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In re R.L.

Court of Appeals of Texas, First District

April 21, 2017


         On Appeal from the 311th District Court Harris County, Texas Trial Court Case Nos. 2009-03954, 2013-49862, and 2014-29889[1]

          Panel consists of Justices Jennings, Higley, and Massengale.


          Terry Jennings Justice

         In these accelerated appeals, [2] appellant, T.H.L., challenges the trial court's orders, entered after a bench trial, awarding the Department of Family and Protective Services ("DFPS") permanent managing conservatorship of her four minor children, R.C., [3] R.L., C.J., and C.C.J. (collectively, "the children").[4] In her sole issue, T.H.L. contends that the trial court erred in appointing DFPS as the children's permanent managing conservator.[5]

         We affirm.


         On August 23, 2013, DFPS filed its "Original Motion to Modify for Conservatorship, " seeking managing conservatorship of R.C. and R.L., and its "Original Petition for Protection of a Child for Conservatorship, " seeking managing conservatorship of C.J. On May 27, 2014, DFPS filed its "Original Petition for Protection of a Child for Conservatorship, " seeking managing conservatorship of C.C.J.[6] DFPS attached to its motion and petitions, the affidavit of DFPS Investigator Patrick Atkins.

         In his affidavit, which the trial court admitted into evidence, Atkins testified that on June 17, 2013, DFPS received a report of neglectful supervision of the children. On June 13, 2013 at 1:00 a.m., when T.H.L. left her home "to clear her head, " her fiancé, D.J., [7] and her son, C.J., who was six months old, were in her bedroom. When T.H.L. returned home at 6:00 a.m., she "noticed . . . blood on the bed, " but did not "enter [her] room, " even though she was aware that C.J. was still inside. Instead, T.H.L. went upstairs, had her mother call for emergency assistance, and had her daughter, R.C., who was thirteen years old at the time, "go downstairs to get [C.J.] from the room." D.J. died from "blunt force trauma to the head." T.H.L. reported that "[a]t the time of [D.J.'s] murder, " she was "parked at a park" near her home "talking to a friend" on her cellular telephone and then went to a store. According to Atkins, T.H.L. and her ex-husband R.A.L., the father of R.C. and R.L., [8]were the "prime suspects in the murder" of D.J. and the "oldest children [were] potential[ly] witnesses." DFPS officials also believed that the children "may [have] be[en] at a risk of harm due to [T.H.L.] and [R.A.L]'s history of violent behavior."

         During Atkin's investigation, T.H.L. told him that on the night that D.J. was murdered, he had been "acting like he was worried about something" and said that he "had something heavy to tell her." D.J. and T.H.L. then drove to a daycare facility to pick up C.J. around 9:00 p.m. As T.H.L. was backing her car out of the facility's parking lot, "a car pulled up and tried to block her in [her] parking spot. [Two] black males were in the car and the passenger got out of the car and . . . opened the trunk of the car." D.J. then told T.H.L. "to go, go, go[, ]" and she was able to back out and drive out of the parking lot. At the time, D.J. seemed agitated.

         When they returned to T.H.L.'s house, D.J. spent time talking and texting on his cellular telephone. At 10:00 p.m., D.J. told her "what was going on." Specifically, "someone had shot at his daughter . . . earlier in the evening and . . . a gang called 44 was trying to kill his son . . . and daughter." D.J.'s son "had killed a boy" and "the boy[']s gang" was seeking revenge. At about 1:30 a.m., D.J. told T.H.L. that "he was going to deal[] with [everything] in the morning and go get a gun." He then went to the bedroom and to sleep. Because her mother was staying at her house, T.H.L., who was "freaking out, " decided to go "for a drive to clear her head." She drove to a "small lake near her house to think, " and when "it started to get light" outside, she "went to Walmart to get breakfast for the children." T.H.L. returned home around 6:00 a.m., noting that the gate to the side of her house and the door to the garage were open. She proceeded to her bedroom and stopped in the doorway when she saw blood on the bed. T.H.L. then went upstairs to get her mother to ask her "to go check the room"; however, her mother was "too afraid." R.C. then "said [that] she would go and went down stairs." R.C. returned with C.J. and told T.H.L. that D.J. was in the bed and bleeding.[9]

