L. R. J. M. v. Texas Department of Family and Protective Services ( 2020 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-20-00274-CV
L. R. J. M., Appellant
v.
Texas Department of Family and Protective Services, Appellee
FROM THE 207TH DISTRICT COURT OF HAYS COUNTY
NO. 19-1159, THE HONORABLE DAVID JUNKIN, JUDGE PRESIDING
MEMORANDUM OPINION
L.R.J.M. (“Mother”) appeals from the trial court’s order terminating her parental
rights to her daughter, “Cara,” who was born in April 2017.1 As explained below, we will
reform the trial court’s order of termination and, as reformed, affirm the order.
FACTUAL AND PROCEDURAL SUMMARY
In May 2019, the Texas Department of Family and Protective Services filed a
petition seeking conservatorship of Cara. The affidavit of removal explained that in March 2019,
maternal grandmother “Wanda” had gone to visit Mother, Father, and Cara at their residence,
which consisted of two recreational vehicles (RVs). A house was on the property, but the
allegation stated that “the parents do not always have access to enter the residence.” The RVs
1
For the sake of the child’s privacy and for clarity, we refer to the parents as “Mother”
and “Father” and to the children and others involved by pseudonyms. See Tex. Fam. Code
§ 109.002(d); Tex. R. App. P. 9.8.
had no plumbing, their toilets were clogged, “[b]uckets were used in place of toilets and the
waste [was] thrown outside,” and two-year-old Cara “was allowed to run around naked so that
she can go to the bathroom as she pleased.” With Mother’s permission, Wanda took Cara home
with her for about a month. In late April, Father demanded Cara’s return, and two days later, the
Department received a report that Mother, Father, and the paternal grandparents were abusing
drugs, sometimes in front of Cara. The report said that all four were “using and snorting opiates”
and smoking marijuana, that Mother was also abusing cocaine, and that the grandparents were
allegedly selling prescription drugs from the home. The report further alleged that Mother “has
been observed hitting and physically abusing [Cara] in the past,” that Mother had thrown a bottle
at the child, and that Cara “has been abused with bruising on her body.”
A Department investigator found the family living in a small RV that was “dirty
and unkempt with bags of trash located next to the play [pen].” The RV had electricity and a
television but no running water or toilet, and the property around the RV “had discarded wood
crates, a couch, a broken fan, a washing machine or dryer and a toilet with a black bag stuffed in
it with the lid down.” When the investigator spoke to Mother, she admitted that the RV had no
running water and “had a mice problem.” She also admitted that she smoked marijuana but said
it was not while Cara was present. Father told the investigator that Mother had thrown a bottle at
Cara, “causing bruises” on the child. He said that they slept in the RV because it had electricity,
that they used the house to shower and cook, and that they no longer used the larger trailer
because it was not hooked up to the septic system. The investigator stated that he believed Cara
was in danger because of drug use by the parents, alleged physical abuse by both parents, and an
unsafe physical environment, which he said was “not fit for someone her age.”
2
In mid-May 2019, the trial court signed an order permitting the Department to
remove Cara from her parents’ care. In February 2020, the trial court signed an order finding
that Father had demonstrated adequate compliance with the safety plan and ordering that Cara be
placed back in his care. The court found that Mother had not made adequate progress and
ordered that she could not have visitation until she started to engage in services and obtained
approval from Cara’s Court-Appointed Special Advocate (CASA).
A final hearing was held in April 2020.2 The Department presented testimony by
Department caseworker Will O’Brien, and a brief oral “report” of the CASA’s opinion. Mother
did not appear at the hearing, and her attorney said that she had not had contact with Mother
since the February 2020 hearing. The Department also introduced into evidence Mother’s July
2019 family service plan, a Status Hearing Order from July 2019, and records related to
Mother’s conviction in October 2019 for possession of a dangerous drug.
O’Brien testified that he had been the caseworker since November, about five
months before the hearing. He explained that the Department had sought conservatorship
because of “a report that there were unsafe living conditions” and an ensuing investigation that
showed that Cara “was living in a trailer, which was—there’s hazardous material laying around.
