T. C. and X. M. v. Texas Department of Family and Protective Services ( 2024 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-24-00068-CV
T. C. and X. M., Appellants
v.
Texas Department of Family and Protective Services, Appellee
FROM THE COUNTY COURT AT LAW NO. 1 OF WILLIAMSON COUNTY
NO. 23-0010-CPSC1, THE HONORABLE BRANDY HALLFORD, JUDGE PRESIDING
MEMORANDUM OPINION
T.C. (Mother) and X.M. (Father) appeal from the trial court’s order terminating
their parental rights to their child (Child) following a jury trial.1 The jury found by clear and
convincing evidence that statutory grounds for terminating their parental rights existed and that
termination was in Child’s best interest. See Tex. Fam. Code § 161.001(b)(1)(D), (E), (O), (2).
For the following reasons, we affirm the trial court’s order of termination.
1
We refer to the parents, their child, and other family by their initials or their relation to
Child. See Tex. Fam. Code § 109.002(d); Tex. R. App. P. 9.8.
BACKGROUND2
In January 2023, the Texas Department of Family and Protective Services filed an
original petition for protection of Child, for conservatorship, and for termination in a suit
affecting the parent-child relationship and sought emergency removal of Child from Mother and
Father. Mother, Father, and seven-week-old Child were living in a hotel, and Mother and Father
were Child’s sole caregivers. After seeing Child’s “legs go limp,” Mother delayed taking Child
to the doctor for several days. When she did take him to the doctor, the doctor told Mother to
take Child to the hospital right away. At the hospital, Child was found to have over forty
discrete injuries at different stages of healing, including a lacerated liver, skull fracture, and bone
fractures all over his body. Among the treatments that he received, an “NG Tube” was placed
through Child’s nose to feed him,3 and he required a blood transfusion.
The trial court granted the Department’s request for emergency removal and
appointed the Department as the temporary managing conservator of Child. In the middle of
February, Child was released from the hospital and placed with the attorney ad litem’s legal
assistant, who had been visiting Child in the hospital, had connected and bonded with Child, and
had received training for how to feed Child through the NG Tube.4 Around that time, the trial
court substituted a different attorney as Child’s attorney ad litem.
2
Because the parties are familiar with the facts of the case, its procedural history, and
the evidence adduced at trial, we do not recite them in the opinion except as necessary to advise
the parties of the Court’s decision and the basic reasons for it. See Tex. R. App. P. 47.1.
3
A pediatrician testified that an “NG Tube” is a “nasogastric tube,” “a feeding tube that
goes through the nose and into the stomach.”
4
During Child’s hospitalization and after the emergency removal, no family visited
Child or received training as to the NG Tube.
2
During the case, both parents were subject to court-ordered family service plans
and pending criminal charges stemming from Child’s injuries. Father did not comply with his
plan and remained incarcerated on the pending charge of injury to a child. Mother took steps to
comply with her plan and was released from incarceration after posting bond as to the charge of
injury to a child by omission, but she was arrested on a different charge—criminal mischief—
and incarcerated until that charge was dismissed.5 Neither parent was allowed to visit with Child
after the Department was appointed temporary managing conservator, and Child remained in the
same placement. A home study had been done on Mother’s sister and her husband, and after
they informed the Department that they did not want to be considered as the primary placement
but a possible back-up placement, a home study was done on Mother’s father (Grandfather) and
his partner. The home studies were approved pending training as to the NG Tube, but at the time
of trial, the Department had been unable to set up the necessary training.
Trial occurred in January 2024. The trial court granted in part the attorneys ad
litem’s6 motion in limine as to “[a]ny attempt to elicit testimony regarding where permanent
placement should be.” The trial court ordered that “[t]he parties may elicit testimony regarding
possible placement(s) options for the child as it applies to the best interest of the child and not to
conservatorship determination.” The trial court also granted the motion in limine as to “any
mention or request to change Child’s placement” or “any references to any statements or
opinions that [Child] was wrongfully placed with current placement.” The trial court ordered
that regarding any request to change Child’s placement, “the parties may elicit testimony
5
The evidence at trial showed that Mother was arrested for criminal mischief after she
intentionally rammed or hit her vehicle into another vehicle three times. Mother testified at trial
that this charge had been dismissed.
