Smith v. Texas Department of Protective and Regulatory Services9/11/2003
s subsection must be based on more than a single act or omission; a voluntary, deliberate, and conscious "course of conduct" by the parent is required. Id. at 812. In its brief, the Department argues that Bobbie and Carlos engaged in conduct endangering their children's well-being by (1) failing to tend to the children's medical needs, (2) failing to adequately supervise the children, (3) neglecting the children's educational needs, and (4) engaging in drug use, which in the case of Carlos, has resulted in incarceration.
The youngest child, C.R.S., has special medical needs. She required the use of an apnea monitor, was diagnosed with mild cerebral palsy, and suffered from seizures when she was first placed in her foster home. In its brief, the Department contends that the Smiths "offered no evidence that they gave [C.R.S.] the needed physical therapy to help reduce the effects of her cerebral palsy." It is clear from the record, however, that Bobbie sought medical treatment for C.R.S., as recently as the morning that C.R.S. was removed from her home. A few days before the Department removed the children, Bobbie took C.R.S. to the hospital emergency room because she had stopped breathing. A doctor there told Bobbie that C.R.S. needed an apnea monitor and that Bobbie should contact a specialist. Bobbie contacted a specialist the following day; the specialist told Bobbie that she would need a phone line in order to use the apnea monitor. So, Bobbie, who had been staying with her mother-in-law at the time, moved back to her trailer because her mother-in-law had no phone line, but the trailer did. On the morning of February 22, the same day the Department removed the children, a specialist, Dr. Forrester, came to Bobbie's home, showed her how to work the apnea monitor, taught her CPR and what to do if the child began choking. A few hours later, the Department came to visit Bobbie and shortly thereafter, returned to remove her children. There is nothing in the record to suggest that C.R.S. had been diagnosed with or that Bobbie had been aware of the cerebral palsy at that time. In fact, C.R.S.'s foster mother, Reba Leming, testified that C.R.S. was not diagnosed with cerebral palsy until after she came into Leming's care and Leming took her to a pediatrician, who diagnosed her. Leming, who is a rehabilitative foster parent, testified that when C.R.S. arrived, she was not yet at the crawling stage, and evidently there would have been no way to know up until that point to even check for cerebral palsy.
The Department also contends that Bobbie neglected S.R.H.'s, C.L.S.'s, and C.C.S.'s medical needs. When S.R.H. arrived in her foster home, she had six bad teeth, according to Ruth Fowler, her foster parent. S.R.H. cried when she tried to eat, and her teeth bled. Fowler took S.R.H. to a dentist, who capped three of the teeth and removed three, two of which were abscessed. All six teeth were baby teeth. Both S.R.H. and C.C.S. had recurring problems with head lice. Also, Margaret Markham, C.L.S.'s foster parent, testified that when C.L.S. first arrived at her foster home, she had ear infections and an ankle problem. A physician treated her ear infections, and an orthopaedist has looked at her ankle. Finally, the Department asserts that the children were all hungry, dirty, and very thin when they were removed from their home; C.L.S., for example, had milk underneath her chin. The record includes no evidence, however, that the children were malnourished, and in fact, Harris testified that she observed plenty of canned juices and food in the kitchen cabinets during her visits. Also, Harris acknowledged that the children had been playing outside before she came to remove them, and that they could have gotten dirty wh
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