There wasn’t running water. It was unsanitary. It was unclean.” He also noted allegations of
physical abuse by Mother and drug use by both Mother and Father. O’Brien said Father had
“successfully addressed all of the Department’s concerns,” demonstrated skills learned through
his required services, tested negative for drugs throughout the proceeding after an initial positive
test for marijuana, and obtained employment and safe and stable housing. Cara was “doing very,
2
The trial was held via video conference due to COVID-19. See Second Amended
Emergency Order Regarding COVID-19, Travis County Civil & Family Courts, Admin. File No.
GN-61-121012, signed and filed May 7, 2020.
3
very well” with Father and appeared to be well bonded to him. She “cling[s] to Dad and she’s
very happy to be with him.” She smiles and is happy to see him. When asked if she feels safe
with Father, Cara indicated she does and gave “very big smiles.” O’Brien had “no concerns with
how she is doing” with Father and did not believe Cara would need therapy in the future: “To my
knowledge, she is doing very well. I don’t see therapy as necessary.” O’Brien said Mother and
Father were no longer in a relationship; that they had very little contact; and that Mother had
reached out to Father “a few times,” “strictly just for checking in on” Cara. He said that if Father
was named sole managing conservator and Mother’s parental rights were terminated, he trusted
that Father would not allow Mother access to Cara.
As for Mother, O’Brien testified that she had not complied with the court-ordered
service plan, which included requirements that she maintain safe and stable housing; abstain
from drug use, criminal activity, and domestic violence; write a plan explaining “how she intends
to provide for her family’s needs as well as a budget”; seek temporary public assistance to ensure
that she could meet her and Cara’s basic needs; complete a protective parenting class and a
nurturing parenting class; complete a drug and alcohol assessment; submit to random drug
testing; participate in AA or NA meetings; complete a psychological evaluation; follow all
recommendations from the evaluation; and inform the Department of her address, any arrests,
any new relationships, and the like. O’Brien said Mother had not kept in contact with the
Department or informed it of her address, completed a drug and alcohol assessment, or
completed either of the required parenting classes. She failed to take any drug tests except one
negative hair follicle test in February 2020 and did not provide proof that she had attended any
AA or NA meetings. O’Brien also said that Mother did not develop a written budget, obtain safe
and stable housing, or seek temporary public assistance or other financial help.
4
O’Brien testified that when he was assigned to the case, his “number one priority
was getting [Mother] into an in-patient” program. At that time, Mother was “in a rehab facility”
that “did not qualify as an in-patient,” so O’Brien referred her to an in-patient program. She
started that program in January 2020 but only “remained there for about two and a half weeks
before she was kicked out” “for roughhousing and hitting another patient.” O’Brien testified that
Mother was homeless for a while and then entered a women’s shelter, but she was again kicked
out “because of—according to [the shelter]—falsifying to MHMR”3 and trying to sneak a man
into her room. O’Brien said, “I do not know where [Mother] has been since,” and testified that
the last time he had contact with her was at the February 2020 permanency hearing. Mother did
not have a phone, and O’Brien thus could only contact her through her case manager or through
the shelters in which she was placed. O’Brien testified that “as soon as she would leave a
placement, she would be AWOL for me.”
O’Brien testified that Mother had not had contact with Cara since his assignment
to the case. In addition, Mother had only had two visits before O’Brien’s assignment and had
“not made active efforts to be involved in visitation.” O’Brien was asked if Mother had ever
called “to ask to speak to” Cara, and he said she had. He also explained that he had made plans
for Cara to visit Mother at her in-patient program, “but that very week was the week that she was
unsuccessfully discharged” from the program.
O’Brien said that he had concerns about Mother’s mental health. However, he
admitted, nothing “can be validated because she never went in for a psychological evaluation.”
3
MHMR stands for “Mental Health and Mental Retardation” and refers to organizations
that provide mental-health services. See, e.g., Texas Home Mgmt., Inc. v. Peavy, 89 S.W.3d 30,
32 (Tex. 2002); Parsons v. State, No. 03-19-00742-CR, 2020 WL 5099951, at *5 (Tex. App.—
Austin Aug. 28, 2020, no pet. h.) (mem. op., not designated for publication).
5
His concerns arose from “the way that she would communicate. She seemed a little bit
delusional at times and very sporadic. So, I have my personal concerns, but nothing that I can
professionally verify.”