6
By the time of trial, the trial court had appointed two attorneys to represent Child.
3
regarding possible placement(s) options for [Child] as it applies to the best interest of [Child] and
not to [the] conservatorship determination.” The trial court further granted in part the motion in
limine as to “[c]onduct or statements that indicate [Child’s] family being a better placement.”
The trial court ordered that “[t]he parties may elicit testimony regarding possible
placement(s) options for [Child] as it applies to the best interest of [Child] and not to [the]
conservatorship determination.”
The Department’s witnesses at trial included detectives from the Austin Police
Department who investigated Child’s injuries; Department investigators, caseworkers, and
supervisors involved with Child; a child abuse pediatrician who examined Child when he was in
the hospital, testified about Child’s injuries7 and the hospital’s treatment of those injuries, and
opined that Child had been abused; a Court Appointed Special Advocate (CASA) volunteer;
Mother’s therapist; Mother; and Father. The Department’s employees and the CASA volunteer
testified consistently that termination of parental rights was in Child’s best interest. If the
parental rights were terminated, the Department’s plan for Child was placement with and relative
adoption by Grandfather and his partner.
The evidence established that Mother and Father were Child’s sole caregivers
when Child was injured; that they delayed seeking medical care for Child after he was injured;
that against court order they continued to communicate with each other during the case; that the
criminal charges arising from Child’s injuries against Mother and Father remained pending; and
that Mother had been arrested and incarcerated during the case after she intentionally rammed or
7
The pediatrician testified that Child’s injuries included a skull fracture; swelling in his
neck tissues; bruising; “a liver laceration”; “nine broken ribs on the right side and seven on the
left”; fractures of “his left radius and ulna,” “his right scapula,” “both of his femurs,” “one of the
bones in his pelvis,” and “his left and right distal tibia and fibula”; and “several fractures in his
feet on both sides.”
4
hit her vehicle into another vehicle multiple times. As to the cause of Child’s injuries, Father
testified about his actions that might have caused Child’s injuries and Mother’s presence when
he took those actions.8 Mother testified that she did not know Child was injured before taking
him to the doctor. Neither parent was asking for Child to come home with them but requested
that he be placed with family. Mother also testified that if her rights were not terminated, she
would accept limited access to Child and that some type of relationship between her and Child,
even if limited, was in Child’s best interest.
Mother’s witnesses were a CASA supervisor, family members including
Grandfather and his partner, and a friend. Grandfather and his partner testified about their efforts
to obtain the training as to the NG Tube and their willingness and ability to care for Child and to
put his needs first. Grandfather and his partner also testified that if Mother’s rights were not
terminated and the court limited Mother’s contact with Child, they would abide by the court’s
order if they were Child’s placement.
Relevant to Mother’s appeal, in a bench conference during the testimony of the
Department’s supervisor assigned to Child in February, Mother’s attorney advised the trial court
that he “wanted to ask this witness potentially about options as conservatorship options for
family,” but the trial court responded “[t]hat would be going outside” the motion in limine order.
In a subsequent bench conference, Mother’s attorney asked the trial court if he could “talk about
my client being named as a possessory conservator,” and the trial court responded, “You can talk
about best interest, about likely outcomes if there is termination” and “what the possible
8
When asked if he recklessly caused injury to Child, Father answered, “Not
intentionally, but I guess recklessly.” He also answered, “Yeah, I guess so,” when asked if
Mother was present in the room when he was doing “all these reckless actions to this [seven]-
week-old child.”
