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In re G.M.G-U.

Court of Appeals of Texas, Sixth District, Texarkana

March 16, 2017


          Submitted: February 15, 2017

         On Appeal from the 196th District Court Hunt County, Texas Trial Court No. 82514

          Before Morriss, C.J., Moseley and Burgess, JJ.


          Ralph K. Burgess Justice

         On October 22, 2015, Tanya's four children, Gabbie, Lana, Freddie, and Eban, [1] were removed from her care under the emergency provisions of the Texas Family Code.[2] See Tex. Fam. Code Ann. § 262.104 (West Supp. 2016). After a Hunt County jury found that grounds existed to terminate the parental rights of Tanya and the children's fathers, the trial court entered an order terminating (1) Tanya's parental rights to her four children; (2) Antonio's rights to his children, Gabbie, Freddie, and Eban; and (3) Marco's parental rights to his child, Lana. Tanya and Antonio appeal the trial court's order terminating their parental rights.

         On appeal, Tanya contends that the evidence is legally and factually insufficient to support the jury's findings that any statutory grounds for the termination of her rights existed.[3] Both Tanya and Antonio contend that the evidence is legally and factually insufficient to support the trial court's findings that termination was in the best interests of the children. See Tex. Fam. Code Ann. § 161.001(b)(2) (West Supp. 2016). Finally, both Tanya and Antonio assert that the trial court erred in admitting hearsay evidence of abuse by Antonio. We affirm the trial court's judgment because we find (1) that sufficient evidence supports at least one finding of a statutory ground for termination of Tanya's parental rights to the children, (2) that sufficient evidence supports the trial court's finding that termination of Tanya's and Antonio's parental rights was in the best interests of the children, and (3) that any error by the trial court in admitting hearsay evidence was harmless.

         I. Evidence at Trial

         A. Events Prior to Removal

         1. CPS Investigator Tabitha Sims' Testimony

         The evidence showed that, when the children were first removed from Tanya's care, she and her four children were staying at a three-bedroom house also occupied by her brother, Ken, her sisters, Sybil and Debbie, Debbie's child, and Sybil's three children. Tabitha Sims, an investigator for Child Protective Services (hereinafter CPS or the Department), testified that, on Thursday, October 22, 2015, she went to the house on Pickett Street in Greenville (the Pickett Street house). Sims testified that there was no running water and no water meter at the house and that the only source of electricity was an extension cord that ran from a neighbor's house to a single light. She also testified that the toilet tank was dry and that the toilet was full of feces and urine. The whole house smelled of urine and feces. There was one couch and only one bed in the house, which was a single twin mattress on the floor. She testified that there did not appear to be any other sleeping arrangements in the house, other than clothes on the floor that appeared to have been slept on.

         According to Sims, Lana was drinking soda out of a baby bottle that appeared to also contain dirt and mold.[4] Eban, who was eight months old at the time, had no formula, and Tanya told her that she was feeding him whole milk and food. However, Sims did not find any baby food in the house, only five cans of green beans and baked beans that had been pried open and sat on the kitchen counter. She testified that all of Tanya's children were filthy and smelled of vomit, urine, and sour milk. Gabbie's clothes were filthy and her panties and socks were so black and brown, all of her clothes had to be thrown away after she came into CPS' care. She said that the children did not appear to have been bathed in the last week. Sims testified that, when the children came into the care of CPS, they were immediately bathed and fed and that the children ate everything. She opined that the conditions she found in the house, including the food being fed to the children, were not safe and endangered the children's physical and emotional well-being.

         Tanya initially told Sims that she had just arrived at the house the night before and that she was waiting for her husband to pick her up. When it was discovered that there was no formula in the house, Tanya said that Antonio was supposed to wire her some money for gasoline and formula. Sims obtained contact information for Antonio from Tanya and went outside to call him.

         Sims testified that Antonio told her that Tanya had texted him on the previous Monday and stated that she was leaving Lufkin, where they had lived, and had no intent to return. Antonio said that, when she left, she stole his vehicle. Antonio also told her that Tanya had asked for money for gasoline and formula, but that he was not planning on coming to Greenville or wiring her money to buy those items. Sims said that Antonio also told her that a friend had called him that morning and told him that there was no refrigerator, electricity, or running water at the house where Tanya and the children were staying.

