in the Interest of J. I. T. and J. A. T. v. Department of Family and Protective Services

ACCEPTED
01-17-00988-CV
FIRST COURT OF APPEALS
HOUSTON, TEXAS
5/25/2018 3:02 PM
CHRISTOPHER PRINE
CLERK
NO. 01-17-00988-CV
FILED IN
1st COURT OF APPEALS
IN THE COURT OF APPEALS HOUSTON, TEXAS
FOR THE FIRST JUDICIAL DISTRICT5/25/2018 3:02:59 PM
OF TEXAS AT HOUSTON CHRISTOPHER A. PRINE
Clerk
IN THE INTEREST OF
J.I.T. AND J.A.T., CHILDREN
P.M.,
APPELLANT
VS.
TEXAS DEPARTMENT OF FAMILY AND PROTECTIVE SERVICES,
APPELLEE
ON APPEAL FROM THE 311TH
DISTRICT COURT OF HARRIS COUNTY, TEXAS
TRIAL COURT CAUSE NO. 2011-53185
REPLY BRIEF FOR APPELLANT P.M.
CONNOLLY & SHIREMAN, LLP
William B. Connolly
State Bar No. 04702400
Email: wbc@conlawfirm.com
2211 Norfolk, Suite 737
Houston, Texas 77098
Telephone (713) 520-5757
Facsimile (713) 520-6644
ATTORNEY FOR P.M.
TABLE OF CONTENTS
TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii
REPLY POINTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
RESPONSE TO APPELLEE’S STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . 2
ARGUMENT AND AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
REPLY POINT ONE (RESTATED): DFPS FAILED TO INTRODUCE
LEGALLY AND FACTUALLY SUFFICIENT EVIDENCE TO
SUPPORT THE PROPOSITION THAT THERE WERE GROUNDS
FOR TERMINATION OF PARENTAL RIGHTS.. . . . . . . . . . . . . . . . . . . . 6
REPLY POINT TWO (RESTATED): DFPS FAILED TO INTRODUCE
LEGALLY AND FACTUALLY SUFFICIENT EVIDENCE TO
SUPPORT THE PROPOSITION THAT TERMINATION OF PARENTAL
RIGHTS WAS IN THE CHILD’S BEST INTEREST . . . . . . . . . . . . . . . . 14
REPLY POINT THREE (RESTATED): DFPS FAILED TO INTRODUCE
LEGALLY AND FACTUALLY SUFFICIENT EVIDENCE TO
SUPPORT THE PROPOSITION THAT DFPS SHOULD HAVE NAMED
AS MANAGING CONSERVATOR AND SUCH AN AWARD WAS
AN ABUSE OF DISCRETION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
CONCLUSION AND PRAYER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
CERTIFICATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Reply Brief ii
TABLE OF AUTHORITIES
Cases
Casualty Underwriters v. Rhone, 134 Tex. 50, 123 S.W.2d 97 (1939). . . . . . . . 2, 9
Edwards v. Dickson, 2S.W. 718 (Tex. 1886). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Gulbenkian v. Penn, 252 S.W.2d 929 (Tex.1952) . . . . . . . . . . . . . . . . . . . . . . . . . 12
In re C.H., 89 S.W.3d 17 (Tex. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
In re E.N.C., 384 S.W.3d 796 (Tex. 2012). . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 7, 9
In re J.F.C., 96 S.W.3d 256 (Tex. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
In the Interest of G.M., 596 S.W.2d 846 (Tex. 1980) . . . . . . . . . . . . . . . . . . . 13, 18
Statutes and Constitutional Provisions
Tex. Const. Art 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Tex. Const. Art 19 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Tex. Fam. Code §153.131 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
U.S. Const. Amend 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
U.S. Const. Amend 14 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Reply Brief iii
REPLY POINTS
REPLY POINT ONE: DFPS FAILED TO INTRODUCE LEGALLY AND
FACTUALLY SUFFICIENT EVIDENCE TO SUPPORT THE
PROPOSITION THAT THERE WERE GROUNDS FOR TERMINATION OF
PARENTAL RIGHTS
REPLY POINT TWO: DFPS FAILED TO INTRODUCE LEGALLY AND
FACTUALLY SUFFICIENT EVIDENCE TO SUPPORT THE
PROPOSITION THAT TERMINATION OF PARENTAL RIGHTS WAS IN
THE CHILD’S BEST INTEREST
REPLY POINT THREE: DFPS FAILED TO INTRODUCE LEGALLY
AND FACTUALLY SUFFICIENT EVIDENCE TO SUPPORT THE
PROPOSITION THAT DFPS SHOULD HAVE NAMED AS MANAGING
CONSERVATOR AND SUCH AN AWARD WAS AN ABUSE OF
DISCRETION.
