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In re P.M.B.

Court of Appeals of Texas, First District

December 19, 2017


         On Appeal from the 313th District Court Harris County, Texas Trial Court Case No. 2013-03802J

          Panel consists of Chief Justice Radack and Justices Higley and Bland.


          Laura Carter Higley Justice.

         Following a bench trial, the trial court signed a judgment terminating the parent-child relationship between C.E.B. ("Mother") and her two minor sons, eight-year-old P.M.B. and seven-year-old M.A.B. The trial court also appointed the Department of Family and Protective Services ("the Department") as the boys' sole managing conservator. In three issues, Mother contends that the evidence was not legally or factually sufficient to support termination of her parental rights or to support appointment of the Department as her sons' sole managing conservator.

         We affirm.


         The Department first became involved with P.M.B. and M.A.B. in February 2013. The Department received a referral that the boys' father ("Father") had become intoxicated and had hit then three-year-old M.A.B. in the face. As result, Mother took the boys to live with their maternal grandmother.

         In May 2013, the Department received another referral alleging that the maternal grandmother had physically abused P.M.B. while the grandmother was intoxicated. Because of the reoccurring domestic abuse, the Department filed suit, seeking temporary conservatorship of the two boys, which was granted. Mother was provided a family service plan to assist in regaining custody of the boys.

         Pursuant to the plan, Mother participated in services including parenting classes, domestic violence classes, and individual therapy. After 13 months, the boys were returned to her care. In 2015, the family court signed a decree, appointing Mother as the boys' sole managing conservator. The decree did not give Father any rights to the boys.

         In March 2016, the Department received another referral, alleging physical abuse and neglectful supervision of seven-year-old P.M.B. The referral stated that P.M.B. had been observed with purple and black bruises covering his arms.

         The Department filed a motion to modify conservatorship and for termination of parental rights. To support its request for temporary orders, the Department offered the affidavit of its representative, D. Brown. She testified that P.M.B. had reported that Mother's friend, Nick, had beat him at Mother's request. P.M.B. said that another of Mother's friends, Jay, also had hit him a couple of times. The referral stated that Nick and Jay had used their fists to beat P.M.B. It was reported that "the incident occurred on 3-23-16 after [P.M.B.] received a bad conduct grade at school." P.M.B. reported that he also had bruising on his chest and back, but those bruises had faded. P.M.B. also reported that he "could barely raise his arm, and indicated that he was fearful of his mother finding out that his bruises had been seen."

         As requested by the Department, the trial court again named the Department as P.M.B.'s and M.A.B.'s temporary managing conservator. To facilitate the return of the children to Mother, the Department developed a family service plan for Mother to follow. The initial concerns stated in the service plan included the following: (1) physical abuse of the children; (2) Mother "does not think it is wrong to allow others to hit her children"; (3) Mother "speaks badly" to the children and "curses them"; and (4) "services completed by the mother from [the] prior case did not benefit her."

         The service plan set out several tasks and services for Mother to complete before reunification with her children could occur, including completing parenting and domestic-violence classes and individual counseling. Mother was also required to participate in a psychological examination, visit her children at CPS's office twice per month, maintain suitable housing and employment, and refrain from engaging in any illegal and criminal activities.

         Mother maintained stable employment and housing while the case was pending. She participated in the services listed in her service plan, completing her parenting classes and individual therapy and attending domestic abuse classes.

         Mother also participated in a psychological examination in September 2016. The psychologist's report from the evaluation includes a history of events that Mother provided to the psychologist. Mother told the psychologist that she also has a 14-year-old daughter, who has a different father than the P.M.B. and M.A.B. Mother reported that there was a history of domestic violence with her daughter's father. Mother acknowledged that CPS had investigated allegations of abuse and neglect with respect to her daughter in 2003. Mother also reported that her daughter's father had committed domestic abuse against her at the time of the CPS investigation. Nonetheless, Mother lost custody of her daughter, who now lives with her father. Mother has not seen her daughter for 12 years.

