in the Interest of J. I. G., A. D. G. Children v. Department of Family and Protective Services

ACCEPTED
01-18-00023-CV
FIRST COURT OF APPEALS
HOUSTON, TEXAS
5/25/2018 4:35 PM
CHRISTOPHER PRINE
CLERK
No. 01-18-00023-CV
In the Court of Appeals for the
First District of Texas at Houston, Texas FILED IN
1st COURT OF APPEALS
___________________________________ HOUSTON, TEXAS
5/25/2018 4:35:55 PM
In the Interest of J.I.G. & A.D.G., Children CHRISTOPHER A. PRINE
__________________________________ Clerk
D.C.G., Appellant
v.
Department of Family & Protective Services, Appellee
____________________________________
On appeal from the Harris County District Court
315th Judicial District; No. 2016-03202J
____________________________________
APPELLEE’S BRIEF
____________________________________
VINCE RYAN
COUNTY ATTORNEY
State Bar #99999939
Sandra D. Hachem (SBN 08667060)
Sr. Assistant County Attorney
1019 Congress, 17th Floor
Houston, Texas 77002
Telephone: (713) 274-5293
Facsimile: (713) 437-4700
Email: sandra.hachem@cao.hctx.net
ATTORNEY FOR APPELLEE,
DEPARTMENT OF FAMILY &
PROTECTIVE SERVICES
TABLE OF CONTENTS
INDEX OF AUTHORITIES.................................................................................... iii
PARTY NAME SUBSTITUTIONS .........................................................................iv
RECORD ABBREVIATIONS .................................................................................iv
STATEMENT OF THE CASE .................................................................................. v
REPLY POINT .......................................................................................................... v
STATEMENT OF FACTS ........................................................................................ 1
SUMMARY OF ARGUMENT ............................................................................... 24
ARGUMENT AND AUTHORITIES ...................................................................... 27
REPLY POINT ONE: The evidence sufficiently supported the court’s
findings for termination of the father’s parental rights ..................................... 27
I. Applicable Law and Standard of Review .............................................. 27
2. Father’s pattern of criminal behaviors, abuse of the children under
his care and neglect supported the court’s findings under Subsections D
and E of Section 161.001(b)(1) of the Family Code. .............................. 29
3. The evidence sufficiently supported the court’s finding under
Subsection O of Section 161.001(b)(1) of the Family Code. ................. 35
4. The evidence supporting the court’s findings under Subsections D, E,
and O of Section 161.001(1) of the Family Code adequately supported
the court’s finding that termination was in the child’s best interest ... 41
PRAYER FOR RELIEF .......................................................................................... 47
CERTIFICATE OF SERVICE ................................................................................ 47
CERTIFICATE OF WORD COUNT COMPLIANCE ........................................... 48
APPENDIX ..................................................................................................(attached)
ii
INDEX OF AUTHORITIES
CASE PAGE
In re A.V., 113 S.W.3d 362 (Tex. 2003) .................................................................. 35
In re B.B., 971 S.W.2d 160 (Tex. App.―Beaumont 1998, pet. denied). ............... 30
In re C.H., 89 S.W.3d 17 (Tex.2002) ...................................................................... 28
In re D.R.A., 374 S.W.3d 528 (Tex.App.—Houston [14th Dist.]
2012, no pet.) ......................................................................................................... 28
In re E.C.R., 402 S.W.3d 239 (Tex. 2013) .............................................................. 35
In re H.M.O.L., No. 01-17-00775-CV, 2018 WL 1659981
(Tex. App. – Houston [1st Dist.] 2018, pet. denied) ............................................. 34
Holley v. Adams, 544 S.W.2d 367 (Tex. 1976), ..................................................... 41
In re J.F.C., 96 S.W.3d 256 (Tex.2002) ......................................................28, 29, 39
In re J.M.T., 519 S.W.3d 258 (Tex. App. – Houston
[1st Dist.] 2017, pet. denied).................................................................................. 38
In re J.O.A., 283 S.W.3d 336 (Tex.2009) ..........................................................28, 29
Jordan v. Dossey, 325 S.W.3d 700 (Tex. App. – Houston [1st Dist.]
2010, pet. denied ..............................................................................................33, 46
In re K.N.D., No. 01-12-00584-CV, 2014 WL 3970642
(Tex. App.—Houston [1st Dist.] Aug. 14, 2014, no pet.). ...........................39, 40
In re L.G.R., 498 S.W.3d 195 (Tex. App. – Houston [14th Dist.]
2016, pet. denied) ................................................................................................... 46
In re M.M.M., Nos. 01-17-00980-CV, 2018 WL 1954178
(Tex. App. – Houston [1st Dist.] 2018, no pet. h.) ............................................... 34
In re T.M., No. 01-16-00942-CV, 2017 WL 1885406
(Tex. App. – Houston [1st Dist.] 2017, pet. denied) (mem. op.). ........................ 42
iii
Texas Dep't of Human Servs. v. Boyd, 727 S.W.2d 531 (Tex.1987) .................30, 32
In re V.V., 349 S.W.3d 548, 555 (Tex. App. – Houston [1st Dist.]
2010, pet. denied) ................................................................................................... 32
Vasquez v. Tex. Dept. of Prot. & Reg. Servs., 190 S.W.3d 189
(Tex. App. – Houston [1st Dist.] 2005, pet. denied) ............................................. 34
STATUTES
Tex. Fam. Code Ann. § 101.007 (West 2014) ......................................................... 28
Tex. Fam. Code § 161.001(b) (West 2015) ...........................................27, 28, 35, 41
Tex. Fam. Code Ann. §263.307 (West 2014) ....................................................41, 46
RULES
Tex. R. Civ. P. 306 ....................................................................................................iv
PARTY NAME SUBSTTUTIIONS
Substitution Description .
John J.I.G., oldest child of Mother and Father
Angela A.D.G., middle child of Mother and Father
Grace G.M.G., youngest child of Mother and Father (not in this
suit)
Amanda Mother
Daniel Father/Appellant
RECORD ABBREVIATIONS
Abbreviation Description
CR Clerk’s Record from 2016-03202J
CR-Appendix Appendix to Clerk's Record from 2016-03202J
RR-2 Volume 2 of 5
RR-3 Volume 3 of 5
RR-4 Volume 4 of 5
RR-5 Volume 5 of 5
iv
STATEMENT OF THE CASE
On May 24, 2016, the Texas Department of Family and Protective Services
(“Department”) filed a child protection suit regarding John and one of his younger
siblings, Angela. CR p. 5. The court signed an order that same day granting the
Department temporary sole managing conservatorship of John and Angela. CR-
Appendix Tab 1.
On December 19, 2017, the judge of the court signed a judgment previously
approved by the Associate Judge. CR 212. The judgment declared Daniel to be
the father of the children and terminated his parental rights and Amanda’s as well
as appointing the Department as sole managing conservator. CR p. 204. Per Tex.
R. Civ. P. 306, the judgment recited that the parents’ rights were terminated on the
findings that termination was in the children’s best interest and Subsections D, E
and O of Section 161.001(b)(1) of the Family Code. Daniel filed a notice of appeal
January 9, 2018, 21 days after the judgment was signed. CR p. 238.
REPLY POINT
The evidence sufficiently supported the court’s findings for termination of the
father’s parental rights
v
No. 01-18-00023-CV
In the Court of Appeals for the
First District of Texas at Houston, Texas
___________________________________
In the Interest of J.I.G. & A.D.G., children
__________________________________
D.C.G., Appellant
v.
Department of Family & Protective Services, Appellee
____________________________________
On appeal from the Harris County District Court
315th Judicial District; No.2016-03202J
____________________________________
APPELLEE’S BRIEF
____________________________________
TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:
Department of Family & Protective Services, Appellee, [hereinafter
“Department”] submits this brief in response to the brief of the father, DCG,
hereinafter "Daniel"
STATEMENT OF FACTS
Amanda and Daniel are the parents of two children, John (born 2012) and
Angela (born 2014). RR-5 p. 143. In 2003, several years before the children were
born, Daniel was the subject of a sexual assault felony. RR-5 p. 149. In 2011, he
1
was convicted for failure to register as a sex offender. RR-5 p. 149. On September
27, 2012, shortly after John was born, Daniel was again convicted for failing to
register. RR-5 p. 155-56. Though sentenced to two years jail time, Daniel was
apparently allowed to serve community supervision, because a judgment issued in
2013 states the court deferred his proceedings and placed him on community
supervision. RR-5 p. 158. Nonetheless, that 2013 judgment also states while on
community supervision he violated that community supervision by committing a
law offense against the state of Texas. RR-5 p. 159. The judgment does not
describe the offense, but adjudicated his guilt and sentenced him to 8 months
incarceration on January 9, 2013. RR-5 p. 158.
In 2013, Amanda began her own criminal history with a forgery offense.
RR-5 p. 149. In connection with that, the Department received a referral because
Amanda left John with an inappropriate caregiver when she was arrested. RR-5 p.
149. There is no indication the Department ever was required to take custody,
because a community agency was willing to care for John until alternative
arrangements could be made. RR-5 p. 149.
In 2014, not long after their second child was born, the Department received
a referral alleging neglectful supervision by both Amanda and Daniel. RR-5 p.
149. The first report was that John suffered a black eye. RR-5 p. 140. The second
report concerned a skull fracture that Angela suffered at just one month old. RR-5
2
p. 140. The physician statement stated that “the injury would have come from
excessive force.” RR-5 p. 149. The Department determined the mother’s story of
the injury was inconsistent with that statement. RR-5 p. 149. The case disposition
was “reason to believe with removal.” RR-5 p. 149. After the children came in
care, the parents completed their services, the children were returned home
February 26, 2016 and the Department’s case was nonsuited on May 11, 2016. RR-
5 p. 149; RR-2 p. 60.
From February to May the children were in the custody of their parents.
RR-2 p. 60. However, on May 19, 2016, the Department of Family and Protective
Services (DFPS) received another referral. RR-5 p. 148. This time, it was reported
that John had a bruise on his chest and two parallel linear bruises about 6 cm in
length on his hip/lower back and it was noted “he explained that his mother,
[Angela], hit him.” RR-5 p. 148. The examining physician stated the marks on
John’s left side were consistent with a belt mark. RR-5 p. 148; 128 (“bruising on
[the] abdomen consistent with a belt/stick”).
Medical records for the hospital reflect the hospital social worker spoke with
both parents. RR-5 p. 128 and 139. Amanda said the daycare reported the bruises
to CPS and a caseworker told the parents to take the children to the hospital for an
exam. RR-5 p. 128. The notes added the mother described the bruises as not
severe, and suggested the bruises occurred in connection with a birthday party the
3
prior weekend in Santa Fe, Texas where there were outside activities. RR-5 p. 128.
Daniel also referred to the birthday party when asked about the bruising. RR-5 p.
139. He commented that he noticed a mark on John's chest the day after the party
but did not notice bruising to John's back or hip area. RR-5 p. 139. Daniel denied
that John had any other falls and denied using a belt to discipline John or Angela.
RR-5 p. 139. The social worker’s notes indicate John stated "I fell" but did not
elaborate. RR-5 p. 139. The father acknowledged he spanked the children
sometimes but denied hitting the children with a belt. RR-5 p. 139.
The social worker documented that while interviewing the parents, she
observed the children playing aggressively and at one point the youngest child
bumped into the older child causing a nose bleed. RR-5 p. 131. Notwithstanding,
that rambunctious behavior, neither parent appeared to control or redirect the
children and neither parent demonstrated strong parenting toward the children’s
behavior. RR-5 p. 131.
The CARE Team documented the following “social history” given to them
by Daniel in their “Final Report”:
Lives with mother, father, 21 month old sister [Angela]. [John] and [Angela]
were in foster care for 19 months; CPS was called on two occasions. The
first report was made when [John] suffered a black eye while under the care
of a babysitter while mother was giving birth to [Angela]. The second report
was regarding a skull fracture when [Angela] was 1 month old. Father stated
that [John] pulled [Angela] from the bed causing the fracture. Father states
he had a domestic violence charge at age 16 or 17 regarding an altercation
with his stepfather. He denies any other domestic violence history.
4
RR-5 p. 140.