O’Brien concluded his testimony by stating that he did not believe Mother had
demonstrated an ability to provide Cara with a safe environment. He explained:
My concerns for [Mother] are the very concerns that brought her into this case;
maybe with a few additional. As I’ve spent time on this case, originally it was
that she has not demonstrated that she can be a safe and protective parent in any
capacity. Regarding her drug use; regarding being able to determine if she was
physically abusive to her daughter. We have allegations of her hitting her
daughter and throwing a water bottle at her daughter. And we’ve not been able to
have any of this evaluated. We have personal concerns about her mental health,
which we have not been able to evaluate because of the lack of a psychological
evaluation. And I—I do have concerns, which may have been alleviated in a
nurturing parenting class, of her being a nurturing parent. To me, she not only has
not completed any services, but has not completed what I feel is a bare minimum
to show that she would care enough for her daughter to make any substantial
change. So, any of the original concerns, really, have only been heightened with a
lack of any diligence in this case. Which was the hazardous living conditions
[sic]. She has not had safe and stable housing. The drug use, which we’ve not
been able to verify throughout this case. And also the physical abuse.
O’Brien further testified that he believed it was in Cara’s best interest for Mother’s rights to be
terminated because:
[Mother] has not been able to demonstrate that she is safe and protective, she has
not been able to, in any way, validate that she can be a protective parent and non-
abusive around [Cara] in the future. I don’t believe that she has warranted any
rights to her child after the duration of this case. With again, not demonstrating
being safe and protective; and second of all, I would claim not being nurturing
and caring for her daughter by putting her daughter’s needs first above her own.
6
The CASA provided an oral report about her conclusions about Cara’s best
interests. She said that Father had “worked very diligently” to obtain housing and to satisfy the
service plan’s requirements, that there was a “very strong bond” between Father and Cara, and
that “she does just want to be next to him.” The CASA agreed that Mother’s rights should be
terminated because:
She has not demonstrated that she has any desire to be a parent. You know, I
think she actually tried to enter in-patient on three different occasions, and they
were all failed attempts. I did get the opportunity to speak to her at the last court
hearing. She was—she was fine with [Cara] going with her father. She had no
concerns of him being able to, you know, care, you know, for—for her daughter.
So, I’m in support with the Department’s proposal of termination of Mom’s rights
and sole managing conservatorship to Dad.
After the hearing, the trial court signed an order finding by clear and convincing
evidence that statutory grounds for termination existed and that termination of Mother’s parental
rights was in Cara’s best interest. See Tex. Fam. Code § 161.001(b)(1)(D), (E), (N), (O), (2).
DISCUSSION
On appeal, Mother primarily attacks the trial court’s best-interest determination.
She contends that “[t]he entirety of the best interest testimony elicited by questioning of [the
Department] at trial amounted to a mere 92 words,” pointing to O’Brien’s statement that he
thought Mother’s parental rights should be terminated because she had not demonstrated “that
she is safe and protective,” that she had not shown that she can be protective and “non-abusive”
to Cara, and that she had not put Cara’s needs above her own. However, although O’Brien was
not asked to explain his conclusions any further, his opinion was more fully explained in his
other testimony—concerns that Mother had not completed a psychological evaluation, despite
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O’Brien’s concerns that she sometimes seemed “delusional” or “sporadic”; her inability or
unwillingness to complete a treatment program, including being kicked out of an in-patient
program and a shelter for breaking the facilities’ rules; her inability to obtain safe and stable
housing; her failure to maintain contact with the Department; her lack of contact with Cara,
caused primarily by her failure to make progress on her service plan; her failure to take drugs
tests throughout the proceeding except for one test taken about two months before the final
hearing; and her overall failure to make any substantive progress on her safety plan, to maintain
a relationship with Cara, or to show herself willing to place Cara’s needs before her own. The
CASA reported similarly, opining that Mother had not shown an interest in being a responsible,
safe parent for Cara and saying that Mother was content for Cara to remain with Father.
