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In re J.I.M.

Court of Appeals of Texas, Fourth District, San Antonio

March 22, 2017

IN THE INTEREST OF J.I.M. and A.A.M.

         From the 408th Judicial District Court, Bexar County, Texas Trial Court No. 2016PA01450 Honorable Barbara Hanson Nellermoe, Judge Presiding

          Sitting: Karen Angelini, Justice Rebeca C. Martinez, Justice Luz Elena D. Chapa, Justice

          MEMORANDUM OPINION

          Karen Angelini, Justice

         Dessarae M. appeals from the trial court's order terminating her parental rights to her children J.I.M. and A.A.M. She brings one issue on appeal, arguing that the trial court's best-interest finding is not supported by legally and factually sufficient evidence. We affirm.

         Background

         On July 5, 2016, the Department of Family and Protective Services ("the Department") filed an Original Petition for Protection of a Child for Conservatorship, and for Termination in a Suit Affecting the Parent-Child Relationship. On November 8, 2016, the case was tried to the bench. At trial, Officer Becerra of the San Antonio Police Department testified that he responded to the original 911 call. According to Officer Becerra, the 911 caller reported that "there was a reckless driver" who was "striking her child while operating a motor vehicle." The caller "felt that the children were in danger" and had "observed the children crying." Officer Becerra testified that when he pulled into the drive-in restaurant, he saw Dessarae M. and two children in the car. According to Officer Becerra, one of the children, two-year-old J.I.M., [1] "had apparent injury to his face, redness and whatnot." There was "a small cut" underneath his left eye. The other child, A.A.M., was a baby and less than a year old. Officer Becerra testified that "[b]oth of the children were crying." Officer Becerra testified that he investigated and interviewed a witness at the scene, the same person who had called 911. The witness told Officer Becerra that she had seen Dessarae M. operating the vehicle, "striking her child repeatedly, " and "driving recklessly." Officer Becerra testified that the witness described Dessarae M. as "swerving in and out of lanes" and braking erratically. The witness told Officer Becerra that the child "struck the dashboard of the vehicle." The witness followed Dessarae M. as she stopped briefly at one restaurant and continued following Dessarae M. as she traveled east. Dessarae M. then stopped at the drive-in restaurant where Officer Becerra located her and the witness. When Officer Becerra questioned Dessarae M., she denied that she had struck her child. Officer Becerra placed Dessarae M. under arrest and took an inventory of the car. There was not a car seat for the child who had struck the dashboard.

         Alicia Craft, the Department's caseworker, testified that she requested aggravated circumstances to be pursued against Dessarae M. in this case. Craft was present at the hearing on the issue. According to Craft, the court granted aggravated circumstances against Dessarae M. and also waived the requirement for reasonable efforts to be made to reunify the children with their mother. The State then introduced, without objection, three exhibits. State's Exhibit 1 was a final order of termination in Cause Number 2010-PA-02003 terminating the parental rights of Dessarae M. to one child. State's Exhibit 2 was a final order of termination in Cause Number 2007-PA-02202 terminating the parental rights of Dessarae M. to two other children. State's Exhibit 3 was an order of termination in Cause Number 2010-PA-02003 terminating Dessarae M.'s parental rights to another child. Thus, Dessarae M. previously had her parental rights terminated with respect to four other children.

         Craft testified that in each of these previous cases, Dessarae M. had her parental rights terminated on endangerment grounds. With respect to the first case, Craft testified that Dessarae M.'s rights had been terminated based on "drug abuse and physical neglect." In one case, Dessarae M. had shaken and slapped her child with her hand on his back, face, and buttocks, which left red marks all over his body. In another case, Dessarae M. would leave her children with people for days at a time and not return. Craft emphasized that in the present case, there were also allegations of physical abuse of a child. Craft testified that when she became the caseworker, she "learned that on the day of the removal, the mother was driving with the children, and she was arrested due to the physical endangerment of her children." According to Craft, J.I.M. underwent a forensic interview, and the results of that interview showed that "while [J.I.M.] had facial scratches and bleeding on his face, there was no subdermal or fractures underneath the skin." Craft testified that when she met with Dessarae M., Dessarae M. denied having struck J.I.M.

