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In re T.L.B.

Court of Appeals of Texas, First District

March 16, 2017

IN THE INTEREST OF T.L.B. JR. A/K/A T.B.

         On Appeal from the 314th District Court Harris County, Texas Trial Court Case No. 2015-05274J

          Panel consists of Justices Jennings, Higley, and Massengale.

          MEMORANDUM OPINION

          Laura Carter Higley Justice.

         Following a bench trial, the trial court signed a judgment terminating the parent-child relationship between T.M.J. ("Mother") and her two-year-old son, T.L.B. On appeal, Mother identifies five issues, asserting that the evidence was not legally or factually sufficient to support the trial court's judgment. Because we hold that the evidence was legally and factually sufficient, we affirm.

         Background

         On September 14, 2015, the Department of Family and Protective Services ("the Department") filed suit, seeking to terminate Mother's parental rights to T.L.B. and to obtain sole managing conservatorship if family reunification could not be achieved. In the petition, the Department also sought temporary managing conservatorship and requested emergency orders.

         With respect to the emergency orders, the Department asserted that the Department had taken possession of T.L.B. on September 12, 2015. To support the request for emergency order, the Department offered the affidavit of caseworker T. Duncan.

         In her affidavit, Duncan testified that, on April 29, 2015, the Department "received an intake referral" reporting that T.L.B.'s caregiver, Tiffany, had physically abused Mother in front of one-year-old T.L.B. In the affidavit, Duncan indicated that Tiffany was Mother's "paramour." Duncan further indicated that Tiffany's father, L.J., was the biological father of T.L.B.

         With regard to the physical abuse, the report indicated that Tiffany had punched Mother while she was holding T.L.B. The referral had stated that Tiffany "assaulted [Mother] by throwing a picture frame at her and using pepper spray on her." The picture frame hit T.L.B. in the back of the head, and T.L.B. "began to wheeze when [Tiffany] sprayed the pepper spray."

         Duncan stated that the Department received another referral on June 18, 2015, "alleging neglectful supervision" of T.L.B. The report indicated that Tiffany was "using drugs" while caring for T.L.B.

         Duncan explained in her affidavit that, following the referrals, CPS began an investigation. Duncan was part of the investigation. CPS learned that Tiffany, not Mother, was the primary caregiver for T.L.B. During the investigation, Tiffany did not want to speak to CPS and referred CPS to her attorney; however, neither Tiffany nor her attorney were cooperative during the investigation. Ultimately, in August 2015, Tiffany told Duncan that "she would not allow [Duncan] to see T.L.B." On September 11, 2015, Duncan and a CPS investigator could not locate T.L.B. They learned that Tiffany had been "evicted from her apartment due to the domestic disputes that occurred at her apartment." Tiffany learned that CPS was trying to locate her and contacted Duncan. When Duncan went to Tiffany's new residence, Tiffany would not allow Duncan inside the residence but spoke to Duncan at the front door. T.L.B. was then removed from the home by the Department.

         Duncan testified in the affidavit that Mother and Tiffany each had a "CPS history." Mother's parental rights had been terminated with respect to another child, an infant, in 2012, following reports that Mother had "placed [the child] at risk of harm due to inadequate supervision, chronic domestic violence, drug use and inadequate medical attention."

         The Department had also received two referrals for "negligent supervision" of T.L.B. in 2014. During the investigation of the first 2014 referral, Mother tested positive for marijuana. The second 2014 referral was made after Mother and Tiffany were both arrested on outstanding warrants, and there was no one to care for T.L.B. Duncan averred that the Department received another referral in 2015 for negligent supervision of T.L.B. when it was reported that Mother smoked marijuana around T.L.B.

         In her affidavit, Duncan further indicated that Mother and Tiffany had criminal histories. Mother had a criminal history for theft, and Tiffany had a lengthier criminal history involving offenses of burglary, theft, forgery, and possession of a controlled substance.

