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C. S. B. v. Texas Department of Family and Protective Services

Court of Appeals of Texas, Third District, Austin

May 16, 2019

C. S. B., Appellant
v.
Texas Department of Family and Protective Services, Appellee

          FROM THE 98TH DISTRICT COURT OF TRAVIS COUNTY NO. D-1-FM-17-001541, THE HONORABLE TIM SULAK, JUDGE PRESIDING

          Before Chief Justice Rose, Justices Kelly and Smith.

          MEMORANDUM OPINION

          JEFF ROSE, CHIEF JUSTICE.

         Appellant C.S.B. ("Mother") appeals from the trial court's decree terminating her parental rights to her daughter K.B. ("Kaylee"), who was two years old at the time of trial.[1] As explained below, we will affirm the decree of termination.

         Standard of Review

         To terminate a parent's rights to her child, the Texas Department of Family and Protective Services ("the Department") must prove by clear and convincing evidence that the parent engaged in conduct that amounts to statutory grounds for termination pursuant to section 161.001 and that termination is in the child's best interest. Tex. Fam. Code § 161.001; In re S.M.R., 434 S.W.3d 576, 580 (Tex. 2014). Clear and convincing evidence is "the measure or degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established." Tex. Fam. Code § 101.007; In re K.M.L., 443 S.W.3d 101, 112 (Tex. 2014). When we are asked to review the sufficiency of the evidence, we must "provide due deference to the decisions of the factfinder, who, having full opportunity to observe witness testimony first-hand, is the sole arbiter when assessing the credibility and demeanor of witnesses." In re A.B., 437 S.W.3d 498, 503 (Tex. 2014); In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005).

         In evaluating the legal sufficiency of the evidence, we look at "all the evidence in the light most favorable to the finding to determine whether a reasonable trier of fact could have formed a firm belief or conviction that its finding was true." In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002); Williams v. Williams, 150 S.W.3d 436, 449 (Tex. App.-Austin 2004, pet. denied). We "assume that the factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could do so" and will "disregard all evidence that a reasonable factfinder could have disbelieved or found to have been incredible." J.F.C., 96 S.W.3d at 266. Our review does not require that we disregard undisputed evidence contrary to the determination. K.M.L., 443 S.W.3d at 113. If after viewing the evidence in the proper light, including undisputed evidence that does not support the findings, we conclude that no reasonable factfinder could have formed a firm belief or conviction that the Department carried its evidentiary burden, the evidence is legally insufficient. J.F.C., 96 S.W.3d at 266; Williams, 150 S.W.3d at 449. In considering the factual sufficiency, we consider the entire record and ask whether the "disputed evidence is such that a reasonable factfinder could not have resolved that disputed evidence in favor of its finding." J.F.C., 96 S.W.3d at 266. If the disputed evidence that could not be credited in favor of the finding is so significant that a reasonable factfinder could not have formed a firm belief or conviction as to the truth of the Department's allegations, we will hold that the evidence is factually insufficient. Id.

         Factual and Procedural Summary

         Mother was almost seventeen years old when Kaylee was born in March 2016; she was nineteen at the time of trial. Kaylee has Alagilles Syndrome, a genetic disorder that affects her liver, heart, and other organs. In March 2017, the Department filed its petition seeking conservatorship over the child. In its supporting affidavit, Department investigator Iesha Pillow explained that the Department had received a referral alleging medical neglect by Mother. The referral alleged that Mother had missed an appointment to get Kaylee's medically prescribed formula and gave "conflicting stories about having enough formula." The referral further alleged that Kaylee needed a liver transplant and that Mother discussed transplant options with a specialist in late 2016, but then declined to place the child on the wait list, stating that "nature will take its course and take care of it." According to the referral, Kaylee weighed twelve pounds and was "experiencing failure to thrive," vitamin deficiencies, and jaundice; Mother had missed some "critical doctors' appointments"; and Mother had declined a feeding tube procedure recommended by Kaylee's doctors. The referral alleged that Kaylee's medical conditions could be fatal if not treated properly and that Mother was not receptive to offers of help and "does not seem to take [Kaylee's] medical conditions seriously." The Department attached a letter written by a pediatric dietician at the Dell Children's Medical Center, explaining Kaylee's medical specialists' concerns about her health, Mother's responses, and the care Kaylee had been receiving at home.

