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In re R.S.-T.

Court of Appeals of Texas, Fourth District, San Antonio

May 17, 2017

IN THE INTEREST OF R.S.-T., a Child

         From the 25th Judicial District Court, Guadalupe County, Texas Trial Court No. 14-2048-CV Honorable W.C. Kirkendall, Judge Presiding

          Sitting: Sandee Bryan Marion, Chief Justice Patricia O. Alvarez, Justice Luz Elena D. Chapa, Justice

          OPINION

          Patricia O. Alvarez, Justice

         This is an accelerated appeal of the trial court's order terminating Appellants Ralph's and Carla's[1] parental rights to their child, R.S. T. Ralph contends the evidence does not support the trial court's termination based on Texas Family Code subsections 161.001(1)(b)(D), (E), and (O). Tex. Fam. Code Ann. § 161.001(b)(1)(D), (E), (O) (West Supp. 2016). Ralph also contends the trial court failed to properly conduct the requested de novo hearing pertaining to the parental terminations. Carla, on the other hand, does not argue that the evidence was insufficient to support the trial court's findings that she violated statutory grounds for termination. Instead, she asserts the evidence is neither legally nor factually sufficient for the trial court to have found by clear and convincing evidence that terminating her parental rights is in R.S. T.'s best interest. See Tex. Fam. Code Ann. § 161.001(b)(2). Because we conclude the evidence is legally and factually sufficient to support the trial court's findings in both cases, we affirm the trial court's order terminating Ralph's and Carla's parental rights to R.S. T.

         Factual and Procedural Background

         Carla gave birth to R.S.-T. on August 7, 2014. The next day, on August 8, 2014, the Texas Department of Family and Protective Services received a referral alleging physical abuse and neglectful supervision of newborn R.S. T. R.S. T.'s mother, Carla, tested positive for marijuana on two different prenatal visits and, after delivery, the nursing staff expressed concern that Carla's cognitive delay might affect the child's care following his release from the hospital. The Department set up a formal safety plan requiring that (1) the hospital release R.S. T. only if Carla's parents were present and (2) Carla reside with her parents.

         R.S. T. was released from the hospital in accordance with the safety plan. Within a couple of days, however, Carla moved out of her parents' residence. During the next six weeks, the Department's numerous voice messages and attempts to contact Carla, and to ensure the safety of R.S. T., went unanswered.

         On September 22, 2014, the Department's investigator finally located Carla and R.S. T. The six-week old baby appeared lethargic and withdrawn. The child was taken to an emergency room in Guadalupe County and ultimately transferred to a children's hospital in San Antonio. The following day, on September 23, 2014, the Department filed its Original Petition for Protection of a Child and for Conservatorship and for Termination in Suit Affecting the Parent-Child Relationship. Included in the motion was a request for emergency temporary orders naming the Department as Sole Temporary Managing Conservator of R.S. T. with the exclusive right to physical possession of the child.

         On October 23, 2016, after several permanency hearings, a multiple-day bench trial on the merits before the associate judge, and a de novo hearing before the district court judge, Ralph's and Carla's parental rights to R.S. T. were terminated based on (1) subparagraphs (D), (E), and (O) of section 161.001(b)(1), [2] see Tex. Fam. Code Ann. § 161.001(b)(1)(D), (E), (O), and (2) a determination that such termination was in the child's best interests, see id. § 161.001(b)(2).

         Sufficiency of the Evidence

         A. Standards of Review

         "Involuntary termination of parental rights involves fundamental constitutional rights and divests the parent and child of all legal rights, privileges, duties, and powers normally existing between them, except for the child's right to inherit from the parent." In re L.J.N., 329 S.W.3d 667, 671 (Tex. App.-Corpus Christi 2010, no pet.) (citing Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985)). As a result, appellate courts must strictly scrutinize involuntary termination proceedings in favor of the parent. Id. (citing In re D.S.P., 210 S.W.3d 776, 778 (Tex. App.- Corpus Christi 2006, no pet.)).

         An order terminating parental rights must be supported by clear and convincing evidence that (1) the parent has committed one of the grounds for involuntary termination as listed in section 161.001(b)(1) of the Family Code, and (2) terminating the parent's rights is in the best interest of the child. See Tex. Fam. Code Ann. § 161.001; In re J.F.C., 96 S.W.3d 256, 261 (Tex. 2003). "'Clear and convincing evidence' means the measure or degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established." Tex. Fam. Code Ann. § 101.007; J.F.C., 96 S.W.3d at 264.