In a document titled, “Final Report,” and electronically signed by two
doctors, it made the following assessment:
The marks on [John] clearly resulted from a beating with a belt, but father
denied this even when directly confronted with our assessment. … [John]’s
bruises represent excessive physical punishment, and the abuse could
escalate if not addressed intensively now.
RR-5 p. 141.
The Department filed suit and was granted emergency temporary
conservatorship of John and Angela on May 24, 2016. Appendix Tab 1. On July
14, 2016, an adversary hearing order was signed that warned the parents that
actions required of them in that order were necessary and failure to comply could
result in restriction or termination of parental rights. Appendix, Tab 2. The first
action referenced was the Service Plan that the order stated would be approved at
the Status Hearing to define the rights and duties of the parents. Id.
On July 20, 2016, service plans were filed with the court for Amanda and
Daniel. CR 45-59. Three primary goals of the plan were listed. Those goals
required the parent to learn about their children’s needs, including their age
appropriate behaviors, apply realistic expectations for their age and developmental
capabilities, learn and demonstrate reasonable discipline to meet the child’s needs
and demonstrate ability to change behaviors that resulted in abuse. CR 54.
5
Daniel’s service plan then required several tasks. CR 54. The first task
required the parents to participate in couple’s therapy and demonstrate what they
learned in therapy sessions with the caseworker. CR 54. The second task required
Daniel to complete a psychosocial assessment and follow its recommendations CR
54. The third task required him to attend scheduled visits, court hearings,
permanency conferences and meetings required by the Department or the court.
CR 54. The fourth task required him to participate in parenting classes and provide
the caseworker with a certificate upon completion. CR 55. The plan specifically
provided that it was Daniel’s responsibility to locate and pay for the fees for the
parenting classes. CR 55. The plan also required Daniel to maintain appropriate
housing and employment, and refrain from illegal activities. CR. 54-56. A final
task required that he agree to fully comply with the Agency in an effort to
reduce/eliminate the behaviors/actions that resulted in the removal of the children
and added that would “include participating in all recommended services.” CR 56.
On August 24, 2016, the court approved the family service plans and made
them orders of the court. RR-5 p. 162, 164. The order specifically found Daniel
“understands the service plan and has been advised that unless he is willing and
able to provide the children with a safe environment, even with the assistance of a
service plan, within the reasonable period of time specified in the plan, his parental
and custodial duties and rights may be subject to restriction or to termination or the
6
children may not be returned to him.” RR-5 p. 163. The order then stated:
IT IS ORDERED that, except as specifically modified by this order or
any subsequent order, the plans of service for [Daniel] filed with the
court, and incorporated by reference as if the same were copied
verbatim in this order, is APPROVED and made an ORDER of this
Court.
RR-5 p. 164.
The court further required visits with the children to be conducted in a
therapeutic setting with a qualified therapist and added with respect to the
parenting classes that the parents be referred to parenting classes specifically
tailored for children with special needs. RR-5 p. 164.
A subsequent permanency conference was held October 13, 2016, but
Daniel did not attend or notify his caseworker he could not attend. RR-5 p. 145.
He also was not present at the permanency hearing held November 16, 2016. RR-5
p. 170 (only attorney) and p. 145 (did not appear). The court documented in its
order at that time that Daniel and Ashley had not demonstrated adequate
compliance with the service plans. RR-5 p. 172. The order also ordered genetic
counseling. RR-5 p. 174 and 145. A later note indicates Angela’s neurologist had
recommended the counseling because of chromosomal abnormalities discovered
during a screening test. RR-5 p. 145. In this same order, the court also continued
its previous orders without modification. RR-5 p. 174.
In October of 2016, David completed a psychological evaluation. RR-5 p.
7
145. That evaluation required a medical examination to determine possible
treatment for ADHD, individual and couples counseling, as well as parenting
classes. RR-5 p. 145. Daniel did not complete the medical consultation
recommended. RR-5 p. 145.
Until February of 2017, David only attended one of the two scheduled
parent-child visits each month and did not begin counseling until March 2017. RR-
5 p. 145. The therapist observed that both of the children were fearful of Daniel for
several months and at one visit in May 2017 they ran to the therapist appearing
fearful when Daniel used a loud voice. RR-5 p. 145.
In May of 2017, this couple had another child. RR-5 p. 146. Once the baby
was born, the therapist observed the mother seemed unsure what to do when the
baby cried, which she found surprising considering it was her third child. RR-5 p.
145. She noted neither parent was good at managing all three children successfully
and did not think they were able to meet their special needs. RR-5 p. 145.
In the meantime, Daniel did not proactively seek to find the special needs
parenting classes required by his service plan until June 2017, which was almost a
year after the service plan was ordered. RR-5 p. 145, 162, 164. The therapist said
the kids did better at visits after June and noticed they did not exhibit fear toward
the parents. RR-5 p. 145. Daniel went to individual and couples counseling but
stopped working with the CPS funded therapist and began paying for his own
8
therapist until the court ordered this funded by the Department. RR-5 p. 145.
In July of 2017, Angela completed a psychiatric evaluation that
recommended random urine drug screen individual psychotherapy, depression
medication with follow up, parenting classes and participation in an autism support
group. RR-5 p. 144. She began working with a therapist, taking depression
medication and parenting classes but did not receive drug testing or attend autism
support group sessions. RR-5 p. 144.
On October 18, 2017, the Guardian ad Litem for the children filed a report
with the court. RR-5 p. 143. The report recommended that the Department obtain
PMC of the children, parental termination and that the children remain in their
current placement. RR-5 p. 149. The report detailed the basis of the
recommendations, which included reference to the therapist’s findings, the parents’
lack of cooperation and the children’s situation.
In that regard, the report made several comments about the lack of
understanding the parents demonstrated concerning the children’s special needs.
RR-5 p. 146. The parents had not completed special needs parenting classes and
had not been able to articulate an understanding of all the children’s diagnoses.
RR-5 p. 146. It noted when the children came back in care, it was apparent the
parents did not adequately meet the children’s needs. RR-2 p. 146. For example,
while Texas Children’s Hospital gave numerous reminder calls to the mother about
9
a follow up MRI for Angela due to a hospitalization in March 2016, the calls were
never returned and the MRI was not done until the children came back into foster
care. RR-5 p. 146. It was further noted that when John came back in care, he
would not engage with people as he had before and was frantic upon waking if he
had wet the bed as he was very afraid of being disciplined. RR-5 p. 146.
The report noted both children were in a foster/adopt family selected from a
process in June of 2017. RR-5 p. 146. While that just recently occurred, the report
noted the children were well acquainted with this foster family, because they lived
in the same community as their former foster family. RR-5 p. 146. It added the
children lived with the former foster family from September 2014 until February
2016 in the first case and then from May 2016 to June 2017 in this second case.
RR-5 p. 147. The report noted the children were in a loving, consistent and stable
environment and the new foster family was very dedicated to securing the
children’s special services, medical appointments and therapies for their special
needs. RR-5 p. 147.
The report added that the younger child, Angela, had a neurological disorder,
paroxysmal tonic upgate (PTU), which causes her to look out of the tops of her
eyes, walk wobbly and unsteady. RR-5 p. 147. The neurologist stated the
condition is rare but she should outgrow it. RR-5 p. 147. A neuro-ophthalmologist
also diagnosed this child with vision loss in the lower left quadrant of both eyes.
10
RR-5 p. 147. The doctor attributed this vision loss to optic nerve damage from the
skull fracture that brought her in care in the previous case. RR-5 p. 147.
Angela also suffered from a febrile seizure disorder and was under the care
of a neurological team at Texas Children’s Hospital. RR-5 p. 147. By the time of
this report, it was noted she had not experienced seizures for several months. RR-5
p. 147. A Chromosomal Micro Array done in April 2016 at Texas Children’s
Hospital showed she had abnormalities on two chromosomes that would require
further monitoring and evaluation but as of August 2017 she was progressing
normally. RR-5 p. 147.
Angela began attending a Pre-K program in August 2017 with vision and
orientation and mobility services. RR-5 p. 147. She was specially fitted with a
soft helmet to protect her when she stumbles due to her diminished vision and has
a special cane with a wheel to help her negotiate the ground. RR-5 p. 147. It was
noted she needed constant monitoring for her safety because her incidents of
falling increased. RR-5 p. 157.
John was diagnosed with Autism Spectrum disorder, Attention Deficit
Hyperactivity Disorder and Disruptive Mood Dysregulation Disorder in which a
child is chronically irritable and has severe explosive outbursts grossly out of
proportion to the situation. RR-5 p. 148. Jacob also had a chromosomal disorder
responsible for global development delay as well as behavior disruption. RR-5 p.
11
148. He also struggles with speech and articulation and his motor skills are
delayed.
John is enrolled in a kindergarten program in which he qualified for PPCD
due to his ADHD and speech impairment. RR-5 p. 147. He receives speech
therapy at school as well as weekly sessions at home. RR-5 p. 147. He also
receives occupational therapy twice a week at home. RR-5 p. 147. His foster
parents also give him daily tutoring with his academics as well as working with
him on fine motor skills and muscle development. RR-5 p. 145. He takes ADHD
medication to help manage aggression and hyperactivity and Ritalin in addition to
the gunfacine to help with focus and impulsivity. RR-5 p. 148. He also takes, as
needed, Hydroxyzine, to calm down when he has an explosive meltdown. RR-5 p.
148. The neurologist made a referral to Texas Children’s Meyer’s Clinic for
behavioral therapy and he had his first appointment in May of 2017. RR-5 p. 148.
He since received medical orders for therapy to address behavior and social
interaction as well as orders for speech and occupational therapy. RR-5 p. 148.
The foster family was on a 6-month waiting list for in-home therapy which was the
only option given his current school and other in-home therapy. RR-5 p. 148.
The report went on to note that the parents secured housing together. RR-5
pp. 144 and 145. Amanda was employed with Goodwill and Daniel had part time
employment with Metco and a hunting guide business. Id.
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Trial was held November 17, 2017. RR-2. The Department’s first witness
was Dr. Rebecca Girardet. RR-2 p. 20. Dr. Girardet is board certified in child abuse
pediatrics and the director of the CARE Team at Memorial Hermann Children’s
Hospital. RR-2 p. 20. She testified that she had treated John during his
hospitalization in May 2016. RR-2 p. 21.
She noted that John had a past medical history of ADHD, disruptive
behavior syndrome, and febrile seizures. RR-2 p. 22. She testified that John
presented to the hospital with “a mark on his left hip that was two parallel lines
that was consistent with a belt mark.” RR-2 p. 23. She further testified that Daniel
denied the mark resulted from a belt. RR-2 p. 24. He indicated the cause was from
falling from a boucy house onto grass several times. RR-2. P. 24. However, she
noted the pattern was clearly a belt mark. RR-2 p. 24. She stated the mark was not
consistent with an accidental fall. RR-2 p. 26. She stated the explanation given
was not consistent with the injury. RR-2 p. 26.
Dr. Giradet was asked by Daniel’s attorney if the mark could have occurred
by John falling on a bouncy house strap. RR-2 p. 37. She testified that the child
would not have been able to hit the strap with enough force to leave the mark that
she observed. RR-2 p. 37. She added: “He was struck.” RR-2 p. 37.
The next witness, Susan Imre, stated she had been the children’s advocate
since May 2015 during the first Department case involving these children. RR-2 p.
13
50. She acknowledged Child Advocates was opposed to returning the children
during that first case. RR-2 p. 67.
She confirmed Daniel called her on May 20, 2016 to tell her about the
referral for this second case. RR-2 p. 41. In that conversation, Daniel denied hitting
John with a belt but commented he used the snapping of a belt to get John’s
attention. RR-2 p. 41-42.
Susan was asked to talk about her report on behalf of Child Advocates. RR-
2 p. 43. She confirmed it was recommending parental termination and considered
the fact that the children had special needs which neither parent had total grasp.
RR-2 p. 43.
In that connection, Susan spoke about the children’s special needs. She
noted that John had problems with autism and ADHD. RR-2 p. 44. She noted he
was enrolled in a school program for children with special needs. RR-2 p. 45. She
stated he received speech and occupational therapy and was specially monitored
for his behavior problems. RR-2 p. 45. Susan noted he was behind in school, but
making progress and showing a lot of development. RR-2 p. 45. She added she met
with the child and found him very focused and it was hard to divert his attention
once he focused on doing something. RR-2 p. 46. She stated he could be loving
but could also be rough and very impulsive. RR-2 p. 46.
