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In re I.B.

Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg

June 29, 2017


         On appeal from the 267th District Court of Victoria County, Texas.

          Before Chief Justice Valdez and Justices Rodriguez and Hinojosa.


          LETICIA HINOJOSA Justice.

         Appellee the Texas Department of Family and Protective Services (the Department) filed suit seeking to terminate the parental rights of appellant I.B. to her five children, Is.B., Ie.B., twins L.B. and H.B., and M.N.[1] At the time of trial, the children's ages were nine, eight, six, six, and three respectively. Following a bench trial, the trial court rendered judgment terminating appellant's parental rights and awarding permanent managing conservatorship of the children to the Department.[2] By one issue, which we treat as two, appellant argues: (1) termination of her parental rights violates the equal protection clause; and (2) termination was not supported by the "most solid and substantial reasons" but was based on appellant's lack of reliable transportation to visit her children. We reverse and render in part and affirm in part.

         I. Background

         A. Removal of the Children

         On June 3, 2012, the Department filed a petition to terminate the parental rights of appellant to her five children. The trial court subsequently entered an order granting the Department temporary managing conservatorship of the children. Is.B. and Ie.B. were returned to appellant's care in November of 2014, following appellant's completion of her court-ordered services, which included a parenting program, the maintenance of safe and stable housing, a drug and alcohol evaluation, a psychological evaluation, and individual counseling. L.B. and H.B. were later returned on February 20, 2015. On March 11, 2015, the trial court entered a final order appointing appellant and the Department as the joint managing conservators for the children, while also ordering that M.N. remain in his current foster care placement. The trial court ordered appellant to continue individual counseling sessions and to enroll Is.B. and Ie.B. in twice monthly counseling sessions. The trial court also enjoined appellant from "driving with the children without proof of a Driver's License and vehicle insurance."

         On March 23, 2015, the Department filed a petition to modify the parent-child relationship and again removed the children from appellant's care. Following this second removal, the case proceeded to a February 6, 2017, parental-termination hearing.

         B. The Termination Hearing Record

         The Department presented one witness, caseworker Tonya Woytek. The trial court also received testimony from Joy Walker, a court appointed special advocate who was appointed as the guardian ad litem for the children. Appellant, who was served with citation by publication, did not appear at the termination hearing. No exhibits were introduced by the parties. The Department, however, requested the trial court to take judicial notice of "the Court's entire file in this cause, particularly that two of the Respondent fathers . . . have filed a voluntary affidavit of relinquishment." The trial court responded, "I will."

         "A trial court may take judicial notice of its own records in matters that are generally known, easily proven, and not reasonably disputed." In re B.R., 456 S.W.3d 612, 618 n.4 (Tex. App.-San Antonio 2015, no pet.) (quoting In re J.E.H., 384 S.W.3d 864, 870 (Tex. App.-San Antonio 2012, no pet.)). For instance, a court may take judicial notice that a pleading has been filed in the case, its own orders in the proceeding, or of the law of another jurisdiction. Id.; see also In re H.M.P., No. 13-08-00643-CV, 2010 WL 40124, at *12 (Tex. App.-Corpus Christi Jan. 7, 2010, no pet.) (mem. op.). However, a court may not take judicial notice of the truth of allegations in its records. In re B.R., 456 S.W.3d at 618 n.4; In re J.E.H., 384 S.W.3d at 870; see Davis v. State, 293 S.W.3d 794, 798 (Tex. App.-Waco 2009, no pet.) ("[W]hile a court may judicially notice the existence of an affidavit in its file, it may not take judicial notice of the truth of the factual contents contained therein."). Accordingly, while the trial court took judicial notice of its file, we presume it did not take judicial notice of the truth of any allegations contained therein- i.e., the affidavits attached to the Department's pleadings. See In re B.R., 456 S.W.3d at 618 n.4; In re J.E.H., 384 S.W.3d at 870 (holding that the trial court could not take judicial notice of allegations the caseworker made in the family service plan or in the affidavit attached to the Department's petition); In re Allen, 359 S.W.3d 284, 289 n.5 (Tex. App.-Texarkana 2012, no pet.) ("No judicial notice could have been taken of [affidavit's] content because the content was not a subject matter for judicial notice."). Therefore, our review is limited to the evidence admitted at the termination trial and the properly noticed contents of the clerk's record.

         C. Caseworker's Testimony

         Tonya Woytek served as the family's conservatorship caseworker at the time of trial. Woytek, who was assigned to the family in August 2015, conceded that she did not have personal knowledge regarding the reasons for the first and second removals of the children, occurring in June 2012 and March 2015. Rather, Woytek's testimony regarding any events prior to August 2015 was based on her review of "the CPS file in this matter[.]"

         Woytek testified that the Department developed a plan in November of 2014 to "slowly return the children to [appellant]." Is.B. and Ie.B. were returned to appellant first, and "they were doing well[.]" L.B and H.B. were returned to appellant's care on February 20, 2015, while M.N. remained in foster care placement. As a condition of the return, appellant was required to enroll herself and the children in counseling, obtain a driver's license, and enroll the children in school. However, appellant failed to enroll herself and the children in counseling, and she also failed to enroll L.B. and H.B. in school for a period of three weeks.

