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Careless

Just how 2-month-old Eric Hernandez's femur was broken remains a mystery. Only his 19-year-old mother knows how it happened. But every time she explains herself, her story changes. When Juana Olalde arrived at Children's Medical Center of Dallas on February 27 with her injured son, she told Donna Mendez, a Children's physician, that she had fallen with the child in her arms.

At first, Olalde said the accident took place in her kitchen. Then, she said it happened in the courtyard outside of the apartment in Grand Prairie she shared with Eric's father. Her account of where she was when she fell changed. Even the private investigator hired by her own lawyer admits as much.

Donna Mendez was troubled by other aspects of the story.

The infant's right leg was broken in a spiral fracture, which is caused by a sudden twisting. That type of injury is a red flag for child abuse -- an injury that alone would put the doctor on alert. Then Olalde told her it had been a day since the injury occurred. The day before, the mother explained, she had taken Eric to a curandero in Mansfield, a healer who attempted to drive away the "bad spirits" afflicting the child by massaging his leg with oils and herbs.

"The mother delayed seeking medical attention, which is of concern," Mendez wrote in her report. "The history is not consistent with the injury."

The nature of the injury, the inconsistent story, and the delay convinced Children's Medical Center officials to alert Child Protective Services and report a case of possible abuse, as the law requires. This activated the overworn machinery the state has in place to protect the young and helpless. In 1997, the latest year for which statistics are available, Texas child welfare officials removed 7,723 kids from their homes.

Typically, these children go to a foster home while the courts begin to decide who will raise them and where. The idea is to provide a safe and nurturing temporary haven while the facts are sorted out.

That's just what happened in this case: A district judge ruled Eric should be taken away from his parents, Juana Olalde and Nicolas Hernandez, and placed in a foster home pending the results of a 14-day investigation.

But this time, something else happened. It was the worst thing imaginable.

The state placed Eric with a licensed foster family in Cedar Hill.

A week later, he was dead.

As medical, criminal, private, and internal state investigations into the circumstances of Eric's death have ground on, some of the basic questions have been answered.

The medical examiner ruled that Eric died of accidental suffocation -- or, in more technical terms, "positional asphyxia following immobilization of the right leg due to a leg fracture." He had been placed face-down in his crib on a pillow, and couldn't move to breathe because of a cast on his leg.

On April 19, Child Protective Services reached its own internal findings concerning the care given Eric by the foster parents, Sue and Jerome Claud, a 40-ish couple of modest means.

The agency ruled out any physical abuse, but found "reason to believe" the Clauds had engaged in neglectful supervision of Eric. More disturbing is that the report also found "indications that a child from this [home] has been abused or neglected in the past" and concluded that "the physical condition of the home poses a danger to any child's health or safety."

The finding automatically revoked their foster parents' license.

But nobody will answer the next obvious question -- one that threatens to tear an enormous hole in Texas' child welfare safety net. No one will explain why the state took a child from an environment they suspected was unsafe and put him in a home they knew to be dangerous.

According to an extraordinary internal review of the Claud foster home -- a confidential report provided to the Dallas Observer by a lawyer representing Eric's natural parents -- there seems little doubt the state knew in what kind of place it had put a 49-day-old injured infant.

Cluttered. Filthy. Headed up by a lazy, overweight chain smoker who once told a state worker she was in foster care for the money.

It was just the kind of place where a little baby could suffocate to death while his guardian was parked on the living-room sofa, glued to a Sunday-night rerun of ER.


Child Protective Services' internal investigation into Eric's death and the Claud foster home turned out to be everything one doesn't expect from a bureaucratic self-examination: tough, thorough, and hard enough on the agency to pose potential legal headaches.

 

Four days after the baby died, in a back-page story in The Dallas Morning News, CPS regional spokeswoman Marleigh Meisner said the agency believed the foster family provided "appropriate care for the boy." That was the last time the Morning News wrote about Eric's death.

At that time, Marianne Sharp, the agency's chief investigator on the case, had just begun digging for what would turn out to be a far different truth.