Concerning Angela, she acknowledged she was 3 years old at the time of
14
this trial. RR-2 p. 48. She noted that when this child came back in care she had a
noticeable neurological issue in which she was wobbly and looked out of the tops
of her eyes. RR-2 p. 49. Nonetheless, the child had not been seen for that
condition. RR-2 p. 49. When she asked the dad about that, he just commented that
was part of her seizure thing. RR-2 p. 49. She noted the child also had a skull
fracture in the first case that caused loss of vision from nerve damage. RR-2 p. 52.
She commented the father was not aware that was permanent. RR-2 p. 52.
In discussing Child Advocate’s recommendation of parental termination, she
commented that Child Advocates had concerns about medical and physical neglect.
RR-2 p. 53. She noted there were two cases where the explanation was not
consistent with the medical injury. RR-2 p. 53. Also, there was concern about the
mother’s ability to care for not only two special needs children as well as an infant.
RR-2 p. 53. She added “I realize that’s a separate case, but [John] is a very
challenging child and needs constant monitoring.” RR-2 p. 53. She added, that
Angela has vision loss and PTU that needed monitoring and neither child could be
left together alone. RR-2 p. 53.
She added that Angela was hospitalized for febrile seizures in March of
2016, and when the parents were questioned about why the child did not make an
appointment for a follow up MRI, the mother said she did not need it. RR-2 p. 54.
Also, though the dad said it would be done right away, but it was not. RR-2 p. 54.
15
She further commented that the father was away a lot and the bulk of child
care, including medical appointments, fell to the mother. RR-2 p. 55. She stated
she observed an inability of the mother to grasp the magnitude of the severity of
her children’s condition and their needs. RR-2 p. 57. She also commented that
during a previous court hearing, Amanda laughed inappropriately while she
testified about the children’s needs. RR-2 p. 57-58. She noted it was disturbing to
her that she laughed during testimony about all the special needs of her children.
RR-2 p. 58.
She added the children’s needs were currently met, they were thriving and
doing extremely well. RR-2 p. 56. She stated if you compare the way the children
were when the children first came in to care, the difference was night and day. RR-
2 p. 56. She stated the caregivers show the children great attention to their special
needs and take them to all their required therapy and doctor appointments. RR-2 p.
56. She stated the foster parents are very patient with these children, give them
lots of love and support and continue to make the children healthier. RR-1 p. 57.
Susan confirmed the children had been in two different foster placements.
RR-2 p. 62-63. She noted they were taken from the first placement because they
did not want to adopt and in this case, the goal had been unrelated adoption from
day one. RR-2 p. 63. She stated after the legal risk broadcast in June 2016, the
children were moved to a family selected in June of that year. RR-2 p. 63.
16
Susan stated the family visits were occurring every two weeks at a play
therapist office in Kingwood. RR-2 p. 64. She added that therapeutic visits were
requested because when the children first came back in care, they had negative
reactions seeing the parents, and, particularly to the father. RR-2 p. 65. When
asked to describe the negative behaviors, she noted when they indicted they were
going to see their parents, John was saying, “No, No.” RR-2 p. 65. She added that
Angelica would cling to her foster mom and not want to see the parents, but with
the play therapist they calmed down and she witnessed the children playing
happily with dad there and no overt fear being shown. RR-2 p. 65.
Susan noted when the children first came in care, John was 2 and Angela
was only about 4 weeks old. RR-2 p. 65-66. She said Angela was 2 when she first
came back in care this time. RR-2 p. 70. Taking away the two or three months of
monitoring, she commented that Angela had been with her foster parents her entire
life. RR-2 p. 66. Susan added there was significant bonding between the children
and their foster parents. RR-2 p. 66.
The Department’s caseworker, Lakeela Caraway testified next. RR-2 p. 77.
She confirmed the Department shared all of the same concerns testified to by the
child advocate. RR-2 p. 82. She further testified that even after working with the
family for the last three years, the parents are not able to provide a safe and stable
environment for their children. RR-2 p. 83.
17
Lakeela acknowledged the parents went to couples and individual therapy,
did a psychological assessment, and had been visiting. RR-2 p. 87. She also
acknowledged they attended special needs parenting classes. RR-2 p. 87. She
added the parents’ home was appropriate and the father was working full-time. RR-
2 p. 88.
Daniel testified next. RR-2 p. 90. Daniel acknowledged he was the same
Daniel who was convicted of failing to comply with sex offender registry
requirements in 2012 and again in 2013 as evidence by Petitioner’s exhibits 4 and
5 (RR-5 p. 154-158). RR-2 p. 90.
Daniel claimed he never hit John nor had he ever seen Amanda hit John with
a belt. RR-2 p. 90. He also stated he had no concerns with leaving any of his
children alone with Amanda. RR-2 p. 92. He stated neither of them caused the
skull fracture to Angela. RR-2 p. 92. He added it was not by physical force by him
or his wife and he was never questioned by law enforcement. RR-2 p. 92. He
stated she was hurt when she was pulled off the bed by her 3 year old brother. RR-
2 p. 92. He stated the bed was two feet off the ground. RR-2 p. 93.
When asked about the belt mark, he maintained that occurred at a bouncy
house. RR-2 p. 94. Daniel stated he saw the mark on John and stated it was the
same shape and size as the strap of the bouncy house. RR-2. p. 102.
When asked about the genetic testing, Daniel confirmed he did not go. RR-2
18
p. 94. He acknowledged he was informed his children suffer from genetic
abnormalities. RR-2 p. 95.
Daniel stated he is home by 3:00 and has a support system of family and
friends. RR-2 p. 103. He stated he received enough from his job to care for the
children’s financial needs. RR-2 p. 103.
Daniel stated they were aware of John’s ADHD but did not know of his
other special needs until he was back in custody. RR-2 p. 105. He stated he
completed special needs parenting. RR-2 p. 105. He stated with completing the
family service plan, they were better parents. RR-2 p. 106. He stated they also
started therapy with the therapist in the courtroom. RR-2 p. 106. He believed the
therapy assisted them to be mother and father to their children educationally and
dealing with situations between their relationship. RR-2 p. 106.
Daniel stated that the main things he learned through the special needs
parenting classes were about immunizations and respite to deal with the children.
RR-2 p. 108. Through these classes, he believed he and Amanda became better
able to parent their children’s special needs. RR-2 p. 108. However, when asked if
he knew their special needs, he acknowledged he did not know the specifics of
their needs. RR-2 p. 110.
Amanda testified next. When asked how Angela got a skull fracture, she
stated her brother pulled her off the bed. RR-2 p. 111. She acknowledged the
19
medical providers at the hospital disagreed with that explanation. RR-2 p. 111.
She stated she never struck John with a belt leaving a mark. RR-2 p. 112. When
asked if she witnessed John run into a cable or line or hit a buckle or something to
cause a mark on the bouncy house, she stated she did not. RR-2 p. 112.
Amanda admitted that the child advocate had contacted her and Daniel on
multiple occasions to have genetic counseling set up to comply with the court
order. RR-2 p. 113. She also acknowledged there were multiple occasions with
Judge Ellis where she was told she needed to get the genetic counseling set up and
Daniel was with her during those conversations. RR-2 p. 113.
Amanda stated she had concern about her children’s genetic abnormalities.
RR-2 p. 113. When asked what she did to address that, she stated she researched
on the internet about potential causes of the genetic abnormalities but had not set
up an appointment with a professional. RR-2 p. 114. She added she had never
contacted the children’s physicians or reviewed the children’s medical records. RR-
3 p. 113. She confirmed she had not done that in the last three years and did not
contact their therapists or specialists. RR-2 p. 115.
Amanda claimed she asked CPS for the physician’s name at some point and
said she asked “five, four or three” times. RR-2 p. 115-16. She claimed she made
the requests over the phone adding “I can’t get ahold of her.” RR-2 p. 116.
Amanda acknowledged she had to do genetic testing and counseling. RR-2 p. 116-
20
17. She claimed CPS never provided her with the contact information for genetic
testing and genetic counseling. RR-2 p. 117. She claimed she contacted the
hospital regarding genetic testing. RR-2 p. 117.
When asked if she was married to Daniel, Amanda stated that they were
common law adding: “it’s complicated. RR-2 p. 117-18. Amanda stated they
started out paying for their therapy and CPS was ordered to pay for the therapy.
RR-2 p. 119. She added they were not reimbursed and paid for about three
months. RR-2 p. 120.
The Foster Mother of the children testified next. She stated her plan was to
adopt the children if parental rights were terminated. RR-2 p. 123. She stated in
order to get up to speed on the children’s special needs, she attended all of the
meetings with the school board where they go over the child’s special needs for
school and the services they would receive. RR-2 p. 123. She added she takes
John to appointments with his psychiatrist, genetics appointments and neurologist
appointments. RR-2 p. 123. She stated they work with Angela’s visions needs and
monitor her at home to make sure she’s safe and learning her environment well.
RR-2 p. 123.
The Foster Mother stated they were comfortable addressing the special
needs of the children and acknowledged they had several and they changed over
time. RR-2 p. 124. She stated they were willing to keep the children in their home,
21
to love them and continue to help them as they grow up. RR-2 p. 125.
The Foster Mother, confirmed she was the one who set up the appointments
with doctors, meetings and anything like that. RR-2 p. 125. She noted he
continued doctor visits from the previous foster placement. RR-2 p. 125.
The Foster Mother stated even if the parental rights were not terminated they
would be willing to continue care for the children if their medical needs were
covered through CPS. RR-2 p. 125-26. She also confirmed they would be willing
to keep the children in their home until they aged out of the system. RR-2 p. 126.
She stated they care about all three of the children. RR-2 p. 126.
The following witness was Michele Criddle. She stated she was a marriage
and family therapist and met Amanda and Daniel after Amanda called her. RR-2 p.
127. She stated she worked with the parents since June 26, 2017. RR-2 p. 127 and
141. She stated she provided them couples therapy as well as individual therapy for
them. RR-2 p. 128. She met with them every other week for individual sessions
and couple sessions every other week, including crisis intervention. RR-2 p. 128.
She commented that crisis intervention was when emotions are escalated or
emotional distress occurs where they feel they need additional therapeutic support.
RR-2 p. 128. She stated they attended regularly since June. RR-2 p. 128-29.
She stated her goals in couples therapy was to teach Davis and Amanda to
emotionally regulate and work on their communication as well as learn what their
22
parenting goals should be. RR-2 p. 129. She believed they progressed. RR-2 p.
129. Specifically, she commented that she worked with the parents to redevelop
parenting abilities that are deficient and anger management. RR-2 p. 130. Ms.
Criddle indicated the parents progressed with therapy. RR-2 p. 131.
Ms. Criddle acknowledged she had not met the children nor had she
reviewed any of the children’s medical records regarding their past injuries that
brought them into care. RR-2 p. 132-133. She further acknowledged she could not
render an opinion on whether the parents were fit to have the children returned
home to them. RR-2 p. 133. She added that was why she requested to have therapy
with the children and parents together. RR-2 p. 133.
Nonetheless, Ms. Criddle stated she disagreed with the Child Advocates’
opinion and stated she believed Amanda had “capacity” and “ability” adding “we
have to guide her .. educate her about what that is.” RR-2 p. 137. She added her
past experiences with her parental upbringing did not give her guidelines that she
needed to be the parent she needed to be. RR-2 p. 137. She added Amanda was
very willing and Ms. Criddle commented she was very pleased with the way that
they parent. RR-2 p. 127. She further added she believed the parents had the love
and intention and capacity but they needed “additional resources to do so” and she
was advocating for that. RR-2 p. 138.
When Ms. Criddle was asked if she believed the relationship between
23
Amanda and Daniel was stable, she stated it was “stable.” RR-2 p. 139. She
admitted, however, that approximately two weeks before trial Amanda took $500
out of the bank and left a note for David stating their relationship was over. RR-2
p. 140.
