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In re M.M.M

Court of Appeals of Texas, First District

April 26, 2018


          On Appeal from the 314th District Court Harris County, Texas Trial Court Case Nos. 2016-05772J & 2016-03351J

          Panel consists of Justices Jennings, Keyes, and Higley.


          Laura Carter Higley Justice

         In these two appeals, T.M. ("Mother") and V.M. ("Father") challenge the final judgments rendered by the trial court terminating the parent-child relationship between Mother and Father and their two children, four-year-old J.A.M. and one- year-old M.M.M.[1] Mother raises two identical issues in each appeal. She challenges the legal and factual sufficiency of the evidence to support the trial court's predicate findings supporting termination and the trial court's findings that termination of the parent-child relationship was in the children's best interest. Father raises one issue in each appeal. He challenges the factual sufficiency of the evidence supporting the best-interest findings.

         We affirm in each appeal.


         On June 2, 2016, the Department of Family and Protective Resources ("the Department") filed suit, requesting the trial court to issue temporary orders appointing the Department as the temporary sole managing conservator of then-three-year old J.A.M. If family reunification could not be achieved, the Department sought to terminate Mother's and Father's parental rights to J.A.M. The Department offered the affidavit of CPS Investigative Caseworker D. Inyangala to support its petition.[2]

         In her affidavit, Inyangala testified that, on March 16, 2016, the Department received a referral, alleging "negligent supervision" of J.A.M. by Mother.

         Inyangala stated, "According to the report, there was substantial ongoing domestic violence between [M]other and [F]ather" in J.A.M.'s presence. Father had been arrested for assaulting Mother on February 17, 2016 and was in jail. Inyangala noted that "[t]he report also alleged that father and mother have a history of drug use (crack/meth)."

         Following the report, Inyangala conducted an investigation. Inyangala visited Father at the county jail. Father told Inyangala that Mother had called the police and reported that he had hit her, but he denied assaulting Mother. Father said that Mother has a history of calling the police when they had "little arguments" because she "has anxiety and little things annoy her." Father also told Inyangala that "he has four other children whom he does not have custody of and that those children live with their biological mother, who is not the biological mother of [J.A.M.]."

         Inyangala learned from Father that Mother was living with J.A.M. at a homeless shelter. On March 18, 2016, Inyangala interviewed Mother at the shelter. Mother reported to Inyangala that she had "been diagnosed with depression anxiety when she was young, but she has not been taking her medication recently." Mother said that the shelter requested her to take Xanax, however, Mother indicated that she would not take it because "she just found out that she was pregnant." Mother told Inyangala that "she has intentions of getting back with [Father] because they are married."

         Inyangala discovered in mid-April 2016 that Father had been released from jail. In May 2016, Inyangala learned that Mother and J.A.M. were living in a motel. On May 23, 2016, Inyangala visited Mother at the motel. Mother said that Father was paying for the motel, but she did not know where Father lived. Mother said that she had "not done any drug[s]" since before she went to the homeless shelter.

         Mother agreed to submit to a drug test. On May 31, 2016, Inyangala received Mother's drug-test results, which were positive for cocaine. Inyangala worked with Mother to find a voluntary placement for J.A.M., including relative placement. Inyangala determined that the relative placements provided by Mother were either not appropriate or not willing to take J.A.M.

         In her affidavit, Inyangala also detailed the family's CPS history. Inyangala noted that, in January 2013, the Department had received a referral alleging physical abuse of J.A.M. and his older siblings by Father and by Mother. J.A.M.'s older siblings are Mother's step-children. The report alleged that Mother had "tossed the one year old on to the bed and that [Mother] has mental illness." However, the case "was ruled as 'Unable to Determine' that abuse occurred because the children had no bruises or marks, but there was inconsistency to why the home had two broken windows and random calls to the police alleging domestic violence." Inyangala noted that the Department had offered services to Mother and Father at that time, but they failed to engage in them.

         Inyangala also noted that, in December 2014, the Department received a referral alleging that Father had physically abused one of J.A.M.'s older siblings. "The report indicated that the father hit the child in the mouth for not doing his homework and left a bruise on his face." Inyangala stated that "[t]he case was ruled out because the child had no bruises and was not injured."