SUMMARY OF ARGUMENT
In cases of child abuse and neglect, parents are asked to do services and
address the reasons why the children came to the attention of the Department.
Appellant had been charged with injury to a child. Everyone knew exactly what
happened to the child. DFPS designed a service plan based upon what happened and
the assumption that Appellant injured her son. It did not matter to DFPS whether
Appellant admitted criminal conduct in order to design and implement a Family Plan
of Service, parenting classes and therapy that would ensure that the children would
be safe with Appellant if she completed the services that were necessary for her to
obtain return of the children. Appellant accomplished everything requested of her,
Reply Brief 1
DFPS represented to the Court that she had done so, the Court found that she had
done so and no one requested that she do anything more or anything different. Once
her criminal case was resolved, Appellant took full responsibility for the injury and
fully explained what had occurred. DFPS and the Court should be estopped from
imposing additional, unwritten, unspoken requirements as a condition for return of
the children. The evidence being legally and factually insufficient to support the
orders of the Court, the Decree should be reversed and rendered on both termination
and conservatorship and Appellant’s children should be returned to her.
RESPONSE TO APPELLEE’S STATEMENT OF FACTS
Appellee has attempted to recast the testimony and evidence and ascribe
allegations or opinions made in the underlying case or in a criminal proceeding as if
they were somehow established facts in this proceeding. (Appellee Brief 2, 3, 4, 14,
27, 42, 48, and 53) These conclusions are speculation and conjecture and not
evidence of abuse or neglect as to either of these children. Evidence to support
termination must be based upon something other than surmise or speculation of harm.
In re E.N.C., 384 S.W.3d 796, 804 (Tex. 2012). Conclusory statements, without
factual support, are insufficient to support a judgment. Casualty Underwriters v.
Rhone, 134 Tex. 50, 123 S.W.2d 97, 99 (1939). The mere fact that a referral was
made to DFPS or that an allegation was made in a criminal case does not mean that
Reply Brief 2
these allegations become established facts or evidence in this case. What some law
enforcement officer asserted in a charging instrument establishes nothing other than
allegation. Similarly, assertions of domestic violence against Appellant as a child or
as an adult does not establish facts relevant to claims of abuse or neglect of these
children. DFPS asserts investigations of reports of possible abuse or neglect, which
DFPS, itself ruled out for abuse or neglect, is evidence of abuse or neglect. Moreover,
statements of concerns by the Department in the Family Service Plan are assumed to
be fact when they remain, simply that, statements of concern. The evidence clearly
established, without equivocation, from the only eye witnesses and investigators that
the children had not been previously subjected to abuse or neglect or other
inappropriate discipline. (Appellee Brief 27).
