Texas Health and Human Services Commission v. Amy Bazan A/K/A Amy Fairbank

ACCEPTED
15-25-00130-CV
FIFTEENTH COURT OF APPEALS
AUSTIN, TEXAS
11/5/2025 3:46 PM
CAUSE NO. 15-25-00130-CV CHRISTOPHER A. PRINE
CLERK
FILED IN
15th COURT OF APPEALS
FIFTEENTH COURT OF APPEALS AUSTIN, TEXAS
11/5/2025 4:40:50 PM
CHRISTOPHER A. PRINE
Clerk
TEXAS HEALTH AND HUMAN SERVICES COMMISSION,
Appellant,
v.
AMY BAZAN a/k/a AMY FAIRBANK,
Appellee.

On Appeal from the 353rd Judicial District Court of Travis County, Texas
No. D-1-GN-22-000773

APPELLEE AMY BAZAN a/k/a AMY FAIRBANK’S REPLY BRIEF AND
REQUEST FOR ORAL ARGUMENT

Ladd Law Firm, P.L.L.C.
Norman R. Ladd
State Bar No. 24041285
Prema Autry
Texas State Bar No. 24082357
223 S. Bonner Ave.
Tyler, Texas 75702
T: (903) 705-7211
F: (903) 705-7221
nladd@laddtxlaw.com
pautry@laddtxlaw.com
ATTORNEYS FOR APPELLEE

Appellee’s Reply Brief
15-25-00130-CV Page 1
Table of Contents

Table of Contents ........................................................................................... 2

Index of Authorities ........................................................................................ 3

Statement Regarding Oral Argument ............................................................ 4

Statement of Facts .......................................................................................... 4

Summary of the Argument.............................................................................. 7

Standard of Review ........................................................................................ 9

Appellee’s Reply Argument .......................................................................... 10

Conclusion & Prayer ...................................................................................... 17

Certificate of Service ..................................................................................... 19

Appellee’s Reply Brief
15-25-00130-CV Page 2
INDEX OF AUTHORITY

Case

Tex. Health Facilities Comm’n v. Charter Med,-Dallas, Inc.,
665 S.W.2d 446, 450 (1984) ......................................................................... 10

Dyer v. Tex. Comm’n on Envtl. Quality, 646 S.W.3d at 514 ....................... 10

40 Texas Admin. Code §707.455(b)(3) ....................................................... 17

Appellee’s Reply Brief
15-25-00130-CV Page 3
Statement Regarding Oral Argument

Appellee, Amy Fairbank, requests oral argument in this appeal. Fairbank

believes that in order for her to exercise her full due process rights, she should be

granted the opportunity for oral argument. There is also a fundamental

disagreement as to whether the SOAH court’s decision was reasonably supported

by substantial evidence that would be better remedied with oral argument.

Statement of Facts

On July 14, 2017, Amy Bazan (AKA Fairbank), received a Temporary

Restraining Order (TRO) against Rafael Bazan. The TRO also came with an Order

Setting Hearing for Temporary Orders in their divorce proceedings. On July 26,

2017, in the midst of the contentious divorce between Amy Fairbank and Rafael

Bazan, her now ex-husband, an intake was called into the DFPS hotline. The intake

alleged that Fairbank was neglectful in her supervision of her children, Child 1 and

Child 2. It also alleged that she physically abused the children. The intake call was

made just a day prior to when Rafael Bazan was ordered to turn over financial

details to the court so that it could determine the amount of child support he would

be required to pay. Rafael Bazan and Fairbank entered into a Rule 11 Agreement

on August 22, 2017.

The intake was assigned to Andrew Chesnut, an investigator in the Child

Protective Services unit of DFPS. During the months of July and August 2017, Mr.

Appellee’s Reply Brief
15-25-00130-CV Page 4
Chesnut conducted interviews and gathered documents and pictures. On September

6, 2017, Fairbank was notified that a finding of reason to believe for Neglectful

Supervision and Physical Abuse had been made against her and on September 13,

2018, she was notified of her right to a due process hearing at the State Office of

Administrative Hearings. Fairbank timely filed her due process request with SOAH

on September 25, 2018.