Her most fruitful technique, it appears, was to put out an e-mail notice to CPS staff members in the region and gather up the responses. There was also some detailed questioning of the Clauds, who declined to speak with Cedar Hill police detectives and who did not return phone calls seeking comment for this story.

Cedar Hill police went to the Clauds' brick, three-bedroom house on two occasions. One time, an officer reported, Sue Claud would not answer the door. On the next visit, a detective said he wanted to see the crib where the baby was found. Sue told him it had already been dismantled, and she would not let him in.

The Cedar Hill cops are continuing their investigation, according to Sgt. Pam Uffelman. "It looks like it will be referred to a grand jury," she said last week.

But the lawyers for the Hernandez family insist it appears that as the weeks and months go by, it looks less and less likely they have evidence of a crime, such as negligent homicide or child endangerment.

The Clauds, who passed an exhaustive CPS criminal records check, have been licensed foster parents since early 1997. Sue has one child -- a 15-year-old son by a previous relationship -- and the couple has had none together in nine years of marriage. Jerome, 40, works inspecting leather furniture. Sue, a 215-pound 47-year-old, reported on her foster-parent application that she last worked for a crafts company (she makes silk flower bouquets, a neighbor says). When Eric arrived at her house on February 28, her main job appeared to be the care of foster children, and she often would have three or four. The state pays a foster parent $15.90 a day for each child in the home.

In one of the most heavily redacted sections of Marianne Sharp's report, an analysis of the household noted that the Clauds "came to fostering with a lot of emotional baggage." Sharp found that "some of their issues had not been addressed adequately preceding their becoming foster parents." The report goes on to discuss Sue Claud's poor relationship with her parents and the fact that Jerome Claud "felt his parents were glad when he left home."

Various young children came and went from the Claud home over the past two years, the report shows, and there were two other children in their house when Eric arrived. Sue reported that even with his injury, Eric was a smiling, good-tempered baby who would usually sleep through the night, though sometimes he would wake at about 4 a.m.

At first, Eric's leg had been in a harness, but a doctor at Children's applied a cast shortly after he arrived at the Clauds'. Sue Claud told Sharp that a hospital nurse told her she needed to rotate Eric on his stomach and his back.

The next day, a Saturday, Eric slept most of the day; on Sunday, the Clauds took Eric for a long car ride. They had planned to go to church, but left the house so late that they decided "to just ride around" and look at houses, Claud told Sharp. They ended up in Waxahachie and had lunch. After getting home around 5:30 p.m., they put Eric in a swing; an hour later, they put him on his stomach on the floor while they watched a Disney movie on TV. Around 7:30, they put the baby in a bassinet in their bedroom to sleep.

Sue Claud told investigators she took a shower from about 10:30 to 11. Eric was still on his stomach in the bassinet at the end of the Clauds' bed. When Sue first checked on him that night, he was wedged up to the side of the blanket. She says she moved him and centered him on the pillow, but did not turn him over. After she got out of the shower, Sue said, she noticed his face was in the pillow, so she turned his head to one side. She and her husband watched ER for one hour and decided to give Eric a bottle before they went to bed.

Jerome went to fix the bottle while she went into the bedroom to get Eric. But when she touched the infant on the back of the head, he felt cool. She first thought that it could have been caused by the ceiling fan, but then picked him up. His face was gray, save for the blue around the mouth. He was not breathing.

 

Claud says they attempted CPR and called for paramedics. The baby was rushed to Charlton Methodist Medical Center's emergency room, but efforts to revive him were unsuccessful.

Proceeding like a bureaucratic Columbo, going over Sue Claud's story again and again during subsequent visits, Marianne Sharp asked the foster mother what she thought was the cause of Eric's death.

Claud said she thought it was sudden infant death syndrome (SIDS) and then went on about two cousins who had children who died from SIDS.

Sharp says in her report that she then asked Sue whether "she thought that the fact that he was 49 days old, had a heavy cast from his waist down, and was on his stomach with his face in a soft pillow might have contributed to his death.'"

According to Sharp's report, Sue replied that Eric had "a strong neck and could lift his head."

