in the Interest of C.M.D. and H.M.A., Children ( 2014 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-13-00302-CV
IN THE INTEREST OF C.M.D. AND
H.M.A., CHILDREN
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FROM THE 323RD DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION 1
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Appellants S.A. (Mother) and T.D. (Father) appeal the trial court’s order
terminating their parental relationships with sons C.M.D. and H.M.A. In her sole
issue, Mother contends that her right to counsel was violated by the absence of
appointed counsel for a significant period, that this court’s directive in the prior
appeal that the retrial occur within 180 days of our mandate interfered with the
1
See Tex. R. App. P. 47.4.
trial court’s discretion, that the twelve-month period referenced in section
263.401 of the family code should have been restarted after remand, and that
she did not have ample opportunity to achieve family reunification before the
original termination order or to comply with the trial court’s post-remand order
establishing actions necessary for her to obtain the return of the children. Father
contends in five points that the evidence is insufficient to support the trial court’s
findings that he
• knowingly placed or knowingly allowed the children to remain in
conditions or surroundings which endangered their physical or
emotional well-being; 2
• engaged in conduct or knowingly placed the children with persons
who engaged in conduct which endangered their physical or
emotional wellbeing; 3
• constructively abandoned the children, who had been in the
permanent or temporary managing conservatorship of the Texas
Department of Family and Protective Services (TDFPS) for not less
than six months, and: (1) TDFPS had made reasonable efforts to
return the children to Father, (2) he had not regularly visited or
maintained significant contact with them, and (3) he had
demonstrated an inability to provide the children with a safe
environment; 4 and
• failed to comply with the provisions of a court order that specifically
established the actions necessary for him to obtain the return of the
children, who had been in the permanent or temporary managing
conservatorship of TDFPS for not less than nine months as a result
2
See Tex. Fam. Code Ann. § 161.001(1)(D) (West Supp. 2013).
3
See id. § 161.001(1)(E).
4
See id. § 161.001(1)(N).
2
of their removal from Father under Chapter 262 for abuse or
neglect 5
and that termination is in the children’s best interest. 6 Because we hold that
Mother forfeited her issue and that the evidence is legally and factually sufficient
to support the termination of Father’s parental rights, we affirm the trial court’s
judgment.
I. Mother forfeited her complaints.
After the original trial in this matter, the trial court issued a default
judgment, the parents filed a motion for new trial, and the trial court denied it.
The parents appealed. On November 29, 2012, this court held that the trial court
abused its discretion by denying Mother and Father’s motion for new trial,
reversed the trial court’s default judgment, and remanded this case for a new
trial. 7 In her sole issue, Mother contends that our directive that the retrial occur
within 180 days of our mandate interfered with the trial court’s ability to extend
the case, that the twelve-month period referenced in section 263.401 of the
family code should have been restarted based on the specifics of this case and
because she lacked counsel from sometime before May 2012 until March 19,
5
See id. § 161.001(1)(O).
6
See id. § 161.001(2).
7
In re C.M.D., No. 02-12-00237-CV, 2012 WL 5949506, at *4 (Tex. App.—
Fort Worth Nov. 29, 2012, no pet.).
3
2013, 8 that she did not have ample opportunity to achieve family reunification
before the original termination order because she lacked counsel, and that she
could not comply with the trial court’s May 2, 2013 order establishing actions
necessary for her to obtain the children’s return because she had only twenty
days to complete those actions before the retrial.
We note that Mother had counsel while her first appeal was pending and
that our order instructing the trial court to begin a retrial within 180 days of our
mandate was required by rule 28.4(c) of the rules of appellate procedure. 9
Without addressing the factual or legal merits of the remainder of her issue, we
hold that Mother forfeited all her complaints by not presenting them to the trial
court and obtaining a ruling. 10 We overrule Mother’s sole issue.
8
See Tex. Fam. Code Ann. § 263.401(a) (West 2008) (mandating
dismissal of a parental termination or conservatorship suit filed by TDFPS unless
the trial court has commenced trial or granted an extension by the first Monday
following the first anniversary of the trial court’s rendition of a temporary order
appointing TDFPS as temporary managing conservator).