At trial, HHSC offered testimony from Andrew Chesnut, the DFPS

investigator, the Investigation Report, which is merely a summary, one picture, that

of a fly swatter, the Interim Report of the Amicus Attorney, a Rule 11 Agreement,

and an offense report from the Smith County Sheriff’s Office. 1 HHSC did not offer

any pictures or medical documentation relating to physical injuries.

The investigation report included brief summaries of the forensic interviews

that were conducted with Child 1 and Child 2. Child 1 makes no mention of being

disciplined or spanked with a fly swatter.2 Child 2, however, does tell the forensic

interviewer that Plaintiff spanked Child 1 with the swatter.3 Both children were

interviewed by their amicus attorney prior to their forensic interviews.

1
Report 17-17983 from the Smith County Sheriff’s Office was offered, but not admitted at the
trial court.
2
Administrative Record, Entry 2, Pg. 000059 - 000060
3
Administrative Record, Entry 2, Pg. 000060

Appellee’s Reply Brief
15-25-00130-CV Page 5
Child 1 told the amicus about the fly swatter incident and also mentioned

that Rafael Bazan talked about her mother, Fairbank, and about the divorce

proceedings.4 Child 2 mentioned being spanked by her mom, but there was no

mention of a fly swatter.5 Child 1 also stated that her father Rafael Bazan spoke to

her about the case and about her mom. 6 Neither child made mention of Child 1

having received medical care for any alleged injury nor was there mention of law

enforcement being called as a result of the alleged spanking.

When the amicus attorney interviewed Rafael Bazan, he mentions an

incident that was alleged to have occurred in April of 2017. He said that Fairbank

came outside upset and told him that she had made Child 1 bleed. 7 He did not call

law enforcement as a result of this allegedly occurring, nor did he seek medical

treatment for the child. Mr. Bazan had to be admonished by the amicus attorney

and the judge in his divorce case because he continually discussed the case and any

actions of Ms. Fairbank with the children.

In her interview with the amicus attorney, Fairbank mentioned the fly

swatter incident and that the fly swatter was broken and that it had cut the child.

There was no mention of bleeding or bruising. 8

4
Administrative Record, Entry 2, Pg. 000210 - 000212
5
Administrative Record, Entry 2, Pg. 000212 - 000214
6
Administrative Record, Entry 2, Pg. 000212 - 000214
7
Administrative Record, Entry 2, Pg. 000214 - 000216
8
Administrative Record, Entry 2, Pg. 000216 - 000219

Appellee’s Reply Brief
15-25-00130-CV Page 6
Investigator Andrew Chesnut met with the children on July 27, 2017, in a

face-to-face meeting. He observed both children to be free from any bruises or

marks. He did not interview either child as they were already scheduled for their

forensic interviews. Mr. Chesnut spoke with Rafael Bazan over the phone twice. In

his first conversation he makes no mention of Fairbank using a fly swatter on Child

1. During the second phone call, Mr. Bazan denied having any pictures of the

alleged injury caused by Fairbank.9 In her one face-to-face interview with Andrew

Chesnut, Ms. Fairbank admits to using the fly swatter, but stated that it only caused

a partial skin break. Again, there is no mention of bleeding or bruising.

During her testimony before the trial court, Fairbank asserted that spanking

her biological children, even with the fly swatter, was reasonable discipline and

that reasonable discipline was legal and allowed in the State of Texas. She believed

that the discipline was reasonable as there were only minor temporary marks.

When asked about the marks at trial, Fairbank stated that they were more of a

scratch, indicating that any marks on Child 1 were transient in nature.