5
outcomes are if the jury does not terminate” but “we’re not going to talk about conservatorship.”
In response to the trial court’s ruling, Mother’s attorney made an offer of proof outside the
presence of the jury by providing the substance of expected testimony from Mother, Grandfather,
and the CASA supervisor and in question-and-answer form from the Department supervisor and
the CASA supervisor.
The jury found by clear and convincing evidence that the parents had knowingly
placed or knowingly allowed Child to remain in conditions or surroundings which endangered
Child’s physical or emotional well-being, that they had engaged in conduct or knowingly placed
Child with persons who engaged in conduct which endangered Child’s physical or emotional
well-being, that they had failed to comply with the court-ordered service plans, and that
termination of the parent-child relationship was in Child’s best interest. See Tex. Fam. Code
§ 161.001(b)(1)(D), (E), (O), (2). In accordance with the jury’s verdict, the trial court signed the
order terminating the parents’ rights to Child and appointing the Department as Child’s
managing conservator. See id. § 161.207 (requiring court to appoint “suitable, competent adult”;
the Department; or licensed child-placing agency as managing conservator of child when court
terminates parent-child relationship with respect to both parents). The parents’ appeals followed.
ANALYSIS
Father’s Appeal
On appeal, Father’s court-appointed attorney has filed a brief concluding that his
appeal is frivolous and without merit. See Anders v. California, 386 U.S. 738, 744 (1967);
Taylor v. Texas Dep’t of Protective & Regul. Servs., 160 S.W.3d 641, 646–47 (Tex. App.—
Austin 2005, pet. denied) (applying Anders procedure in appeal from termination of parental
6
rights). The brief meets the requirements of Anders by presenting a professional evaluation of
the record demonstrating why there are no arguable grounds to be advanced on appeal. See
386 U.S. at 744; Taylor, 160 S.W.3d at 646–47. Father’s attorney has certified to this Court that
he provided a copy of the Anders brief to Father and informed him of his right to examine the
appellate record and to file a pro se brief. To date, Father has not filed a pro se brief.
Upon receiving an Anders brief, we must conduct a full examination of the
proceedings to determine whether the appeal is wholly frivolous. Penson v. Ohio, 488 U.S. 75,
80 (1988). We have reviewed the entire record, including the Anders brief submitted on Father’s
behalf, and have found nothing that would arguably support an appeal. Our review included the
evidence to support the jury’s endangerment findings, see Tex. Fam. Code § 161.001(b)(1)(D),
(E), and we have found no issues that could be raised on appeal with respect to these findings,
see In re N.G., 577 S.W.3d 230, 237 (Tex. 2019). We agree that Father’s appeal is frivolous and
without merit.
Mother’s Appeal
In her sole appellate issue, Mother argues that the trial court abused its discretion
by excluding evidence concerning conservatorship and that this abuse of discretion resulted in
harm to Mother and an incorrect judgment.
Standard of Review
“We review a trial court’s decision to admit or exclude evidence for an abuse of
discretion.” A.B. v. Texas Dep’t of Fam. & Protective Servs., No. 03-17-00658-CV, 2018 Tex.
App. LEXIS 1790, at *7 (Tex. App.—Austin Mar. 9, 2018, no pet.) (mem. op.) (quoting In re
J.P.B., 180 S.W.3d 570, 575 (Tex. 2005)). “A trial court abuses its discretion when it acts in an
7
arbitrary or unreasonable manner ‘without reference to any guiding rules and principles.’” Id.(quoting Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985)); accord
J.A.B. v. Texas Dep’t of Fam. & Protective Servs., No. 03-13-00273-CV, 2013 Tex. App. LEXIS
10110, at *3–4 (Tex. App.—Austin Aug. 14, 2013, pet. denied) (mem. op.).
Further, when the trial court abuses its discretion by excluding evidence, the
complaining party also must show that this exclusion was harmful. See Tex. R. App. P. 44.1(a).