9
See Tex. R. App. P. 28.4(c).
10
See Tex. R. App. P. 33.1(a)–(b); Bushell v. Dean, 803 S.W.2d 711, 712
(Tex. 1991) (op. on reh’g); Frazier v. Yu, 987 S.W.2d 607, 609–10 (Tex. App.—
Fort Worth 1999, pet. denied).
4
II. Father’s Appeal
A. The evidence is legally and factually sufficient to support the
trial court’s finding under section 161.001(1)(O) of the family code.
In Father’s third issue, he contends that the evidence is legally and
factually insufficient to support the trial court’s finding that he failed to comply
with the provisions of a court order that specifically established the actions
necessary for him to obtain the return of the children, who had been in the
permanent or temporary managing conservatorship of TDFPS for not less than
nine months as a result of their removal from Father under Chapter 262 for
abuse or neglect. 11
After a hearing on April 4, 2013, which Father attended, the trial court
signed on May 2, 2013 an order establishing actions necessary for him to obtain
the return of the children. The order provides,
Pursuant to Texas Family Code, Section 161.001 (O), the
court makes the following orders to establish the necessary actions
for the parent to obtain return of the child who has been in the
temporary managing conservatorship of the Department of Family
and Protective Services for not less than 9 months as a result of the
child’s removal from the parent pursuant to Chapter 262 for abuse
and neglect.
The Court orders . . . Respondent Father . . . to comply with
the following:
I. [FATHER] will abstain from criminal conduct.
11
See Tex. Fam. Code Ann. § 161.001(1)(O).
5
2. [FATHER] will abstain from the use of illegal drugs or
legal drugs for which he does not have a prescription.
3. [FATHER] to obtain and maintain appropriate housing
for himself [and his sons].
4. Within ten (10) days of this order, [FATHER] will provide
CPS written documentation of said housing, i.e. a lease
or similar documentation that lists him as an occupant.
5. [FATHER] will obtain gainful employment.
6. Within ten (10) days of obtaining gainful employment,
[FATHER] will provide CPS written documentation of
said employment.
7. If employed, by the fifth day of each month, [FATHER]
will provide to CPS copies of his paystubs from the
previous month.
8. If [FATHER] is unable to obtain gainful employment,
[he] will provide CPS written documentation of sources
of income with which he will provide food, shelter,
clothing and basic necessities for himself[ and his sons].
9. [FATHER] will, by the fifth day of each month, provide to
CPS copies of the previous month’s statements for any
and all banks accounts held in his name or jointly with
another person.
10. [FATHER] will, by April 19, 2013, provide copies of his
2010, 2011 and 2012 Federal Income Tax return to
CPS.
11. [FATHER] will, by April 19, 2013, provide a written list of
potential relative or fictive kinship placement options for
[his sons]. The list shall the individuals’ names,
addresses, phone numbers, copies of Social Security
cards, birth certificates, and driver’s license.
12. [FATHER] will maintain weekly contact with Case
Worker Rita E. Thompson, 401 W. Sanford, #2400,
Arlington, TX 76011, 817-548-4516 and/or via e-mail to
6
rita.thompson@dfps.state.tx.us to provide service plan
progress updates.
In his testimony, Father admitted to not providing “a list of potential relative
or fictive kinship placement options,” a copy of his lease, written documentation
of his employment, pay stubs, or copies of his 2010, 2011, or 2012 federal
income tax returns. He also admitted that he had not maintained weekly contact
with his caseworker, Rita Thompson. Thompson testified that he had not called
her, written her, or come by the TDFPS office in the year preceding retrial.
Father’s entire argument on this issue is set out below:
[Father] testified that he has never been arrested nor used
illegal drugs. The record evidence further revealed that [Father] has
a stable job and [has] been employed at the same position since
2009. In addition, [Father] testified that he rents a 3 bedroom home
and lives in that home by himself.
Therefore, based on the facts in the record, the evidence is
legally and factually insufficient to establish that [Father] did not
complete his Court Ordered Services.