Summary of the Argument

This appeal involves a suit for judicial review. The SOAH ALJ’s findings of

abuse were not supported by substantial evidence—a standard which the district

court properly applied. There is not substantial evidence in the record that Fairbank

9
Administrative Record, Entry 2, Pg. 000199

Appellee’s Reply Brief
15-25-00130-CV Page 7
abused her child and therefore, her name should be removed from the Child Abuse

and Neglect Central Registry, and the decision of the District Court to reverse the

trial court should stand.

The trial court erred in its decision and order when finding that HHSC had

met their burden and proven by a preponderance of credible evidence that

Fairbank had physically abused Child 1. For the decision of the trial court to be

maintained, there must be substantial evidence in the record that Ms. Fairbank

abused her child. However, it is Fairbank’s assertion that the burden was not met

and therefore the decision of the lower court should have been reversed thereby

overturning the physical abuse finding. The District Court agreed with Fairbank

and reversed the trial court.

Without pictures or medical documentation, HHSC did prove that the

injuries that were alleged to have been sustained by Child 1 were anything but

transient. Even if there was a partial skin break that bled, there was no evidence

presented to show that there was a large amount of blood loss and/or that the

bleeding lasted for a lengthy period of time. Ms. Fairbank testified that the injury

was only a partial skin break that was more like a small cut. All of this, with the

fact that there was a material dispute as to the degree of the injuries goes to show

that there was not a preponderance of credible evidence.

Appellee’s Reply Brief
15-25-00130-CV Page 8
The evidence presented at the SOAH trial did not prove that Plaintiff

Fairbank physically abused Child 1 under the definition given in the code. While

Ms. Fairbank admitted to spanking her child, she did so in a manner that meets the

reasonable discipline standard. The trial court put their focus on the instrument, a

small flexible plastic fly swatter, when their focus should have been on the result

of the spanking.

The upheld finding of physical abuse was made by the trial court even

though it was not reasonably supported by substantial evidence when considering

the reliable and probative evidence presented in the record. The case was properly

reversed. The district court did not ignore substantial evidence when found that

there was no substantial evidence in the record to support the finding of physical

abuse against Ms. Fairbank. The district court did not improperly usurp the

agency’s authority, nor did it substitute its own judgment for that of the agency.

The district court’s decision should be affirmed.

Standard of Review

While the law requires that the substantial evidence rule be used in this case

and that a court may not substitute its judgment for that of the agency as to the

weight of the evidence on questions committed to agency discretion, it can and

shall reverse or remand the case for further proceedings if substantial rights of the

appellant have been prejudiced because the administrative findings, inferences,

Appellee’s Reply Brief
15-25-00130-CV Page 9
conclusions, or decisions are not reasonably supported by substantial evidence in

view of the reliable and probative evidence in the record as a whole. Tex. Health

Facilities Comm’n v. Charter Med,-Dallas, Inc., 665 S.W.2d 446, 450 (1984).

Here, the reliable and probative evidence in the record shows that Plaintiff

Fairbank did not physically abuse her child.

Reasonable minds would not have reached the same conclusion that the trial

court did in this case. It is only when “reasonable minds could have reached the

same conclusion that the agency must have reached” that the court must uphold the

agency’s ultimate decision. Dyer v. Tex. Comm’n on Envtl. Quality, 646 S.W.3d at

514 (quoting Tex. Health Facilities Comm’n v. Charter Med.-Dall., Inc., 665 S.W.

2d 446, 453 (Tex. 1984)). In this case, reasonable minds would have disagreed,

and therefore the district court’s decision to reverse the SOAH court must be

affirmed.

Appellee’s Reply Argument

I. The Decision and Order on the abuse issues does NOT further the goals
of the Texas Family Code and the state’s interest in protecting
children from physical abuse.

It can be agreed that the purpose of Chapter 261 of the Texas Family Code is

to protect children. One of the ways this can be ensured is by conducting prompt

and thorough investigations into suspected abuse or neglect reports when they are

made. The report in this case was not made promptly, as the incident was alleged

Appellee’s Reply Brief
15-25-00130-CV Page 10
to have occurred in April of 2017, with the intake being made to the Abuse/Neglect

Hotline in July of 2017. 10 Nor were the allegations made during the intake

investigated thoroughly.

