The Texas Department of Family and Protective Services on Monday was granted temporary custody of the two younger siblings of a 12-year-old boy who was killed Thursday in what police officials believe is an accidental shooting at an East Lubbock McDonald’s drive-thru.
An order for protection and conservatorship was signed Monday by Judge Kara Darnell of the Child Protection Court to give custody of the children, a 2-year-old boy and a 10-month-old girl, to the department until the court determines whether to terminate parental rights of their mother and fathers. The children are living with relatives, the document states.
The children’s removal stems from a concern of the children’s safety because of the inconsistent stories from the children’s mother, Sandra Cortez, who was present at the time of the shooting, and other family members, according to a department worker’s affidavit.
Court documents state the family has a history with Child Protective Services going back to 2001, and most recently 2016, for alleged issues such as neglectful supervision, drug use and domestic abuse.
“Ms. Cortez continues to allow individuals around her children that pose significant risk to them and their immediate safety,” the document states.
Cortez described her son’s death as a “devastating and tragic accident.”
“Damien is greatly loved and missed by all of us,” she said in an e-mail.
She said she plans to fight for her children.
“I’ll never give up on any of my children or fighting for them,” she said in a e-mail. “God has a plan and my family’s hardships are part of my testimony. Damien mommy loves you and I promise you son I won’t ever forget you and I’m going to keep fighting my love. God has a plan for us my baby boy.”
Police officials state Damien Cortez was accidentally shot with a gun his 17-year-old brother had as they sat in the backseat of a vehicle while the family ordered food at the McDonald’s drive-thru on I-27 and 50th Street. The two younger children were also sitting in the the backseat of the vehicle at the time of the shooting.
Sandra Cortez told investigators there was no fighting before the shooting, the affidavit states.
She reportedly told investigators her 17-year-old son told her the day before he bought a gun from a woman on the street. She said she told her son that he better not have a gun, but said she didn’t look for the weapon or ask more about it.
The 17-year-old told investigators his mother knew he had a weapon but thought it was at home. He said he remembered leaving the gun in the pocket behind the vehicle’s front passenger seat, the affidavit states.
In a police report, the teen reportedly told police, “my little brother shot himself.” However, the 2-year-old boy’s father, Aniseto Olivarez, who was driving the vehicle, said Damien Cortez suffered a gunshot wound to the back of his head, the affidavit states.
Family members told investigators they saw the teen with a gun before and his grandmother said she called police on him in January when she learned he had a weapon.
The documents does not reveal how the teen, who was out on bond on unrelated felony charges at the time, came into possession of the gun, though it was apparent he had one since at least December when he posted a photo of him holding one on Facebook, the affidavit states.
At present, no charges have been filed in connection with the shooting.