While Father argues that he completed all of the services requested of him
by TDFPS, he does not contend that he complied with the trial court’s May 2,
2013 order. As this court has previously explained, subsection (O) of the statute
is not satisfied by substantial compliance. 12 Reviewing all the evidence in a light
favorable to the finding and judgment, we therefore hold that the trial court could
have reasonably formed a firm belief or conviction that Father failed to comply
12
In re K.H., No. 02-11-00427-CV, 2012 WL 2849283, at *4 (Tex. App.—
Fort Worth July 12, 2012, no pet.).
7
with the May 2, 2013 order. 13 We consequently hold that the evidence is legally
sufficient to support that finding. And giving due deference to the trial court’s
findings in our review of the entire record, we likewise hold that the trial court
could have reasonably and firmly believed that Father failed to comply with the
May 2013 order. 14 We therefore hold that the evidence is factually sufficient to
support that finding. We overrule Father’s third issue.
B. The evidence is legally and factually sufficient to support the
trial court’s finding that termination of Father’s parental rights is in the
children’s best interests.
In his fifth issue, Father argues that the evidence is legally and factually
insufficient to support the trial court’s finding that termination of his parental rights
to C.M.D. and H.M.A. is in their best interests. There is a strong presumption
that keeping a child with a parent is in the child’s best interest. 15 Prompt and
permanent placement of the child in a safe environment is also presumed to be
in the child’s best interest. 16
13
See Tex. Fam. Code Ann. § 161.001(1)(O); see also In re E.N.C., 384
S.W.3d 796, 808 (Tex. 2012); In re J.P.B., 180 S.W.3d 570, 573–74 (Tex. 2005)
(together providing standard of reviewing evidence for legal sufficiency when
burden of proof is clear and convincing).
14
See In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006); In re C.H., 89
S.W.3d 17, 28 (Tex. 2002) (together providing standard of reviewing evidence for
factual sufficiency when burden of proof is clear and convincing).
15
In re R.R., 209 S.W.3d 112, 116 (Tex. 2006).
16
Tex. Fam. Code Ann. § 263.307(a) (West 2008).
8
We review the entire record to determine the child’s best interest. 17 The
same evidence may be probative of both the subsection (1) ground and best
interest. 18 Nonexclusive factors that the trier of fact in a termination case may
also use in determining the best interest of the child include:
(A) the desires of the child;
(B) the emotional and physical needs of the child now and in the future;
(C) the emotional and physical danger to the child now and in the future;
(D) the parental abilities of the individuals seeking custody;
(E) the programs available to assist these individuals to promote the
best interest of the child;
(F) the plans for the child by these individuals or by the agency seeking
custody;
(G) the stability of the home or proposed placement;
(H) the acts or omissions of the parent which may indicate that the
existing parent-child relationship is not a proper one; and
(I) any excuse for the acts or omissions of the parent. 19
These factors are not exhaustive; some listed factors may be inapplicable
to some cases. 20 Furthermore, undisputed evidence of just one factor may be
17
In re E.C.R., 402 S.W.3d 239, 250 (Tex. 2013).
18
C.H., 89 S.W.3d at 28; see E.C.R., 402 S.W.3d at 249.
19
Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976) (citations
omitted); E.N.C., 384 S.W.3d at 807; see E.C.R., 402 S.W.3d at 249 (stating that
in reviewing a best interest finding, “we consider, among other evidence, the
Holley factors”).
9
sufficient in a particular case to support a finding that termination is in the best
interest of the child. 21 On the other hand, the presence of scant evidence
relevant to each factor will not support such a finding. 22
As Father points out, there was evidence that he had been employed
continuously since the family arrived in Texas in November 2009, that he lived
alone in a three-bedroom home, and that he had completed his service plan,
including parenting classes. There was also evidence that Father could support
his sons financially, that he had a support system in Fort Worth, and that he
loved his sons. Additionally, there was some evidence from which one could
infer that C.M.D. was attached to Mother and Father. In the first few weeks after
the removal, he would cry and not want to return to the first foster home after
visits with his parents, asking why he could not return to his home. He would
then lie on his bed and cry after returning to the foster home.
But the trial court also considered the following evidence at the retrial.