Evidentiary error requires reversal when it “probably caused the rendition of an improper
judgment.” Id. R. 44.1(a)(1). In deciding whether an evidentiary error was harmful, we “review
the entire record.” B.S. v. Texas Dep’t of Fam. & Protective Servs., No. 03-22-00279-CV,
2022 Tex. App. LEXIS 8324, at *12 (Tex. App.—Austin Nov. 10, 2022, no pet.) (mem. op.)
(citing In re E.A.G., 373 S.W.3d 129, 145 (Tex. App.—San Antonio 2012, pet. denied)); see Kia
Motors Corp. v. Ruiz, 432 S.W.3d 865, 883 (Tex. 2014) (describing appellate court’s analysis in
determining whether trial court’s error was harmful). To support reversal based on evidentiary
error, a complaining party generally must show that the judgment turns on the excluded
evidence. Texas Dep’t of Transp. v. Able, 35 S.W.3d 608, 617 (Tex. 2000) (citing City of
Brownsville v. Alvarado, 897 S.W.2d 750, 753 (Tex. 1995)).
Trial Court’s Exclusion of Evidence and Mother’s Offer of Proof
The trial court’s order granting the attorneys ad litem’s motion in limine
prohibited the parties from eliciting testimony regarding where permanent placement should be
without first approaching the bench and ordered that “[t]he parties may elicit testimony regarding
possible placement(s) options for the child as it applies to the best interest of the child and not to
conservatorship determination.” During trial, the court ruled consistently with its order on the
8
motion in limine. In the bench conferences, when asked by Mother’s attorney if he could “talk
about [Mother] being named as a possessory conservator,” the trial court responded, “You can
talk about best interest, about likely outcomes if there is termination” and “what the possible
outcomes are if the jury does not terminate,” but the trial court explained to Mother’s attorney
that he was not allowed to ask about possessory conservatorship.
Mother’s offer of proof was through her attorney’s informing the trial court of the
substance of testimony he would have elicited from Mother, Grandfather, and the CASA
supervisor and in question-and-answer form from the Department supervisor and the CASA
supervisor. See Tex. R. Evid. 103(c) (allowing offer of proof in question-and-answer form).
Mother’s attorney informed the trial court that he would have asked Mother:
if conservatorship issues were going to go to the jury, whether she potentially
would ask for possessory conservatorship as opposed to being named as
managing conservator or joint managing conservator. And potentially, if family
managing conservatorship was on the table, ask if she would like for
[Grandfather] to be named as managing conservator. And I believe her answers
to those would be, yes, those are potential options that she would like the jury to
know about.
The attorney also informed the trial court that he would have asked similar questions of
Grandfather and the CASA supervisor.9
As to the question-and-answer part of the offer of proof, in response to questions
from Mother’s attorney, the Department supervisor agreed that it was possible and that it
happened frequently that a family member is appointed as the managing conservator of a child
and that in those situations, a parent can be named a possessory conservator with limited visits or
9
Mother’s attorney also informed the trial court about the expected substance of the
CASA supervisor’s answers to questions about Child’s current placement, but Mother does not
rely on the substance of that testimony on appeal, and it is not relevant to our resolution of
Mother’s issue on appeal.
9
no contact or only supervised visits. The supervisor also agreed that sometimes in those
situations, the parent also can continue to work services to alleviate concerns about their ability
to be safe with their child.
Concerning Child’s particular circumstances, the supervisor testified in the offer
of proof:
Q. In this case, why is it not appropriate for, say, a family member like
[Grandfather] to be named as a managing conservator and [Mother] to be named
as a possessory conservator?
A. In this case, it would all depend on what access the possessor would have.
Q. Okay. So in a situation where—like we talked about, a possessory
conservator—their visitation or their possession and access is controlled by the
judge. You understand that. Right?