On the other hand, DFPS does concede some very salient facts which do not
support the judgment:
1. Penny had been a victim of domestic violence (Appellee Brief at 2 and
19-20);
2. DFPS “ruled out” other referrals for suspected abuse or neglect
(Appellee Brief 4);
3. Appellant’s historical discipline would be to give the children a chance,
to not hit or spank the children but that sometimes he would get a
spanking on his bottom and be told by Appellant to not do that again
(Appellee Brief at 7);
Reply Brief 3
4. That after Jimmy was injured, Appellant apologized to the child, said
she was sorry and that she would never do that to him again (Appellee
Brief at 8);
5. The Appellant warned the children about the dangers of playing with
fire (Appellee Brief at 10);
6. That Appellant treated the burns at home, followed up with treatment at
the Clinic and later with a burn specialist at the Hospital and was told
that the burns were healing well and to continue treatment and only
return if the child had fever or pain (Appellee Brief at 10-11; 16);
7. That Appellant was permitted by Court Order to visit her children but
was deprived of those visits when DFPS repeatedly told Appellant and
the trial Court that Appellant was prohibited from seeing her children by
a Court Order in the criminal case even though there was no such Court
Order (Appellee Brief 13, 23-24, 34, 43 and 51);
8. Penny completed her parenting class which addressed protective
parenting (Appellee Brief at 20-21);
9. Appellant provided proof of her lease and employment (Appellee Brief
at 20);
10. It was reported to the Court before that Appellant had completed her
services and the main barrier to not obtaining return of the children was
her criminal case (Appellee Brief at 22);
11. Appellant was granted a pre-trial diversion in her criminal case on July
12, 2017 without having to admit to injury (Appellee Brief at 21);
12. The children expressed a desire to return to their parents and missed
their mother (Appellee Brief at 22-23);
13. Appellant did not give any form of statement to law enforcement
(Appellee Brief at 25);
Reply Brief 4
14. Appellant did not have a history of abusing her children (Appellee Brief
at 27);
15. Appellant had been told not to discuss the details of the incident further
by her criminal defense attorney (Appellee Brief at 29);
16. Appellant took the child to the clinic to ensure that the wounds healed
properly (Appellee Brief at 29);
17. Appellant completed the requirements of her Family Service Plan
(Appellee Brief at 30);
18. Appellant’s therapist recommended that she be reunified with her
children (Appellee Brief 30);
19. The children expressed desire to return to their mother (Appellee Brief
at 34);
20. The nurse at the East End Clinic never asked that the child’s injuries be
reported to DFPS by employees and nothing in the clinic records reflect
a request of any kind for a referral of the case to DFPS for child abuse
or neglect (Appellee Brief at 34-35);
21. Appellant had maintained stable employment for the 18 months prior to
trial (Appellee Brief at 39);
22. Appellant spent time with the children in a domestic violence shelter
after the boys’ father damaged her home (Appellee Brief at 40);
23. The child blew out the flames to the stove burners, gas was coming out,
Appellant panicked, she did not intentionally burn the child, she was
intending to just give him a spanking and thought of allowing the child
to feel the heat but never intended to burn the child (Appellee Brief at
40-41);
24. Appellant regretted her actions describing it as the “the worst thing I’ve
done in my life” and she apologized to the child “for what I had done to
him” (Appellee Brief at 41);
Reply Brief 5
25. DFPS reported that Appellant had completed all of her services.
Appellant was never told that she had to tell the true story behind the
child’s injuries in order to complete her services and Roy never told her
caseworker that Appellant had not properly completed her services
(Appellee Brief at 56); and
26. The DFPS worker who had the case for a majority of the time testified
that the children missed their mother, she completed her services and
that she would not be a future danger to the children (Appellee Brief at
56-57).
ARGUMENT AND AUTHORITIES
REPLY POINT ONE (RESTATED): DFPS FAILED TO INTRODUCE
LEGALLY AND FACTUALLY SUFFICIENT EVIDENCE TO SUPPORT THE
PROPOSITION THAT THERE WERE GROUNDS FOR TERMINATION OF
PARENTAL RIGHTS.
DFPS, in its reply, without citation to Appellant’s Brief suggests an argument
by Appellant that was never made and then attempts to refute it. (Appellee Brief at
62). Appellee claims that Appellant denied burning the child at trial. She did not deny
it. To the contrary, she clearly articulated the facts, her intended discipline that went
wrong, her accidental burn of the child and her home, clinic and hospital treatment
of the child. (Appellee Brief at 33-34). Appellee cites to the record claiming
evidence in an Affidavit but no affidavit can be found at the place cited. (Appellee
Brief at 62). The testimony of Appellant is virtually identical to the original reports,
to the findings and is consistent with what the police investigator (Bookman), CPS
investigator (LaFleur), her supervisor, the 4 C’s clinician (Hand), the conservatorship
Reply Brief 6
worker (Mendez) and her supervisor (Dominguez) used to create the Family Service
Plan. All of this was consistent with the therapy provided to Appellant. While there
can be a disagreement as to whether Appellant actually intended to burn the child or
whether the burn was an accident, the statements of the child and the testimony of
Appellant are, in fact, the only persons who knew what happened and both gave
consistent versions of what happened. It is true that Appellant was not criminally
convicted. She was placed on a pre-trial diversion. Appellant described in detail how
she did not intent to injure the child but that she burned the child’s hand.
(Appellant’s Brief 13).
There was no proof of a course of conduct that endangered the children.