After the family moved from Arizona to Texas in November 2009, the boys
received no medical care until late January 2011 when Father and Mother took
H.M.A. to the emergency room. At that time, C.M.D. was almost five years old,
and H.M.A. was about thirty-two months old. His hands, which both parents had
20
C.H., 89 S.W.3d at 27.
21
Id.
22
Id.
10
noticed him sucking repeatedly for a month or two, had been severely burned.
Mother ultimately pled guilty to intentionally or knowingly burning his hands by
immersing them in liquid. C.M.D. stated that he and his brother had been
removed because “[their] house wasn’t safe. The water hurt [H.M.A].”
Dr. Sophia Grant, a pediatrician at Cook Children’s Hospital in Fort Worth,
testified that she believed that H.M.A. was starved. At the time of the January
2011 removal, he weighed less than sixteen pounds, the weight of an average
six- or seven-month-old. He was diagnosed with severe failure to thrive (FTT).
Mother admitted that he had been diagnosed with FTT in Arizona, before the
family ever moved to Texas. He was also legally blind, unable to walk, did not
crawl normally, according to Thompson, and was developmentally delayed.
Finally, his brain showed evidence of nonaccidental trauma.
After the removal, H.M.A. experienced “fair weight gain” of about thirteen
grams a day in the first foster home and had “great weight” gain in his second
foster home, where the foster mother had prior experience with FTT children. Dr.
Grant testified that she
saw him on four occasions, and [H.M.A.] gained weight at an
average of about 22 grams per day. A child of his age normally
gains weight at a rate of 38 grams per month. So he was gaining
almost two-thirds of what [a child of his age normally would] gain in a
month in a day. It was very dramatic.
She testified that the fact that he was severely underweight should have
been obvious to a layperson. Dr. Grant concluded that most of H.M.A.’s FTT
was due to caloric deprivation, noting that in the month of her final visit with
11
H.M.A., which was six months after her initial visit with him, he gained 232 grams
in one month; normal gain for a child his age would have been 38 grams per
month.
Father acknowledged that H.M.A. was “smaller than he should be” when
he was removed but insisted that H.M.A. was a normal size, considering his
premature birth. Father testified that a pediatrician had told Mother and him that
it would take time for a premature child to “develop normal activities, normal
types of walking, normal types of speech.” But again, neither C.M.D. nor H.M.A.
had received medical care or treatment of any kind since the family had arrived in
Texas fourteen to fifteen months before the removal.
Father agreed that a parent should notice if a child H.M.A.’s age had the
weight of a six-month-old and that that fact should concern a parent enough to
seek medical treatment. Father admitted that he had noticed that H.M.A. was
underweight when he was around two years old but stated that the boy looked
thin, not sick. Father conceded that by the time of the removal, H.M.A. looked
sick. But Father did not believe that H.M.A. had been starved before the
removal. Mother testified that she had complained to Father all the time about
H.M.A. not gaining weight.
H.M.A.’s lenses had been removed when he was an infant in Arizona and
never replaced. Father claimed ignorance of the removal of H.M.A.’s lenses, but
Mother testified that she regularly took H.M.A. to the eye doctor until they moved
to Texas in November 2009 and that Father drove her to the children’s doctors’
12
appointments. Dr. Grant testified that the lenses should have been replaced
soon after surgery and that it was very significant medical neglect for a parent not
to return his child to the doctor after surgery to have lenses put in. She explained
that a child needs to see to develop the area of the brain responsible for vision
and that blindness could be caused by not having lenses timely replaced.
Father also admitted that he knew the boys needed shots from November
2009 through January 2011.
Father had not lived apart from the children before the removal.
The evidence also showed that Father had not visited his sons for more
than a year and had made no requests to see them since May 16, 2012, his last
visit before his rights were terminated in the first trial. On the other hand, the
boys had been in their foster home for all but two months of the twenty-eight
months since their removal. The foster parents wanted to adopt the boys if the
parental rights of Mother and Father were terminated, and TDFPS shared that
goal.
C.M.D.’s first foster mother believed that he may have been emotionally
abused before arriving in her home because he appeared afraid to ask for food,
get up from the table, or get out of bed. Shortly after C.M.D. came into care, Dr.
