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Corrales v. Department of Family and Protective Services

Court of Appeals of Texas, Eighth District, El Paso

November 18, 2004


          Appeal from 65th District Court of El Paso County, Texas (TC# 2002CM5295)

          Before Panel No. 2 Barajas, C.J., McClure, and Chew, JJ.



         This is an accelerated appeal pursuant to Texas Family Code section 263.405(a). See Tex.Fam.Code Ann. § 263.405(a)(Vernon 2002)(since September 1, 2001, an appeal from a final order terminating the parent-child relationship and appointing another as managing conservator is accelerated and governed by the rules for accelerated appeals in civil cases). The Texas Department of Protective and Regulatory Services [1] filed a petition to terminate the parental rights of Zulema Frias and Ricardo Corrales as to three of their five children. The jury found that the parent-child relationship should be terminated and named the Department as managing conservator. On appeal, the parents complain of evidentiary error and the failure of the court to appoint the maternal grandmother as managing conservator. We affirm.


         Frias and Corrales began living together in 1997 and married in January 2000. Their first child, Jason, was born with physical problems including blindness and mental retardation. He tested positive at birth for alcohol and cocaine. When he was released from the hospital, Frias's mother, Maria Elena Olivas, took him home with her. She was responsible for his oxygen machine and heart monitor. Frias eventually relinquished her parental rights to Jason and Olivas adopted him.

         The three children at issue are David Justin Frias, Ricardo Corrales, Jr., and Joylin Zulema Corrales. Justin was born with pallet problems causing a speech impediment. Olivas cared for him from the time he was six or seven months old. She has cared for Ricardo, Joylin, and Jeremiah, the youngest child, since birth. The case involving Jeremiah was still pending at the time of trial, and he was living with Olivas.

         Corrales is in jail in Juarez, Mexico for possession of heroin. He has been in and out of jail five times during the marriage and is scheduled for release in December 2005. It was his intention that Olivas care for the children while he was incarcerated.

         Frias testified she has been using drugs for nine years, is addicted to cocaine, and had used cocaine as recently as three weeks before trial. She admitted that she used drugs during her pregnancies. Both her husband and her mother were aware of her drug use and Olivas had been taking care of the children because of it. Frias claimed that she did not use drugs in front of her children. [2] She described her withdrawal symptoms as anxiety, vomiting, diarrhea, and insomnia, and she acknowledged that she was unable to care for the children in that condition. Frias also admitted that she had been arrested numerous times for theft, driving while intoxicated, family disturbance, and prostitution.

         The Department began its investigation in March 2001 because of an allegation that Olivas's boyfriend, Manuel Payan, had physically abused Ricardo. Georgina Estrada Martinez, an intake investigator for the Department, was unable to determine whether the abuse occurred. The child suffered no injuries and was unable to verbalize what had happened due to a speech impediment and developmental delay. But Martinez did conclude that Frias had neglected to properly supervise Justin and Ricardo to the extent that the home was not an appropriate environment for them. Payan was arrested for assaulting Frias and for injury to a child. A sixty-day protective order banned Payan from the home. Martinez informed Corrales about the circumstances, but he wanted the children placed with Olivas or an aunt and expressed no concern about the domestic violence in the home. Martinez also met with Frias and noticed fresh track marks on her arms. Frias was pregnant with Joylin at the time. She was using cocaine every other day and had received no prenatal care. Martinez also spoke to Olivas, who confirmed Frias's drug usage. Frias was placed in a drug treatment program. Justin was placed with Olivas while Ricardo was placed with Frias's sister Annabelle. Olivas was instructed that Frias should not be in the home. The case was then assigned to John Estrada in the family preservation unit at the Department.

         Estrada testified that he had tried to preserve the family for a year and a half during which he had concerns about the children's well being due to their mother's drug use. Frias and Olivas were offered a number of services including drug treatment, day care for the children, referrals to the Texas Workforce Commission, and assistance with housing. They ultimately terminated the day care service because it was too difficult to get all the children downstairs from the grandmother's second floor apartment to be picked up. Frias lived with her mother off and on and would visit the children when she was not living there. Despite the Department's instructions, Olivas allowed Frias ready access to the children.

         In August 2002, Estrada conducted a routine home visit and found the three children alone with Frias. She appeared to be anxious, hung over, under the influence of drugs, and aggressive. The children appeared to be taking care of themselves. The house was in disarray and there were knives on the kitchen table within reach of the children. Frias told him she had used cocaine the night before and had been involved in an altercation. She explained she was watching the children because Olivas had taken Jason to register for school. [3] The children were removed from their grandmother and placed in foster care. Estrada believed that caring for four children under eight years of age was a handful for one person. These circumstances were even more difficult because one of the children was blind and mentally retarded. Estrada testified that Olivas had contacted him because she felt overwhelmed.

         Frias testified that she wanted the children placed with Olivas if parental rights were terminated because she wanted to continue to see them. The children loved their grandmother and would cry when they were taken back to the foster home. Frias claimed her mother took good care of the children whereas they had experienced problems in foster care. Joylin suffered from diaper rash and was neglected when the foster mother's grandchild came to stay. Ricardo was beaten and always had some kind of injury. Justin was scolded and punished by the foster mother and was now hyperactive and on medication. He had been in the first grade but was put back into kindergarten. Frias complained to the case worker about the foster care.

         She also described the children's interaction with their other siblings at their grandmother's house. Jason loved the children and would cry when the visits ended. The children would also ask for Jason. She admitted that four of her brothers and sisters had a drug-related criminal history, but her eleven nieces and nephews had spent time with the children.

