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In re K.P.C.

Court of Appeals of Texas, Fourteenth District

May 8, 2018

IN THE INTEREST OF K.P.C., K.M.C., AND K.S.C., CHILDREN

          On Appeal from the 314th District Court Harris County, Texas Trial Court Cause No. 2016-04317J

          Panel consists of Justices Busby, Brown, and Jewell.

          MEMORANDUM OPINION

          Marc W. Brown Justice

         Appellants K.M.D. (Mother) and C.C. (Father) appeal the trial court's final decree terminating their parental rights and appointing the Department of Family and Protective Services as sole managing conservator of K.P.C. (Kirk), K.M.C. (Kyle), and K.S.C. (Kevin).[1] Both parents' rights were terminated on the predicate grounds of endangerment, constructive abandonment, and failure to comply with a family service plan. See Tex. Fam. Code Ann. § 161.001(b)(1)(D), (E), (N), and (O) (West Supp. 2017). The trial court further found that termination of the parents' rights was in the best interest of the children.

         In a single issue Mother challenges the factual sufficiency of the evidence to support the trial court's finding that termination is in the best interest of the children. In five issues, Father challenges the legal and factual sufficiency of the evidence to support the trial court's findings on the predicate grounds and that termination is in the best interest of the children. Neither parent challenges the appointment of the Department as managing conservator of the children. We affirm because the evidence is legally and factually sufficient to support the trial court's findings on the predicate grounds and that termination is in the children's best interest.

         I. Factual and Procedural Background

         A. Pretrial Proceedings

         1. Removal Affidavit[2]

         On July 20, 2016, the Department received a referral alleging neglectful supervision and physical neglect of the three children. The report noted that the children have been observed with both of their parents, "since at least winter time" from approximately 9:30 a.m. until after dark every day along the median and side walk of the intersection at Westheimer and Post Oak near the Galleria mall, a high traffic area, soliciting money. The report stated that the intersection is dangerous and people have been hit by cars and stabbed at the location in the past. The report stated that the children run into the street and wear dirty clothes. The report noted that Father pulls the children by their arms and pushes them down in a chair. There have been no observed bruises, cuts, or scrapes on the children. The oldest child's arm was broken during the winter, but the person making the report did not know how the arm was broken. The report also stated that the children have sunken eyes and their collar bones and arm bones are protruding. Water has not been observed with the parents and the children seem "out of it."

         2. The Investigation

         The day after the report was made a Department investigator contacted the person who made the report, who the investigator found to be a credible person. The reporter stated that the children are extremely dirty and appear to be malnourished. It was reported that the family arrives at the intersection around 9:00 a.m. and stay until after dark along the sidewalk of Westheimer and Post Oak. The children were observed during "frigid winter temperature" and "in the extreme heat of the summer" all day without water or food. The children all wear diapers although they appear to be too old to be in diapers. The reporter assumed the children were wearing diapers so the parents would not need to take them to a restroom. The children were seen running around the intersection in close proximity to traffic, and the children sometimes ran into the street.

         Rhonda Carson, the Department investigator, made contact with the family along Post Oak Boulevard. Carson found the children were filthy with no sign of available drinking water. The oldest child appeared thin for his age. Initially Carson observed the children sitting in their chairs they had brought to the intersection. They eventually began running around dangerously close to the roadway and to the end of the block. Carson told Father to "get off his phone and go get his 3 year old son who had run to the end of the block." Father cursed at Carson and told her to mind her own business. The three children were running in different directions next to the street and Father was unable to control their behavior and keep them safe. Father reported that the Department, law enforcement, and "the judge" all know he is panhandling with his children and have told him he can have his children with him while he solicits money because he is a part of a charitable organization. Carson told Father he could not keep the children in the intersection and requested that Father participate in a Parental Child Safety Placement. Father became aggressive with Carson and left the area with the children. The children were not secured by child safety seats or seat belts in the vehicle with Father. Later that evening an employee of Dillard's Department Store near the intersection called Carson and told her that at 7:00 p.m. Mother drove Father and the children back to the intersection and dropped them off.

         Mother called Carson the same day and explained that the parents were allowed to keep the children out at the intersection as long as they kept them hydrated and fed. Mother claimed that she and Father are ministers and are helping those less fortunate than they are. Mother spoke "in a rambling pattern" that made it difficult to understand her at time. Mother ended the conversation by telling Carson that Father and the children would be back at the intersection the next day and to "leave them alone."