We consider a trial court’s finding on best interest in light of the factors set out in
Holley v. Adams: the child’s wishes, if appropriate given the child’s age; her emotional and
physical needs now and in the future; present and future emotional or physical danger posed to
the child; the parenting skills of those seeking custody; any programs available to assist those
seeking custody to promote the child’s best interest; plans for the child’s future; the stability of
the home or proposed placement; conduct by the parent that might show that the parent-child
relationship is inappropriate; and any excuses for the parent’s conduct. 544 S.W.2d 367, 371-72
(Tex. 1976). The Holley factors are not exhaustive, not all factors must be proved, and a lack of
evidence about some of the factors does not “preclude a factfinder from reasonably forming a
strong conviction or belief that termination is in the child’s best interest, particularly if the
evidence were undisputed that the parental relationship endangered the safety of the child.” In re
C.H., 89 S.W.3d 17, 27 (Tex. 2002).
8
There was sufficient evidence from which the trial court could have reached a
firm conviction as to its best-interest determination. And contrary to Mother’s assertion, the
record does not indicate that Cara was removed because of her parents’ poverty. Cara was not
removed because the family lived in a small trailer but because the RV lacked plumbing and
running water, was unsanitary (including bags of trash sitting next to the play pen), and was
surrounded by dangerous debris. In addition, there were allegations that Mother and Father
posed a danger to Cara in the form of physical abuse, a dangerous living situation, and drug use.
Mother did not take steps to address those concerns, such as by taking either required parenting
class, seeking assistance that would allow her to secure a safe living environment, completing a
drug and alcohol assessment, taking requested drug tests, or completing a psychological
evaluation and following any recommendations. Mother was kicked out of at least one in-patient
program and out of the women’s shelter, both times due to her unwillingness or inability to
follow the facility’s rules. She did not maintain contact with the Department, did not make
efforts to be able to have visitation with Cara, and did not prepare the plan and budget that might
indicate an ability to care for Cara. Finally, she did not maintain contact with her lawyer after
the February 2020 hearing or appear for the final hearing.
Father worked through his required services, tested negative for drug use,
obtained employment, and obtained a safe place for Cara and himself to live. Although the
Department did not introduce any evidence about four-year-old Cara’s wishes, evidence showed
that she was bonded with Father and felt happy and safe in his care. See P.C. v. Texas Dep’t of
Fam. & Protective Servs., No. 03-16-00784-CV, 2017 WL 2062270, at *2 (Tex. App.—Austin
May 10, 2017, no pet.) (mem. op.) (when child is too young to express desires, courts may
consider quality and extent of child’s relationship with proposed placements); see also In re
9
D.A.B., No. 04-19-00629-CV, 2020 WL 1036433, at *7 (Tex. App.—San Antonio Mar. 4, 2020,
no pet.) (mem. op.) (“When a child is too young to express her desires—as D.A.B., who was
three years old at the time of trial, is—the trial court may consider that the child has bonded with
the foster family, is well cared for by them, and has spent minimal time with the parent.”).
Mother asserts that the fact that O’Brien did not believe that Cara would need
therapy and was “fine” living with Father means that Cara’s emotional and physical needs in the
future should be considered neutral or even in Mother’s favor. She makes a similar argument as
to any danger posed to Cara now and in the future, arguing that because Cara had been placed
with Father, who no longer had a relationship with Mother, the factor “at worst is neutral, and
perhaps more reasonably, weighs in favor of preservation of [Mother’s] parental rights.”
However, we conclude that the trial court could reasonably have found that these factors weigh
in favor of termination because the evidence indicated that Mother could not meet Cara’s
emotional and physical needs and could pose a danger to Cara in the future because of Mother’s
failure to obtain a stable living environment, learn better parenting skills, and address any mental
health concerns. The fact that Mother did not seek physical custody of Cara does not preclude
the trial court from considering whether she might pose a danger to Cara now or in the future or
whether she could meet Cara’s needs now or in the future.
Mother also argues that we should weigh neutrally or in her favor the factor
related to programs available to assist her in promoting Cara’s best interest because of evidence
that she had “at the very least, accessed one course of ‘rehab’ treatment” and that there was
“substantiated interaction” with MHMR. However, the only reference to MHMR was O’Brien’s
statement that Mother was kicked out of the women’s shelter, in part, for “falsifying to MHMR.”
There is no explanation in the record about what that means, much less whether it means Mother
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had any meaningful contact with MHMR. Further, the evidence shows that Mother was kicked
out of the in-patient program because of her rule-breaking, did not seek public assistance, did not
take parenting classes, and did not complete a psychological evaluation. This factor, therefore,
weighs squarely in favor of termination.
