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In re A.H.

Court of Appeals of Texas, Second District, Fort Worth

November 9, 2017

IN THE INTEREST OF A.H., A CHILD

         FROM THE 323RD DISTRICT COURT OF TARRANT COUNTY TRIAL COURT NO. 323-103980-16

          PANEL: PITTMAN, WALKER, and MEIER, JJ.

          MEMORANDUM OPINION [1]

          PER CURIAM.

         After a bench trial, the trial court found by clear and convincing evidence that (1) Appellant D.H. (Father) and Appellant K.B. (Mother) engaged in conduct or knowingly placed their son A.H. with persons who engaged in conduct that endangered his physical or emotional well-being and (2) termination of the parent-child relationship between Mother and A.H. and between Father and A.H. was in A.H.'s best interest. See Tex. Fam. Code Ann. § 161.001(b)(1)(E), (2) (West Supp. 2017). In four issues, Mother contends: (1) the trial court abused its discretion by denying her motion for continuance; (2) the denial of the continuance violated her rights to due process; (3) the evidence is legally and factually insufficient to support the endangerment finding against her; and (4) the evidence is legally and factually insufficient to support the best interest finding against her. Father does not challenge the sufficiency of the evidence supporting the trial court's best interest and endangerment findings against him. Instead, without numbering or delineating issues, Father complains: (1) the Texas Department of Family and Protective Services (TDFPS) failed to provide him an opportunity to complete his service plan; (2) that failure resulted in the termination of his parental rights to A.H.; and (3) the termination of his parental rights resulting from TDFPS's failure to provide him an opportunity to complete his service plan violated his rights to due process. We affirm.

         I. Circumstances Leading to A.H.'s Removal

         A. First Removal of D.H., A.H.'s Older Brother-August 2013

         In August 2013, TDFPS received a referral regarding Mother and Father's treatment of A.H.'s older brother D.H., who was then several months old. Allegations included domestic violence, drug use, and excessive drinking. Mother and Father admitted to TDFPS that they had engaged in domestic violence, and Father was arrested for allegedly choking Mother. There was no allegation that either parent was abusing D.H. at that time, but TDFPS determined that there was reason to believe that Mother had committed medical neglect and that both Father and Mother had engaged in neglectful supervision.

         D.H. was originally placed with another relative. When that placement fell through, he was returned to his parents. Mother and her mother had a physical battle with D.H. present, and he was removed in mid-September 2013 and placed with foster parents. Mother and Father actively participated in court-ordered services, and D.H. was placed back in their home on a monitored return in February 2015. The case against Mother and Father was dismissed a few months later. Another child, daughter F.H., was born during the pendency of this first case.

         B. Second Removal of D.H. and Removal of F.H.-April 2016

         In April 2016, less than a year after TDFPS's first case against Mother and Father regarding D.H. was dismissed, TDFPS received a Priority I referral alleging that both parents had committed physical abuse of D.H. (then three years old) and neglectful supervision of both D.H. and F.H. (then a one-year-old). The referral alleged:

• Mother had beaten D.H. and broken his arm, which resulted in a trip to Cook Children's Medical Center for treatment;
• A day or two later, Mother and Father left D.H. home alone. When the parents returned, they discovered that D.H. had removed his splint and put on his baby sister's clothes. Mother was then heard beating D.H. She threw him against the wall, after which he could no longer be heard;
• Mother had beaten D.H. so badly in the past that his heart had stopped beating and he had to be revived;
• Mother and Father had left D.H. home alone for hours at a time; . Law enforcement had been notified;
• Mother had made comments about not wanting D.H. and considering "dropping him off at a Safe Baby Site location";
• Mother was starving D.H.;
• Domestic violence was an issue between Mother and Father; and
• Mother had been confined in various facilities for her mental health issues in the past.

         Mother and Father initially did not cooperate with TDFPS's investigation and tried to hide D.H. When D.H. was finally found and examined, he had injuries severe enough to require hospitalization. TDFPS was also concerned that

• Mother and Father had not sought medical care for D.H.'s serious injuries;
• F.H. had been diagnosed with rickets;
• The children were too young and not verbal enough to protect themselves from harm; and
• The family had a previous CPS history and domestic violence issues. The children were removed in April 2016 and placed in D.H.'s former foster home; Mother and Father were arrested for injury to a child and later released on bond.

