook Children’s. If he had stopped breathing due to some breathing problem, she would have expected it to happen again while he was being monitored or after he 15 left the hospital. She agreed that a child could conceivably pass out from the pain of a rib fracture due to holding his breath. Post-Removal Circumstances At the time of trial, Sharon was two years old and Robert was one. They had been in the Department’s care for seventeen months. Criminal Investigation Into Robert’s Injuries Michael Warren, a criminal investigator with the Gainesville Police Department, testified that Wright referred Robert’s case to the police department. After Robert’s second hospitalization and the discovery of his injuries, Warren spoke with Father at the Cooke County jail where Father was incarcerated for a theft warrant from Denton County. Father told Warren that Robert’s injuries were from CPR. Warren did not think Father was being forthright. Father told Warren that he just wanted out of jail and that if Warren got him out, Father would give Warren the information he wanted. Warren set up an interview with Mother, but she cancelled it, and Warren was not able to set up another. Mother would not return his calls. Warren testified that Father’s cousin Mary gave him copies of the Facebook messages between her and Father in which Father called Robert vulgar names. Warren was concerned about Father’s apparent lack of caring about Robert and his failure to bond with him. Warren testified that the less bonded someone is with a child, the more likely he or she is to hurt him. According to Warren, the Gainesville Police Department filed injury-to-achild charges against both Mother and Father as to Mother’s nieces Tabitha and 16 Sheila, but they did not file charges against either Mother or Father in Robert’s case because they could not obtain enough evidence to prove which one, or both, actually inflicted the injuries. However, the police did narrow down the suspects to either Mother or Father. Testimony of Department Representatives Tina Harris, a Cooke County CPS investigator supervisor, testified she also visited Father in jail and that he told her he would tell her why Robert had broken bones if she would help him get out of jail. She also testified that she observed Mother’s and Father’s first visit with the children. Both Mother and Father went to see Sharon first and were very loving to her. Father held Robert but did not interact with him; Mother never interacted with him at all. Both Mother and Father showed a lack of bonding, which caused Harris to be concerned that maybe Robert was not wanted. She testified that she had worked thousands of child abuse cases and that lack of bonding is a consistent factor. Jennifer Ware, a CPS supervisor, testified that she had worked on the case from the beginning in December 2014. Father had told her on multiple occasions that he did not think Robert was his child. Father also told her that he and Mother did not initially bring Robert home with them when he was discharged from the NICU because Father did not think Robert was his child and because Robert had breathing issues, and Mother did not want to get Robert in and out of the cold air when she got off work late. Father also suggested to 17 Ware at a meeting in May or June 2015 that he might have more information about Robert’s injuries, but he never told her anything. According to Ware, Robert had never stopped breathing while in the care of CPS personnel or his foster parents, and his medical records did not show that it had happened during medical care. Other than the parents’ assertions that Robert had stopped breathing, the only related complaint she knew of occurred when Father’s mother was assisting with Robert’s care during a family placement with Father’s aunt. Father’s mother had taken Robert to her own home without the Department’s knowledge or approval. The Department later became aware that Father’s mother said that Robert had stopped breathing while in her care and her daughter performed CPR to revive him. Ware doubted the veracity of this story: It was very odd that [Father’s mother] insisted on [Robert] and [Sharon] being monitored or her watching them at her home so that she could tend to her husband who was not disabled, who didn’t seem to require any kind of assistance from her. There was a time where [Robert] was hospitalized while he was in our care. [Father’s aunt] was placement at that time. [Father’s mother] was going to the hospital and helping; and she would all of a sudden not be able to assist anymore, or she left her insulin at -- at home when she knew she was spending the night at the hospital with [Robert] to help with him. And then upon hearing testimony yesterday, [Father] puts himself to be residing in the home at the time that that happened. And we had concerns at that time of where [Father] was residing. He would go back and forth between his grandmother’s address in Denton, and then there were concerns and even witnesses who had seen his car at his mother’s house early hours of the morning as if he was spending the night there and residing at that home. 18 Under his service plan, Father was not supposed to have any unsupervised contact with Robert or Sharon. Ware testified that Robert’s family did not believe either Mother or Father hurt Robert; instead, they believed he had brittle bone disease. Ware also testified that, similarly, neither Mother nor Father would take responsibility for Tabitha’s and Sharon’s injuries, but they also could not give a satisfactory explanation for those injuries. Mother showed Ware the exercise she did to relieve Robert’s gas, which consisted of “mashing” his legs up toward his stomach and pulling them back out. Ware did not believe Mother’s explanations of how Robert got his injuries. Ware corroborated Harris’s testimony