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In re L. M. M.

Court of Appeals of Texas, First District

May 11, 2017


         On Appeal from the 257th District Court Harris County, Texas Trial Court Case No. 2015-17733

          Panel consists of Chief Justice Radack and Justices Brown and Lloyd.


          Sherry Radack Chief Justice

         This is an appeal from an order terminating Mother's parental rights to her minor son, L.M.M., on the grounds that she "knowingly placed or knowingly allowed the child to remain in conditions or surroundings which endanger the physical or emotional well-being of the child, " and that termination was in the child's best interest. See Tex. Fam. Code Ann. § 161.001(b)(1)(D), (b)(2). We affirm.


         L.M.M. sustained serious injuries that were first referred to the Department of Family Protective Services on April 2, 2015, when L.M.M. was 7 months old. Mother denied injuring him and denied any knowledge about the source of the injuries. On April 29, 2015, the Department filed a suit for protection and was granted temporary managing conservatorship. L.M.M. was placed with his Aunt and Uncle, where he has since remained, and they would like to adopt him.

         On November 22, 2016, a trial was held on the Department's petition to terminate Mother's and Father's parental rights that centered largely on evidence about who L.M.M. had been left with who might have repeatedly injured him. The trial court terminated both Mother's and Father's parental rights. Only Mother appealed, challenging the sufficiency of the evidence to support the trial court's order.

         A. September - November, 2014

         L.M.M. was born on September 1, 2014. For the first three months, Mother lived in an apartment with her mother, Vickie, and L.M.M. Father was not present in Mother's or L.M.M.'s life. Mother did not work and was L.M.M.'s primary caregiver. Mother testified that Vickie was a cook for a Head Start program. Mother did not have her own transportation, but often she and L.M.M. would go to work with Vickie. Sometimes Mother would leave L.M.M. there to be taken care of by Vickie and Vickie's co-workers. Mother believed L.M.M. was well-taken care of there. She testified that, when she would return, L.M.M. would be "laughing and giggling and looking around like a happy baby." During this time, Mother testified that she never observed any injuries on L.M.M.

         Vickie also testified that she never observed any injuries on L.M.M. during this period that they lived together.

         Vickie's supervisor B. Turner, also testified about keeping L.M.M. for Mother at Vickie's workplace. Turner "always observed [Mother] as a loving and caring mom, and she always was protective of [L.M.M.]." Turner testified that L.M.M. was always supervised and well taken care of when he was at their workplace. Turner never saw any marks or bruises on L.M.M.

         Another of Vickie's co-workers, E. Gamble, likewise testified that she observed Mother being loving, caring, and affectionate towards L.M.M. Gamble never observed L.M.M. with any injuries.

         Mother met Reynaldo, her cousin's husband, in October of 2014. They started dating shortly after they met.

          B. December 2014 - January 2015

         Vickie moved out after November 2014. Mother and L.M.M. then lived alone together in the apartment in December 2015 and January 2016. In January, Mother got a job with Dish Network. Mother testified that, when she started work, Lisa-who she identified as her pastor's wife-took care of L.M.M. Mother selected Lisa to take care of L.M.M. because "she stayed at home, and she was a loving, caring person." During the month that Lisa cared for L.L.M., Mother never noticed any "type of injury or any signs that he had, in anyway, been harmed."

         Lisa likewise testified that, during the approximately four weeks she kept L.M.M. while Mother was at work, L.M.M. was "clean and healthy and happy and well-fed and taken care of." He was "growing and developing fine." Mother always provided anything L.M.M. needed, and Lisa saw Mother being a "very attentive, good mommy."

         C. February 2015

         At the beginning of February 2015, Mother decided to have her family take care of L.M.M. instead of Lisa to save money. Mother's sister, Markisha, and Vickie would take turns keeping L.M.M. while Mother was at work.

         Markisha and Vickie testified that they did not notice any injuries on L.M.M. during February 2016. Vickie testified that Mother was a nurturing mother, and Markisha testified that L.M.M. "was well taken care of." Both Vickie and Markisha have seen Mother interact with her nephews and believe that she is good with kids.

         Another change in February 2015 was that Mother and L.M.M. moved from their apartment into Reynaldo's house, where they lived with several of Reynaldo's relatives. Living in the house were Reynaldo, Reynaldo's mother (Helen), Reynaldo's father (Carmen), Reynaldo's sister (Arely), Reynaldo's sister (Ester), Ester's husband (Jiro), and Ester's son (Mason).

         Mother testified that, on February 9, 2015, she went to work and Reynaldo stayed at home with L.M.M. When Mother returned home that day, five people were there-Reynaldo, L.M.M., Ester, Mason, and Helen.

