P. A. G. v. Texas Department of Family and Protective Services

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
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P.A.G., No. 08-14-00231-CV
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Appellant, Appeal from
§
v. 112th District Court
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TEXAS DEPARTMENT OF FAMILY of Pecos County, Texas
AND PROTECTIVE SERVICES, §
(TC # P-11572-112-CV)
Appellee. §
§
OPINION
PAG appeals the termination of her parental rights to her daughter, MG, and her son,
AG-B. The appeal is a companion case to Cause Number 08-14-00224-CV in which AG-B’s
father appeals the termination of his parental rights. Because the cases were tried together and are
related, we will detail in both opinions the circumstances of each parent. Indeed, it was their
ongoing relationship that created the basis for many of the opinions offered at trial.
In three issues for review, Appellant challenges the legal and factual sufficiency of the
evidence to support the trial court’s findings of the statutory predicates for termination and that
termination is in the best interest of the children. For the reasons that follow, we affirm.
1
PARENTAL TERMINATION
A parent's rights may be involuntarily terminated through proceedings brought under
Section 161.001 of the Texas Family Code. See TEX.FAM.C ODE ANN. § 161.001 (West 2014).
Under this provision, the petitioner must (1) establish one or more of the statutory acts or
omissions enumerated as grounds for termination, and (2) prove that termination is in the best
interest of the child. See id. Both elements must be established and termination may not be
based solely on the best interest of the child as determined by the trier of fact. Texas Department
of Human Services v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987).
The natural right of a parent to the care, custody, and control of their children is one of
constitutional magnitude. Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985); see also Santosky v.
Kramer, 455 U.S. 745, 758–59, 102 S. Ct. 1388, 1397, 71 L. Ed. 2d 599 (1982) (acknowledging that
a parent's rights to “the companionship, care, custody, and management” of their children are
constitutional interests, “far more precious than any property right”). Not only is a parent's
interest in maintaining custody of and raising her children “paramount;” it is quite possibly the
oldest fundamental liberty recognized by our courts. See In the Interest of M.S., E.S., D.S., S.S.,
and N.S., 115 S.W.3d 534, 547 (Tex. 2003)(noting that Texas courts recognize that “a parent's
interest in maintaining custody of and raising his or her child is paramount”); Troxel v. Granville,
530 U.S. 57, 65, 120 S. Ct. 2054, 2060, 147 L. Ed. 2d 49 (2000)(in discussing the constitutional
stature of parental rights, the United State Supreme Court said, “the interest of parents in the care,
custody, and control of their children—is perhaps the oldest of the fundamental liberty interests
recognized by this Court”); see also In re M.S., 115 S.W.3d at 549 (“Termination of parental rights
is traumatic, permanent, and irrevocable.”). Although parental rights are of constitutional
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magnitude, they are not absolute. In the Interest of 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.”).
Burden of Proof
Because of the importance of parental rights, and the severity and permanency of
termination, the quantum of proof required in a termination proceeding is elevated from a
preponderance of the evidence to clear and convincing evidence. Santosky, 455 U.S. at 747, 102
S.Ct. at 1391; accord Holick, 685 S.W.2d at 20-21; see In re M.S., 115 S.W.3d at 547 and In the
Interest of D.S.P. and H.R.P., 210 S.W.3d 776, 778 (Tex.App.--Corpus Christi 2006, no pet.)
(cases recognizing that involuntary termination of parental rights is a drastic remedy which divests
the parent and child of all legal rights, privileges, duties, and powers normally existing between
them, except for the child's right to inherit from the parent.); see also In the Interest of B.L.D. and
B.R.D., 113 S.W.3d 340, 353-54 (Tex. 2003)(noting that because of the severity and permanency
of termination, due process requires the party seeking to terminate parental rights prove the
necessary elements by the heightened burden of proof of clear and convincing evidence).
“Clear and convincing evidence” means 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 2008); see In the Interest of J.F.C., 96
S.W.3d 256, 263 (Tex. 2002); see also In the Interest of J.A.J., 243 S.W.3d 611, 616 (Tex. 2007)
(contrasting the standards applied in termination proceedings and the standards applied in
modification proceedings). This intermediate standard falls between the preponderance of
evidence standard of ordinary civil proceedings and the reasonable doubt standard of criminal
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proceedings. State v. Addington, 588 S.W.2d 569, 570 (Tex. 1979); In the Interest of D.T., 34
S.W.3d 625, 630 (Tex.App.--Fort Worth 2000, pet. denied) (op. on reh'g). Although the proof
must be more than merely the greater weight of the credible evidence, there is no requirement that
the evidence be unequivocal or undisputed. Addington, 588 S.W.2d at 570.
Standards of Review
The Supreme Court has clearly articulated the applicable standards of legal sufficiency
review in termination cases. Accordingly, we consider all of the evidence in the light most
favorable to the trial court's 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.P.B., 180 S.W.3d
570, 573 (Tex. 2005), quoting In re J.F.C., 96 S.W.3d at 266. We give deference to the fact
finder's conclusions, indulge every reasonable inference from the evidence in favor of that finding,
and presume the fact finder resolved any disputed facts in favor of its findings, so long as a
reasonable fact finder could do so. Id.; In re J.F.C., 96 S.W.3d at 266. We disregard any
evidence that a reasonable fact finder could have disbelieved, or found to have been incredible, but
we do not disregard undisputed facts. In re J.P.B., 180 S.W.3d at 573; In re J.F.C., 96 S.W.3d at
266. A legal sufficiency or no evidence point will only be sustained when the record discloses
one of the following: (1) a complete absence of evidence of a vital fact; (2) the court is barred by
rules of law or evidence from giving weight to the only evidence offered to prove a vital fact; (3)
the evidence offered to prove a vital fact is no more than a scintilla of evidence; or (4) the evidence
establishes conclusively the opposite of a vital fact. See Swinney v. Mosher, 830 S.W.2d 187, 194
(Tex.App.--Fort Worth 1992, writ denied).
