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Date: 08-20-2024
Case Style:
In the Interest of E.A.O.E. a/k/a E.O.E., G.E.OE., a/k/a G.O.E., Children
Case Number: 2022-01137
Judge: Not Available
Court: 313th District Court, Harris Couonty, Texas
Plaintiff's Attorney: Harris County District Attorney's Office
Defendant's Attorney:
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Description:
Houston, Texas family law lawyer represented the Defendant on a a termination of parental rights action.
The children came to the attention of the Department on March 1, 2022, due to a report of physical abuse of Gabrielle when Gabrielle was three months old. Gabrielle arrived at Texas Children's Hospital unresponsive; initial assessments revealed head trauma and eight broken and displaced ribs. Mother and Father reported the injuries were the result of a fall from a baby swing. At the time Gabrielle came to the hospital Edward was under two years old.
The children were initially removed from the parents because the parents' explanation of the cause of Gabrielle's injuries was inconsistent with the severity of the injuries. In addition to the aforementioned head trauma and broken ribs, Gabrielle had retinal bleeding in her eyes. Father also admitted shaking Gabrielle. The Department recommended a safety plan for the parents and requested they engage in Family Based Safety Services (FBSS). Both parents refused. When Gabrielle was released from the hospital three weeks later, she was released to Mother with the condition that Father not be permitted to live in the same house with the children. On July 1, 2022, the Department filed an original petition seeking termination of both parents' rights. The Department removed the children from Mother's home because Mother permitted Father to move back into the home and was not taking Gabrielle to necessary medical appointments to address her injuries.
On June 28, 2023, the trial court found good cause to extend the dismissal date to December 29, 2023. See Tex. Fam. Code § 263.401.
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Father was indicted for intentionally and knowingly causing bodily injury to Mother on or about January 1, 2023. On June 26, 2023, Father was indicted for injury to a child.
Trial commenced October 3, 2023. Dr. Sarah Risen, a pediatric neurologist at Texas Children's Hospital, testified that when Gabrielle came into the hospital, she had sustained a severe traumatic brain injury and her "level of consciousness was at the lowest possible level." Gabrielle's brain was swelling, and she had to undergo life-saving emergency surgery. The brain injury caused Gabrielle to be delayed "in every single area of her development" including motor skills, language, and eating. Gabrielle had to be fed through a tube in her nose.
Risen testified that the severity of the injuries Gabrielle experienced was consistent with a high-speed car accident or shaken baby syndrome, and did not typically happen in routine childhood activities, such as falling from a baby swing. The bleeding in the brain, hemorrhages behind the eyes, and broken ribs were consistent with injuries sustained as a result of shaken baby syndrome. Severe brain trauma such as that experienced by Gabrielle leads to a lifelong increased risk for seizures and other neuro-developmental complications. At the time of trial Gabrielle was still unable to get all her calories by mouth and had to receive some nourishment through a G-button, which replaced a G-tube she had earlier.[2] As she grows Gabrielle's needs will be extensive, including speech therapy, occupational therapy, aid with social communication, twice-yearly visits to a neuropsychologist, and treatment for vision loss due to the brain injury. Gabrielle is at high risk for learning problems and cognitive delays. Risen testified there was no other reason for the
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injuries experienced by Gabrielle other than abuse.
Dr. Marcella Donaruma-Kwoh, a pediatric child abuse expert, was consulted on the day Gabrielle was admitted to the hospital. While being transported to the hospital via helicopter Gabrielle experienced seizures and her body temperature dropped to 87 degrees. Gabrielle experienced injury to both sides of her brain; her right retina was detached, and the cavity was full of blood. Gabrielle's injuries were inconsistent with the parents' report that she fell roughly two feet from a baby swing. Gabrielle had an emergency craniotomy to relieve pressure on her brain and drain blood from her skull. Gabrielle was hospitalized for 23 days. Donaruma-Kwoh discussed Gabrielle's condition with the neurosurgeons, and they concluded that her injuries were caused by abuse. The doctors concluded that Gabrielle's rib fractures resulted from Father's attempts at CPR, but her other injuries were caused by being shaken violently. Donaruma-Kwoh testified that Father told Mother he had shaken Gabrielle.
Father was home alone with the children when Gabrielle was injured. At trial, when Father was asked how Gabrielle sustained her injuries he exercised his Fifth Amendment right to remain silent. Father was charged with injury to a child and released on bail. While on bail for that offense, on January 1, 2023, Father was arrested for assaulting Mother. Father, testifying from jail, admitted physically assaulting Mother in January 2023. Before Father was incarcerated, he took clothing to the children, but has not financially supported them either while out of jail or before. Father was given a family service plan written in Spanish, but did not finish reading the plan despite testifying he understood that completing the services on the plan was necessary for the return of his children.
The foster mother testified that she had Edward beginning July 2, 2022, and Gabrielle beginning March 21, 2023. Edward bonded with the foster parents
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immediately while Gabrielle was not as social and did not bond right away. By the time of trial Gabrielle was also bonded with the foster parents. Gabrielle was improving every day, including taking about 25 percent of her food orally. The foster parents participated in 30 hours of observation training observing other children who have similar medical needs. The foster parents also received training at Texas Children's Hospital from Gabrielle's gastroenterologist and nutritionist. Both children attend a Montessori school near their home. A home health nurse goes to the school to help with Gabrielle's feedings. Gabrielle has also bonded with her brother. Both foster parents want to adopt the children and feel they understand the complexity of Gabrielle's medical issues and how to care for them. The foster parents' parents and some of their siblings have also undergone training so they can support the foster parents in Gabrielle's care. If the foster parents were unable to adopt they would do what they needed to do to help the children but would seek legal counsel on the issue.
Sabrina Stranton, the conservatorship caseworker for the Department, testified that the Department removed the children from the home in July after Gabrielle's injuries in March because Mother permitted Father to move back into the home and was not taking Gabrielle to necessary medical appointments to address her injuries. During a welfare check a caseworker observed Gabrielle being fed with a bottle propped up by a blanket, which was inappropriate because Gabrielle could not swallow and had a feeding tube placed in her nose at the time. A caseworker also observed Mother feeding Gabrielle table food with a spoon.
Stranton was unable to meet with Mother until June 2023, almost a year after the children were removed, because Mother gave Stranton an incorrect address. In June 2023, Stranton confirmed Mother's address and visited her at home. Mother regularly provided pay stubs to the Department, completed a psychosocial
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assessment, and completed individual counseling as recommended by the assessment. Mother completed a domestic violence course and acknowledged that she needed to provide a safe and stable home for her children and that it was not safe for Father to be around the children. Stranton testified, however, that the Department had recorded jail calls between Mother and Father in which Mother expressed a desire to continue a relationship with Father. Mother told her therapist that she had filed for divorce from Father, but Mother did not follow through with the divorce allowing it to be dismissed for want of prosecution. In sum, Mother completed her family service plan but, according to Stranton, was not honest in her reports to providers.
Stranton testified that Father completed a psychosocial assessment and a parenting class. Father did not provide proof of income, or proof of housing. Father did not refrain from criminal activity, as evidenced by his incarceration for alleged assault of Mother. Stranton further testified that the Department was concerned if the children were returned to Father they would be endangered due to Father's past violent conduct.
Outcome: The trial court terminated Father's parental rights on the predicate grounds of endangerment and failure to comply with a family service plan. The trial court further found that termination of Father's rights was in the best interest of the children. The trial court did not terminate Mother's parental rights, but designated the Department as the sole managing conservator of the children and appointed Mother possessory conservator. Father timely appealed.
Appealed
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