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In re A.L.H.

Court of Appeals of Texas, Fourteenth District

January 10, 2017

IN THE INTEREST OF A.L.H., A CHILD

         On Appeal from the 313th District Court Harris County, Texas Trial Court Cause No. 2014-00466J

          Panel consists of Justices Boyce, Busby, and Wise.

          OPINION

          Ken Wise Justice

         These appeals concern the conservatorship of a child, Adam, who has been embroiled in custody litigation for most of his life.[1] This is Adam's second trip to the court of appeals.

         The first appellate proceeding arose from the termination of Adam's parents' parental rights. Both his mother, T.H. ("Mother"), and his father, L.M. ("Father"), appealed the termination to this court. While the appeals were pending, two competing petitions were filed by people seeking to be named Adam's managing conservator: one by his paternal aunt, M.M.; and the other by his foster parents, Amy and Thomas Hood.

         We issued our opinion in the parents' appeals in June 2015. In re A.L.H., 468 S.W.3d 738 (Tex. App.-Houston [14th Dist] 2015, no pet.). We affirmed the termination as to Mother, and her parental rights are no longer at issue. We reversed the termination as to Father due to legally insufficient evidence. After Father's parental rights were reinstated, the Hoods filed a petition to terminate his rights and adopt Adam.

         Beginning in May 2016, a jury trial was held to decide: (1) should Father's parental rights be terminated, and (2) who should be Adam's conservator. The jury returned a verdict that Father's rights should be terminated, the Hoods should be Adam's managing conservator, and M.M. should not be a possessory conservator of Adam. The trial court signed a judgment on the verdict.

         M.M. and Father have separately appealed that judgment, and those are the appeals we decide today. The primary issues in both appeals are the sufficiency of the evidence to support the verdict and whether the trial court erred in permitting the Hoods' suit to be heard with M.M.'s suit. Each appellant also raises issues regarding particular pretrial and post-trial rulings.

         This opinion is divided into three parts. First, we lay out the procedural and factual background. Second, we consider M.M.'s appeal. Third, we consider Father's appeal.

         Background

         A. Proceedings in First Termination Suit

         In January 2014, the Texas Department of Protective and Family Services ("the Department") filed suit seeking to terminate the parental rights of Mother and Father ("First Termination Suit"). The Hoods intervened over objection in the First Termination Suit in September 2014. They sought termination of Mother's and Father's parental rights and adoption of Adam or, alternatively, joint managing conservatorship of Adam.

         The First Termination Suit was tried to the bench in December 2014. The trial court terminated both parents' rights and named the Department as Adam's sole managing conservator. Mother and Father both appealed ("the First Appeal"). The Hoods did not appeal.

         In February 2015, while the First Appeal was pending, M.M. filed a petition to modify the parent-child relationship in which she sought sole managing conservatorship of Adam ("M.M.'s Suit to Modify"). The Hoods intervened, again over objection, in M.M.'s Suit to Modify in April 2015, again seeking to be named Adam's managing conservators ("Hoods' Intervention").

         This court decided the First Appeal in June 2015. We affirmed the termination as to Mother, reversed and rendered the termination as to Father, and affirmed the trial court's naming of the Department as Adam's managing conservator. Father's parental rights were reinstated on June 16, 2015.

         The Hoods filed a separate suit in January 2016 to terminate Father's parental rights and adopt Adam ("Hoods' Adoption Suit"). The Hoods' Adoption Suit was consolidated over objection with M.M.'s Suit to Modify ("Consolidated Cases").

         The Consolidated Cases were tried to a jury for eight days beginning in May 2016. The following factual discussion comes from the evidence adduced at trial of the Consolidated Cases.

         B. Adam's birth and removal

         Mother and Father were incarcerated when Adam was born in September 2013, so Mother asked a family friend, Carlon, to take Adam until she got out of jail. Carlon told M.M., who lived in Arizona, that Adam was born and would be staying with her. M.M. paid for a stroller and infant car seat for Carlon to transport Adam. Carlon picked Adam up from the hospital when he was three days old. M.M. said she regularly spoke to Adam on the phone or "chatted" with him through an Internet video chat service while he lived with Carlon.

         Adam is Mother's fourth child.[2] The Department removed each of her other three children shortly after birth. We refer to those children as they were referred to at trial: (1) I.M., a boy born in November 2010; (2) Baby Girl, born in August 2011; and (3) Eddie, born in August 2012. Those removals were based generally on the child or Mother testing positive for drugs and the parents' refusal to consent to necessary medical treatment for the child, reported membership in a cult, and suspected mental illness. M.M. knew the bases of at least one child's removal. She also knew Father was a long-time drug user. She had not met Mother.

