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In re E.A.R.

Court of Appeals of Texas, Eighth District, El Paso

August 21, 2019


          Appeal from 65th District Court of El Paso County, Texas (TC # 2017DCM5786)

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



         M.J. appeals from an order terminating her parental rights to E.A.R. The trial court also terminated the parental rights of L.D.R. but he has not appealed. We affirm.


         M.J. and L.D.R. are the biological parents of E.A.R., who was twenty-one-months-old at the time of trial.[1] On August 23, 2017 at approximately 1:00 p.m., Mary and Lyle took three-month-old Eddie to the emergency room at El Paso Children's Hospital with a fever and congestion. According to Mary, Eddie had been congested for one week and she had been treating the fever with Tylenol, but the fever continued to spike. After observing bruising on the child's face, torso, and back, the hospital staff made a report to the El Paso Police Department at 3:28 p.m. on August 23.[2] A police officer went to the hospital and began an investigation. A nurse at the hospital advised the officer that in addition to the bruising, they had discovered that the child had a torn frenulum which is typically caused by a bottle or some other object being forced into the child's mouth. Photographs were made of the child's injuries.

         Hospital staff also made a report to Child Protective Services on August 23, 2017 that Eddie had unexplained non-accidental injuries, including bruising and a torn frenulum. Kimberly Blair-Santaella, an investigator with the Texas Department of Family and Protective Services, went to the ER at Children's Hospital to investigate. Blair-Santaella spoke with hospital personnel and learned that Eddie was undergoing additional testing including a full skeletal survey and testing to determine whether the child had any blood clotting abnormalities. Blair-Santaella examined Eddie and found cuts around his nose, bruising on his face, and numerous circular bruises on his stomach and the front of his torso. He also had bruises on his back. The bruises were different colors.

         Blair-Santaella spoke to Mary and Lyle about Eddie. Mary told her that she and Lyle were Eddie's sole caregivers. Even though the bruises were readily visible to medical personnel and Blair-Santaella, Mary claimed to have not seen them. Mary explained that Eddie had been sick for three days and she had not changed his clothes or bathed him because she did not want to get him wet. Mary had changed Eddie's diapers but did not see the bruises on his stomach. When asked to explain how the injuries might have occurred, Mary speculated that they could have been caused by the car seat or perhaps her siblings had played too rough with him when they had visited at the maternal grandmother's house a week earlier. Mary did not express any concern about Eddie's injuries. Eddie was admitted to the hospital. After speaking with the maternal grandmother, Blair-Santaella created a safety plan which prohibited the child's discharge from the hospital and restricted Mary and Lyle to supervised contact in the hospital. Blair-Santaella left the hospital. She returned to the hospital the following day and attempted to speak with Lyle about the bruising on Eddie. Lyle became extremely angry and said that the medical personnel in the emergency room had bruised Eddie. Mary agreed with Lyle and blamed the hospital personnel.

         Dr. Bert Emil Johannson, a pediatric intensivist and child abuse expert, consulted on the case to determine the cause of Eddie's occult fever. A chest x-ray had revealed what medical personnel initially believed to be pneumonia in the upper left lobe of the lung. Dr. Johannson conducted a physical examination and noted that while Eddie was clean and well-fed, he had a pattern of bruising on the front and back of his thorax which suggested physical abuse in an immobile three-month-old child. He also observed that the bruises were different colors indicating that they had occurred over a period of days. Eddie was also tender over his anterior ribs and posterior left-side ribs. Consequently, they ordered a skeletal survey which revealed that Eddie had multiple fractured ribs and a fractured arm. In light of those results, the doctors ordered a chest CT. That examination showed the presence of hematomas beneath the fractured ribs and those hematomas had become infected. Eddie eventually had to undergo surgery to drain an abscess that was causing the infection. Dr. Johannson also testified that Eddie had a torn frenulum midline beneath the tongue. He explained that the frenulum is "very difficult to tear" and he described Eddie's injury as a forcible tear. Dr. Johannson testified that a torn frenulum can be caused by someone pulling on the child's tongue or forcing an object in the child's mouth. Through testing, Dr. Johannson ruled out any diseases which might have caused the fracturing and bruising seen in Eddie.

         In Dr. Johannson's opinion, Eddie's injuries were "absolutely caused by abuse of this child." He testified that it would have taken the force equivalent to a 25-pound bowling ball dropped from the distance of one meter to break a rib. In his opinion, an even greater amount of force was applied here because the broken ribs were tilted downward. Dr. Johannson concluded that the broken ribs were likely caused by a punch. He noted that the parents had not offered any plausible explanation for Eddie's fractures.

