IN THE INTEREST OF J. I. T. AND J. A. T., children
Appeal from the 311th District Court Harris County, Texas
Trial Court Case No. 2011-53185
consists of Justices Higley, Brown, and Caughey.
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.
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.
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.
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 on both hands.
The police were notified, and Pam was charged with felony
injury to a child.
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.
Jim is burned
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.
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.
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.
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.
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.
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,
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.
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.
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.
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.
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.
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,  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. 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.
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.
The Department begins a short-term
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." The "primary goal of every
PCSP is to keep the child safe until the child can safely
return to the parent." 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. Under this approach, Pam was able to
continue to see her children daily and be involved in their
care with supervision.
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.
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.
The Department removes the children and implements
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.
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. 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.
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
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."
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.
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.
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
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
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.
Pam is criminally charged and is denied access to her
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
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."
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.
Pam is told by the Department she has completed the
original caseworker, Mendez, testified that, during the year
when she was the assigned caseworker, Pam did what the
Department asked of her.
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.
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
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."
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
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.
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.
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."
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.
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
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."
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.
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.
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.
Foster care placements are unsuccessful for Jim and
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
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."
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.
Statutory one-year mark is reached
2017 was the one-year mark for the pendency of the
conservatorship suit. 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.
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.
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, ...