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Statutory Predicates
The termination order here was based on TEX.FAM.CODE ANN. § 161.001(D) and (E),
with the court finding that Appellant had:
 Knowingly placed or knowingly allowed the child to remain in conditions or surroundings
which endanger the physical or emotional well-being of the child (subsection D); and
 Engaged in conduct or knowingly placed the child with persons who engaged in conduct
which endangers they physical or emotional well-being of the child (subsection E).
Both subsections (D) and (E) require proof of endangerment, which means to expose to loss or
injury, or to jeopardize a child's emotional or physical health. Doyle v. Texas Department of
Protective and Regulatory Services, 16 S.W.3d 390, 394 (Tex.App.--El Paso 2000, pet. denied).
While endangerment means more than a threat of metaphysical injury or the possible ill effects of
a less-than-ideal family environment, it is not necessary that the conduct be directed at the child or
that the child actually suffer injury. Doyle, 16 S.W.3d at 394. Subsections (D) and (E) differ in
one respect: the source of the physical or emotional endangerment to the child. See In Interest of
B.S.T., 977 S.W.2d 481, 484 (Tex.App.--Houston [14th Dist.] 1998, no pet.); In Interest of S.H.A.,
728 S.W.2d 73, 83–84 (Tex.App.--Dallas 1987, writ ref'd n.r.e.). Subsection (D) requires a
showing that the environment in which the child is placed endangered the child's physical or
emotional health. Doyle, 16 S.W.3d at 394. Conduct of a parent or another person in the home
can create an environment that endangers the physical and emotional well-being of a child as
required for termination under Subsection D. Id.; see In re W.S., 899 S.W.2d 772, 776
(Tex.App.--Fort Worth 1995, no writ)(“environment” refers to the acceptability of living
conditions, as well as a parent's conduct in the home). Inappropriate, abusive, or unlawful
conduct by persons who live in the child's home or with whom the child is compelled to associate
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on a regular basis in his home is a part of the “conditions or surroundings” of the child's home
under subsection (D). In re M.R.J.M., 280 S.W.3d 494, 502 (Tex.App.--Fort Worth 2009, no
pet.). The fact finder may infer from past conduct endangering the child's well-being that similar
conduct will recur if the child is returned to the parent. Id. Thus, subsection (D) addresses the
child's surroundings and environment rather than parental misconduct, which is the subject of
subsection (E). Doyle, 16 S.W.3d at 394; B.S.T., 977 S.W.2d at 484; S.H.A., 728 S.W.2d at 84.
Under subsection (E), the cause of the danger to the child must be the parent's conduct
alone, as evidenced not only by the parent's actions but also by the parent's omission or failure to
act. Doyle, 16 S.W.3d at 395; B.S.T., 977 S.W.2d at 484; S.H.A., 728 S.W.2d at 83-84. The
conduct to be examined includes what the parents did both before and after the child was born. In
Interest of D.M., 58 S.W.3d 801, 812 (Tex.App.--Fort Worth 2001, no pet.); Dupree v. Texas
Department of Protective & Regulatory Services, 907 S.W.2d 81, 84 (Tex.App.--Dallas 1995, no
pet.). To be relevant, the conduct does not have to have been directed at the child, nor must actual
harm result to the child from the conduct. Id.; In Interest of C.D., 664 S.W.2d 851, 853
(Tex.App.--Fort Worth 1984, no writ). Additionally, termination under subsection (E) must be
based on more than a single act or omission; a voluntary, deliberate, and conscious course of
conduct by the parent is required. In Interest of K.M.M., 993 S.W.2d 225, 228
(Tex.App.--Eastland 1999, no pet.). The specific danger to the child's well-being need not be
established as an independent proposition, but may be inferred from parental misconduct. In
Interest of N.K., 99 S.W.3d 295, 300 (Tex.App.--Texarkana 2003, no pet.). Evidence of criminal
conduct, convictions, and imprisonment and its effect on a parent's life and ability to parent may
establish an endangering course of conduct. In re J.T.G., 121 S.W.3d at 133. Imprisonment
alone does not constitute an endangering course of conduct but it is a fact properly considered on
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the endangerment issue. Boyd, 727 S.W.2d at 533–34; In re R.W., 129 S.W.3d at 743-44.
Routinely subjecting a child to the probability that she will be left alone because her parent is in
jail, endangers the child's physical and emotional well-being. See In the Interest of S.D., 980
S.W.2d 758, 763 (Tex.App.--San Antonio 1998, pet. denied). However, “the relationship of the
parent and child, as well as efforts to improve or enhance parenting skills, are relevant in
determining whether a parent's conduct results in ‘endangerment’ under section 161.001(1)(E),
even where the parent is incarcerated.” In the Interest of D.T., 34 S.W.3d 625, 640
(Tex.App.--Fort Worth 2000, pet. denied).