         "There is a strong presumption that the best interest of the child is served by keeping the child with its natural parent, and the burden is on [the Department] to rebut that presumption." In re D.R.A., 374 S.W.3d 528, 533 (Tex. App.-Houston [14th Dist.] 2012, no pet.). "The same evidence of acts or omissions used to establish grounds for termination under section 161.001[(b)](1) may be probative in determining the best interest of the child." Id.

         1. Legal Sufficiency

         When a clear and convincing evidence standard applies, a legal sufficiency review requires the appellate court to "look at all the evidence in the light most favorable to the finding to determine whether a reasonable trier of fact could have formed a firm belief or conviction that its finding was true." In re J.L., 163 S.W.3d 79, 85 (Tex. 2005) (quoting J.F.C., 96 S.W.3d at 266). If the court "determines that [a] reasonable factfinder could form a firm belief or conviction that the matter that must be proven is true, then that court must conclude that the evidence is legally [sufficient]." See id. (quoting J.F.C., 96 S.W.3d at 266). "[A] reviewing court must assume that the factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could do so." J.F.C., 96 S.W.3d at 266. "A corollary to this requirement is that a court should disregard all evidence that a reasonable factfinder could have disbelieved or found to have been incredible." Id.

         2. Factual Sufficiency

         Under a clear and convincing standard, evidence is factually sufficient if "a factfinder could reasonably form a firm belief or conviction about the truth of the State's allegations." In re C.H., 89 S.W.3d 17, 25 (Tex. 2002); accord In re K.R.M., 147 S.W.3d 628, 630 (Tex. App.-San Antonio 2004, no pet.). We must consider "whether disputed evidence is such that a reasonable factfinder could not have resolved that disputed evidence in favor of its finding." J.F.C., 96 S.W.3d at 266; accord C.H., 89 S.W.3d at 25. "If, in light of the entire record, [unless] the disputed evidence that a reasonable factfinder could not have credited in favor of the finding is so significant that a factfinder could not reasonably have formed a firm belief or conviction, . . . the evidence is factually [sufficient]." J.F.C., 96 S.W.3d at 266.

         B. Testimony Elicited During the Termination Hearing before the Associate Judge

         Applying the applicable standards of review for sufficiency of the evidence, we examine all the evidence presented during the termination hearing. See J.F.C., 96 S.W.3d at 266; see also City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005) (crediting or disregarding evidence for legal sufficiency). The associate judge heard several days of testimony from multiple witnesses, including Ralph, the caseworkers, doctors, and the foster mother. The judge also heard arguments from the Department's attorney, the children's ad litem, and respective counsel for Ralph, Carla, and the foster parents.

         Because Ralph challenges the trial court's finding that he committed one or more of the statutory grounds of involuntary termination and Carla challenges the trial court's finding that termination was in R.S. T.'s best interest, a more in-depth presentation of the facts is warranted. Texas Department of Family and Protective Services Employees

         1. Lori Dickens

         The Department's first witness was Investigator Lori Dickens. At the time of the trial, Dickens had been an investigator for approximately three years. Dickens was assigned to newborn R.S. T.'s case on August 8, 2014. The original allegations included physical abuse and neglectful supervision: Carla tested positive for marijuana on two different prenatal visits and, after delivery, the nursing staff expressed concern that Carla's cognitive delay might affect the child's care following his release from the hospital.

         Dickens met with Carla at the hospital; the meeting was very pleasant and R.S. T. was in the room with her at the time. Carla reported that R.S. T.'s father, Ralph, was at the birth and they were a couple, but not married. At the time of their meeting, Ralph had left the hospital to shower and take a nap. Carla explained that one of the marijuana tests was the result of second-hand smoke during a baby shower; she offered no explanation for the other positive test.

         With regard to R.S. T., Dickens described Carla as apprehensive. Carla explained that she suffered brain trauma following an automobile accident and she was concerned about dropping the baby. Dickens and Carla discussed the need for Carla to stay with Carla's parents when she left the hospital; Dickens noted that Carla appeared somewhat unrealistic about her parents' physical impairments and the effect on the amount of assistance they might be able to provide.

         Dickens set up a formal safety plan with Carla and specifically explained that the plan prohibited the hospital from releasing R.S. T. unless Carla's parents were present; the plan also required Carla to reside with her parents. Dickens explained to Carla that following her release from the hospital, Dickens would visit Carla at her parents' home to check on the home and R.S. T.