Ms. Criddle stated she believed the parents’ explanation of Angela’s skull
fracture injuries. RR-2 p. 140. She also believed their explanation about the belt
marks to his body. RR-2 p. 140. Ms. Criddle confirmed she was a marriage and
family therapist and commented she did not need to have a medical degree or
experience with trauma or physical injuries to the body. RR-2 p. 140-41.
SUMMARY OF ARGUMENT
The Appellant’s Brief requests reversal of the parental termination judgment
against Daniel based on insufficiency of the evidence. Namely, the brief claims
there was insufficient proof to establish he endangered his children, placed them in
dangerous circumstances or failed to comply with a court order for reunification
and that termination of his parental rights was in their best interest. However, the
record in this case provides more than sufficient proof.
First, the record shows Daniel committed dangerous behaviors and placed
the children in dangerous conditions for the findings under D and E. The record is
undisputed he was the subject of crimes of domestic violence and sexual abuse
before his oldest child was born and, after his oldest was born, he failed to comply
24
with the requirement that he register as a sex offender and ultimately got an 8
months sentence while his oldest child was very young. In addition, while under
Daniel’s parentage, the oldest child suffered a black eye in 2014 and belt marks
and bruising in 2016 that a doctor determined resulted from excessive punishment.
The youngest child also suffered a fractured skull at one month of age that was
found to have resulted from excessive force. In all of these incidents, it was found
the parents’ excuses for the children’s injuries were inconsistent with medical
determinations.
The appellant’s brief argues there was not sufficient proof to disbelieve the
parents’ excuses because they were consistent in their claims. Nevertheless, a trier
of fact was not required to believe them, especially considering it was observed
during this second case that the children were afraid of Daniel. There also was
evidence that the parents were not properly responding to the children’s special
medical needs and remained ignorant of them. Considering the children’s special
needs were great and required monitoring, this was a fact that established the
parents jeopardized the well-being of their children for both D and E.
As for the finding under Subsection O, the evidence is conclusive. The
court ordered Daniel to comply with the Department’s service plan after these
children came into care upon learning that John suffered bruises and a belt mark
that a doctor concluded showed excessive punishment. Daniel failed to comply
25
with requirements at the beginning of the case by failing to go to a court hearing,
permanency conference and some visits and then delayed one of the most
important tasks involving parenting classes for almost a year. Also, he did not
show by the time of trial that he learned what was necessary under the goals of the
plan, which included a showing of a safe environment.
The Appellant’s Brief argues there was no order for purposes of Subsection
O, but that is not what the record shows. In particular, the brief argues that the
ordered service plan could not be considered ordered because it was not put in
evidence as an exhibit. However, this was a bench trial, and this court has held this
court presumes the court takes judicial notice of its own records in a case. The
family service plan was part of the trial court’s record in this case, therefore, it may
be presumed the trial court considered it.
The appellant’s brief also refers to language in a permanency hearing order
that orders a service plan attached to the order and argues that means the service
plan was never ordered because it was not attached. However, that disregards that
the service plan was already ordered in an earlier order (the Status Hearing Order)
and the court ordered it by referring to the service plan filed with the court.
Nothing in the later permanency order vacated the order of that service plan.
Consequently, this claim should be rejected.
26
The last challenge in the Appellant’s Brief challenges the sufficiency of the
evidence for the finding that termination was in the children’s best interest. The
court had sufficient basis for terminating Daniel’s parental rights considering the
same evidence that supported the court’s findings under D, E and O. Moreover, the
undisputed proof that Daniel did not know his children’s special needs by the time
of trial when these children had many special needs that required medical visits
and monitoring weighed heavily in favor of the court’s finding. That is especially
true considering these children have lived in foster care for most of their lives in
the last three years, have a very significant bond with the foster parents, the foster
parents have been addressed their special medical needs and want to adopt them.
In light of this evidence, the evidence was more than sufficient to support the
court’s finding that parental termination was in the children’s best interest. The
judgment should, therefore, be affirmed.
ARGUMENT AND AUTHORITIES
REPLY POINT: The evidence sufficiently supported the court’s findings for
termination of the father’s parental rights
1) Applicable Law and Standard of Review
The court’s decree confirms that Daniel’s parental right were terminated
under Section 161.001 of the Family Code upon clear and convincing proof that
(1) he committed acts under Subsection (b)(1)(D), and (E) per section 161.001(1)
of the Family Code; and (2) that termination was in the best interest of the child.
27
CR 134-35; Tex. Fam. Code § 161.001(b)(1), (2); In re J.O.A., 283 S.W.3d 336,
344 (Tex.2009). Notably, the involuntary termination of parental rights is a serious
matter, because it implicates fundamental constitutional rights. Holick v. Smith,
685 S.W.2d 18, 20 (Tex.1985); In re D.R.A., 374 S.W.3d 528, 531 (Tex.App.—
Houston [14th Dist.] 2012, no pet.). However, while of constitutional magnitude,
parental rights are not absolute. In re C.H., 89 S.W.3d 17, 26 (Tex.2002) (“Just as
it is imperative for courts to recognize the constitutional underpinnings of the
parent-child relationship, it is also essential that emotional and physical interests of
the child not be sacrificed merely to preserve that right.”).
To address the serious interests in the permanent and severe decision of
parental termination, Section 161.001 of the Family Code imposes a burden of
proof that is heightened under the clear and convincing evidence standard. See
Tex. Fam. Code § 161.001(b) (West Supp. 2016); In re J.F.C., 96 S.W.3d 256,
265–66 (Tex.2002). In this connection, the Family Code defines “Clear and
convincing evidence” as “the measure or degree of proof that will produce in the
mind of the trier of fact a firm belief or conviction as to the truth of the allegations
sought to be established.” Tex. Fam. Code Ann. § 101.007 (West 2014); accord In
re J.F.C., 96 S.W.3d at 264.
The heightened burden of proof at trial also results in a heightened standard
of review. In re C.M.C., 273 S.W.3d 862, 873 (Tex. App.—Houston [14th Dist.]
28
2008, no pet.). In reviewing a legal sufficiency challenge, an appellate court
considers all the evidence in the light most favorable to the finding to determine
whether a reasonable fact finder could have formed a firm belief or conviction that
its finding was true. In re J.O.A., 283 S.W.3d at 344; In re J.F.C., 96 S.W.3d at
266. It is also assumed in that analysis that the fact finder resolved disputed facts in
favor of its finding if a reasonable fact finder could do so, and an appellate court
will disregard all evidence that a reasonable fact finder could have disbelieved. In
re J.O.A., 283 S.W.3d at 344; In re J.F.C., 96 S.W.3d at 266.
Appellate review of the factual sufficiency of the proof considers and weighs
all of the evidence, including disputed or conflicting evidence. In re J.O.A., 283
S.W.3d at 345. “If, in light of the entire record, the disputed evidence that a
reasonable fact finder could not have credited in favor of the finding is so
significant that a fact finder could not reasonably have formed a firm belief or
conviction, then the evidence is factually insufficient.” Id. Importantly, in such
review, the appellate court acknowledges the fact finder is the sole arbiter of the
credibility and demeanor of witnesses and, as such, will give due deference to the
fact finder's findings and not substitute its own judgment for that of the fact finder.
In re H.R.M., 209 S.W.3d 105, 108 (Tex.2006).
2) Father’s pattern of criminal behaviors, abuse of the children under
his care and neglect supported the court’s findings under Subsections
D and E of Section 161.001(b)(1) of the Family Code.
29
The findings under D and E involve parental conduct stated as follows:
(D) knowingly placed or knowingly allowed the child to remain in
conditions or surroundings which endanger the physical or
emotional well-being of the child;
(E) engaged in conduct or knowingly placed the child with persons
who engaged in conduct which endangers the physical or
emotional well-being of the child;
Tex. Fam. Code Ann. §161.001(b)(1)(D), (E) (West Supp. 2016).
The term “endanger,” used in these sections includes the commonly
understood meaning: i.e. exposing a child to loss or injury or jeopardizing a child's
emotional or physical health. Texas Dep't of Human Servs. v. Boyd, 727 S.W.2d
531, 533 (Tex.1987). As clarified by the Supreme Court, the proof for
endangerment does not have to be established as an independent proposition, but
can be inferred from parental misconduct alone. Boyd, 727 S.W.2d at p. 533. Also,
it is not necessary that the parental misconduct be directed at the child, occur in the
child’s presence or that the child actually suffer injury from it; and it may include
evidence of conduct before the child's birth as well as before and after the child has
been removed by the Department. See In re B.B., 971 S.W.2d 160, 166-69 (Tex.
App.―Beaumont 1998, pet. denied).
Based on these standards, there was more than sufficient evidence showing
Daniel engaged in conduct endangering to his children and placed them in
dangerous surroundings. Such evidence included the following:
30
1. Parents engaged in behaviors that subjected the parents to
incarceration after the children were born. RR-3 p. 140 (“Father states
that he had a domestic violence charge at age 16 or 17 regarding an
altercation with his stepfather”); RR-3 p. 149 (3/24/2003 – sexual assault
felony; 4/25/2011 failure to register-convicted; 5/23/2012-failure to register-
convicted; 6/21/2012-failure to comply with registration-state jail felony-
convicted); RR-5 p. 155 (September 2012 sentenced 2 years for failure to
register); RR-5 p. 158 (January 2013 sentenced 8 months based on
adjudication of prior deferred offense for failure to register, because violated
law); RR-5 p. 149 (2013 mom gets forgery offense).
2. Children experienced injuries from excessive force under the parents’
care on separate occasions and each time parents’ excuses were
inconsistent with medical assessment RR-5 p. 149 (2014 John suffered
black eye, Angela had skull fracture and physician statement provides “the
injury would have come from excessive force,”and Department determined
mom’s story inconsistent with physician statement); RR-5 p. 148 (2016
reported John had bruise on chest and two parallel linear bruises on his
hip/lower back and “he explained that his mother, [Angela], hit him.”); RR-5
p. 141 (doctors concluded marks on John clearly resulted from beating with
belt, though father denied, and they concluded bruises represented excessive
physical punishment); RR-2 p. 37 (Dr. Giradet confirmed marks could not
have come from a belt strap in a bouncy house and stated, “He was struck.”);
RR-2 p. 53 (advocate explained basis of her recommendation included fact
that these parents were subject of two cases where the explanation was not
consistent with the medical injury).
3. Pattern of neglectful parenting by parents, especially in light of
children’s special needs. RR-5 p. 155-56 (Daniel convicted twice after
John born for failing to register and was sentenced to 8 months jail on
January 9, 2013, which, of course, made him unavailable for this child’s
care); RR-5 p. 149 (2013 Amanda left John with an inappropriate caregiver
when arrested and arrangements had to be made with an outside resource);
RR-5 p. 131 (social worker observed despite aggressive playing by children
resulting in one child causing other child’s nose to bleed, parents did not
appear to control or redirect the children and social worker determined
neither parent demonstrated strong parenting toward the children’s
behavior); RR-5 p. 145 (therapist observed mother unsure what to do when
her newborn baby cried, and found neither parent was good at managing all
three children successfully and did not think they were able to meet their
31
special needs); RR-5 p. 146 (when children back in their care after first case,
apparent parents did not adequately meet the children’s needs and noted
mother did not take Angela for follow up MRI after March 2016
hospitalization despite numerous reminder calls by Texas Children’s
Hospital); RR-2 p. 54 (commenting on parents’ failure to follow up after
March 2016 hospitalization, Advocate noted mother insisted child did not
need it and though father said it would be done right away, it was not done);
RR-2 p. 49 and 52 (advocate observed Angela had noticeable neurological
issue in which she was wobbly and looked out of the tops of her eyes, had
not been seen for condition, dad just commented it was part of her seizure
thing; and father was unaware this child’s vision loss from skull fracture was
permanent); RR-2 p. 55, 57-58 (Advocate noted father away a lot and left
responsibilities to mother whom Advocate noted was unable to grasp
magnitude of children’s condition and laughed inappropriately when she
spoke in court about the children’s many special needs).
These facts together established a firm basis for the trier of fact to conclude the
parents exposed their children to loss or injury and jeopardized their emotional or
physical health to support the court’s finding of endangering conduct and
circumstances. See Boyd, 727 S.W.2d at 533.
