In re J.D.G.

• Citation: 570 S.W.3d 839
• Decision Date: 11 December 2018
• Docket Number: NO. 01-18-00578-CV,01-18-00578-CV
• Parties: In the INTEREST OF J.D.G. and A.E.G.J., Children
• Court: Court of Appeals of Texas

570 S.W.3d 839

In the INTEREST OF J.D.G. and A.E.G.J., Children

NO. 01-18-00578-CV

Court of Appeals of Texas, Houston (1st Dist.).

Opinion issued December 11, 2018

Harvey Brown, Justice

After a two-month-old boy was hospitalized from injuries caused by his father’s shaking him, the infant and an older sibling were removed from the family home. Some 35 months later, the trial court entered an order terminating the parental rights of both parents. The mother appeals, challenging (1) the sufficiency of the evidence to support the trial court’s three predicate findings¹ for termination of her parental rights, best-interest determinations² , and appointment of the Department of Family and Protective Services as the children’s managing conservator; (2) the applicability and sufficiency of the evidence on an affirmative defense relevant to one of the predicate findings against her,³ and (3) an evidentiary ruling.⁴

We affirm.

Background

A. Javier severely injures Andres

Early one Friday morning, Monica⁵ fed her two-month-old son, Andres, placed him in bed with his father, Javier, and left the house to be at work by 5:00 a.m. Around 11:00 a.m., Javier called Monica at work to tell her something had happened to Andres. He told her Andres had been crying, he held the baby, Andres began to fall from his arms, he tried to grab Andres, and, in doing so, he "kind of maybe shook" Andres. Javier told Monica that Andres turned purple and stopped breathing and that he performed CPR on Andres to help him begin breathing again. Javier assured Monica that Andres seemed fine at the time of the phone call. Javier told Monica he was leaving for work and would drop Andres and his almost-two-year-old brother, Jorge, at their aunt’s house.

The aunt, Celia, later stated Andres appeared normal to her when Javier brought him to her house. She said Javier told her Andres had almost fallen earlier that morning and Javier had to grab him by his feet to prevent the fall. Javier told Celia to call him or 911 if anything appeared wrong with Andres while in her care.

Monica left work about 40 minutes later to pick the kids up from Celia’s house. Monica later said that Andres appeared normal when she arrived and continued to seem fine the next day. Neither Celia nor Monica saw any signs of injury.

On Sunday, April 19, 2015—which was the second day after the incident—Monica was back at work when she received a call from Javier around 9:00 a.m. He told her that he had accidentally startled Andres, who then seemed unable to cry or breathe. Javier told Monica that he was taking Andres to the hospital.

The hospital determined Andres had a subdural hemorrhage and difficulty breathing. The medical staff intubated Andres and life flighted him to Memorial Hermann Children’s Hospital. Tests revealed brain bleeding and seizure activity. The medical staff noted that the findings were consistent with Shaken Baby Syndrome. Andres was admitted to the hospital, where he received medical care for two and one-half weeks. He then was transferred to Shriner’s Hospital, where he remained another three weeks.

Andres ultimately was diagnosed with Shaken Baby Syndrome and complex epilepsy with seizures. He was prescribed anti-seizure medications, but, by the time the case reached trial, he was no longer on these medications. In a 2018 trial report, DFPS stated that Andres did not have any developmental delays from his injuries but still required physician monitoring due to his diagnosis.

B. DFPS investigation and pendency of conservatorship suit

1. 2015

Andres’s injuries occurred in mid-April 2015. Jorge was immediately removed from the family home and placed with an adult relative, Julia. Both parents were permitted supervised visits with Jorge at Julia’s home. Andres remained in a medical facility until late May, when he also moved in with Julia. Neither parent had a criminal record when Andres was injured. Both parents were employed. The trial court ordered both parents drug tested; all test results were negative.

Officer B. Andrade with the Houston Police Department interviewed Javier on April 28, 2015—11 days after the incident. At first, Javier described a series of events similar to what he had told Monica and Celia. Andrade told Javier his story was not consistent with Andres’s injuries. Javier then said, "The truth is I shook him." Javier said that Andres had been crying that morning and acting "bipolar." Immediately after Javier shook him, Andres stopped crying but also stopped breathing. Javier said that he shook Andres again to get a response. At the end of the interview, Javier asked Andrade if anyone was going to tell Monica "what he had done." Andrade responded that Javier could tell Monica "when he was ready."