The months between when Child 1 was disciplined in a reasonable manner

by Ms. Fairbank and when the intake was made, proved that there was not a

prompt and immediate call to the abuse/neglect hotline. The intake was not made

until Fairbank, and her now ex-husband, Rafael Bazan were in the midst of a

contentious divorce. Mr. Bazan weaponized DFPS against Ms. Fairbank in order to

obtain custody of their two daughters. By ruling in favor of HHSC in this case, the

trial court ignored the central purpose of Chapter 261 of the Texas Family Code.

The trial court ignored the fact that the intake call was made months later, that

there were no calls to law enforcement regarding the incident, no medical records,

and no pictures of the scratch.

The definition of “abuse” in Texas Family Code Section 261.001(1)(c)

included a reasonable discipline component, which the trial court ignored.

Reasonable discipline is defined in Texas Administrative Code Section 707.455 as

discipline that is reasonable in manner and moderate in degree, does not constitute

cruelty, reckless behavior, or grossly negligent behavior; and is administered for

purposes of restraining or correcting the child. The discipline shall not include an

10
Administrative Record, Entry 2, Pg. 000214 - 000216

Appellee’s Reply Brief
15-25-00130-CV Page 11
act that is likely to cause or causes an injury more serious than transient pain or

minor temporary marks.

There is nothing in the record to prove that any injuries, marks, bruises, or

scratches were anything other than minor temporary marks. No one asked the child

whether she felt pain when spanked with the fly swatter. Without anyone having

asked the child if she felt pain and how long it lasted, if she had, there is no proof

that there was anything other than transient pain. The Defendant also failed to

provide any pictures of scratch. There was not one piece of evidence to show that

Plaintiff Fairbank’s spanking of her child was anything other than reasonable

discipline. Had it been more serious than transient pain or minor temporary marks,

surely Mr. Bazan would have taken his child to receive medical treatment and not

wait until months after the spanking to only bring it up in the divorce proceedings.

There was no substantial evidence to prove physical abuse, and therefore the ruling

should have been reversed, as was done at the district court.

II. The Decision and Order on the abuse issue is NOT supported by
substantial evidence.

At trial, the Defendant offered testimony from Andrew Chesnut, in which he

testified that he believed the children were credible and that they had made

consistent statements. He said this while also acknowledging that the children had

been talked to about the case by their father, and that this had been done to the

extent that it led to him being admonished for it. Mr. Chesnut testified and
Appellee’s Reply Brief
15-25-00130-CV Page 12
confirmed that the types of actions taken by Rafael Bazan during the pendency of

the divorce are not allowed and that they lead to “coaching.” When there is even a

hint of coaching in a situation such as a divorce, it lends less credibility and

reliability to the statements given by the children.

The statements given by the children were also not consistent. When looking

at the investigation report, which only included brief summaries of the forensic

interviews that were conducted with Child 1 and Child 2, one can see how the

statements are not consistent. For instance, Child 1 makes no mention of being

disciplined or spanked with a fly swatter. 11 Child 2, however, tells the forensic

interviewer that Fairbank spanked Child 1 with the swatter. 12

The children’s interviews with the amicus attorney are also not consistent

with the facts as HHSC wants this Court to believe. When interviewed by the

amicus attorney, Child 2 talked about the fly swatter incident and also mentioned

that Rafael Bazan talked about her mother, Fairbank, and about the divorce

proceedings.13 Child 1 mentioned being spanked by her mom, but there was no

mention of a fly swatter.14 Child 1 also stated that her father Rafael Bazan spoke to

her about the case and about her mom.15Neither child made mention of Child 1

11
Administrative Record, Entry 2, Pg. 000059 - 000060
12
Administrative Record, Entry 2, Pg. 000060
13
Administrative Record, Entry 2, Pg. 000210 - 000212
14
Administrative Record, Entry 2, Pg. 000212 - 000214
15
Administrative Record, Entry 2, Pg. 000212 - 000214

Appellee’s Reply Brief
15-25-00130-CV Page 13
having received medical care for any alleged injury nor was there mention of law

enforcement being called as a result of the alleged spanking. As you can see, the

children are only consistent when it comes to their father having spoken to them

about the divorce case and negatively about their mother.

