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In re J. I. T.

Court of Appeals of Texas, First District

June 27, 2018

IN THE INTEREST OF J. I. T. AND J. A. T., children

          On Appeal from the 311th District Court Harris County, Texas Trial Court Case No. 2011-53185

          Panel consists of Justices Higley, Brown, and Caughey.

          MEMORANDUM OPINION

          HARVEY BROWN JUSTICE.

         Following a bench trial, the parental rights of the mother and father of two young boys were terminated. The parents appeal. The mother challenges the legal and factual sufficiency of the evidence on each predicate finding and the best interest finding. She also challenges the sufficiency of the evidence supporting the naming of the Department of Family and Protective Services as the boys' sole managing conservator. The father challenges the legal and factual sufficiency of the evidence on each predicate finding as to him and the best interest finding.

         We affirm as to the father, reverse as to the mother, and remand for a new trial regarding the mother's parental rights. Regarding conservatorship, we affirm the designation of the Department as sole managing conservator.

         Background

         The two children who are the subject of this parental-termination suit are J.I.T. (Jim) and J.A.T. (Jake). When Jim was seven years old and Jake was six, they lived in the downstairs apartment of a duplex with their mother P.M. (Pam), stepfather, J.S. (John), and John's two boys who were roughly their same ages.[1]

         One Saturday morning, Jim blew the fire out on two lit stove burners, causing the house to fill with the smell of gas. Pam was frightened and angry. It is undisputed that, in an effort to discipline Jim and teach him that playing with fire is dangerous, Pam decided to place Jim's hands near the heat emanating from a hair straightener. It is also undisputed that the process of holding his hands near the hot plates ended with Jim suffering second-degree burns[2] on both hands. The police were notified, and Pam was charged with felony injury to a child.

         What is disputed is whether Pam intended to burn Jim as she exposed him to the device's heat or if, as she contends, Jim jerked away from her as she held his hands near the hot plates and, in doing so, came into contact with the plates and was unintentionally burned. The trial also focused on whether Pam ever admitted pretrial that she plugged in her hair straightener to discipline Jim and was holding it when Jim was burned and whether her failure to "confess" to this involvement pretrial meant that her parental rights should be terminated. A related trial focus was the Department's reasons for changing the permanency goal, which had been family reunification for more than a year, to seeking termination of parental rights.[3]

         1. Jim is burned

         Pam, the only trial witness who observed the events surrounding Jim's burn, testified that the burns occurred early one Saturday afternoon, on February 6, 2016, when she, her two sons, and her two step-sons were at home. The boys were playing and watching television; she was doing laundry and preparing for the upcoming school week. Pam's husband, John, was at work.

         It was cold outside and the home heater had stopped working that morning. To add some warmth, Pam turned on the back two burners on the stove. She chose the back burners because they were farther away from the children's reach. Pam put away laundry in one of the back rooms and reentered the home's main living area. As soon as she did, she smelled gas. She "panicked" because the gas smell was very strong and she feared an explosion. She and the boys opened windows to air out the house. She asked the boys what happened and was told that Jim blew out the flames on the stove.

         Pam, according to her testimony, was still panicked by the danger of the accumulated gas in the house and wanted to impress on Jim-who had melted crayons in the gas fireplace the day before-that fire is dangerous. She took Jim to her bedroom intending to spank him. While in the bedroom she recalled that her grandmother taught her the dangers of playing with fire by holding her hand near an open flame so she could understand that heat emanates from flames and can harm people. Her grandmother did not burn her; she only exposed her to the sensation of heat emanating from the open flame.

         She decided to use a similar approach with seven-year-old Jim, but she was too afraid to reignite the stove due to the accumulated gas in the home. Instead, she plugged in her hair straightener and had Jim hold his hands in a prayer position so she could hold them close enough to the hair straightener to feel heat coming from the plates. She held the straightener in her left hand and restrained Jim's arms with her right hand. Jim resisted and moved around. Jim's hands came into direct contact with the hot plates, burning him. She immediately dropped the hair straightener and tried to treat his burn. She apologized for hurting him.

         Pam testified that she did not intentionally contact Jim's hands to the straightener. She did not intend to burn him. She never clamped the hair straightener closed around his hands. When she realized Jim had been burned, she immediately dropped the device, ran cold water over his hands, and applied burn cream. The incident caused second-degree burns to the outside of Jim's hands.