         In regard to T.H.L. and R.A.L.'s relationship, Atkins testified that R.A.L. told him that T.H.L. had once stabbed him. R.A.L. also acknowledged that in 2009 he was arrested for the criminal offenses of forgery and terroristic threat. In regard to the terroristic threat, R.A.L. had telephoned T.H.L. and told her that "he was going to put her and her mother in an oven." He also acknowledged a history of domestic violence. And Atkins noted that T.H.L. and R.A.L.'s relationship appeared to be "very cozy."[10]

         Atkins further testified that R.C. told him that R.A.L. was "very mean" to her and "treat[ed] her like trash." He would "yell[] and scream[] at her" and "verbally abuse[] her." And she did not feel safe around him. R.C. also said that she did not "want to go back with her mother" and did not feel safe with her.

         DFPS caseworker Gianna Robinson testified that it is in the children's best interest to have DFPS as their permanent managing conservator and not be returned to T.H.L. Robinson noted that R.C. is sixteen years old and doing well in a foster home. While in her foster home, R.C. has been thriving, her school grades have improved, and she has a part-time job. R.C. wants to go to cosmetology school, and her foster mother is willing to have R.C. remain in her home. R.C. participates in individual therapy and has supervised visits with T.H.L. R.C. told Robinson that, although she would like her visits with T.H.L. to remain supervised, she does want to continue to have contact with her. Notably, R.C. feels that it is best for her to stay in her foster home, where she feels safe and comfortable, and believes that she is "growing." And Robinson explained that there have been allegations of abuse of R.C. by her father, R.A.L.

         R.L. is twelve years old and doing well in a foster home with his brother, C.J. R.L. is doing well in school, is involved in band, and plays football and basketball. He is comfortable and happy in his current placement and participates in family therapy. Although Robinson recommends that R.L.'s visits with T.H.L. be supervised, she noted that R.L. and T.H.L. have a loving relationship, he is not afraid of T.H.L., and T.H.L. brings him food at visits.

         C.J. is four years old and doing well in a foster home with his brother, R.L. C.J. attends daycare and engages in activities with R.L. C.J. also participates in family therapy, and Robinson recommends that C.J. have supervised visits with T.H.L.

         C.C.J. is two years old and doing well in a "relative home" with her aunt, D.J.'s sister. She participates in gymnastics and dance. Robinson recommends that C.C.J. have supervised visits with T.H.L., noting that over the last four months, T.H.L. had had three visits with C.C.J.

         In regard to T.H.L., Robinson explained that DFPS hopes to continue to work with her on her coping skills and "managing everything, " including "how she interacts w[ith] the children." T.H.L. wants the children returned to her, and she participates in individual and family therapy with the children. However, T.H.L. has not demonstrated "parenting skills" or "coping skills" during her visits with the children. T.H.L. successfully completed her individual therapy, her parenting classes, and all of the services required by her Family Service Plan ("FSP"), except family therapy. However, Robinson explained that the children should not be returned to T.H.L. because she has not yet completed family therapy and there is an "open investigation" of D.J.'s murder.[11] Robinson is also concerned about the "safety and the environment of the children" should they be returned to T.H.L. And she noted that the children's therapist does not recommend that they be returned to T.H.L.'s home.

         Noting that T.H.L. lives in a small apartment, Robinson is also concerned about the sleeping arrangements that T.H.L. has made for the children. If the children were to be returned to T.H.L., R.C. and C.C.J. would share a bedroom, while T.H.L. and her "[g]odmother" would share the other bedroom. Because R.L. and C.J. would have to sleep in the living room "right there by the front door, " C.J. "could just get up and walk out the door." And because T.H.L.'s home contained "fruit flies" and R.C. has previously witnessed an altercation in the home between T.H.L. and R.A.L., Robinson expressed her concern about "the safety of the home, " the prior "home violence, " and the domestic violence that has occurred between T.H.L. and R.A.L.

