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In re K-A.B.M.

Court of Appeals of Texas, Eighth District, El Paso

April 25, 2018

IN THE INTEREST OF K-A.B.M. AND F.E.B.M., CHILDREN.

          Appeal from 65th District Court of El Paso County, Texas (TC # 2016DCM8307)

          Before McClure, C.J., Rodriguez, and Palafox, JJ.

          OPINION

          ANN CRAWFORD MCCLURE, CHIEF JUSTICE.

         This appeal is from a judgment terminating the parental rights of S.M. and of M.N.P. to their children, K.-A.-B.M. and F.E.B.M. We affirm.

         FACTUAL SUMMARY

         S.M. (Father) and M.N.P. (Mother) are the parents of six-year-old K.-A.B.M. and four-year-old F.E.B.M. [1] The Texas Department of Family and Protective Services (the Department) became involved with the family in El Paso on April 22, 2016 when it received a report that Mother had choked KM because he was running late for school. Father was residing in Colorado when this incident took place. Mother admitted that she had been using drugs while the primary caregiver of the children. The Department referred Mother to Family Based Safety Services and (FBSS) and she completed parenting classes and inpatient drug treatment. During Mother's inpatient treatment and for one or two weeks after her release, the children were placed in a Parental Child Safety Placement (PCSP). The FBSS caseworker, Gabriel Virgen, testified that upon Mother's release from inpatient drug treatment, she was motivated to get a job and was "going in the right direction." Approximately one week after Mother completed inpatient drug treatment, Father moved to El Paso and began living with Mother. Mother completed only one week of outpatient services. During one of Virgen's visits to the home, Father admitted that he smoked marihuana. Consequently, Virgen attempted to provide services for Father, including outpatient drug treatment, but Father attended for only two days. The Department also learned that Mother had obtained a protective order against Father on December 16, 2014 based on a finding that family violence had occurred and was likely to occur in the future. The order, which prohibited Father from committing acts of family violence, communicating with Mother, or going within 200 yards of Mother's residence, did not expire until December 15, 2016. The Department advised Mother that Father could not live with the family due to his lack of participation in services and past commission of domestic violence. Despite this admonishment and the existence of the protective order, Mother and the children left El Paso with Father for a trip to Fort Worth on October 20, 2016. State troopers stopped the vehicle in Howard County and found 102 pounds of marihuana in the vehicle. Both Mother and Father were arrested and subsequently indicted for possession of marihuana. Father was also arrested for violation of the protective order. The children were placed in foster care and the Department filed a petition in Howard County seeking termination of Mother's and Father's parental rights. Following a hearing, the Department was named the temporary managing conservator on November 2, 2016, and the case was transferred from Howard County to El Paso County on November 9, 2016.

         The Howard County District Attorney's Office dismissed the possession of marihuana cases against Mother and Father on February 17, 2017 due to a lack of probable cause. When Mother was released from jail and returned to El Paso, she admitted to Virgen that she had been transporting drugs and the children were present in the car. Mother said that someone she met during inpatient drug treatment offered her $3, 000 to transport the drugs. Mother also admitted she had used crack cocaine. Virgen asked Mother to continue her outpatient drug treatment, but she attended for only one week.

         The caseworker, Perla Pena, met with Mother at the beginning of December 2016 and explained how the case would progress. Pena advised Mother that she could no longer engage in criminal activity and she had to attend visitations with the children. Pena first met with Father in April 2017. She explained to him that in order to be reunited with his children, he needed to attend visitations with his children and no longer engage in family violence. During this conversation, Father repeatedly asked Pena what he needed to do to get his children back.

         Pena met with both Mother and Father on June 27, 2017 to review the Family Service Plan. Although they refused to sign the service plans, Pena provided each of them with a copy of the plan. Pena explained that both parents were difficult to engage throughout the case. Father was frequently verbally aggressive and would yell at her while complaining that he should not be asked to participate in any services. Mother was also uncooperative and dishonest.

         The Family Service Plan required Mother to: (1) attend supervised visitations with the children; (2) participate in individual counseling; (3) obtain and maintain employment; (4) submit to random drug testing; (5) participate and complete domestic violence classes; (6) complete an assessment by a psychiatrist and follow recommendations; and (7) participate in a drug/alcohol assessment and follow recommendations.