A. Yes.
Q. It’s not controlled by the jury. You understand that. Right?
A. Yes.
Q. So you said it depends on the access. So if this Court in this situation
granted [Mother] either no visitation or only supervised visitation, would that
alleviate some of those safety and protective concerns the Department has?
A. Yes.
Q. And that could potentially be—or could be a way to resolve the case if that
alleviates those concerns that you would have with [Mother]. Would you agree
with that?
A. Correct.
On cross-examination as part of the offer of proof, the supervisor testified that the
Department was not in favor of possible alternative conservatorship for either parent and
explained why:
10
It is felt that it is in [Child’s] best interest that the parents’ rights be terminated
due to the injuries he sustained and the Department not knowing how those
occurred. He is doing well. He is thriving in his environment. He has not had
any fractures, any broken bones, any incidents. Although he is in a placement,
we feel that, [after] termination, first possible would be to place with
family members.
The supervisor also agreed that supervised visitation would alleviate concerns if that “route was
ordered at some point in time” and that the Department as the current managing conservator
“would make recommendations for visitation and access and all of those matters if it came
to it.”10
Did the trial court abuse its discretion in excluding evidence of conservatorship?
Mother argues that the trial court erroneously excluded evidence “concerning
conservatorship,” specifically that the jury was deprived of “an understanding of what
conservatorship entails” and that “a juror that is not provided an understanding of what
conservatorship entails cannot properly make a best interest analysis.”11
The controlling question in this case was whether the parents’ rights should be
terminated. See J.A.B., 2013 Tex. App. LEXIS 10110, at *4–5 (explaining that controlling
question in termination case was whether parent’s rights should be terminated). The jury
10
Mother’s attorney also questioned the CASA supervisor as part of the offer of proof,
but his testimony did not support Mother. The supervisor testified that CASA would not favor
the option of naming a family member as managing conservator and Mother as possessory
conservator and answered, “No,” when asked if he thought there could be “a scenario where
Mother could be named as a possessory conservator with limited rights and access.”
11
To the extent that Mother relies on the substance of evidence that was excluded but
not raised or elicited in the offer of proof, she has not preserved the issue for our review. See
Tex. R. Evid. 103 (generally requiring party to inform court of substance of evidence by offer of
proof when court’s ruling excludes evidence). Thus, our analysis of the excluded evidence is
confined to the substance of the evidence that was raised or elicited during Mother’s offer
of proof.
11
questions concerned the Department’s asserted predicate grounds for termination and the best
interest of Child, and Mother has not raised an issue asserting charge error. In this context, we
cannot conclude that the trial court abused its discretion by limiting the testimony about Child’s
placement to testimony relevant to the best-interest determination and not allowing further
testimony about conservatorship as raised or elicited in the offer of proof. See Holley v. Adams,
544 S.W.2d 367, 371–72 (Tex. 1976) (stating that relevant factors in assessing best interest of
child include stability of proposed placement and plans for child by individual or agency seeking
custody); see also, e.g., J.A.B., 2013 Tex. App. LEXIS 10110, at *4–5 (concluding that trial
court “did not abuse its discretion by refusing to submit additional questions concerning
conservatorship” because controlling question was whether parent’s rights should be terminated).
Further, even if we were to assume without deciding that the trial court erred in
excluding the testimony concerning conservatorship as raised or elicited in the offer of proof, we
cannot conclude based on our review of the entire record that Mother has shown that the
exclusion of this evidence probably caused the rendition of an improper judgment. See Tex. R.
App. P. 44.1(a)(1); B.S., 2022 Tex. App. LEXIS 8324, at *12 (requiring appellate court to review
entire record).
