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In re R.M.

Court of Appeals of Texas, Second District, Fort Worth

May 21, 2018



          PANEL: MEIER, KERR, and PITTMAN, JJ.



         I. Introduction

         In this ultra-accelerated appeal, Mother and Father[2] appeal the trial court's order appointing the Department of Family and Protective Services (the Department) as permanent managing conservator of John, [3] the child subject of this appeal, [4] and restricting Mother's and Father's access to John. In one issue, Mother argues that the trial court abused its discretion by appointing the Department as permanent managing conservator of John instead of her. Father's court-appointed appellate attorney has filed a motion to withdraw as counsel and an Anders brief in support of that motion. We will affirm.

         II. Background

         John was thirteen years old at the time of trial. He has end stage renal disease which requires him to attend dialysis treatment three days a week-his kidneys have been removed. Doctors have also prescribed a strict diet and numerous medications in an effort to prevent him from suffering extreme hypertension, something that occurred regularly before John was removed from his parents' care and placed in foster care. Because of Mother's and Father's lack of compliance with doctors' recommendations and with the Department's family service plans, the Department sought permanent managing conservatorship of John. The trial court held a trial on December 14, 2017.

         At the trial, Investigator Nicole Weber of Child Protective Services (CPS) testified that she first learned of John and his medical needs when she was contacted by Cook Children's Hospital after Mother brought John to the hospital in April 2015. John was experiencing kidney failure and was ten years old at the time. Weber averred that she spoke with Mother about John and inquired whether Mother had brought John into the special clinic at any time during the previous year. Mother had not. According to Weber, Mother explained that John had been doing well, did not look as sick as usual, and that she had been "using prayer and church" to make John better. Mother also informed Weber that John had not been taking any medication in the past year. While at the hospital, Weber conferred with Mother to ensure that John would be brought to all necessary doctor appointments, take all necessary medications, follow all doctor recommendations, and receive all necessary dialysis treatments. A week later, as John was being discharged, Weber said that she again spoke with Mother and Father concerning John's medical needs. The couple entered into a safety plan with CPS. The safety plan specified that Mother and Father were to follow all doctor recommendations, ensure that John was taking his medications, and ensure that he made it to his dialysis treatments.

         Weber averred that her investigation resulted in Mother receiving a "reason to believe" disposition from CPS. Specifically, Mother received a "[m]edical neglect, reason to believe" because John had improperly been off his medications for the previous year and because John had missed numerous appointments to his endocrine and nephrology specialists.

         Stacy Lloyd, a Family Based Safety Services (FBSS) worker for CPS, testified that CPS assigned her to John's case in January 2016. Lloyd averred that her assignment was unrelated to the April 2015 hospitalization; rather, CPS referred John's case to FBSS after investigation into possible abuse of John's sibling resulted in doctors expressing concerns to investigators that John's medical needs were not being met. Lloyd said that she met with Mother, Father, and John on January 26, 2016. By Lloyd's account, John was familiar with the medications that he needed to be taking. He also understood what level his blood pressure should be and how to measure his own blood pressure. Having learned from a previous investigator that Mother and Father were supposed to be keeping a blood-pressure log for John, Lloyd said that she asked Mother to see the log. Mother was unable to produce a log, which concerned Lloyd because, given that John's blood pressure was to be measured every four to six hours, Lloyd believed that the log should have been readily available. Lloyd also became concerned because she believed that Mother and Father left John to monitor and take his own medications.

         According to Lloyd, a month later, she again visited with Mother and Father because the social worker at Cooks had expressed difficulty in coordinating in-house nursing assistance for John. Lloyd said that Mother and Father agreed to allow the nurse to come to the house to treat John. Many months later, in August 2016, Lloyd met with Mother and Father, a Cooks social worker, and John's nephrologist at Cooks because John had again been admitted to the hospital for high blood pressure. The purpose of this meeting was to address belief that the blood-pressure logs that Mother and Father had presented to doctors had been falsified and because one of John's blood-pressure medications, administered through a patch, was falling off, resulting in John's blood pressure being dangerously high. The meeting was also to address John having had his kidneys removed and his need of a kidney transplant, but John was not eligible for a transplant, Lloyd said, because of "a lack of compliance by the family."

