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V.C. v. Texas Department of Family and Protective Services

Court of Appeals of Texas, Third District, Austin

June 22, 2018

V.C. and R. S., Appellants
v.
Texas Department of Family and Protective Services, Appellee

          FROM THE DISTRICT COURT OF TRAVIS COUNTY, 98TH JUDICIAL DISTRICT NO. D-1-FM-16-006773, HONORABLE TIM SULAK, JUDGE PRESIDING

          Before Chief Justice Rose, Justices Goodwin and Field.

          MEMORANDUM OPINION

          Jeff Rose, Chief Justice.

         Appellants V.C. and R.S. appeal the district court's judgment rendered on the jury's verdict terminating their parental rights to their child L.S.[1] The jury found that Appellants "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 "engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangers the physical or emotional well-being of the child." See Tex. Fam. Code § 161.001(b)(1)(D), (E). The jury also found that termination of Appellants' parental rights was in the child's best interest. See id. § 161.001(b)(2).

         On appeal, Mother V.C. challenges the factual and legal sufficiency of the evidence supporting the jury's findings on endangerment and best interest and the district court's denial of her requested jury instruction. Father R.S.'s court-appointed appellate counsel has filed an Anders brief concluding that Father's appeal is wholly frivolous. See Anders v. California, 386 U.S. 738, 744 (1967); Taylor v. Texas Dep't of Protective & Regulatory Servs., 160 S.W.3d 641, 646-47 (Tex. App.-Austin 2005, pet. denied) (applying Anders procedure in appeal from termination of parental rights). Having conducted an exacting review of the evidence in its entirety, we will affirm the district court's judgment of termination. See In re A.B., 437 S.W.3d 498, 505 (Tex. 2014).

         BACKGROUND[2]

         Eighteen witnesses testified during the two-week jury trial in the underlying case including Mother, her father, her friends and her expert-witness physicians, a paramedic and hospital physicians who saw L.C.S., the medical examiner who performed L.C.S.'s autopsy, Texas Department of Family and Protective Services staff, a Court Appointed Special Advocate (CASA) supervisor, the foster parents to Mother and Father's children, a psychologist, and Father.[3] The jury heard that Mother and Father are the unmarried biological parents of twin sons L.S. and L.C.S., who were born prematurely on March 31, 2015. Mother and Father are also the parents of a daughter K.S., who was born in 2016. Additionally, Mother has two children-a son D.H.C., born in 2008, and a daughter H.V.C., born in 2011-from her previous relationship with another man.[4]

         Mother and Father began dating in 2013. She testified that after the twins were born, she, her four children, and Father lived with her parents. Mother's two brothers, her niece, and her brother's girlfriend also lived in Mother's parents' house. Mother was her children's primary caregiver. Mother and Father moved out of her parents' house in early 2017. By the time of trial, L.S. was 2½ years old, and he and his sister K.S. were living with foster parents; D.H.C. and H.V.C. were living with their biological father; L.C.S. was deceased; and Father was incarcerated on charges related to L.C.S.'s death.

         L.C.S.'s 2015 injury, hospitalization, and placement in foster care

         The events leading to the Department's first removal of Mother's children from her care occurred on September 30, 2015. On that day, Mother was in her room in her parents' home with the twins, and Father was in the children's room. Mother took L.C.S. to Father and told him to watch L.C.S. while she cleaned the other room. Mother placed L.C.S. face down on the bed and gave him his dinosaur toy, a stuffed animal. Five to ten minutes later, she heard Father screaming that something was wrong with L.C.S. Mother ran to the room where she saw Father carrying L.C.S., who was "turning different colors and shaking." Mother then ran back to the other room to get her phone and called 911.