         Dickens testified that she called the residence on August 14, 2014; when no one answered, Dickens left a message requesting Carla return her call. On August 15, 2014, Dickens attempted to make contact with Carla, in person, at her parents' house. No one answered the door and Dickens left a note on the door for Carla to contact her. Dickens testified that she made several phone calls between August 15, 2014, and August 23, 2014, to both Carla's cellphone and to the home phone.

         On August 23, 2014, Dickens finally spoke to Carla's father. He was upset and informed Dickens that Carla left town with Ralph and R.S. T. Both he and his wife told Carla about the notes and messages left by Dickens, and they encouraged Carla to make contact with Dickens. Dickens continued to call Carla's cellphone and the home phone in attempts to reach Carla.

         On September 16, 2014, Dickens again called the home phone and Carla's mother answered. Carla's mother reported that Carla was out running errands and R.S. T. was with her. Carla's mother reported that R.S. T. was gaining weight and appeared to be doing well overall.

         On September 19, 2014, Dickens again called the home phone and Carla's father reported Carla was living in San Marcos and that he relayed to Carla the urgency to contact Dickens. Carla's father also provided the paternal step-grandmother's name. Dickens proceeded to contact the paternal step-grandmother who denied knowing Carla's whereabouts. Dickens requested that she give Carla the contact information and relay the urgency of Carla contacting the Department.

         Carla finally contacted Investigator Dickens that evening. Carla agreed to meet Dickens at her parents' home in Seguin the following Monday. Carla remembered Dickens and she understood that she was in violation of the Department's safety plan. Carla replied that she and Ralph were simply taking R.S. T. to see different family members. In between visits, Carla explained that she and R.S. T. had been staying with Ralph at his father's and step-mother's home.

         On September 22, 2014, Dickens made face-to-face contact with Carla. Dickens testified that she was shocked by R.S. T.'s appearance. R.S. T.'s coloring was poor, his previously round, rosy cheeks were thin and drawn, his hair appeared to be falling out, he was lethargic, and R.S. T. was relatively unresponsive to Dickens's holding him. Dickens inquired whether Carla had taken R.S. T. to the pediatrician for newborn care; Carla reported she had only recently selected a pediatrician from Medicaid. Carla further explained that she did not take R.S. T. for his initial check-up after leaving the hospital because she lacked transportation.

         Dickens then requested that Carla feed the child while she was there. Carla proceeded to fill the bottle with three ounces of water and a three-quarters-full scoop of baby formula powder. Dickens immediately explained and demonstrated for Carla that for every two ounces of water, Carla needed to use a full scoop of formula. The proper bottle was prepared and R.S. T. drank the entire bottle. Dickens testified that Carla's feeding R.S. T. raised further concerns. "Once he would start to suckle and really latch onto it, she would pull it out." Dickens again demonstrated proper bottle techniques. When R.S. T. finished his bottle, Dickens requested Carla prepare another bottle to ensure that Carla understood the proper amount of formula required. Dickens testified that Carla did not properly mix the formula. Dickens again showed Carla how to mix the formula and reiterated that mixing the right proportions was vital to R.S. T.'s nutritional needs. Dickens also told Carla that she would contact Medicaid and attempt to set up an immediate appointment with the doctor Carla had previously selected.

         When Dickens contacted Medicaid, they had no record of Carla requesting a primary care physician for R.S. T. Dickens testified that she had concerns regarding R.S. T.'s physical health. After speaking to her supervisor, Dickens transported Carla and R.S. T. to the emergency room. When they arrived at the emergency room, Carla was able to relay to the triage nurse Dickens's concerns about R.S. T.'s weight and that Carla felt he was constipated. The emergency room doctor determined that R.S. T. was dehydrated and requested transport to the children's hospital in San Antonio. R.S. T. was diagnosed with failure to thrive and hospitalized for approximately one week. Dickens requested an emergency removal; when R.S. T. was released, he was taken directly to the foster home where he has remained.

         Dickens testified the purpose of the safety plan was to ensure R.S. T.'s safety, and Carla's failure to comply with the safety plan put R.S. T. in danger necessitating his removal. Additionally, Dickens testified that she did not see any problems with R.S. T.'s attaching to the bottle. He was able to suck, swallow, and breathe as necessary without excessive spit-up.

         Dickens also testified that she first met Ralph during an adversary hearing. He was living with his parents in San Marcos. Although he was not on the original service plan, he knew the Department was involved in R.S. T.'s removal Ralph did not take any initiative to contact Dickens or the Department. Upon further questioning, Ralph acknowledged knowing that Carla tested positive for marijuana during her pregnancy. Ralph declined Investigator Dickens's request to submit to a drug test.