Termination under this section requires a continuing, voluntary course of action
rather than a single act or omission by the parent. In re E.N.C., 384 S.W.3d 796, 803
(Tex. 2012). There was one isolated incident followed by medical care administered
first in the home, then at a clinic and then at a hospital with a burn specialist. While
the nurse did speculate that the initial infection could have been caused by
Appellant’s delay in coming to the clinic, this was not established as the actual cause
of the infection. Nevertheless, Appellant treated the injury, took the child to the
clinic, filled the prescription at the pharmacy and followed up with the Children’s
Memorial Hermann Hospital burn specialist. This latter doctor found that the burns
Reply Brief 7
were healing well, no additional treatment was necessary and refused to give DFPS
a statement supporting a claim of abuse or neglect.
Appellee also speculates about other abuse (Appellee Brief at 64) even though
DFPS itself ruled out any claims of abuse. Moreover, Bookman testified that
Appellant had no criminal history and no history of abuse and there were no instances
that the children had been abused before. (RR6:165). Edwards testified that DFPS
had no other claims for possible harm to the children. (RR10:95). Conjecture and
speculation do not support a judgment. Subsequent evidence of a prior referral (that
was ruled out as such by DFPS) that a child has a bump, bruise or scratch is not
evidence of abuse. (RR12:302). Moreover, DFPS speculates that sexual abuse
occurred based upon a single statement in the entire record that a child reported “that
he was touched by a male member in his parents home”. (RR12:302). There was no
testimony of any sexual abuse, no therapy noted to be related to any prior sexual
abuse and no proof of any sexual abuse. There is no other testimony or evidence to
explain what this statement meant, what it referred to, what kind of touching it was,
where it occurred, when it occurred or who it was that touched him. There was no
follow up and no context other than it had to be someone other than Appellant. There
is no indication as to whether Appellant had any contemporaneous or subsequent
knowledge of the statement or what it meant. The statement itself provides no sexual
Reply Brief 8
content or any reference as to whether the contact was in any way sexual at all.
Conjecture and speculation cannot and does not support a judgment. Evidence to
support termination must be based upon something other than surmise or speculation
of harm. In re E.N.C., 384 S.W.3d 796, 804 (Tex. 2012). Conclusory statements,
without factual support, are insufficient to support a judgment. Casualty
Underwriters v. Rhone, 134 Tex. 50, 123 S.W.2d 97, 99 (1939). It is no evidence
at all. There is absolutely no evidence of a dangerous environment under (D) and
judgment should be rendered in favor of Appellant. Likewise there is no evidence of
a course of conduct under (E) sufficient to warrant termination and judgment should
be rendered in favor of Appellant.
With respect to (O), Appellee confuses the record by asserting that Appellant
was dishonest with her therapist. (Appellee Brief at 66). However, there is a
difference between Hand, the 4 C’s clinician whom she saw one time at the beginning
of the case and Leyzak whom she saw throughout the duration of her Family Service
Plan. Appellee’s record references are to Hand and not Leyzak. The whole purpose
of the Family Service Plan and the services designed in this case was to provide
Appellant with different parenting skills, protective intervention techniques,
alternative anger management skills and coping skills. (RR 9: 124-125). This was all
done successfully and the therapist and DFPS caseworker recommended that the
Reply Brief 9
children be returned home. (RR 11: 74-75; 77). No one was misled in any way by
Appellant’s initial statements to Hand. They designed a plan to address each and
every concern they had over a parent intentionally burning a child. (RR11:48-49, 71,
72, 85; RR12:Pet. Ex. 5). They knew that Appellant had limitations on her ability
to speak out in detail due to her pending criminal case. At the first opportunity she
had after the criminal case was concluded, she told the story of what happened. This
was at the trial. Her services were fully completed prior to the conclusion of her
criminal case. The Judge found that she had completed her services in May of 2017.
Her caseworker disappeared and did not inform her of the existence of the new
worker. There were no Permanency Hearings or Permanency Conferences between
May and the trial when she told the Court what had happened. (RR 10: 31).
Appellee ignores the testimony of Hand, LaFleur, Mendez and Dominguez all
of whom knew the ultimate facts of the case and all of whom designed a Family
Service Plan with the assumption that Appellant burned the child’s hand with a flat
iron. (RR11:48-49, 71, 72, 85; RR12:Pet. Ex. 5). DFPS requested Leyzak to provide
therapy in conjunction with the Family Service Plan that they created using the
assumption that Appellant intentionally burned the child. Appellant completed all of
these services.
