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In re B.D.A.

Court of Appeals of Texas, First District

July 24, 2017

IN THE INTEREST OF B.D.A., L.A.A.-M., and J.X.A, Children

         On Appeal from the 313th District Court Harris County, Texas Trial Court Case No. 2014-06547J

          Panel consists of Chief Justice Radack and Justices Keyes and Massengale.


          Michael Massengale Justice.

         This is an appeal from a decree terminating the parental rights of an incarcerated father with respect to his three biological children, B.D.A., L.A.A.-M., and J.X.A. The father contends that the evidence was insufficient to support the trial court's decree.

         Rather than supporting a firm belief or conviction that termination would be in the children's best interest, the record before us raises more questions than it answers. Did the Department of Family and Protective Services make reasonable efforts to provide appropriate services to facilitate the children building or maintaining a healthy relationship with their incarcerated father? Were all the children's eligible relatives considered as possible kinship placements? And what is the plan for the children to achieve permanency, particularly in light of the separation of three siblings into separate placements, with no evidence of their placement history in foster care or of prospective adoptive placements?

         The children can't live with their father in prison, but that fact alone is not sufficient to justify terminating their last formal legal connection to their natural family. Evaluating the evidence in light of the Holley v. Adams factors used to evaluate whether termination of parental rights is in the best interest of the children, [1] we conclude that the Department failed to carry its burden of proof by clear-and-convincing evidence. We reverse and remand to the trial court for further proceedings.


         For most or all of the lives of the three children involved in this parental-termination proceeding, their father has been in jail or prison. The children were removed from the mother's custody, and the Department of Family and Protective Services filed a petition seeking to terminate the parental rights of both the mother and the father. Just before trial, the mother voluntarily relinquished her parental rights. Our review of the sufficiency of the evidence on appeal is limited to the information received into evidence at trial (which is comprehensively detailed in this opinion), as well as any matter the trial court properly could have judicially noticed.

         Trial was held before a master on December 15, 2016.[2] Before offering witness testimony, the parties offered exhibits into evidence. The mother tendered into evidence her affidavit of voluntary relinquishment of parental rights. The Department then offered nine exhibits into evidence. The first six exhibits were the children's three birth certificates and three letters certifying that each child had not been the subject of a prior suit affecting the parent-child relationship. The Department also offered the father's judgment of conviction for aggravated robbery with a deadly weapon, a family service plan for the father, and the trial court's order establishing the father's parentage.

         The father's family service plan was dated July 29, 2015, and the Department's "Permanency Goals" for each child were identified as "Family Reunification."[3] The plan included the following description of the "reason for Child Protective Services involvement":

On June 16, 2015, the Texas Department of Family and Protective Services (DFPS and/or the agency) received a referral for neglectful supervision of [L.A.A.-M.], by his mother, [S.M.]. According to the referral the child, [L.A.A.-M.], sustained a head scalp injury from a dog bite while at [the mother's] friend's house party and at the time of the incident the mother's whereabouts were unknown. The referral indicated the mother appeared to be intoxicated and attempted to drive herself to the hospital but was stopped by EMT, asked to ride in the EMT truck, and mother agreed. At the hospital, the mother's speech was slurred and she appeared lethargic. According to the referral, while at the hospital, it was very difficult to wake the mother and a doctor tried pressing on her chest to wake her up. It was reported that the mother fell asleep twice while answering hospital staff questions. . . . According to the intake report, while moving [the] child to the new hospital room, it took two nurses to physically assist mother to the new room because the mother could not walk without wobbling. The TXDFPS requested to be named Emergency Temporary Managing [Conservator] of the children. At this time, the mother, [S.M.], has a C-SCAL alert out of the 313th District Court in Harris County Texas (Cause# 2014-06547J) because she has a history of fleeing from DFPS in the past.[4] The child, [L.A.A.-M.] was discharged. Clear Lake Hospital was cooperative until CPS could find suitable placement for the child due to him being a[u]tistic; and the fact that the mother is not an appropriate caregiver for him at this time. The relative placement for the other two children, [B.D.A.] and [J.X.A.], could no longer take care of them. Due to there being no other appropriate placements that have been identified to care for the three children and ongoing danger, TXDFPS was granted [temporary managing conservatorship].

(Emphasis supplied.) The family service plan form included spaces to identify "family strengths and supports" and "community supports, " each of which were filled out with the words "Not Applicable."

