in the Interest of I. R. , a Child

Court of Appeals of Texas

in the Interest of I. R. , a Child

Court of Appeals of Texas·Decided June 25, 2013·No. 01-13-00024-CV·Published

Opinion

Opinion issued June 25, 2013.

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-13-00023-CV NO. 01-13-00024-CV ——————————— IN THE INTEREST OF B.R., A CHILD IN THE INTEREST OF I.R., A CHILD

On Appeal from the 315th District Court Harris County, Texas Trial Court Case Nos. 2010-05141J and 2011-00845J

MEMORANDUM OPINION

These parental termination appeals involve two young children: I.R., whom

the Texas Department of Family and Protective Services (Department) removed

from his parent’s care when he was approximately seven months old, and B.R.,

whom the Department took into custody at birth. After a bench trial, the trial court terminated the rights of the mother and the father to both children. The parents,

who no longer live together, appeal. Each contends that the evidence is legally and

factually insufficient to support the findings that they each engaged in conduct or

knowingly placed the children with persons who engaged in conduct that

endangered the physical or emotional well-being of the children. See TEX. FAM.

CODE ANN. § 161.001(1)(E) (West Supp. 2012). They also contend that the

evidence is legally and factually insufficient to support the finding that either

parent knowingly placed or knowingly allowed the children to remain in conditions

or surroundings which endangered the children’s physical or emotional well-being.

See id. § 161.001(1)(D). Finally, they contend that the evidence does not support

the trial court’s findings that termination of their parental rights is in the children’s

best interests. We hold that legally and factually sufficient evidence supports the

trial court’s findings; we therefore affirm the terminations.

Background

I.R.’s birth.

I.R. was born in early March 2010. The mother had complications during

pregnancy that caused her to give birth to I.R. at twenty-nine weeks. I.R. weighed

two pounds at birth. He was born with underdeveloped lungs, a condition

associated with prematurity. As a result of his breathing problems, I.R. spent much

of his first ten weeks of life in the neonatal intensive care unit at Ben Taub

2 Hospital in Houston. In mid-May, the hospital released I.R. to his parents in stable

condition; he did not require any medication.

I.R.’s parents’ relationship.

I.R.’s parents lived together but were not married. Before I.R.’s birth, the

mother had worked as a cashier, but she did not return to her job. When the

hospital released I.R. to go home, the mother was I.R.’s primary caregiver. The

father worked for a construction company, where he did odd jobs whenever they

needed him, but but he did not have a long-term assignment. The father testified

inconsistently about the amount of time he worked outside of the home: he initially

told the authorities that he worked long hours and thus did not spend much time

with I.R., but later recounted that he had cared for I.R. about forty percent of the

time. The mother and father were I.R.’s only caregivers.

The father and mother disagreed about whether the father drank alcohol, as

well as to what extent. The father testified that he did not currently drink alcohol.

He admitted to drinking alcohol in the past, but he stated that he did not recall

when he had last had a drink. The mother, however, testified that while they lived

together, she was concerned about the extent of the father’s drinking; it made her

angry when he would leave her alone with the baby to go out drinking with his

friends. He would come home drunk. The father denied arguing with the mother

about his drinking.

3 The mother also testified that, after she gave birth to I.R., but before she

brought him home from the hospital, the mother and the father had an argument.

During this argument, the father grabbed the mother and pushed her. She described

the father’s behavior as inappropriate, but added that she was not afraid of him.

The father did not recall pushing the mother.

I.R.’s life with his parents.

I.R. remained in his parents’ care from May 17 until the mother took I.R. for

a shoulder x-ray on July 22. While in his parents’ care, I.R. sustained multiple

serious injuries. Bilateral subdural hemorrhages appeared in the top portion of his

cranium; both of his femurs fractured near the growth plate at the knees; the

scapula in his left shoulder also was fractured; and he experienced trauma causing

extensive bruising across his shoulders and back and on his legs.

The Department’s expert witness, a Texas Children’s Hospital pediatrician

with seven years’ experience and expertise in diagnosing child abuse, estimated

that the earliest of I.R.’s injuries—the bleeding on his brain and the broken

femurs—occurred within the first six weeks that I.R. was in his parents’ care. The

subdural hemorrhages may have resulted from multiple incidents, because, the

expert noted, fresh blood was visible in I.R.’s x-rays. She testified that the type of

femur fractures and the subdural hemorrhages presented in I.R. are consistent with

4 a caretaker’s non-accidental whiplash motion, commonly referred to as “shaken

baby.”

The expert testified that babies with these types of femur fractures usually

react with obvious pain and fussiness. The bleeding in the head, she explained, can

cause a baby to go into a different state of consciousness; he would become quieter

and sleepier, and possibly lose consciousness. A baby also might have had

vomiting, fussiness, or poor feeding as a result of subdural hemorrhaging. Subdural

hemorrhaging is extremely dangerous; it can cause developmental delay or death,

because blood can pool at the base of the cranium, where it can pressure the brain

stem and cause the baby to stop breathing.

I.R. also suffered a later-dated broken scapula in his right shoulder. Baby’s

bones are not easily broken: a baby’s scapula can break from a fast and forceful

blow to the back, from jerking the baby’s arm in the direction opposite the deltoid

muscle, or as a result of the same whiplash motion that causes shaken baby

syndrome. A typical baby would react to that type of shoulder injury by becoming

very irritable and by holding his arm still.

The mother testified that, in early July, I.R. started crying whenever she

picked him up, and his left shoulder appeared to hurt him. She explained that she

not immediately seek medical attention, because after a few days, the baby seemed

to be “over it.” But, in mid-July, I.R. started crying again, so the mother took him

5 to see his pediatrician. The mother later testified that, at our around the time the

baby first showed difficulty using his right arm, she had left I.R. alone with his

father—the only time she did so—to attend a doctor’s appointment.

The pediatrician examined I.R. and prescribed an X-ray to be done at Ben

Taub Hospital. According to the mother, the pediatrician told her that the mother

could decide on her own whether or not to take I.R. for an x-ray. The mother, who

by then was two months’ pregnant with B.R., had an obstetric appointment at Ben

Taub about a week later. She waited and brought I.R. for his x-ray that day.

The Department takes I.R. into custody.

When the mother brought I.R. for the x-ray, the extensive bruising on his

body was still fairly fresh.

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