Instead, the Department relies upon the speculative opinion and conjecture of
Edwards that Appellant treated the services “like a checklist” even though she never
Reply Brief 10
met Appellant, never discussed the case or the facts with persons intimately involved
and was not familiar with the file. Edwards admitted that her opinions in the case
were not based upon the case file or having complete knowledge of the case or
IMPACT. (RR 10:31). This conjecture and speculation is not evidence. There is
nothing in the Family Service Plan, nothing in the Court Reports and no evidence of
any disclosure to Appellant that she was required to incriminate herself of a criminal
act while she was pending prosecution for injury to her child. In fact, Johnson
testified she would never have been required to admit criminal conduct and
incriminate herself as a part of a family service plan. (RR6:263-265). However, it
was being secretly required by Edwards and Roy. (RR7:57-60; RR 10:137). DFPS
never told Appellant that this was a specific requirement of her services.(RR 9:143;
RR11:73).
The uncontradicted testimony was that the therapist worked out arrangement
to therapeutically deal with the intentional act which resulted in the accidental injury
without requiring an admission. This was well known to Mendez, Dominguez,
Leyzak and everyone else that knew the details of the case. It was not well known to
Roy and Johnson because they never even read the case file. (RR6:261-262; RR7:14-
18;RR 11 186-187;189-190). Every other person in case signed off on this process
approved it and represented to the Court that it was sufficient. No one told her
Reply Brief 11
otherwise.
This is a classic case where the principles of estoppel should apply. The
Department created a Family Service Plan under the assumption that Appellant
intentionally burned her child, Appellant completed those services, DFPS
caseworkers and supervisors provided sworn testimony and reports to the Court that
the services were completed and the Court made a finding that the services were
completed. No additional services were requested. None of the facts had changed
relative to how the child was injured. DFPS made representations that this is what you
have to do and Appellant relied upon those representations to her detriment.
Dominguez testified that when a parent completes the service on the Family Service
Plan they should have their children returned to them. Every case worker presented
to both Appellant and the Court that Appellant had done everything necessary under
the Family Service Plan. DFPS and the Court should be estopped from imposing
unwritten and unspoken requirements in order to claim that Appellant was
unsuccessful in her compliance with the plan. Clearly there was a false representation
or concealment of material fact that was made with knowledge on the part of DFPS
but held in secret from Appellant, made with the intention that it be relied upon,
which was clearly relied upon by Appellant to her detriment. This Court should
soundly reject this position. Edwards v. Dickson, 2S.W. 718,721 (Tex. 1886);
Reply Brief 12
Gulbenkian v. Penn, 252 S.W.2d 929 (Tex.1952).
This Court should disregard all secret, undisclosed requirements that DFPS
employees were adding to the Family Service Plan. This Court should hold that a
Court adopting a Family Service Plan can only enforce the actual Family Service Plan
and should be estopped from super imposing additional unspecified requirements that
were never disclosed to the parent. This is particularly evident in light of the
testimony that DFPS would never require a parent to incriminate themselves in a
Family service Plan.
The Department’s argument fails because it is based entirely upon secrecy,
speculation and conjecture. Moreover, it was entirely contradicted by the very DFPS
employees and contractors that created and monitored and provided service to
Appellant.
Affirming this decision would allow DFPS to operate with no standards, no
transparency and secret requirements that would never have to be articulated to a
parent. It would sanction the ability of the Department to arbitrarily change direction
and goals, without accountability. There was no change in the facts or services. DFPS
asserts that the mere change of employees within the Department is sufficient grounds
for termination of the parent-child relationship. There is nothing in the statutes,
constitutions or case law that permit this secrecy in order to achieve the goal of
terminating a constitutionally protected parent-child relationship. U.S. Const. Amend
Reply Brief 13
5, 14; Tex. Const. Art 1, 19; In the Interest of G.M., 596 S.W.2d 846 (Tex. 1980).