         Case worker Eunice Buendia asked the jury to terminate the parental rights and to appoint the Department as managing conservator. She saw problems with allowing the grandmother to parent the children. Two homes studies were negative. Olivas could not read or write. She was still dating Payan. She minimized her children's drug usage. She already cared for a special needs child who was blind and mentally retarded. She was unable or unwilling to keep Frias away from the children, was involved in altercations with Frias about money, and had been arrested herself. Buendia admitted that another home study had been conducted back in 1998, and the home was determined to be appropriate for Jason. She conceded that his needs were being met and there was no eminent danger to Jeremiah, the youngest child. But she did not waiver in her view that the home was not appropriate for these three children.

         Family therapist Martha Dominguez and counselor Blanch Kelly testified that Frias had been referred to them for services but never showed up for her appointments. Marriage and family therapist Iliana Jacobson provided services for Frias and thera-play sessions for Frias, the foster mother, and the three children. Jacobson testified that Frias recognized the loss suffered by her children due to her drug use but did not understand the resulting emotional damage. She characterized Frias as unmotivated since she did not believe she had a drug problem. While Frias characterized her family as supportive, Jacobson felt that the family was enabling her addiction. Frias was cooperative during the thera-play sessions and attended six of eight sessions. Justin was initially cooperative but began to withdraw and did not respond to hugs from his mother. Jacobson was concerned about the relationship because the child seemed oppositional. Ricardo and Joylin were hyperactive at the first few sessions but later improved and responded to structure. Jacobson found that the children needed constant supervision. She had no concerns about the children while in the care of their foster parents and found that the children had a bond with their foster mother.

         Psychotherapist Sergio Medina testified that Justin was very protective about his early life and had severe speech delay which was improving with therapy. He seemed to have a bond with his foster mother but had expressed a desire to live with Frias. The child also felt close to Olivas and wanted to live with her. Medina found that Justin did not play well with his siblings and needed structure, supervision, attention, redirection, and help in school since he was behind his age group in learning. At the time of trial, Justin was taking three medications--Zyprexa for bipolar manic disorder, Premarin for depression, and Adorexal for hyperactivity. Medina wanted to use behavior modification to wean Justin off the medications. He believed Justin's depression had improved and his aggression and lying had decreased although there were still isolated incidents of stealing. Medina reported there was a high risk that the problems would worsen if he returned to his prior environment. It was in Justin's best interest to be in a drug- and violence-free home. Medina explained that the foster mother had initially indicated a desire to adopt Justin but had moved away from the idea because of the child's behavior. He admitted it may be difficult to find Justin a home. While foster care had demonstrated that the three children could live and learn together, Medina believed the children should be separated due to Justin's needs for attention and the contemptuous relationship between the siblings.

         Lucia Margarita Quevedo, the court-appointed guardian ad litem, concluded it was not in the children's best interest to have a continuing relationship with their biological family. Although the grandmother had expressed a desire to care for the children, Quevedo believed that Olivas was not able to care for five young children on her own, that Frias would be in and out of the children's lives, and that Frias's siblings were not a positive influence on the children. Justin had expressed a desire to stay with his foster parents and never mentioned living with his grandmother. Due to speech therapy, Justin and Ricardo were making progress. The foster mother helped Justin with his exercises and homework and the children had a relationship with her twelve-year-old son.

         Olivas testified that only her daughter Magdalena spent a significant amount of time at her home. She denied allowing Frias access to the children. Drugs were not used in her home although she had seen Frias under the influence. The children played well together, and Justin behaved since she did not allow fighting. The children suffered no injuries while in her care, and she denied telling Estrada that she felt overwhelmed by the burden. She considers the children to be her own, and they call her grandmother and cry when the visits end. Olivas said the children wanted to live with her and she believed it was in their best interest to remain in her care. She planned to bathe the children at night so she could get them to school in the morning. She promised to take Justin and Ricardo to speech therapy. She also felt she was a better parent now due to her experience and age.


         In Point of Error One, Appellants contend that the trial court erred in admitting police reports which contained inadmissible hearsay. They argue that the reports contained the results of police investigations which included testimony from witnesses who were not present for trial and unavailable for cross-examination.

         The police reports were introduced during the direct examination of Crystal Barraza, custodian of records for the El Paso Police Department. Counsel for the Department laid the predicate to admit the reports as business records. Counsel for Frias objected as to relevance and hearsay. Counsel for Corrales argued that the reports were more prejudicial than probative. The judge overruled the objections.

         Standard of Review

         The admission and exclusion of evidence is committed to the trial court's sound discretion. Gee v. Liberty Mut. Fire Ins. Co., 765 S.W.2d 394, 396 (Tex. 1989). A trial court abuses its discretion when it acts without regard for any guiding rules or principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985), cert. denied, 476 U.S. 1159, 106 S.Ct. 2279, 90 L.Ed.2d 721 (1986). Stated differently, the appropriate inquiry is whether the ruling was arbitrary or unreasonable. Smithson v. Cessna Aircraft Company, 665 S.W.2d 439, 443 (Tex. 1984); Landry v. Travelers Insurance Co., 458 S.W.2d 649, 651 (Tex. 1970). The mere fact that a trial judge may decide a matter within his discretionary authority in a different manner than an appellate judge in a similar circumstance does not demonstrate that an abuse of discretion has occurred. Southwestern Bell Telephone Co. v. Johnson, 389 S.W.2d 645, 648 (Tex. 1965); Jones v. Strayhorn, 321 S.W.2d 290, 295 (Tex. 1959).

         The Applicable Rules

         "Hearsay is not admissible except as provided by statute or these rules or by other rules prescribed pursuant to statutory authority. Inadmissible hearsay admitted without objection shall not be denied probative value merely because it is hearsay." Tex.R.Evid. 802. Rule 803 provides exceptions to the ...

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