         Pam testified that she had earlier had been involved in two CPS investigations. The first one was occurred in 2010 when she was the victim of domestic abuse by the boys' father, Ron.[4] The second was in late 2013 when Jim was reported to have a bruise on his cheek. Nothing came of that incident. But after two interactions with the Department, Pam was concerned that the burn incident might cause her to lose her children, so, with that fear in mind, she treated the burn at home without seeking a medical evaluation, lied to the school and later a health clinic about how Jim was injured, and created a fake doctor's note to further conceal the truth.

         Pam lied to healthcare professionals about the cause of Jim's injuries. Pam took Jim to the East End Medical Clinic four days after the burns, on February 10, because she did not think they were healing adequately. She told the nurse practitioner, L. Umez, that Jim grabbed her hair straightener. Umez testified that she asked Jim what happened, but he "didn't say anything." The burn had become infected, so Umez provided antibiotics and additional burn cream. Umez testified that she recommended that Pam take Jim "right away" for treatment by burn specialists at Shriner's Hospital. She did not make a report of suspected child abuse to authorities.

         Pam returned Jim to school on Monday, February 15. Jim was wearing gloves to cover his injuries. She lied to the school about why he missed school, claiming it was because of blisters in his mouth. She convinced Jim to lie to the school too. Pam forged a medical release document to indicate that Jim had blisters in his mouth that required antibiotics instead of his true injuries. The Department was notified on February 15, and the police were also notified.

         Pam took Jim to a burn specialist, as recommended, but she did not go immediately, and she chose a different facility that was closer to her home. She took Jim to Memorial Hermann on February 18. According to Pam's uncontradicted testimony, the doctor determined that Jim's wounds were healing appropriately. The doctor did not recommend any treatment beyond the ointments Pam was already using. There was no evidence presented during trial that Jim suffered any long-term pain, scarring, impairment, or any psychological harm from his injuries.[5]

         Jim was interviewed by the police on February 23. Officer B. Bookman from the child abuse division testified that Jim first offered an explanation of his injuries that was untruthful. Later during his interview, Jim told her that his mother burned him because "she was upset with him" and that the burns were a "form of discipline." Bookman determined the burns were intentional. Bookman wanted to talk with Pam, but Pam's lawyer recommended that she invoke her Fifth Amendment right of silence.

         Pam testified about her avoidance of discussing the details of how Jim was burned. Referring to her criminal defense attorney's instruction not to discuss her matter during the pendency of her criminal charges, [6] Pam said that she never discussed the "details" of the events surrounding the burns to anyone before her trial testimony. By trial, though, her criminal case had been referred to a diversion program that would allow dismissal of the charges against her without a plea or conviction if she timely satisfied all agreement requirements.[7] With the matter in an agreed-disposition state, she testified about what occurred when Jim was burned. Pam acknowledged that her trial testimony was the first time she fully disclosed the events.

         Despite Pam's denials and avoidance of discussing the issue, according to Department employees who testified, the consensus within the Department had always been that Pam burned Jim and, more specifically, that she had done so intentionally to punish him. Pam was denying her involvement but, according to the Department employees who testified, they all involved believed the allegation from the beginning.

         2. The Department begins a short-term intervention

         Working off the allegation that Pam burned Jim intentionally during a disciplinary event, the Department determined its course of action. A Family Based Safety Services investigator, P. Lafleur, was assigned. FBSS focuses on non-judicial intervention with the goal of family reunification. The Department also initiated a parental child safety plan (PCSP) for Jim and Jake. According to the Department's published Resource Guide, a PCSP is "a temporary, short-term out-of-home placement a parent can make when CPS determines that the child cannot safely stay with a parent. . . . CPS may offer the parents the option of placing the child out of the home rather than CPS petitioning for court-ordered removal of the child."[8] The "primary goal of every PCSP is to keep the child safe until the child can safely return to the parent."[9] PCSPs are used only for "short term and temporary" situations that can be resolved within 60 days with the return of the children to the parent.[10] Under this approach, Pam was able to continue to see her children daily and be involved in their care with supervision.

         According to Lafleur, Pam identified a relative to be a caregiver and the children were placed with that relative. Pam continued to have direct-but supervised-access to the children, including picking them up daily from school. Lafleur knew of no problems with Pam's access to the children under this arrangement. The original PCSP placement would have transitioned into family-based services, without the children being removed from Pam, had the initial PCSP relative continued in that role, according to Lafleur.