Best Interest of the Children
A determination of best interest necessitates a focus on the child, not the parent. See In the
Interest of R.F., 115 S.W.3d 804, 812 (Tex.App.--Dallas 2003, no pet.). However, there is a
strong presumption that it is in the child's best interest to preserve the parent-child relationship.
Swate v. Swate, 72 S.W.3d 763, 767 (Tex.App.--Waco 2002, pet denied). The Texas Supreme
Court has enumerated certain factors which should be considered: the child's desires; the child's
emotional and physical needs now and in the future; the emotional and physical danger to the child
now and in the future; the parenting abilities of the individuals seeking custody; the programs
available to assist those individuals to promote the child's best interest; the plans for the child by
those individuals or the agency seeking custody; the stability of the home or proposed placement;
the parent's acts or omissions that may indicate that the existing parent-child relationship is not a
proper one; and any excuse for the parent's acts or omissions. Holley v. Adams, 544 S.W.2d 367,
372 (Tex. 1976) (“the Holley factors”). Also, permanence is of paramount importance in
considering a child's present and future needs. Dupree, 907 S.W.2d at 87.
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FACTUAL SUMMARY
Appellant and AG are the parents of MG. Appellant and CB are the parents of AB-G.
Appellant is the mother of four other children: 18-year-old twin girls (LM and AM)1, another child
whose name and parentage is unclear from the record 2 , and a 14-year old daughter (AP).
Appellant and CB moved in together when MG was only one month old.
Appellant’s History
Appellant has a history with the Department. In 1998 it found "reason to believe"3 she
had committed physical abuse of her daughter LM and in 1999 the Department found reason to
believe she had physically abused both of the twins, who were then five years old. Multiple
injuries were found to their faces and stomachs due to their mother’s striking them with a belt.
The Department records revealed that Appellant lacked patience with the children and lacked
developmental understanding of their needs. She would get angry when the children were hungry
and had difficulty controlling the twins. Appellant was under a lot of stress; she and her boyfriend
were unemployed and had financial problems. There was spousal abuse and during this time she
became pregnant. The children were removed and placed with relatives. Appellant was ordered
to complete individual counseling, family counseling, domestic violence classes and parenting
classes. She completed all of her requirements and the children were returned to her in 2000. In
2005, allegations of physical abuse by Appellant toward the twins and AP were ruled out. In
1
The twins, AP, MG, and AB-G have different fathers.
2
One witness referred to a child who was a sibling of the twins. Another witness testified that Appellant had six
children by five fathers. One of these statements cannot be true. It is most likely that this unidentified child is the
result of the 1999 pregnancy mentioned above.
3
"Reason to believe" means that the Department has a preponderance of evidence that abuse occurred under the
Texas Family Code’s definition of abuse or neglect.
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2007, she was in a relationship with a man whom the Department believed was physically abusing
LM and displaying inappropriate and excessive discipline. While Appellant remembered the man
-- AP’s father -- she did not remember the CPS investigation. The same boyfriend caused another
investigation in January 2008 for neglectful supervision of the twins, then-aged 13, and AP,
then-aged 7. The couple was living in an unsafe environment where drug addicts regularly
congregated. Appellant had been warned to keep the children away “from this drug addict barn”
but the family continued to live there. Appellant was using heroin and CPS believed she was an
unsafe caregiver. The children were at risk for injury due to Appellant’s ongoing drug abuse and
poor parenting decisions. At that point, the twins were placed with their father and AP was
staying with her grandmother. We cannot ascertain from the record where the unidentified child
was during this time.
In March 2009, the Department received an intake alleging that Appellant was using drugs.
The Department believed her drug use could greatly diminish her capacity to care for the children.
Department records report that she left one of the children with a known sex offender. A second
intake alleged that the children were placed at substantial risk of serious harm because Appellant
was not providing adequate supervision. The third intake alleged Appellant abandoned the
children, leaving them with individuals who no longer wished to care for them and sought police
assistance.
An investigation revealed Appellant left the children with inappropriate caregivers. In
one instance, the house burned down while the children were asleep. Appellant continued to use
heroin and the girls have seen her overdose at least twice. The twins were again placed with their
father and AP was placed with her grandmother. Appellant was in a rehabilitation facility in
El Paso and had no access to her daughters. The report found that Appellant had a criminal
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history including driving while intoxicated, theft by check, and possession of a controlled
substance.
Appellant also has a history of choosing partners who engage in domestic violence. Her
relationship with the twins’ father resulted in domestic violence, as did her relationship with AP’s
father. She was less forthright when discussing her relationship with CB. She claimed that there
had been no physical violence in their relationship until MG was grievously injured. She told the
investigator in the emergency room that there had been no violence in the relationship although
there had been a lot of arguing. She later admitted that he had slapped her and elbowed her in the
eye, causing bruising. She admitted to slapping, scratching and biting CB.
At trial, Appellant testified that she had been admitted to a drug rehabilitation program.
She successfully completed one after four unsuccessful attempts. Her drug of choice each time
was heroin but she has also used marijuana and crack cocaine. She stopped using heroin in 2010
but continued to use marijuana and crack until 2011.
Appellant dated CB for one month before she moved in with him. MG was only one
month old at the time. Tragedy struck just months later.