         According to Woytek, the Department was also concerned that a registered sex offender was residing in the home. The registered sex offender was identified as J.K., the father to three of appellant's children. Woytek also stated that appellant was arrested and "had gone to jail." Woytek did not know for what offense appellant was arrested, and she did not state how long appellant was in jail or whether she was ever convicted of a criminal offense as a result of her arrest. Following her arrest, appellant left the children in the care of appellant's mother, who was not an approved caregiver due to her "history with the Department." As a result of these concerns, the Department removed the children from appellant in March of 2015.[3]

         The Department placed the four older children in San Antonio. Woytek stated "[r]ight now they're in foster homes and if these foster parents feel they cannot meet the children's needs behavior-wise, then they continue to be placed in different placements throughout the case." H.B., for example, has resided in ten different homes. Woytek explained that "there's not a lot of people who are willing, who have the patience to deal with these children, their behavior, so it's hard to find foster homes for these children right now and that is a problem. . . ." The children, who are in separate placements, see each other once a month.

         When asked about the "status of the children" after the second removal, Woytek responded that she was not the caseworker at the time. She then proceeded to testify that "they did have behavior issues[.]" Woytek stated that L.B. and H.B., who were five-years old at the time, were "urinating on the beds[.]" Woytek noted that there are "more issues with [L.B. and H.B.] than [Is.B. and Ie.B.] With respect to Is.B., Woytek stated "we haven't had a lot of concerns" and that "[h]e seems to do fairly well in school[.]"

         Woytek maintained that "the children" had regressed after being removed from appellant's care. She also cited behavior "such as pouring shampoo down the drain, " although she did not identify which child exhibited this behavior. Woytek noted that, after being removed from appellant's care, H.B. "had to be reinstructed about boundaries and not being so close to everyone." Woytek also shared that "[H.B.] did tell one of her doctors that she would pee on herself so nobody would touch her." Woytek stated that Ie.B. was diagnosed with "attention deficit hyperactivity disorder, adjustment disorder with mixed disturbance in emotions and conduct." However, she noted no particular behavior concerns for Ie.B.

         According to Woytek, appellant "did have housing for her children and appeared to be supporting them for, financially for a small frame of time." Appellant was working for a "nursing and rehab" company "during the reunification." However, when Woytek "entered the case" in August of 2015 she learned that appellant "left her job." At that time, appellant told Woytek that she was moving to Houston where she had more support.

         Woytek testified that the Department assigned a courtesy worker in Houston to assist appellant with completing her family service plan. The Department developed further services to "hone in on the things that led to the removal the second time, such as having the sex offender in the home" and to "help her make better decisions in regards to her children." The service plan required appellant to attend individual counseling and submit to monthly drug testing.[4] Woytek was able to contact appellant at times through phone calls and text messages. Often times, Woytek was unable to reach appellant because "she's always at work whenever [Woytek tries] to call her." Appellant, however, did not send Woytek "a verification of employment." Woytek also stated that appellant did not return phone calls from the courtesy worker in Houston. Appellant failed to provide Woytek with her address, so Woytek was unable to determine whether appellant's residence was an appropriate environment for the children.

         The Department scheduled bi-monthly visits for appellant with her children residing in San Antonio. The Department also scheduled visits with M.N., who was placed with his paternal aunt in Houston as of August 2015. Woytek testified that appellant attended two visits in San Antonio but later she "was not showing up for the visits." Appellant initially told the Department that she had transportation to get from Houston to San Antonio, but she later informed the Department that she did not. Regarding appellant's failure to maintain visitation, Woytek testified:

She has inquired about seeing them, however at this time she doesn't have the resources to get to go see them. She wants the Department, she relies upon the Department to facilitate her visit to get her to A to B and if she can't get to a visit in Houston in the same town with [M.N.], how is she going to get to visit in San Antonio

         According to Woytek, appellant was not allowed to have phone calls with the children "due to the therapist['s] recommendation." The Department denied appellant's later request to have her phone call communications with the children reinstated. Woytek stated that appellant did not provide any financial support for the children since the March 2015 removal. Woytek's main concern regarding appellant was that the Department did not know where she was living.

         Woytek opined that the termination of appellant's parental rights was in the children's best interest, stating that the Department "would like to find a family for these children that would love and take care of them and genuinely have an interest in them in keeping them long term." Woytek testified that the four older children were not currently in "adoptive placements." She explained, "There's family who we call foster adopt homes that, you know, once this case ever goes to adoption, they would be put on that website and be looked at by families for adoption."

         On cross-examination, appellant's counsel asked Woytek, "Isn't it true that a number of parents rely on the Department for transportation to their visits?" Woytek responded:

To a certain extent. At the beginning of the case we do work with parents to the best of our ability, but at some point, the bear has to learn how to hunt for himself. You have to build up money. You have to get a job. You have to save money. You have to get transportation. You will need to, people are going to help you for only so long.

         D. Court Appointed Special Advocate's Testimony

         Joy Walker, the court appointed special advocate, [5] testified that appellant violated several of the Department's requirements during the monitored return of the four children in March of 2015, including: (1) exposing the children to J.K., the father of three of the children and a registered sex offender; (2) failing to enroll L.B. and H.B. in school; (3) allowing the children to stay with their maternal grandmother, "who was not supposed to be allowed to be around the children;" (4) failing to ...

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