"I reminded her that she and Mr. Claud had told me on three separate occasions that they had noticed his face in the pillow and had stopped and turned his head but had not turned him over," Sharp wrote. "She said, 'Well, we didn't turn him over, but we repositioned him.' I reminded them that was not what they had told me in the beginning. They did not comment on that."

One of the most damning details in Sharp's report is her note that the hospital had given the Clauds instructions not to leave Eric sleeping on his stomach, but that the couple quickly neglected them.

"Mrs. Claud called me and left a message that she had remembered that she had gotten some discharge instructions from the hospital after Eric's cast was put on," Sharp added. "She said she had not taken them out of her van and so she had forgotten she had them."

Sharp also described how she confronted the Clauds with information from an unidentified family friend, who gave a sworn statement to CPS on March 22. The friend said she spoke with Sue shortly after Eric was discovered dead and told the investigator Sue sounded very upset -- especially when she said, "I really screwed up this time."

Sue told the friend she had put the baby on his stomach, his head on a pillow, in the dark bedroom. She explained that she and Jerome were in and out of the room all evening, and that after watching television, they decided to wake Eric and feed him before going to bed themselves. It was then, she told the friend, the couple discovered Eric dead, face-down on the pillow.

When the investigator confronted the Clauds with that account, they denied ever talking to the friend.

They also denied there was cause for a long list of concerns voiced by caseworkers who had placed children in their home, expressing surprise at some of the things that had been said.

Along with Sharp's own observations, the reports of other caseworkers led her to conclude that the Clauds' 15-year-old son was the main caregiver in the house. During one visit to the Claud household, Sharp observed that when the boy left the home, one of the foster children began crying inconsolably for quite a while.

All the caseworkers noted that Sue sits on the couch all day smoking at least two packs of cigarettes -- so much that, according to one female worker, "the smoke in the house is so thick that it burns your eyes." She noted that the children's playpen sits only a few feet from Sue, and that Sue ordered her husband and son to tend to the children and, essentially, "do everything else."

Lara Culpepper, another CPS caseworker, told Sharp that the smoke in the Claud home was so thick it gave her a headache. She also reported that laundry was strewn about the unkempt home, and that three young children were kept in the playpen together during her entire 2 1/2-hour visit -- during which Sue Claud never got off the couch.

Another caseworker, identified only as Jamie, found Sue to be clueless about the most basic aspects of parenting. Claud had called her in May 1998 about a young child in her home who had flooded her bathroom twice and had put another toddler under some pillows. Jamie asked why Sue left the child unsupervised; she had no answer.

The caseworker decided to move the child who had flooded the bathroom to another foster home, where the same thing happened on the first day the child was there. That foster mother figured out right away what the problem was simply by standing near the bathroom and watching the child. It turns out he thought he was supposed to flush his pull-up diaper down the toilet. The second foster mother, Jamie wrote, "quickly resolved that problem and had no other problems or complaints about" the child.

 

A caseworker identified in the report only as Jason had two children in the Clauds' home for about six weeks. He told Sharp he had no specific concerns about the Clauds, only that Sue was lazy and "didn't take the time to care for the home or the children in it that she needed to." Indeed, Sharp herself observed how cluttered the house was: The bedroom in which Eric was sleeping had things stacked from the floor approximately two to three feet high and wide enough to take up a large portion of the room.

Another caseworker referred to in Sharp's report only as Dorace said that when Sue brought several children into the office for family visits, they were dirty, their faces crusted with mucus. Dorace would have to clean the children before taking them in to see their parents, who would come for regulated visits. Of more concern was the fact that the children always seemed ill and were never properly dressed for the weather.

Dorace told Marianne Sharp she once asked Sue why she always cared for so many children, since she always seemed so "negative" toward them and considered them such nuisances. According to the report, Sue initially said she wanted to keep brothers and sisters together.

"But later," Dorace wrote, Sue "said that she needed to pay her house note."

The state's files also include two recent investigations into neglect or abuse complaints at the Claud household.

On January 19, Sue took two children in her care -- a 3-year-old girl and her 2-year-old sister -- to a state child welfare office for visitation with their parents. The older girl had a brownish bruise on her right thigh, and her sister had a greenish bruise on the right side of her buttocks. According to the initial abuse complaint, Claud said she had not noticed the marks, but said she recalled that the kids had been jumping on the bed and probably hurt themselves then.