         The next day Carson met with Mother and Father at another shopping mall. Mother showed Carson a "DBA certificate" for "Hulaluhu Outreach Ministries" and a permit for charitable solicitation from the City of Houston. The permit was a thirty-day permit that expired almost one year earlier. Mother explained that the expired permit was not a problem because the "DBA" was good for ten years. Carson observed that the children were cleaner than the day before, but they smelled strongly of urine. Carson asked Mother about her mental health, and Mother reported she had bipolar disorder and a seizure disorder. Mother also reported that she needed a twenty-four-hour caretaker due to these disorders. Carson noted that during her interactions with Mother she never saw a caretaker. Mother reported that the children had Attention Deficit Hyperactivity Disorder, but she could not remember the last time they took their medication. When asked for potential placement for the children, Mother named her mother who is wheelchair-bound. Mother's suggestion was not approved by the Department. Both parents were served with a notice of removal based on extensive history with the Department and safety issues observed by the investigator that were consistent with neglectful supervision and physical neglect. The investigator also informed the parents of the courthouse address for the hearing the next day.

         3. Parents' Department History

         On December 20, 2014, the Department received a referral alleging physical neglect of the children. The report stated that the family was outside the Galleria mall and soliciting for money. The parents refused to go inside the mall because they "have a certain amount of money they need to reach first." Mother was confrontational with law enforcement and appeared to have mental health issues. Father appeared "more reasonable" but reported having been diagnosed with schizoaffective disorder and not on medication. The case was investigated and "ruled out."

         On May 12, 2015, the Department received another referral alleging neglectful supervision of the children by Father. The report stated that one of the children came to school with a burn allegedly caused by his four-year-old sibling. The child who had been burned told a detailed story about his father shooting a man in the car while the child was present, and there "being blood all over." The children came to school dirty and were reported to be developmentally delayed. This case was also investigated and ruled out.

         On July 22, 2015, the Department received another report that the parents may suffer from mental illness and the family had been panhandling again in the Galleria area. The children had been seen running out in the street and "almost getting hit on a daily basis." Both parents were reported to instigate and provoke passers-by into altercations. There had been at least eight fights in front of the children. Law enforcement was contacted, but the parents would leave before the police arrived. The children were reported to always be dirty and in the same clothes, but Mother was reported to wear "nice clothes" and carry designer purses. Father was heard cursing at the children, and telling them, "you will eat later." This case was also investigated and ruled out.

         On November 24, 2015, the Department received another report that the family was seen begging for money outside of a store. The report stated that the parents drive a nice vehicle and Father can be seen "yanking" the children around while they should be in school. The case was closed because the family could not be located.

         On December 4, 2015, the Department received a referral alleging medical neglect of the oldest child, Kirk. Kirk was vomiting every day in the classroom since the beginning of the school year, but Mother would not take the child to a doctor and claimed he was vomiting for attention. This case was investigated and ruled out.

         On January 29, 2016, the Department again received a referral alleging physical neglect of all three children by both parents. Kirk came to school in an "all-night pull up, " which contained dried feces and smelled of urine. It was reported that Kirk comes to school on a regular basis with dirty clothes and an odor. Mother came to the school and was seen grabbing Kirk by the back of the neck and squeezing hard until Father made her let go. The case was investigated and ruled out.

         On June 14, 2016, the Department received another referral alleging the physical neglect of all three children by Mother. The report stated that Mother is a "psych patient" and may be "manic depressive." Both parents argued for 25 minutes while the children ran in different directions. It was also reported that the children are "always filthy with dirty clothes and have an odor." Mother hits the children and does not care for them. It was suspected that Mother used crack cocaine. The case was again investigated and ruled out.

         4. Parents' Criminal History

         Since 2006, Father has been convicted of driving while license suspended three times, assault, and resisting arrest. Mother was convicted of theft in 2008, and an aggravated assault charge with a deadly weapon was dismissed in 2014.

         5. Pretrial Removal Hearing

         At a hearing after the initial removal, investigator Carson testified about the latest referral alleging neglectful supervision while the children were panhandling in the intersection outside the Galleria mall. Carson also testified to the previous referrals that had been investigated and ruled out.

         Carson testified that when she met with the family the day after the latest referral, the children were very hungry. The children were unable to tell Carson how long it had been since they had eaten.

         Carson testified that both parents appeared to be mentally unstable. Although Mother usually drives the family to their panhandling location, she is not supposed to drive because of her seizure disorder. The Department requested temporary managing conservatorship and requested drug testing on both parents as well as DNA testing on Father. The children were placed in foster homes with the oldest two boys in one home, and the youngest in another foster home. The Department was working to get all three boys placed in a single foster home and expected to accomplish that goal in thirty days.

          6. Family Service Plans

         The trial court ordered both parents to comply with family service plans, which required the parents to:

• acquire and maintain stable housing for more than six months;
• refrain from engaging in any criminal activities;
• submit to random urine analysis;
• acquire and maintain legal form of employment and provide documentation in the form of payroll stubs ...

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