         Inyangala stated that the Department received another referral in March 2015. The referral alleged that Mother was sexually abusing her son, J.A.M., and her three step-sons. Inyangala testified that "[t]he report indicated that the mother touches the children in their private parts. The case was ruled out because the children had no outcries."

         Inyangala's affidavit also detailed Mother's and Father's criminal histories. Inyangala determined that Mother was placed on community supervision for two years for drug possession in November 2015. Inyangala stated that, in addition to being charged with assaulting Mother in February 2016, Father had previously been convicted of evading arrest in 2008 and for assault of a family member in 2007.

         Inyangala's affidavit summarized the Department's reasons for requesting appointment as J.A.M.'s temporary managing conservator:

[Mother] tested positive for cocaine in a hair follicle on 5/31/2016. The mother is currently on probation for possession of a controlled substance. The mother and father have a long history of domestic violence; the father was recently arrested and has pending charges for assaulting the mother. The mother continues to deny that domestic violence exists and is still in a relationship with the father, thus, causing concerns as to her ability to provide a protective environment for her child. Additionally, the mother moves around between various hotels, and is unable to provide a safe and stable environment at this time.

         On June 2, 2016, the trial court signed emergency orders, placing J.A.M. in the Department's temporary managing conservatorship. Two weeks later, on June 16, both parents appeared with counsel at an adversary hearing at which the trial court signed temporary orders continuing the appointment of the Department as J.A.M.'s managing conservator. The trial court ordered the parents to comply with the Department's service plan, warning them that failure to comply with the plan could result in the termination of their parental rights. Both parents also submitted to drug testing that day. Mother tested positive for cocaine, and Father tested positive for cocaine and marijuana.

         On June 20, 2016, Mother underwent an evaluation at the Children's Crisis Care Center ("4Cs"). Mother told the 4Cs evaluator that "she first smoked marijuana at the age of eleven and smoked one blunt daily until May 2016." Mother denied using cocaine but told the evaluator that she believes the marijuana she smoked was laced with cocaine. Mother stated "that she does not feel that she has a drug abuse issue." Mother said that she used marijuana to help her relax and that "she is upset that her recreational use of [marijuana] resulted in the loss of her son."

         Mother told the evaluator that in 2015, during a period when she and Father were separated, she had to resort to selling drugs to support herself and J.A.M. She was arrested for selling cocaine and jailed from November 20, 2015 until January 7, 2016. She stated that J.A.M. had lived with Father and his family while she was in jail. She reported that, after her release from jail, "she was homeless and was sleeping in her car." Mother was placed on two years' community supervision for the drug offense.

         Mother also indicated her entire life had involved domesticate violence. As a young child, she was physically abused by her mother's boyfriend. Her mother lost custody of her when she was six years old, and she went to live with her aunt. She reported that her aunt was "aggressive and mean to her." Mother stated that "she did not retaliate against her aunt until she was sixteen years old." At that point, Mother assaulted her aunt. Mother was arrested and placed in juvenile detention for three years.

         Mother "reported that whenever she and [Father] were together and he tried to leave, she would call the police and state that he was abusing her." Mother "blamed herself for arguing and overacting in their relationship." She told the 4Cs evaluator that she hoped she and Father could reconcile after he was released from jail.

         With regard to her mental health, Mother "reported that she was diagnosed with Anxiety Disorder in 2013 at MHMRA and was prescribed Xanax." However, Mother said that she had not taken the medication since 2014.