         Under the heading "Family and CPS Concerns Related to Risk and Safety, " the family service plan identified the following "Initial Concerns" as of July 29, 2015:

All children are 5 years old and under and is unable to protect themselves [if] danger occurs. [L.A.A.-M.] is autistic and can be violent if his mother is not in his sight. [L.A.A.-M.] is non-verbal.
The mother, [S.], stated she suffers from anxiety, depression and insomnia. [The mother] stated she doesn't have any medication because she doesn't have the funds to get her medication. [The mother] tested positive for cocaine and marijuana by hair follicle. [L.A.A.-M.] is autistic, but can't take any medication because he's too young.
It's unknown if [the mother] left her children to inappropriate caregivers because she failed to provide information about the whereabouts of her children.
[The mother] disclosed she was a victim of sexual abuse by a family member. There were 4 previous CPS cases . . . 1 cause her children to be removed, 2 unable to complete cases because the family couldn't be located and 1 physical abuse case that was ruled out. It's unknown if [the mother] has her children exposed to people who's not appropriate.
It's unknown where the children were living during the investigation. [The mother] stated they were living with a cousin, but wasn't able to provide an address of where the cousin lived. It's unknown if the home was unsanitary or clean. [The mother's] family support is unknown because she stated she doesn't associate with her family since her last CPS case when admitted to the Santa Maria Hostel.
[The mother] stated she didn't want to be involved with CPS and only went to the hospital to [have] her son treated for dog bite injuries, but [not] for CPS to take her children. [The mother] has been untruthful about where her children were.
[The mother] had limited outside support that can help her with her children due to communications abandoned and family conflict.

(Emphasis supplied.) The plan identified the following "Service Plan Goals (Changes Needed to Reduce Risk)":

Parent will demonstrate an understanding of and ability to provide for the special needs of the child. Parent will demonstrate the willingness and ability to protect the child from harm.
Parent will learn new behaviors that promote cooperation, stability, and a sense of self-worth among family members. Parent will actively participate in therapy to understand how their own abuse/neglect as a child may impact their current parenting style.
Parent will demonstrate an ability to provide basic necessities such as food, clothing, shelter, medical care, and supervision for the child. Parent will demonstrate the ability to put the needs of the children ahead [of] their own.
Parent will build a support network that will help ensure the safety of the child. Parent will demonstrate ability to protect the child from harm.
Family will understand and support efforts to deal with issues related to their prior maltreatment; including but not limited to counseling, medical care, or drug treatment of the child.
Parent will maintain housing that is safe and free of hazards and provide protection, food, and shelter for the child and family. Parent will demonstrate an ability to use willing and appropriate friends and relatives to help with the child.
Parent will actively cooperate in fulfilling the agreed upon safety plan in order to control the risk of abuse or neglect.

         Under the heading "Tasks and Services, " the plan included one item that was "assigned to" the parents:

[F]ather . . . will submit to DNA testing. Upon verification, the Family Plan of Service may be modified. [Father] is currently incarcerated with a projected release date of July 14, 2027. Services will be requested if there is a sooner release date.

(Emphasis supplied). The plan identified a person to be contacted by a parent for information about the family service plan or the children. The contact person was identified as Deitra E. Smith, and a phone number was provided.

         The family service plan included a page for the parents to acknowledge receipt of the plan. It included signature lines for up to four parents, a caseworker, and a supervisor. The document offered into evidence was signed on August 6, 2015 by caseworker Bridgette Sharkey and a supervisor, but it was not signed by any parent.[5]

         The Department presented two witnesses. Caseworker Sharkey testified that at the time of trial, B.D.A. was seven years old, L.A.A.-M. was five years old, and J.X.A. was four years old. DNA testing confirmed that each is the child of the appellant father.

         The caseworker initially was asked to explain why it was in the children's best interest to terminate the mother's parental rights based on her voluntary relinquishment. She explained that the Department attempted "numerous times to work out arrangements to support the primary goal at the time of family reunification." The caseworker said the care of the children "started deteriorating" when they "were placed with the mother." She testified that the mother "was not able to physically, financially, or emotionally be there for the children."