of Mother’s and Father’s first visit with Robert and Sharon; it started at 10:30 a.m., but Mother did not approach Robert and kiss him until 11:36 a.m. At one visit, Mother and Father brought presents for Sharon’s birthday but would not allow her to leave the visit with the presents, which upset Sharon. Ware also observed problems with Mother at visitation; according to Ware, Mother would “overanalyze” Sharon, looking over her body from head to toe, including around her genital area and between her buttocks. At one visit, Mother was looking at Sharon’s vaginal area “stating that she had cuts down there.” Ware took Sharon to North Texas Medical Center, and she was diagnosed with a mild diaper rash. Sharon had what Ware described as typical toddler bumps and bruises throughout the case, which 19 Mother complained about at almost every visit. Ware investigated the complaints, and only one of the bruises was unexplained. Ware testified that Mother did not complete her court-ordered service plan psychiatric evaluation because the psychiatrist had concerns about Mother’s honesty and therefore it could not be completed. During that evaluation, Mother focused on the children’s removal but did not discuss their injuries and left out what the psychiatrist felt were important details. Ware agreed that she had concerns that Mother put herself before Robert and that those concerns were consistent with the psychiatric report’s conclusions. According to Ware, every time the Department set up counseling for Mother in one city, either Gainesville or Denton, Mother would want the counseling moved to the other city, until the Department eventually told Mother’s attorney it was no longer going to move counseling services. Mother refused to discuss Robert’s injuries with her counselor and only alluded to a disease or illness as the cause. She attended only about half of the ordered counseling sessions and had not been released. Mother had completed anger management class but not the part requiring her to provide the Department with a plan that identifies coping skills for her triggers. Father did not complete counseling; like Mother, he finished anger management class but did not provide the Department with a plan for coping with future triggering events. Although Mother had completed nutrition and parenting classes, when Ware was talking with Mother about shaken baby syndrome, Mother told Ware 20 the opposite of what she should have learned: Mother said it is easy to break a baby’s bones, which is not true. Mother would inform the Department of telephone number changes but not address changes. Neither Mother nor Father had complied with the service plan’s requirement to obtain stable housing. Both Mother and Father were “unclear” with the Department about where they were living and with whom. Mother did attend every visit set up for her with the children, and Father missed only two visits because he was in jail when they were scheduled. Both parents tested negative on all drug tests. After their removal, Robert and Sharon were first placed into foster care. After a family group conference, they were placed with Father’s aunt, and they stayed with her almost three months. The Department eventually had to move the children because Father’s aunt was relying on the family to care for the children when she worked, and she could not get them to provide the help she needed. The children were then returned to their original foster home where they were still living at the time of trial. Ware testified that the foster parents were motivated to adopt. The Department had been provided with the names of several possible relative placements, but they had all been ruled out. At the time of trial, Ware was still waiting to hear about one more possible maternal great aunt in Arizona, but she had not returned Ware’s phone calls. Ware testified that Robert and Sharon were “good” in foster care and better than when they first came into the Department’s care. All of their needs 21 were being met, and they were thriving and seemed happy. They were loved, taken care of, and in a safe, stable home. Robert had not had any broken bones since being placed in foster care, and Ware had not seen any marks or burns on him. Ware had no concerns about the foster parents and thought both Robert and Sharon would thrive if adopted by them. Ware was concerned, however, that Robert would die if Mother and Father regained custody and, if their rights were not terminated, that he would suffer from a lack of permanency. Since being in CPS custody, Robert had tubes put in his ears and, when he was living with Father’s aunt, had twice been taken to the hospital for breathing issues, which were typically related to congestion. In February 2015, Robert was taken to the hospital with trouble breathing and diagnosed with RSV. He had RSV a couple of times while in the Department’s care. He had also had some acid reflux. He was being fed a special formula with thickener to help him gain weight. Sharon also had tubes put in her ears. Both children have milk protein allergies, which Mother and Father failed to tell the Department. Ware testified that Sharon had night terrors the night of and the night after visiting with her parents. Largely because of the night terrors, the Department successfully sought to have Mother’s and Father’s visits suspended in March 2016. Sharon did not have any night terrors after the trial court ordered the visits to be suspended. Her behavior and outbursts had also improved. Ware testified that Father did attend some of Robert’s doctor visits, during which he appeared to be observant and engaged. At visitation with the children, 22 Mother and Father demonstrated love to the children, which the children reciprocated. A bonding assessment showed that Mother was bonded with Sharon but also showed that