Among the evaluator's clinical impressions were the following:
There were considerable concerns regarding this family as [Mother] participated in the assessment. [Mother] has had an ongoing history of trauma since her childhood, has been exposed to family violence throughout her lifespan, and she seemingly has only had brief periods of stability in her life. As she has transitioned into adulthood, [Mother] has lived a very disruptive and chaotic life, and it appears that she is desensitized to the traumatic effect that her current life circumstances has on her young son, her unborn child and herself.
[Mother] acknowledged her substance abuse but indicated that she did not feel that she had a substance abuse problem even though she reported daily use of marijuana and tested positive for cocaine. It is recommended that [Mother] participate in a substance abuse assessment and follow all recommendations of the treatment provider regarding the most appropriate treatment program to address her abuse of marijuana and cocaine.
[Mother] attempted to deny any history of domestic violence in her relationship with [Father] but reported frequently calling law enforcement to the residence. It was a concern that [Mother] blamed herself for overreacting and instigating arguments with her husband, but was adamant that there was no physical abuse, and her son was not affected by the volatile situations even though she was residing in a motel room with limited space, so he would have had to witness the conflict. [Mother] frequently spoke of desperately wanting to reconcile her relationship with [Father] and it seemed that her desire to do so may be interfering with her ability to recognize dangers in the relationship.
It is also a concern that [Mother] reported a mental health diagnosis but is not receiving mental health services. If untreated, mental illness could interfere with her recovery and her ability to be protective of her children. [Mother] should contact MHMRA to participate in a follow-up evaluation to determine her current level of mental health functioning, and treatment options due to her pregnancy.
Until [Mother] is better able to understand the dangers associated with her living conditions, substance abuse, violence in the home, and her minimization of the issues there is an increase[d] risk of harm for a child in her care.

         The 4Cs evaluator recommended that Mother receive a number of services, including individual and domestic abuse counseling as well as engage in a substance-abuse rehabilitation program.

         The evaluator concluded that, in order to achieve reunification with J.A.M., Mother needed to complete the services provided to her. She must also "accept responsibility for the reason her child is currently in the care of [the Department] and make the changes necessary to reduce the risk of abuse and neglect in the future."

         On July 18, 2016, the Department filed family services plans for Mother and Father. Both plans required the respective parent to (1) refrain from criminal activity; (2) stay in contact with their caseworker; (3) attend court hearings and family group conferences; (4) attend domestic violence course; (5) maintain a stable home and employment; (6) complete a substance-abuse assessment, including all treatment recommendations; (7) complete parenting classes; and (8) participate in a psycho-social evaluation and follow its recommendations.

         The trial court approved the service plans in its July 8, 2016 status-hearing order. The trial court found that both parents had reviewed and understood the plans.

         On August 11, 2016, Father pleaded guilty to the February 2016 felony assault of Mother. He was placed on deferred adjudication community supervision. The conditions of his community supervision required Father to commit no violation of state or federal law.

         Mother gave birth to M.M.M. in September 2016. The Department filed another suit, apart from the suit involving J.A.M., requesting emergency orders to take possession of M.M.M. and to be named as M.M.M.'s temporary managing conservator. To support its request, the Department offered the affidavit of its representative, T. Etienne. She pointed out that there was an "open CPS case" for J.A.M. in which parental substance abuse and domestic violence had been alleged. Etienne testified that the substance abuse had been "confirmed by positive drug test[s] in the open case" for both parents and that "[t]he domestic violence has been confirmed by the conviction of the father of the charges."

         In November 2016, the trial court signed an order naming the Department as M.M.M.'s temporary managing conservator. The court also approved and ordered the parents to follow family services plans essentially identical to the service plans adopted in J.A.M.'s case.

         In March 2017, Father was arrested on a felony charge of aggravated assault against a family member. The complaint alleged that he had threatened Mother with imminent bodily injury "by using and exhibiting a deadly weapon, namely, a nail gun."

         In April 2017, the State filed a motion to adjudicate Father's guilt with respect to the assault offense that Father had committed against Mother in February 2016. Among the grounds for adjudication, the State asserted that Father had violated the terms of his community supervision by committing the March 2017 assault offense against Mother.

         At the beginning of May 2017, Father failed to appear for a scheduled drug test. Also in May, Mother engaged in individual counseling as required in her service plan. In progress notes dated May 15, 2017, the therapist stated,

[Mother] is very argumentative during sessions and appears unable to understand the reason why her children were removed. [Mother] tends to change her story regarding her past. She states she was not abused and then states she was sexually and physically abused as a child. . . . [Mother] states she is divorcing husband of 8 years due to assault.
. . . [Mother] engaged in session, however, she is argumentative and does not appear amenable to recommendations or suggestions regarding parenting or relationship skills.
. . . [Mother] states she is filing for divorce, however, it appears unlikely that she will completely ...

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