         Nikia Wingard, who was previously the DFPS caseworker for the children, testified that she was involved with the children for three years, and T.H.L. was "very uncooperative, angry, blam[ed] [DFPS] for everything, " and "never took responsibility for anything." Although her poor attitude remained unchanged, T.H.L. did complete the requirements of her FSP.[12] Wingard noted that T.H.L. loves her children, wants them returned to her, and is employed and financially able to care for the children. When the children came into DFPS's care, they were healthy, "good kids, " who had a bond with T.H.L. T.H.L. acted appropriately during her visits with C.C.J., and the children appear happy to see T.H.L. at their visits.

         However, Wingard opined that T.H.L. would be a danger to her children, was not "a constant" in their lives after DFPS took custody of them, could not be relied upon, was not consistent, and did not "abide by the rules and regulations" of DFPS. Wingard expressed her concern about T.H.L.'s ability to protect the children and keep them safe, and she opined that there would be a risk of emotional or physical danger to the children if they were returned to T.H.L. Wingard averred that T.H.L. is dishonest and has engaged in certain acts and omissions that "may indicate that the existing parent/child relationship is not proper or is not in the best interest of the children, " such as not being cooperative or protective of the children. And over the course of this case, Wingard has not seen any "growth and development" on the part of T.H.L. She opined that T.H.L. cannot meet the needs of the children and it is in their best interest that they remain in their current placements. And Wingard noted that D.J.'s murder remains unsolved.

         Wingard further explained that right after DFPS took custody of the children, it placed them with T.H.L.'s mother. However, after one week, it removed the children from her care because T.H.L. violated DFPS's rule that she not have contact with the children. DFPS then placed the children in a foster home together.[13] However, while the children were in this new placement, T.H.L. "sneaked" R.C. an iPod[14] device during a visit and then "contact[ed]" R.C. using the iPod "while [R.C.] was in the foster home." T.H.L. then encouraged R.C. to use the iPod, which violated DFPS's rules and caused problems in R.C.'s foster home.[15] And R.C. had to be removed from the placement because of the incident with the iPod. Other actions by T.H.L. also caused R.L. and C.J. to be removed from the foster home. Although the trial court subsequently ordered T.H.L. to have no contact with the children, she "continue[d] to communicate" with R.C., "even though there [was] a no contact order."

         Currently, R.C. lives in one foster home, while R.L. and C.J. live together in a separate foster home. Wingard noted that R.C. is not with her brothers because of T.H.L.'s "disruptive[ness]." Wingard explained that T.H.L. gave birth to C.C.J. during the pendency of this case and has visited her. However, T.H.L. has not attended every visit, not always arrived on time, and provided excuses only "[s]ometimes." There was also a "period of time when [T.H.L.] just failed to visit for several weeks."[16]

         At one point, DFPS had "a plan in place to [re]start contact between [T.H.L.] and the children." Initially, T.H.L. was to write letters to the children, and then she would eventually have "[tele]phone contact" with them. Wingard explained that the children did not write back to T.H.L. and the "[tele]phone contact" did not occur because their therapist had concerns about T.H.L.'s behavior.

         Wingard further noted that before DFPS took custody of the children, R.C. had taken on a "parenting role" with her younger siblings that was not age appropriate. R.C. was traumatized, confused, and hurt by the events surrounding D.J.'s murder. However, R.C. is now doing "[w]onderful[ly], " is happy, wants to work, "knows what she wants, " and is "looking towards her future, making future goals." She wants to stay with her foster mother, who provides her with transportation to and from her various activities. And Wingard opined that her placement will be able to meet her future emotional and physical needs. Wingard also noted that during the pendency of this case, T.H.L. told R.C. that R.A.L. is her biological father, even though R.C. had spent her entire life believing that another man was her father. R.C. was shocked, surprised, and not "too happy about the information."

