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In re B.A.M.

Court of Appeals of Texas, Ninth District, Beaumont

April 5, 2018

IN THE INTEREST OF B.A.M.

          Submitted on February 14, 2018

          On Appeal from the 418th District Court Montgomery County, Texas Trial Cause No. 14-04-03839-CV

          Before Kreger, Horton and Johnson, JJ.

          MEMORANDUM OPINION

          HOLLIS HORTON JUSTICE

         This is an appeal from a judgment that resulted in the termination of the parent-child relationship between B.A.M.[1] and his father. B.A.M.'s father (Father) presents seven appellate issues, and he argues that the jury's decision to terminate his parental rights to B.A.M. should be overturned. In issues one through four, Father argues that the evidence is legally and factually insufficient to support the jury's decision to terminate his parent-child relationship with B.A.M. In issue five, Father argues that the evidence the jury considered during the trial is legally and factually insufficient to support the jury's best-interest finding. In issue six, Father complains the trial court should have excluded the testimony of one of the caseworkers employed by the Texas Department of Family and Protective Services (the Department), who the trial court allowed to testify even though the Department failed to produce several documents the caseworker reviewed before testifying during the trial. In issue seven, Father argues the trial court should have sustained an objection he made to the argument made by the Department's attorney when she suggested that Father had the right to disregard a court order giving Mother possessory rights, which allowed her to have visitation, by refusing to allow B.A.M. to go to Mother's home given his alleged knowledge about Mother's "serious mental health issues[.]" For the reasons explained below, we affirm the final judgment terminating Father's parental rights to B.A.M.

Background Relevant to Issue Four, Which Challenges the Jury's Decision to Terminate Father's Parental Rights Based on Father's Alleged Failure to Comply with His Family Service Plan

         At the conclusion of the trial, the jury answered a broad form issue that asked whether Father's parental rights to B.A.M. should be terminated. The instructions that were submitted in conjunction with this broad form issue advised the jury that Father's parent-child relationship could be terminated on four separate grounds, if the jury determined the Department, by clear and convincing evidence, had proven that Father (1) knowingly placed or allowed B.A.M. to remain in conditions or surroundings that endangered B.A.M.'s physical or emotional well-begin, (2) engaged in conduct or knowingly placed B.A.M. with persons who engaged in conduct that endangered B.A.M.'s physical or emotional well-being, (3) failed to support B.A.M. based upon his ability to do so during a period of one year, ending within six months of the date the Department filed suit, or (4) failed to comply with the provisions of a court order that specifically established the actions necessary for the Department to return B.A.M. to Father's custody.

         We limit our discussion of the background information necessary to explain our resolution of Father's fourth issue, which asserts the Department failed to satisfactorily establish that Father complied with the requirements of his court-ordered, family service plan. We focus on issue four because should that issue be resolved in the Department's favor, it would not then be necessary to reach Father's first three issues, as these issues concern alternative theories on which the jury could have answered the broad form issue in the Department's favor.

         The record shows that in early April 2016, the Department filed suit alleging that Father's parental rights to B.A.M. should be terminated on several grounds. One of the Department's theories was that Father had failed to comply with the provisions of a court-ordered, family service plan. See Tex. Fam. Code Ann. § 161.001(b)(1)(O) (West Supp. 2017). In Father's appellate brief, Father has not argued the Department failed to establish that it did not have custody of B.A.M. for at least nine months after B.A.M. was removed from Father's custody. Additionally, Father has not argued the evidence in the trial failed to sufficiently establish that when B.A.M. was removed from Mother's home, [2] she was abusing or neglecting B.A.M. Id. Instead, Father argues in his brief that the evidence before the jury failed to sufficiently establish that he failed to comply with the material requirements in his family service plan. According to Father, the Department failed to introduce the family service plan into evidence during the trial, failed to introduce the order the trial court signed obligating Father to comply with a family service plan, and produced only one witness during the trial to address whether Father failed to comply with his family service plan. Additionally, Father argues that the evidence before the jury showed that he attempted to comply with the plan. He suggests that any evidence showing that he did not comply with the plan does not outweigh the evidence showing that he did comply. Father's brief on issue four concludes that "[c]lear and [c]onvincing evidence of what the plan or order [required] was never provided to the jury."

