in the Interest of C.H and A.H.

In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-19-00170-CV
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IN THE INTEREST OF C.H. AND A.H.
__________________________________________________________________
On Appeal from the 418th District Court
Montgomery County, Texas
Trial Cause No. 17-09-11182-CV
__________________________________________________________________
MEMORANDUM OPINION
K.K. appeals the trial court’s order terminating her parental rights. In seven
issues, K.K. challenges the legal and factual sufficiency of the evidence supporting
the best interest finding, as well as the termination grounds specified in section
161.001(b)(1)(D), (E), (O), and (P), and complains that the trial court abused its
discretion by not allowing three witnesses to testify on K.K.’s behalf and not
granting additional time to place the children with family. See Tex. Fam. Code Ann.
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§ 161.001(b)(1)(D), (E), (O), (P), (b)(2). We affirm the trial court’s order terminating
K.K.’s parental rights.
BACKGROUND
On March 4, 2019, the trial court called the case for trial. K.K.’s counsel stated
that she was not ready to proceed with trial and asked for a reset, but counsel stated
that she was ready to proceed as to status documents. The Department called K.K.
to the stand, and she testified that she is the children’s mother and provided the
children’s dates of birth. The trial judge then stated, “As much as I hate to do it,
everybody announced ready and we started evidence in the matter, but I really think
we[’d] better recess. . . .” The trial court noted that K.K.’s counsel was not feeling
well and reset the case.
When the proceeding resumed on May 15, 2019, the trial court conducted a
hearing on K.K.’s motion for continuance, in which K.K. asserted that a home study
of the children’s maternal grandmother had been approved. K.K.’s counsel stated
that she had not seen a copy of the study, but requested time to obtain a copy and
then suggested that the case could “perhaps . . . proceed to mediation[.]” The attorney
for the children’s father, J.H., (who is not a party to this appeal) joined in the motion
and asserted that continuing the case would be in the children’s best interest. The
attorney for the Department argued that the case had been pending for twenty
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months, and that the motion for continuance had no verification or affidavit
regarding the source of the information about a home study of the maternal
grandmother, from whom the information came, or precisely what information
K.K.’s counsel had received. The Department’s counsel also asserted that the
Department was unaware of any approved home study for the maternal grandmother.
K.K.’s counsel called Department case worker Victoria Warmuth to testify at
the hearing. Warmuth testified that she had been in contact with the children’s
maternal grandmother, who resides in Florida, as well as the case worker in Florida.
Warmuth explained that she did not receive notice of a home study regarding the
maternal grandmother being approved while she was the case worker. Warmuth
testified that because the maternal grandmother’s own children had been removed
and she had been involved with “several people who have been physically violent
with her,” Warmuth had concerns about placing the children with her.
CPS conservatorship caseworker Brenda Lara testified that she is the current
caseworker for the children. Lara testified that as of the day before trial, the
Department had not received the results of the home study regarding the maternal
grandmother.
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The Department’s supervisor Kimberly Rodgers-Porter1 also testified at the
hearing on the motion for continuance. Rodgers-Porter testified that the Department
had not received notice that a home study had been approved. According to Rodgers-
Porter, the study was “still pending.” Rodgers-Porter testified that she believed
moving forward with the trial was in the children’s best interest. Rodgers-Porter
testified that the allegation in K.K.’s motion for continuance regarding a relative
home study was untrue.
After Rodgers-Porter testified, K.K.’s counsel asked to call the maternal
grandmother and the Department’s supervisor in Florida by phone as witnesses,
which the trial court denied. K.K. then called CASA’s guardian ad litem, Susan
Munkres. Munkres testified that the Department was still awaiting a determination
regarding the maternal grandmother. Munkres also testified that the maternal
grandmother has “a history of at least 15 years of abusive relationships with men.”
The trial judge noted that the issue at trial would be whether parental rights should
be terminated and denied the motion for continuance.
