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In re J.Y.

Court of Appeals of Texas, Sixth District, Texarkana

April 28, 2017


          Submitted: March 28, 2017

         On Appeal from the 76th District Court Titus County, Texas Trial Court No. 37, 897

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


          Bailey C. Moseley Justice

         The Texas Department of Family and Protective Services (the Department) filed a petition to terminate the parental rights of Geri and John to their three children-Jane, Gayle, and Bailey.[1]After a bench trial, the trial court issued an order naming the Department as permanent managing conservator of the children and naming Geri and John as possessory conservators of the children. Geri appeals the order of the trial court. Although we find that the trial court's order appointing Geri as the children's possessory conservator was within its discretion and that Geri has not preserved her due process and equal protection claims, we reverse the trial court's judgment because the trial court erred in having insufficiently specified the terms of Geri's possession of or access to the children.

         I. Background

         When the Department investigated a report of Geri's neglectful supervision and physical neglect of her three elementary school-aged children in August 2014, it discovered that although Geri was receiving $600.00 a month in food stamps, she was running out of food for the children by mid-month. Geri refused to disclose information regarding specific allegations relating to previous domestic violence, current substance abuse issues, and her mental health status.[2]Consequently, the Department referred the case to Family Based Safety Services (FBSS), and the trial court ordered Geri to participate in those services.[3] From the beginning of the case, Geri's mental health was a concern. This concern was prompted by Geri's evident labile emotions. Geri was not forthcoming and refused to cooperate with the FBSS psychological evaluation, [4] and she was not compliant with the services FBSS sought to provide.

         Geri did not activate the air conditioner during the summer due to financial concerns, and she dressed the children in multiple layers of long clothing. Although Geri was employed, the electricity at her home was cut off in October 2014, and in October and November, there were still problems with inadequate, or no, food in the home.[5] At a hearing in late October, Geri's behavior was erratic, and she was disruptive in the courtroom.[6] As a result of these concerns, and pursuant to an agreement for parent-child safety placement, the children were placed in the home of an aunt and uncle. Although Geri agreed to the safety placement, she soon became dissatisfied with it and began to complain that the aunt and uncle were smoking cigarettes and drinking alcohol around the children and that the children were in danger. The Department assessed these concerns and determined that the aunt and uncle were an appropriate placement for the children. On November 1st, Geri was arrested for criminal trespass when she attempted to remove the children from the aunt and uncle's care.[7]

         When Geri arrived for a scheduled visit with the children later that month, Gayle cried and did not want to see her mother. Jane sat on the floor and played with toys, and Bailey, who was pre-school aged at the time, cried and wanted a Department employee to hold her. Geri confronted Jane and told her that she was to be sure that her aunt and uncle were not drinking and smoking, because as the oldest child, Jane was responsible for Bailey and Gayle. Geri was escorted from the visitation room and asked not to talk about the "placement." When Geri re-entered the room, Gayle was crying and shaking and wanted to leave with her aunt. When Geri continued to discuss her opinion of the aunt and uncle with the children, the visit was terminated.

         Geri's next visit with the children on November 18 was equally negative. Gayle stated that she did not want to see her mother and cried at the prospect of doing so. Gayle ultimately left the room and did not return for the remainder of the visit. Jane again sat on the floor with her back to Geri, and Bailey did not want to go to Geri. Instead, she clung to the Department caseworker. When the visit was completed, Geri handed the caseworker a grocery sack containing four onions to give to the children.

         In January 2015, the children began counseling sessions with Joanne Christian, a licensed professional counselor employed by the Department. At that time, the children showed signs of post-traumatic stress disorder and were diagnosed with that condition. They had significant trust and abandonment issues and had been emotionally and physically abused. Jane and Gayle were frightened of Geri and had no attachment to her at all. Bailey did not know that Geri was her mother.

         The following month, the children were placed with Catherine and David Hall, at Geri's request. Geri had become acquainted with the Halls at church and trusted them with the children.[8]Catherine testified that she witnessed Geri imposing discipline on the children by hitting them with a spoon and that Geri beat the children excessively at times. During the approximate eighteen-month time period during which the children resided with the Halls, the children did not want to visit Geri and, in fact, did not see her for over three months. Jane told Catherine that she was frightened of Geri, and Gayle would "tremble at the fact that she would have to go see [Geri]."

         Following a period of no contact with Geri, the trial court ordered telephonic visits between Geri and the children. After the initial telephone visit in April 2015, Gayle stated that she neither wanted to see Geri nor speak with her.[9] After the telephonic visit, Christian's recommendation that the children have no contact with Geri was echoed by the children's attorney ad litem and by the Court Appointed Special Advocate (CASA). At that point, the trial court ceased all visitation based on the children's extreme reaction to the telephonic visit with Geri. Christian testified that following the telephonic visit, the children were "completely retraumatized" and that "we lost significant ground in helping them regain any type of emotional stability and security."