          2. Tanya's Testimony

         Tanya testified that she and her children had been at the Pickett Street house for three days. She denied leaving Antonio or intending to divorce him. Rather, she said she came to Greenville to help her sisters with transportation and intended to stay a week. Although Eban normally consumed forty ounces of formula a day, Tanya said she only brought one twenty-four-ounce can of formula with her from Lufkin and had bought two cans in Greenville. When she ran out of formula, she gave him a little bit of whole milk. She admitted that, when Sims came to the house, she was out of both formula and whole milk. She explained that she had run out of money, but that she had texted Antonio that day to send money for formula and gasoline to get back to Lufkin and planned to return the same day that Sims had come to the house.

         Tanya admitted that the house did not have electricity, natural gas, or a refrigerator, but claimed that it did have running water, although there were plumbing problems. She also claimed that she had given the children sponge baths with cold water and that they were not dirty. She agreed that it is not safe and appropriate to have children in a house with a toilet full of feces and no utilities and that it was a poor decision to have her children at the house.

         Tanya and her family had moved back and forth between Pennsylvania and Texas several times. She admitted that, in 2010, CPS had opened a case on her family because she had a child by Antonio when she was sixteen and her mom was allowing him to live with them. She said she lived with Antonio continuously except for two periods of time when he was deported.

         While in Pennsylvania in 2012, she met Marco and had Lana as a result of their relationship. In June 2015, Antonio and Tanya were married in Pennsylvania, and they returned to Texas in September 2015, when Antonio was transferred with his company. She testified that they rented a three-bedroom trailer in Lufkin, that Antonio was paid in cash, and that they had no bank accounts.

         On cross-examination by the children's attorney ad litem, Tanya initially denied saying on October 11, 2015, that she was getting a divorce and that she was single and loving it. After the attorney ad litem introduced two screenshots of Tanya's Facebook page from that date in which she posted that she was getting a divorce, that she was done with Antonio, and that she was single and loving it, Tanya admitted that she had posted those things, but claimed she did not mean them.

         3. Antonio's Testimony

         Antonio testified that he is currently serving a sentence for sexual assault of a child, which arose from his original relationship with Tanya in 2010 when she was sixteen and he was about twenty-three.[5] He said he originally received deferred adjudication community supervision, but that supervision was revoked in November 2015, when he was adjudicated and sentenced to serve four years in prison. Copies of the order of adjudication, the motion to revoke deferred adjudication community supervision and request for final adjudication, and the judgment adjudicating guilt were entered in evidence. The judgment adjudicating guilt showed that Antonio's community supervision was revoked because of his numerous violations of the terms and conditions of his community supervision.

         Antonio also testified that he is from Guatemala and that he entered the country illegally. He originally went to Pennsylvania, but moved to Texas with Tanya and lived with her and her parents. He was stopped on a traffic violation and was deported, but illegally entered the country a second time and again lived with Tanya and her parents. He was deported again after he received deferred adjudication. He then illegally entered the country a third time and now has an immigration hold, so he will be returned to Guatemala once he serves his prison sentence. He admitted knowing that by entering the United States illegally, he could be deported again and that this would be disruptive to his family.

         Antonio acknowledged that he was contacted by CPS on October 22, 2015, but denied that he told Sims that Tanya had left him, took his vehicle, and was not coming back. He also denied saying that he was not going to give Tanya money for formula and gasoline. He claimed that, before his arrest, he was making $1, 500.00 to $2, 000.00 per week from his job and was supporting his family.

         B. Post-Removal Events

         1. CPS Caseworker Naomi Wade's Testimony

         Naomi Wade, a CPS caseworker, was assigned to this case in March 2016. She testified that before she was assigned to the case, Tanya had completed some of the requirements of her service plan, including parenting classes, individual counseling, a psychological evaluation, and random drug testing. The service plan also required Tanya to demonstrate that she could maintain stable employment and housing, to obtain a Texas driver's license, and to participate in family counseling and domestic violence education.