         Mother did not comply with any of these requirements. Mother attended only 33 of the 97 scheduled visits with the children. The Department provided Mother and Father with bus tokens so they could attend visitations, but they used the tokens for things other than visiting the children. Regarding the other requirements, Mother often made an initial effort to comply, but failed to follow through. For example, Mother attended one session with a therapist and did not return. She also completed a psychiatric assessment and was diagnosed with major depressive disorder, but she did not attend therapy. Likewise, Mother participated in a drug and alcohol assessment, but she was unsuccessfully discharged from the recommended outpatient treatment because she failed to attend any group or individual sessions. Regarding the domestic violence classes, Mother attended the orientation and completed the intake, but she completed only six of twelve classes. Mother did not make an effort to obtain employment. After rejecting Pena's offer of assistance in locating employment, Mother did not find a job on her own. She also refused to submit to drug tests on three different occasions. Under the Service Plan, a refusal to submit to a test constituted a positive drug test. Mother also admitted to using crack cocaine and marihuana in December 2016.

         The Family Service Plan required Father to (1) participate in therapy and follow all recommendations; (2) submit to random drug testing; (3) submit to an assessment by a psychiatrist, follow all recommendations, and provide a release of information so the Department could verify compliance; (4) provide the Department with all of his service provider information; (5) participate in a drug/alcohol assessment through OSAR and follow all recommendations; and (6) attend supervised visitation with the children. Father attended only 3 of 54 scheduled visitations with the children and he did not submit to any drug tests. Father claimed he was only given one bus token, and he also told Pena that he did not need to see his children for more than just one hour per week. During one visit with the children in June 2017, Father became verbally aggressive and abusive with both the children and Mother. During this twenty minute outburst, the children appeared to be afraid of Father and hid behind Mother. The representative of Associated Behavioral and Trauma Specialists who made the written report about the incident stated that Father was at times incoherent, but he complained about the current foster family, CPS, the court system, and KM's clothing.

         The Department referred Father to individual therapy, in part to address domestic violence, but he attended only one appointment. Arturo Acosta, a clinical social worker, met with Father to do the intake for counseling, but Father refused services and "ranted" while complaining that CPS was out to get him. Acosta explained that he talked to Father for about an hour and a half in an effort to calm him down and perform the interview, but Father was extremely angry and would not stop talking. Father told Acosta that he had been diagnosed with schizoaffective disorder, but he was not taking the prescribed medications because he did not like the side effects. Acosta recommended that Father return to his psychiatrist and resume taking his medications to enable him to participate in counseling. Father was unsuccessfully discharged from mental health treatment at University Behavioral Health (UBH).

         The evidence also showed that while the case was pending, Mother and Father committed criminal offenses, including acts of domestic violence against each other. On May 24, 2017, Mother was arrested for shoplifting from Wal-Mart. Father was arrested in August 2017 for theft of a pack of beer from a convenience store. An El Paso police officer, Jonathan Longenbaum, testified that he and other officers at the Northeast police station were familiar with Mother and Father because they were frequently dispatched on domestic violence calls involving the couple. On March 15, 2017, Longenbaum was dispatched on a domestic violence call, and Father was charged with assault causing bodily injury to Mother. The charging instrument alleged that Father struck Mother's face and body with his hand. Another EPPD officer, Michael J. Williams, was dispatched to two family disturbances involving Mother and Father at the SuperLodge Motel. He did not make an arrest in either incident because Mother and Father were only engaged in verbal disagreements and they agreed to separate for the night. On September 5, 2017, El Paso police officers were again dispatched to the SuperLodge Motel on a family violence call involving Mother and Father. Officers arrested Mother for causing bodily injury to Father by striking him with a high heel shoe. They also found a methamphetamine pipe in Mother's purse and she admitted using methamphetamine earlier that day. At trial, Father testified that his last contact with law enforcement was the day prior to the hearing because Mother kicked in the door of his motel room because he would not give her money.

         Following the hearing, the trial court entered judgment terminating Mother's and Father's parental rights based on findings that each of them (1) knowingly placed or knowingly allowed the children to remain in conditions or surroundings which endangered the physical or emotional well-being of the children, pursuant to § 161.001(b)(1)(D); (2) engaged in conduct or knowingly placed the children with persons who engaged in conduct which endangers the physical or emotional well-being of the children, pursuant to § 161.001(b)(1)(E), and (3) failed to comply with the provisions of a court order that specifically established the actions necessary for Mother and Father to obtain the return of the children, pursuant to § 161.001(b)(1)(O). The trial court also found that termination of Mother's and Father's parental rights is in the best interest of the children. Each parent filed notice of appeal.

         ISSUES ...


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