As indicated above, the parents’ endangering behavior began with
intentional criminal behaviors by both parents that placed their children in a
situation that jeopardized their well-being. In re V.V., 349 S.W.3d 548, 555 (Tex.
App. – Houston [1st Dist.] 2010, pet. denied) (“Intentional criminal activity that
exposes a parent to incarceration is conduct that endangers the physical and
emotional well-being of a child.”). Such intentional criminal activity jeopardized
the stability and safety of these children especially considering these children were
very young when these behaviors occurred as well as the fact that both parents
32
engaged in behaviors that resulted in incarcerations. Moreover, with respect to
Daniel particularly, his pattern of his criminal behaviors raised concern about his
potential for violence, because he previously was involved in a domestic violence
incident when 16 or 17, a felony sexual assault crime at some point thereafter, and
then violated sex registration requirements several times and ultimately went to jail
under an eight months sentence while his first child was very young. RR-5 pp.
149, 155-56, 158, 159; RR-3 p. 140.
Of course, the most concerning endangering conduct listed above concerns
the injuries these children suffered on separate occasions documented to include a
black eye, a fractured skull from excessive force and belt marks from excessive
punishment. RR-5 p. 149 and 141; Jordan v. Dossey, 325 S.W3d 700, 724 (Tex.
App. – Houston [1st Dist.] 2010, pet. denied) (abusive and violent criminal
conduct by a parent can produce an environment that endangers a child). The
father’s brief claims the father testified he did not harm his children, always gave
consistent reasonable explanations and mainly left the children with the mother.
However, the trier of fact did not have to believe the father’s claims especially in
light of medical findings documented that showed these injuries were the result of
excessive force or punishment and the doctor at trial rejected Daniel’s excuse of
play or falling on a belt in a bouncy house. RR-5 p. 145, 141; RR-2 p. 37; See In
re J.P.B., 180 S.W.3d 570, 574 (Tex. 2005) (acknowledging it was within the
33
province of trier of fact to judge father’s demeanor and decide to disbelieve his
testimony that he did not know how the child was injured); See also In re H.R.M.,
209 S.W.3d 105, 108-09 (Tex. 2006) (holding appellate court could not supplant
trier of fact’s conclusion to disbelieve parent’s claim that he would be paroled).
Moreover, the final issue of dangerous behaviors involved Daniel’s neglect
of the children, especially in connection with their special medical needs. In re
H.M.O.L., No. 01-17-00775-CV, 2018 WL 1659981 *13 (Tex. App. – Houston
[1st Dist.] 2018, pet. denied) (parent’s failure to provide appropriate medical care
may constitute endangering conduct for purposes of Subsection E). Based on
observations of the social worker in the hospital, therapist, and Child Advocate it
was concluded these parents demonstrated inappropriate parenting in response to
these children’s medical and personal needs. Such observations supported a
finding the Daniel engaged in behavior endangering to his children. See Vasquez
v. Tex. Dept. of Prot. & Reg. Servs., 190 S.W.3d 189, 196 (Tex. App. – Houston
[1st Dist.] 2005, pet. denied) (finding caseworker’s observations of incidents
indicating appellant’s negligent in supervision could be considered as part of
dangerous course of conduct).
In sum, considering all of these facts together shows a pattern of parental
behaviors that exposed these children to unsafe surroundings and uncertainty and
instability that endangers a child’s physical and emotional well-being. In re
34
M.M.M., Nos. 01-17-00980-CV, 2018 WL 1954178 *10 (Tex. App. – Houston [1st
Dist.] 2018, no pet. h.) (citing In re R.W., 129 S.W.3d at 739). There was not any
disputed evidence of such significance as to outweigh this proof, consequently,
there was legally and factually sufficient proof for the court’s findings of D and E.
3) The evidence sufficiently supported the court’s finding under
Subsection O of Section 161.001(b)(1) of the Family Code.
Only one predicate finding under Section 161.001(b)(1); therefore,
consideration of the evidence under Subsection O is unnecessary. See In re A.V.,
113 S.W.3d 362 (Tex. 2003). Nonetheless, the evidence is sufficient under that
subsection as well. Under Subsection O, a court may terminate the parent-child
relationship if the court finds, by clear and convincing evidence, that the parent
failed to comply with the provisions of a court order that
specifically established the actions necessary for the parent to obtain
the return of the child who has been in the permanent or temporary
managing conservatorship of the Department of Family and
Protective Services for not less than nine months as a result of the
child's removal from the parent under Chapter 262 for the abuse or
neglect of the child.
TEX. FAM. CODE § 161.001(1)(O) (West 2014); In re E.C.R., 402 S.W.3d 239, 243
(Tex. 2013).
The evidence in this case supported that finding with the following evidence:
1. Temporary orders placed children in Department’s care for more than a
year from May 2016 to November 2017. Appendix, Tab 1 and 2; RR-2
p. 1.
35
2. Children came in Department’s conservatorship by order under Chapter
262 for abuse or neglect. CR-5 pp. 18-23 (facts of abuse or neglect
described in affidavit for emergency order); Appendix Tab 1
(emergency order appoints Department temporary managing
conservator; Appendix, Tab 2 (orders recites court’s findings under
chapter 262 for abuse or neglect for appointment of Department as
conservator); RR-5 p. 148 (Child Advocate notes Department named
temporary managing conservator of the children on May 24, 2016 after
referral of physical abuse on report of bruises on child, child said
mother hit him, and examining physician said mark consistent with belt
mark and inconsistent with family’s explanation); RR-5 p. 141 (doctor
statement said the marks reflected excessive punishment); RR-5 p. 173
(November 2016 court found neither parent willing and able to provide
child with safe environment, therefore, return was not in the children’s
best interest).
3. Parents ordered to do service plan and warned that failure to comply
with service plan could result in parental termination Appendix, Tab 2
(order, signed July 14, 2016, warned failure to comply with the service
plan approved at status hearing could result in parental termination);
CR 45-59 (Parents’ service plans filed July 20, 2016); RR-5 p. 164
(Status Hearing Order, signed August 24, 2016, approved parents’
service plans filed with the Court and incorporated it by reference as if
copied verbatim in the court’s order); RR-5 p. 163 (Order specifically
found parents reviewed and understood their services plans and were
advised unless they were willing and able to provide the children with a
safe environment, even with the assistance of a service plan, within
reasonable time specified in plan, parental rights may be subject to
termination). RR-5 p. 163; RR-5 p. 164 (Order amended the service
plan to require the parents to be referred to parenting classes and anger
management specifically tailored for children with special needs). RR-5
p. 174 (Order of November 2016 orders: “The actions specified in each
service plan … on file as of the date of this order represent actions
which this Court requires of the Parent specified in the service plan ..
and the actions much be performed in order for the parent to regain
custody of the children who are presently in the temporary managing
conservatorship of the Department.”).
36
4. Daniel’s service plan, ordered August 24, 2016, required Daniel to
attend and participate in scheduled visitation, court hearings, and
permanency conferences. CR 55; RR-5 p. 162, 164.
5. Daniel did not attend all scheduled visits, court hearings, and
permanency conferences. RR-5 p. 145 (did not go to permanency
conference in October 2016 and did not tell caseworker could not); RR-
5 p. 145 (Daniel did not go to court hearing November 16, 2016; RR-5
p. 172 (November 16, 2016 Court found parents had not demonstrated
adequate compliance with the plan); RR-5 p. 145 (Until February of
2017, David only attended one of the two scheduled parent-child visits
each month); RR-5 p. 146 (parents cancelled visits on several occasions
for non-emergency reasons).
6. Daniel’s service plan, ordered August 24, 2016, required Daniel to
locate, pay for and attend parenting classes and the court’s order that
ordered this service plan added that the parents should be referred to
classes specifically tailored for children with special needs. CR 55 and
57; RR-5 p. 164.
7. Daniel did not even attempt to locate parenting classes tailored for
children’s special needs until June of 2017, almost a year after this task
was ordered. RR-5 p. 145. The parents still had not completed this task
by the time the Child Advocate reported in October 2017. RR-5 p. 146.
Daniel reported he completed the task by the time of trial in November
2017. RR-2 p. 105.
8. The service plan had specific goals requiring Daniel to “learn and apply
realistic expectations for the age and developmental capabilities of the
child” and “demonstrate an ability to change the pattern of behaving
that resulted in abuse.” CR 54.
9. Nonetheless, Daniel did not demonstrate he learned realistic
expectations for the children’s developmental capacities or his ability to
change the pattern of behaving that resulted in abuse. RR-2 p. 108
(when asked what he learned in parenting classes, Daniel stated he
mainly learned about immunizations and respite); RR-2 p. 92 amd 55
(Daniel stated he had no concerns with leaving any of his children
alone with Amanda and Child Advocate noted father was away a lot
and left bulk of child care to father); RR-2 p. 55 (nonetheless, Child
37
Advocate stated mother was unable to grasp magnitude of her
children’s conditions and even laughed when the advocate detailed all
the special needs of her children during a hearing).
As indicated above, there was proof that Daniel violated the service plan by failing
to attend visits, court hearings, and a permanency hearing, delaying on performing
his parenting classes until approximately a year into this case and failing to
demonstrate realistic expectations considering his children’s developmental
capabilities, indicating the pattern of abuse from the past was not addressed.
While it is acknowledged Daniel stated he completed his service plan, and
the testimony indicates he completed tasks required in his service plan by the time
of trial, substantial or partial compliance with a court ordered service plan does not
avoid a finding under Subsection O. In re J.M.T., 519 S.W.3d 258, 267 (Tex. App.
– Houston [1st Dist.] 2017, pet. denied). As noted by this court, Texas courts take a
strict approach to O and even one failure of a service plan will support an O
finding. Id.
Moreover, it is important to consider in this case that this was not Daniel’s
first time to be required to do a service plan, because they finished a service plan in
a prior case and got their children returned. Consequently, it cannot be said he did
not understand the importance of completing a court ordered plan in this type case.
Further, he violated the court’s order in a material way by delaying attending
parenting classes on special needs for such a long time (approximately a year) and
38
failing to demonstrate learned behaviors because he was fine leaving the kids with
the mother even though the advocate noted she lacked ability to understand the
children’s needs. RR-3 p. 121; RR-2 p. 45 and pp. 72-73. Consequently,
considering the evidence in this case, the proof in support of Subsection O was
established conclusively as a matter of law. See J.F.C. , 96 S.W.3d 256, 278-79
(Tex. 2002) (because there was undisputed proof that both parents failed to comply
with material provisions of the court ordered plans and those failures occurred
between the time the children were removed under chapter 262 until the time of
trial on orders issued during that time, the evidence conclusively established the
court’s finding under Subsection O “as a matter of law” even giving the parents
credit for partial compliance of other tasks).
Appellant’s brief argues that the order that required Daniel to comply with
the service plan was not a valid order, because the family service plan did not seek
reunification. However, the Department’s goals in a service plan do not prevent
the order from being a prerequisite for a parent to obtain reunification. As noted
by this court, “[t]he order need not bear a title stating that it is an order “to obtain
return of a child”; rather, it will be sufficient under subsection (O) so long as it
directs a parent to perform specific acts and advises the parent that failure to
provide a safe environment within a reasonable time period could result in
termination of .. parental rights.” In re K.N.D., No. 01-12-00584-CV, 2014 WL
39
3970642, at *6 (Tex. App.—Houston [1st Dist.] Aug. 14, 2014, no pet.). This
court has also noted that a trial court may direct a parent to perform specific acts
for purposes of Subsection O by ordering the parent to comply with a family
service plan created by the Department. Id. That is what the records shows in this
case.
The appellant’s brief also argues that there was no proof of a family service
plan was ordered as it was not admitted in evidence. Nonetheless, this court has
held “in a bench trial, we may ‘presume the trial court took judicial notice of its
record without any request being made and without any announcement that it has
done so.’” In re K.N.D., 2014 WL 3970642 (Tex. App. – Houston [1st Dist.] 2014,
pet. denied). As such, because the clerk’s record reflects Daniel’s service plan was
filed before the status hearing order was signed, the status hearing order
incorporated that plan into its order and ordered it, we may presume the trial court
took judicial notice of what the court previously ordered.
