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In re A.L.

Court of Appeals of Texas, Fourth District, San Antonio

February 21, 2018

In the Interest of A.L. et al., Children

         From the 25th Judicial District Court, Guadalupe County, Texas Trial Court No. 16-2158-CV Honorable Thomas Nathaniel Stuckey, Judge Presiding

          Karen Angelini, Justice Patricia O. Alvarez, Justice Irene Rios, Justice


          Irene Rios, Justice


         This is an accelerated appeal from an order terminating Mother's parental rights to her four children, A.L., A.L., A.L., and A.L.[1] Mother contends the evidence is legally and factually insufficient to support the trial court's findings with regard to the three statutory grounds for termination and its finding that termination of Mother's parental rights is in the children's best interest. Mother also contends she received ineffective assistance of counsel. We affirm the trial court's order terminating Mother's parental rights.


         On September 17, 2016, the Texas Department of Family and Protective Services ("Department") received a referral alleging child abuse when A.L.4 was admitted to the hospital with an unexplained traumatic head injury and intracranial bleeding. In light of A.L.4's injuries and Mother's statements to investigators, the Department filed suit to terminate Mother's rights to her four children, A.L.1, A.L.2, A.L.3, and A.L.4. On September 30, 2016, the trial court awarded the Department temporary managing conservatorship of the four children. A.L.1 and A.L.2 were placed in the maternal grandparents' home and A.L.3 and A.L.4 were placed with a foster family. At the non-jury trial held on September 18, 2017, the trial court heard testimony from Department investigator Daniel Uresti, Seguin Police Department Detective Vasser, Department caseworker Tracey Fewell, the foster mother of A.L.3 and A.L.4, and three medical doctors who had treated A.L.4. At the time of trial, A.L.1 and A.L.2 ("the girls") were four years old and three years old, respectively, and twin boys A.L.3 and A.L.4 ("the twins") were fifteen months old.

         Uresti testified that on September 17, 2016, he was informed of a possible case of child abuse when A.L.4 was admitted to the hospital and diagnosed with intracranial bleeding. At that time, A.L.4 was three months old. After arriving at the hospital where A.L.4 was being treated, Uresti met with Mother. According to Uresti, Mother told him A.L.4 had been fussy throughout the day and the girls had been a handful. Mother tried to comfort A.L.4 to stop his crying, but A.L.4 only cried louder. Uresti stated Mother told him she then picked A.L.4 out of his basket, raised the child up to her eye level, and shook him. A.L.4 stopped crying, and Mother put A.L.4 back in his basket. Shortly thereafter, A.L.4's arms and eyes began to twitch, and Mother decided to take him to the hospital.

         During their conversation, Mother also told Uresti she had anger issues, and that one of her prior parole officers had advised her to seek help for her anger issues. Mother told Uresti she knew she had shaken A.L.4 too hard, and that she should have removed herself from the area to deal with her anger before shaking A.L.4. Mother also informed Uresti that she fought with and beat her own mother. Uresti testified that while they were at the hospital, Uresti and Mother viewed A.L.4, who was intubated and sedated in ICU. According to Uresti, Mother spoke to the child, saying, "I'm sorry, baby. I'm sorry … I'm sorry for what I did to you."

         After speaking with Mother, Uresti called Detective Vasser and informed Vasser of what Mother told him. Vasser requested Mother go to the police station so Vasser could interview her. According to Vasser, after conversing about the doctors' findings regarding A.L.4's injuries, Mother admitted she shook A.L.4 because he would not stop crying. Mother related to Vasser she was extremely stressed out the day she shook A.L.4 and that she gets overwhelmed at times because she has so many small children.

         According to Department caseworker Fewell, at the time of the incident giving rise to A.L.4's injury, Mother and Father were separated due to incidents of domestic violence between them. Fewell related the last known incident of domestic violence between Mother and Father occurred just before the twins' birth while A.L.1 and A.L.2 were present in the home. Fewell testified that when she first spoke with Mother in October 2016, Mother was remorseful and indicated a willingness to do whatever the Department requested of her in order to regain custody of her children.

         The Department assigned Mother a service plan, which was made an order of the court. Mother completed a parenting class, an anger management class, and a psychological evaluation. Mother also maintained consistent contact with the children by sending them letters and drawings. However, Mother was unable to complete the remaining classes required by her service plan because she was arrested and subsequently imprisoned in April 2017 following the revocation of her parole. Mother remained incarcerated at the time of trial. The Department introduced evidence of Mother's criminal history, which includes convictions for assault-bodily injury-family violence against Mother's now-adult daughter and engaging in organized criminal activity, for which Mother was sentenced to three years' imprisonment. The Department also introduced into evidence an indictment against Mother for injury to a child with intent to commit serious bodily injury for shaking A.L.4. Fewell related that since Mother was reincarcerated, her attitude has worsened, she no longer feels remorseful for her actions, and she has accused the Department of conspiring against her to ensure she does not regain custody of her children.