         But that placement "fell apart" within a matter of days because the relative determined she was unable to continue caring for Jim and Jake. The Department then removed the children and placed them with foster parents. Up to that point, Lafleur had no belief that the children required removal. And Lafleur would not have sought removal from the arrangement had it not broken down due to the designated caregiver backing out of the arrangement.

         3. The Department removes the children and implements Plan requirements

         Pam and Ron were unable to identify a replacement caregiver to continue with PCSP placement. Without a relative to continue the PCSP, the Department obtained removal of Jim and Jake.

         The Department adopted a Family Services Plan on April 18, 2016, that was prepared by a Department caseworker, M. Mendez, and approved by her supervisor, J. Dominguez. It designated the permanency goal for both children as family reunification, with an April 2017 target date.[11] The Plan stated that the Department became involved because it

received a referral alleging physical abuse to [Jim] by his mother. His hands were burned by a hair straightener. The children disclosed they overheard [Jim] scream while [Jim] and his mother were in the bedroom. Mother taught [Jim] a lesson for playing with fire on the stove by having him put his hands in a praying position and used the hair straightener to burn the outside of his hands. [Pam] produced fake documents from the doctor's office when she returned the child to school a week after the incident occurred. [Pam] failed to follow up with medical treatment at Shriner's hospital for his burns.

         The Plan noted that there was family support, which was a strength. Additionally, the Department noted positively that Pam "is very close to her children," it is "evident that she loves her children very much," and there are "no significant concerns of the home environment."

         The Plan listed multiple concerns about Pam's parenting, including that Pam "may not have knowledge of appropriate discipline methods," "does not take the allegations seriously," and has attempted to "cover up the burn injuries by keeping" Jim home from school and presenting a "forged a doctor's note" that misrepresented Jim's health status. Moreover, there was concern that Jim "has been coached to say his injuries were an accident."

         The Plan warned that its purpose was to help Pam provide her children "with a safe environment" and that an "inability to provide a safe environment" could result in parental termination.

         The Plan identified "service plan goals," including that Pam demonstrate a willingness and ability to protect her child from harm; learn and demonstrate reasonable discipline to meet the children's needs; actively participate in therapy to understand how her own abuse/neglect as a child may impact her current parenting style; and actively cooperate in fulfilling the agreed upon safety plan in order to control the risk of abuse or neglect.

         The Plan also included a series of required "tasks and services" by the mother, which were grouped into the areas of cooperation, family visits, employment, psychosocial assessment, and parenting. Under cooperation, Pam was required to "actively participate in all Permanency Conferences, court hearings, family visits and activities that are centered for her children . . . [and] cooperate with her current criminal case . . . ." Under psychosocial assessment, Pam was required to complete an assessment, "provide honest and accurate information to the service provider," and follow provider recommendations. For parenting, Pam was required, among other things, to "actively participate in, and successfully complete six to eight week parenting classes" and "demonstrate learned behavior."

         An April 2016 court order adopted the Plan and placed the children in the Department's managing conservatorship but granted Pam supervised access to her children at agreed times. Accordingly, the Department had until April 2017 to resolve the conservatorship suit and related issues under a statutory deadline.[12]

         Dominguez, who was the original supervisor assigned to the case, testified that the Department believed, from the beginning, that Pam had burned Jim with a flat iron and that she did it intentionally. The services that the Department deemed appropriate and that were offered to Pam were based on this belief. This testimony was echoed by the original caseworker, Mendez, and the last caseworker, A. Edwards. Dominguez also testified that the services selected by the Department were intended to address the reason the children came under the Department's care so that the children could safely return to Pam.

         4. Pam is criminally charged and is denied access to her children

         In April 2016, the same month the Plan was implemented, Pam was charged with felony child abuse. One of the stipulations placed on Pam by her bond provider was that she have no contact with the complainant. A Department supervisor, N. Roy, testified that Department employees misunderstood the bond condition and believed it was an order from the criminal court prohibiting Pam from having any visitation with the children. Accordingly, almost immediately after the trial court indicated that Pam would have supervised access to Jim and Jake, the Department denied Pam any visitation to her children.