The appellant’s brief also argues that the service plan was not ordered,
because the Permanency Order signed in November of 2016 ordered a service plan
“attached” to the order. See RR-5 p. 174. However, that disregards that the court
previously ordered the family service plan “filed with the court” approved and
made an order of the court, and the Permanency Hearing order signed in November
did not vacate that order. RR-5 p. 164. In fact, the Permanency Order specifically
40
provided “all previous orders issued by this court shall continue without
modification.” RR-5 p. 174. Consequently, that does not establish that Daniel did
not have a court ordered service plan. The finding under Subsection O should be
affirmed.
4) The evidence supporting the court’s findings under Subsections D, E,
and O of Section 161.001(1) of the Family Code adequately supported
the court’s finding that termination was in the child’s best interest.
In reviewing Daniel’s last challenge to the sufficiency of the evidence for
the trial court’s best interest finding under Section 161.001(b)(2) of the Family
Code, this court is guided by numerous factors in case law and the Family Code. In
particular, Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976), provides a
number of factors a trial court may consider in evaluating whether parental
termination is in a child’s best interest. Those facts include the child’s desires,
physical and emotional needs, emotional and physical danger to the child, parental
abilities, programs to assist in promoting the child’s best interest, plans by those
seeking custody, stability of the home, improper parental acts and any excuse for
the improper acts or omissions by the parents. Also, besides those factors, the
Family Code, at Section 263.307, provides some directions in evaluating a child’s
best interest generally. It directs that the prompt and permanent placement of a
child in a safe environment is in a child’s best interest and then lists numerous
41
factors in evaluating a parent’s willingness to provide that safe environment. See
Tex. Fam. Code Ann. §263.307 (West 2008).
1. Desires of Children
The subject children were too young, at ages 3 and 5, to state their position
on whether it was in their best interest that their father’s parental rights be
terminated and there is nothing in the record indicating they made any comments
about their desires with respect to the father. RR-5 p. 143. However, this court has
held when the children are too young to express their desires, the court may
consider the children’s bond with the foster family, whether they are well-cared by
them and whether they have spent minimal time with the parent. In re T.M., No.
01-16-00942-CV, 2017 WL 1885406 *9 (Tex. App. – Houston [1st Dist.] 2017,
pet. denied) (mem. op.).
In this connection, the child advocate reported the children lived with the
former foster family from September 2014 until February 2016 in the first case and
then from May 2016 to June 2017 in this second case. RR-5 p. 147. Susan further
commented that, other than the two to three months when the children were
returned, Angela have been in foster placements her entire life. RR-2 p. 66.
Susan acknowledged the children were in two different foster placements.
RR-2 p. 62-63. Nevertheless, her report confirmed the children were well-
acquainted with this new foster home as it was in the same community as the
42
former foster family. RR-5 p. 146. Also, at trial, she confirmed there was
significant bonding between the children and their foster parents. RR-2 p. 66. She
also noted the children’s needs were met, they were thriving and doing extremely
well. RR-2 p. 56. In addition, the foster mother testified she wanted to adopt the
children. RR-2 p. 123.
The court likely also considered that these children had negative behaviors
seeing their parents and showed fear for several months with Daniel. RR-2 p. 65;
RR-5 p. 145. While the play therapist has been able to calm them so that the
children were seen playing happily with dad there and no overt fear being shown,
that does not show the children desired to be under their father’s care especially
without a therapist to assist them in their fears. RR-2 p. 65.
Consequently, considering the fear these children expressed toward their
father, the fact he had not provided care for these children for most of the last three
years, and the children are significantly bonded and well-cared for by their current
foster family, the court had more than sufficient basis to conclude that parental
termination would be in the best interest of the children under the factor of the
children’s desires.
2. Present and future dangers, acts and omissions
Appellant’s Brief claims there is no proof the father posed a danger to his
children. That is incorrect. As already discussed in connection with the prior
43
discussion concerning the proof under Subsections D and E, there was undisputed
proof establishing Daniel was the subject of domestic violence and sexual assault
crimes in his past and maintained a pattern of behaviors that resulted in his
incarceration even after his son’s birth. See In re B.D.A., 2018 WL 76131 (Tex.
App. – Houston [1st Dist.] 2018, no pet. h.) (father’s commission of felony after
births of his children that resulted in his incarceration considered dangerous
behavior that weighed against father in best interest analysis). In addition, there
was proof of his negligent parenting in failing to properly respond to his children’s
special needs as well as the excessive force and punishment experienced by these
children under his care. With that proof, the evidence that established these
children were endangered while Daniel parented them weighed in favor of the
finding that termination of Daniel’s legal rights as their parent was in the children’s
best interest.
3. Parenting Abilities and Programs.
The Appellant’s brief argues the factor concerning the father’s parenting
ability should weigh against parental termination, because the record shows he had
a stable home and employment, completed the various tasks required by his family
service plan, and the children were doing well with him during visits. However,
that does not reflect a full assessment of his parenting abilities from the record.
44
First, as already noted above, the Department does not agree that Daniel
complied with the service plan. Though required to go to visits, court hearings and
permanency hearings, the evidence shows he violated that. Also, he did not look
for the court ordered parenting classes for almost a year after it was ordered and he
did not demonstrate at trial he learned to change behaviors that could result in
abuse or neglect again consistent with the goals in the service plan.
Also, the therapist concluded neither parent was good at managing all three
children successfully and did not think they were able to meet their special needs.
RR-5 p. 145. Further, the Child Advocate testified that the children had special
needs that neither parent had total grasp. RR-2 p. 43. In this connection, Daniel
confirmed at trial he did not know the specifics about his children’s special needs.
RR-2 p. 110. Considering these children had many special needs and the court
ordered that the parenting classes address special needs to ensure that important
aspect of serving their interests was addressed, Daniel admission about his
ignorance of their special needs proved he was unable or unwilling to address
them.
In contract, the foster caregivers showed the children great attention to their
special needs and brought them to all their required therapy and doctor
appointments. RR-2 p. 56. She stated the foster parents were also very patient with
these children, gave them lots of love and support and continued to make the
45
children healthier. RR-1 p. 57. Considering these facts, the court had more than
sufficient basis to find parental termination was in the children’s best interest
considering parenting abilities.
4. Stability and Plans
While the Appellant’s Brief suggests the father was never at fault and had an
appropriate plan for the children’s care, the record indicates otherwise. The facts
that have jeopardized stability for these children for most of their lives has mostly
been the result of the behaviors and neglect of the parents. His past behaviors
during the lives of his children have failed to take into account the basic and
special needs of his children, and the trier of fact did not have to believe he had
any better ability by the time of this trial, especially when he admitted he still did
not know his children’s special needs. Consequently, the court had more than
sufficient basis on to terminate Daniel’s parental rights so that the children could
be adopted by foster parents who had addressed the children’s special needs and
wanted to adopt them. Because the need for permanence is a paramount
consideration in determining a child’s present and future needs, the court had more
than sufficient basis to find termination of Daniel’s parental rights was in the
children’s best interest. See In re L.G.R., 498 S.W.3d 195, 205 (Tex. App. –
Houston [14th Dist.] 2016, pet. denied); Jordan, 325 S.W.3d at p. 731; Also see
46
Tex. Fam. Code Ann. §263.307(a) (prompt and permanent placement in child’s
best interest). The judgment should be affirmed.
WHEREFORE, PREMISES CONSIDERED, the Department prays that this
court affirm the trial court’s judgment and for such other and further relief to
which it may be entitled in law or in equity.
Respectfully submitted,
VINCE RYAN
COUNTY ATTORNEY
By: /s/ Sandra Hachem
Sandra Hachem,
Assistant County Attorney
State Bar #08667060
1019 Congress, 17th Floor,
Houston, Texas 77002
Phone: 713/274-5293; Fax: 713/437-4700
Email: Sandra.Hachem@cao.hctx.net
Attorney for Appellee,
Department of Family & Protective Services
CERTIFICATE OF SERVICE
I hereby certify that on this the 25th day of May, 2018, a true and correct
copy of the foregoing Appellee’s brief was sent to all parties to this appeal by
sending a copy of this brief by electronic transmission to:
Appellant, Daniel
c/o his attorney of record William Thursland
by email at wmthursland@hotmail.com
and
47
Attorney Ad Litem for the Child
Sylvia Yvonne Escobedo by email at sylviaescobedo@me.com.
/s/ Sandra Hachem
Sandra Hachem
CERTIFICATE OF COMPLIANCE OF NUMBER OF WORDS
This is to certify, pursuant to Tex. R. App. P. 9.4(i)(3), that the foregoing
computer generated brief consists of no more than 15,000 words, excluding the
caption, identify of parties and counsel, table of contents, index of authorities,
statement of the case, statement of issues presented, statement of procedural
history, signature, proof of service, certification, certificate of compliance and
appendix. Relying on the word count of the computer program used to prepare this
document, the number of words, subject to count under the rules, is 11,937 words.
/s/ Sandra Hachem
Sandra Hachem
48
No. 01-18-00023-CV
In the Court of Appeals for the
First District of Texas at Houston, Texas
___________________________________
In the Interest of J.I.G. & A.D.G., Children
__________________________________
D.C.G., Appellant
v.
Department of Family & Protective Services, Appellee
____________________________________
APPENDIX
____________________________________
DESCRIPTION ATTACHMENT NO.
Emergency Order
Signed May 24, 2016
Image Number 70417014 1
Temporary Order Following Adversary Hearing Order
Signed July 14, 2016
Image Number 711110358 2
49
Tab 1
Emergency Order
Signed May 24, 2016
Image Number 70417014
5/24/201611:00:37 AM
Chris Daniel - District Clerk
Harris County
2016-03202J / Court~ Envelope No: 10789464
By: EVERS, LONNA K
Filed: 5/24/2016 11 :00:37 AM "
ORIGINAL NOTICE: TIllS DOCUMENT
CONTAINS SENSITIVE DATA
MICHAEL EJEH 176-7
LOREE GEISELHART 176-7
CAUSE NO. _ _ _ _ _ _ _ _ _ __
IN THE INTEREST OF IN THE DISTRICT COURT OF
J G
HARRIS COUNTY, TEXAS
A G
CHILDREN ~ JUDICIAL FAMILY/JUVENILE DISTRICT
ORDER FOR PROTECTION OF A CIDLD IN AN EMERGENCY
AND NOTICE OF HEARING
On May 24,2016, the Department of Family and Protective Services ("the Department")
presented its Petition to the Court.
1. Appearances
1.1. The Department of Family and Protective Services ("the Department") appeared
through MICHAEL EJEH, caseworker, and by attorney and announced ready.
1.2. Respondent MOTHER A M D
o appeared in person and announced ready.
o appeared through attorney of record _ _ _ _ _ _ _ _ _ _ _ _ and
. )lIDounced re~dy. •
ti'a1r)Qeared In p rso d through attorney of record
-+-''-=f__....~-L.:....L..>".......-''...._..:b_'Id'_'_ and announced ready.
o wai d issuance and service 0 Citation by waiver duly filed.
o agreed to the terms of this order as evidenced by signature below.
o although duly and properly notified, did not appear and wholly made default.
o was not notified, and did not appear.
1.3. Respondent ALLEGED FATHER D C G
CertifiedDocumentNumber:70417014-Page1of9
o appeared in person and announced ready.
o appeared through attorney of record _ _ _ _ _ _ _ _ _ _ _ _ and
".announced ready.
ij1" ``ared in 11persol:! through attorney of record
~ fJ,.J.)./\A ttU(o(l,l1O ~and announced ready.
J
o waived issuance and service of citation by waiver duly filed.
o agreed to the terms ofthis order as evidenced by signature below.
o although duly and properly notified, did not appear and wholly made default.
o was not notified, and did not appear.
Order For Protection Of A Child·ln An Emergency and Notice Of Hearing (!alainn)
Page 1 '. May242016
RECORDER'S MEMORANDUM .
This instrumentis of poor quality
at the time of imaging
1.4. Respondent UNKNOWN FATHER
o appeared in person and announced ready.
o appeared through attorney of record _ _ _ _ _ _ _ _ _ _ _ _ _ and
announced ready.
o appeared In person and through attorney of record
_ _ _ _ _ _ _ _ _ _ _ _ _ and announced ready.
o waived issuance and service of citation by waiver duly filed.
o agreed to the tenns of this order as evidenced by signature below.
o ~though duly and properly notified, did not appear and wholly made default.
