Appeal from the 313th District Court Harris County, Texas
Trial Court Cause No. 2014-00466J
consists of Justices Boyce, Busby, and Wise.
appeals concern the conservatorship of a child, Adam, who has
been embroiled in custody litigation for most of his
life. This is Adam's second trip to the
court of appeals.
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.
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.
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.
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.
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.
Proceedings in First Termination Suit
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.
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.
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").
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,
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 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.
Adam's birth and removal
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.
Mother's fourth child. 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.
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.
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.
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.
Adam, Father, M.M., and the Hoods
Adam a. Placement in the first foster
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.
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.
Placement with the Hoods
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.
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
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.
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
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.
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.
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
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
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.
called McCartney, left her voice mail messages, and sent her
numerous text messages. His communications concerned varying
• 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.
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
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.
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
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.
Relationship with Adam
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
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.
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.
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. 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.
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.
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."
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.
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
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.
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.
Relationship with Father
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
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.
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.
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.
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.
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.
Relationship with 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.
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
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.
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.
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.
M.M. versus the Hoods
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." ...