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In re O.E.R.

Court of Appeals of Texas, Eighth District, El Paso

March 29, 2019

IN THE INTEREST OF O.E.R. AND L.F.J., CHILDREN.

          Appeal from the 109th District Court of Andrews County, Texas (TC# 20, 814).

          Before McClure, C.J., Rodriguez, and Palafox, JJ.

          OPINION

          Ann Crawford McClure, Chief Justice.

         This is a termination of parental rights appeal brought by the mother of two children and the father of one of those children. V.M.N. appeals from the judgment terminating her parental rights to O.E.R. and L.F.J. L.J. appeals the portion of the judgment terminating his parental rights to L.F.J. The trial court also terminated the parental rights of M.D.R. to O.E.R., but he has not appealed.[1] We affirm.

         FACTUAL SUMMARY

         The Department first became involved with Vicky and the children[2] on August 20, 2016 when it received a report of neglectful supervision. Vicky allowed her abusive ex-boyfriend, Cory Sanchez, to watch both children even though Vicky knew the children were afraid of him and Sanchez was not allowed unsupervised contact with his own children. During one of those visits, eight-month-old L.F.J. suffered a serious brain injury. In her trial testimony, Vicky denied ever letting Sanchez watch the children. She claimed that they were getting ready for a birthday party and she left L.F.J. asleep on the couch at Sanchez's house for twenty minutes while she gave other family members a ride home. When Vicky returned to pick up L.F.J., Sanchez had the child in his arms and she was not breathing. At the hospital, it was determined that L.F.J. had bleeding in the brain and she had to be transported to a hospital in Lubbock. Sanchez told Vicky that L.F.J. must have fallen off the couch, but one of the doctors told her that the serious injuries could not have been caused by a fall from the couch.

         Sanchez was arrested for injury to a child and both children were removed from Vicky's care due to neglectful supervision. The Department became the temporary managing conservator of the children and L.F.J. was placed with Larry. Vicky completed reunification services, including a Dynamics of Domestic Violence class and a Protective Parenting class, and the children were subsequently returned to her.

         A little more than a year later, the Department received a report indicating that Vicky may have physically abused O.E.R. who was nearly five-years-old. The child was sent home from school on Wednesday, September 13, 2017 for bad behavior and he did not attend school the following day. When O.E.R. returned to school on September 15, he had what appeared to be handprints on both sides of his face and he demonstrated how his mother had hit him. O.E.R. also told school personnel that his tooth hurt and it broke when his mother hit him. After receiving the report, a case worker, Kimberly Salaam, went to the home and spoke with Vicky. When Salaam attempted to speak with O.E.R. alone, Vicky refused to leave the room. Salaam ended the interview. On Monday, September 18, Salaam interviewed O.E.R. at school, and he stated, while pointing to both of his cheeks, that his mother had hit him in the face. O.E.R. demonstrated how his mother had hit him with an open hand. The bruising was still visible on O.E.R.'s face and one of his teeth was chipped. O.E.R. additionally stated that Vicky had choked him with her hands.

         Salaam interviewed Vicky later that same day. She admitted spanking O.E.R. on the buttocks but denied striking his face. When asked about the bruising on O.E.R.'s face that looked like handprints, Vicky suggested that it might have happened when he got his head stuck in a chair. O.E.R. showed both Salaam and his mother the chipped tooth, but Vicky said the tooth had been like that for a long time.

         On September 20, 2017, O.E.R. was interviewed at the Andrews Child Advocacy Center by forensic interviewer Kelli Crouse. O.E.R. not only stated that his mother had hit him, he demonstrated how she slapped him with an open hand. Vicky was arrested on outstanding warrants and for injury to a child.

         On September 21, 2017, the Department filed a petition seeking to terminate the parental rights of Vicky to O.E.R and L.F.J. The petition also sought termination of the parental rights of O.E.R.'s father, Marvin, and L.F.J.'s father, Larry. The trial court entered an emergency order removing the children and naming the Department as the temporary managing conservator. O.E.R. was placed with his paternal aunt, "Linda." L.F.J. was initially placed with her father, Larry, but the Department removed her in July 2018 and placed her with Linda after Larry tested positive for cocaine and marijuana. Vicky did not inform the Department that Larry had been violent during their relationship. The Department subsequently learned that Larry had been allowing Vicky to have unsupervised visits with L.F.J. while she was in his care.

         The Department developed service plans for Vicky and Larry. Vicky was required to complete a psychological evaluation and to follow all recommendations resulting from the evaluation. Additionally, she was required to complete domestic violence counseling and parenting classes. The service plan also required Vicky to maintain employment and provide a safe and stable home environment for the children. Vicky did not complete either the trauma counseling with Teresa Valero or the parenting classes. Further, she was not employed at the time of trial and did not have a stable home for the children.

         Larry's service plan required him to maintain employment, provide a safe and stable home environment for L.F.J., to complete parenting classes, and to abstain from the use of illegal drugs. He was also required to submit to random drug testing. Larry failed to complete the Daddy & Me program which is a parenting/substance abuse program. He also tested positive for cocaine and marijuana resulting in the removal of L.F.J. from his care while the case was pending.

         On July 10, 2018, Vicky waived her right to a jury trial and entered a negotiated guilty plea to the injury to a child charge. The court assessed her punishment at imprisonment for six years, but suspended the sentence and placed her on community supervision for four years. The trial court conducted the bench trial in the termination case on September 20, 2018.

         The evidence at trial showed that Vicky's had a series of romantic relationships with abusive men. O.E.R.'s father, Marvin, physically abused Vicky by pushing her against walls and punching her, and he went so far as to "body-slam" her while she was pregnant with O.E.R. Vicky described Marvin as "really aggressive," "very violent physically," and emotionally abusive. Vicky was involved with Marvin for several years and she continued her relationship with him for "a little while" after O.E.R. was born. Marvin abused Vicky in O.E.R.'s presence. On one occasion, Marvin attempted to leave with O.E.R., and when Vicky attempted to stop him, he choked her.

         After ending the relationship with Marvin, Vicky began dating Larry. According to Vicky, Larry was both physically and mentally abusive, and he frequently pushed, choked, and yelled at her. On the night Vicky found out she was pregnant with L.F.J., Larry beat Vicky and left her face black and blue. She did not call the police because she was afraid. Larry left Vicky one week after they found out she was pregnant. O.E.R. witnessed a significant amount of the domestic violence committed by Larry. Vicky admitted that witnessing domestic violence is damaging to a small child.

         Vicky dated Sanchez for several months before he injured L.F.J. When Sanchez became angry, he would kick and punch the walls and verbally abuse her. He began this behavior shortly after he began living with her, but she continued to allow him to live with her and the children. Vicky acknowledged that allowing Sanchez to live with her was endangering to the children.

         During her testimony, Vicky admitted that she had slapped O.E.R. hard enough to leave a bruise on his face, but she denied breaking his tooth or choking him. Vicky participated in six trauma counseling sessions with Teresa Valero between July 2018 and August 31, 2018, but she did not complete the counseling. Vicky discussed the domestic violence she experienced as a child at the hands of her mother and her mother's boyfriend. She recognized that she was repeating the pattern with her own children. Vicky admitted slapping O.E.R. but continued to deny choking him. She also expressed to Valero that O.E.R.'s aggressive behavior triggered her memories of Larry's abusive behavior. Vicky ...


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