         2. Rocky Steven Henserling

         Rocky Henserling, a master conservatorship supervisor for the Department, was the second witness called to testify. Henserling was R.S. T.'s primary caseworker from May to September in 2015. Henserling testified neither Ralph's father or Ralph's step-mother requested contact or visitation with R.S. T. During his first meeting with Ralph and Carla, Henserling reviewed the Department's service plan for each parent and any uncompleted services.

         Henserling relayed that, in May of 2015, Carla completed her psychological evaluation, but the Department had not yet secured a doctor to complete the suggested neuropsychological evaluation. Henserling also expressed concern regarding the continued allegations of domestic abuse between Ralph and Carla and the effects of such abuse on a child in the home. Carla had not completed parenting classes, individual counseling, or domestic violence classes. Ralph had not completed a requested substance abuse assessment, individual therapy, parenting classes, or domestic violence classes.

         Following the July 20, 2015 permanency hearing, the trial court signed an order requiring that Carla complete her neuropsychological evaluation, individual therapy, domestic violence classes, and a parenting workshop. Ralph still needed to complete the substance abuse assessment, domestic violence classes, individual therapy, and parenting classes. By September 21, 2015, the Department finally secured a provider for the neuropsychological evaluation and the trial date was rescheduled for a later date. Henserling explained that although Ralph completed the substance abuse assessment, neither parent made significant progress with their individual therapy or domestic violence classes.

         Regarding visitation, Ralph engaged and interacted well with R.S. T. Ralph met R.S. T.'s physical needs, showed affection, and was appropriate throughout the visits. Ralph's visitation record was tarnished by the times he would "no show" or be late. Henserling further testified that Carla's largest obstacle with visitation was scheduling issues. The Department attempted to be very flexible, changing times and days of the week. Carla would be employed for a period of time and attend visitation; at other times, she simply would not show up. When she did visit, Carla tended to treat R.S. T. like a newborn baby with very infantile and soft-spoken terms. Carla wanted to cradle R.S. T. and did not appear to understand that the toddler was growing and developing and wanted to explore his surroundings.

         When asked for his recommendation, Henserling did not believe either Ralph, who was incarcerated at the time of the hearing, or Carla could provide a safe and stable home for R.S. T. Carla could barely meet her own basic needs and there was a relatively extensive domestic abuse history between Ralph and Carla. Henserling attempted to assist Carla in meeting her appointments and obligations. On cross-examination, he testified that each of the service plans he develops are modified and customized for each individual parent. Henserling explained to Carla the importance of attending the classes, the counseling sessions, and regular visits with R.S. T. He even provided Carla with a calendar and showed her how to plan for transportation and appointments.

         Henserling also testified that, during his time with the Department, he successfully worked with several parents with cognitive limitations. With Carla, Henserling was concerned with her support network and her unrealistic expectations of the people around her. For example, Carla's mother suffered a stroke, but Carla appeared to believe the symptoms would simply disappear when R.S. T. came home; "my mom is going to be better and she's going to run after him and chase him around and play with him. She's just really sad because he's not home."

         Finally, Henserling testified regarding the love shown by the foster parents. They love R.S. T. as if he was their own; their home is the only home R.S. T. has ever known. Henserling described R.S. T. as a very happy baby, with an adorable smile and very bonded with his foster parents. The foster parents even allowed Carla and Ralph to visit R.S. T. at their home and presented themselves as a support family and attempted to model proper and appropriate child care. "I really feel like they tried to go above and beyond to help support reunification with these first time parents [Ralph and Carla]."

         3. Cillie Anderson

         Cillie Anderson, the program director for the Department, testified regarding her meeting with Carla on April 6, 2015. Carla was upset because she had not seen R.S. T. in over a month; Anderson's concern was more immediately focused on the bruises and scratches on the left side of Carla's neck. When asked about the bruises, a crying Carla relayed that she and Ralph argued over the weekend and Ralph strangled and scratched her. Carla assured Anderson that she was safe and that she had moved back to Seguin and was living with her parents. Anderson took photographs of Carla's injuries; the photographs were admitted during the termination hearing. Carla also told Anderson about several other occasions where Ralph's abuse caused her black eyes and nosebleeds and also showed her a scar Carla received as result of Ralph's step-mother scratching her. During cross-examination, Anderson confirmed the Department's investigation revealed Ralph and Carla were engaged in battering each other.

