S.H.A., In Interest of

• Decision Date: 27 February 1987
• Docket Number: No. 05-85-00692-CV,05-85-00692-CV
• Citation: 728 S.W.2d 73
• Parties: In the Interest of S.H.A., a Child.
• Court: Texas Court of Appeals

Page 73

728 S.W.2d 73

In the Interest of S.H.A., a Child.

No. 05-85-00692-CV.

Court of Appeals of Texas Dallas.

Feb. 27, 1987.

Rehearing Denied April 3, 1987.

Jesse Cuellar, Joseph Rosenfield, Guardian Ad Litem. Dallas, for appellant.

Maridell Templeton, Asst. Dist. Atty., Gary C. Arey, Elizabeth Parmer-Hail, Asst. Dist. Attys., Dallas, for appellee.

Before the court en banc.

SCALES, ¹ Justice.

Appellants, A____ A____ and S____ A____ ("the parents") appeal from the trial court's judgment terminating their parental rights to their son ("the child"). The suit was brought by appellee Dallas County Child Welfare Unit of the Texas Department of Human Resources ("Child Welfare"). Based on the jury's answers to special issues, the trial court entered judgment that: (1) each parent had engaged in conduct, or knowingly placed the child with persons who engaged in conduct, which endangered the physical or emotional well-being of the child, and (2) that termination of parental rights would be in the child's best interest. In six points of error, the parents attack the jury's findings, contending that the evidence is legally and factually insufficient. We overrule the parents' points of error and affirm the judgment of the trial court.

The record reflects that the parents are illegal aliens who came to the United States in 1981. The child, the parents' fourth, was born in the United States on February 12, 1982. The father has been employed, from time to time, working as a construction worker and as a dishwasher at a restaurant. The family's economic situation was characterized by several witnesses as "low-income." At the time of trial in March 1985, the parents had another child. The parents do not speak English, and they testified at trial through an interpreter.

The child's situation was first brought to the attention of Child Welfare in 1983, when the child was approximately sixteen months old. The child had been hospitalized in May 1983 for an ear infection and anemia. The treating physician notified the public health department about the child's condition. Consequently, Barbara Brown, a public health nurse, visited the child's home on May 25, just after the child was released from the hospital. Brown testified that the child was filthy; that he was crying; and that he was eating cookies off of the dirty floor. Brown discussed the child's medication and the need to improve the child's hygiene with the mother. Brown stated that the mother "seemed disinterested in anything I had to say."

After the mother missed a doctor's appointment for the child, Brown made a second visit to the home on June 15. At that time, Brown testified, the child had "pus, very thick, white pus" coming out of his right ear, and he had a burn on his arm that was "pussy and oozing." Brown stated that the child's condition, if left untreated, could be dangerous to the child's health because of the risk of infection. Brown observed that the child appeared to be "very poorly cared for" and that the mother did not pick up the child when he was crying.

After the mother did not keep another appointment for the child at the public As a consequence of Brown's referral, Melba Martinez, an "in-take" worker for Child Welfare, visited the parents' home on June 23. Martinez testified that the child appeared very thin, very weak, and sluggish; his rib cage showed; he had a "protruding stomach or abdomen"; and his face "looked very sad." The older children appeared to be relatively healthy. The mother told Martinez that she fed the child twice a day, and that she fed him "sopas," a mixture of rice and pasta. Martinez expressed concern about the child's health to the mother, but the mother felt that the child was "just naturally thin, as one of her other children had been." Martinez testified that the mother "did not appear to understand that she needed to be concerned." As a result of the home visit, Martinez arranged for food to be provided to the family and to take the child to see a doctor. The next day, June 24, Martinez transported the mother and the child to Children's Medical Center.

                health clinic, Brown rescheduled the child's appointment for June 22.  Brown performed nutritional, medical, and developmental tests on the child.  The child was 28 inches in height and weighed sixteen pounds, eight ounces.  This height and weight is below the thirtieth percentile for an average sixteen-month-old infant, and Brown testified that "that is a medical definition for failure to thrive."   The statistics indicated that "the child was not growing as a normal child should."   The mother told Brown that she fed the child about one-half gallon of milk each day;  tortillas;  soup once a week;  eggs about four times a week;  chicken once a week;  occasionally fruits and cheese;  and soup and beans.  Brown stated that this was not a proper diet for an infant.  Brown advised the mother that the child should be hospitalized immediately.  Brown referred the family to a federally funded program that offers food to infants, and also made a referral to Child Welfare
                