Robert did not appear to be bonded to either parent. Mother’s and Father’s Circumstances Father testified that the day before the children were removed, he had moved to Krum, Texas, and Mother had moved to an apartment in Gainesville. When Mother was evicted from that apartment after being indicted for injury to a child,6 she moved in with Father in Krum until they moved to Marietta, Oklahoma together sometime around August 2015. At the time of trial, Father was living in Denton with his uncle and his uncle’s thirteen-year-old daughter. That uncle had been to jail. Mother was living with her father in a four-bedroom house where “sometimes people come over and stay a while.” But she was planning on moving into an apartment soon to be closer to her job. Mother and Father were not divorced, but according to Mother, were living apart because of “[c]ircumstances.” She was not sure if they would get divorced. When asked, “So you split up in the event that the Court found that one of you were able to get the kids, but not the other one?” she answered, “If that was the case.” 6 This indictment was related to the injuries suffered by Tabitha. 23 At the time of trial, Father was working for a temporary employment agency around thirty hours a week. Mother was employed full time. Father has a criminal history consisting of convictions for robbery and aggravated assault. Father did not think he or Mother had ever improperly cared for Robert. He had never seen Mother behave inappropriately with any child. Father admitted that at first, he did not feel bonded to Robert but he “[m]ost definitely” was by the time of trial. According to Father, he and Mother both showed love and affection to the children. Father thought that he and Mother had enough income to provide for Sharon and Robert and that he had learned how to become a better parent through parenting classes. Father believed Mother was a better parent than she had been in 2014. He also believed he had a strong support system from his family. He did not think it would be in the children’s best interest for his rights to be terminated, and he thought it would harm the children if his and Mother’s rights were terminated. Ultimately, Father thought both Robert and Sharon should live with both him and Mother and that they would be safe. The trial judge asked Father, “[W]ould you agree with me that if someone hurt [Robert] in that very small bedroom, if you were present when the child was hurt, that you would have known that child was hurt?” He said, “Without a doubt.” Father also agreed that if Mother had caused Robert’s injuries, it would be concerning for her to have the children returned to her. When asked how Mother was now a better parent, Father answered that she had been too overprotective of Sharon. 24 Mother testified that she was a better parent than in 2014 and that she had been preparing for the children’s return for the past seventeen months. Mother testified that the children should be returned to her and not Father because, in her words, “I am prepared to handle my kids.” However, she also said that she did not have any concerns about how Father would care for the children and that she thought he was also a better parent. Mother also believed she could provide financially for the children. She did not believe Father abused Robert or her nieces, and she said she never saw him do so. Mother believed Robert was bonded to Father, and that Sharon loved Father, but that if the children had to choose to live with one, Sharon would choose Mother, and Robert would choose Father. Mother did not believe Father had anger issues when her nieces lived with them. Mother admitted that she used to get angry and yell but had not since she had been to anger management class. She also denied that she ever had anger management issues with respect to children. Mother admitted that she was no longer allowed to attend the doctor with Robert because CPS had alleged she had gotten angry and caused a scene. But she denied that she had done so. When asked if the injuries to Robert and Sharon occurred when the medical professionals said they did, that they had to have occurred while Robert was in Mother’s and Father’s care––Mother agreed. Nevertheless, Mother denied that either she or Father broke Robert’s bones. When asked if she had been protective of her children when they were in her care, Mother testified that 25 she let work “get in the way of that.” Mother did not believe anybody, including Father, should have unsupervised visitation of Robert and Sharon if she got them back so she “could always know what happened.” She would send the children to a day care with cameras. Evidence Supports D and E Findings As to Both Mother and Father The evidence in this case is strikingly similar to that in the following cases in which the courts held that the evidence was both legally and factually sufficient to support D and E termination grounds when the child was in the sole care and custody of both parents during the time fracture injuries occurred: In re C.H., 389 S.W.3d 534, 540–41 (Tex. 2012); J.P.B., 180 S.W.3d at 573–74; In re J.D.B., 435 S.W.3d 452, 465–66 (Tex. App.––Dallas 2014, no pet.); In re J.D., 436 S.W.3d 105, 115–16 (Tex. App.