         Wade scheduled a parent presentation where Tanya could tell CPS personnel, the Court-Appointed Special Advocate (CASA) volunteer, and attorneys involved in the case what services she had completed, what she had learned, and on what she was still working. The goal of the parent presentation was to determine what would be different if the children were returned to the home and to determine if the children could be returned under monitored conditions. Wade testified that the presentation occurred on April 27, 2016, and that they learned that Tanya had completed some services, but that she was unable to communicate what she had learned in the parenting classes or what issues she was working through in individual counseling. They also learned that she was still residing in the Pickett Street house with Sybil, Ken, and her parents when they were not on the road.

         Wade also testified that Tanya's mother had moved into the Pickett Street house to get the utilities turned on and to pay the bills and that she moved out of the house in late June. Testimony showed that by mid-July, the electricity had once again been turned off at the house as a result of non-payment and that Tanya and her siblings had moved from the house when they could not make the rent payment. Wade went to the Pickett Street house on July 14 after Tanya cancelled her scheduled visitations with her children. The outside temperature was ninety-seven degrees, and Tanya and her infant daughter, Anita, were inside the house. Wade testified that the inside of the house felt even hotter than the outside.

         Tanya told Wade that the electricity had been off for a week and that they were taking the kids' furniture to her parents' house in Commerce. Anita was five months old at the time, and Tanya gave Wade the impression that they had been living at the Pickett Street house without electricity, even though there were two other houses with utilities where they could stay. She testified that it was dangerous to leave an infant in those conditions and that it was particularly concerning that nine months into the case, Tanya and her child were living in the same conditions that prompted the removal of the other four children.

         Wade also testified that Tanya claimed to have moved into a house in Commerce with Sybil, Ken, and her parents. Wade testified that she went to the Commerce house on several occasions at different times of day and on weekends and that no one answered the door. She also talked to the neighbors, who indicated that no one was living in the house. Wade also testified regarding her concerns that Tanya would be living with her parents. She testified that whereas Tanya, Sybil, and Ken had been cooperative before their mother moved into the Pickett Street house, when their mother was present, everything changed, nothing was taken seriously, and there did not seem to be an understanding or acceptance of CPS' concerns.

         Wade also testified that Tanya's mother does not understand CPS' concerns. Wade explained that Tanya's mother had a CPS case from 2010 regarding Tanya and her siblings and that she did not seem to grasp the concerns of that case either. Wade said that every interaction with Tanya's mother had been very hostile and that it had been very difficult to reason with her and to explain CPS' concerns and what needs to be done to enable the children to return.

         Although Tanya obtained a job at Hacienda Carwash in April, Wade testified that her monthly income was a little over $500.00. That was not enough to meet Tanya's claimed monthly expenses of $873.00, which did not include clothes, diapers, or other necessities for her children.[6]Wade testified that Tanya had not demonstrated that she could support herself or even one child.

          Wade also testified that, at the parent presentation, Tanya said she was going to stay married to Antonio and had no plans for a new relationship. As a result, she would not answer any questions regarding what would be appropriate in a new relationship with children in the home. Nevertheless, less than a month later, when Wade visited the Pickett Street house, Tanya had hickeys on her neck. She said that, when she inquired about them, Tanya and her sisters laughed a lot about it, even though she tried to explain CPS' concern about strange men being in the house or her being in a relationship with them. Tanya refused to give Wade the name of the man who gave her the hickeys to enable Wade to conduct a background check. At trial, Tanya identified the man and said that he had family on her street and that she began talking with him and had sex with him.

         According to Wade, the children are now in a safe and stable environment and are very bonded to their foster parents. She testified that they are thriving and that their overall conditions have improved significantly. The evidence showed that, when Gabbie came into care, she had a number of cavities and other dental problems that required eight silver crowns, four fillings, two teeth extractions, and three root canal surgeries. Wade said that Gabbie has made a lot of improvement in school. Wade testified that Lana had a substantial speech impediment that has improved significantly.

         Wade testified that all of the children now have a sense of security. She said that Gabbie may need ongoing therapy to process the trauma she has been through and that all of the children will have mental and physical needs that were not being met before, but are now being met. She testified that the children had been in a dangerous situation, but are safe now, that the foster family is active in church, and that the foster mom spends a lot of time with the younger children. She said that the children are in a stable home now where they feel secure and can thrive.

         2.CASA Volunteer Anna Deusterberg's ...

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