When trial on the merits began, the Department called CPS investigator
Daniel Willbur to testify. Willbur explained that when the case was assigned to him,
the Department was concerned that the children’s father, J.H., had been using them
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Lara explained that Rodgers-Porter is her supervisor.
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“to make pornography[,]” and the FBI was investigating. Willbur testified that he
prepared the affidavit in support of removal. According to Willbur, K.K. was
incarcerated on a drug-related charge at that time, and she refused to tell Willbur
where the children were. Willbur explained that when he spoke with K.K., she stated
that she did not believe J.H. would have committed the crimes of which he was
accused.
K.K. testified that she stopped using drugs when she was pregnant with A.H.,
but she resumed using drugs in 2017 after J.H. was incarcerated. K.K. explained that
in 2017, she had lost everything and was living in her truck with the children.
According to K.K., the longest period of time she has held a job since the children’s
birth is six months. K.K. testified that in August 2017, she was arrested for
manufacturing and possession of methamphetamines, and she pleaded guilty and
received ten years of deferred adjudication community supervision. K.K. explained
that she was told that A.H. tested positive for methamphetamine. K.K. testified that
she was incarcerated when the Department became involved. K.K. also testified that
she was charged with criminal trespass in December 2017. K.K. explained that she
has been diagnosed with post-traumatic stress disorder, anxiety, and depression.
According to K.K., the children were in J.H.’s care when the FBI investigation
began. K.K. testified that if she had known about the pornography, she would not
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have left the children in J.H.’s care. K.K. agreed that she did not have possession of
the children for approximately six or seven months. K.K. explained that the services
she did for the Department have helped her. According to K.K., being with her is in
the children’s best interest.
Munkres testified that she has visited the children at least monthly since the
case began. According to Munkres, the children were initially tearful, frightened,
and afraid of J.H., but they are now “healthy and thriving” and can express their
feelings. Munkres explained that A.H. reported that J.H. had rubbed his sexual organ
against C.H. Munkres also testified that A.H. reported that he had told K.K. what
J.H. was doing, and K.K. told A.H. to tell his father no and said “he’s not supposed
to do that.” Munkres testified that she believes K.K. “failed to protect the children
and . . . was aware that something was happening to the children and she did not stop
it.” Munkres reported that C.H. had also made outcry statements regarding her
parents to Warmuth and to the therapist. Munkres explained that she is concerned
about K.K.’s ability to protect the children because she has been with abusive
partners, continually used drugs, lacks employment, and does not have stable
housing. Munkres testified that CASA recommends termination of the parental
rights of K.K. and J.H. Munkres testified that she recommended termination of
K.K.’s rights due to issues of safety and stability. Munkres explained that K.K. has
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not demonstrated that she can make wise decisions regarding the people in the
children’s lives. According to Munkres, the children’s current caregivers want to
adopt them, and the children want to stay with them.
Warmuth testified that she was assigned to the case regarding the children in
September 2017, when K.K. was incarcerated for manufacturing methamphetamine
with intent to deliver. According to Warmuth, K.K. became incarcerated three more
times during the pendency of the case. Warmuth testified that K.K. missed
approximately twenty-five drug tests between 2018 and 2019. Warmuth explained
that K.K.’s drugs of choice were methamphetamine and alcohol, and K.K. had not
demonstrated that she has a stable residence or stable employment.
According to Warmuth, both children disclosed physical and sexual abuse,
but the children are now excited about school and the future. Warmuth testified that
A.H. outcried to her that J.H. had touched his bottom and had touched and undressed
C.H. According to Warmuth, C.H. outcried that J.H. had undressed her, digitally
penetrated her, and touched himself in front of her. Warmuth testified that C.H.
reported the abuse to K.K., and K.K. told her that J.H. was not supposed to do that
and instructed her to tell J.H. he cannot do that. Warmuth opined that K.K. is unable
to keep the children safe and to meet their needs, and she testified that the children
are doing “really well[]” in their current placement and are happy to be there.
