In re A.M.

IN THE INTEREST OF A.M., A CHILD

No. 07-18-00141-CV

Court of Appeals Seventh District of Texas at Amarillo

August 9, 2018

On Appeal from the County Court at Law No. 1 Randall County, Texas

Trial Court No. 10,995-L1, Honorable Jack M. Graham, Presiding

MEMORANDUM OPINION

Before CAMPBELL and PIRTLE and PARKER, JJ.

Following a bench trial, the trial court signed a judgment terminating the parent-child relationship between W.M. and his daughter, A.M.¹ W.M. challenges the legal and factual sufficiency of the evidence supporting the grounds for termination of his parental rights. We affirm the judgment of the trial court.

BACKGROUND

W.M. and D.F. are the parents of H.G., eight years old; N.M., two years old; and six-month-old twins, S.M. and E.M. W.M. is also the father of A.M., who is four years old. The mother of A.M. is B.A. According to W.M., he and B.A. separated in 2014 "because of the neglect and very poor taking care of my daughter."² A.M. began living with W.M. and D.F. when A.M. was eighteen months old.

From August 2016 until December 2016, W.M. and D.F. took A.M. to counseling with Louva Hunt, a licensed professional counselor, with concerns about A.M.'s behavior. They reported that A.M. threatened to kill herself and her sister, and that she put a cat in a clothes dryer and it died. D.F. related that A.M. gets angry and has an "evil look across her face." There were also concerns about her bedwetting and drinking out of the toilet. Hunt was unable to corroborate any aggressive behavior W.M. and D.F. described. Hunt observed that A.M. was shy and sweet. Hunt noted that W.M. and D.F. had conflicts in parenting. W.M. acknowledged that he and D.F. disagreed on how to discipline A.M. D.F. said, "I tell my children what to do and they do it, and I expect [A.M.] to do the same." Hunt requested that W.M. and D.F. provide her a list of specific examples of behavior issues that they noticed and to provide records from the school A.M. attended so that Hunt could formulate a treatment plan but nothing was provided.

On February 23, 2017, D.F. called W.M. at work to let him know that A.M. scalded her hand trying to wash her hands. W.M told D.F. to run cold water over the burn andapply mustard to A.M.'s hand. When W.M. got home, A.M. was sitting on the kitchen sink and D.F. was treating A.M.'s burn. A.M. "was not crying in excruciating pain." "She was just sniffling" and she told W.M. the burn "just hurts a little bit." W.M. said the burn "looked like a sunburn, a little red." Instead of taking A.M. to the emergency room, W.M. and D.F. decided to see how it "progressed if we felt she was in enough pain to have to go to the ER. We looked up things online" about how to treat it. W.M. treated his burns in the past with mustard, honey, and black tea. W.M. claimed that after they removed the mustard, A.M. told him "it did not hurt at all." In addition to mustard, W.M. and D.F. treated A.M.'s hand with cool black tea, honey, and burn gel that W.M. purchased at Walmart. They wrapped her hand with gauze and put a bag over it to keep the air off of it.

W.M. returned to work after he determined that A.M "was not in dire need to go to the hospital." He said that when he returned home later that night, A.M. was "feeling good." W.M. did not look at A.M.'s hand the day after it was burned. D.F. testified that A.M. appeared to be in "some" pain and would verbalize the pain if she was trying to use her hand those first few days. At trial, W.M. claimed that he and D.F. gave A.M. Motrin for pain—"probably every four hours, four to six hours."

On the afternoon of February 27, 2017, D.F. took A.M. for her four-year-old well-check at Amarillo Pediatric Clinic. Julie Reel, a nurse practitioner at the clinic, has known D.F. for two to three years because all of D.F.'s children and A.M. have established care at the clinic. Reel was aware that D.F. and W.M. argued about A.M. and that they were in family counseling because of "the family drama and dynamics with A.M." The only behavioral concern that Reel addressed with D.F. before this well-check was A.M.'s bedwetting.