The Tragedy of MG
In November 2012, CB was charged with injury to a child, a second degree felony
enhanced to a first degree felony. He was convicted and at the time of the termination
proceedings, the criminal case was on appeal. The charges arose out of injuries to MG who was
then an eight-and-a-half month infant. She suffered a skull fracture and shaken baby syndrome
while she was at home alone with CB. She also suffered a stroke from this injury and required
extensive medical intervention in order to sustain her life, including G-tube feedings and a
tracheotomy. She is partially paralyzed on her left side and still suffers from seizures and other
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neurological conditions. She has eye damage, is blind in one eye, and while the doctor has said
she is unlikely to recover her vision, he has been unwilling to say that the damage is permanent.
As she has grown older, she has experienced developmental delays: 53% adaptive delay, 46%
expressive communication delay, 33% gross motor delay, and 60% fine motor delay. She receives
speech, occupational, and physical therapy, and is receiving help in strengthening her left hand.
On the day CB was arrested, drug tests resulted in positive findings for marijuana, cocaine
and methamphetamines. He admitted to marijuana and cocaine use, but denied ever using meth.
He has never been convicted for drug use, although he was convicted for possession of 85 pounds
of marijuana in 1996. He testified that it was not for his personal use. When asked whether he
intended to sell it, he explained that “it was mostly transportation.” He was placed on probation
for seven years, but the probation was revoked due to his cocaine and marijuana usage. He was
then sentenced to five years and ultimately served three years in the Texas Department of
Corrections. Appellant allowed CB to care for the infant even though she knew CB used cocaine
and marijuana.
There was a dispute about her discovery that MG was seriously hurt. She first claimed
that the child was in her swing and when she realized something was wrong, she attacked CB.
He, in turn, claimed she attacked while he was holding the baby.
Q: The truth is: The day of the -- the day that [MG] got injured, you were part of
that, weren't you? You attacked him while he held her, and that is the reason she
got injured; isn't that not true?
APPELLANT: That is not true.
Q. How can you say that, knowing that you attacked her [sic] with him holding her?
A. That is not true. Because the reason I attacked him was because I found my
daughter in a different state. My daughter had her face pushed in. My daughter's
head was in a different odd shape. My daughter was -- when I called her, my
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daughter was -- her eyeballs were going back, and she squeezed my finger. There
was something terribly wrong with my daughter. Whenever I found that out about
my daughter, I attacked this man because I knew that I had left him a perfect child;
and when I left -- when I came back, that was my same child but she was hurt and
he hurt her.
*****
I attacked him whenever he -- whenever I got there and I seen my child, I picked her
out of the swing. He took her from me. So, the baby was going back and forth,
back and forth; and it wasn't in my thought -- when I attacked him, I was not
thinking I'm going to attack [CB] while he's holding my child. It happened to --
when he took my child from me, he sat in the recliner and I was hovering over him
and I seen the face -- the look on his face, which told me that. Because of him,
[MG] was hurt. So, when he stood up, it happened to be that he had my child; and
that's when I attacked him because my mother instinct of -- to protect my child --
that I was upset that he had hurt my child oversurpassed [sic] me. I mean, it was an
instinct. That's what it was. It was instinct.
Q. An instinct that you forgot to mention to law enforcement and any medical
personnel when they were treating your daughter for almost dying?
A. At the time because my head was just all where everything had happened. I
didn't know what was going on. I mean, they had her -- I found my child in a state
that, Wow, like, you would have to -- you would have to walk in my shoes through
that to know what I'm trying to explain here.
As a result of MG’s injuries, CB was forbidden to have contact with any of the children.
AB-G was born in January 2013 and CB has seen him only once since his birth. There was also a
CPS case opened on Appellant due to MG’s injuries and she began working with Family Based
Safety Services. Eventually, CPS returned MG to Appellant and placed one of the twins, LM, as
the primary caretaker.
Removal of the Children
On Sunday, April 21, 2013, the Department received a priority one intake alleging
neglectful supervision of AB-G and MG. Appellant had reportedly left the children alone in their
apartment unsupervised. Law enforcement first responded to a call advising that the children
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were alone. They waited approximately ten minutes before Appellant returned. She admitted to
the case worker during questioning that she had left the two little ones with the twins and AP so
that she could visit CB. One of the twins said that their mother had left the home after she and her
sister did. But Appellant showed the caseworker text messages from the other twin threatening
that if she went to see CB, AB-G and MG would be left home alone and law enforcement would be
called. The Department was appointed temporary managing conservator of MG and AB-G on
April 22, 2013 and the children were placed in separate foster homes.
The family service plan of May 15, 2013 contains the following:
[Appellant] is not protective of [MG] and [AB-G]. She left them with
inappropriate caregivers who in turn left them alone in the apartment. The
children could have suffered from great harm and were placed at risk while being
left alone. Case was staffed for emergency removal placed [sic] on [Appellant]
being unprotective and the children being very vulnerable due to age. The family
has CPS history and were currently in open FBSS case and the department felt that
risks could no longer be controlled. [Appellant] may not be able to meet the
children's immediate needs since she places her own needs above the needs of the
children. [Appellant] continues to be in a relationship with [CB] despite the fact
that he caused serious injuries to [MG]. There was domestic violence between
[Appellant] and [CB]. [MG] is 1 year old and [AB-G] is 3 months old. Both of
them are unable to self-protect due to their age. Both of the children rely on adults
to meet all of their needs including dressing, hanging [sic], feeding, and all physical
and emotional development is dependent upon the care they receive from others.
