Summary
addressing sufficiency issues in a termination case when issues were not preserved and no ineffective assistance claim was raised
Summary of this case from In re C.A.Opinion
NO. 09-11-00694-CV
03-29-2012
IN THE INTEREST OF C.T.
On Appeal from the County Court at Law
Polk County, Texas
Trial Cause No. PC05072
MEMORANDUM OPINION
A jury found by clear and convincing evidence that the parental rights of the parents of C.T. should be terminated. The trial court terminated the parental rights of C.T.'s parents on grounds that each parent knowingly placed or knowingly allowed the child to remain in conditions or surroundings which endangered the physical or emotional well-being of the child, and that each parent engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangered the physical or emotional well-being of the child, and that termination is in the child's best interest. See Tex. Fam. Code Ann. § 161.001(1)(D) & (E), (2) (West Supp. 2011). Only the mother appealed. Appellant's sole issue contends that "[t]he jury did not rule in such a way as a reasonable factfinder could have in determining that there were legal or factual grounds to terminate parental rights." We affirm the trial court's judgment.
The Department of Family and Protective Services argues that appellant did not timely perfect her appeal. The trial court signed the judgment on November 14, 2011. Notice of appeal was due to be filed by Monday, December 5, 2011. See Tex. R. App. P. 26.1(b); Tex. Fam. Code Ann. § 109.002(a) (West Supp. 2011). Although represented by appointed counsel, appellant filed a pro se notice of appeal on December 6, 2011, and the trial court appointed counsel on that same date. Because appellant filed a notice of appeal within fifteen days of the due date, and because counsel providing reasonably effective assistance would have ensured that the notice of appeal was timely filed, we grant an extension of time to file the notice of appeal. See Tex. R. App. P. 26.3; see also In re B.G., 317 S.W.3d 250, 253-54 (Tex. 2010)
The Department contends that appellant failed to preserve error for the sufficiency issue she raises on appeal. Appellant did not move for a directed verdict and filed no post-judgment motions that challenged either the verdict or the judgment. A motion for new trial is required in order to preserve a complaint that the evidence is factually insufficient to support a jury finding. See Tex. R. Civ. P. 324(b)(2); Cecil v. Smith, 804 S.W.2d 509, 512 (Tex. 1991). A "no evidence" point must be preserved through a motion for instructed verdict, a motion for judgment notwithstanding the verdict, an objection to the submission of the issue to the jury, a motion to disregard the jury's answer, or a motion for new trial. Cecil, 804 S.W.2d at 510-11. None of these motions appear in the record.
Appointed counsel's unexcused failure to preserve a valid sufficiency point for appellate review may constitute ineffective assistance of counsel in a termination case. In re M.S., 115 S.W.3d 534, 536, 549 (Tex. 2003). Appellant does not advance a claim of ineffective assistance of counsel, however, and counsel is not automatically ineffective for failing to preserve the issue. See id. If counsel could reasonably have believed that the evidence was sufficient, counsel's performance does not fall below an objective standard of reasonableness merely because no motion challenging the verdict was filed. Id. at 549.
In a legal sufficiency review, we consider all the evidence in the light most favorable to the termination finding to determine whether "a reasonable trier of fact could have formed a firm belief or conviction that its finding was true." In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002). We assume that the factfinder resolved any disputed facts in favor of its finding if a reasonable factfinder could do so, and we disregard all evidence that a reasonable factfinder could have disbelieved. Id. If no reasonable factfinder could form a firm belief or conviction that the matter that must be proven is true, the evidence is legally insufficient. Id.
In a factual sufficiency review, we give due consideration to evidence that the factfinder could reasonably have found to be clear and convincing. Id. We consider the disputed evidence and determine whether a reasonable factfinder could have resolved that disputed evidence in favor of its finding. Id. "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, then the evidence is factually insufficient." Id.
C.T. was born on December 2, 2010, and released two days later to go home with his nineteen-year-old mother and his father. They moved to Livingston on December 9. Appellant claimed that she was feeding C.T. every three-and-one-half hours. When C.T. was examined in the emergency room on January 21, 2011, a fractured right femur was discovered and C.T. was transferred to the NICU at Texas Children's Hospital, where he was treated by Dr. Reena Isaac.
Dr. Isaac discovered that C.T. had multiple skeletal injuries and was considerably malnourished. An additional seventeen or eighteen fractures were eventually detected. The areas of concern included fractured ribs on both the right side and the left side, vertebrae, the ulnar, phalanx, the knee, the fibula and tibia on both sides, the left foot, and both the right and left femur. The fractures of the long bones were fractures of the distal ends. According to Dr. Isaac, an injury of this type is caused by shaking. The location of the rib fractures indicates compression. The bone scans indicated there had been at least two incidents causing injury. In this condition, the baby would have cried from pain whenever he was handled. The injuries could not have occurred from dropping the baby or removing him from a car seat. An infant's bones do not break easily, and genetic tests for a particular bone defect were negative. Even with the malnourishment, C.T.'s calcium and magnesium chemistry showed C.T. had proper bone density. There was no medical reason for C.T. to be predisposed to fractures. The likelihood of a finger or foot fracture is extremely remote in a non-mobile infant.
In addition to the non-accidental inflicted multiple bone fractures, C.T. was severely malnourished but Dr. Isaac found no medical reason for his condition. The most likely scenario for such malnutrition was that the baby had not been fed fully or properly.
C.T.'s pediatrician testified that at the time of trial, C.T. was no longer malnourished and experienced no more fractures. A change of formula that may lead to the level of weight loss experienced by C.T. as a newborn is extremely rare.
Appellant received instruction on feeding the baby, and she changed the baby's formula because she reported that C.T. had been vomiting. Appellant recalled that the doctors told her that she might be trying to feed C.T. too much at one time. She and C.T.'s father were aware that the baby was not gaining weight. Appellant testified that she did not notice anything wrong with C.T.'s leg until a family member brought it to her attention. She had no explanation for the fractures. C.T.'s father cared for C.T. by himself for two or three hours a day before he left for his night shift at Wal-Mart. Appellant fed C.T. at other times. C.T.'s father stated that he fed C.T. approximately eight ounces of formula three times a day. C.T.'s father offered explanations for his injuries. One time C.T. fell out of his arms when he bent down to pick up a dropped bottle, but he was not sure how the baby was injured. Another time he noticed the baby seemed to be choking in his car seat and C.T.'s leg got caught as he pulled C.T. out.
Appellant argues that there was insufficient evidence that she knowingly placed or allowed C.T. to remain in a dangerous situation. She does not directly challenge the alternative ground that she engaged in conduct that endangered C.T. A judgment will be affirmed "if any one of the grounds is legally and factually sufficient and the best interest finding is also legally and factually sufficient." In re C.M.M., No. 09-11-00482-CV, 2012 WL 360798, at *4 (Tex. App.—Beaumont Feb. 2, 2012, no pet. h.) (mem. op.). Both appellant and C.T.'s father were taking care of the baby, and either one of them may have inflicted the child's injuries, but appellant was responsible for feeding the child and C.T. was severely malnourished. The jury could have formed a firm belief or conviction that appellant knowingly engaged in conduct that endangered C.T. We overrule appellant's issue and affirm the trial court's judgment.
AFFIRMED.
________________________
CHARLES KREGER
Justice
Before McKeithen, C.J., Kreger and Horton, JJ.