Court of Appeals of Texas, Second District, Fort Worth
In the Interest of S.B., T.B., A.B., and K.B., Children
Appeal from the 211th District Court Denton County, Texas
Trial Court No. 15-03884-211
Pittman, J.; Sudderth, C.J.; and Gabriel, J.
bench trial in 2018, the trial court terminated the
parent-child relationships of Henry Baker (Father) and
Appellant Kathryn Baker (Mother) with their children, Susan,
Asa, Timothy, and Kellie. Only Mother appealed. In three issues,
she challenges the legal and factual sufficiency of the
evidence supporting the endangerment and best-interest
findings against her and contends that her trial counsel
(Trial Counsel) provided ineffective assistance of counsel at
trial. Because we hold that the evidence is sufficient to
support the termination of Mother's parental rights and
that she did not satisfy her burden to prove ineffective
assistance of Trial Counsel, we affirm the trial court's
judgment (2018 Decree).
The Family Had an Extensive History with the Texas
Department of Family and Protective Services (TDFPS) Before
the Children's First Removal in 2015.
and Father married young and had Susan in 2007, twins Asa and
Timothy in 2011, and Kellie in early 2013. Before the
children's first removal in 2015 (the 2015 removal),
TDFPS investigated the following:
• a 2011 referral based on concerns for Mother's
mental health and Father's drug use;
• a 2012 referral based on Mother's mental health
and marihuana use while caring for the children;
• a May 2013 referral based on Susan's report that
Mother pushed her onto the ground and on medical neglect;
• a July 2013 referral based on Mother's suicide
attempt by hanging and the paternal grandmother's
drinking while caring for the children; and
• an October 2013 referral based on Mother's and
Father's smoking K2 and perhaps marihuana and
methamphetamine and the paternal grandmother's drinking
while caring for the children.
After Mother's July 2013 suicide attempt, she and Father
agreed that she would have only supervised visitation with
the children, who would live with Father, and Mother was
voluntarily committed to the North Texas State Hospital in
Wichita Falls for an extended stay for mental health
treatment. After her release from the hospital in the fall of
2013, Mother moved in with her mother (Grandmother), smoked
K2 with Father, with whom the children still lived, and began
dating Michael Gray.
family received only family-based social services (FBSS) for
the above referrals, although in 2013, the trial court also
ordered the parents to participate in services. See
Tex. Fam. Code Ann. § 264.203. The 2013 FBSS case was
closed in August 2014.
Mother Regained Conservatorship of the Children in June 2017
After the 2015 Removal.
2015, the children were formally removed from the parents and
placed in foster care, and TDFPS filed a petition to
terminate after receiving a report that Father was selling
drugs out of his home, abusing drugs and alcohol, and
neglecting the children, and Kellie, the two-year-old, tested
positive for methamphetamine and marihuana. Mother
substantially completed her court-ordered services, and the
trial court placed the children with her full-time on a
monitored return in December 2016and ultimately denied
termination and appointed Mother as the sole managing
conservator in a final order dated June 15, 2017 (2017
Decree). The 2017 Decree also ordered that Father's
possession of or access to the children be supervised. Mother
and the children lived with Grandmother, whose probation for
possession of methamphetamine ended in late May 2017.
TDFPS Filed a Motion for Termination About Six Weeks After
the Signing of the 2017 Decree.
24, 2017, Father's community supervision officer notified
TDFPS that Father tested positive for methamphetamine on June
29, 2017, and that Father claimed he had exercised his
possession of the children unsupervised, violating the 2017
Decree. TDFPS then visited Mother to check on the children,
and Mother tested positive for marihuana and amphetamine and
admitted to TDFPS that she had relapsed and used marihuana
"weekly for about the past month." TDFPS removed
the children again, ultimately placing the girls in one
foster home and the boys in another.
the removal, Father made a delayed report to CPS about
Grandmother's injuring Kellie, CPS ultimately notified
the police, and an indictment for injury to a child was
pending against Grandmother at the time of the 2018 trial.
The Trial Court Terminated the Parent-Child Relationships in
the 2018 Decree.
the 2018 trial, the trial court found that Father had
executed an unrevoked or irrevocable affidavit of
relinquishment of his parental rights, voluntarily
relinquishing his rights, and that termination of the
parental rights of both Father and Mother was in the
children's best interests. See Tex. Fam. Code
Ann. § 161.001(b)(1)(K), (2). The trial court also found
• knowingly placed or knowingly allowed the child[ren]
to remain in conditions or surroundings which endanger[ed
their] physical or emotional well-being . . .; [and]
• engaged in conduct or knowingly placed the child[ren]
with persons who engaged in conduct which endanger[ed their]
physical or emotional well-being . . . .
Id. § 161.001(b)(1)(D), (E).
The Trial Court Issued Findings of Fact at
requested findings of fact and conclusions of law after the
trial court terminated her parental rights. In addition to
the ultimate findings recited above from the 2018 Decree, the
trial court's separate findings include the following:
10. The Court finds that the testimony of Karen Lowery,
Priscilla Alvarado, [Father], Jacqueline Fox, Dr. Lara
Hastings, Abra Piacente, and Rachel Watts to be credible.
