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In re J. M. I.

Court of Appeals of Texas, First District

March 30, 2017

IN THE INTEREST OF J. M. I.

         On Appeal from the 313th District Court Harris County, Texas Trial Court Case No. 2015-05008J

          Panel consists of Chief Justice Radack and Justices Brown and Lloyd.

          MEMORANDUM OPINION

          Russell Lloyd Justice

         Appellants, 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.

         Background

         D.J.I. 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 of J.M.I.

         J.M.I. 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.

         H.C. is 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.

         Appellants 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.

         On 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 discovery.

         At the 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.

         On 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.

         During 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.

         At 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]

         Regarding 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.

         H.C. 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.

         On 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.

          H.C. 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.

         D.J.I. 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.

         D.J.I. 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 ...


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