         After receiving a call from Dr. Johannson, Blair-Santaella returned to the hospital to speak with Mary and Lyle about the rib and arm fractures. According to Blair-Santaella, the skeletal survey showed that the arm fracture was older than the rib fractures. Both parents denied any knowledge of the injuries or how they occurred. Mary did not say much in response to the news, but Lyle became angry and continued to insist that the Department should be investigating the hospital staff rather than them. On August 29, Blair-Santaella notified the parents that the Department was going to remove Eddie. The Department filed a petition for conservatorship and termination that same day. Eddie remained in the hospital until September 11, 2017, and he was placed in foster care.

         The Department created service plans for both parents and engaged in efforts to reunify the family. After observing behavioral changes in both Mary and Lyle, the Department created a transition plan and both parents agreed to it. A few weeks later, however, the Department received an intake alleging physical abuse and neglect because Eddie had a diaper rash and bruises. After an investigation, the Department ruled out physical neglect, but it was unable to make a determination on all parties with respect to the physical abuse. The transition plan was put on hold and the parents went back to supervised visits.

         The supervised visits went well and the Department developed a transition plan. Mary and Lyle had overnight visits with Eddie from August 15-18. On August 19, the Department received an intake that Lyle had burned Mary's nine-year-old brother, V.J. Detective Paul Mata, who is assigned to the Crimes Against Children Unit of the El Paso Police Department, investigated the injury to a child offense which was alleged to have occurred on August 13, 2018, and conducted the forensic interview of V.J. V.J. accused Lyle of intentionally burning him with a hot fork. V.J. explained that he was cooking a weenie on a fork over the flame on the stove. Both Mary and Lyle were present. V.J. left the weenie cooking over the flame and Mary took it off of the stovetop but burned herself with the hot fork. Mary began crying and Lyle asked her what had happened. Mary explained that the hot fork had burned her and she gave the weenie and fork to Lyle. When V.J. extended his hand and arm to reach for the weenie, Lyle intentionally pressed the hot fork against V.J.'s shoulder and burned him. V.J. screamed in pain. Upon learning of the incident a few days later, V.J.'s father[3] reported the offense to the police on August 18. Lyle attempted to convince V.J. to say that the burn injury was an accident, but V.J. continued to state it was intentional. Detective Mata repeatedly attempted to speak with Mary and Lyle about the incident, but neither of them returned his calls. In October 2018, Detective Mata obtained a warrant for Lyle's arrest, but the warrant had not yet been executed when the detective testified in this case in February 2019.

         The Department conducted its own investigation of the incident involving V.J. Lyle told the Department's investigator that it was an accident. Because the injury was consistent with the child's statement that Lyle had intentionally held the hot fork against his skin, the Department found V.J. credible and found reason to believe that Lyle had injured the child. On August 22, 2018, Mary contacted Illiana Ladd, a conservatorship caseworker with the Department, to discuss the incident involving V.J. Mary claimed that the injury to V.J. was an accident and V.J. had been manipulated by her father to say it was intentional. At trial several months later, she testified that V.J. told her that he did not know whether Lyle had burned him intentionally. Mary admitted that she could clearly see the prongs of the fork in photographs of V.J.'s burn injury. Because Mary insisted that Lyle did not intentionally burn V.J., Ladd became concerned about Mary's ability to protect Eddie.

         Cynthia Leede provided professional counseling services to Mary and Lyle. The purpose of her counseling was to assist both Mary and Lyle with improving their parenting skills and their relationship with one another and the child. She was also required to provide anger management counseling for Lyle, but that never occurred because both Mary and Lyle stopped attended counseling. Mary reported having racing thoughts and presented with anxiety and symptoms of depressed mood. Mary attended only two counseling sessions because she did not have transportation. During those sessions, Mary did not take personal responsibility or accountability for what happened to Eddie. She instead blamed the hospital staff for Eddie's injuries, or alternatively, she speculated that her siblings might have caused the injuries. Leede explained that part of the therapeutic process is taking accountability for your own actions whether it is for causing the injuries or leaving the child with someone else who caused the injuries. Thus, she expected the parents to show some degree of accountability, but neither did. Leede questioned Mary's ability to parent and protect the child based on the lack of accountability and the inability to address her own medical needs.

         When the Department began the first transition plan, it recommended that Mary and Lyle obtain additional counseling because Mary was feeding Eddie items that caused him to have diarrhea. Eddie is lactose intolerant. Additionally, Eddie repeatedly contracted head lice during his ...

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