         Mother was released from jail and moved in with Carlon and Adam within a month of his birth. Despite the circumstances of the other children's removals and not knowing Mother, M.M. believed Adam was safe with Mother because Carlon was with them. M.M. also presumed the Department would have removed Adam at birth if he was in danger. Father was released in early January 2014, at which time he also moved into Carlon's home. M.M. continued to believe Adam was safe with his parents and Carlon.

         Adam had been showing symptoms of pertussis (whooping cough) for two or three weeks when Mother and her boyfriend took him to Dallas for a few days in mid-January 2014. He was still sick when they returned to Carlon's home, but his parents reportedly refused to take him to the hospital. Carlon let M.M. know Adam was sick, and M.M. told her to try to get him medical treatment. The record does not reflect whether Adam was treated at that time.

         A week later, the Department received a referral alleging Adam's parents were medically neglecting him as well as drinking and using drugs. The Department removed Adam on January 30, placed him in foster care, and filed the First Termination Suit. M.M. contacted the Department and offered herself as a possible placement for Adam. However, the date of contact is in dispute. M.M. said she called around the time of Adam's removal. Department supervisor Teara McKentie testified M.M. did not call until April or May of 2014.

         C. Adam, Father, M.M., and the Hoods

         1. Adam a. Placement in the first foster home

         Adam entered foster care at four months of age. He was placed in the same foster home as his brother Eddie. The caregivers reported Adam cried excessively. The foster home lost its license and closed a few months later. When he left that home, Adam had little hair on the back of his head, suggesting he might have spent excessive time in an infant seat. He could not sit up unattended.

         Adam could not be placed with M.M. because her home study was not complete. The Department contacted the adoptive mother of Adam's sister, Baby Girl, and asked if she could take Adam. The adoptive mother was not able to take him at that time but asked that the Department keep in touch with her because she would be interested in sibling visits between Baby Girl and Adam.

         b. Placement with the Hoods

         Adam was placed with Amy and Thomas Hood on May 23, 2014. McKentie testified the placement with the Hoods was expected to be temporary. The Hoods were classified as foster-to-adopt, which meant they were open to adopting a child placed with them. Amy Hood testified Adam bonded with her very quickly. He connected with Thomas more slowly but was attached to him within a month.

         In July 2014, Adam's attorneys ad litem asked the trial court for an order prohibiting Adam from being moved from the Hoods' home without court or ad litem approval. They based the request on Adam's strong bond with the Hoods and his progress in their care. The trial court granted the request in an order signed July 17, 2014 ("Do Not Move Order").

         c. Development

         Early Childhood Intervention (ECI) workers assessed Adam when he was 10 months old. Most of Adam's abilities were average or above average. However, he failed his hearing screening and communicated at the level of a five-month-old baby, though he learned some sign language quickly after he was placed with the Hoods. ECI referred Adam to speech therapy to address his communication difficulties.

         Adam responded well to ECI services and was discharged when he was 15 months old. His communication abilities, previously his lowest score, had improved to those of a 20-month-old child. Adam was assessed again when he was two and a half. Most of his abilities still fell in the average range; some were above average.

         At the time of trial, Adam was said to get along with children of all ages. He preferred being with other children than being by himself. He had age-appropriate difficulty sharing.

         2. Father

         Father was represented by counsel at trial but did not attend personally. Almost 54 at the time of trial, Father began abusing drugs when he was 19. He failed to appear at court-ordered drug tests in September 2015 and February 2016. The Department treats failures to appear as positive results. He has been convicted at least six times for possession of controlled substances. Carlon, the family friend who cared for Adam when he was born, met Father at work in 2000. They had an intimate relationship. Father and other people sold drugs out of Carlon's house. Carlon and Father were arrested in September 2003 for possession of cocaine.

         Adam's maternal grandmother, D.H., knew Father through his relationship with Mother. She never saw him use drugs but understood he had a history of drug abuse, criminal activity, and mental illness. D.H. last saw Father four and a half years before trial, but she had spoken with him more recently. She was talking with Mother on the phone when Father took the phone from Mother, talked to D.H., and would not allow Mother to speak further. D.H. said her husband and Father have had confrontations about Father's treatment of Mother.

         In addition to his four children with Mother, Father has an adult daughter, Sheila, who has six children. He lived with Sheila and her children for some time. The Department removed Sheila's children while Father was living with them. The basis of the removal included drug use by the adults and the children, the presence of approximately 15 other children in the home who were not related to Father or Sheila, children hanging out of broken windows on the second floor of the house, the floors in poor repair, holes in the walls, and dangerous objects within the children's reach. Sheila tested positive for cocaine and marijuana at the time of removal.