         About 15 minutes after Mother arrived home on February 9, she noticed L.M.M.'s head was bulging at its "soft spot." Reynaldo had to take a younger sister Arely somewhere, so Helen drove Mother and L.M.M. to the Memorial Hermann Hospital emergency room. Mother testified that a nurse diagnosed L.M.M. with a mild respiratory infection, and told her to have the pediatrician look at his bulging fontanel if it did not go down in three to five days.

         Memorial Hermann's records of this visit were entered into evidence at trial. L.M.M. presented with a 101.3 fever. The records identified the "Chief Complaint" as "fever, fuzzy since yesterday and mother noticed bulging fontanel today." The reason for the visit was identified as "Fever." The medical exam summary and discharge notes did not indicate identify any additional injuries or medical problems. Mother testified that she did not follow up with the pediatrician because the bulge had gone down the next day.

         D. March 2015

         Mother testified that, sometime mid-March, 2015, she noticed a rash "on the top of [L.M.M.'s] private area." She took him to the doctor, who prescribed medication and told her to follow up in three days. No medical records were introduced at trial from this episode, but hospital records from a later visit note that Mother and Reynaldo report this history as "a blister on [L.M.M.]'s penis."

         Almost immediately, Mother noticed faint red marks on L.L.M.'s hands and feet. She testified that she took pictures to show the doctor at the follow-up appointment from L.M.M.'s rash. L.M.M. did not appear distressed at having his hands and feet examined by the doctor. Mother believed L.M.M. was having a reaction to the medication he was recently prescribed. No medical records were introduced at trial from this episode, but the Department's notes from contact with the doctor's office indicate no concerns about L.M.M., and that no signs of abuse or neglect were noted at that visit.

         Mother testified that, later in March, she went for a walk with L.M.M. and noticed he had a bump on his forehead. She had the impression the bump was a mosquito bite because Mother would "welt up" when bitten as a child. She took a picture and called her mother Vickie for advice. Mother testified that she followed Vickie's advice to wipe the bump down with alcohol, change L.M.M.'s sheets and wipe down his bed. The bump receded within a couple of hours, and Mother testified that she did not see any additional bumps, so she did not seek medical care. Later hospital records note Mother and Reynaldo described this as "two bumps and bruises on [L.M.M.'s] forehead for which she took pictures but did not receive medical care" in reporting L.M.M.'s medical history.

         Mother testified that she did not work in March, so she was "full-time taking care of" L.M.M. She and Reynaldo, however, did go out apartment hunting two times a week without L.M.M. These times, L.M.M. would stay with Reynaldo's sister, Ester.

         E. April - May 2015

         Mother testified that, on April 1, 2015, Helen asked Mother to pick up Arely from school. L.M.M. stayed with Helen and Ester. Mother returned with Arely about one hour later. Mother testified that L.M.M. was sleeping, and Helen and Ester said they would bring him to Mother in her bedroom when he woke up. A few minutes later, Ester brought L.M.M. in. He was crying. Mother soothed him, and she and L.M.M. then took a nap together. Mother testified that L.M.M. had not been feeling well; he was spitting up and losing weight. She attributed this to his transition from breast milk to formula. When Mother woke up, Reynaldo was holding L.M.M. Mother went to take a shower.

         In a matter of minutes, Reynaldo came into the bathroom carrying L.M.M. and said, "there is something wrong with [him]." Mother saw L.L.M. was not moving and was barely breathing. Mother testified that, when she asked Reynaldo what happened, he said L.M.M. had been fine when Mother left the room, then L.M.M. was gassy, and then went limp and was barely breathing.

         Reynoldo and Mother took L.M.M. to the emergency room at West Houston Medical Center. He was lethargic with a slow pulse and breathing. A CAT scan there revealed "bilateral subdural hematomas, " i.e., bleeding of the brain. L.M.M. was transferred by ambulance to Texas Children's Hospital for more intensive care.

         The tests run at Texas Children's Hospital revealed extensive injuries, some of which L.M.M. will never recover from, characterized as likely related to "nonaccidental trauma" and "consistent with child abuse." Injuries identified by the hospital included (1) several brain hemorrhages (of varying ages) and fresh blood in the brain, (2) at least 20 broken bones throughout L.M.M.'s body (also of varying ages), (3) multiple fractures in the hands and feet (likely caused by squeezing or closing of the fingers), and (4) broken blood vessels at the pinky.

          The Department began an investigation into L.M.M.'s injuries when he was hospitalized and Texas Children's recognized that his injuries were likely caused by abuse. It was not able to determine who was responsible for the abuse.

         Following more than a month of intensive treatment, L.M.M. was discharged from Texas Children's Hospital on May 9, 2015. The discharge notes contain the following summaries of the conditions identified:

         Final Diagnoses: Principal Problem:

Non-accidental traumatic injury to child Active Problems:
Bilateral subdural hematoma
Fracture of arm, multiple, ...

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