As for Mother’s parenting skills, the only evidence in the record weighs against
her. Mother was alleged to have thrown a bottle at Cara, and she admitted to the Department
investigator that she used marijuana, although not in Cara’s presence. Mother did not take
parenting classes that might have weighed favorably on this factor, had only two visitations
during the almost two years Cara was in the Department’s care, and had a third planned visit
canceled because she was kicked out of the in-patient program the week the visit was scheduled.
Further, Mother’s lack of progress with her required services meant she had almost no contact
with Cara for two years of the child’s four years of life.
Mother did not present evidence about her plans for Cara, as compared to the
Department’s plan to terminate her parental rights and have Father named sole managing
conservator. Given the absence of information about Mother’s current situation, much less her
plans if she retained her parental rights, and considering the Department’s planned placement
with Father, a comparison of plans weighs slightly in favor of termination. Finally, Mother
presented no evidence about her living situation, whether or why she was homeless, whether she
was employed, or why she had allowed Cara to live in a dirty, dangerous environment at the time
of removal. We thus have no evidence to weigh in her favor when considering any excuses for
her conduct and circumstances.
This record includes evidence that Mother had abused Cara, allowed her to live in
a dangerous physical environment, was arrested for and convicted of possession of a dangerous
11
drug while the case was pending, was at times homeless, was kicked out of an in-patient program
and a shelter for breaking rules, sought little contact with her daughter, failed to complete the
required services on her service plan, and did not maintain contact with the Department or her
own attorney; therefore no evidence weighed in Mother’s favor. See In re A.C., 394 S.W.3d 633,
643 (Tex. App.—Houston [1st Dist.] 2012, no pet.). We hold that the evidence is sufficient to
support the trial court’s finding that termination of Mother’s parental rights was in Cara’s best
interest. See, e.g., In re L.A.M., 545 S.W.3d 579, 586 (Tex. App.—El Paso 2016, no pet.)
(although mother’s circumstances were not entirely “of her own making,” there was evidence she
had endangered child in past and might do so in future, mother did not take advantage of offered
programs, and her future plans were “too uncertain to require the trial court to find that she can
provide stability and financial support for the child”). We overrule Mother’s challenge to the
court’s determination of best interest.
Mother also complains that although the Department requested termination only
under paragraphs (N) and (O), the trial court also found grounds under paragraphs (D) and (E).4
We sustain this complaint. The reporter’s record indicates that the Department argued only that
termination was proper under (N) and (O), asserting as support that Mother “has not completed
any of her court ordered services; she has failed to complete in-patient as ordered; and she’s
really not done anything in this case to—to warrant her being the parent to this child.” Father’s
attorney agreed that “the (o) grounds and the (n) grounds be what—the grounds that she’s
terminated on” and asked that Father be appointed Cara’s sole managing conservator. The
4
Mother’s brief recites that her “sole issue” was challenging the best-interest
determination. However, the last two pages of her brief argue this issue, set out under its own
heading. Further, Mother’s prayer section includes a general request for all relief to which she is
entitled. Thus, although the Department’s brief does not address it, the issue is fairly before us.
12
Department thus did not seek termination based on the (D) and (E) grounds at trial, and it was
error for the trial court to find that Mother’s rights should be terminated under the (D) and (E)
grounds as well. Because paragraphs (D) and (E) can have collateral effects on Mother’s
relationships with children she might have in the future, see Tex. Fam. Code § 161.001(b)(1)(M)
(providing as statutory ground that parent had her rights to another child terminated “based on a
finding that the parent’s conduct was in violation of Paragraph (D) or (E) or substantially
equivalent provisions of the law of another state”), we reform the order to delete the court’s
findings of grounds under paragraphs (D) and (E).
CONCLUSION
We have overruled Mother’s challenge to the trial court’s finding of best interest.
Because at trial the Department limited its request for termination to paragraphs (N) and (O), we
reform the trial court’s order of termination to delete its findings of statutory grounds under
paragraphs (D) and (E). We affirm the trial court’s order as reformed.
__________________________________________
Jeff Rose, Chief Justice
Before Chief Justice Rose, Justices Baker and Kelly
Reformed and, as Reformed, Affirmed
Filed: October 15, 2020
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