Because the statements given by the children to both the forensic interviewer

and the amicus attorney are not consistent, they cannot be relied upon. Therefore,

they cannot be used to show that HHSC had a preponderance of credible evidence

at the trial court level and substantial evidence at the appellate level. One must

now look at the statements given by Fairbank and Rafael Bazan.

Prior to being interviewed by Andrew Chesnut, Mr. Bazan sat down with the

amicus attorney in his divorce case. He mentions an incident that was alleged to

have occurred in April of 2017. He said that Fairbank came outside upset and told

him that she had made Child 1 bleed.16 He did not call law enforcement as a result

of this allegedly occurring, nor did he seek medical treatment for the child. Mr.

Bazan had to be admonished by the amicus attorney and the judge in his divorce

case because he continually discussed the case and any actions of Ms. Fairbank

with the children.

Mr. Chesnut spoke with Rafael Bazan over the phone twice and in his first

conversation he makes no mention of Fairbank using a fly swatter on Child 1.

16
Administrative Record, Entry 2, Pg. 000214 - 000216

Appellee’s Reply Brief
15-25-00130-CV Page 14
During the second phone call, Mr. Bazan denied having any pictures of the alleged

injury caused by Fairbank.17 Again, just as with the interview with the amicus,

there is not mention of Rafael Bazan being so concerned with Child 1’s injuries

that he sought or provided medical attention for her, nor did he call law

enforcement to have Fairbank arrested and charged with Injury to a Child. Mr.

Bazan took no action to demonstrate to anyone that Ms. Fairbank did anything

more substantial and serious than reasonable discipline.

Next, we turn to the statements given by Fairbank. When interviewed by the

amicus attorney, Ms. Fairbank mentions the fly swatter incident and that the fly

swatter was broken and that it had cut the child. There was no mention of bleeding

or bruising. 18 Fairbank was also interviewed by Andrew Chesnut, and she admits

to using the fly swatter, but that it only caused a partial skin break. Again, there is

no mention of bleeding or bruising. When Mr. Chesnut interviewed Ms. Fairbank’s

parents, they noted no concerns with how she disciplined the children, nor had they

witnessed anything that could be described as physically abusing either child.

During her testimony before the trial court, Ms. Fairbank asserted that

spanking her biological children, even with the fly swatter, was reasonable

discipline and that reasonable discipline was legal and allowed in Texas under the

17
Administrative Record, Entry 2, Pg. 000199
18
Administrative Record, Entry 2, Pg. 000216 - 000219

Appellee’s Reply Brief
15-25-00130-CV Page 15
Texas Family Code’s definition of physical abuse. She believed that the discipline

was reasonable as there were only minor temporary marks. When asked about the

marks at trial, Fairbank stated that they were more of a scratch, indicating that any

marks on Child 1 were transient in nature.

HHSC did not offer testimony or other evidence of a medical nature. They

did not call any witnesses to testify to any marks, cuts, bruises or scratches that

Child 1 obtained as a result of being spanked that lasted longer than a few days.

The Defendant did not present any visual evidence of the injuries that Child 1 was

said to have obtained. Rafael Bazan did not take any pictures and when Mr.

Chesnut met with the children, they were both free from any marks or bruises.

When taken into consideration with the fact that the incident was alleged to have

occurred in April or May of 2017 and was not mentioned or reported until July of

2017, it is more likely that any injury that may have occurred was not substantial

and did not warrant medical treatment as a result. It further proves that any marks

were only transient in nature.