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According to Warmuth, permanently severing the connection between K.K. and the
children is in the children’s best interest. Warmuth explained that unrelated adoption
is the Department’s permanency goal for the children.
K.K.’s counsel sought to call three witnesses to testify on K.K.’s behalf: Lucia
DePaoli, Ryland Fowler, and Michelle Hansford. The Department objected to each
of the witnesses, asserting that they had not been timely disclosed before trial. K.K.’s
counsel responded that she disclosed the witnesses on her second supplemental
response to the Department’s request for disclosure, which the record reflects was
filed on May 14, 2019, and asserted that the witnesses were not a surprise to the
Department. The trial judge stated, “Surprise is not an issue. They need to have a
neat list of who you intend to present as witnesses.” K.K.’s counsel stated that it
would have been impossible to disclose the witnesses in 2017 when the Department
made its request for disclosure, but conceded that she “could have maybe disclosed
it a little bit sooner[.]” The trial court sustained the Department’s objection, and
K.K.’s counsel then made an offer of proof.
During the offer of proof, Fowler testified that she is K.K.’s primary
counselor, and she explained that K.K. has actively participated in counseling.
Fowler testified that Santa Maria Hostel has a place for K.K. if she were to obtain
custody of the children, and K.K. would continue with counseling “and then
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outpatient and transitional living.” Fowler explained that if the trial judge ordered a
monitored return, Santa Maria Hostel would work with CPS. Lucia DePaoli testified
during the offer of proof that she is the executive program director and executive
program director of admissions at the Jacquelyn facility at Santa Maria Hostel.
DePaoli explained that if the trial judge returned the children to K.K., Santa Maria
would have an apartment available for K.K., and she explained that the facility is a
safe and secure environment for children. During the offer of proof, Michelle
Hansford stated that she works with Santa Maria and is also a volunteer parent
advocate with the Department. Hansford explained that she was asked to meet with
K.K. two months ago because her job entails advocating on behalf of birth parents.
According to Hansford, K.K. is focused on her recovery and learning about
parenting skills and protective factors, and she opined that Santa Maria is a safe
environment for K.K. and the children.
K.K. called licensed chemical dependency counseling intern Melissa Porter
to testify. Porter testified that she is K.K.’s peer recovery support specialist at Santa
Maria Hostel, and she provides services such as “meetings, bus cards, employment,
. . . education, housing, support in court, probation, any appointments, [and] anything
that will hinder [K.K.] from her recovery. . . . According to Porter, an apartment is
available for K.K. and the children if the children were returned to K.K. Porter also
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explained that the facility offers parenting, nutrition, GED, and other groups and
classes that could be required by the Department or probation. Porter testified that
Santa Maria provides job training programs and helps graduates of those programs
to obtain employment.
K.K. testified that she did not know about J.H.’s offense and she was not living
with the children when it occurred. K.K. testified that she first became aware of the
pornographic activity when she was asked to meet with an FBI agent. K.K. testified
that neither of the children had told her about the pornographic activity before she
spoke with the FBI agent. According to K.K., she was reluctant to take the children
for a forensic examination because she did not “want it sticking in [C.H.’s] head that
that happened, not knowing the severity of the situation.” K.K. testified that she has
been working with the staff at Santa Maria, and she can provide the children with a
safe and drug-free environment. K.K. explained that she has been drug free for seven
months; she has a sponsor and regularly attends AA meetings; and she has actively
participated in all her drug addiction therapy.
ISSUES ONE, TWO, THREE, FOUR, AND FIVE
In issue one, K.K. contends that the evidence was legally and factually
insufficient to demonstrate that termination of her parental rights is in the children’s
best interest. See Tex. Fam. Code Ann. § 161.001(b)(2). In issue two, K.K. contends
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that the evidence was legally and factually insufficient to support termination of her
parental rights under section 161.001(b)(1)(D) of the Family Code, and in issue
three, K.K. argues that the evidence was legally and factually insufficient to support
termination under section 161.001(b)(1)(E). See id. § 161.001(b)(1)(D), (E). In issue
four, K.K. challenges the legal and factual sufficiency of the evidence supporting
termination of her parental rights under section 161.001(b)(1)(O), and in issue five,
she challenges the legal and factual sufficiency of the evidence under section
161.001(b)(1)(P). See id. § 161.001(b)(1)(O), (P). We address issues one, two, three,
four, and five together.