REPLY POINT TWO (RESTATED): DFPS FAILED TO INTRODUCE
LEGALLY AND FACTUALLY SUFFICIENT EVIDENCE TO SUPPORT THE
PROPOSITION THAT TERMINATION OF PARENTAL RIGHTS WAS IN
THE CHILD’S BEST INTEREST
Appellee states its best interest analysis with a claim that this Court held that
the young age of a child renders the desires of the child neutral. (Appellee Brief at
69). The case cited by DFPS to support this argument is an appeal of a Jury Verdict
by a drug abusing parent that never discusses the age and desires of the child in its
best interest analysis. The children in this case were 10 and 9 years old at the time
of trial and the records reflect that they were more than capable of expressing their
desires. Those desires were being adhered to by the therapist who was providing
reunification therapy. Unfortunately, it was ignored by Edwards, Johnson and Roy.
The cases cited by the Department are clearly distinguishable. (Appellee Brief at 69-
70). Those cases involved a drug abusing parent who used during pregnancy, after the
case started and after drug treatment. It also involved evidence of incarceration for
probation violations after the case started. In the other case, there was a parent with
mental illness that refused to comply with her treatment requirements, self-medicated
with illicit drugs, violated her safety placement agreements, was homeless and had
a prior termination of parental rights. In this case we have no drug abuse, a parent that
previously protected her children from the conduct of another parent and a parent
Reply Brief 14
who demonstrated that she effected positive changes through the completion of her
services to the point she had recommendation of return of the children from the
therapist and all of the people who designed her Family Service Plan.
The remainder of the Department’s best interest analysis is devoid of citations
to the record and any analysis of the facts or application of the facts to the law. There
is no evidence that Appellant continued to exercise poor judgment or that she did not
resolve her therapeutic needs. Appellant did everything she was requested to do and
her therapist recommended that the children be returned to her. DFPS relies upon
conjecture and speculation to arrive at the argument that Appellant did not do so. It
came from witnesses who opined without reference to any of the case records or the
people with first hand intimate knowledge of the case; who did not know Appellant
and who decided that the case warranted termination irrespective of everyone’s prior
assertions to the Court.
Irrespective of the conjecture of Appellee’s counsel, Appellant fully
acknowledged what she did at the first opportunity given to her after the resolution
of her criminal case. In doing so, she fully addressed the behaviors and incident in the
manner that everyone at DFPS said was successful, sufficient and satisfactory. It was
not until Appellant appeared at the Final Trial did Appellant hear that DFPS was
asserting that she was unsuccessful in her services. None of the cases cited by
Appellee in support of its best interest argument actually support termination under
Reply Brief 15
the facts of this case.
Moreover, there was no evidence at all that DFPS could provide a prompt,
permanent or safe home for the children. There was nothing prompt about the
agency’s efforts towards permanency. After over eighteen (18) months the behavior
of the children deteriorated in foster care and the Department was proposing to move
the children to a home relative to which there was not a single shred of evidence
presented. There was no evidence as to whether it was permanent or safe. The trial
Court knew absolutely nothing at all about the home except no one at DFPS had ever
met the proposed foster family and they were selected because it was the only family
that responded to the broadcast for placement.
In considering some additional factors in determining best interest, Appellant
would show the following:
1. The children were of sufficient age and were capable of
expressing their desires and speaking up for themselves;
2. Under DFPS the children were placed in multiple out of home
placements where their condition deteriorated and DFPS was
seeking to move them again to a family that no one at DFPS had
ever met;
3. This was a serious burn in an isolated incident that had fully
healed;
4. There were no incidences of reported harm after the initial report
and intervention. In fact, there were multiple visits, without
incident, prior to the breakdown of the initial kinship placement;
Reply Brief 16
5. The children were not fearful of returning home and repeatedly
expressed a desire to return home to their mother and family;
6. The results of all therapeutic interventions supported a return of
the children;
7. While there was some history of prior abusive or assaultive
conduct, the person involved lived out of state at the time of trial
and had no access to the children’s home;
8. There was no history of substance abuse by anyone who lived in
or had access to the home;
9. The perpetrator of the harm was identified at the outset of the
case;
10. Appellant sought out, accepted and completed all counseling
services, cooperated with DFPS and the therapist chosen by DFPS
under the close supervisor of her caseworker;
11. Appellant demonstrated to the DFPS caseworker and the therapist
provided by DFPS that she had effected positive environmental
and personal changes within a reasonable period of time;
12. Appellant demonstrated adequate parenting skills through the
only means DFPS provided her during the course of the case, i.e.