Gt' was not notified, and rdid n~t ~pear.
1.5. I - CD~nted by the Court as Attorney and Guardian
Litem 0 the children the subject of this suit,
appeared and announced ready.
agreed to the terms of this order.
agreed to the terms of this order, but did not appear
o although duly and properly notified, did~ot app~ar.
1.6. A CMAQdlWl.: .
CertifiedDocumentNumber:70417014-Page8of9
IF YOU APPEAR IN OPPOSITION T6 HE SUIT, CLAIM INDIGENCE, AND
REQUEST THE APPOINTMENT OF AN ATIORNEY, THE COURT WILL
REQUIRE YOU TO SIGN AN AFFIDAVIT OF INDIGENCE MlJ) THE COURT
MAY HEAR EVIDENCE TO DETERMINE IF YOU ARE INDIGENT. IF THE
COURT DETERMINES YOU ARE INDIGENT AND ELIGIBLE FOR
APPOINTMENT OF AN ATTORNEY, THE COURT WILL APPOINT AN
ATTORNEY TO REPRESENT YOU."
Order For Protection Of A Child In An Emergency and NotiCe 01 Heamg (Islelnn)
PageS . May 24, 2016
r,
11. Dismissal Date and Notice of Full Adversary Hearing:
Pursuant to §263.306(1l), Texas Family Code, tte COjrt determines that the date for
dismissal of this cause shall be CS ;.1. "-::?
q I-<'1- .
Notice is given to Respondents A D and D M C
G t at his cause is seh. for
a full adversary hearing on
- '~-t--\-.........- - - - , at vI'. '50
o'clock j}.m. in the ~Judicial
District Court of arris Connty, in Houston, Texas
.
SIGNED thIS _ _ day of
MAY 2 4 2016 ,2016.
MASTER 0
SIGNEDthis _ _ dayof MAY 24 2016,2016.
/) ' ~'
JUDGE~V
..
CertifiedDocumentNumber:70417014-Page9of9
Order For Protection Of A Child In An Emergency and Notice Of Hearing (Ialeinn)
Page 9 . May 24,2016
I, Chris Daniel, District Clerk of Harris
County, Texas certify that this is a true and
correct copy of the original record filed and or
recorded in my office, electronically or hard
copy, as it appears on this date.
Witness my official hand and seal of office
this May 15, 2018
Certified Document Number: 70417014 Total Pages: 9
Chris Daniel, DISTRICT CLERK
HARRIS COUNTY, TEXAS
In accordance with Texas Government Code 406.013 electronically transmitted authenticated
documents are valid. If there is a question regarding the validity of this document and or seal
please e-mail support@hcdistrictclerk.com
Tab 2
Temporary Order Following Adversary Hearing Order
Signed July 14, 2016
Image Number 711110358
Oft T GINAL
I,EU.
. .
~ 5/241201611:00:37 AM
Chris Daniel· District Clerk
Harris County
Env~ No: 10789464
20 16-03202J / Court: ``d: 51:22i~N1``O~:37 AM
NOTICE: TIiIS DOCUMENT
CONTAINS SENsmVE DATA P15
MICHAELEJEH 176-7
LOREE GEISELHART 176-7
CAUSE NO. --ftYl(IjX
IN THE INTEREST OF IN THE DISTRICf COURT OF
J I G
BA~SCOUNTY,TEXAS
A G
CHILDREN ``ICIAL FAMILY/JUVENILE DISTRICT
TEMPORARY ORDER FOLLOWING ADVERSARY HEARING
On 01 . . '3 - I ~, a full adversary hearing pursuant to §262.20l or
9-e?
262.205, Texas Family Code, was held in this cause.
1. Appearances
1.1. The Department of Family and Protective Services ("the Department") appeared
through MICHAEL EJEH, caseworker, and by attorney and announced ready.
1.2. Respondent MOTHER A M D
o hpeared in person and announced ~
'IZ' appeared through attorney of record ~O " f\AAL~d
~. nn
announcedready."\l
o appeared in person and through.. attorney of record
_ _ _ _ _ _ _ _ _ _ _ and announced ready.
o waived issuance and service of citation by waiver duly filed.
to
o agreed the terms of this order as evidenced by signature below.
[] although duly and properly notified, did not appear and wholly made default.
[] was not notified, and did not appear.
1.3. Respondent ALLEGED FATHER D C G
.0 ~aTed in person and announced reaW· Ij \.
CertifiedDocumentNumber:71110358-Page1of13
O"appeared through attorney 'of record cJt IU~AI\... \{,b ha4C~nd
V\
announced ready. .
o appeared . in person and through attorney of record
_ _ _ _ _ _ _ _ _ _ _ and announced. ready.
o waived issuance and service of citation by waiver duly filed. .
o agreed to the tenns of this order as evidenced by signature below.
D although duly and properly notified, did not appear and wholly made default.
o was not notified, and did not appear.
Temporary Ordanl (1aIeiuI)
Pagel
RECORDER'S MEMORANDUM May 24. 2016
ThIa InIb'wnent Is of poor quality
altha lima of imaging.
1.4. Respondent UNKNOWN FATHER
[] appeared in person and announced ready.
[] appeared through attorney of record _____________ and
announced ready.
o appeared in person and through attorney of record
_ _ _ _ _ _ _ _~-~-- and announced ready.
[] waived issuance and service of citation by waiver duly filed.
o agreed to the tenus of this order as evidenced by signature below.
~ although duly and properly notified, did not appear and :wholly ma4e default.
J~ was not notified, and did not appear. .
1.5. -?;Y(Vta ft;Cbbedo,aPPointed by the Court as Attorney and Guardian
~Litcm of the children tbt'subject of this suit,
[] appeared and announced ready.
o agreed to the terms of this order.
o agreed to the terms of this order, but did not appear
o although duly and properly notified, did not appear.
1.6.
AI~O``c_
2. Jurisdiction
2.1. The Court, after examining the record and hearing the evidence and argument of
counsel, finds that all necessary prerequisites ofthe law have been satisfied and that
this Court has jurisdiction of this case and of all the parties.
2.2. The Court further finds that the State of Texas has jurisdiction of this case pursuant
to Subchapter C, Chapter 152, Texas Family Code, because Texas has been the
home state of the children for at least six months prior to the date of the
commencement of this proceeding, and no parent or person acting as a parent
continues to live in the state where an initial child custody detennination was made.
3. Indian Child Welfare Act
CertifiedDocumentNumber:71110358-Page2of13
The Court has inquired whether the children's family has Native American heritage and
identified any Native American Tribe with which the children may be associated.
4. Findings
4.1. The Court finds there is sufficient evidence to satisfy a person of ordinary prudence
and caution that: (1) there was a danger to the physical health or safety of thc
children which was caused by an act or failure to act of the person entitled to
possession and for the children to remain in the home is contrary to the welfare of
Temporary 0JderB (faleinn)
Page 2 . May 24.2018
the children; (2) the urgent need for protection required the immediate removal of
the children and makes efforts to eliminate or prevent the children's removal
impossible or unreasonable; and (3) notwithstanding reasonable efforts to eliminate
the need for the children's removal and enable the children to return home, there is
a substantial risk of a continuing danger if the children are returned home.
4.2. The Court finds sufficient ev.idence to satisfy a person of ordinary prudence and
caution that there is a continuing danger to the physical health or safety of the
children and for the children to remain in the home is contrary to the welfare of the
children.
4.3. The Court finds with respect to the J I G AND
A G , that reasonable efforts consistent with the children's
. health and safety have been made by the Department to prevent or eliminate the
need for removal of the children from the home and to make it possible for the .
children to return home, but that continuation in the home would be contrary to the
welfare of the children.
4.4. The Court finds that placement of the children with the children's noncustodial
parent or with a relative of the children is inappropriate and not in the best interest
of the children.
4.5. The Court finds that appointment of the parent or parents as managing conservator
of the children is not in the best interest of the children because the appoinbnent
would significantly impair the children's physical health or emotional development
4.6. The Court finds that the following orders far the safety and welfare of the children
are in the best interest of the children.
5. Appointment of Counsel for Parents or Parties
5.1. The Court finds that A M D is! ~ indigent. Based on the·
finding that A M D is not indigent and pursuant to §107.015 of
the Texas Family Code, IT .IS ORDERED that A M D is
responsible to pay a reasonable fee in the amount set by the Court by separate order
to the attorney ad litem appointed to represent the children, J I
G AND A G .
CertifiedDocumentNumber:71110358-Page3of13
5.2. The Court finds that D C G isl iaIm indigent. Based on
the finding that D C G is not indigent and pursuant to
§ 107.015 afthe Texas Family Code, IT IS ORDERED that D C
G is responsible to pay a reasonable fee in the amount set by the Court by
separate order to the attorney ad litem appointed to represent the children, J
I G ANDIOR A G .
6. Appointment of Single COUDsel for Both Parents
The Court finds that the interests of both indigent parents who have responded in
opposition to the tennination of the parent-child relationship are not in conflict, and
therefore has appoi~ted a single attorney ad litem to represent the interests of both parents.
7. Conservatorship
7.1. IT IS ORDERED that the Department of Family and Protective Services is
appointed Temporary Managing Conservator of the following children:
Name: J I G
Sex: MALE
Date of Birth:
Indian Child Status: UNKNOWN
Name: A G
Sex: FEMALE
Date of Birth:
Indian Child Status: UNKNOWN
7.2. IT IS ORDERED that the Temporary Managing Conservator shall have all the
rights and duties set f~rth in §153.371, Texas Family Code.
7.2.1. IT IS ORDERED that in addition to the rights and duties listed in
§lS3.371, Texas Family Code, the Department its employee or designee is .
authorized to consent to medical care of t~e subject children, pursuant to
§266.004, Texas Family Code.
CertifiedDocumentNumber:71110358-Page4of13
7.3. The Court finds that it is in the best interest of the children to linnt the rights and
duties of each paren~app±'d iB i iii40lary pUSSGS¥ij rud' lSI.
~.. 'iThe
,A"'-'
Court makes ;0
finding at this time with regard to the appointment of a
Temporary Possessory Conservator.
TempolClrY Olders (1alelm)
Page 4 May 24. 2016
8. Righls a T~'=
es m;:::pareni
8.1. ... Each =_ .
"PlI01IlIM bl !I!i. Ii•••: ohaJI hav~ 1he
following rights:
8.1.1. the right to receive information concerning the health, education, and
welfare of the children;
8.1.2. the right to access to medical, dental, psychological, and educational
records of the children;
8.1.3. the right to consult with a physician, dentist, or psychologist of the children;
8.1.4. the right to consult with school officials concerning the children's welfare
a~d educational status, including school activitie!it\
consent for the child
g
t the moral and religious
CertifiedDocumentNumber:71110358-Page5of13
8.2. Each TetBj~Il!3Z=j!a:~m``````~IiI!~ms:::a&'shall have the
following duties:
Temporary Orders {faIeInII)
PageS May 24. 2016
8.2.2.
8.3. Possession of and Access to the children
8.3.1. The Com finds that the application of the guidelines for poSsession of and
access to the children, as set out in Subchapter F, Chapter 153, Texas Family
Code, is not in the children's best interest. IT IS ORDERED that the parent
. named as temporary possessory conservator of the children shall have
limited access to and possession of the children as set forth below.
The Court finds that the parents shall have the right to visitation with the
children in accordance with the policy established by Department of Family
and Protective Services and at aU other times mutually agreeable to the
Temporary Managing Conservator and the parents of said children.
9. Chlld Support
The Court finds that the parents have a duty to support the child the subject of this suit.
CertifiedDocumentNumber:71110358-Page6of13
The Court makes no finding at this time with regard to the payment of child support.
Ttmpollly Orders (1aIaInn)
Pag.s May 2", 2016
IT IS ORDERED that any chlld support ordered to be paid for the support of the children
as a result of any prior court order be ordered to be redirected and paid to the Texas
Department of Family and Protective Services.
10. Medieal Support
The Court finds that the parents have a duty to provide medical for the child the subject of
this suit
y
The Court makes no finding at this time with regard to the payment of medical support.