Under legal sufficiency review, we review all the evidence in the light most
favorable to the finding to determine whether “a reasonable trier of fact could have
formed a firm belief or conviction that its finding was true.” In the Interest of J.F.C.,
96 S.W.3d 256, 266 (Tex. 2002). We assume that the factfinder resolved disputed
facts in favor of its finding if a reasonable factfinder could, and we disregard all
evidence that a reasonable factfinder could have disbelieved or found to have been
incredible. Id. If no reasonable factfinder could form a firm belief or conviction that
the matter that must be proven is true, the evidence is legally insufficient. Id.
Under factual sufficiency review, we must determine whether the evidence is
such that a factfinder could reasonably form a firm belief or conviction about the
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truth of the Department’s allegations. Id. We give due consideration to evidence that
the factfinder could reasonably have found to be clear and convincing. Id. We
consider whether disputed evidence is such that a reasonable factfinder could not
have resolved that disputed evidence in favor if its ruling. Id. If, in light of the entire
record, the disputed evidence that a reasonable factfinder could not have credited in
favor of the finding is so significant that a factfinder could not reasonably have
formed a firm belief or conviction, the evidence is factually insufficient. Id.
The decision to terminate parental rights must be supported by clear and
convincing evidence, i.e., “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; In the Interest of J.L.,
163 S.W.3d 79, 84 (Tex. 2005). The movant must show that the parent committed
one or more predicate acts or omissions and that termination is in the child’s best
interest. See Tex. Fam. Code Ann. § 161.001; see also In the Interest of J.L., 163
S.W.3d at 84. We will affirm a judgment if any one of the grounds is supported by
legally and factually sufficient evidence and the best interest finding is also
supported by legally and factually sufficient evidence. In the Interest of C.A.C., Jr.,
No. 09-10-00477-CV, 2011 WL 1744139, at *1 (Tex. App.—Beaumont May 5,
2011, no pet.) (mem. op.). However, when, as here, a parent challenges a trial court’s
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findings under section 161.001(b)(1)(D) or (E), we must review the sufficiency of
those grounds as a matter of due process and due course of law. In the Interest of
N.G., 577 S.W.3d 230, 235 (Tex. 2019) (per curiam).
Section 161.001(b)(1)(D) of the Family Code allows for termination of a
parent’s rights if the trier of fact finds by clear and convincing evidence that the
parent has “knowingly placed or knowingly allowed the child to remain in conditions
or surroundings which endanger the physical or emotional well-being of the child[.]”
Tex. Fam. Code Ann. § 161.001(b)(1)(D). Section 161.001(b)(1)(E) allows for
termination if the trier of fact finds by clear and convincing evidence that the parent
has “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[.]” Id.
§ 161.001(b)(1)(E). “[A] parent’s use of narcotics and its effect on his or her ability
to parent may qualify as an endangering course of conduct.” In the Interest of J.O.A.,
283 S.W.3d 336, 345 (Tex. 2009). A parent’s conduct in the home can create an
environment that endangers the child’s physical and emotional well-being. In the
Interest of J.T.G., 121 S.W.3d 117, 125 (Tex. App.—Fort Worth 2003, no pet.). “The
factfinder may infer from past conduct endangering the child’s well-being that
similar conduct will recur if the child is returned to the parent.” In the Interest of
M.R.J.M., 280 S.W.3d 494, 502 (Tex. App.—Fort Worth 2009, no pet.).