11. The Court finds the exhibits offered and admitted to be
relevant and applicable, both as to the grounds of
termination and to what is in the best interest of the
12. The Court finds that [Mother] and [Father] have been
involved with the Department in some capacity since July of
13. The Court finds that [Mother] attempted suicide more than
one time while the children were in her care.
14. The Court finds that [Mother] was committed to the Texas
State Hospital following a suicide attempt.
15. The Court finds that [Mother] received mental health
services from a number of different providers between 2011
and 2015. The Court also reviewed and considered a number of
records from some of those mental health providers.
16. The Court finds that [Mother] was absent from her
children's lives for a number of years prior to their
removal in 2015.
17. The Court finds that [the children] were first removed
f[ro]m [Mother] and [Father] in May of 2015.
18. The Court finds that [Mother] and [Father] were offered
services from the Department in the 2015 conservatorship
19. The Court finds that [Mother] successfully and
substantially completed services in the 2015 conservatorship
case . . . .
20. The Court finds that [the children] were returned to
[Mother] on December 19, 2016 pursuant to a monitored return.
21. The Court finds that [Mother] filed for divorce from
[Father] on May 25, 2017. The Court further finds that at the
time of trial in September of 2018, [Mother] and [Father]
were still married.
22. The Court finds that a final order in the Suit Affecting
Parent-Child Relationship was entered on June 15, 201.
23. The Court finds that the final order named [Mother] as a
joint managing conservator of the children with
24. The Court finds that the final order named [Mother] as
the conservator with the right to designate the
25. The Court finds that the final order required that
[Father's] possession of the children be supervised at
26. The Court finds that on July 24, 2017, a new referral was
received by [TDFPS].
27. The Court finds that upon interview by the
Department's investigator in relation to the new
referral, [Mother] admitted to smoking marijuana while in
possession of the children.
28. The Court finds that [Father] had tested positive for
29. The Court finds that the Department attempted to place
all of the children with caregivers designated by [Mother] to
prevent removal but there were no other placement options.
30. The Court finds that one of the people [Mother] offered
as a placement option was [Michael Gray], her
31. The Court finds that [Michael Gray] was not willing to be
a placement of the children.
32. The Court finds that shortly after the new removal,
[Father] notified CASA of Denton County, the children's
guardian ad litem, of a photo of a significant bruise on
33. The Court finds that [Susan] and [Kellie] made consistent
statements in forensic interviews regarding the cause of the
34. The Court finds that the children and [Mother] were
residing with [Grandmother] at the time [Kellie] sustained
35. The Court finds that [Grandmother] has been indicted for
injury to a child in relation to the bruise on [Kellie].
36. The Court finds that [Father] confronted [Mother] about
the bruise on [Kellie] and that [Mother] stated she and her
fiancé, [Michael Gray], would "take care of
37. The Court finds that [Mother] never made a report to law
enforcement or the Department related to the bruise.
38. The Court finds that [Mother] and the children continued
to live with [Grandmother] after [Mother] was aware of the
bruise and the allegation of who caused the bruise.
39. The Court finds that [Michael Gray] visited with the
children less than five times during the pendency of the
current case, which had been on file for over a year at the
time of trial.
40. The Court finds . . . the evidence and testimony
regarding [Mother's] employment history and stability to
41. The Court finds . . . the evidence and testimony
regarding [Mother's] support system to be contradictory.
42. The Court finds that [Mother] had not demonstrated
stability in her own life nor in providing a stable
environment for her children.
43. The Court finds . . . the evidence and testimony
regarding [Mother's] suicide attempt and mental health
treatment history to be contradictory.
. Each fact found above which relates to the final order
regarding the parent-child relationship is supported by clear
and convincing evidence.
first issue, Mother challenges the sufficiency of the
evidence of her conduct between June 15, 2017, the date of
the 2017 Decree, and July 27, 2017, the date of the
children's removal, to support the endangerment findings.
In her second issue, she alternatively challenges the
sufficiency of the evidence of her conduct before June 15,
2017, to support the endangerment findings. In her third
issue, she challenges the sufficiency of the evidence to
support the best-interest finding. Mother raises ineffective
assistance of Trial Counsel in all three issues. We address
her ineffective-assistance complaints separately from her
complaints that the evidence is insufficient to support
The Evidence Is Sufficient to Support the Termination
of Mother's Parental Rights.
Despite Mother's Res Judicata Affirmative Defense, We May
Look Behind the 2017 Decree to Show a Continuing Pattern of
argues that we cannot consider evidence before the 2017
Decree in our review because she raised res judicata as an
affirmative defense to the current petition to terminate and
because in the 2018 Decree, the trial court failed to make
the requisite findings under section 161.004 of the Texas
Family Code that would allow termination of her parental
rights based on her conduct before the 2017 Decree.
See Tex. R. Civ. P. 94 (including res judicata in
list of affirmative defenses); Tex. Fam. Code Ann. §
161.004 (allowing termination based on conduct occurring
before a prior denial of termination if there has ...