         Visitation ultimately resumed in October 2015, in Christian's office. Jane did not interact with Geri during this visit at all. Gayle became so anxious and upset she had to be removed from the room because she was hyperventilating, an apparent indication that Gayle had been suffering from some type of serious abuse. In interacting with Bailey, Geri referred to Jane and Gayle as Geri's "friends and her sisters." When Bailey asked Geri who Geri was, Geri told her, "[T]he Court says I'm your mother." After approximately two months, Christian recommended that the trial court discontinue Geri's visitation with the children because her behavior toward the children became inappropriate, and Jane and Gayle had begun to regress as a result of their contact with Geri. The trial court did not, however, accept this recommendation.

         Although the children were thriving under the Halls' care, they were abruptly removed from the home in July 2016, after Geri accused David Hall of sexually molesting Bailey. Christian testified that she was present when Geri made the accusation, following a visit with Bailey in March 2016. The accusation was made after Bailey, who was sick, had problems with diarrhea. Geri then asked Bailey if her daddy put his hands down her pants. Bailey began to cry and stated that she wanted her daddy. Geri testified that Bailey answered, "Yes" to her question regarding Hall. Consequently, she filed a criminal complaint against Hall. Christian testified that Hall did not do anything inappropriate, and, following an investigation of this allegation, no charges were filed against him. The children, however, were forced to move to different foster homes. Jane once again become parentified, Bailey was confused at having to leave the only parents she has ever known, and Gayle wanted to return to her "Mommy and Daddy, " referring to the Halls.[10]Geri's contact with the children was again discontinued after this incident.

         In Christian's professional opinion, Geri has emotionally and physically abused the children. Christian testified that if the children were returned to Geri, they would be exposed to serious emotional and physical damage. Christian indicated that she has seen no evidence that would demonstrate that Geri is able to emotionally or physically care for the children and was especially concerned that Geri might further hurt Gayle physically. She opined that placement with the Department on a permanent basis is in the best interests of the children.[11]

         Karen Chism, the Department's conservatorship supervisor for Titus, Camp, and Upshur Counties, expressed concerns regarding Geri's mental health, her inability to meet the children's basic needs, and her failure to protect the children.[12] Although Geri completed all required classes in her service plan, she was not able to provide a stable home for the children. In addition to her apparent inability to properly support the children and to provide them with adequate food, [13] Geri's poor judgment regarding the children's safety is reflected in a June 2016 Facebook post in which she indicated that her father had come to see her from Utah, but she had no way to pick him up in Pittsburg. Geri then posted her Mount Pleasant address and stated that she would leave the back door to her home open while she was at work.[14]

         On another occasion in June, Geri's Facebook post indicated that she was walking to Pittsburg and asked that someone pick her up and give her a ride.[15] Chism was concerned that these posts reflected negatively on Geri's mental state and placed her in possible danger. Geri also spent time with her father, whom she admitted molested her as a child. Chism expressed concern that if the children were to live with Geri, her father could be left unsupervised with the children.[16]Chism was also concerned that Geri seemed to be unaware of who might be in her home at any given time and that she leaves the back door unlocked so people can come and go.[17] CASA's most recent visit to Geri's home reflected that it was in disarray, was unsanitary, and smelled of animal urine.

         Chism is likewise of the opinion that the children would experience serious emotional and physical damage in Geri's care and that placement with the Department on a permanent basis is in their best interest. Amanda Penny, a volunteer for CASA who has followed the children throughout the case, is likewise of the opinion that it would not be in the children's best interests to be returned to Geri. Based on the children's reactions to Geri-as previously described-Penny believes that the children will experience serious emotional or physical damage if they are returned to Geri. Likewise, the attorney ad litem recommended to the trial court that the children remain in the conservatorship of the Department.

         II. The Trial Court's Appointment of Conservators for the Children Was Within its Discretion

         Geri contends that the evidence is factually and legally insufficient to support the conservatorship order. We disagree.

         A trial court's order regarding conservatorship is reviewed under an abuse of discretion standard. In re J.A.J., 243 S.W.3d 611, 616 (Tex. 2007). A trial court abuses its discretion if it acts arbitrarily and unreasonably or without reference to any guiding principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). We, therefore, will not reverse a trial court's appointment of a non-parent as sole managing conservator unless we determine that the appointment was arbitrary and unreasonable. J.A.J., 243 S.W.3d at 616; Earvin v. Dep't of Family & Protective Servs., 229 S.W.3d 345, 350 (Tex. App.-Houston [1st Dist.] 2007, no pet.). "We view the evidence in the light most favorable to the trial court's decision and indulge every legal presumption in favor of its judgment." Earvin, 229 S.W.3d at 350.

         Legal and factual sufficiency are not independent grounds of error in conservatorship cases but are merely relevant factors in deciding whether the trial court abused its discretion. In re W.M., 172 S.W.3d 718, 725 (Tex. App.-Fort Worth 2005, no pet.). In applying the abuse of discretion standard, we initially determine whether the trial court had sufficient evidence upon which to exercise its discretion. If so, we then determine whether the trial court erred in its exercise ...

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