It is not clear from the record when Monica learned what had occurred. The DFPS caseworker, S. Butler, for example, testified that Javier had told Monica in early May that he shook Andres, but she later testified that it was possible Monica did not learn the truth until DFPS informed her in mid-May.

Once Julia learned in mid-May that Javier had admitted to law enforcement that he had shaken Andres, she asked that supervised visits occur at DFPS’s offices instead of her home. The trial court approved the change. Javier was arrested on May 26. Andres was released to Julia’s care on May 27. Javier was released on bail on June 9. DFPS then sought sole managing conservatorship over the children "due to concerns with the safety of the children, and the parent’s inability to provide a safe environment for the child[ren]." According to DFPS caseworker, Butler, Monica was continuing "to assert that the father has no complicity in the injury and that shaking the baby was just an accident." At the adversarial hearing in July, Butler testified that Javier and Monica continued to live together after Javier’s release on bond.

The children’s pediatrician, Dr. Syed Rizvi, testified. He stated that Monica had always been reasonably compliant with health care instructions.

When Monica testified, she clarified that Javier moved in with her when he was released on bail one month earlier but that he was in the process of moving out at the time of the hearing. She stated she was willing to end her relationship with Javier to have her children returned to her care.

The trial court granted DFPS’s request for temporary orders naming DFPS temporary managing conservator of the children, continuing the children’s placement with Julia, and continuing supervised parent visits at DFPS offices.

In August, the court held a status hearing. DFPS announced a permanency goal for family reunification. Monica and Javier were ordered to comply with DFPS family service plans. Monica’s plan required her to attend eight weeks of parenting classes, attend hearings and DFPS meetings, confirm with DFPS all scheduled visits with her children, complete a psycho-social evaluation, timely report changes in residence and employment to DFPS and the court, obtain and maintain employment, and "obtain, pay for and maintain appropriate housing for herself and child ... [to be] demonstrated by providing a copy of a lease agreement and through home visits by the caseworker." The plan listed certain goals for Monica, including understanding the serious nature of the situation that placed Andres in danger, demonstrating an ability to change to provide her children with adequate care and nurture, demonstrating a willingness and ability to protect her children from harm, participating in therapy, demonstrating the ability to follow medical advice for her children, and adequately following the safety plan to control the risk of abuse or neglect. The court appointed Child Advocates as the children’s guardian ad litem.

DPFS’s status report submitted to the court two months later states that Javier and Monica were still living together, that Monica continued to describe Andres’s injuries as an accident, and that Monica failed to inform DFPS once Javier admitted to her that he shook Andres.⁶ The primary permanency goal in this October report changed to family adoption, with a secondary goal of family reunification. DFPS noted, though, that Monica was progressing in completing her service plan.

2. 2016 and the start of trial

In April 2016, one year after the incident in question, the children’s caregiver returned them to DFPS, indicating that she felt frustrated with "the process" and no longer wanted to be responsible for the children. DFPS sought court approval to transfer the boys to foster care and to continue supervised parent visits. At the status hearing to approve the change, a new DFPS caseworker, Y. Jenkins, testified that Child Advocates recently had made an unannounced visit to Monica’s home and encountered Javier leaving the area by jumping a fence. Jenkins testified that DPFS has ongoing concerns with Monica’s protective capacity due to her continued contact with Javier.

The Child Advocates volunteer, J. Gonzalez, testified that when he made the unannounced visit, he and his co-worker saw Javier jump a fence to leave the area; Monica did not answer the door and instead walked directly to her car to leave; he asked her about contact with Javier; and Monica said he was there only to bring her money. Gonzalez, whom Monica allowed in the house, saw no evidence Javier was living there. Monica denied he was living there. Monica testified that Javier was simply leaving a money envelope on her porch and that Child Advocates happened to arrive as he was leaving.

In June 2016, the court-appointed attorney ad litem recommended that the children be moved to a different foster home due to inappropriate supervision of the children by their current foster placement, as observed during a recent home visit.

At a hearing one month later, the Child Advocates guardian ad litem testified that he did not support family reunification, citing multiple reasons: the March incident in which Javier jumped a fence leaving Monica’s home, concerns over a...