Greta Kerwin of Treehouse Psychological Services evaluated his development.
His cognitive functioning was found to be “below average.” “His verbal and
nonverbal abilities [were] evenly developed.” Dr. Kerwin believed that it was
13
“likely that some of his deficits [were] due to lack of exposure and w[ould]
improve with ongoing learning opportunities.”
Doctor Kerwin also performed a developmental evaluation of H.M.A. soon
after the removal. She gave him a provisional diagnosis of moderate mental
retardation, noting that “his deficits in part [could] be due to environmental
neglect” and concluded that he had suffered both physical abuse and neglect. In
Father’s psychological evaluation, however, which occurred subsequent to his
sons’ evaluations, he “stated [that] his children did not have any developmental
delays or medical conditions.”
By the retrial, however, both boys had improved. C.M.D. was doing “great”
and was “academically on target.” Physically he was tall, slender, and very
active. He had been diagnosed with ADHD in foster care and took Ritalin but
had no other health issues.
H.M.A. still suffered from “significant developmental delay,” but because he
had shown “some improvement[,] the diagnosis [was] transitioned into intellectual
disability, severity unspecified.” H.M.A. also experienced more concrete
developmental improvements. While in his current foster home, he stood alone,
walked unsupported, and spoke his first words, all at the age of three years. The
foster parents were also ensuring that he received speech therapy, occupational
therapy, and physical therapy at school and at home.
H.M.A.’s lenses were replaced in foster care, and he had another eye
surgery to improve his vision. By August 2012, his vision seemed to have
14
improved somewhat because he was running into walls less. The foster mother
reported that he could nevertheless see only blobs. She was planning to acquire
a service dog for H.M.A. because of his ongoing visual issues.
H.M.A. had become attached to the foster family. The first
recommendation of his April 25, 2013 psychological assessment provides,
Stability with the foster mother. [H.M.A.] has a developing
attachment to this foster family. This is a child who has had severe
trauma in the family of origin. His attachment is somewhat insecure
to the foster parents, and he has some separation anxiety. He
needs stability with this foster home to give him an opportunity to
further strengthen his attachment and sense of trust in the home.
He needs an opportunity to be able to develop a secure attachment.
It would be emotionally devastating for him to be moved out of this
home.
Reviewing all the evidence in a light favorable to the finding and judgment,
we hold that the trial court could have reasonably formed a firm belief or
conviction that termination of the parent-child relationships between Father and
his sons is in their best interests. 23 We consequently hold that the evidence is
legally sufficient to support that finding. And giving due deference to the trial
court’s findings in our review of the entire record, we likewise hold that the trial
court could have reasonably and firmly believed that terminating the parent-child
relationships between Father and his sons is in their best interests. 24 We
23
See Tex. Fam. Code Ann. § 161.001(2); see also E.N.C., 384 S.W.3d at
808; J.P.B., 180 S.W.3d at 573–74.
24
See H.R.M., 209 S.W.3d at 108; C.H., 89 S.W.3d at 28.
15
therefore hold that the evidence is factually sufficient to support that finding. We
overrule Father’s fifth issue.
C. Issues Not Reached
Because a best interest finding and a finding of only one ground alleged
under section 161.001(1) of the family code are sufficient to support a judgment
of termination, 25 we do not reach Father’s first, second, and fourth issues, 26
which challenge the findings under subsections (D), (E), and (N). 27
III. Conclusion
Having overruled Mother’s sole issue and Father’s third and fifth issues,
which are dispositive, we affirm the trial court’s judgment.
/s/ Lee Ann Dauphinot
LEE ANN DAUPHINOT
JUSTICE
PANEL: LIVINGSTON, C.J.; DAUPHINOT and GABRIEL, JJ.
GABRIEL, J., concurs without opinion.
DELIVERED: February 6, 2014
25
In re E.M.N., 221 S.W.3d 815, 821 (Tex. App.—Fort Worth 2007, no
pet.).
26
See Tex. R. App. P. 47.1.
27
See Tex. Fam. Code Ann. § 161.001(1)(D), (E), (N).
16