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Regarding the children’s best interest, we consider a non-exhaustive list of
factors: (1) the desires of the child; (2) emotional and physical needs of the child
now and in the future; (3) emotional and physical danger to the child now and in the
future; (4) parental abilities of the individuals seeking custody; (5) programs
available to assist these individuals to promote the best interest of the child; (6) plans
for the child by these individuals or by the agency seeking custody; (7) stability of
the home or proposed placement; (8) acts or omissions of the parent which may
indicate that the existing parent-child relationship is not proper; and (9) any excuse
for the acts or omissions of the parent. Holley v. Adams, 544 S.W.2d 367, 371-72
(Tex. 1976); see Tex. Fam. Code Ann. § 263.307(b). No particular Holley factor is
controlling, and evidence of one factor may be sufficient to support a finding that
termination is in the children’s best interest. See In the Interest of A.P., 184 S.W.3d
410, 414 (Tex. App.—Dallas 2006, no pet.). The best interest determination may
rely on direct or circumstantial evidence, subjective facts, and the totality of the
evidence. See In the Interest of N.R.T., 338 S.W.3d 667, 677 (Tex. App.—Amarillo
2011, no pet.).
The trial judge heard evidence that K.K. had left the children in the care of
J.H., who was using the children to make pornographic videos. The trial judge also
heard evidence that both A.H. and C.H. had made outcries regarding sexual abuse,
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including an outcry to K.K., and K.K. responded by instructing the children to tell
J.H. he was not allowed to do that. Additionally, the trial judge also heard evidence
that K.K. had a history of abusing methamphetamines and alcohol, had been
incarcerated for manufacturing and possessing methamphetamines, and lacked
stable housing and employment. The trial judge further heard that K.K. had been
charged with criminal trespass. In addition, the trial judge heard evidence that A.H.
tested positive for methamphetamine. The trial court also heard evidence that K.K.
had lived in her vehicle with the children and had been with abusive partners.
Viewing the evidence in the light most favorable to the trial judge’s findings, we
conclude that the trial judge could reasonably have formed a firm belief or conviction
that K.K. (1) knowingly placed or knowingly allowed the children to remain in
conditions or surroundings which endangered their physical or emotional well-being
and (2) engaged in conduct or knowingly placed the children with persons who
engaged in conduct that endangered the children’s physical or emotional well-being.
See Tex. Fam. Code Ann. § 161.001(b)(1)(D), (E); In the Interest of J.F.C., 96
S.W.3d at 266; In the Interest of J.T.G., 121 S.W.3d at 125.
With respect to the children’s best interest, the trial court heard evidence that
(1) K.K. is unable to provide the children with safety and stability, (2) that the
children are doing well in their current placement, and (3) termination of K.K.’s
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parental rights is in the children’s best interest. The trial court also heard evidence
that K.K. has a history of drug and alcohol abuse, and she does not have stable
housing or employment. Prompt and permanent placement of the children in a safe
environment is presumed to be in their best interest. See Tex. Fam. Code Ann. §
263.307(a). As the sole judge of the credibility of the witnesses and the weight to be
given to their testimony, the trial court could reasonably conclude that termination
of K.K.’s parental rights was in the best interest of C.H. and A.H. See id. §§
161.001(b)(2), 263.307(a), (b); see also In the Interest of J.F.C., 96 S.W.3d at 266;
Holley, 544 S.W.2d at 371-72.
We conclude that the Department established, by clear and convincing
evidence, that K.K. committed the predicate acts enumerated in sections
161.001(b)(1)(D) and (E) and that termination of K.K.’s parental rights is in the best
interest of C.H. and A.H. See Tex. Fam. Code Ann. § 161.001(b)(1)(D), (E), (2); In
the Interest of C.A.C., Jr., 2011 WL 1744139, at *1. Accordingly, we overrule issues
one, two, and three. Having concluded that the evidence was legally and factually
sufficient to support the trial court’s findings as to subsections 161.001(b)(1)(D),
(E), and (2), we need not reach issues four and five, in which K.K. challenges the
sufficiency of the evidence supporting the trial court’s findings under sections
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161.001(b)(1)(O) and (P). See In the Interest of N.G., 577 S.W.3d at 235; In the
Interest of C.A.C., Jr., 2011 WL 1744139, at *1; see also Tex. R. App. P. 47.1.