         C. A.H.'s October 2016 Birth and the November 2016 Termination of Parental Rights to D.H. and F.H.

         A.H., the only child before the court in this case, was born in late October 2016, several months after the removal of D.H. and F.H. from Mother and Father but while the case regarding D.H. and F.H. was still pending. TDFPS learned about A.H.'s birth because Mother took him on one of her visits with D.H. and F.H. On October 28, 2016, TDFPS filed a petition for the termination of Mother's and Father's parental rights to A.H. and sought A.H.'s emergency removal from them based on:

• The injuries D.H. had suffered while in his parents' care;
• Mother's and Father's alleged admissions regarding the injuries;
• The criminal charges Mother and Father faced for injury to a child; . Mother's and Father's drug use;
• D.H.'s outcries that Mother had hit him and that Mother and Father had cut him with a black knife that Father carried in his pocket;
• Mother's failure after D.H.'s second removal to seek visits with him for about five months, while seeing daughter F.H. at every opportunity;
• Mother's statements before A.H. was born that she hoped her unborn child would be a girl because she did not bond well with boys and that if the child was a boy, Father would name him and care for him;
• The parents' failure to complete any services after D.H.'s second removal; and
• Observations that the newborn A.H. had labored breathing.

         On the same day that TDFPS filed the petition, it also obtained an ex parte order for protection of a child in an emergency, authorizing the agency to remove A.H. from his parents. Mother and Father, however, were not cooperative and hid A.H. from authorities. When a TDFPS special investigator and a DPS investigator finally located A.H. a week later, he was removed. After the petition was filed but before A.H. was physically removed, Mother's and Father's parental rights to D.H. and F.H. were terminated based on their affidavits of relinquishment.

         II. Mother's Points

         A. Legally and Factually Sufficient Evidence Supports the Trial Court's Endangerment and Best Interest Findings Against Mother.

         In her third point, Mother contends that the evidence is legally and factually insufficient to support the trial court's endangerment finding against her. In her fourth point, Mother contends that the evidence is legally and factually insufficient to support the trial court's finding that termination of her parental rights was in the best interest of A.H.

         1. Burden of Proof

         For a trial court to terminate a parent-child relationship, TDFPS must establish by clear and convincing evidence that the parent's actions satisfy one ground listed in family code section 161.001(b)(1) and that termination is in the best interest of the child. Tex. Fam. Code Ann. § 161.001(b)(1)-(2) (West Supp. 2017); In re E. N.C. , 384 S.W.3d 796, 802, 803 (Tex. 2012); In re J.L., 163 S.W.3d 79, 84 (Tex. 2005). Both elements must be established; termination may not be based solely on the best interest of the child as determined by the trier of fact. Tex. Dep't of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987); In re C.D.E., 391 S.W.3d 287, 295 (Tex. App.-Fort Worth 2012, no pet.). Evidence is clear and convincing if it "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 (West 2014); E. N.C. , 384 S.W.3d at 802.

         2. Standards of Review

         a. Legal Sufficiency

         In evaluating the evidence for legal sufficiency in parental termination cases, we determine whether the evidence is such that a factfinder could reasonably form a firm belief or conviction that TDFPS proved the challenged ground for termination. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005). For Mother, we decide whether the trial court could have reasonably formed a firm belief or conviction that TDFPS proved that she engaged in conduct or knowingly placed A.H. with persons who engaged in conduct which endangered his physical or emotional well-being and that termination of the parent-child relationship between Mother and A.H. would be in his best interest. See Tex. Fam. Code Ann. § 161.001(b)(1)(E), (2).

         We review all the evidence in the light most favorable to the finding and judgment. J.P.B., 180 S.W.3d at 573. We resolve any disputed facts in favor of the finding if a reasonable factfinder could have done so. Id. We disregard all evidence that a reasonable factfinder could have disbelieved. Id. We consider undisputed evidence even if it is contrary to the finding. Id. That is, we consider evidence favorable to termination if a reasonable factfinder could, and we disregard contrary evidence unless a reasonable factfinder could not. See id.

         We cannot weigh witness credibility issues that depend on the appearance and demeanor of the witnesses because that is the factfinder's province. Id. And even when credibility issues appear in the appellate record, we defer to the factfinder's determinations as long as they are not unreasonable. Id.

         b. Factual Sufficiency

         We are required to perform "an exacting review of the entire record" in determining whether the evidence is factually sufficient to support the termination of a parent-child relationship. In re A.B., 437 S.W.3d 498, 500 (Tex. 2014). In reviewing the evidence for factual sufficiency, we give due deference to the factfinder's findings and do not supplant the judgment with our own. In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). Here, we determine whether, on the entire record, the trial court as factfinder could reasonably form a firm conviction or belief that (1) Mother engaged in conduct or knowingly placed A.H. with persons who engaged in conduct which endangered his physical or emotional well-being and (2) the termination of the parent-child relationship between Mother and A.H. would be in the best interest of the child. See Tex. Fam. Code Ann. § 161.001(b)(1)(E), (2); In re C.H., 89 S.W.3d 17, 28 (Tex. 2002).