         The caseworker said the children were "actually getting more support in the placement that they are in." She noted that the mother tested "positive again for drugs when she went through the program once all of the requests and referrals were made for drug services, individual therapy, " and "none of the dangers were alleviated that brought the children into care." The caseworker then stated, "along with, of course, [L.'s] neglectful supervision."[6] She concluded: "And so, because of that we believe that the children's best interest would be to stay in the placements that they are in and eventually become adoptive into a permanent placement where they will be stable and their needs can be met."

         With respect to the father, the caseworker confirmed that his paternity was proved by DNA test. Asked whether "throughout this case" she had "reached out to" the father, she agreed and testified that "he was mailed a family plan of service as well as a letter to notify him of the case." The Department's lawyer then asked, "Has he reached out to you?" She responded, "No." She further agreed with the lawyer that, to her knowledge, [7] the father had not "sent any letters, any cards to his children, " and he was sentenced in 2013 to a 15-year prison sentence, meaning it would be "over two years before he gets out." She confirmed that she was asking the court to terminate the father's parental rights, that she did not believe it shows "good parenting skills to engage in criminal conduct, " and that "a parent who engages in criminal conduct could endanger the children's safety."

         With respect to the children's current foster placements at the time of trial, the caseworker testified: "The children are all in separate placements. They are all in foster homes. [L.A.A.-M.] is close to Austin and the other two children are in Harris and Fort Bend County." She confirmed that "the children are doing well in each of their placements, " and she testified that "all of their needs are being met in each individual placement." With specific reference to L.A.A.-M., the caseworker confirmed that he "has special needs." She testified: "He has moderate hearing loss in one ear, severe hearing loss in the other ear. He's not completely deaf, but there is severe hearing damage." She agreed with the Department's lawyer's suggestion that "his current placement is able to, in fact, much better than any other placement, address those needs." She concluded by agreeing with the lawyer that termination of parental rights "would provide more permanency for the children." There were no objections to any of the caseworker's direct testimony.

         On cross-examination by the father's lawyer, the caseworker conceded that she had not ever "personally spoken with the father."

         She then was asked about the father's receipt of the family plan of service:

Q. And do you have any evidence that he actually received the family plan of service besides just putting it in the mail?
A. We do mail certified.
Q. Did you, by chance, bring a receipt of the certified mail?
A. No. But I did speak with his sister as well as-
Attorney: Objection, Judge. Hearsay.
A. Oh, okay.
Q. So we don't have any evidence for the Court to see that he actually got his service plan, do we?
A. No.

(Emphasis supplied.[8])

         No other questions were asked of the caseworker by the father's lawyer, or by the guardian ad litem for the children.

         The second and final witness at the termination trial was Barbara Grimmer, who testified when the Department called "Child Advocates" as a witness. Grimmer's precise role and the basis for her personal knowledge about the case were not explained.[9] The Department's lawyer asked: "Barbara how long have you been on this case?" She testified: "We began working on this case November 13th of 2015."[10] The Department asked: "You've seen the kids in their different placements?" Grimmer responded: "Yes, between my volunteer and I." The Department then asked, "And have you seen their current placements?" Grimmer responded, "The volunteer has seen the two children here, " referencing B.D.A. and J.X.A. She further testified that Child Advocates had not "been to the Austin placement" for L.A.A.-M. Instead, Grimmer said that the volunteer had "been communicating on a regular basis with the public school there, the school for the deaf, the caregiver, and the educator on his special school placement here and making sure that they are all in touch with one another."

         Grimmer testified that termination of both parents' parental rights was in the best interest of all three children. She explained:

We did work with the mother, and she wasn't able to alleviate any of the concerns that brought the children into care including drug use, instability, emotional instability, lack of a support system.
She does have a pattern of CPS involvement and of running from CPS and not following through although she did work hard initially on this case, she wasn't able to keep up that stability and that sobriety. The kids are now-they are young. [L.A.A.-M.] is in a placement that . . . hopefully will become adoptive. It can meet all of his needs and the other two children are basic level children that deserve to find permanency.

         On cross-examination, the mother's lawyer asked: "Do the children know what's going on?" Grimmer responded that they knew they were removed from their mother, "the caregiver explained to them that Mom was sick, " and she did not know if the children knew "anything beyond that." She testified that Child Advocates agreed there should be "a goodbye visit between mother and the children, " to provide "good closure for the kids."

         Grimmer asked that the court retain Child Advocates on the case "[u]ntil permanent placements are found." She gave no testimony about the father, and the father's lawyer did not cross-examine her.

