Opinions Released January 12, 2017

In this weekly blog, the Law Offices of Brandy Wingate Voss, PLLC will summarize recent decisions from the Thirteenth Court of Appeals and provide links to decisions on the court’s website.

In re J.H., V, No. 13-16-00511-CV (Memorandum Opinion by Justice Contreras; Panel Members: Justices Rodriguez and Longoria)

In this appeal from an order terminating J.H. IV’s parental rights to his son, J.H. V., the Thirteenth Court of Appeals analyzed the sufficiency of the evidence showing endangerment.

J.H. V. was born to J.M. and J.H. IV on July 31, 2015. Soon thereafter, the Department of Family Protective Services filed a petition to terminate J.H. IV’s (“Appellant’s”) parental rights for endangering J.H. V’s physical and emotional well-being. The case was tried to the bench on August 23, 2016.

U.S. Marshal George Butcher testified regarding what he observed while apprehending Appellant in Portland, Texas for a charge of aggravated assault with a deadly weapon, family violence in Houston. Butcher saw Appellant and J.M. arguing, then watched as Appellant pulled out what appeared to be a knife—but was later identified as a screwdriver—and raised it above his head. Several children were seen at the residence that same day.

Police officer Rachelle Farmer also testified, relaying J.M.’s statements that Appellant had choked her and strangled her. J.M. had abrasions on her neck from one such choking incident. Appellant also threatened to call Child Protective Services and have J.H. V. removed from J.M.’s home.

Police officer Robin Castle testified regarding a family violence incident in April 2015. Castle observed not only physical injuries to J.M. caused by Appellant, but learned that Appellant hit and kicked J.M. in the stomach and potentially caused a miscarriage.

CPS investigator Eva Perez described another incident on family violence in August 2015, during which a different child living with J.M.—E.C.—made an outcry of abuse against Appellant, which was verified by physical examinations. Appellant was prohibited from having contact with the children in J.M.’s home. Less than two weeks later, J.M. and Appellant got into a physical argument at the home, while the children were present. The children were removed.

Perez also confirmed that J.M. was hospitalized during her pregnancy with J.H. V. because Appellant ran her over with his truck.

Caseworker Michelle Mckenna further testified that Appellant was released from jail for family violence on January 20, 2016, but imprisoned again on January 31 for another incident with J.M. Appellant did not comply with the Family Service Plan’s requirements to get his children back.

Appellant confirmed that he had failed to comply with the Family Service Plan requirements, but claimed that he lived in Houston and could not complete the necessary anger management classes, parenting classes, etc. until Mckenna arranged for them in Houston. Appellant confirmed his arrests and incarceration, but denied abusing J.M.

After hearing this evidence, the trial court terminated Appellant’s parental rights. Appellant appealed, claiming there was insufficient evidence to support termination.

Held: The evidence of domestic violence was sufficient to support the termination of Appellant’s parental rights. The trial court’s judgment was affirmed.

Appellant claimed that there was no evidence that he neglected, abused, or endangered J.H., V in violation of section 161.001 of the Texas Family Code. Although DFPS alleged two different bases for termination, the Thirteenth Court focused on the “endangerment” provision, which was dispositive of the case.

The Thirteenth Court of Appeals strictly scrutinized the trial court’s order granting termination. The court noted that termination of parental rights involves fundamental constitutional rights and requires proof by clear and convincing evidence that the parent committed an act listed in Texas Family Code section 161.001(b)(1), and that termination is in the best interest of the child. One act listed under section 161.001 is the physical or emotional endangerment of the child. “Endanger” is defined to encompass anything that risks loss or injury to the child, and can be satisfied by conduct that is not directed at the child.

The evidence at Appellant’s termination hearing indicated that he hit and choked J.M., beat her up, and ran her over with a truck while she was pregnant with J.H. V. Appellant also threatened to stab J.M. while children were present, and strangled her. Appellant was repeatedly imprisoned on family violence charges, and was arrested three times for such charges while the termination case was pending. E.C. also made an outcry of physical abuse against Appellant.

Appellant’s pattern of domestic abuse—both before and after J.H., V. was born—was sufficient to support the termination of Appellant’s parental rights. As such, the trial court’s judgment was affirmed.