         3. Parents' Invocation of the Privilege Against Self-Incrimination Produced Evidence Against Them.

         The parents' repeated invocations of the Fifth Amendment privilege against self-incrimination nevertheless resulted in evidence against them. "A party may invoke his Fifth Amendment privilege against self-incrimination in a civil proceeding if he reasonably fears that the answer sought might incriminate him." In re A.B., 372 S.W.3d 273, 275 (Tex. App.-Fort Worth 2012, no pet.) (citing United States v. Balsys, 524 U.S. 666, 671-72, 118 S.Ct. 2218, 2222 (1998)). A termination trial is a civil proceeding for purposes of the privilege against self-incrimination. Murray v. Tex. Dep't of Family & Protective Servs., 294 S.W.3d 360, 367 (Tex. App.-Austin 2009, no pet.); In re C.W., No. 02-17-00025-CV, 2017 WL 2289115, at *3 (Tex. App.-Fort Worth May 25, 2017, no pet.) (mem. op.). In a civil case, a factfinder may draw negative inferences from a party's assertion of the privilege against self-incrimination. See Tex. R. Evid. 513(c); Wilz v. Flournoy, 228 S.W.3d 674, 677 (Tex. 2007); see also Baxter v. Palmigiano, 425 U.S. 308, 318, 96 S.Ct. 1551, 1558 (1976) (holding Fifth Amendment does not forbid adverse inferences against parties to civil actions when they refuse to testify in response to probative evidence offered against them); Tex. Dep't of Pub. Safety Officers Ass'n v. Denton, 897 S.W.2d 757, 760 (Tex. 1995); C.W., 2017 WL 2289115, at *3.

         4. The Evidence is Legally and Factually Sufficient to Support the Finding of Endangering Conduct by Mother.

         a. Law on Endangerment

As this court has often discussed,
Endangerment means to expose to loss or injury, to jeopardize. . . .
• . . . Under subsection (E), the relevant inquiry is whether evidence exists that the endangerment of the child's physical or emotional well-being was the direct result of the parent's conduct, including acts, omissions, and failures to act. . . .
To support a finding of endangerment, the parent's conduct does not necessarily have to be directed at the child, and the child is not required to suffer injury. The specific danger to the child's well[-]being may be inferred from parental misconduct alone. . . . As a general rule, conduct that subjects a child to a life of uncertainty and instability endangers the child's physical and emotional well-being.
• . . .
We have also stated that abusive or violent conduct by a parent may produce an environment that endangers the child's physical or emotional well-being.
Further, even though imprisonment alone does not prove that a parent engaged in a continuing course of conduct that endangered the physical or emotional well-being of his child, it is nevertheless a factor that we may properly consider on the issue of endangerment.

In re I.C., No. 02-15-00300-CV, 2016 WL 1394539, at *7 (Tex. App.-Fort Worth Apr. 7, 2016, no pet.) (mem. op.) (citations and internal quotation marks omitted).

         We may consider evidence of the parent's conduct occurring before and after the child's birth. Tex. Dep't of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987); In re R.W., 129 S.W.3d 732, 738 (Tex. App.-Fort Worth 2004, pet. denied). "[E]vidence of abuse of another child, coupled with a present or future danger to the child in question, is relevant to determine whether a parent has engaged in an endangering course of conduct, even if the abuse occurred prior to the birth of the subject child." In re E.A.W.S., No. 2-06-00031-CV, 2006 WL 3525367, at *10 (Tex. App.-Fort Worth Dec. 7, 2006, pet. denied) (mem. op.); see also In re R.S., No. 02-15-00137-CV, 2015 WL 5770530, at *6 (Tex. App.-Fort Worth Oct. 1, 2015, no pet.) (mem. op.).

          b. Evidence of Endangerment

         i. Detective William Maddox's Testimony

         Detective William Maddox of the Crimes Against Children Unit of the Fort Worth Police Department testified as follows:

• He was contacted in April 2016 after TDFPS had attempted to locate three-year-old D.H. because it had reason to believe that he was in danger or had recently been harmed;
• Patrol officers had helped TDFPS find D.H., who had been hidden in the family's home;
• Detective Maddox met with patrol officers and the family at Cook Children's Hospital, where D.H. and F.H. had been taken for evaluation;
• D.H. appeared to be small;
• Detective Maddox "observed a large . . . knot on [D.H.'s] forehead as well as two rows of . . . evenly spaced circular wounds . . . [and] numerous other smaller scars that appeared to be inflicted injuries";
• The rows of circular wounds were visible on some of the pictures of D.H. admitted into evidence;
• On D.H.'s right side, the wounds went from the top of the shoulder to his buttocks;
• The circular wounds appeared to be old injuries;
• S.N., the foster mother, told Detective Maddox that when D.H. was originally returned to his parents, "he had two small scars from an infection on his hip and no other scars";
• Mother initially told Detective Maddox that she never used corporal punishment on D.H. but that Father did;
• Father initially told Detective Maddox that D.H. tapped his head on the wall during a punishment time-out, causing the large knot on his head, and that D.H. hurt his ...

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