During the well-check, Reel noticed a scratch on A.M.'s face. D.F. said that N.M. "was pretty rough with her and that's where the scratch came from." D.F. did not mention that A.M. had sustained a burn. Reel testified that A.M. was "very quiet and just kind of withdrawn." "She was sitting on the edge of the table, and she was just kind of rocking back and forth." Reel noticed that A.M.'s hand was wrapped and saw "the outside of the hand completely reddened up to a specialized demarcation of maybe possibly where she had a sleeve or something on and blisters had popped." A.M. appeared to be in pain. Reel "knew that that type of burn would hurt." When Reel asked A.M. if it hurt, A.M. "just kind of squeezed her eyes and looked at me with big tears, and she just shook her head yes." A.M. was holding her breath at times because she was in so much pain. D.F. told Reel that A.M. was playing with the hot water in the tub and turned it on. "[D.F.] said she has told [A.M.] a thousand times not to turn on the hot water without [D.F.] being there, but [A.M.] turned on the hot water and burned her own hand." D.F. said that she wanted to take A.M. to the emergency room but W.M. said "we can just treat it with tea bags and honey." Reel testified that "there was no way that I could touch it without A.M. wincing in pain." D.F. said, "I have Tylenol at home, but she didn't act like it hurt, so I didn't give her any." Reel gave A.M. ibuprofen to make her more comfortable and put a light gauze over A.M.'s hand. Then Reel arranged for A.M. to be taken immediately to the burn unit in Lubbock for treatment. Reel testified that failing to obtain medical treatment immediately for A.M. endangered A.M.'s physical health or emotional well-being. The high risk of infection and the pain level can "definitely hurt a child's emotional stability" according to Reel.

The Department of Family and Protective Services (Department) became involved with A.M. after she was admitted to University Medical Center burn unit in Lubbock. Shehad a severe burn with popped blisters on the top of her right hand.³ A.M. was given morphine for pain. She told the medical staff that her brother turned the hot water on while she was taking a bath. A.M. later told a nurse that she was washing her hands when she was hurt. D.F. told medical staff that A.M. placed her hand under hot water and it scalded her. She also told medical staff the hot water heater was turned up to its highest setting⁴ and "has since been turned down." D.F. explained that the scratches on A.M. were from her little brother who plays very rough with her.

Dr. Patti Patterson, a board-certified pediatrician, professor of pediatrics at Texas Tech University School of Medicine and director of child abuse pediatrics for the Lubbock region, evaluated A.M. at the request of the burn unit trauma team. Dr. Patterson reviewed the photographs of A.M.'s hand that were contained within A.M.'s medical records. The photographs depict a second degree burn on the back of A.M.'s hand with a very clear, straight mark across the wrist. The pictures show a burn that "would hurt a lot" with reddening and "some areas that look deeper."

Patterson explained that hand burns are complicated because of the intricate muscles in the fingers. Scarring or infection in the hand muscles can result in permanent disability in the fingers and the "risk of losing function." The risk of infection due to lack of proper treatment could endanger a child. The time between the burn and the admission to the hospital was concerning to Patterson because of A.M.'s pain and the risk of infection without proper treatment.

When Dr. Patterson saw the child, she was on pain medication, but prior to that she would have been in "bad pain." Tylenol would not have alleviated her pain. The child would have had trouble in her daily functioning as a result of the burn during the first few days due to the level of pain. The child would not have been using the hand regularly during this stage of the injury.

Dr. Patterson could not say whether the application of mustard and black tea to the injury would have helped it or made it worse, but "it would have been a lot better to go ahead and get appropriate medical care." Patterson stated that a reasonable parent would have sought medical care.

According to W.M. and D.F., A.M. was "washing her hands and hit the hot water." That description was of concern to Dr. Patterson because:

The photograph shows that the—the demarcation of where the burn stops on the wrist is very straight. You expect with sort of a burn that's from a running faucet that it would splash, and so you wouldn't have a straight mark. It would be jagged. You can even have splash marks up the arm. So to me it—it didn't look like what was described.

Patterson explained that handwashing burns are not common because "your instinct is to jerk your hand back if the water is too hot." If the injury occurred as described by W.M. and D.F., A.M. would have "jerked her hand back immediately." A clear line of demarcation is indicative of an immersion burn "where a hand is put down into something hot. I have seen it with a flow, but more of where the—the extremity is held there."

Patterson concluded that A.M.'s burn was "most likely an inflicted injury" and she was "concerned for the safety of the child." Her opinion that it was an inflicted injury wasbased on the pattern of the burn and that "it really wasn't consistent at all with the history that I've been provided."

On March 2, 2017, W.M. and D.F. wanted to take A.M. out of the hospital and treat her at home with over-the-counter medication. Patterson testified that removing A.M. from medical treatment at that time would have endangered A.M.'s physical health or emotional well-being. According to Patterson, A.M. sustained a severe burn that should have been treated immediately...