         Duncan concluded her affidavit by asserting that the Department should be named T.L.B.'s temporary managing conservator "due to the mother's prior [Department] history, drug history, extensive domestic violence history, and her lack of cooperation with [the Department]." Duncan further stated, "At the time of removal[, ] the child was being cared for by [Tiffany]. [Tiffany] is not a parent of this child. She is not an appropriate caregiver, due to her domestic violence history with the mother, drug history, and history of not cooperating with [the Department]."

         On September 14, 2015, the trial court signed an emergency order for the protection of T.L.B. In the order, the trial court indicated that it had "examined and reviewed" Duncan's affidavit. The trial court found that T.L.B. had been removed pursuant to Family Code section 262.104, which authorizes possession without a court order if circumstances would lead a person of ordinary prudence and caution to believe that the child faced "an immediate danger to [his] physical health or safety."[1] The court also found that T.L.B. faced a continuing danger to his physical health or safety if returned to "the parent" or "caretaker." The trial court appointed the Department as the temporary managing conservator of the children.

         Following a full adversary hearing, the trial court signed a temporary order on October 23, 2015. In the order, the trial court found as follows:

[T]here is sufficient evidence to satisfy a person of ordinary prudence and caution that (1) there was a danger to the physical health or safety of the child which was caused by an act or failure to act of the person entitled to possession and for the child to remain in the home is contrary to the welfare of the child; (2) the urgent need for protection required the immediate removal of the child and makes efforts to eliminate or prevent the child's removal impossible or unreasonable; and (3) notwithstanding reasonable efforts to eliminate the need for the child's removal and enable the child to return home, there is a substantial risk of a continuing danger if the child is returned home.

         The trial court further found there was "sufficient evidence to satisfy a person of ordinary prudence and caution that there is a continuing danger to the physical health or safety of the child and for the child to remain in the home is contrary to the welfare of the child." The trial court appointed the Department as T.L.B.'s temporary managing conservator.

         The Department prepared a family service plan and filed it with the trial court on November 5, 2015. The plan set out several tasks and services for Mother to complete before reunification with T.L.B. could occur. Specifically, Mother was required to do the following: (1) attend all scheduled appointments and provide copies of certificates to demonstrate attendance at the required services; (2) participate in all court hearings; (3) "maintain housing for a minimum of six consecutive months that is safe, stable, and free of environmental hazards" and "provide [case] worker with a copy of the signed lease agreement"; (4) "submit to random drug/alcohol testing" and "not test positive for any illegal drugs or any drugs that were not prescribed to her"; (5) "complete a drug and alcohol assessment/evaluation"; (6) "actively participate in domestic violence counseling, " from which Mother "will be successfully discharged from counseling and provide the [case] worker with a copy of the certificate of completion"; (7) complete a psycho-social evaluation; (8) actively participate in individual therapy; (9) seek and maintain full time employment and "provide the caseworker with monthly income statements to verify the legitimacy of the employment"; and (10) participate in and complete at least eight weeks of parenting classes and provide the caseworker with a certificate of completion. The timeframe for Mother to complete each of these tasks and services was "11/10/2015 thru the duration of the case."

         The service plan warned Mother:

THE PURPOSE [OF THE SERVICE PLAN] IS TO HELP YOU PROVIDE YOUR CHILD WITH A SAFE ENVIRONMENT WITHIN THE REASONABLE PERIOD SPECIFIED IN THE PLAN. IF YOU ARE UNWILLING OR UNABLE TO PROVIDE YOUR CHILD WITH A SAFE ENVIRONMENT, YOUR PARENTAL AND CUSTODIAL DUTIES AND RIGHTS MAY BE RESTRICTED OR TERMINATED OR YOUR CHILD MAY NOT BE RETURNED TO YOU.

         The trial court conducted a status hearing on November 10, 2015. Mother and her counsel attended the hearing. That same day, the trial court signed a status hearing order, which approved and incorporated the service plan by reference. Specifically, the order provided: "[T]he plans of service for [Mother] filed with the Court, and incorporated by reference as if the same were copied verbatim in this order, is APPROVED and made an ORDER of this Court." The trial court also found that Mother had reviewed the service plan, understood the plan, and had signed it.