"Reasonable discipline" means discipline that is reasonable in
manner and moderate in degree; does not constitute cruelty, reckless
behavior, or grossly negligent behavior; and is administered for
purposes of restraining or correcting the child. It shall not include an
act that is likely to cause or causes injury more serious than transient
pain or minor temporary marks. The age, size, and condition of the
child; the location of the injury; and the frequency or recurrence of
injuries shall be considered when determining whether the discipline
is reasonable and moderate.

Appellee’s Reply Brief
15-25-00130-CV Page 16
40 Texas Admin. Code §707.455(b)(3)

The Texas Administrative Code, in §707.455 defines reasonable discipline

and states that ‘reasonable discipline can be administered for the purposes of

correcting the behavior of the child’, which is what Fairbank testified to. She stated

that Child 1 had flooded the bathroom and as a result, she was disciplined. The

discipline must not be cruel, reckless, or grossly negligent. There was no evidence

to state that the spanking was cruel, reckless, or grossly negligent. Reasonable

discipline must also not cause or be likely to cause anything more serious than

transient pain or minor temporary marks. The defendant did not put forth any

evidence to support their assumption that the injuries were more serious than minor

temporary marks or that the child felt more than transient pain.

There was not a substantial amount of evidence presented by HHSC when

considering the reliable and probative evidence in the record. Nor did the

Commission did not meet their burden of a preponderance of credible evidence at

the trial court and therefore this case should be reversed.

Conclusion & Prayer

Because HHSC did not present a preponderance of credible evidence at the

trial court and because there is not substantial evidence of physical abuse when

considering the reliable and probative evidence in the record, this case was

properly reversed by the district court, and their decision should stand. Without

Appellee’s Reply Brief
15-25-00130-CV Page 17
any evidence to show that spanking her biological child was anything other than

reasonable, the trial court should have evaluated the evidence in the light most

favorable to Fairbank, which would have led to the physical abuse finding to be

overturned, which is exactly what the district court ruled. Accordingly, Appellee

Fairbank respectfully request the Court to affirm the decision of the district court.

Respectfully submitted,
LADD LAW FIRM, P.L.L.C.

______________________
Norman R. Ladd
State Bar No. 24041285
Prema Autry
State Bar No. 24082357
223 S. Bonner Ave.
Tyler, Texas 75702
T: (903) 705-7211
F: (903) 705-7221
nladd@laddtxlaw.com
pautry@laddtxlaw.com
ATTORNEYS FOR PLAINTIFF

Appellee’s Reply Brief
15-25-00130-CV Page 18
Certificate of Service

I certify that a true and correct copy of this Appellee’s Reply Brief was filed
electronically and was served on counsel for Appellant on November 5, 2025,
pursuant with Texas Rule of Appellate Procedure 9.4(i)(2)(B), this brief contains
3,946 words, excluding the portions of the brief exempted by Rule 9.4(i)(1).

Ted Ross  E-Service
State Bar Number: 24008890
Administrative Law Division
P. O. Box 12548
Austin, Texas 78711-2548
T: (512) 475-4191
F: (512) 320-0167
ted.ross@oag.texas.gov

_______________________
Prema Autry

Appellee’s Reply Brief
15-25-00130-CV Page 19
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
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Cheryl Kuester on behalf of Prema Autry
Bar No. 24082357
ckuester@laddtxlaw.com
Envelope ID: 107716161
Filing Code Description: Brief Requesting Oral Argument
Filing Description: Appellee Amy Bazan a/k/a Amy Fairbank's Reply Brief
and Request for Oral Argument
Status as of 11/5/2025 4:52 PM CST

Case Contacts

Name BarNumber Email TimestampSubmitted Status

Jeff Lutz jeff.lutz@oag.texas.gov 11/5/2025 4:40:50 PM SENT

Ted Ross ted.ross@oag.texas.gov 11/5/2025 4:40:50 PM SENT

Cheryl Kuester ckuester@laddtxlaw.com 11/5/2025 4:40:50 PM SENT

Norman Ladd nladd@laddtxlaw.com 11/5/2025 4:40:50 PM SENT

Prema Autry pautry@laddtxlaw.com 11/5/2025 4:40:50 PM SENT