[MG] is special needs due to the injuries she suffered from Shaken Baby
Syndrome. She takes seizure medication every day twice daily. She also has a
nurse that visits the home every day and she is in need of physical therapy due to
the paralysis she suffered from the brain injury. [Appellant] may be unable to
meet the children's needs since she places her own needs above their needs.
[Appellant] is not protective in that she continues to be in a relationship with [CB]
despite the fact that he caused [MG]’s injuries. [Appellant] has limited support
due to her negative relationships and complex family dynamic system.
[Appellant] has unrealistic expectations of the children in that she leaves them with
inappropriate caregivers in order to meet her needs above her [sic] own needs.
Risk factors included Appellant’s admission that CB continued to be a major distraction in her life.
There was a pattern indicating Appellant exercised poor judgment. The caseworker described the
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home as chaotic. As a result, a family service plan was created, requiring Appellant to: (1)
successfully complete a drug and alcohol assessment; (2) be honest with the provider and actively
participate in the assessment; (3) submit to and successfully complete a substance abuse treatment
program and counseling if recommended by the substance abuse assessment; (4) successfully
complete a psychological evaluation with provider Dr. Joe Jeffers and comply with any
recommendations; (5) participate in individual counseling and comply with any recommendations;
(6) participate in a face to face mental health evaluation with MHMR and comply with any
recommendations; (7) participate in random drug testing and alcohol testing at the request of the
Department; (8) maintain appropriate relationships with people and develop an appropriate
support system; (9) not associate with anyone who engages in or is involved in criminal activity or
drug seeking/using behavior; and (10) not associate with anyone involved in domestic violence.
The Department investigator testified at trial about the circumstances of removal.
A: Her first explanation was that she had left the children in care of her younger
daughter -- or the older daughter, twins [LM and AM] -- and then the younger
12-year-old at the time, [AP]. Her first explanation was that she had gone to tell
[CB] to stop bugging her. They were upset because she was going to see [CB]
because [he] had hurt [MG]. So, they were upset that she was going to see him. So,
they basically left the children alone; and then they called 9-1-1.
Q. You said that was her first story for why she left. What was her second story?
A. The second one was that she went to go get money to buy baby wipes.
Q: And was that her last story?
A: No.
Q: And what was the next one?
A: That she had gone to --
Q: I understand that it's a -- it's a sensitive issue. So, let me just put it this way: Did
she tell you -- I'm paraphrasing -- that she went to have sex with Mr. [B]?
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A: Yes.
Q: Okay. If the older daughters, the caregivers essentially, set Ms. [G] up by
leaving the children alone and then reporting to the police that it was she who had
done that, does this still raise concerns for us about Ms. [G] in that scenario?
A: Yes.
The case worker then explained that ordinarily, a single incident would not be grounds for an
emergency removal. This was different because Appellant continued to be in a relationship with
CB despite the injuries to MG and in disregard of the service plan that she not to associate with
anyone involved in domestic violence. The Department grew concerned that Appellant would
not protect the children. It also considered her previous CPS history because “history is the
greatest predictor of future abuse”.
Appellant’s Testimony
Appellant testified at trial. She claimed that she did not know CB was on drugs the
morning of the MG’s injuries because he did not act “funny” or “weird”. She trusted him. When
asked whether she continued her relationship with CB after her infant daughter was hurt, she
replied, “[n]ot a relationship, no.” But she admitted talking to him on a few occasions and
continuing to have a sexual relationship with him. She explained that because she would never let
him around her children, she would go to him at his hotel. She knew that she was not to have any
contact with CB, but she continued to see him, although her reasons changed. On the day she left
the little children with the twins, she planned to see CB because he had been stalking her and she
had received 97 calls from him that morning. On other occasions, she wanted to ask him why he
had committed this terrible act against her daughter.
15
Q: Okay. So, let me get this straight. You would go over and you would actually
approach [CB] at his hotel to ask him these questions, why he would hurt your
child; and then somehow y'all would end up having sex?
A: That's how it goes because that's humanity, and I can't -- I can't -- I really can't
explain that either.
Mary McBride, the caseworker through most of the case, testified as to other reasons Appellant
had given for continuing her relationship with CB:
I was speaking with Ms. [G] about her relationship with [CB] and why she
continued to have contact with him. I was -- had concerns about that. She said that
she was hooked like she was blind. He had her under some spell. She was just
hooked, and she couldn't see past that.
Q. So, basically, she said it wasn't her fault? Her behavior was not her fault --
A. Yes.
Retraction by One of the Twins
AM testified at trial concerning her thoughts when she left the babies home alone. She
wanted to hurt her mother because she was really upset that she intended to meet with CB. “So, I
mean -- I guess you could say subconsciously my intentions were to harm her. You know, I had
no intent of getting her kids removed.” While her twin had threatened to call CPS before, she had
not. She regretted they had argued that day before her mother left. AM wanted her baby brother
and sister to be with their mother because that’s where they needed to be.
And it's not fair that because of mine and my sister's actions, that they were taken
away from her when she did nothing wrong to them. She was -- she's a good
mother, and it's my fault -- mine and my sister's fault -- but I can only speak for
myself, and it's completely my fault that they were taken away from her.