parenting classes and therapy; and
13. There was an adequate extended family support system as
Appellant, her parents and relatives all lived in different houses
on the same property. (RR9: 73-74)
The record reflects that Appellant satisfied all of the criteria of best interest
considerations under Holley v. Adams and 100% of the additional statutory factors
outlined in § 263.307 of the Texas Family Code. In light of this evidence, no
reasonable fact finder could reasonably form a firm belief or conviction about the
Reply Brief 17
truth of the state’s allegations relative to termination being in the best interest of the
children. In the Interest of G.M., 596 S.W.2d 846, 847 (Tex. 1980); In re J.F.C.,
96 S.W.3d 256, 265 (Tex. 2002); In re C.H., 89 S.W.3d 17, 25 (Tex. 2002).
Accordingly, the Decree for Termination should be set aside and the case
should be reversed and rendered on the issue of termination of the parent-child
relationship and the children should be returned to Appellant. In the alternative, the
case should be reversed and remanded for a new trial.
REPLY POINT THREE (RESTATED): DFPS FAILED TO INTRODUCE
LEGALLY AND FACTUALLY SUFFICIENT EVIDENCE TO SUPPORT THE
PROPOSITION THAT DFPS SHOULD HAVE NAMED AS MANAGING
CONSERVATOR AND SUCH AN AWARD WAS AN ABUSE OF
DISCRETION.
A decision on conservatorship is an abuse of discretion where it is arbitrary and
unreasonable, such is the case here. Despite Appellee’s singular assertion on one (1)
page of its brief made without support of any analysis or citation to the record,
(Appellee Brief at 73-74) there is no evidence, pattern or history of child abuse or
neglect in this case. There was no evidence that the appointment of Penny as
Managing Conservator would significantly impair the physical health or emotional
development of the children. Tex. Fam. Code §153.131. A historically protective and
appropriate mother panicked after her child engaged in an act that endangered the
lives of everyone in the family, in the household and on the adjoining property. She
Reply Brief 18
attempted a traditional and not inappropriate discipline of letting a child know that
heat can burn, but it went horribly wrong and she ended up burning her child. She
apologized, expressed remorse and despite her greatest fear took her child in for
medical care. She followed up on the medical care and was on track for reunification
under FBSS until the placement broke down. The facts never changed. Everyone
knew what they were. DFPS designed a plan of service with the specific
understanding that Appellant did not have to admit to criminal conduct in order to
successfully complete the plan. It was arbitrary and an abuse of discretion to
terminate her rights and remove her from conservatorship based upon some secret
unspoken conditions thought up by a supervisor who decided that her rights should
be terminated long before the trial commenced, without reference to any of the
information from others or the file.
Accordingly, the portion of the Decree awarding DFPS Managing
Conservatorship of the children should be reversed, this Court should enter the
judgment that the trial court should have entered by appointing Appellant as the Sole
Managing Conservator of the children.
CONCLUSION AND PRAYER
Appellant prays that this Court find that DFPS failed to meet its burden of
proof on termination of parental rights and managing conservatorship, enter the
Judgment that the trial Court should have by reversing and rendering and reuniting
Reply Brief 19
Appellant with her children. In the alternative, Appellant request that the Court
reverse and remand for a new trial.
Respectfully submitted,
CONNOLLY & SHIREMAN, LLP
/s/William B. Connolly
William B. Connolly
State Bar No. 04702400
Email: wbc@conlawfirm.com
2211 Norfolk, Suite 737
Houston, Texas 77098
Telephone (713) 520-5757
Facsimile (713) 520-6644
ATTORNEY FOR APPELLANT
CERTIFICATION
I, William B. Connolly certify that this First Amended Appellant’s Brief was
prepared with WordPerfect 17, and that, according to that program’s word-count
function, the sections covered by Tex. R. App. P. 9.4(i)(1) contains 4,580 words.
/s/William B. Connolly
William B. Connolly
CERTIFICATE OF SERVICE
I certify that a true and correct copy of the foregoing Reply Brief for Appellant
P.M. was forwarded to:
Michael R. Hull, Attorney for Department of Family and Protective Services,
Reply Brief 20
via email: michael.hull@cao.hctx.net;
Valeria Lee Brock, Attorney for Appellee R. T., via email at
valeria.lee.brock@gmail.com; and
JB Lee Bobbitt, Attorney Ad Litem for the Children J. I. T. and J. A. T., via
email at jb@bobbittlegal.com.
on May 25, 2018.
/s/William B. Connolly
William B. Connolly
Reply Brief 21