11. Release of Medical and Mental Health Records
IT IS ORDERED that Respondents A M D and D
C G execute an authorization for the release of Respondents', and the
children's (if needed) past, current or future medical and mental health records to the
Department from all physicians, psychologists, or other health care professionals, who
have treated Respondents or their children which information the Department shall be
authorized to share with all other groups or persons it deems necessary; and to further
provide the Department with a list of the names and addresses of an physicians,
psychologists, or other healthcare providers who have treated Respondents or the children ..
Respondents shall execute the authorization and deliver it, together with the list of
physicians, psychologists, or other healthcare providers, to the Department within 15 days
of the date of this hearing.
12. Required Home Study
12.1. The Court finds that Respondent Mother, A M D , hasll -
submitted the Child Placement Resources Fonn required under §261.307. Texas
Family Code.
CertifiedDocumentNumber:71110358-Page7of13
12.2. The Court finds that Respondent Father, D C G , hasAllfllt
~submitted the Child Placement Resources Form required under §261.307,
Texas Family Code.
12.3. IT IS ORDERED that each Parent, Alleged Father or Relative of the subject
children before the Court submit the Child Placement Resources FOnD provided
under §261.307, if the form has not previously been provided and provide the
Department and the Court the full name and cun'ent address or whereabouts and
phone number of any and all relatives of the subject children the subject of this suit
with whom the Department may place the'subject children during the pendency of
this suit, pursuant to §262.201 " Texas Family Code. .
12.4. IT IS ORDERED that the Department shall continue to evaluate substitute
caregiver options until the Department identifies a relative or other designated
individual qualified to be a substitute caregiver.
13. FINDING AND NOTICE
THE COURT FINDS AND HEREBY NOTIFIES THE PARENTS THAT EACH OF
THE ACTIONS REQUIRED OF THEM BELOW ARE NECESSARY TO ODTAIN
THE RETURN OF THE CHILDREN, AND FAILURE TO FULLY COMPLY
WITH THESE ORDERS MAY RESULT :U"l THE RESTRICTION OR
TERMINATION OF PARENTAL RIGHTS.
"14. o ,``-s=~
.. G is ORDERED, pursuant to §263.l06 Texas
'ly Co comply' 'ent ent's original,
or any amended, service plan during the penl'l ..1II'I"V
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CertifiedDocumentNumber:71110358-Page8of13
14.4. The court finds that this order, as supplemented by the service plan to be approved
at the Status Hearing under Texas Family Code §263.201, sufficiently defines the
rights and duties of the parents of the child pursuant to Texas Family Code
§ 153.602 and satisfies the requirements of a parenting plan. To the extent there is
evidence demonstrating that the children have been exposed to harmful parental
conflict, the court orders that the Department address this issue in the Family Plan
of Service. .
Temporary ORIelS (falelnn)
~8 _``
15. Required Information
15.1. IT IS ORDERED that each Respondent to this cause provide to the Department
and the Court, no later than thirty days from the date of this hearing, the information
detailed below.
15.2. IT IS ORDERED that each Respondent to this cause provide to the Department
and the Court the full name and current address or whereabouts and phone number
of any" absent parent of the children the subject of this suit, pursuant to Rule 194,
Texas Rules of Civil Procedure.
15.3. IT IS ORDERED that each Respondent to this cause submit the Child Placement
Resources Form provided under §261.307, Texas Family Code, ifthe form has not"
been previously provided and provide to the Department and the Court the full
name and current address or whereabouts and phone number of any relative of the
children the subject of this suit with whom the Department may place the children
during the pendency ofthis suit, pursuant to Rule 197, Texas Rules of Civil Procedure,
and §262.201(e), Texas Family Code.
15.4. IT'IS ORDERED that each Parent furnish information sufficient to accurately
identify that parent's net resources and ability to pay child support along with
copies of income tax returns for the past two years, any financial statements, bank
statements, and current pay stubs, pursuant to Rule 196, Texas Rules of Civil
Procedure., and §lS4.063, Texas Family Code.
15.5. IT IS ORDERED that each Respondent provide the Deparbnent and the Court
information sufficient to establish the parentage and immigration status of the
children, including but not limited to marriage records,. birth or death certificates,
baptismal records, social security cards, records of lawful permanent residence
("green cards''), naturalization certificates, and any other record of the United States
Citizenship and Inunigration Services and records of Indian ancestry or tribal
membership.
15.6. IT IS ORDERED that each Respondent provide the Department with any
information regarding whether the children or the children's family has Native
American heritage and identify any Native American Tribe with which the children
may be associated and provide all available family history information relevant to
CertifiedDocumentNumber:71110358-Page9of13
determination of Indian child status on request
15.7. IT IS ORDERED that each Respondent furnish to the Department all information
necessary to ensure the Department has an adequate medical history for the
children, including but not limited to the immunization records for the children and
the names and addresses of all treating physicians.
15.8., IT IS ORDERED that each Respondent provide the Department information
regarding the medical history of the parent and parent's ancestors on the medical
history report form, pursuant to §161.2021, Texas Family Code.
15.9. IT IS ORDERED that each Respondent to this cause provide to the Department
and ~he Court a current residence address and telephone number at which each can
be contacted.
15.10. IT IS ORDERED that each Respondent to this cause notify the Department and
the Court of any change in his or her residence address or telephone number within
five (5) days of a change of address or telephone number.
16. Duty To Provide Information
16.1. IT IS ORDERED pursuant to §153.076(a), Texas Family Code that each
conservator of a child has a duty to infoIm the other conservator of the child in a
timely manner of significant information concerning the health, education, and
welfare of the child.
16.2. IT IS ORDERED pursuant to §153.076(b), Texas Family Code, that each
conselVator of the child has the duty to infonn the other conservator if the
conservator resides with for at least 30 days, marries, or intends to marry a person,
who the conservator knows:
16.2.1. is registered as a sex offender under Chapter 62, Code of Criminal
Procedure;oT
16.2.2. is currently charged with an offense for which on conviction the person,
would be required to register under that chapter.
, J6.3. The notice required to be made under §153.076(b), Texas Family Code, must be
made as soon as practicable but not later than the 40th day after the date the
conservator of the child begins to reside with the person or the 10th day after the'
date the marriage occurs, as appropriate. The notice must include a description of
the offense that is the basis of the person's requirement to register as a sex offender
or of the offense with which the person is ,charged.
CertifiedDocumentNumber:71110358-Page10of13
16.4. IT IS ORDERED pursuant to §153.076(b-1), Texas Family Code, that each
conservator of J I G AND A G has the
duty to infonn the other conservator of the children if the conservator:
16.4.1. Establishes a residence with a person who the conservator knows is the
subject of a final protective order sought by an individual other than the
conservator that is in effect on the date the residence with the person is
established; pursuant to §153.076(b-l )(1), Texas Family Code, or
Teqxuary OnIars (1aIainn)
Page 10 May 24, 2016
16.4.2. Resides with, or allows unsupervised access to a child by, a person who is
the subject of a final protective order sought by the conservator after the
expiration of the 60 day period following the date the final protective order
is issuedi pursuant to § 153.076(b-1 )(2), Texas Family Code, or
16.4.3. Is the subject of a final protective order issued after the date of the order
establishing conservatorship, pursuant to §153.076(b-1)(3), Texas Family
Code.
16.5. The notice required to be made under §153.076(b-1), Texas Family Code, must be
made as soon as practicable but not later than:
16.5.1. The 30th day after the date the conservator establishes residence with the
person who is the subject of the final protective order, if notice is required
by §153.076(b-l}(I), Texas Family Code or
16.5.2. The 90th day after the date the final protective order was issued, if notice is
required by subsection §153.076(b-l)(2), Texas Family Code above; or
16.5.3. The 30th day after the date the final protective order was issued, if notice is
required by subsection §153.076(b~1)(3), Texas Family Code above.
16.6. A CONSERVATOR COMl'vllTS AN. OFFENSE IF THE CONSERVATOR
. FAILS TO PROVIDE NOTICE IN THE MANNER REQUIRED BY
SUBSECTIONS (b) AND (e), OR S"UBSECTIONS (b-l)' AND (c-l), AS
APPLICABLE, OF §153.076, Texas Family Code. AN OFFENSE UNDER
TmS SUBSECfION (d) IS A CLASS C MISDEMEANOR
16.7. "YOU HAVE THE RIGHT UNDER §262.102(d), TEXAS FAMILY CODE,
TO BE REPRESENTED BY AN ATIORNEY. IF YOU ARE INDIGENT
AND UNABLE TO AFFORD AN ATTORNEY, YOU HAVE THE RIGHT
TO REQUEST THE APPO ~T OF AN AITORNEY BY
CONTACfING THE COURT AT 1C1JbDICIAL DISTRICT COURT OF
BARRIS COUNTY, THE NILE JUSTICE CENT~R, 1200
CONGRESS, HOUSTON J2, "17 .
IF YOU APPEAR IN OPP S TION TO,THE SmT, CLAIM INDIGENCE,
AND REQUEST THE APPOINTMENT OF AN ATTORNEY, THE COURT
CertifiedDocumentNumber:71110358-Page11of13
WILL REQUIRE YOU TO SIGN AN AFFIDAVIT OF INDIGENCE AND
THE COURT MAY HEAR EVIDENCE TO DETERMINE IF YOU ARE
INDIGENT. IF THE COURT DETERMINES YOU ARE INDIGENT AND
ELIGIBLE FOR APPOINTMENT OF AN ATTORNEY, THE COURT
WILL APPOINT AN ATTORNEY TO REPRESENT YOU."
Temporary Ordell (IaIeIm)
Page 11 May 24. 2016
17. Dismissal Date and Notice of Status Hearing
Pursuant to §263.306(1l), Texas mily Code, the Court,determincs that the date for
dismissal of this cause shall be . 7. .
IT IS ORDERED that . cause is s for a tatus Haring, jursnant to §~OI
Texas ~ode, on (;4 at ~! :WQ'clo .m.
in the ~ uudicial District of Harris ounty in Houston, Texas.
18. All said TEMPORARY ORDERS shall continue in force during the pendency of this
suit or until further order of the Court.
SIGNED ,this __ day odJl 1 3.2016 ,2016.
JUl 1.A 2016 . -..
SIGNED this _ _ day of . , 2016.
JUDGE PRESIDING
CertifiedDocumentNumber:71110358-Page12of13
Tempormy 0nIeIs (faJalnn)
Pag812 May 24. 2016
.
NOTICE: TIDS DOCUMENT
CONTAINS SENSITIVE DATA
MICHAEL EJEH 176-7
LOREE GEISELHART 176-7
CAUSE NO. 2016-03202J
IN THE INTEREST OF IN THE DISTRICT COURT OF
J I G
HARRIS COUNTY, TEXAS
A G
CHILDREN 315TH JUDICIAL JUVENILE DISTRICT
CERTIFICATE OF SERVICE REGARDING
TRCP RULE 21 SERVICE OF ORDERS
Parties subject of this suit received or will be sent a true and correct copy of the above conformed order signed by this
Court, or waived their right to receive it, as evidenced by their signature below.
Ryan J. Mitchell
Attorney and Guardian Ad Litem for the Children Attorney Ad Litem for the Mother, A M D
FAJ(:713-583-4877 FAJ(: 832-369-2919
waived by fax hand delivery waived by fax hand delivery
by Certified Mail, Return Receipt Requested by Certified Mail, Return Receipt Requested
no address known at this time no address known at this time
in accordance with the Texas Rules of Civil Procedure on """,'---''---I'-L---F--='-'''<.~'9-'
CertifiedDocumentNumber:71110358-Page13of13
Certificate of Service Regarding 2016-03202113 [5th
TRCP Rule 21 Service of Orders June 23, 2016 (FALEINN)
Page I
I, Chris Daniel, District Clerk of Harris
County, Texas certify that this is a true and
correct copy of the original record filed and or
recorded in my office, electronically or hard
copy, as it appears on this date.
Witness my official hand and seal of office
this May 15, 2018
Certified Document Number: 71110358 Total Pages: 13
Chris Daniel, DISTRICT CLERK
HARRIS COUNTY, TEXAS
In accordance with Texas Government Code 406.013 electronically transmitted authenticated
documents are valid. If there is a question regarding the validity of this document and or seal
please e-mail support@hcdistrictclerk.com