Mother has not raised an issue challenging the sufficiency of the evidence to
support the jury’s endangerment and best-interest findings, and the evidence of endangerment
was overwhelming. See In re C.H., 89 S.W.3d 17, 28 (Tex. 2002) (stating that evidence
presented to satisfy predicate-ground finding may also be probative of child’s best interest);
Pruitt v. Texas Dep’t of Fam. & Protective Servs., No. 03-10-00089-CV, 2010 Tex. App. LEXIS
10272, at *22–23 (Tex. App.—Austin Dec. 23, 2010, no pet.) (mem. op.) (explaining that
Department need not prove all Holley factors, “especially when there is undisputed evidence that
12
the parental relationship endangered the child”); see also J.T. v. Texas Dep’t of Fam. &
Protective Servs., No. 03-15-00725-CV, 2016 Tex. App. LEXIS 2164, at *9 (Tex. App.—Austin
Mar. 2, 2016, no pet.) (mem. op.) (explaining that exclusion of evidence is harmless if “the rest
of the evidence was so one-sided that the error likely made no difference in the judgment”
(quoting State v. Central Expressway Sign Assocs., 302 S.W.3d 866, 870 (Tex. 2009))). The
evidence also showed that during the case, Mother communicated with Father against court order
and that she was arrested and incarcerated after she intentionally rammed or hit her vehicle into
another vehicle three times. See Holley, 544 S.W.2d at 371–72 (stating relevant factors in best-
interest determination to include parental abilities, emotional and physical danger to child in
future, and acts by parent showing parent-child relationship was not proper).
The evidence also established that if the parents’ rights were terminated, the
Department’s plan for Child was adoption by Grandfather and his partner; Mother was allowed
to testify that she was asking for Child to be placed with Grandfather and his partner and for her
rights not to be terminated, which would allow her to have some legal possession and access as
ordered by the trial court;12 Father testified that his preference was for Child to be placed with
12
Mother asked for her rights not to be terminated and for access and possession as
determined by the trial court and testified about her desire for Child to be placed with family:
Q. … [Y]ou’re not asking for reunification today with [Child]. Is that right?
A. Correct.
Q. You are not asking for [Child] to come home with you today. Right?
A. Correct.
Q. Or at the end of this trial. Correct?
A. Correct. I know that is not feasible.
Q. What you are asking for is family to be placement. Is that correct?
A. Yes.
Q. And as long as you have some parental rights—whatever possession and access
that the judge decides?
A. Ask it again.
13
family and that he had no concerns with Child being placed with Grandfather and his partner;
and Grandfather testified that he would abide by the court’s order to limit Child’s contact with
Mother if her rights were not terminated and Child was placed with them. Thus, although
Mother was not allowed to present the substance of the evidence concerning conservatorship as
raised or elicited in the offer of proof, the jury was presented with evidence concerning the
placement and plans for Child if parental rights were terminated or if they were not. See Able,
35 S.W.3d at 617 (stating that appellate courts ordinarily will not reverse judgment for erroneous
evidentiary ruling “when the evidence in question is cumulative and not controlling on a material
issue dispositive to the case”); see also Holley, 544 S.W.2d at 371–72 (stating relevant factors in
best-interest determination).
For these reasons, we conclude that Mother has not established that the trial
court’s exclusion of the evidence concerning conservatorship as raised or elicited in the offer of
proof was reversible error and, thus, overrule her appellate issue.
CONCLUSION
Having found that Father’s appeal is frivolous and without merit and having
overruled Mother’s appellate issue, we affirm the trial court’s order of termination.13
Q. As long as your rights aren’t terminated, whatever possession and access the
judge decides for you to have?
A. Yes.
13
We also deny the pending motion to withdraw by Father’s attorney. See In re P.M.,
520 S.W.3d 24, 27 (Tex. 2016) (per curiam). If Father, after consulting with counsel, desires to
file a petition for review, his counsel should timely file with the Texas Supreme Court “a petition
for review that satisfies the standards of an Anders brief.” See id. at 27–28.
14
__________________________________________
Rosa Lopez Theofanis, Justice
Before Chief Justice Byrne, Justices Smith and Theofanis
Affirmed
Filed: April 25, 2024
15