Read the Full Opinion Here

Matagorda Nursing & Rehabilitation Center, L.L.C. v. Brooks, No. 13-16-00266-CV (Memorandum Opinion by Justice Contreras; Panel Members: Justices Rodriguez and Longoria)

In this interlocutory appeal, the Thirteenth Court analyzed the plaintiff’s compliance with the requirements for expert reports under the Texas Medical Liability Act (“TMLA”).

Alvin Brooks Jr. was a patient at the Matagorda Nursing and Rehabilitation Center (“MNRC”), and suffered a spine fracture when he fell trying to get out of bed in November 2014. Brooks died of “sepsis, respiratory and renal failure” in February 2015. In November 2015, the personal representatives for Brooks’ estate (collectively, “Brooks”) filed suit against MNRC for negligently failing to provide a safe environment, train employees, and manage Brooks’ risk for falls.

On September 8, 2015, Brooks provided an expert report from registered nurse Vanessa Neyra addressing both the alleged breach of duty by MNRC and the proximate cause of Brooks’ injury. MNRC filed an answer on November 2, 2015 and objected to Neyra’s report on November 13, claiming Neyra did not have the qualifications to address causation and that her opinion was conclusory.

Brooks also filed an expert report from pathologist Dr. Radelat regarding Brooks’ cause of death. MNRC again objected that Dr. Radelat did not have the qualifications to address proximate cause.

Brooks amended both expert reports on February 29, 2016. MNRC moved to dismiss under the TMLA because more than 120 days had passed since MNRC filed its answer. Brooks responded and requested a 30-day extension under the TMLA to cure the alleged defects in the reports. The trial court denied MNRC’s motion to dismiss without a hearing. MNRC filed an interlocutory appeal.

Held: Brooks’ expert reports did not meet the TMLA requirements. The case was reversed and remanded to allow the trial court to consider granting an extension for Brooks to cure the deficiencies in the reports.

The TMLA—chapter 74 of the Civil Practice and Remedies Code—requires a plaintiff in a health care liability case to serve a qualified expert report on the defendant within 120 days after the defendant’s answer is filed. MNRC thus challenged two issues on appeal: the qualifications of Neyra and Radelat to give an opinion on proximate cause, and the availability of an extension.

Expert Qualifications

An expert is qualified to give an opinion on proximate cause under the TMLA if the person “is a physician and is otherwise qualified to render opinions” on proximate cause based on his knowledge, skill, experience, and training. This experience must be reflected in the four corners of the expert report.

Neyra’s report reflected that she was a registered nurse; not a physician. Thus, she was not qualified to opine on proximate cause.

Radelat’s report established that he was a physician and board-certified pathologist for more than fifty years, as well as an attorney. Radelat thoroughly analyzed the medical records and detailed his experience. Yet—citing Broders v. Heise—MNRC claimed that the report did not show that Radelat was qualified to give an opinion regarding the proximate cause of injuries to a nursing home patient. In Broders v. Heise, 924 S.W.2d 148 (Tex. 1996), the Texas Supreme Court affirmed a trial court’s exclusion of an emergency room physician’s expert testimony because the physician never testified that he knew the effectiveness of treatments in emergency room situations.

The Thirteenth Court of Appeals agreed with MNRC, and followed Broders. The court held that Radelat’s report was required to establish that he had knowledge, skill, experience, or training as to the result of the specific negligent activities alleged in Brooks’ petition; namely, the failure to manage Brooks, properly train nursing home employees, provide a safe environment, and protect Brooks from falls. Consequently, the report was insufficient to meet the requirements of the TMLA.

Since neither expert report met the TMLA requirements, the trial court erred in denying MNRC’s motion to dismiss. 


MNRC next argued that the unqualified expert reports amounted to “no report” and thus Brooks could not claim that he had timely filed a report warranting a thirty-day extension. The Thirteenth Court of Appeals however, noted that the Texas Supreme Court adopted a more lenient standard for extensions in Scoresby v. Santillan, 346 S.W.3d 546 (Tex. 2011). Under Scoresby, a thirty-day extension is available if the plaintiff timely files an expert report that “contains the opinion of an individual with expertise that the claim has merit, and if the defendant’s conduct is implicated.” MNRC conceded that Neyra was qualified to give an opinion regarding the standard of care and merits of the claim. A thirty-day extension was thus available.

The case was reversed and remanded for the trial court to determine whether a thirty-day extension should be granted.

Read the Full Opinion Here