"It is believed the [children] could not [have] received the bruises from jumping on the bed," the complaint concludes.

Nine days later, an anonymous caller telephoned CPS and told a caseworker that Sue "locks four small children in a closet so that she can do the craft work in which she is interested." The caller knew that Claud was already under scrutiny for abuse, but that the CPS investigator had given her ample notice of their visits. Because of this, the caller said, the Clauds "have time to clean the house, which is kept in a highly unhygienic condition."

Both cases were ruled unfounded by investigator Lois Lilly, and no action was taken. Still, Sharp's report on Eric Hernandez's case contains some telling observations about the internal CPS politics behind that outcome.

Caseworker Patty Zukas told Sharp she thought there was pressure from Dianne Purdin, the CPS employee in charge of overseeing the Clauds, to clear the family of the complaints so she could place another baby in the home.

"Lois said there was no outcry by the children, but that she had concerns about the foster mother," Zukas said. "Lois had a 'feeling' about the foster parent but could not validate abuse. Bottom line: Lois said she felt foster care was anxious for the investigation to be over so another child could be moved in the home."

Zukas provided another smoking gun when she told Sharp she "always" had issues regarding Sue's supervision of the children in her care. Zukas said she had even written memos to Dianne Purdin regarding these concerns.

Yet even with neglect complaints and written concerns by CPS staffers, it would take a dead baby to convince the state to pull the plug on the Clauds.

Marleigh Meisner, the CPS spokeswoman, declined to comment on any aspect of the case on the instruction of the agency's legal staff. No lawsuit has yet been filed, but the Hernandez family has lawyers who say one is in the works.


Gabriela Olalde, Juana Olalde's sister-in-law and Eric Hernandez's aunt, wants to know one thing: "If there were reports this family was not very caring, was negligent, why did they keep giving them children, let alone an infant in a cast?"

That is the question that will be hashed out in the months and years to come. Olalde, a 27-year-old homemaker, is part of a large extended family that lives in and around her mother's turquoise-colored house on South Centre Street in Grand Prairie, an enclave of little frame houses and yards in various states of repair.

 

In all, there are nine brothers and sisters, all of whom live a few blocks from their mother, Maria Olalde, whose house is adorned with perfectly tended rose bushes and statues of the Virgin Mary.

Juana and her boyfriend, 29-year-old Nicolas Hernandez, who works at a local furniture factory, shared a small second-floor apartment just up the street from her mother. They were not available to comment for this story, their family and lawyers say, because they have been on an extended stay with Hernandez's family in Guanajuato, Mexico, where he and Olalde were born.

Shortly after CPS took possession of Eric, Gabriela Olalde called Xavier Gonzalez, a Fort Worth lawyer who takes his car to the body shop where her husband works.

Olalde says they didn't hire Gonzalez at the outset because they thought the state would return the child any day. A CPS caseworker, Nefertimah Kelly, had told them a second doctor's opinion had helped support the mother's story about falling and hurting the child, Olalde says. A hearing had been set for March 12, two weeks after state District Judge Cheryl Shannon, acting on the first doctor's report, had ruled to give the state temporary custody.

On the Wednesday before Eric's death, his mother, father, and six other relatives went to the CPS office on Stemmons Freeway to visit the baby, whom Sue Claud had driven up from Cedar Hill.

"He was very healthy," Gabriela Olalde recalls. "He wasn't all that perky. The social worker explained it was the medication. But we were able to make him laugh. He smiled and everything."

The following Monday, two carloads of state welfare workers arrived at Olalde's apartment. One stood grim-faced in her living room and told her Eric was dead. Several of the Olaldes, who minutes earlier thought this was going to be a big homecoming, took the news so badly that an ambulance was called. Gabriela says Juana went into shock and kept screaming: "No! No! My baby!" Maria Olalde became weak, and paramedics had to give her oxygen.

Over the next several days, the family attempted to see the baby's body, but were told that the foster parents -- still Eric's legal custodians -- had identified him and nobody else would be allowed to see him.