         B.A.M. was almost six years old when the Department's case was tried.[3] Born in 2011, B.A.M. lived with his parents until he was approximately one year old. At that time, Father and Mother separated, and Father and B.A.M. started living with Father's mother in her home. For the next three and one-half years, B.A.M. lived with his paternal grandmother, and with Father, while Mother visited B.A.M. as allowed by the standard visitation schedule that controlled her parental rights, which allowed B.A.M. to stay with Mother every first, third, and fifth weekend. During the spring of 2016, Father began working in Beaumont. Around that time, B.A.M. began living with Mother in Mother's home.

         In April 2016, the Department filed a petition asking that the trial court authorize B.A.M.'s removal from Mother's home and that the court make the Department B.A.M's temporary managing conservator. The Department alleged that B.A.M. was living with his mother and several of Mother's other children under circumstances where Mother, due to her mental illness, endangered B.A.M.'s physical and emotional well-being. The Department supported these allegations with an affidavit of a caseworker, and her affidavit indicates that the Department received information indicating that Mother was receiving in-patient psychiatric treatment and that she had reportedly made statements to indicate she was having inappropriate sexual thoughts about one of her children (not B.A.M.), a two-year-old male. The affidavit explains that the Department had on several prior occasions investigated Mother regarding her ability to care for her children: these investigations revealed that Mother's problems were mostly due to problems she had "in managing her mental illness." The Department alleged that an immediate danger to the physical health or safety of B.A.M. existed, and it requested that the court authorize the Department to remove B.A.M. immediately and to take B.A.M. into its possession. The trial court granted the Department's request, authorized the Department to remove B.A.M. from Mother's home, and the court named the Department as B.A.M.'s temporary sole managing conservator.

         Approximately one week after the removal occurred, the trial court conducted an adversarial hearing to determine whether it should alter Mother's and Father's custodial rights to B.A.M. pending a trial on the merits of the Department's claims. Mother appeared at the adversarial hearing, but Father did not. At the conclusion of the adversarial hearing, the trial court ordered that subject to the Department's supervision, B.A.M. be placed with his paternal grandmother. The trial court also ordered Father to complete various tasks that included a requirement that he cooperate with the Department. The order conditioned Father's right to regain custody of B.A.M. on Father's compliance with the court's order, and the order required Father to complete a family service plan listing ten general items, together with a number of other, more specific tasks. The temporary order also required that Father comply with "each requirement set out in the Department's original, or any amended, service plan during the pendency of this suit."

         Father's family service plan included a requirement that he complete a drug and alcohol assessment. The order required that Father follow any recommendations following that assessment; that Father complete random urine tests, as directed by the Department; and that he obtain and maintain safe, stable, and appropriate housing and employment during the entirety of the proceeding. Additionally, the language of the Father's family service plan informed him that his failure "to show up for random drug testing [would be] noted as a positive screening[.]"

         In September 2016, the trial court conducted an initial permanency hearing in B.A.M.'s case. Father appeared at this hearing and was represented by counsel. Following the initial permanency hearing, the trial court approved Father's family service plan and ordered that Father complete the plan. See Tex. Fam. Code Ann. § 263.103(c), (d)(2) (West Supp. 2017) (explaining that, in certain circumstances, the Department may file an unsigned service plan, which becomes effective when the court orders that a parent comply with the plan). The initial permanency order indicates that B.A.M. was to continue to live with his paternal grandmother, but the court allowed Father to have supervised visitation with B.A.M.

         In November 2016, the Department removed B.A.M. from his paternal grandmother's home because grandmother had allowed Father to have unsupervised visitation with B.A.M., and grandmother had failed to follow the Department's recommendations regarding B.A.M.'s counseling and medical care. The Department's case to terminate Mother's and Father's rights to B.A.M. went to trial on September 11, 2017. Eight witnesses were called to testify in the trial, all of whom were called by the attorney representing the Department. Of these eight witnesses, only four of the witnesses directly addressed Father's family service plan at trial: (1) Father; (2) a caseworker who worked on Father's case for approximately two and one-half months, who was later promoted to a position supervising other caseworkers (Caseworker One); (3) the caseworker who was assigned to B.A.M.'s case when the Department's case was tried (Caseworker Two); and (4) the court-appointed special advocate (B.A.M.'s CASA), who the trial court selected as the volunteer advocate that it assigned to speak for B.A.M. so that he could be timely placed in a safe and permanent home.