––Houston [14th Dist.] 2014, no pet.) (“In light of the evidence in this case that the Child sustained an arm fracture and a leg fracture at different times while in the Mother’s care, the injuries were not accidental, but instead were abusive injuries caused by extreme force, and the Child would have screamed in pain so that her caregiver should have been aware of the arm fracture, the trial court could have reasonably inferred that the Mother knowingly allowed the Child to remain in an environment that endangered her physical well-being and that she engaged in conduct that endangered her physical well-being. It was within the trial court’s province to judge the Mother’s demeanor, to disbelieve her testimony that she did not know how the Child was injured, and to infer that she knew of the Child’s injuries and how they occurred, 26 supporting its findings under subsections D and E.”). Considering the evidence supporting the conclusion that Mother and Father engaged in endangering behavior toward Mother’s nieces when they cared for them together, that Mother and Father were the sole caregivers for Robert in a small motel room during the time he was in their care, and that his injuries occurred at different points during that time, we conclude and hold that the evidence is both legally and factually sufficient to prove D and E grounds. Moreover, the evidence supporting the conclusion that Mother and Father were responsible for Tabitha’s and Sheila’s injuries––or that one or the other failed to remove Sharon from the environment where those injuries occurred–– supports an endangerment finding as to Sharon. See In re J.O.A., 283 S.W.3d 336, 345 (Tex. 2009); In re I.G., 383 S.W.3d 763, 770 (Tex. App.––Amarillo 2012, no pet.); In re M.N.G., 147 S.W.3d 521, 536 (Tex. App.––Fort Worth 2004, pet. denied) (op. on reh’g). We overrule Mother’s and Father’s first and second issues. Evidence Supports Conclusion That Termination in Children’s Best Interest Mother and Father also challenge the trial court’s finding as to best interest. Considering the applicable Holley factors in the context of the entire record, we conclude and hold that the evidence is legally and factually sufficient to support the trial court’s finding. See Holley v. Adams, 544 S.W.2d 367, 371– 72 (Tex. 1976) (listing numerous nonexclusive factors for trial court to consider in making best-interest determination). 27 Both children were still quite young and vulnerable and could not express their desires. Robert’s injuries were consistent with severe, multiple incidences of trauma, and Sharon suffered from night terrors when attending supervised visitation with both parents. Neither Mother nor Father would acknowledge that the injuries to Robert had to have occurred from more than diaper changes, pulling up his legs to relieve gas, or CPR although they agreed when questioned that the injuries had to have been caused while he was in their care. Not only did they continue to insist that they did not know how the injuries occurred, after attending a class with a presentation on shaken baby syndrome, Mother told the CPS caseworker that it is easy to break a baby’s bones. Neither parent had obtained consistent, stable housing, and they continued to live with various family members, some of whom had criminal histories. Additionally, they appeared to be putting up the appearance of being apart while not committing to separate or divorce. CPS could not find a suitable, willing relative placement but was waiting on only one maternal relative to call the caseworker back despite several attempts to contact her. There was evidence that although both parents could be affectionate with Robert, there was little bonding with him. Both children were doing well in foster care placement, and the foster parents desired to adopt them. We conclude and hold that this evidence is both legally and factually sufficient to support the trial court’s best interest finding. See id. We therefore overrule Mother’s and Father’s third issues. 28 To the Extent Complaint Preserved, Evidence of Father’s Criminal History Properly Admitted Father complains in his fourth issue that the trial court abused its discretion by admitting evidence of his past criminal convictions for robbery and aggravated assault and evidence that at the time of trial he was under indictment for injury to a child as to Mother’s nieces. The Department contends that Father failed to preserve this issue because he failed to adequately object each time the evidence was offered. Father objected to questions about the injury-to-a-child indictments on relevance and rule 403 grounds because they pertained to alleged offenses against children other than Robert and Sharon. See Tex. R. Evid. 401, 403. The trial judge overruled the objection and stated that she was not granting a blanket objection, but she instructed Father not to answer questions until his attorney could have the opportunity to object. When the Department attempted to offer the indictments into evidence, Father objected on the same grounds: general relevancy and rule 403. Thus, we conclude and hold that Father did preserve his objection to the evidence regarding the pending indictments against him. See Tex. R. App. P. 33.1(a)(1). But regardless of the propriety of the trial court’s ruling, its admission of the evidence was harmless in light of the evidence that in a forensic interview, Tabitha had implicated Mother as the cause of her injuries and Father as the cause of Sheila’s, as well as the evidence regarding the types 29 of injuries the two girls sustained while in Mother’s and Father’s care. See Tex. R. App. P. 44.1(a). Unlike the evidence of the pending indictments, Father did not object when asked about his prior criminal convictions. He admitted being convicted of robbery in 2005 and aggravated assault around the same time. His counsel stated, “[N]o objection,” when the Department offered exhibits into evidence showing the judgments of conviction. Accordingly, Father has not preserved any complaint about the admission into evidence of his past criminal convictions. See Tex. R. App. P. 33.1(a)(1). We overrule Father’s fourth issue. Conclusion Having overruled all of Mother’s and Father’s issues, we affirm the trial court’s judgment. /s/ Terrie Livingston TERRIE LIVINGSTON CHIEF JUSTICE PANEL: LIVINGSTON, C.J.; WALKER and MEIER, JJ. DELIVERED: January 26, 2017 30

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