"The first time the family got to go see him was at the funeral home," Xavier Gonzalez says. "It took me two days to get him released so they could bury him. CPS was happy to go on TV and say this was a good foster family, but never once have they offered to sit down with my clients and tell them what happened. Basically, they've said, 'Your baby is dead, and there's nothing you can do about it.'"

Within a few weeks of Eric's death, Gonzales brought the case to his mentor, Jay Gray, a partner in Noteboom and Gray, where Gonzales worked as an intern in law school. A high-test plaintiff's lawyer, Gray won a news-making $100 million jury-imposed judgment last year against the owner of a chain of substandard nursing homes.

"You read this, and you are amazed there was a child placed in that home," says Gray, patting a copy of the state's report, which sits on a huge granite conference table. "This is not a pretty picture."

Gray has been working to sketch in more details of life in the state-licensed Claud foster home. He hired private investigator Fred Pendergraf, a former Fort Worth cop who headed the city's Crimes Against Children unit. In his report to Gray, Pendergraf included the account of Cheryl Anne Sundstrom, a neighbor who had known Sue Claud for three years.

A 43-year-old homemaker who has raised nine children, four of whom are still home, Sundstrom told Pendergraff and the Observer that Claud would call her every day and talk for a long time. Claud, in fact, was so pesky, she inspired Sundstrom to get caller ID to cut down on their conversations.

After observing Sue Claud as a foster parent, Sundstrom is convinced she was in it for the money.

"She'd have those kids in their room 12 hours a day," Sundstrom recalls during an interview with the Observer. The neighbor says Claud would either stack pet gates two high across the bedroom door or place an ironing board across the entrance. "She told me CPS wouldn't let her have a lock on the door," Sundstrom says.

Sundstrom remembers that Sue called her one day and told her she had taped a pacifier to a 10-day-old child's face so she and her husband could get some rest. Claud had been concerned, Sundstrom says, because the baby had a doctor's appointment scheduled the next day and the tape left red marks around the baby's mouth. The appointment ended up getting canceled, Sundstrom says.

 

Babies were fed by simply propping the bottle up on a pillow, Sundstrom says. She adds that she once witnessed a baby vomit up its formula because Claud's feeding method sometimes didn't include burping.

The neighbor recalls the time her stepson had spent the night visiting the Clauds' son. According to Sundstrom, the boy told her that children at the Clauds were kept in their rooms so long, they were in their own waste. "The house smelled like crap," Sundstrom says. "Always."

She says that when the Clauds received Eric, Sue said she didn't really want to care for a child in a cast because she once had a child in a full body cast and he "messed his pants" and soiled the cast. She waited until her husband got home to clean it up, Sundstrom says.

The neighbor recounts that Sue once told her the family could not meet its bills without the foster-parent payments they received from CPS. And since the state money was cut off, the Clauds have held near-weekly garage sales. Sundstrom says many foster-care items -- including the bassinet in which Eric died -- have been sold.

In fact, Sundstrom says, the family is so hard-pressed now to pay its bills that Jerome and his son have also been soliciting yard-mowing work around the neighborhood.

"Sue says they need to mow so many yards to make it work," Sundstrom says. "She says she doesn't think she needs to go out and get a job. I think it's because she's too lazy."

Although Sundstrom's portrait of the Claud household is as stunning as it is consistent with some other accounts, Gray says he faces enormous hurdles in bringing legal action against the state child welfare system, which is immune from all sorts of legal claims. To bring a civil rights suit alleging deprivation of life, he must prove CPS acted with intent or gross negligence -- a very high barrier. Simple negligence isn't cause enough.

"Obviously, I want to find out why they hadn't had their foster-parent privileges taken away earlier," Gray says. "What's the deal? Are they short foster parents? Were they friends with someone?"

Gray says he is not concerned with whether the state was right in taking Eric away in the first place. "I have no complaint that in an abundance of caution, they took the child away," he insists. "If they are doing their job, the baby is gonna be safe and fine. My problem is, they took a child from an environment they thought was dangerous and put him in one they knew was dangerous. That's the big problem here."

And, for the state, it could get a whole lot bigger.


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