         Wingard also testified that R.L. is doing "very, very good, " although he "[s]truggl[ed]" when DFPS first took custody of him. Initially, R.L. was confused, had "mixed emotions, " and "really didn't understand what was going on." Now, he is "outgoing, active, happy, more talkative, " "listens more, " and is "a totally different person from the beginning" of the case. C.J. is also happy, outspoken, talkative, and bright. And he and R.L. get along well and want to remain in their current placement. Wingard opined that it is in the best interest of R.L. and C.J. to remain together, and their current placement will meet their future emotional and physical needs. Their foster parents, who provide them with transportation and equipment needed for their various activities, are committed to helping them excel and taking care of their needs.

         C.C.J. is also doing well in her placement. And Wingard opined that it is in her best interest to remain in her current placement with her aunt, who is able to meet her future emotional and physical needs.

         According to Wingard, the children's respective placements are protective and meet their needs. Their caregivers are caring, communicate well with them, discipline them, and ensure that they remain active. The caregivers have also availed themselves of programs to assist them and promote the best interest of the children. For instance, R.C. has "consistent therapy inside the home" and with DFPS, participates in the Preparation for Adult Living Skills program, attends tutoring when needed, and is allowed to work. R.L. is involved with mentoring, basketball, and "one-on-one" intervention with a coach at his school. And C.J. is in an after-school program that "expose[s] [him] to other children, " as is C.C.J. Each placement is stable, and DFPS desires permanency for the children.

         John Chapman testified that three years prior to trial, when he was a DFPS investigator, he went to T.H.L.'s purported residence to locate C.C.J., who was an infant, after T.H.L. "would not produce the child." Upon his arrival, he saw evidence that C.C.J. had been at the home, but R.A.L., who was present, told him that T.H.L. had taken C.C.J. to Louisiana. Chapman then called T.H.L.'s cellular telephone number, and she stated that she was "on the road" to Louisiana and "in the area." (Internal quotations omitted.) Chapman later learned, however, that T.H.L. was not on her way to Louisiana, but actually in a meeting with her caseworker at the DFPS office. After T.H.L. later agreed to meet Chapman to let him see C.C.J., she arrived without the child. T.H.L. then subsequently returned with C.C.J. and took her out of her car. However, when law enforcement officers arrived, T.H.L. "grabbed the baby, " "jumped in" the front seat of her car, shut the door, and "attempted to take off" with C.C.J. in her lap. T.H.L. finally gave C.C.J. to Chapman, and he served her with a "Notice of Emergency Removal."

         Chapman opined that T.H.L. was untrustworthy and "willing to do whatever she needed to do to continue to deceive [DFPS]." He stated that T.H.L. was "a flight risk, " who had family and friends, including R.A.L., who were willing to help her mislead DFPS.

         Sharon Boutwell, a volunteer with Child Advocates Inc. and the child advocate for R.C., R.L., and C.J., testified that it is in the children's best interest to remain in their current placements and for DFPS to be named their permanent managing conservator. She also recommended that T.H.L. have supervised visits with the children through a family therapist[17] and the children not have visits with R.A.L., unless first approved by a therapist. In making her recommendations, Boutwell considered the desires of the children.

         Boutwell noted that R.C. participates in individual and family therapy. Although R.C. was "quiet at the very start" and took "a long time to build up trust, " she is now outgoing, expressive, and "very pleased with how her junior year was going to start in high school." R.C. is also "more focused" and "able to tell you what she wants for herself and for her future." She has worked with her therapist on "some of the concerns that she had when she entered into foster care . . . [related] to having been in a situation where there was a murder." R.C. continues to work on issues related to R.A.L. and "talking to her mom." She and her foster mother have a strong relationship, and if R.C. were returned to the care of T.H.L., Boutwell is concerned about her health, safety, and welfare, especially about her moving backward in the progress that she had made so far.

