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In re C.A.G.

Court of Appeals of Texas, Fourteenth District

April 9, 2019


          On Appeal from the 314th District Court Harris County, Texas Trial Court Cause No. 2016-01043J

          Panel consists of Justices Christopher, Jewell, and Bourliot.



         Appellant M.S.M. ("Mother") appeals the trial court's final decree terminating her parental rights and appointing the Department of Family and Protective Services as sole managing conservator of her child C.A.G., III ("Carter").[1] The trial court terminated Mother's parental rights on predicate grounds of endangerment and failure to comply with a family service plan. See Tex. Fam. Code § 161.001(b)(1)(D), (E), and (O). The trial court further found that termination of Mother's rights was in the child's best interest. In three issues, Mother challenges the legal and factual sufficiency of the evidence to support the trial court's findings on each predicate ground, as well as the best-interest finding.[2] Because we conclude the evidence is legally and factually sufficient to support the trial court's findings, we affirm the judgment.

         I. Factual and Procedural Background

         A. Pretrial Proceedings

         1. Referral and investigation

         In February 2016, the Department received a referral alleging sexual abuse and neglectful supervision of five-year-old Carter. At that time, Carter lived at home with Mother and Father. It was reported that Mother and Father use drugs, which impaired their ability to properly supervise a vulnerably aged child. The referral source also reported that Father is a known sex offender with pictures of naked children on his phone.

         After receiving the referral, a Department caseworker interviewed Carter at his elementary school. Carter stated that he had seen his mother and father fighting at home. Carter also reported that he had seen his father smoke something that was black; when his father smoked it, his father could not run very fast. The caseworker noted a bruise under Carter's eye, and Carter said it happened when he fell down the stairs.

         The caseworker interviewed Mother at the school as well. Mother stated that she was a stay-at-home mom and that Father worked in construction through a "temp agency." Mother reported that she received housing assistance, food stamps, and Medicaid. She denied any (1) criminal or Department history, (2) drug or alcohol use in the home, (3) guns in the home, or (4) family violence in the home. When asked about the bruise beneath Carter's eye, Mother replied that Carter fell down stairs and she had to grab him to break his fall. Mother confirmed that Father is a registered sex offender but denied that the incident involved a child. The caseworker informed Mother that the caseworker needed to transport Carter to the Children's Assessment Center ("CAC") for a forensic interview.

         When the caseworker arrived at the CAC, she contacted Father to inform him that a forensic interview was about to begin with Carter. Father arrived at the CAC and was belligerent and demanded information about Carter. CAC staff determined that Father was a danger to the environment, and Father was escorted out of the interview area.

         During his forensic interview, Carter stated that he lived with his mother and father. He stated that his mother was nice because she did not take his toys away, but his father was very mean to his mother and argued with her. Carter reported that he had seen his father grab his mother by the hands and "have" her against the wall. Carter said he was four years old when this incident occurred, and that he called the police and his father was put in jail. When asked about the bruise under his eye, Carter said that his mother "whooped" him on the eye because he would not stop playing with his toys. Carter stated that his father "whoops" him with a knife. Mother interrupted the interview at this point and retrieved Carter. She attempted to leave the CAC with Carter, but a supervisor and the interviewer prevented her leaving.

         The caseworker interviewed Father. Father stated that he did not notice the bruise under Carter's eye and denied all allegations of drug use or domestic violence. Father explained that his sex offender registration resulted from an incident in which he "was dealing with a 19 year old drug addict." Father denied having any inappropriate videos or pictures on his phone and offered to let the caseworker to go through his phone.

         The caseworker then spoke to Mother about statements Carter made during his forensic interview. Mother stated that she had noticed the bruise on Carter's eye that morning and that it could have occurred "while they were wrestling a few days ago." Mother denied that Carter had ever called the police due to domestic violence and stated that Carter did not even know how to use a telephone. She explained that the police had been called to their home because their neighbors were playing loud music and she and Father got into an argument about it. She maintained that there is no drug use in the home.

         When Department caseworkers informed Mother and Father that Carter was being removed from the home, Father claimed it was a "conspiracy" and that he and Mother had court proceedings for an eviction proceeding the next day. According to the caseworker, Father then "wished death" to all Department staff present.

         2. Department and criminal history pre-dating the referral

         In October 2014, the Department received a referral that Father was seen slapping then three-year-old Carter in the face in public and treating Carter "like a punching bag." The Department ruled out the case and closed the investigation.

         Mother has no criminal history. But Father has a lengthy criminal history, including the following convictions and sentences:

• 02/21/1990 Possession of Marijuana - 10 days' confinement
• 02/27/1992 Criminal Mischief and Trespass - 25 days' confinement
• 01/14/1993 Evading Arrest - 30 days' confinement
• 03/27/1995 Misdemeanor Theft - 45 days' confinement
• 03/27/1995 Felony Theft - 2 years' probation
• 05/29/1997 Criminal Trespass and Escape - 75 days' confinement
• 08/11/1997 Theft - 1 year's confinement
• 08/12/1998 Burglary of Habitation - 2 years' confinement
• 05/17/2001 Theft - 180 days' confinement
• 03/02/2002 Resisting Arrest - 190 days' confinement
• 05/04/2003 Sexual Assault - 5 years' confinement
• 03/10/2009 Possession of Marijuana and Evading Arrest - 20 days' confinement

         3. Pretrial removal affidavit

         The Department filed a petition for protection of a child, for conservatorship, and for termination in suit affecting the parent-child relationship, supported by an affidavit outlining many of the above facts. The Department requested Carter's removal because Mother and Father could not adequately supervise Carter due to their alleged drug abuse and history of domestic violence. As noted above, Carter reported Mother's and Father's domestic violence during his forensic interview. Based on the parents' history of violent behavior, Father's threatening behavior toward agency staff, and the allegations of drug abuse, the Department opined that there was an immediate and continuing danger to Carter's physical health and safety warranting Carter's removal and naming the Department his temporary managing conservator.

         4. Fam ...

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