         Lloyd averred that she believed that Mother and Father either did not understand the severity of John's conditions or that they did not take them seriously. She also said that she could not determine whether Mother and Father had been administering John's medications appropriately but that at one point Mother and Father were instructed to bring non-used medications to the hospital for appropriate disposal. Doctors also expressed concerns that John was not adhering to his restricted diet, one designed to help control his blood pressure. Despite all of these things, Lloyd said that CPS was preparing to close the case but that she made a recommendation that if CPS received another referral, CPS should intervene and seek a proper placement for John for his safety. CPS received another referral, and John was placed in foster care.

         Dr. Jennifer Willis, John's pediatric nephrologist at Cooks, testified that she had been treating John for years. Willis averred that John had end stage kidney disease and severe and/or malignant hypertension. Willis said that she referred John's case to CPS when she, the home health nurse who sometimes visited John's home, and two other doctors had expressed concerns about Mother's and Father's lack of compliance in treating John's conditions.

         According to Willis, under her treatment, John was first hospitalized for his kidney disease in April 2015 and while under Mother and Father's care, he had been hospitalized fifteen times between then and January 2017-all related to hypertension. But since his time in foster care, Willis said that John had only been hospitalized once between January and November of 2017, and that hospitalization was in part a scheduled procedure to have a catheter removed.

         Willis averred that several, if not most, of the fifteen hospitalizations under Mother and Father's care were preventable. Specifically, Willis said that several of his hospitalizations were due to John not having taken his medications and his fluids not being properly restricted. She also said that she believed that Mother and Father were not properly logging John's blood pressure and that they had delayed taking him to the hospital even after him having experienced seizures. She also averred that at one point Mother and Father did not even have a blood pressure machine and that the home health nurse had to purchase one for John. Willis stated that the last of John's hospitalizations while still in Mother and Father's care resulted in John going temporarily blind and that this could have been prevented had John been brought to the hospital earlier or had been medically compliant with his treatments. Willis averred that on that occasion, John's blood pressure was the worst she had ever seen in him. Willis further averred that Mother and Father had been provided a wealth of assistance to help them keep John medically compliant but that they had still not complied.

         By contrast, Willis said that since John had been in foster care, he is clinically much safer, his diet is significantly better, and his blood pressure is improving. She said that in foster care John is "doing awesome, " that his "labs look great, " and that he is "better and safer because he's not being admitted on[c]e or twice a month" to the hospital. But Willis did state that John sometimes sabotaged his dialysis treatments by drinking too much fluid. Willis surmised that John was either doing this to extend the treatments because he liked the nurses or that he was trying to show that even in foster care he could still end up in the hospital. Willis said that she believed that the parents loved John.

         Willis also said that John needed a kidney transplant and that if he remained in his current foster care and the foster parents continued to remain compliant, as they had been since his removal to their care, John could be eligible for a transplant in "a year or so." She further stated that she did not believe that John would ever be eligible for a transplant if he was returned to Mother and Father's care because of their lack of compliance with his treatments and medications. When asked what she believed would have happened to John had he remained in Mother and Father's care instead of having been removed to foster care, Willis averred that her concerns were that John "was going to have an[other] event whether it be another admission, stroke, [or] death." Willis also said that she believed that it would be dangerous to John's health if he were returned to Mother and Father's care and that she would not recommend that he receive a kidney transplant while in their care. She further said that if John ever received a transplant, his medical appointments and treatments would remain intensive.

         Willis also testified regarding John's CPS file, which had references to Mother not wanting to give John his blood-pressure medicine but rather wanting the "Lord to handle it." The file also indicated that the home health nurse was rarely permitted into the family's home, that Mother had either presented no blood-pressure log or a fraudulent one to the home health nurse, that Mother preferred to let John sit and calm down rather than give him his medications, and that Mother was uncooperative with keeping scheduled home-health-nurse appointments for John.

         Ivan Morales, a conservatorship worker for the Department who is also the family's caseworker, also testified at the trial. Morales said that he attended supervised visits between John and his parents after John had been removed to foster care and that on at least three occasions he had to discuss with Mother and Father the importance of John's diet because Mother and Father would bring John foods that were noncompliant with his ...

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