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In re S.B.

Court of Appeals of Texas, Second District, Fort Worth

March 28, 2019

In the Interest of S.B., T.B., A.B., and K.B., Children

          On Appeal from the 211th District Court Denton County, Texas Trial Court No. 15-03884-211

          Before Pittman, J.; Sudderth, C.J.; and Gabriel, J.

          MEMORANDUM OPINION

          PER CURIAM

         After a 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.[1] 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).

         BACKGROUND FACTS

         I. The Family Had an Extensive History with the Texas Department of Family and Protective Services (TDFPS) Before the Children's First Removal in 2015.

         Mother 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.

         The 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.

         II. Mother Regained Conservatorship of the Children in June 2017 After the 2015 Removal.

         In May 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.

         III. TDFPS Filed a Motion for Termination About Six Weeks After the Signing of the 2017 Decree.

         On July 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.

         After 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.

         IV. The Trial Court Terminated the Parent-Child Relationships in the 2018 Decree.

         Following 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 that Mother

• 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).

         V. The Trial Court Issued Findings of Fact at Mother's Request.

         Mother 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 children.
12. The Court finds that [Mother] and [Father] have been involved with the Department in some capacity since July of 2011.
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 case.
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[7].
23. The Court finds that the final order named [Mother] as a joint managing conservator of the children with [Father].[2]
24. The Court finds that the final order named [Mother] as the conservator with the right to designate the children's residence.
25. The Court finds that the final order required that [Father's] possession of the children be supervised at all times.[3]
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 methamphetamine.
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 boyfriend/fiancé[].
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 [Kellie].
33. The Court finds that [Susan] and [Kellie] made consistent statements in forensic interviews regarding the cause of the bruise.
34. The Court finds that the children and [Mother] were residing with [Grandmother] at the time [Kellie] sustained the bruise.
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 it."
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 be contradictory.
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.
[48]. Each fact found above which relates to the final order regarding the parent-child relationship is supported by clear and convincing evidence.

         DISCUSSION

         In her 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 termination.

         I. The Evidence Is Sufficient to Support the Termination of Mother's Parental Rights.

         A. Despite Mother's Res Judicata Affirmative Defense, We May Look Behind the 2017 Decree to Show a Continuing Pattern of Conduct.

         Mother 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. ยง 161.004 (allowing termination based on conduct occurring before a prior denial of termination if there has ...


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