Psychological Testimony
The court also heard testimony from Dr. Joe Jeffers, a clinical psychologist in private
practice in San Angelo, Texas. He was asked to perform a psychological evaluation on all of the
parents.
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Dr. Jeffers diagnosed Appellant as a victim of child sexual abuse, a victim of adult sexual
abuse by partner, and a victim of adult physical abuse by partner. Test scores indicated that she
has a mental age of 16.8 years and an IQ of 87, a score that falls within the low average range of
intellectual functioning. He recommended that she continue to participate in counseling and
parenting classes and that she practice a relapse prevention plan because of her previous history of
drug dependency. He also recommended participation in Safe Place, which is an organization
that specializes in information and education regarding domestic violence. This was important
because she had been the victim of domestic violence both emotionally, physically, and sexually.
He believed she needed a stable job and an adequate budget to be able to care for herself and her
children.
In his opinion, she needed to demonstrate some consistent steady progress in participating
and incorporating lessons from counseling, parenting, domestic violence classes -- not only to help
protect herself, but to protect her children -- and to be a more effective parent. His two
outstanding concerns were her decision-making skills and her judgment.
Dr. Jeffers related that domestic violence was a feature of Appellant’s relationship with the
twins’ father. The following exchange ensued:
Q. Would your assessment of her parenting abilities change if you knew that there
was also domestic violence with the fathers of two of her other children?
A. It would be an additional concern, obviously. And, again, I think it would
harken back to her perhaps broken radar as far as relationships are concerned, her
difficulty of protecting herself and possibly not recognizing the traumatizing
effects that children experience when they're exposed to domestic violence. So,
even if the children were not physically abused -- and I believe one of hers was
seriously abused -- children that grow up in that kind of environment suffer
psychological effects and consequences -- as did, I believe, [Appellant], who was
exposed to domestic violence as a child for the first six -- nine years of her life.
* * * * *
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Q: Would you say that Ms. [G]'s past history of repeated drug use -- sort of serial
drug use -- serial domestic violence relationships, serial CPS involvement is an
indicator of where she's likely to go from here?
A: It's -- it's not a positive predictor. It certainly reflects the difficulty that she had in
the past with decision making and judgment skills and life choices.
Q: Does it raise the risk of that pattern continuing?
A: Of course, it does. Is it a guarantee? No.
CB’s Story
CB testified that he was convicted of injury to a child, but the case was on appeal. On the
day that MG was injured, he tested positive for marijuana, cocaine and methamphetamines. He
admitted to using marijuana and cocaine, but despite the positive drug test, he denied ever using
meth. He described Appellant smoking marijuana with him once in a while and using some crack
cocaine. She continued doing drugs after learning she was pregnant with AB-G.
CB claimed that when Appellant was violent with him, AP would “grab” the baby and
walk away. When Appellant would get in a fight with the twins, he was the one that picked up the
baby and sat outside until Appellant regained control. “She got a bad temper on her.”
Apparently, there was no physical abuse between Appellant and AP. CB believed that
Appellant’s behavior was directly responsible for MG’s injuries because she attacked him while he
was holding the baby. He was then asked about a continuing relationship with Appellant:
Q: Sir, can you confirm or deny whether or not you had a continuing relationship
with [Appellant] after [MG]'s injuries?
A: Me and [Appellant] had a relationship until the date that -- until the day I got
arrested, back in August 8th of 2013; but we had a relationship. Even when she
was in Odessa, we were having a relationship.
Q: Can you briefly describe that relationship to the Court?
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A: That relationship between me and [Appellant] was like a regular relationship.
We used to -- we used to talk about the kids. We used to eat, order pizzas, and --
but one thing, she never gave me her phone number. She always had my phone
number and called me private, like in a position of following me -- made -- putting
me in the position, you know. And, yes, we did have a -- a loveable relationship,
you know.
Q: Okay. And, again, this is after [MG]'s injuries when y'all --
A: After [MG] got -- after November 14th, 2012, yes, sir.
Q: And did this relationship include a sexual component, as well?
A: Yes, it included a -- a sexual, yes, sir.
Q: Do you think if you hadn't have been arrested at that time, the relationship would
have continued?
A: Correct. It would be continuing to right now, I believe.
SUFFICIENCY OF THE EVIDENCE
Because termination of Appellant’s rights may be predicated on either of the statutory
predicate grounds found by the trial court, we need not address them both. We will focus on
subsection (E) and will not address subsection (D). Accordingly, we overrule Issue 1.
We have detailed at length the volatile and dysfunctional family environment as well as the
injuries to MG. Appellant’s own conduct demonstrates that she lacks the capacity to ascertain
danger to her children; she also lacks the ability to take steps to prevent it. We characterize her
judgment as acts of commission and acts of omission. Early on, she chose inappropriate
caregivers, including a sexual predator, individuals who called the police to advise that they could
no longer care for the girls, and one who caused the children to experience a house fire. This
mother’s routine of leaving her children for her own personal pursuits and enjoyment raised red
flags from the beginning. While we recognize the time lapse, we can hardly overlook her
continuous course of conduct. Every time her children were removed, she promised to do better.