The child was hospitalized on June 24 at Parkland Hospital for six days for treatment of the burn on his arm and an ear infection. Part of the diagnosis was that the child was a "failure to thrive" child, and Dr. Paul Prescott was called in as a consultant on the child's case. Dr. Prescott testified that failure to thrive "means a child is not living up to his own growth potential." He said that the "failure to thrive" syndrome is best explained as a "symptom," like a headache or backache; there are "five-hundred and some-odd causes of failure to thrive," including organic, nutritional, and "psychosocial" causes, such as where a mother has failed to nurture the child in some way.

Dr. Prescott stated that once failure to thrive is diagnosed, medical causes are ruled out first. Here, the child's failure to thrive was not due to medical reasons. Dr. Prescott testified that the cause of this child's failure to thrive was malnutrition. Dr. Prescott could not, however, positively exclude the possibility of emotional causes of the child's failure to thrive. The failure to thrive syndrome, in a child of this age, can have long-term effects, such as decreased intelligence, learning disabilities, permanently stunted growth, and increased risk of infection. Prescott testified that it is common for one child in a family of several children to suffer from failure to thrive. He stated that "if there is no medical reason, and it's malnutrition, that's actually more worrisome, because we then start calling it the maternal deprivation syndrome. Then you get into emotional deprivation. And for some reason, this one child is being scapegoated." Dr. Prescott testified that the maternal deprivation syndrome may be based on purely nutritional problems, but that only one child "is neglected, for who knows what reason."

Dr. Prescott stated that his diagnosis of malnutrition as the cause of this child's failure to thrive was in part based on the child's comparative weight gain over three time periods. During the child's May hospitalization, he gained about 1 1/2 to 1 3/4 ounces in weight each day. During the child's June hospital stay, he gained almost 3 ounces in weight each day. During the thirty-day period between hospital stays, the child gained an average of 1/4 ounce in weight per day while he was at home. An For this reason, Dr. Prescott recommended that the child be placed in foster care when he was discharged from the hospital on June 30. Dr. Prescott testified that he then believed the child's health was in danger.

average child of this age gains about 1/2 ounce per day.

The child was placed in a foster home upon discharge from the hospital. The foster parent, Molly Green, testified that when the child arrived at her home, he had existing bruises, "bite marks," and sores that looked like cigarette burns on his arm. Green stated that the child needed constant attention; that he became "hysterical" if the Greens were out of his sight; that he did not cry, but screamed, "piercing screams," until he was picked up by Green; and that he was a "tremendously emotional child." The child would not eat voluntarily, and Green testified that this was very unusual for a child of this age. Green stated that she had problems in getting the child to go to sleep, and that this, too, was unusual for a child of this age.

The child was removed from Green's home, after he sustained injuries to his head and face. Green stated that she discovered bruises on the child's chin and neck, and determined that the child was injuring himself in the baby bed by jumping up and down, hitting his head on the railing. Green later learned that the child had never before been in a baby bed. Martinez, the first Child Welfare caseworker, testified that the child was removed from Green's home because he needed constant attention in order to protect him from self-inflicted injuries. The child was placed in a home where he was the only child.

The child was placed in the Richmire home on July 9. Marlene Richmire testified that, in July 1983, the child was lethargic and depressed; he did not respond to pain; and he "didn't have the will to live"--"[h]e was just like an inanimate object." The child would wake from sleep at night every thirty minutes, screaming. Richmire stated that it seemed "that he had repressed anger of something." The child did not want to eat; he was a "very picky" eater; and he occasionally hoarded food, putting it in a napkin and taking it to bed with him. Richmire testified that the child "progressed quickly" while in her care; he became more active, gained weight, and seemed "happy and more secure."

Richmire stated that, when the child was returned to her home after a visit with his parents, he was "really unmanageable." The child woke from sleep at night with "terrible anger." During those visits at which Richmire was...