         The father had no witnesses and rested his case without offering any evidence.

         In its closing argument, the Department argued that the father's criminal conduct endangered the children. The lawyer further asserted: "He has not written, called, or financially supported his children since they've been in the Agency's care. He failed to do any services on the family service plan that was ordered by this Court." The Department also argued that the father would remain in prison more than two years from the beginning of the case.

         The father's attorney argued that the court should make no findings pertaining to the father, suggesting there could be no basis for an endangerment finding against the father because he had been incarcerated since 2013, before the children were removed from their mother's care.

         The trial court found that the father had committed the predicate acts of endangerment, constructive abandonment, failure to comply with a court order, and having been convicted of an offense resulting in imprisonment and inability to care for his children for not less than two years from the date of filing the petition.[11]The trial court also found that termination of the father's parental rights was in the best interest of the children.[12] Having made these findings, the trial court terminated the father's parental rights to B.D.A., L.A.A.-M., and J.X.A.[13] The Department was named sole managing conservator of the children.

         Two weeks after the entry of the trial court's final decree of termination, the father's appointed trial counsel filed a motion to withdraw and for appointment of appellate counsel. On the same date, he filed a notice of appeal. These were the only two filings made by the father's appointed trial lawyer and included in the appellate record.

         The trial court appointed a new attorney ad litem to represent the father on appeal. The father and the Department submitted appellate briefs, and the appeal was set for oral argument. In the course of oral argument, the father's appellate lawyer conceded that he had never communicated with the father about the appeal.[14] We abated the appeal and remanded the matter for the district court judge to hold a hearing in which the father would participate. We ordered the judge to determine whether the father wished to pursue an appeal, and to make any findings of fact, conclusions of law, or other recommendations that the trial court deemed appropriate. The father participated in the hearing by telephone and confirmed his desire to appeal. We reinstated the appeal the next day. There have been no post-submission filings by the father's appellate counsel.


         On appeal, the father challenges the legal and factual sufficiency of the evidence to support the termination of his parental rights. As relief, he requests a reversal of the trial court's judgment and a remand "for the sole purpose of conducting an evidentiary hearing on the issue of conservatorship." Because of the natural family connections at stake, [15] we strictly scrutinize termination proceedings on appeal.[16]

         In proceedings to terminate the parent-child relationship, the Department must establish by clear-and-convincing evidence that the parent committed one of the acts or omissions listed in Family Code Section 161.001(b)(1) and that termination is in the best interest of the child.[17] Both elements must be established, and the failure to prove either a predicate act or that termination is in the best interest of the child will prove fatal to the Department's case.[18] The same evidence may be probative of both a predicate act and the best interest of the child.[19] In the parental-termination context, the clear-and-convincing standard is "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."[20] A lack of evidence will not satisfy this burden, and "conjecture is not enough."[21]

         The purpose of the State's initiation of proceedings to terminate the parent-child relationship is "to protect the best interests of the children, not to punish parents for their conduct."[22] "[I]n securing what is in the best interests of the child, the State is not pursuing a retributive or punitive aim, but a 'purely remedial function: the protection of minors.'"[23]

         The father asserts that the evidence was legally and factually insufficient to support the trial court's decree terminating his parental rights. "When presented with legal and factual sufficiency challenges, the reviewing court first reviews the legal sufficiency of the evidence."[24]

         In a legal-sufficiency review of a decree terminating parental rights, we consider "the evidence in the light most favorable to the judgment, " meaning that we "must assume that the factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could do so."[25] We "disregard all evidence that a reasonable factfinder could have disbelieved or found to have been incredible."[26] If "no reasonable factfinder could form a firm belief or conviction" that the matter on which the State bears the burden of proof is true, then we "must conclude that the evidence is legally insufficient."[27]

         The scope of our sufficiency review includes evidence admitted at trial, as well as any matter the trial court properly could have judicially noticed.[28] We may presume that the trial court took judicial notice of its record without any request being made and without announcement that it has done so.[29] This judicial notice encompasses the facts that "documents in the file are a part of the court's files, that they were filed with the court on a certain date, and that they were before the court at the time of the hearing."[30] However, the "trial court may not take judicial notice of the truth of factual statements and allegations contained in the pleadings, affidavits, or other documents in the file."[31] In ...

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