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She completed her parenting classes and her children were returned. A few years later, she was
told to move the children out of the “drug addict barn” where they were living. When she failed
to do so, the children were removed. There was another service plan implemented, but she could
not remember it. After three unsuccessful tries, she was able to beat her heroin habit although she
continued to use marijuana and crack cocaine. And then the cycle would begin again: new
boyfriend, domestic violence, pregnancy, anger management issues, calls to CPS for physical
abuse and/or neglectful supervision. Nowhere is this more evident than Appellant’s continued
relationship with CB, the man she testified caused horrific injuries to MG. She understood she
was not to see him, but she couldn’t help herself. She knew she was violating her family service
plan, but she couldn’t help herself. She told Mary McBride that she was hooked like she was
blind. He had her under some spell. On cross-examination, Appellant couldn’t explain it other
than “that’s humanity”. CB claimed the relationship continued until he was arrested. The older
girls knew about the sexual trysts, yet despite their disapproval and threats, Appellant continued
her behavior. She couldn’t help herself. In other words, the children never came first.
We have no doubt that Appellant loves her children, but her past conduct bodes poorly for
the future. We reiterate that under subsection (E), the cause of the danger to the child must be the
parent's conduct alone, as evidenced not only by the parent's actions but also by the parent's
omission or failure to act. Doyle, 16 S.W.3d at 395; B.S.T., 977 S.W.2d at 484; S.H.A., 728
S.W.2d at 83-84. We examine what she did both before and after these children were born. In
Interest of D.M., 58 S.W.3d 801, 812 (Tex.App.--Fort Worth 2001, no pet.); Dupree v. Texas
Department of Protective & Regulatory Services, 907 S.W.2d 81, 84 (Tex.App.--Dallas 1995, no
pet.). While conduct does not have to have been directed at the child, nor must actual harm result
to the child from the conduct, unfortunately in this case it did. Id.; In Interest of C.D., 664 S.W.2d
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851, 853 (Tex.App.--Fort Worth 1984, no writ). Appellant’s termination is not one incident of
misjudgment when she left MG alone with CB. Applying the appropriate standard of review,
there is legally and factually sufficient evidence to support the trial court’s finding of a voluntary,
deliberate, and conscious course of conduct . In Interest of K.M.M., 993 S.W.2d 225, 228
(Tex.App.--Eastland 1999, no pet.). We overrule Issue 2 in its entirety.
BEST INTEREST OF THE CHILD
In Issue 3, Appellant challenges the legal and factual sufficiency of the evidence
supporting the trial court’s finding that termination is in the child’s best interest. The children are
too young to have expressed where they wish to live.
Testimony of Foster Mother
We begin, then, with the testimony of his foster mother, who is a registered nurse. She is
the cousin of MG4 and has been married for six years. Her husband and family are supportive of
her efforts. She has had possession of MG and AB-G since January 17, 2014. The family lives
in Midland.
The foster mother testified that Appellant visits every other Friday. She described
18-month-old AB-G as having adjusted well. He has learned to walk, his vocabulary is
expanding, and he has few health or developmental problems. MG is now two-and-a-half. She
has adjusted and is doing remarkably well. She continues to need early childhood intervention
services and her ability to walk and talk was delayed. MG sees doctors in Lubbock, including an
ophthalmologist and a neurologist, twice a month. She also has a primary care physician in
Lubbock and a pediatrician in Midland. She requires daily medications, including Keppra, which
4
Because her initials are also MG, we will refer to her as the foster mother.
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is to prevent seizures. She must take it until she has been seizure-free for one year. She also
takes Pulmicort for asthma, and Albuterol. MG no longer has a feeding tube.
The foster mother has worked with patients in a nursing home that have similar needs and
disabilities as MG. MG’s father, the foster mother’s uncle, has relinquished his rights to MG and
testified that he believed it was in his daughter’s best interest to live with his niece. She intends to
adopt both of children and keep them together. She wants to help the children maintain contact
with their other siblings and their respective families. The children are attached to her and to her
family, who can provide the stability they need.
Testimony of Suzanne Bailey
Bailey is the volunteer coordinator for Frontier CASA and guardian ad litem. She
believed that it would be in the best interest of the children to terminate the rights of both parents
and allow the foster parents to adopt him. She expressed concerns about returning the child to
Appellant based on her series of relationships that were dysfunctional and abusive. Bailey noted
that Appellant has six children by five separate fathers, an extensive history with CPS, and a
criminal history as well. Bailey did not believe Appellant possessed the skills necessary to keep
her children safe.
Bailey had visited the foster home twice:
A: The children are very happy there. They're bonded. They're attached.
They're thriving. It's -- [AB-G] is a -- just a wiggly little boy, and [MG] is
probably one of the most exquisitely beautiful little girls I have ever seen in my
life. She's just simply strikingly beautiful.
Q. But is she happy?
A. Yes.
Q. Okay. And is she safe?
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A. Yes.
Q. All right. Is there anything else that -- as the guardian, that you need to bring to
the Court's attention?
A. Well, I would -- I would like to point out in praise of [the foster mother] and
her husband for their completely free choice to continue the medical care that
[MG] has in Lubbock. That's very important not to start all over with new
specialists in -- in Midland, but they choose to make that trip up there as
frequently as necessary. And [MG] needs that. She has extensive delays that
need to be cared for, neurological deficits that need to be seen by a specialist. So,
they're doing a great job with that.
