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In re S.S.

Court of Appeals of Texas, Second District, Fort Worth

April 18, 2019

In the Interest of S.S., a Child

          On Appeal from the 322nd District Court Tarrant County, Texas Trial Court No. 322-568527-15

          Before Pittman, Gabriel, and Kerr, JJ.

          MEMORANDUM OPINION

          PER CURIAM

         After a bench trial in 2018, the visiting judge (trial court) terminated the parent-child relationships of Dale Fouse (Father) and Appellant Audrey Smith (Mother) with their son, Sam, [1] finding that Father had executed an unrevoked or irrevocable affidavit of relinquishment of his parental rights and that termination of the parental rights of both Father and Mother was in Sam's best interest. See Tex. Fam. Code Ann. § 161.001(b)(1)(K), (2). The trial court also found that Mother

• knowingly placed or knowingly allowed [Sam] to remain in conditions or surroundings which endanger[ed his] physical or emotional well-being . . .; [and]
• engaged in conduct or knowingly placed [Sam] with persons who engaged in conduct which endanger[ed his] physical or emotional well-being . . . .

Id. § 161.001(b)(1)(D), (E).

         Only Mother appealed. In two issues, she challenges the legal and factual sufficiency of the endangerment and best-interest findings against her. Because we hold that the evidence is sufficient to support the termination of Mother's parental rights, we affirm the trial court's judgment.

         STATEMENT OF FACTS

         I. Mother Had a History of Committing Violence and Endangering Her Children Before Sam's 2017 Removal.

         A. Mother Engaged in Family Violence Before Having Children.

         Mother's estranged half-sister (Sister) testified that Mother was in the California juvenile system as a teenager and that after she aged out at eighteen years old and returned home, she assaulted their mother and little brother regularly.

         B. Mother Endangered Her Elder Son Before Sam Was Born.

         Mother's son Adam (who is not a subject of this appeal) was born in July 2009, and Mother was divorced from her husband (Ex-Husband) in 2012. Sister had been concerned about Mother's parenting of Adam from 2011 until Ex-Husband regained possession of him. Regarding Mother's relationship with Adam:

• Sister believed there was a lack of attachment between Mother and Adam;
• Sister was concerned that Mother tried to drown Adam when he was two or two and a half (Mother had also accused Sister of drowning him when Sister had possession of him);
• Sister saw Mother deliver a "very hard slap" to Adam's head when he was two and a half. It hurt him enough that he cried a while, and Sister's same-aged son, who observed it, cried too;
• Mother locked Adam in the bathroom at Sister's house; and
• Locks in Mother's home for Adam's room were on the exterior, not interior.

         Mother's former boyfriend reported that during their relationship, Mother would repeatedly lock then four-year-old Adam in the bedroom for long periods of time, causing him to urinate and defecate on himself.

         C. Sam Was Born After a Brief Relationship between Father and Mother.

         After a two-month relationship with Father, Mother became pregnant with Sam in early 2014. During her pregnancy, Mother filed a complaint with the Grapevine Police Department alleging that Father had assaulted her and filed a different complaint with the Haltom City Police Department alleging that Father had sexually abused Adam. During the same period, Mother was caught on video covertly following Father into, inside, and outside a Saginaw Walmart, and she followed him by car from the Walmart parking lot almost to Weatherford. Father's employer, the Fort Worth Police Department (FWPD), conducted an internal affairs investigation, ultimately closing it and ruling out Mother's complaints based on her lack of credibility.

         Sam was born at the end of December 2014. Mother was acting bizarrely at the hospital when it was time to discharge the infant, so the hospital did not want to release him to her. The hospital contacted Child Protective Services (CPS)-the investigative arm of the Texas Department of Family and Protective Services (TDFPS)-who called Father to pick up Sam.

         D. Mother Was Arrested for Assaulting Her Elderly Landlord and Resisting Arrest.

         Within days of Father's taking Sam from the hospital, Mother regained legal possession of him, and she soon moved to Denton County with her two children.

         In August 2015, Mother was charged with injury to an elderly person and resisting arrest after she allegedly assaulted her elderly landlord (Landlord) in Denton. Adult Protective Services (APS) supervisor Laura Gutierrez investigated the case. Allegedly, Landlord woke up to a noise about 3:00 or 4:00 a.m. on August 30, 2015, went downstairs, saw Mother in his office, and asked if he could help her. Mother then "lunged at him, grabbed his skin under his arms, and pulled him toward her." She then repeatedly threatened to slit his throat. He tried to break free. She finally pushed him away and ran upstairs, repeating her threat to slit his throat. He had fingernail marks and scrapes on both sides of his chest. Landlord testified that Mother did not look normal during the incident. He had never seen her wide-eyed "like that." He and his wife called 911.