         With respect to P.M.B. and M.A.B., Mother told the psychologist that the Department originally became involved with the family in 2013 because Father had abused the boys. Mother stated that, when he was drunk, Father had "'drop kicked' [P.M.B.] in the chest and threw him out of the door, and 'open-handed' [M.A.B.] across the face." She "reported that the police were called to their home for domestic violence and indicated that [Father] was finally arrested for violating probation." Mother told the psychologist that "she only stayed in the relationship [with Father] because of their children."

         Mother reported that she and the boys had then left Father and moved in with her mother. The maternal grandmother was then accused of public intoxication and striking P.M.B. She said that "CPS removed the children because she lived at her parents' home and CPS felt it was unsafe." Mother stated that she completed a family service plan, including parenting classes, domestic violence classes, and attended individual therapy. The boys were returned to her care 13 months after their removal.

         With respect to the boys' most recent removal by the Department, Mother stated that P.M.B.'s school contacted the Department because P.M.B. had bruises. She said that P.M.B. had reported that "Nick and Jay beat P.M.B. up, and that [Mother] watched them do this." Mother described Nick as an "ex-friend" and Jay as an "ex-boyfriend." She said that she described them as "exes" because they both had refused to speak to CPS regarding the allegations that Mother had them beat P.M.B.

         The report states that Mother denied instructing Nick and Jay to beat up P.M.B. Mother indicated to the psychologist that [P.M.B.] "pulls this to get attention, and boy did he ever get the attention." Mother said that P.M.B. has ADHD and "anger issues." She described him as being "as highly aggressive." Mother reported that "[P.M.B.] will lie to get his way 'to make life difficult for me.'" And Mother "indicated that [P.M.B.] will become aggressive if he does not get his way, and noted that the majority of time [M.A.B.] was the one getting hurt."

         Mother told the psychologist that P.M.B.'s bruises had resulted from his fighting with M.A.B., not from being beaten by her adult friends. Mother explained that P.M.B. had bullied M.A.B., and she had then allowed M.A.B. to push P.M.B. out a deer stand four or five times, resulting in the bruising reported to the Department. The report stated that, when the psychologist "asked about allegations that she had instructed M.A.B. to beat [P.M.B.'s] 'ass, ' [Mother] indicated that she has instructed [M.A.B.] to do this." Mother told the psychologist "that [M.A.B.] needs to stand up for himself and needs to know that he is going to have to fight if he is getting picked on."

         Mother also said she "'went off' on CPS during the investigation, telling them that [P.M.B.] is lying and 'trying to play' them." Mother had then "added that she is not raising '2 punk-ass boys, '" and she "indicated that in her house 'we do have discipline.'" Mother also told the psychologist that "she does not have the physical strength to 'kick their asses like they need it.'"

         At the end of the report, the psychologist concluded, "[Mother's] comments suggest that she holds and exhibits some dysfunctional parenting beliefs and behavior, including encouraging physical aggression in her children, overvaluing corporal punishment, and holding distorted beliefs regarding her children's behavior (e.g., [P.M.B.] lies 'to make life difficult for me')." The psychologist also noted that Mother "denied allowing adult males to physically assault [P.M.B.] as a form of discipline" and had "attributed this allegation to [P.M.B.] and [M.A.B.] lying." The psychologist wrote, "Should CPS and/or the court determine that this allegation is true, then [Mother's] failure to accept responsibility for this behavior (in conjunction with her placing blame on her children) would be of significant concern."

         The psychologist also recommended that Mother be evaluated by a substance-abuse counselor because she had tested positive for marijuana in May 2016. She also tested positive for marijuana in and September 2016. Mother later testified at trial that she had not used marijuana; rather, she was exposed to others smoking marijuana where she worked.

         Mother's service plan required her to attend supervised visits with the boys at CPS's offices. However, in September 2016, the trial court suspended Mother's visits with P.M.B. and M.A.B. because Mother was having inappropriate conversations with the children about the case. Mother told the boys not to take their medicine because it would make them "zombies." She also told the boys that the Department's caseworker and the boys' foster mother were trying to take them away from her and that they would never see her again.

         The Department ultimately sought to terminate the parent-child relationship between Mother and P.M.B. and M.A.B.[1] In seeking termination, the Department asserted that Mother had engaged in conduct that endangered the children and that she had failed to comply with the family service plan.