         R.L. participates in individual and family therapy, is on the quiet side, is an "outstanding athlete, " and loves being with his foster mother's son. Boutwell opined that R.L. has bonded with his foster mother, and together, the foster mother and father, their son, R.L., and C.J. "feel[] like [a] family." C.J. participates in family visits and is a "very industrious" child. He has a strong vocabulary, does his homework, and is "able to work within the structure of understanding rules and consequences." Boutwell is concerned about R.L. and C.J. being returned to T.H.L., especially because C.J. has "no relationship" with T.H.L. and does not know her well.

         Boutwell further testified that Child Advocates is concerned about T.H.L.'s "patterns of behavior, " including her "not seeing the inappropriateness of some of the individual males that she has been with" and the frequency with which she "chang[es] jobs." Boutwell noted that T.H.L. still has a relationship with R.A.L., who has been involved with her in physical and domestic violence that the children have witnessed, and T.H.L. associates with individuals with criminal histories. And although T.H.L. has a "desire to understand" her children, she is not capable of "understand[ing] what the children have actually experienced as a result of their involvement in a home [in which] a murder" occurred. In other words, T.H.L. is not able to "see things through the eyes of the children." She has also exhibited a lack of "follow-through" with the children and an inability to "associate with the children and their needs." Boutwell opined that T.H.L. has not been truthful, does not have the judgment necessary to raise the children in a safe environment, and lacks the ability to "provide a protective home for the[] children."

         Boutwell did explain that although the children initially had reservations about their visits with T.H.L., they have gradually gotten better. The children are "good kids, " they were raised appropriately, and they are not disrespectful. And there is no evidence that T.H.L. has ever injured them. However, Boutwell is concerned about the emotional harm that R.C. suffered when she entered the bedroom where D.J. had been murdered.

         Dwayne King, a volunteer with Child Advocates, testified that he is the child advocate for C.C.J., who is currently in a "kinship placement." He recommended that she remain in her current placement and DFPS be appointed her permanent managing conservator. King opined that this is in the best interest of C.C.J. because she is closely bonded with her caregiver. Returning C.C.J. to T.H.L. is not in her best interest because it "would place [her] in danger, " both physically and emotionally. King noted that C.C.J. currently is happy, playful, healthy, and "developmentally on track."

         King further expressed concern that T.H.L., in the past, had allowed "unsafe circumstances" to exist in her home. He noted that the murder of D.J. occurred in T.H.L.'s home and she has allowed "unsafe men . . . to be a part of her life." T.H.L. had also engaged in "[s]chemes of misrepresentation and fraud that w[ere] connected with the children or . . . involved the children." King opined that if returned to T.H.L., the children would be exposed to physical danger and "circumstances that are unsafe for them in terms of their emotional condition." And King noted that T.H.L. has "made decisions both before and during the case that are unwise and imprudent and reflect poorly on her parenting capability."

         King did acknowledge that the children should have visits with T.H.L., but they should be supervised. There is no evidence that T.H.L. ever abused C.C.J. And King opined that C.C.J. could develop an appropriate relationship with T.H.L. Nevertheless, he believes that the appointment of T.H.L. as C.C.J.'s permanent managing conservator would "significantly impair the child's physical health and emotional development."

         Leon Curtis Riggins, who has been incarcerated in the Harris County Jail since March 2016 for the felony offenses of possession of a controlled substance and "possession of a weapon, " testified that he and T.H.L. have been friends for "two or three years" and he had "helped her out from time to time." Riggins had previously been convicted of the offenses of possession of a controlled substance, possession of marijuana, "felony theft, " "felony possession of a weapon, " "unlawful carrying of a weapon, " and "assault on a family member." Riggins explained that he was T.H.L.'s boyfriend at some point after DFPS removed the children from T.H.L., they engaged in a sexual relationship until January 2016, and she visited him in jail in 2016. Riggins admitted that he had previously been "ordered to register as a sex offender" and he engaged in illegal ...

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