         Lisa McCartney, a court-appointed special investigator in this case, emailed Father his court-ordered family service plan. He confirmed he received it, then explained why he refused to comply with the plan. Two Department employees testified Father did not complete the plan's requirements.

         Father called McCartney, left her voice mail messages, and sent her numerous text messages. His communications concerned varying topics, including;

• UFOs and aliens;
• websites he wanted McCartney to visit;
• his association with the Rockefeller family;
• his ability to eliminate everyone's debt; and
• his desire to get a checking account with McCartney so they could go into business together.

         Father told McCartney he would get his children back and nobody could stop him. He said he did not oppose M.M. having custody of Adam and was planning a trip to Arizona to see them. McCartney saw Father barge into Carlon's home several weeks before trial even though Carlon told him he could not come inside.

         Father and Mother belonged to the United Nuwaubian Nation of Moors, which several witnesses testified was a cult. They believed they were not subject to the laws of the United States and did not have to follow the court's orders.

         Department supervisor McKentie did not know why the Department did not seek to terminate Father's parental rights after the original termination was reversed. She believed there were new bases for termination, including Father's failure to complete his service plan requirements and appear at court-ordered drug tests. Another Department employee, Tonya Clay, personally believed Father's rights should be terminated.

         3. M.M.

         M.M. is Father's younger sister. She lives in Arizona. M.M. earned a degree in architecture and works as an industrial architecture designer. She has a college-age son, a teenage daughter, and custody of Eddie. She and her fiance have been dating since 2008 and got engaged in 2015.

         a. Relationship with Adam

         M.M. first met Adam on December 3, 2014, the day the First Termination Suit was tried. M.M. and Adam had a one-hour visit at a Department office. She brought him toys and clothes.

         Two weeks later, the Hoods set up an Internet video chat account for Adam so he and M.M. could communicate. Adam and M.M. chatted every few weeks for most of 2015. The content and length of the chats depended on Adam's mood.

         M.M. travelled to Houston five times in 2015 to visit Adam. She gave Adam toys and clothes at each visit. She was sometimes joined by one or more of her son, daughter, and fiance. M.M. did not see Adam for his second birthday but sent a card and gift. Eddie began to join M.M. on visits with Adam in January 2016. It is undisputed that M.M. was loving and affectionate during her visits with Adam.

         b. Home study

         A foster care licensing agency in Arizona conducted a home study on M.M. as part of the Department's evaluation of her as a placement for Adam.[3] The 5-page written report states four references were consulted about M.M. but does not identify them. The author concluded the report as follows:

This worker found [M.M.] to be very stable and genuine in wanting to care for the child. She seems to have well educated and mannered children. [She] is cooperative and appears to have good intentions in wanting to care for the child. Pending fingerprint clearance cards on [M.M.] and [her son] this worker recommends that the applicant is safe and appropriate to care for the child in the state of Arizona.

         Adam's attorneys ad litem and the Hoods' attorney cross-examined M.M. extensively about the following facts not included in the report: (1) her 1998 arrest for alleged welfare fraud, (2) her conflicting statements about whether she drinks alcohol, (3) a civil judgment in 2009 finding her liable for animal cruelty, and (4) the adults who live or spend substantial time in her home.

         M.M. was arrested in Arizona in February 1998 for unreported income, fraudulent schemes and practices, theft, and two counts of unlawful use of food stamps, all based on her receipt of about $2, 800 in governmental assistance to which she was not entitled. She pleaded guilty and was placed on probation. According to the presentence investigation report, M.M. admitted lying on the applications for assistance but said she needed the money. At trial in this case, though, M.M. testified the arrest was a mistake because the state overpaid her. She also told the presentence investigator she began drinking when she was 15 years old. In her deposition in this case, she said she does not drink and had never had a drink. M.M. said she lied to the presentence investigator about drinking "to dirty [herself] up."

         M.M. said she did not disclose the arrest during the home study process because nobody asked her. She also said the conviction was vacated. The trial court admitted into evidence a December 29, 2006 order from the Arizona criminal case "restoring any and all civil rights to the Defendant which were lost or suspended as a result of the conviction as stated in the application herein, " "vacating the judgment of guilt, " and "dismissing the charges against the

          Defendant as stated in the application herein." M.M. said the Arizona court clerk told her the vacatur meant she legally could say she was not arrested.