ISSUE SIX
In issue six, K.K. asserts that the trial court abused its discretion when it
refused to allow Fowler, DePaoli, and Hansford to testify on her behalf. We review
the trial court’s decision to admit or exclude evidence for abuse of discretion. In the
Interest of J.P.B., 180 S.W.3d 570, 575 (Tex. 2005). A trial court abuses its
discretion when it acts without reference to any guiding rules or principles. Downer
v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985).
A party who fails to timely make, amend, or supplement a discovery response
may not offer the testimony of a non-party witness who was not timely identified
unless the court finds that (1) there was good cause for the failure to timely disclose
or (2) the failure will not unfairly surprise or prejudice the other parties. In the
Interest of A.C., No. 02-18-00129-CV, 2018 WL 5273931, at *9 (Tex. App.—Fort
Worth Oct. 24, 2018, pet. denied) (mem. op.) (citing Tex. R. Civ. P. 193.6(a)). As
discussed above, the record reflects that K.K.’s counsel did not timely disclose the
identities of the three witnesses before trial, and counsel admitted that she could have
disclosed the witnesses sooner. Therefore, we conclude that the trial court did not
err by excluding the testimony. See Tex. R. Civ. P. 193.6(a); In the Interest of A.C.,
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2018 WL 5273931, at *9. Furthermore, we have already concluded that the evidence
was legally and factually sufficient to support the trial court’s best interest finding
and the predicate acts in section 161.001(b)(1)(D) and (E). K.K.’s offer of proof
demonstrated that the three excluded witnesses would have offered testimony
regarding sections 161.001(b)(1)(O) and (P). Therefore, even if the trial court had
erred, K.K. did not demonstrate that the trial court’s exclusion of the testimony
resulted in the rendition of an improper judgment or prevented her from properly
presenting her case to this Court. See Tex. R. App. P. 44.1(a)(1). Accordingly, we
overrule issue six. We affirm the trial court’s order terminating K.K.’s parental
rights.
ISSUE SEVEN
In issue seven, K.K. argues that the trial court abused its discretion by not
allowing additional time to place the children with family because a home study had
become available. We review a trial court’s decision regarding a continuance for
abuse of discretion; that is, whether the trial court’s decision was arbitrary,
unreasonable, and made without reference to any guiding rules and principles See In
the Interest of E.L.T., 93 S.W.3d 372, 374-75 (Tex. App.—Houston [14th Dist.]
2002, no pet.). A continuance shall not be granted “except for sufficient cause
supported by affidavit, or by consent of the parties, or by operation of law.” Tex. R.
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Civ. P. 251. If a motion for continuance is not verified, we must presume that the
trial court did not abuse its discretion by denying the motion. In the Interest of E.L.T.,
93 S.W.3d at 375.
The record reflects that K.K.’s written motion for continuance, in which she
requested additional time to acquire a copy of the allegedly newly discovered home
study, was not verified or supported by affidavit. Therefore, we presume that the
trial court did not abuse its discretion by denying the motion. See id. In addition,
none of the witnesses testified that a home study of the maternal grandmother had
been approved; rather, all of the witnesses testified that, to the Department’s
knowledge, no home study had been approved. For all these reasons, we cannot
conclude that the trial court abused its discretion by denying K.K.’s motion for
continuance. We therefore overrule issue seven. We affirm the trial court’s order
terminating K.K.’s parental rights.
AFFIRMED.
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STEVE McKEITHEN
Chief Justice
Submitted on August 19, 2019
Opinion Delivered October 17, 2019
Before McKeithen, C.J., Kreger and Johnson, JJ.
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