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In re G.A.A.-G.

Court of Appeals of Texas, Fourteenth District

October 11, 2019


          On Appeal from the 309th District Court Harris County, Texas Trial Court Cause Nos. 2007-20638 & 2008-39339.

          Panel consists of Justices Christopher, Spain, and Poissant.


          Charles A. Spain Justice.

         The issues in these cases involve whether the jury's findings to terminate a mother's parental rights are supported by legally- and factually-sufficient evidence. This accelerated appeal arises from final orders in which, after a final hearing before a jury, the trial court terminated the parental rights of appellant A.A. (Mother) with respect to her children, G.A.A.-G. (George), J.S.A.-S. (John), [1] and appointed the appellee Department of Family and Protective Services to be the children's sole managing conservator. See Tex. Fam. Code Ann. § 109.002(a-1); Tex.R.App.P. 28.4 (accelerated appeals in parental-termination cases). John's father relinquished his parental rights, and George's father's rights were terminated in an earlier proceeding. Neither father has appealed the termination of his parental rights. Concluding that sufficient evidence to support the jury's findings, we affirm the final orders of termination.[2]

         I. Background

         A. Pretrial Proceedings

         These cases began in 2007 with a petition to establish the parent-child relationship between George and his father, F.B.G. The trial court found that F.B.G. was George's biological father. The court appointed Mother and F.B.G. as George's joint managing conservators and ordered F.B.G. to pay monthly child support to Mother. In 2008, the trial court entered an agreed child support order for John in which the court determined that B.S.S. was John's father, named the parents as joint managing conservators, and ordered B.S.S. to pay monthly child support to Mother.

         In 2011, in each case, the Department filed a motion to modify conservatorship and petition for protection of a child for conservatorship and termination in a suit affecting the parent-child relationship. The removal affidavits attached to the motions to modify and petitions for termination reflect that the Department received a referral on October 2, 2011 in which physical abuse of John was reported. John, born May 28, 2008, was found unresponsive in his crib. The referral noted that Mother was the perpetrator of the physical abuse. The Houston Fire Department was called to Mother's residence on October 2, 2011 because John was in cardiac arrest and was experiencing breathing problems. Bruising was observed around John's neck and arms and was inconsistent with Mother's explanation of how the bruises occurred.

         The Department's investigation revealed that John had special needs since birth. John had an oxygen machine in the one-bedroom apartment, which was placed adjacent to a litter box "full of cat feces." Mother had been John's sole caregiver and had no explanation for many of the bruises on John's body. Medical staff at Texas Children's Hospital diagnosed John as malnourished and failing to thrive. Scratches, lacerations, and bruises covered John's entire body.

         E.C. (Grandmother) arrived at the home earlier on the day of the referral to pick up George. Grandmother left with George shortly before Mother called telling her that John was non-responsive. Grandmother told the investigator that Mother needed a psychiatric evaluation. The referral noted that George was at substantial risk of harm due to Mother's inadequate supervision. Mother voluntarily placed George with a family friend.

         At the time of the referral John was diagnosed with respiratory failure, seizures, failure to thrive, multiple bruises, cuts, lacerations, and excoriations over the abdomen, back, and extremities. At that time treating physicians were not certain whether John would survive his injuries.

         Grandmother filed a petition in intervention seeking sole managing conservatorship.

         B. Family Service Plan

         Mother received a family service plan, which required her to:

• attend, actively participate in, and successfully complete a seven-week "Exceptional Parenting" class offered by Escape Family Resources that is designed for parenting children with special needs;
• provide the caseworker with a list of at least three appropriate individuals who will be used for a support system;
• obtain and maintain legal and verifiable employment;
• contact her caseworker at least one time per week;
• attend all court hearings, family visits, and scheduled visitations;
• obtain, pay for, and maintain appropriate housing for herself and her children;
• participate in an anger management course that is at least six to eight weeks in length;
• participate in a psychosocial evaluation; and
• attend and actively participate in individual therapy.

         C. Final Hearing

         Eric Holmes, a Department investigator, was the child-fatality investigator when the case was first received in October 2011. The child-fatality unit of the Department investigates child deaths that have occurred as well as children that are believed to be abused and may die as a result of the abuse. Holmes was called because John's injuries were such that his treating physicians thought he might die within 24 hours. Holmes received a report that John, three-years old at the time, was found in cardiac arrest and was covered with bruises, especially around his neck and wrists. The nature of John's bruises reflected that John may have been bound. Photographs of John's appearance on the day of the referral were admitted into evidence without objection.

         Holmes spoke with Grandmother at the hospital. Grandmother expressed concern about Mother's mental health and stated that Mother needed a psychiatric evaluation. Grandmother reported that Mother had denied her access to John and that Mother's apartment smelled of cat urine. Grandmother speculated that medication Mother was taking may have caused her to injure John. Mother was taking an antidepressant and a sleep aid.

         Holmes spoke with Mother, who gave inconsistent stories about the potential causes of John's bruises. Mother found John unresponsive in his crib at 4:00 in the afternoon. When Holmes first asked Mother how John got the bruises, Mother responded, "I don't know what to tell you." Then Mother reported that John had fallen down a couple of steps two weeks earlier and injured his ankle. Mother said she did not notice the injury to John's ankle until medical personnel pointed it out to her. Mother reported that therapists came into the home four days a week to help John with his physical development.