         Roy and C. Johnson-the caseworker who replaced Mendez-agreed that the Department was incorrect in its belief that there was a court order preventing Pam from visiting with Jim and Jake and in denying Pam visitation for eighteen months. Roy testified that, when she found out there was no court order, "I was just like, Oh, wow" because "I wasn't aware that there's a difference between a court order and a bond condition." The Department did not accept any responsibility for this mistake. Roy, instead, insisted that Pam always had options "if there was an issue" with being denied visitation, such as calling a supervisor or going "up the chain of command through CPS."

         Pam testified that she repeatedly tried to visit her boys while the case was pending, but Department workers always said that there was a court order preventing it. She did not learn until the month of trial that the Department was mistaken. Since the boys were placed under the Department's care, she only saw them three or four times, including once shortly before trial. Pam nevertheless continued to work towards completing the services listed in her Department Plan.

         5. Pam is told by the Department she has completed the required services

         The original caseworker, Mendez, testified that, during the year when she was the assigned caseworker, Pam did what the Department asked of her.

         The service provider who performed the Plan's required psychosocial evaluation. S. Hand, a licensed clinical social worker with the Children's Crisis Care Center (also referred to as 4Cs), noted in her written report that the Department's referral to 4Cs included a sworn affidavit that Pam had gotten angry at her boys and had "used a hair straightener to burn" Jim's hands. The Department's affidavit further reported that Pam submitted a doctor's note that "appeared to have been tampered" and that the clinic, in response to the school's inquiries, said Jim was seen for his hand burns, "not for anything to do with the mouth." Finally, the Department informed 4Cs that Pam had "not cooperated" with either the police or the Department "to address" Jim's burns.

         Hand's evaluation stated that Pam claimed "she was not in the room" when Jim's hands were burned. Pam denied to Hand that she wrote a fake doctor's note. Hand testified that she knew the Department had accused Pam of intentionally injuring Jim. Though Pam told Hand a different story, Hand made a number of recommendations for Pam that she felt "adequately addressed all of the problems" raised in the Department's investigation. The written recommendations, which were approved by Hand's supervisor, another licensed clinical social worker, were "made so that the parents can learn something to make sure they can provide a safe and stable environment for their children." The recommendations included "everything" Hand "could think of" so that Pam could provide a safe and stable home environment for her children.

         According to Hand's 4Cs report, a "standard family assessment interview" was performed, and Pam answered Hand's questions. This is considered "self-reported" information. The form states that the "impressions, conclusions, and recommendations given regarding this family are based on the information provided by the parent, the direct observation of the interviewee by the clinician, and the case history."

         Hand described Pam as cooperative. Pam disclosed that she had been charged with injury to a child and stated that her criminal defense attorney advised her not to discuss with the police the details regarding Jim's injury. Hand confronted Pam with the Department's allegation that all four children in the home reported that Pam burned Jim hands because he "had been playing with the stove," took him into her bedroom, burned his hands, and said, "This is what happens when you play with fire." Pam became "tearful when discussing the allegations." Hand noted that Pam "appeared . . . very concerned about all of her children." Pam also became fearful while expressing her fear that she would not be reunited with her children.

         Hand noted a number of "family strengths," including that Pam had participated in the 4Cs assessment, was employed, had completed most parenting classes already, stated that she would cooperate and comply with Department requirements, expressed love and commitment for her sons, and reportedly acted protectively of her sons in the prior Department case when the boys' father, Ron, was accused of assaulting her.

         The evaluation's "summary and clinical impression" section noted that Pam had denied causing Jim's injuries and stated that, to work toward family reunification, Pam needed "to actively participate in, and complete, all services provided for her." In addition, she needed to "accept responsibility for the reason her children are currently" in the Department's care and "make the changes necessary to reduce the risk of abuse and neglect in the future." Specific recommendations included random drug tests, individual counseling to address her "role and responsibility" in the case, and parenting classes to learn appropriate "discipline techniques." Pam should also have "supervised visitation" with the boys "to maintain the parent-child relationship" if the Department's goal was reunification.

         In August, Pam received a certificate for completing parenting classes. In September, Pam began individual therapy sessions with P. Lezak, which were completed in January 2017. At the conclusion, Lezak officially discharged Pam from therapy. The discharge summary states that Pam was referred "when allegations were made that she burned the hands of her son" after becoming "angry at her two boys" and that she "used a hair straightener to burn" Jim's hands. The treatment provided was summarized as follows: "Interventions that were used in therapy were protective parenting techniques on alternative ways to discipline, anger management skills, and coping skills in missing her two sons." Her assessment was marked as "much improved," and she was discharged on the basis of "completed" therapy "goals."