         In the summer of 2009, M.M. went out of town and left her two dogs outside. She testified she left food and water for the dogs and made arrangements for a neighbor to care for them. However, one dog died of heat exhaustion. M.M. was cited for animal cruelty. When asked why she did not disclose the citation during her home study, she again said nobody asked her.

         The report does not mention M.M.'s fiance, D.W. He lives in Virginia and works as a defense contractor. M.M. testified she told the report's author about her relationship with D.W. but the author elected not to include him in the report because he did not live in her house. M.M. said the author told her that if D.W. lived in her house, he would have to have a fingerprint clearance check.

         M.M.'s brother, P.J., is also not mentioned in the report. M.M. said she did not disclose the fact that P.J. stayed in her house off and on for several months in 2015 because he "was family" and "was just in and out" and she did not consider him to be living with her.

         c. Relationship with Father

         M.M. described her feelings about Father:

I love my brother. I just don't like him. I don't like what he is made of. I don't like his character. We were never raised like that. ... He's not a reflection of me.

         M.M. said she had "no relationship" with Father, meaning he was not "somebody you can call when you [sic] feeling down. Somebody you can lean on. Somebody you can take out and have a good time with." She testified the last time she saw him was in April 2014 at a family funeral. M.M. said Father calls her sometimes, and she talks to him when he calls. She testified she has no intention of letting Father see Eddie or Adam and would call 911 if he came to her house.

         Carlon, who cared for Adam when he was born, testified M.M. saw Father more recently than April 2014. She said M.M. and Father both spent the night in her home during trial of the First Termination Suit. Carlon said Father has barged into her home and she was not able to stop him. She said Father does whatever he wants and goes wherever he wants.

         M.M. did not seek to terminate Father's parental rights but stated she was not opposed to termination. She insisted she would not let Father have any relationship or contact with Adam. M.M. understood Adam cannot be adopted if Father's parental rights are not terminated. She also understood that if she died before Adam was 18, Father would be entitled to custody of Adam. That possibility worried her.

         4. The Hoods

         Amy Hood earned a degree in bioenvironmental science from Texas A&M University. She worked as an environmental specialist in a large company at the time of trial. Thomas Hood worked as an inventory coordinator at the same company.

         Amy and Thomas applied to be foster parents in November 2013. They took several classes as part of their application, including classes on CPR, other medical topics, and child behavior. They were approved as foster parents in April 2014. As foster parents, they are subject to monthly home inspections and random visits and must take ongoing classes.

         a. Relationship with Adam

         Adam bonded with Amy quickly. He wanted to be with her all the time. Amy described Adam as fun and affectionate. He likes going for walks, reading, cuddling, playing, and doing art with her. Thomas described Adam as "his shadow." Adam loves to play and watch sports with Thomas, especially any sport with a ball. Adam enjoys going grocery shopping with Thomas and riding in the cart. When he wakes in the night, Adam calls for Thomas.

         Amy was pregnant when Adam was placed with the Hoods. Beth Hood was born in October 2014. Amy testified Adam loved and was protective of Beth from the start. As of the time of trial, Adam and Beth played together and had a close relationship. Adam's daycare teachers reported he often talked about Beth.

         The Hoods were put in touch with the adoptive family of Baby Girl, Adam's sister. The families got together twice shortly before trial. Both Amy and Baby Girl's adoptive mother said the visits went well and the children played well together. Both families intend to continue the relationship.

         b. Home study

         A Texas placement agency conducted a home study on the Hoods. The 17-page written report identifies five references provided by the Hoods. The author recommended the Hoods be approved as foster parents for up to two children at a time, ranging from birth to three years old.

         The report, written in 2014, contains two inaccuracies. First, it says Thomas graduated from Texas A&M University in 2004. Thomas testified at his deposition and at trial that he did not graduate from any college and did not suggest otherwise during the home study. A representative from their placement agency testified that the Hoods' written application says Thomas graduated from high school but not from college. Second, the report correctly states Thomas was convicted of driving while intoxicated in 2009 but incorrectly states he no longer drinks. Amy and Thomas both testified they made no such statement. Both confirmed Thomas drinks alcohol occasionally but does not drink and drive. The Hoods did not see the report or know about its inaccuracies until it was produced in discovery in 2016.

         D. Expert testimony

         1. M.M. versus the Hoods

         The trial court appointed Lisa McCartney to assess both possible placements for Adam. McCartney retired from the Department in 2011 after 30 years in various roles. Now a private investigator, she frequently makes recommendations about children's placements. She visited M.M. first "to give her a fair shot because she was family." ...


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