         Mother and her attorney attended a permanency hearing on May 19, 2016. That same day, the trial court signed a "Permanency Hearing Order Before Final Hearing." The trial court ordered, "The actions specified in each service plan . . . on file as of the date of this order represent actions which this Court requires of the Parent specified in the service plan[.]" The order also provided "that all previous orders issued by this Court shall continue without modification." The order made clear that "the actions [required in the service plan must] be performed in order for the parent to regain custody of the child who [is] presently in the temporary managing conservatorship of the Department." At the bottom of the order, the trial court set trial for September 1, 2016.

         The case was tried to the bench on September 1, 2016. The Department sought to terminate the parent-child relationship between Mother and T.L.B.[2]

         At trial, the Department offered the testimony of the Department caseworker R. Nelson. She testified that two-year old T.L.B. was "fine" and healthy when he came into the Department's care; however, the Department's "concern was that he [was] exposed to domestic violence and the lack of cooperation with Mom and her girlfriend [Tiffany] at the time." Nelson stated that T.L.B. had been "removed from the home" because of domestic violence. She testified that the referral to the Department had "involved [Mother] and her boyfriend [sic] at the time [Tiffany] . . . . [T]he referral indicated that Tiffany [] punched [Mother] in the face while holding [T.L.B.]." Nelson testified that the referral had indicated that, during the altercation, T.L.B. was "hit in the back of the head with a picture frame." During questioning, Nelson agreed that, "[w]hen the case came in, several officers testified at the show cause [hearing] about the domestic violence between the mother and Tiffany." She confirmed that there had been "at least" ten referrals for domestic violence, but Mother had "refused to press charges" against Tiffany. Nelson also confirmed that Tiffany had "a violent criminal history." Nelson agreed that, while the case was pending, Tiffany had threatened Nelson, Nelson's children, and the Department's attorney.

         Nelson agreed that one of the reasons that the Department was requesting termination of the parent-child relationship was Mother's continued drug use. Nelson confirmed that Mother had positive drug tests while the case was pending. She stated that Mother had testified positive for marijuana and cocaine use. The Department offered into evidence lab reports, showing that the Mother had tested positive for marijuana in September 2015, for cannabinoids in November 2015, and for cocaine in February 2016. Nelson confirmed that Mother was pregnant with another child when she tested positive for marijuana, cocaine, and cannabinoids. Mother gave birth to a daughter in April 2016.

         Nelson also testified that Mother had not completed the tasks and services required in the family service plan, even though the Department had made referrals for the services. Nelson stated that "[Mother] could have already completed the services on this service plan, " but she indicated that Mother was "just now" engaging in services.

         Nelson testified that Mother claimed to be engaging in many of the required services, but Nelson confirmed that the service plan required Mother to provide verification of completion of the services. Nelson stated that Mother had provided verification of completion of only one service: the psychosocial evaluation. Nelson stated that the psychosocial evaluation had resulted in Mother being referred for substance abuse counseling and domestic violence classes, which Mother also had not completed.

         On cross-examination, Nelson acknowledged that Mother had reported to her that she was working two jobs. However, Nelson testified that Mother had not provided her with proof of employment as required by the service plan. Nelson also acknowledged that Mother had reported to her that she had rented her own apartment, which "had a place" for T.L.B., but Nelson further stated that Mother's claim of renting a suitable apartment also had not been confirmed. Nelson also acknowledged that Mother's last drug test was negative.

         In addition, Nelson testified regarding the family structure in this case. She stated that T.L.B.'s father, L.J., is also the father of Tiffany, Mother's girlfriend. Thus, Tiffany is T.L.B.'s sibling. Nelson indicated that it was her understanding that Mother and L.J. had sex to "make [T.L.B.]" to provide a child for Mother and Tiffany to ...


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