On Appeal from the 314th District Court Harris County, Texas Trial Court Case No. 2011-05565J
The opinion of the court was delivered by: Evelyn V. Keyes Justice
Appellant, J.S.E., appeals the trial court's termination of her parental rights to her child, G.A.A. In four issues, she argues that the evidence was legally and factually insufficient to support termination of her parental rights pursuant to Family Code sections 161.001(1)(D),(E), (O), and (P) and that her trial counsel was ineffective for failing to move to dismiss the suit when the trial on the merits was held after the statutory dismissal date.
J.S.E. gave birth to G.A.A. on April 12, 2006. He was born prematurely and suffers from multiple health problems, including cerebral palsy, seizures, and hydroencephalitis. This termination suit arose out of a report received by the Department of Family and Protective Services ("DFPS") on September 8, 2011, that G.A.A. "was found with bruises on his legs and buttocks." DFPS filed its original petition for protection of G.A.A. and termination of J.S.E.'s parental rights on September 9, 2011.
According to the affidavit of caseworker Misty Brown, filed with the petition in the trial court, the person making the report told DFPS that "[J.S.E.] admitted that she spanked [G.A.A.] with a shoe because he would not stop touching his finger to his teeth which caused his mouth to bleed and he knows better." Brown also averred that G.A.A. had a seizure on September 7, 2011, and "[a]ccording to [J.S.E.], she stated that she had stopped hitting [G.A.A.] on his feet and arms because he does not respond. [G.A.A.] is not verbal or mobile." Finally, Brown reported that "[t]he mom is said to smell like marijuana at times and to have shot the child in the past with a BB gun in the eye."
Brown averred that she observed bruises on G.A.A.'s legs and buttocks. In the course of her investigation, Brown talked with the home health nurse, Rhonda Allen, who made the following report to DFPS: J.S.E. "admitted that she spanked the child for poking his teeth with his fingers" and told Allen "that if she [J.S.E.] comes home and the child has blood in his mouth or something else that she [J.S.E.] is going to give him (the child) more than bruises"; Allen was concerned "about the mother giv[ing] the child too much medication in an effort to control his behavior"; G.A.A. did not have a wheelchair or other proper equipment; and "there are medicines that the child needs that are not being given to him."
Brown further averred that she contacted J.S.E., who "admitted to spanking the child with a shoe because he was digging in his eye and poking his teeth with his fingers. [J.S.E.] stated that he (the child) knew what he was doing and he knew it was wrong. [J.S.E.] was very hostile with [Brown] as well as the police officer and the nurse. She then refused to answer any other questions." Brown transported G.A.A. to Texas Children's Hospital for evaluation, and the physician indicated that the bruises were "consistent with abuse." The physician's report was attached to Brown's affidavit and filed with the trial court.
Brown also stated that J.S.E. had an extensive history with DFPS. In 2006, DFPS investigated J.S.E. for "not following up with doctor's orders in regards to [G.A.A.'s] medical condition." After investigation, the report was "ruled out with risk indicated," J.S.E. was referred for family based services, and, "upon completion of services," the case was closed. In 2007, DFPS investigated allegations that "there was a controlled substance found in the presence of the child" and that J.S.E. "was not following through with medical care for the child."
G.A.A. was hospitalized for several days, DFPS found "reason to believe" the allegations, and G.A.A. was "placed in care in Nueces County." Twice in 2009, DFPS received allegations regarding J.S.E.'s neglect of G.A.A. that were "investigated and ruled out." In January 2010, "it was recommended that [G.A.A.] be admitted to the hospital for observation at the doctor's request and the mom refused and left. It was alleged that the mom does not understand the severity of the situation and [was] not being protective. The case was investigated and administratively closed." In August 2010, J.S.E. allegedly "accidentally shot the child with an air gun in which the child sustained a red mark to [a] vital area." The police investigated, and a second referral came in during that investigation alleging that J.S.E. "places the child at substantial risk of harm due to inadequate supervision." Regarding the investigation, Brown averred that J.S.E. "appears to have shot the child in the eye with a pellet gun but stated that she was not aware that it was loaded. The mom admitted that she frequently aims the empty gun at the child. The case was investigated" and DFPS found there was "reason to believe" the allegation.
The trial court granted DFPS temporary sole managing conservatorship of G.A.A. and set a full adversary hearing for September 22, 2011. The trial court also determined that "[p]ursuant to § 263.306(11), Texas Family Code," the date for "dismissal of this cause shall be" September 10, 2012.
At the September 22, 2011 hearing, Brown and Allen testified regarding the information contained in the affidavit. Brown testified that she observed bruising on G.A.A.'s thighs and buttocks. She testified that J.S.E. admitted striking G.A.A. with a shoe, and Brown also expressed concerns regarding J.S.E.'s over- medication of G.A.A., J.S.E.'s "threat" to "whoop" G.A.A. "even more," and J.S.E.'s history with DFPS regarding allegations of medical neglect and neglectful supervision. Brown also testified regarding DFPS's investigation into the allegation that J.S.E. accidentally shot G.A.A. in the eye with a pellet gun. Allen testified that she observed bruises on G.A.A. that could not have been self- inflicted, that J.S.E. admitted she gave G.A.A. the bruises by hitting him, and that J.S.E. threatened to "do more than bruise" him if he scratched himself any further. Allen also stated that J.S.E. refused to allow Allen to administer necessary medication to G.A.A., which Allen believed was a form of abuse.
J.S.E. also spoke on the record at the September 22, 2011 hearing. She stated that she "did pop [her] child. It wasn't beating. It wasn't no continuous hitting. It was a pop to startle him." She stated that G.A.A. would hurt himself and that she was attempting to restrain him from further self-injury. The trial court appointed DFPS as G.A.A.'s temporary managing conservator and approved his placement in a therapeutic foster home.
On March 6, 2012, the trial court held the first permanency hearing. DFPS caseworker Wesley Hollis testified that G.A.A. would soon be turning six years old, that he had cerebral palsy, respiratory distress, and a history of seizures, although "he hasn't had any since he's been in care." Hollis also testified that G.A.A. had been born prematurely and that he had "failure to thrive" and congenital hydroencephalitis. He also stated that his therapeutic foster home was a good placement and that G.A.A. was "doing great."
The trial court ordered DNA testing of G.A.A.'s purported father, G.A. Hollis further stated that J.S.E.'s mother was denied as a possible placement for G.A.A. because she lacked transportation and income, which she would need "considering [G.A.A.]'s medical needs." Hollis testified that J.S.E. had signed her family service plan, but she had not begun working the services. Hollis further stated that J.S.E. was not cooperating with DFPS and that J.S.E. had the knowledge to care for G.A.A.'s medical conditions but "she doesn't want to follow the doctors' directives in regards to arguing with me and regards to how we're taking care of" G.A.A. G.A.A.'s child advocate and attorney ad litem both informed the trial court that they had observed G.A.A. and he was doing well in his current placement. The following exchange then occurred:
[J.S.E.'s counsel]: [The Court]:
Could the Court admonish the mother, Your
Honor? She refuses to work the service plan and--
Well, I don't know. What am I supposed to tell her, work the service plan?
Or her rights could be severely restricted. I think she knows that.
Oh, yes, ma'am. I have dealt with this for quite awhile. Too long. ...