         We address the testimony of these four witnesses as the testimony relates to Father's court-ordered, family service plan. When Father testified, he acknowledged a past history of substance abuse, which involved his use of marijuana, methamphetamine, phencyclidine (PCP), and cocaine. During his testimony, Father agreed that he had suffered from one epileptic seizure due to his substance abuse. However, Father denied that he had ever used PCP or cocaine after B.A.M. was born, and he claimed that he used methamphetamine once. According to Father, his onetime use of methamphetamine explained why one of the urine tests he took at the Department's request was positive for methamphetamine. During Father's testimony, the trial court admitted three certificates into evidence. The certificates indicate that Father completed classes on drug and substance abuse, classes in parenting, and individual counseling sessions. All of the certificates are dated September 9, 2017, which was only two days before the trial began.

         Father also addressed his employment when he testified. Father's ability to demonstrate that he had stable employment is among the general tasks that are listed in his family service plan. Father testified that he had not had a full time job during the eight month period preceding the trial. However, Father testified that he had been working, but he stated that his work was "not over the table. I do tattoos." Father claimed that he made approximately $1200 per month from his work tattooing and from other various odd jobs, such as moving furniture and cutting grass. Father also addressed his living arrangements, and his proposed living arrangement with his mother if the jury decided to allow him to regain his custody over B.A.M. According to Father, for a period of time after the Department took B.A.M. into custody, he slept in his truck while it was parked in a lot near the Department's offices. Father explained at trial that he was living with his mother, and he claimed his mother had room for B.A.M. to live there too.

         Father also outlined why he had not complied with various aspects of his family service plan. He testified that he never received a complete copy of his family service plan, but he acknowledged that the Department gave him parts of the plan. Father testified that he could not read or write, and he asserted that although the Department made some effort to explain his plan to him, he did not understand the explanation the Department provided to him. Father acknowledged attending a family group conference in late May 2016, but he claimed the Department discussed only the goals that the Department established for B.A.M. during that meeting. According to Father, the Department did not go over the details of what he was required to do to satisfy the obligations imposed on him by his family service plan. Father claimed that he never understood what was expected of him based on the family service plan, and he testified that at the end of the May 2016 meeting the Department told him: "[G]ood luck. Figure it out."

         Two of the Department's caseworkers, Caseworker One and Caseworker Two, addressed various aspects of Father's family service plan when they testified in the trial. Caseworker One explained during trial that she had worked on Father's case as a caseworker for approximately two and one-half months. While a caseworker on Father's case, Caseworker One met with Father for more than one hour during a permanency conference. According to Caseworker One, she discussed Father's duties and responsibilities under his family service plan with him in this meeting. Caseworker One stated that Father completed a drug and alcohol assessment that the Department required, but that following the assessment, Father failed to "follow the recommendations of that drug and alcohol assessment." Caseworker One also testified that Father had a urinalysis test in October 2016, "which was positive for methamphetamines[, ]" that Father had several negative urine tests following that result, and that Father, during her involvement with his case initially as a caseworker and then later as a supervisor over other caseworkers on Father's case, failed to submit to all of the urine tests the Department asked him to take. Caseworker One explained that Father's family service plan required that Father obtain outpatient treatment for substance abuse, but that Father had not sought outpatient treatment or substance abuse therapy from a counselor who was approved by the Department. Caseworker One also stated that Father never provided proof he was employed, and that he had not documented his sources of income. Caseworker One testified that Father never demonstrated that he could provide B.A.M. with a safe and stable home. When cross-examined by Father's attorney, Caseworker One testified that Father did not take several urine tests that the Department had directed Father to take. She further explained the Department required Father to get ...


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