Court of Appeals of Texas, Eighth District, El Paso
from 65th District Court of El Paso County, Texas (TC#
Panel No. 2 Barajas, C.J., McClure, and Chew, JJ.
CRAWFORD MCCLURE, JUSTICE.
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  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.
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
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.
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.
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.  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.
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.
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.
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.  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.
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.
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
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
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
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.
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
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.
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
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.
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).
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 ...