IN THE INTEREST OF J. M. I.
Appeal from the 313th District Court Harris County, Texas
Trial Court Case No. 2015-05008J
consists of Chief Justice Radack and Justices Brown and
Russell Lloyd Justice
H.C. and S.S., are appealing the trial court's
appointment of the Department of Family and Protective
Services as J.M.I.'s sole managing conservator. In two
issues, appellants argue that the trial court abused its
discretion (1) when it denied their motion for a continuance
based upon incomplete discovery, and (2) when it appointed
DFPS as J.M.I.'s managing conservator, rather than
appellants. We affirm.
is the mother of J.M.I. In July 2015, DFPS began
investigating her after receiving a referral alleging
neglectful supervision on grounds of drug use and domestic
violence. On August 28, 2015, DFPS filed a petition for child
protection, conservatorship, and parental termination with
respect to J.M.I. DFPS requested to be named J.M.I.'s
managing conservator, citing continuing danger posed to him
by D.J.I.'s ongoing substance abuse as well as her
blatant disregard for the physical and emotional well-being
was removed from D.J.I.'s care and temporarily placed
with Stephanie, the mother of D.J.I.'s girlfriend, T.P.
The child remained in Stephanie's care until trial.
J.M.I.'s maternal grandmother. She and her live-in
boyfriend, S.S., attended every hearing held regarding J.M.I.
during the pendency of this case. A February 2016 report by
J.M.I.'s guardian ad litem indicates that appellants had
asked for J.M.I. to be placed with them.
filed a motion to intervene in this case on June 21, 2016. In
their motion, appellants asserted that they had helped raise
J.M.I. since his birth in June 2011 and that the child had
resided in their home from June 2011 until June 2014 and from
February 2015 until he was placed in Stephanie's care by
DFPS in August 2015.Although trial was originally set for
August 17, 2016 at D.J.I.'s request, the trial court
continued the case and re-set trial for September 1, 2016.
August 19, 2016, appellants served DFPS with a request for
production and a request for disclosures. Three days later,
appellants filed a motion to shorten the discovery period,
asking the trial court to order DFPS to produce the requested
documents by August 29, 2016. On August 25, 2016, DFPS filed
a motion to quash, arguing that the discovery requests were
untimely because they were sent less than thirty days before
trial. See Tex. R. Civ. P. 190.3 (providing that all
discovery in DFPS's suit must be conducted within
discovery period, beginning when suit was filed, and ending
thirty days before trial). During a pretrial hearing on
August 25, 2016, DFPS also argued that appellants were not
parties to the suit because, although appellants had filed a
motion to intervene in June, they had not filed a plea of
intervention, and, therefore, appellants were not entitled to
hearing, the trial court asked appellants' counsel to
send DFPS a short list of specific documents which could be
readily or easily produced. Appellants' counsel emailed
DFPS a list of five categories of documents they were
requesting on August 29, 2016. On August 30, 2016, DFPS
produced appellants' redacted home study conducted in
October 2015, along with DFPS's original petition with
removal affidavit. Appellants filed their plea of
intervention the same day.
September 1, 2016, appellants filed a motion for continuance
based on incomplete discovery. Appellants filed a first
amended Petition in Intervention on September 8, 2016. When
trial began on that same day, appellants renewed their motion
for continuance based on incomplete discovery, arguing that
they needed to depose at least two DFPS employees and obtain
J.M.I.'s case file. After hearing arguments from the
parties, the trial court denied the motion for continuance.
trial, H.C. testified that she had three children of her own
and was stepmother to S.S.'s two children. She had lived
with S.S. for ten years, but was married to another man named
Troy. A home study was conducted in October 2015 after H.C.
requested a home assessment because she wanted J.M.I. to be
placed in her home. Although H.C. testified that she
mentioned Troy to the person conducting the home study, Troy
is not mentioned in the marriage section of the home
assessment. H.C. testified that she kicked Troy out of her
home in 2003 after she learned that Troy was sexually
assaulting her daughter, D.J.I.'s sister.
trial, H.C. confirmed that she was still legally married to
Troy and testified that she had not sought a divorce from him
because "he was in prison. He's going to stay in
prison. So, [my] last name didn't really make a
difference to [me]." She later testified that she had
filed for a divorce, but had been unable to serve him with
the petition. H.C. later admitted that she did not file for
divorce until the day before trial. [3 RR 30]
her relationship with J.M.I., H.C. claimed to have a
wonderful relationship with the child but stated she had not
seen him since August 9, 2015, when DFPS removed him from her
home. According to H.C., D.J.I. had lived with her while
pregnant with J.M.I., and both D.J.I. and child moved into
her home following J.M.I.'s birth. She testified that she
had always provided J.M.I. with a loving home environment
free from domestic violence and she denied threatening or
harassing D.J.I. or J.M.I.'s caregiver, Stephanie.
further testified that she and D.J.I. had a good relationship
until D.J.I. began dating T.P. According to H.C., D.J.I. was
always out, she stopped coming home every night, and she left
J.M.I. in appellants' care.
further questioning, H.C. revealed that her three other
children had also lived in her home while J.M.I. was living
there. She admitted that her son had a criminal history in
the form of a substance abuse charge and that her older
daughter, M.J.I., had assaulted D.J.I. just a few days prior
to trial. When asked about J.M.I.'s present placement,
H.C. stated she objected to his staying with Stephanie
because "he has family, lots of family, " but
acknowledged that Stephanie had taken good care of J.M.I. in
the time he had stayed with her.
stated that at the present time, only she and S.S. lived in
their home, although her son did come to visit once or twice
a week. She did not know the status of any criminal charges
against her son, but acknowledged this would be important
information to have. When asked if she felt there were any
ulterior motives supporting D.J.I.'s request for J.M.I.
to be placed with Stephanie, H.C. asserted that she believed
D.J.I. was in favor of this placement because Stephanie
provided her access to a car.
testified that she wanted J.M.I. to remain with Stephanie.
She claimed to have witnessed domestic violence between
appellants when living in their home, saying that "they
would argue, get physical." She also testified that her
brother had physically attacked her more than four times and
that, rather than protecting her from these attacks, H.C. had
asked what D.J.I. was doing to provoke her brother.
also claimed that she and T.P. had been harassed at various
times during the case by appellants and that, on one
occasion, S.S. was escorted out of the courtroom by bailiffs
for saying he would "have the cops ...