         Anderson testified that Carla's cognitive abilities and disabilities were not a part of the Department's recommendation for placement. To the contrary, Anderson was adamant that the Department's decision was based primarily on Carla's inability to appropriately care for R.S. T. and the family domestic violence-which creates anxiety and fear in children. Anderson relayed that the Department considered Ralph's father and step-mother for placement on four different occasions. In October of 2014, they were denied based on too many young children in the home and issues with clutter and cleanliness in the home. On March 30, 2015, although two of the younger children were no longer in the home, there were still issues with the home's cleanliness and whether the children in the home were being fed. On April 16, 2015, the Department noted a referral was called in regarding physical abuse and disparate treatment in the home. The child that was the subject of the disparate treatment was removed from the home and placed with his father. Lastly, in December of 2015, the Department did not approve placement based on criminal histories of Ralph's father and step-mother and concerns related to frequent visitors to the home with criminal histories.

         4. Crystal Smith

         Crystal Smith, a Department caseworker, testified regarding her observations during Carla's and Ralph's visitations with R.S. T. R.S. T. is a happy little boy and was always pleased to see both Carla and Ralph. Prior to each, the foster mother would pack a lunch containing food and two sippy cups. Even with Smith's encouragement and explanations that R.S. T. needed to eat the food, Carla only opted to give R.S. T. the sippy cups. Smith also described an obsessive nature in the way Carla would change R.S. T.'s diaper. At the beginning of each visit, Carla would immediately change his diaper-even when the diaper was not soiled. What alarmed Smith, however, was Carla's incessant wiping of R.S. T.'s genitals "anywhere from 10 to 15 minutes sometimes, " and Smith never saw a diaper that was anything more than slightly wet with urine.

         Smith described the foster family as loving and very supportive. R.S. T. has several young foster siblings in the home, all adopted through the Department. Smith opined that the foster parents were more than able to care for the children. The house was clean, with plenty of room for each of the children. According to Smith, R.S. T. was thriving in the foster home. The foster family was committed to caring for R.S. T. and they hoped to adopt R.S. T. Smith strongly believed that such adoption was in R.S. T.'s best interest.

         5. Brittany Brumme

         Department supervisor Brittany Brumme opined that termination of both Carla's and Ralph's parental rights was in R.S. T.'s best interest.

Neither of the parents in this case have been able to demonstrate they could maintain a safe and stable home or provide for this child. . . . Dad has been in and out of jail at least twice during the pendency of this case. We have offered services to both parents. Neither of the parents [has] completed counseling which is a huge concern since that's one of the main services that would have offered, you know, them an ability to change their lifestyle and learn how to better care for the child. [R.S. T.] is extremely bonded with his foster family. He's been there almost 16 months. This is basically the only family that he knows as his family. Beyond that parents not taking advantage of services that have been offered to them, not being able to demonstrate that they can provide that safe and stable home, and not being able to demonstrate that they [will] be able to meet [R.S. T.]'s needs.

         Brumme also expressed concern regarding the domestic violence and substance abuse in R.S. T.'s home and Ralph's and Carla's failure to understand the seriousness of both. Brumme testified that she believed the counseling services offered to Carla were sufficient to meet her needs had she taken advantage of the services.

         Carla's attorney spent significant time discussing the Department's failure to timely provide a neuropsychological evaluation and the Department's failure to appropriately modify Carla's service plan based on her mental disabilities. Brumme explained that although no written changes were made to the Department's service plan, like in all Department cases, the plan was continually informally modified. The neuropsychological evaluation provided guidance that Carla's intellectual limitations would require repetition in the learning process. The Department and the service providers attempted to demonstrate the skills and explain the importance of Carla following through at each appointment. When the neuropsychological evaluation was received, R.S. T.'s case was again staffed by the Department. Brumme explained that based on the neuropsychological evaluation, the psychological evaluation, and the caseworkers' one-on-one contacts with Carla, Brumme and the other Department staff felt that the accommodations in place were reasonably designed to assist Carla in learning the identified skills. Brumme opined that Carla's failure to participate in counseling, not her intellectual or mental limitations, was the greatest obstacle to the Department's efforts to reunify mother and child.

         Professionals Not Employed by the Department

         6. Jane Tomlinson

         Jane Tomlinson, a licensed professional counselor, began working with both Ralph and Carla in January 2015. Tomlinson described the counselor-patient relationship as sporadic, with many "no shows." She saw Carla for a total of six visits and Ralph for a total of eight. Carla and Ralph's relationship was also sporadic, breaking up and then reuniting. Tomlinson testified that Ralph never took responsibility for R.S. T.'s condition when the Department intervened. To the contrary, Ralph considered R.S. T.'s care Carla's responsibility.

         7. Ann ...


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