         Fewell testified A.L.1 and A.L.2 have lived with their maternal grandmother and step-grandfather ("grandparents") since November 2016 as a result of a court-ordered placement and following an approved home study. Fewell testified A.L.1 and A.L.2 are thriving in their placement with the grandparents and love their grandparents very much. Fewell related the girls respond very well to the grandparents, get along well with each other, and are doing very well both in school and in day care. Fewell testified the Department has agreed to allow Father unsupervised possession of the girls on a weekly basis, and that the Department's plan for the girls is for the grandparents to be their permanent managing conservators and for Father to eventually be named possessory conservator. According to Fewell, Father has a positive influence on the girls and guides, counsels, and instructs them in an appropriate manner. Fewell further testified the grandparents and the twins' foster parents have a great relationship and facilitate sibling visitation between the girls and the twins.

         E.V., the foster mother of A.L.3 and A.L.4, testified she and her husband have cared for the twins in their home for approximately a year. E.V. testified she is a stay-at-home mother. E.V. related that A.L.4 has severe hemophilia A, cerebral palsy, and epilepsy, and A.L.3 has severe hemophilia A. E.V. related that both twins require extensive medical care, e.g., both twins receive treatment for hemophilia by way of needle injections via port-a-cath. A.L.3 receives treatment biweekly, while A.L.4, whose condition is much worse, receives treatment daily. E.V. testified a home health nurse comes to their home to attend to the twins' medical needs and administer the treatment. E.V. further testified A.L.4 spent 24 days in the hospital throughout the past year due to issues related to his hemophilia or epileptic seizures.

         Regarding the twins' development, E.V. testified that although A.L.3 can push buttons on toys, walks around the house by holding onto furniture, and socializes well with others, A.L.4 cannot. Furthermore, A.L.4 will soon need to start wearing braces on his feet to assist him with standing and walking. E.V. testified the twins will require full-time, 24-hour care, and that A.L.4 will likely require full-time care for the rest of his life. Despite their medical conditions, E.V. has seen significant progress in the twins' development since taking them into her home. E.V. testified she and her husband love A.L.3 and A.L.4 and are willing to adopt them if given the opportunity.

         Fewell testified that E.V. and her husband have designed their house to adequately meet the twins' medical and social needs; the twins require intensive, 24-hour supervision; and she has no doubt E.V. is able to meet the twins' needs. According to Fewell, Mother does not have either the knowledge or the ability to care for the twins' medical needs. Fewell further testified the Department's plan for the twins is for them to be adopted by E.V. and her husband. Fewell testified none of the children are at risk of any physical harm in their current placements.

         Dr. Melissa Frei-Jones explained that when A.L.4 was admitted to the hospital after being shaken by Mother, his intracranial bleeding required significant surgery to remove a subdural blood clot. Dr. Frei-Jones affirmed the twins require extensive medical care and A.L.4 in particular requires constant supervision. Dr. Natalie Kissoon testified that when A.L.4 was admitted to the hospital in September 2016, the CT scan revealed A.L.4 had sustained significant trauma to the brain. Dr. Kissoon also explained, given the nature of A.L.4's injury, the likelihood that something other than physical abuse was responsible for A.L.4's injury was "very, very, very, very, very, very small." Dr. Sidney Atkinson testified A.L.4's brain injury was so extensive, it would be similar to an injury sustained in a high-speed car collision or from falling off the porch of a multistory building. Dr. Atkinson explained such brain damage is also seen in children who suffer from Shaken Baby Syndrome. Dr. Atkinson further testified that, based on her examinations of the child and the child's medical history, she concluded A.L.4's epilepsy and cerebral palsy are linked to the head trauma he sustained in September 2016. According to Dr. Atkinson, A.L.4 has no chance of ever fully recovering from the injuries he sustained from trauma to the brain.

         After receipt of evidence and testimony, the trial court signed an order terminating Mother's parental rights to the four children. Specifically, the trial court found Mother (1) engaged in conduct or knowingly placed the children with persons who engaged in conduct endangering the children's physical or emotional well-being; (2) knowingly placed or knowingly allowed the children to remain in conditions or surroundings which endanger their physical or emotional well-being; and (3) failed to comply with the provisions of a court order that specifically established the actions necessary for her to obtain the return of children. See Tex. Fam. Code Ann. ยง 161.001(b)(1)(D), (E), (O) (West Supp. 2016). The trial court also found ...

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