         Father's recollection of that day's events is documented in hospital records that were admitted into evidence and contain his statements to L.C.S.'s health care providers. In those records, Father stated that Mother was cleaning a room while he was on his mobile phone and that he left that room to go into an adjacent bedroom to continue working on his phone. Father stated that after about five minutes alone in the room, Mother brought L.C.S. into the room and placed L.C.S. on the bed. Father said that he was sitting on the floor next to the bed and that he looked up and saw L.C.S. on his back, and then turned over on his stomach, playing with a stuffed toy. Shortly afterward, Father heard L.C.S. make a "weird sound" and saw that L.C.S.'s "entire face turned purple and blue." Father recalled that he stood up, scooped L.C.S. into his arms, and started "tapping" L.C.S. on his back. Father had L.C.S. positioned across one of his forearms and facing down while Father "tapped" L.C.S. with his other hand. Father stated that he then turned L.C.S. face up and saw L.C.S.'s whole body trembling, and L.C.S. scratching at his own head and face. Father stated that he took L.C.S.'s hands away from his face, and that L.C.S. then began to go limp·and close his eyes. Father then called for his wife and walked to the hallway between the two bedrooms, where he met Mother and instructed her to call 911.

         The jury heard a recording of Mother's 911 call. In the first two minutes of the recording, Mother states that her six-month-old baby is not responding, that he is having trouble breathing, and that "he's like bleeding, I don't know from where." The 911 operator asked Mother, "Did he choke on something?" and Mother responded, "No." Four minutes into the call, the staffer proceeds to give Mother directions for checking inside the baby's mouth for food or vomit. Mother checks and states that there is none, but that there is blood inside his mouth. During trial, Mother initially testified that she did not remember saying that L.C.S. had blood in his mouth. She later testified that she did see blood, but only after the 911 operator asked her to clear L.C.S.'s throat. She further testified that she opened L.C.S.'s mouth and put her finger inside it "because he was choking."

         Records from the paramedics who assisted L.C.S. noted several injuries in different stages of healing-fresh bruising to L.C.S.'s left cheek with swelling, bruising to both his ears and behind his left ear, an older abrasion to the outer ear canal of his right ear, an older contusion with abrasion on his left forehead, a new abrasion to his right eyelid, a new abrasion to bridge of his nose, and bleeding to his upper lip-leading the paramedics to believe that L.C.S. suffered a physical assault. The paramedics transported L.C.S. to Dell Children's Medical Center, contacted Child Protective Services and the sheriff's office, and provided a detective with a witness statement.

         According to medical records from Dell, Father told health care providers that L.C.S. injured himself by hitting his head "repeatedly" on a dinosaur toy. Father described L.C.S. as being "strong willed" and stated that L.C.S.'s most frustrating behavior is that he "has to be held to fall asleep." Mother told health care providers that Father had been job hunting on his phone when she asked him to watch L.C.S. Mother also told health care providers that she noticed bleeding in L.C.S.'s right ear "about 3 days ago." She denied having any problems or complications with L.C.S.'s birth or pregnancy. The medical records reflect that L.C.S. had no history of seizures and no history of trauma "except dropped toy on face." L.C.S.'s health care providers noted that his head showed evidence of trauma and that he had multiple facial abrasions and bruises. Ultimately, doctors diagnosed L.C.S. with seizures, a subdural hematoma-described by medical-expert testimony as bleeding between the skull and brain, and retinal hemorrhaging-described by medical-expert testimony as bleeding of the blood vessels in the retina at the back of the eye. Dr. Marion Forbes, who saw L.C.S. at Dell, testified that when a baby has a forceful acceleration-deceleration-type force applied to the head, blood vessels on the outside surface of the brain tear easily and bleed. She stated that children who sustain these acceleration-deceleration forces causing subdural hematomas and retinal hemorrhages "become symptomatic and develop ill signs immediately." Doctors who treated L.C.S. concluded that what happened to him was "[m]ost likely non-accidental trauma," and medical records reflect that L.C.S.'s "[p]arents have been told that injuries are due to trauma." Mother testified specifically that "a doctor came to me and told me that [L.C.S.] was suffering from shaken baby syndrome." Both Mother and Father denied any shaking episodes or any other seizure-like activity before this event.