         Lezak did not testify. Pam's first caseworker, Mendez, testified that Lezak believed that Pam had satisfactorily completed the services, as indicated by Lezak's completion of a discharge transfer summary in January 2017. Mendez never asked Lezak to provide Pam additional therapy after her discharge.

         The second assigned caseworker, C. Johnson, testified that therapist Lezak saw the boys shortly after they were removed from their home and again when they were first placed in foster care. Lezak reported that there had been behavioral problems for the children at the foster home, including fights with the other foster kids, and that the children said they missed their mother. The children also "expressed their desire to return home" to Department employees before Johnson's involvement. Johnson agreed with Mendez that Lezak had recommended that the children be reunited with Pam.

         Pam testified that she learned a great deal from her parenting classes and therapy, even without discussing the incident details. Lezak "worked . . . around" her unwillingness to discuss the details of the event and "came up with a plan" to proceed with therapy without discussing the details. Pam testified that Lezak interacted with her as though she had caused the burns. The court directly asked Pam whether "you feel like you have dealt with the cause of the injuries to your son through therapy." Pam responded, "Yes, I have."

         In October 2016, Pam signed an apartment lease, which listed Jim and Jake as residents in anticipation that they would be returned to her when she finished her Plan services.

         Pam testified that she completed everything the Department asked her to do. To her knowledge, she was eligible for the return of her children, and that is what she expected to occur Her first caseworker, Mendez, concurred.

         According to Mendez, a parent successfully completes services when a service provider discharges the parent from the services. Pam completed all of her services as indicated by her service providers' discharges. In February 2017, Mendez documented that Pam "completed" the "tasks and services" assigned to her in the Department's Plan. Mendez also informed the trial court during a pendency hearing that Pam had completed her services.

         6. Foster care placements are unsuccessful for Jim and Jake

         In an August 2016 permanency report to the trial court by Mendez and her supervisor, Dominguez, Mendez reported that Jim "does not have a relationship with his foster parent and does not seem to have any bond." During the home visits, "the children are in one room watching tv and foster parent in another room watching tv." Jim reported "discomfort in this placement." Mendez reported that the foster parent "only speaks of child in negative view and very rarely has any positive things to say." She made similar comments about Jake's relationship with the foster parent, saying that the foster parent "doesn't express too many positive things about him" and there is not "much of a bond." Mendez concluded that both boys would "benefit from being placed with family." She recommended that the case's dismissal date of April 2017 "remain in effect," "as it is consistent with" the Plan. The report stated that the primary goal was "relative conservatorship" with a concurrent goal of "family reunification."

         In October, the Department reviewed the progress on the children's service plans. The review stated that Jake "has expressed that he misses his mom, dad, and step brothers." He "has been displaying aggressive behaviors in school as he has been in the home." The primary goal remained "family reunification with the concurrent of related conservatorship."

         A December permanency report prepared by Mendez stated that the Department's goal was relative adoption with a concurrent goal of family reunification. Mendez reported that Jim was on multiple medications and repeatedly would "act out." The report indicated that Jim's behaviors had deteriorated while in foster care. Examples of bad behavior included "pouring bleach on the caregiver's clothes," "destroying her furniture," requiring "round the clock supervision," and failing to "feel bad about those behaviors." She reported that Jake also was medicated and not comfortable in his foster home placement.

         7. Statutory one-year mark is reached

         April 2017 was the one-year mark for the pendency of the conservatorship suit.[13] A month before that statutory deadline was reached, the trial court extended the conservatorship matter to September 2017 and set a new trial date in August 2017.

         The permanency goal at the one-year mark continued to include family reunification. Mendez, who remained the caseworker, testified that her recommendation, supported by the service providers' discharges, was that Jim and Jake should be reunited with their mother.

         Mendez continued to support family reunification at trial. Mendez provided several reasons why reunification was in the boys' best interest, including that the boys demonstrated a bond and love for Pam, they always asked about their mom during conversations with Mendez, they asked Mendez to let Pam know that they loved their mother, Mendez did not believe that Pam would be a future danger to the boys, ...


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