         Craft testified that Dessarae M. is currently "being held for child endangerment with bodily intent." Craft testified that when she spoke with two-year-old J.I.M., he said "that he was with mean people, that his mother has been mean to him, [and] that he likes it where he is now." Craft recognized that J.I.M. has a limited ability to express his desires and has not been able to say more. According to Craft, J.I.M. is "currently placed with a maternal relative" and is bonded with that relative. Adoption is the future goal. Craft testified that J.I.M. "is very happy" and "settled in." J.I.M. "is able to communicate well with the relatives." Craft testified,

He loves to show me his room. He calls it his house, his dogs. He talks about [he] and his sister living in the home for quite some time, as much time as a three-year-old can, you know express. He calls the relatives "Mom" and "Dad." He is very happy.

         Craft testified that the children's current and future needs will be met at their current placement.

         Craft testified that because Dessarae M. has been incarcerated since she was arrested, Craft had not had an opportunity to see Dessarae M. with J.I.M. and A.A.M. According to Craft, Dessarae M. cannot meet the needs of her children. When asked if Dessarae M. has ever expressed a desire to change her behaviors, Craft testified that Dessarae M. "has expressed that she doesn't have any behaviors to change." According to Craft, Dessarae M. holds this belief even though she has already had her rights to four other children terminated in previous cases. In Craft's opinion, it was in J.I.M. and A.A.M.'s best interest to have Dessarae M.'s parental rights terminated because Dessarae M. "has exhibited a pattern of behavior over a long period of time that has shown that she neither cares nor is able to meet the needs of her children."

         Dessarae M. testified that on the day in question, she pulled into the drive-in restaurant to buckle J.I.M. into his car seat: "He was in the shoulder strap car seat. I also had a booster seat too in there for him." Dessarae M. testified J.I.M. "was in the far right back seat, " and A.A.M. "was in her carrier." Dessarae M. argued that because she is four feet, nine inches tall, she is physically incapable of reaching J.I.M. in the back seat to hit him. According to Dessarae M., she was buckling J.I.M. into the car seat when she "saw all these cop cars coming with the ambulance." The officer told her that he had received a call reporting she "was brutally attacking [her] son." Dessarae M. told the officer that she "had proof on [her] phone that [her] son fell the day before at [her] friend Amanda's house." Dessarae M. testified, "That could be the mean people he is saying." Dessarae M. testified that she told the officer she had not hit J.I.M. but he said "he didn't want to effing [sic] hear it."

         Dessarae M. testified she has been able to work services while in jail. She is enrolled in a parenting class, has engaged in individual and group counseling, and is enrolled in Recovery in Motion. She testified she was also "taking [her] GED again." She stated that she is currently being held on the charge of bodily injury to a child and that bond is set at $75, 000.

         On cross-examination, Dessarae M. was questioned about the three previous cases that resulted in the termination of her parental rights to four other children. When asked whether she recalled the types of behaviors she engaged in that led to the termination of her parental rights, Dessarae M. replied, "I remember I was taking extensive drug tests because the dad was on drugs, and I passed all my drug tests. But, I mean, I guess because the guy kept coming around . . . ." With respect to the first case in 2005, Dessarae M. was asked whether she disputed "the finding that you physically abused [your son] by shaking him and slapping him with your hands that left red marks." Dessarae M. replied, "I do disagree with that." The State asked, "Never happened?" Dessarae M. clarified, "Not from my hand." Dessarae M. was asked whether she believed the trial court ruled incorrectly in the three previous cases. Dessarae M. testified, "The court has it wrong? That is in the CPS reports that the dad kept coming around, and I was being irresponsible." The State clarified its question: "Do you think the court got it wrong that you did endanger your children in three separate instances prior to this case." Dessarae M. replied, "Yes, they got it wrong, especially this time." When asked to explain why she believed the previous courts had ruled incorrectly, Dessarae M. replied,

Okay. With [E.], I was in jail. and somebody made a report, and they used that against me. I was already in jail, and they said I physically abused them after three months in jail. This time, my son, I thought I found a correct babysitter. She is a family friend, Amanda. I go to work and come home, and [J.I.M.] is like scratched up in the face.

         Dessarae M. was asked what she would have done differently in parenting her four previous children to whom she had lost parental rights. Dessarae M. replied,

I already have. I would make sure me [sic] and my kids had a stable home. I had a car this time. I made sure that I stayed in parenting classes. Of course, I'm not able to bring proof because I have been in jail since the day that this happened, but I have a lot of proof of me having a stable home, stable jobs.

         Dessarae M. was then asked about "the physical abuse" sustained by her previous four kids. When asked again about physically abusing her son by shaking him ...


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