         After L.C.S. was discharged from the hospital in October 2015, the district court granted the Department temporary managing conservatorship of L.C.S. and L.S.; finding that their physical health or safety was in immediate danger. L.C.S. and L.S. were removed from Mother and Father and placed with foster parents, Jonathan Paul Turner and Gayla Turner. Mother's two older children D.H.C. and H.V.C. were placed with their biological father.

         Less than a week after L.C.S. was discharged from Dell, L.C.S. was readmitted for examination after the Turners noticed that any movement or change in altitude of L.C.S.'s head caused him to cry. Doctors found more fluid between L.C.S.'s brain and skull, and a shunt was placed in his skull for one year to drain the fluid and relieve pressure around his brain. During this time, L.C.S. was prescribed and then weaned from anti-seizure medication. L.C.S. did not have any seizures, even after his medication was discontinued, and he had no other hospitalizations during the seventeen months that he was in the Turners' care.

         Temporary orders and home study after L.C.S. and L.S.'s removal

         On October 30, 2015, the district court signed temporary orders allowing Mother and Father to have supervised visitation with L.C.S. and L.S. and requiring Mother and Father to complete services. The court also ordered that all parties be provided with "the home study for maternal grandmother."

         A home study on the maternal grandparents was admitted into evidence. Although Mother and Father agreed to move out of the house if the grandparents were approved as a placement option, the grandparents were not approved. The home study identified several concerns, including: (1) the grandparents' denial that Mother or Father could have injured L.C.S., despite knowing that doctors found L.C.S. suffered trauma "as if he had been shaken"; (2) the grandparents' lack of valid driver's licenses; and (3) the criminal history of their son M.C., a frequent visitor to their home, who had arrests for alcohol intoxication and drug possession. In the home study, the grandparents' other son G.C., who lived with them, denied that he was ever a perpetrator of abuse.

         However, at a mediation conducted in 2016, the Department learned that in 2011, when G.C. was eleven-and-a-half years old, he sexually abused Mother's two-year-old son in the grandparents' home. At trial, Mother testified that she witnessed G.C. performing oral sex on D.H.C. The grandparents and Mother were aware of the sexual abuse perpetrated by G.C. but failed to disclose it. Mother stated that she did not call the police, and that she did not tell Father about the abuse because she feared that he might think differently about her brother. Mother also stated that she avoided her brother for about a year and a half, but she admitted that she and her children moved back into her parents' home while her brother was still living there. Further, according to notes from the staff supervising Mother's visitation, Mother requested that the Department add her brother to her visits with L.C.S. and L.S. because she wanted him to see his nephews. At trial, Mother denied making that request. But in a later report to the court, issued after Mother had some unsupervised visits, the Department specified that it "informed [Mother] that her brother is not allowed to be near her children during unsupervised visits." The report states that Mother's children are not in the grandparents' house where Mother and Father reside, noting that "[t]here is too much risk bringing the children back in a home with a juvenile sex offender."

         L.C.S.'s 2017 injury and death

         By March 28, 2017, Mother and Father had their own home and the court signed an order for the monitored return of L.C.S. and L.S. from the Turners to Mother and Father. The order, which was admitted into evidence, extended the dismissal date for the case and kept the Department as managing conservator of L.C.S. and L.S. The CASA supervisor assigned to L.C.S. and L.S.'s case, Rushmi Karim-Paris, testified that the case was near the end of an eighteen-month deadline, requiring either a dismissal, a trial to terminate parental rights, or the return and monitoring of the children. Karim-Paris stated that although CASA was still concerned about the lack of explanation for L.C.S.'s 2015 injuries and expressed that concern to all the parties, Mother and Father had "done a series of services," and the return-and-monitoring phase would extend the case and allow for continued supervision. She explained, "[W]e and the other child advocates and the court would stay involved for hopefully up to another six more months, and that would give us a chance to keep . . . our eyes on the children and on the parents." Department caseworker Jordan Ayres visited L.C.S. and L.S. in Mother and Father's home weekly during the monitored-return period.