         At the time of the investigation George had been living with Mother. Holmes also interviewed George who told Holmes that John had been locked in the closet by Mother and that she would hit John while he lay in his crib. In addition to making the referral to the Department, Holmes contacted law enforcement to follow up on potential criminal charges.

         John's pediatrician, Dr. Jennifer Macia, testified that John had been born prematurely and had chronic lung disease. At six-months old when Macia first treated John, he had some brain damage and problems with irritability and feeding. John was fed through a tube known as a G-tube because he had difficulty swallowing. John was a medically fragile child who was prone to lung problems such as pneumonia or asthma. Macia recommended that Mother take John to several specialists for issues involving his heart, eyesight, and hearing. The hospital had no record of John being seen by any of the specialists. John had progressed while in Macia's care but seemed to plateau from approximately 19 months old to 28 months old.

         Macia visited John in the hospital a few days after the referral. Macia was very concerned about the symmetric marks around John's wrists and ankles because it appeared that John had been restrained. One of the photographs admitted into evidence, and shown to Macia during her testimony, reflected that the skin was gone around one of John's ankles. Another photograph showed a bruise and cut on one of John's eyes. Macia testified that the photographs also showed bruises of varying ages on John indicating that the injuries had been incurred at different times. When Macia saw John in the hospital she was not sure he would survive.

         Mother explained that the bruises on John's abdomen were a result of her attempt to replace the G-tube and secure the tube with household tape. Mother reported that the balloon that holds the G-tube in place had deflated three days earlier. Macia testified that the deflated balloon was an indication that Mother should have taken John to the emergency room to have a new G-tube inserted immediately. Mother also explained that John fell as he was getting out of the bath. According to Macia, Mother's explanations were not consistent with the bruising on John's body.

         Macia testified that if John had been properly cared for and eating properly, he would not have been in the condition he was in at the time he was hospitalized. If Macia had seen bruises on a child like those suffered by John she would have reported potential abuse to the Department. A prudent parent who had been trained on the use of a G-tube, as Mother had, would have immediately sought medical attention when the tube fell out and the balloon deflated.

         Jeanine Graf was the attending physician the night John was admitted into the intensive care unit at Texas Children's Hospital. Graf is an associate professor at Baylor College of Medicine and intensive care liaison for the child protection committee at Texas Children's Hospital. John came to the intensive care unit through the emergency room where he received immediate life-support treatment. When Graf first saw John she noted that he was "a frail, poorly nourished looking child who was on a breathing machine, who had multiple marks all over his body." The marks on John's body were not consistent with an average child or a special-needs child falling or playing, and were in unusual places. Graf testified that the marks did not fit the stories Mother reported. Shortly after John arrived in the ICU he suffered a seizure. Because John's injuries appeared to have been caused by abuse or neglect Graf reported his condition to the Department.

         In documenting John's injuries Graf observed a bruise on John's head on the left side of his temple, a bruise on the area in front of his left ear, and an abrasion between the left side of his nose and eye. Graf could not see John's neck because he was wearing a collar to protect against potential injury to his neck. Graf further observed a small laceration at the side of John's clavicle, and scrapes, scratches, and bruises on the right side of his body. The area around John's G-tube looked like an open wound that was seeping. John had two bruises on his left interior hip and fingerprint-like bruises on both thighs. John had marks encircling both ankles and a bruise on the top of his foot. On John's back he had multiple, small superficial lacerations between his armpit and hip. He had bruises on the middle of his back and his hip, and ligature marks around both wrists.

         Graf testified that when John came to the hospital he was in organ failure, which is caused by lack of delivery of blood to appropriate places or lack of the ability to breathe. John's breathing was failing and his blood pressure was falling, which indicated his heart and lungs were failing. John was also severely dehydrated. Blood tests revealed that John had not been receiving regular nutrition. If John had not come into the hospital when he did he most likely would have died within 24 hours.

         When Graf asked Mother about John's injuries Mother responded that John had been ill for four days with gagging and coughing after feeding. Mother called 911 when she found John limp and pale. When asked about John's bruises Mother reported that she had fallen while holding John as she got out of the bathtub. Mother reported that John fell on his back. Mother's explanation would only explain the bruises on John's back; it did not explain all the other bruises, lacerations, and ligature marks.

         In Graf's opinion John's injuries were caused by child abuse and could not have been caused by anything else. Graf explained that John's skin had manifestations that were inconsistent with Mother's explanations.

         John's father, (Father) who executed a voluntary affidavit of relinquishment, testified that shortly after John was born Father's parentage was adjudicated and he began paying child support. A Department caseworker contacted Father to tell him that John had been placed in the Department's care. The Department developed a service plan for Father with which Father complied. Father continued to have contact with John and noticed improvement in John's condition since he came into the Department's care. Father described the change as, "It went from a bag of bones to a full healthy, loveable child who can actually enjoy his life now." Father observed John with John's foster father and was impressed by their relationship and the improvements John made progress with the foster father, including toilet training and eating solid food.

         Father testified that it was in both children's best interest to live with the foster family rather than with Grandmother. Father described two occasions in which he had to pick up Grandmother because she was too drunk to drive. Father also noted that if the children were placed with Grandmother ...

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