         The case was tried to the bench, beginning on March 21, 2017. Among the documentary evidence admitted at trial was Mother's family service plan and the report from Mother's psychological evaluation. Mother testified, and the trial court was continued until April 18, 2017. When trial recommenced in April, the Department's caseworker, D. Byrd, testified. Trial was then recessed for three months to permit the Department to nationally broadcast that the children were available for adoption. Trial resumed on July 12, 2017. Mother and Byrd both were recalled to testify.

         Mother's testimony was largely consistent with the information that she had provided to the psychologist during her psychological evaluation. Mother testified that she was aware that P.M.B. and M.A.B. had reported that she had asked her adult, male friends to "beat up" P.M.B. and that she had been present when her friends assaulted P.M.B. She knew that this was the reason that the boys were taken from her care. Mother denied that this had occurred and indicated that her sons were "liars." She claimed that P.M.B. had lied about being beaten in order to "make things difficult for [her]." Mother indicated that P.M.B. wanted to be with Father and that was the reason that he had lied.

         Mother admitted that she had said that she "[did] not have the strength to kick your boys' asses like they needed" but denied that she had ever asked anyone to do this for her. Mother stated that she would "never let anybody touch my kids." However, Mother acknowledged that she had "probably" told P.M.B. during CPS's investigation that he had "better recant what the f-k he said." Mother also acknowledged that she had told her two young sons "to get their shit out of [her] home . . . if they were lying" about the beating.

         When asked why the boys had been removed from her care, Mother responded that it was because P.M.B. wanted to be with Father. Mother stated she had learned that her mother was permitting the boys to see Father without Mother's knowledge. Mother indicated that she believed that P.M.B. made up the allegations about the beating so that he could live with Father.

         When asked how P.M.B. had gotten the bruises, Mother explained that P.M.B. was bullying M.A.B. while they were at her parents' house. Mother said that she "got fed up with it" and told M.A.B. to defend himself. M.A.B. then pushed P.M.B. "out of the deer stand" repeatedly, and P.M.B. "landed on the ground on his chest." After M.A.B. pushed P.M.B. out the deer stand five times, Mother stated that she intervened to stop it. Mother denied that she encouraged M.A.B. to fight; rather, she encouraged him to defend himself.

         Mother answered affirmatively when asked whether she was aware that the boys "exhibited very bad aggression" and "aggressive tendencies" for their age. She attributed the boys' aggressive behavior to "everything they have witnessed" with respect to the domestic abuse perpetrated by Father when she and Father were living together. Mother testified that "[Father] beat the crap out of me and my two boys." She stated that Father had "physically inflicted wounds and bruising" on the boys. Mother described the abuse as "sustained." She stated that the police were called but no charges were ever filed against Father.

         With respect to the earlier CPS investigation, Mother acknowledged that the report had been that her mother-the boys' maternal grandmother-had hit the boys while being intoxicated. Mother clarified that it had been her niece, not her mother, who had hit P.M.B.

         Mother stated that she had learned that the boys were taking ADHD medication. She also testified that she had heard that their behavior, particularly P.M.B.'s behavior, had improved while in the Department's care.

         Mother testified that she had completed the services required in the family service plan. She also testified that she had maintained employment and housing throughout the case. She indicated that she had her anger under better control and had learned in parenting classes that "children are still people and they still have feelings and you've got to be cautious as to how we talk to them and treat them." She also stated that she has limited the time she spends with her family and is attending church, which serves as a support group for her. When asked why things would be different this time than they had after the last time she had completed her family services, Mother stated that she would be moving away and that she would not have contact with Father.

         Mother acknowledged that the trial court had suspended her visits with the boys in September 2016 but denied that she had done anything to cause the visits to be suspended. She claimed that the trial judge had told her that her visits had been suspended because the judge was required to believe the Department's caseworker and not her.

         At trial, the Department called caseworker D. Byrd to testify. According to Byrd, Mother's visitations had been suspended because she "would have very inappropriate conversations with the boys during the visit." Mother "talk[ed] about the case [with the boys], she would tell them not to take their medicine because it was going to make them zombies. She would tell them that myself and the ...

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