Testimony by Mary McBride
This caseworker felt that termination would be in the children’s best interest because
adoption offered permanency and stability. Their tender age factored into that decision. She
favored termination of Appellant’s parental rights based on her continuing pattern of creating
endangering conditions and for continuing a pattern of endangering conduct. Her pattern of
selecting improper caregivers, dangerous and violent partners, drug usage, and instability were
risk factors. McBride testified that in the past two years, Appellant had lived in six different
locations, some of which were shelters, relatives’ homes, and a boyfriend’s home. She was living
in Fort Stockton at the time of trial. During the past 16 to 18 months, she had held four different
jobs and none for longer than six months. Adoption by the foster parents was the best possible
plan for long-term emotional and physical needs because the family is a “great source of stability
for the children, and they're committed to having the children in their home and keeping them
together long-term.” It was also the best plan for protecting them from future emotional and
physical dangers because it removes them from the “sphere of influence from the people who have
hurt them before.” McBride mentioned that the Department had returned MG to Appellant and
given her another chance to keep the child. But nearly all of her problems relate to her inability to
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accept responsibility for her own actions. She kept returning to CB because she “basically
couldn’t help herself.”
Testimony by Appellant
Appellant testified that the children are more bonded to her than the foster mother. When
MG sees her, she smiles and wants to go with her. She “jumps to go get me” and clings to her
when being returned to the foster family. AB-G is confused about coming and going and
separation from his mother. Appellant had kind words for the foster family, observing that
“whenever I visit my children every other Friday, they're -- they look like they're properly taken
care of. And they -- they seem to have affection for that family.”
Appellant then testified about her plans for the future. She intends to “pick the people that
I hang out with that I have my children around by continuing with the lifestyle that I have changed
for myself to better myself.” She works forty hours per week with a set schedule of 2:00 p.m.
until 10:00 p.m. She has Wednesdays and Fridays off so that she can work on her plan with CPS.
Her boss gives her flexibility. She now attends church regularly. Her father is a minister and she
was raised in a Christian family. She described them as a close family and her support system is
her mother and father. She now puts her children first and their needs before her needs. She has
a daycare system in place. If she regains her children, she will alter her schedule so that she can
work during the morning. She has consistently visited with the children and her future plans are
to stay sober. She purchased a vehicle with a monthly payment of $350. She earns $340 per
week or $1360 per month. She receives $540 in child support for AP for monthly income of
$1900. Her expenses include rent ($450) utilities ($80) and food. Appellant believed that her
monthly expenses were roughly $1065 which would be sufficient to care for the children. She has
been in therapy to break the cycle of violent partners and has worked on anger management and
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appropriate discipline to develop relationship tools. She now feels like a new woman who is on a
positive path. Ultimately she believed that it was in the best interest of the children to be returned
to her.
Analysis
Children need stability, security, continuity, and permanence. Appellant has been
involved with CPS since the late 1990’s. She successfully completed her program services
during early intervention. But her behavior did not change. She went from abusive partner to
abusive partner. She continued the use of heroin, marijuana, and crack cocaine. She moved her
one-month-old daughter into the home of a man she had dated for one month. She knew CB used
drugs regularly, and according to him, she continued to use drugs even after she became pregnant
with AB-G. Three of her daughters have seen her overdose on heroin at least twice. At one point
or another, CPS has been involved with every one of her six children because she repeats her same
mistakes.
During the pendency of this case, in the naked glare of the judicial spotlight, Appellant
lived in six different locations and held four different jobs. She spoke glowingly of her support
group, including her parents, her church friends, and her pastor. Not a single one of them testified
on her behalf. She explained that her employer would work with her on altering her schedule so
she could be with her children in the evening. He did not testify either.
Perhaps most telling, Appellant did not detail her plans for continuing MG’s medical
treatment in Lubbock, or whether she would find a new physician team. Nor did she mention
whether her employer would allow her to miss work to maintain MG’s treatment, regardless of
where the doctors were located. In fact, her own testimony revealed that she was bothered that
the foster mother drove the children to Lubbock every other Friday before her visits. Why?
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I mean, why not choose another day, you know? There is two weeks. I don't see
them every weekend. I see them every other weekend. So, why not choose
another day instead of my day.
Actions speak volumes. Appellant was more interested in the foster mother accommodating her
needs than in ensuring MG received ongoing treatment with her established physicians according
to the child’s needs and the doctors’ directions. Appellant has had multiple chances to change her
mindset, to focus on her children, and to put their needs before hers. She testified that she has
learned to do this. It is apparent that she has not.
We have weighed the Holley factors. Both children have emotional needs and MG has
significant physical needs, both now and in the future. We have no confidence that Appellant will
be able to protect the children from emotional and physical danger to the child now and in the
future. We have compared the parenting abilities of Appellant and the foster mother. While
Appellant has had access to multiple service programs, the lessons are short-lived. Her plans for
the future omitted any further medical treatment for MG. The foster home is stable and loving
while Appellant’s homes have been abusive and chaotic. We have detailed Appellant’s acts and
omissions that indicate that the existing parent-child relationship is not a proper one. As for an
excuse, Appellant says she couldn’t help herself. Applying the appropriate standards of review,
we conclude that the evidence is legally and factually sufficient to support termination of
Appellant’s parental rights. We overrule Issue Three and affirm the judgment of the trial court
below.
December 9, 2014
ANN CRAWFORD McCLURE, Chief Justice
Before McClure, C.J., Rodriguez, J., and Barajas, C.J., (Senior Judge)
(Barajas, C.J., Senior Judge, sitting by assignment)
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