         Mother noticed that L.C.S. cried more than L.S. Mother also noticed bruises on L.C.S.'s stomach "a lot" and saw blood in his stool, but she did not tell Ayres what she had seen. Ayres testified that if Mother had mentioned L.C.S.'s bruises and the blood, Ayres would have been concerned and would have encouraged Mother to seek immediate attention for L.C.S. Ayres stated that after the events of September 2015, she would have expected Mother to express some understanding or willingness to inquire more about a medical issue with L.C.S. Ayres acknowledged that a caseworker cannot be in a home every minute of every day and that she thought Mother "ignored signs that something might be going on." Most of the time when Ayres visited Mother's and Father's home during the monitored-return period, Mother was the only parent there. Ayres testified that during that time, she saw Father in the house only once, and "he was on his computer with his headphones on and didn't interact with me or the boys."

         On May 24, 2017, less than two months after L.C.S. returned to Mother and Father's home, L.C.S. again sustained serious injuries while in Father's care. Mother told a Department caseworker that Father did not go to work that morning because he had missed his ride. Mother testified that she left Father with the children at home while she went to the grocery store. As she was leaving the house, L.C.S. followed her to the garage crying because he wanted her to take him along or because he did not want her to go. Mother stated that when she left, Father was bottle-feeding their infant daughter K.S. Father was the only person in the home with the children.

         Mother stated that she was in the grocery store checkout line when Father called, asking her to call 911. Recordings of Mother's two calls to 911 were admitted into evidence. In the first one, Mother states that she is leaving the grocery store and requests that an ambulance be sent to her house because her husband called and said that her son is having trouble breathing. The 911 operator asks for Father's phone number, which Mother provides, noting that Father only speaks Spanish.[5] The operator states that she is going to call him and that she will have a Spanish interpreter on the phone.[6] The second call occurred as Mother was arriving at her house and entering it. Mother testified that when she arrived, she saw that L.C.S. was not wearing any clothes, was not breathing, and his eyes were open without moving. On the 911 recording, Mother is heard screaming and a male voice responds briefly to her. Mother tells the 911 operator that she does not see her son breathing and that he has "a lot of saliva from his nose and his mouth." Seconds later, Mother states that the paramedics have arrived.

         According to a report from paramedic Matthew Daves, L.C.S. was on the couch, unconscious, unresponsive, pulseless, and showing "cyanosis" of his head and extremities. Daves testified that cyanosis is a visual sign that "there's an issue with oxygenation, either . . . a respiratory issue or the heart is not pumping. Your extremities, and especially in children, around the mouth and lips will turn blue and that's from the lack of oxygen." Daves acknowledged that with a lack of circulation there is a delay in the development of bruising. He testified that L.C.S. had been without circulation for almost thirty minutes before his circulation returned. Daves's report noted that L.C.S.'s neck had "horizontal marks and circular patterns (almost dirt color in nature) around and above the larynx." Paramedics suctioned L.C.S.'s airway multiple times to remove "peanut-buttery-type vomit," performed cardiopulmonary resuscitation, and after L.C.S.'s pulse returned, transported him to the pediatric emergency room at St. David's North Austin Medical Center.

         A few hours later, after diagnosing L.C.S. with cardiorespiratory arrest and a subdural hematoma that was "most likely nonaccidental," the St. David's staff had L.C.S. airlifted to Dell Children's Medical Center for evaluation in the pediatric intensive care unit. L.C.S. was diagnosed with multiple injuries, including: anoxic brain injury-described by medical-expert testimony as an absence of oxygen to the brain-revealed by diagnostic tests showing brain swelling and damage to brain cells; subdural hematomas; retinal hemorrhages; bruising and abrasions to the right side of his chest; bruises on his lower back; lung contusions; liver lacerations; a duodenum/small intestine ...


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