         The police came in the middle of the night, so Adam and Sam were asleep but present at the time of the alleged assault and initial interaction with police. The police went upstairs to speak with Mother, who denied Landlord's allegations and woke the children by yelling at the police officers. Landlord heard the commotion from downstairs. The arresting officer testified that:

• The marks he saw on Landlord were consistent with his having been grabbed as described;
• Mother put the children in danger when the police were trying to handcuff her by going to the bed where Sam lay, jumping on the bed, and grabbing Sam instead of submitting to police custody;
• Mother resisted arrest, yelling about the children getting taken away;
• Adam woke up from all the yelling;
• Adam seemed really scared and was shaking;
• The officer put Adam on the bed with Sam and then put Sam in a bouncy seat;
• The officer calmed Adam down;
• Mother appeared to be under the influence of some substance because her pupils were very dilated, but she stated that she had not taken Adderall for a couple of days; and
• Mother's resisting arrest charge was still pending in Denton at the time of the termination trial.

         Mother denied in her testimony that she had ever threatened to slit Landlord's throat but admitted that she had told him before the incident that she would defend herself if he hurt her. Mother also claimed that Sam was too young to be emotionally affected by the incident and that Adam bounced back and asked no questions about it. Similarly, Patricia Kaminski, a counseling clinical psychologist whom Mother called as an expert witness (Mother's Psychological Expert), testified that in her review of the police officer's body-cam video, she did not see that the children were scared. She admitted, however, that Mother's waking up the children during her arrest was not in their best interest.

         APS supervisor Gutierrez testified that (1) Landlord and his wife were very afraid of Mother, afraid of retaliation, and intimidated by her and (2) the allegations of physical abuse of Landlord and emotional abuse of his wife and him were substantiated.

         Mother admitted that things had been tense at the Denton home, so much so that she and the children had left for six weeks in the summer and stayed with friends. When asked why she went back to the Denton home after that six-week period, she testified that she "didn't know really what to [do] because it just felt like [she] was stuck in a mess."

         E. The Conditions of Mother's Bedroom and the Bathroom She Shared With Her Children at the Denton Home as well as Landlord's Testimony Suggested Neglect and Drug Abuse.

         Open Adderall capsules were found in Mother's bedroom after her arrest. Mother was prescribed Adderall for ADHD. Maurice Saah, Professor of Chemistry (Mother's Drug Expert), testified that one way to take Adderall is to open the capsules and mix the drug with a substance like applesauce, which people who have trouble swallowing do. However, Mother's Psychological Expert testified that open capsules would not be consistent with taking Adderall as prescribed and that the open Adderall capsules collected at the Denton crime scene raised a concern that Mother was abusing her medication.

         Landlord testified that:

• Mother's filthy room conditions at his house would not have harmed the children;
• On the other hand, Mother's filthy bedroom and the bathroom conditions that he had complained to her about-dirty, moldy bottles, old food, smelly clothes, dirty linens, and an unsanitary, urine-stained toilet-represented neglect of the children's health;
• He never saw Mother abuse the children or refuse to be attentive to their needs;
• However, his wife and others had told him that Sam would cry endlessly in the early morning hours, and Adam would get in bed with Sam and try to feed him;
• Adam would not wake Mother up when Landlord's wife asked him to; and
• Landlord had seen Adam acting afraid of Mother.

         Mother admitted that Adam was not allowed to wake her up except in an emergency.

         F. Mother and Her Sons Lived in a Fort Worth Boarding House for Most of 2016, and More Evidence of Neglect and Crime Accumulated.

         Mother testified that after the Denton County incident, she and the children lived in a church member's house until January 2016, when they moved to a Fort Worth boarding house. The landlady (Landlady) of the Fort Worth boarding house testified that:

• Mother left her children unattended when she would go out at night;
• In May 2016, Mother left the children alone two or three times per week, staying gone three to four hours sometimes, and returning after midnight;
• Landlady saw the children outside of their room only once when Mother was out;
• Landlady heard Sam crying at night on multiple occasions when Mother was gone;
• Adam missed school three or four times per week;
• Mother's room smelled like dirty diapers even from the hall;
• Landlady was concerned near the end of Mother's lease about the children not being fed properly;
• Adam asked Landlady for food repeatedly;
• Landlady ended up buying food for the children; and
• Adam set the stove on fire baking unsupervised.

         Mother offered conflicting testimony from her former housemate, Ronald O'Rourke, who testified that in the ten months they both lived in the boarding house:

• He had no concerns that the children were neglected or abused;
• He had no knowledge of the children being left alone;
• He babysat for Mother more than a few times at prearranged times, approximately once a month, for ...

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