         After an initial investigation, Kaylee was removed from Mother's care and placed in a foster home. During the pendency of the case and while she was in the care of her foster parents, Kaylee received a liver transplant, and a nasogastric feeding tube ("NG-tube") was inserted.[2] Mother complied with many of the requirements placed on her by the court, but she did not fully comply with requirements related to her mental health and her ongoing use of marihuana. She also missed many of Kaylee's doctor's appointments and visitations. The Department eventually sought termination, resulting in the underlying bench trial.

         During the seven-day trial in November 2018, the trial court heard testimony by Pillow; Mother; her mother, with whom she and Kaylee lived ("Grandmother"); Megan Dryer, the family's Any Baby Can caseworker; CASA volunteer Elizabeth Rosenbaum; Department caseworker Erin Mark; Kaylee's foster mother Crystal Pearson; Department investigator Jennifer Williamson; Alise Fulton, who supervised many of Mother's visitations; the doctor who performed Mother's psychological evaluation; Mother's therapist; several members of Kaylee's medical team; three of Mother's relatives; and several witnesses who had been involved in providing services to Mother during the pendency of the case.

         Pillow testified at trial that in investigating the 2017 referral, she interviewed some of Kaylee's dieticians and social workers, who were concerned that mother was not paying attention during medical appointments and "doesn't understand the severity of [Kaylee's] condition." They also told Pillow that they had concerns about Kaylee's need for a liver transplant because she would need "a stable environment because of rejection medications, higher risk of infection," and the medical team did not feel Mother and Grandmother "would even be ready for the transplant."

         Pillow interviewed Mother and Grandmother at the apartment they shared with Kaylee and Mother's younger sister. While Pillow was waiting to speak to Grandmother, several people came in and out of the residence, including two people who "appeared to be under the influence"-a woman who was "zigzagging down the hall" and a man who also "appeared to be under the influence. His eyes were low. He was slurring his words." Pillow testified that by the time she left, there were at least ten people present, smoking cigarettes and drinking beer and wine. Grandmother told Pillow that those individuals did not reside in the apartment, but Pillow was concerned about the situation because of Kaylee's medically fragile condition. Pillow asked Grandmother about her drug use, and Grandmother admitted that she smoked marihuana every day. Although Grandmother told Pillow that she believed Kaylee needed a liver transplant and NG-tube, she said that those decisions were up to Mother, not her.

         When Pillow interviewed Mother, she confirmed that she had missed an appointment at the Women, Infants, and Children ("WIC") office to get Kaylee's prescription formula. When Pillow asked about Kaylee's formula and medications, Mother said that Kaylee "ate a lot" and had gained seven ounces but "really couldn't give me too much information about . . . what medications needed to be taken when." Pillow asked to see Kaylee's medications, but Mother did not have them; she told Pillow "that she had to go and get the other medication from the pharmacy, and she would do it tomorrow." Mother explained that she had missed or was late to some appointments because of a lack of transportation but said that her transportation issues had been addressed.

         Pillow testified that she noticed a smell of cigarettes and marihuana in the residence and that the smell of marihuana was strong in the room Kaylee shared with Mother. Their room was cluttered with trash, there were roaches present, and bottles of Kaylee's formula were on the floor. Pillow testified that the clutter concerned her because it could be a choking hazard for Kaylee. The dirtiness of the residence, including the visible roaches, also raised concerns because Kaylee is "medically fragile" and would require a heightened level of cleanliness after a liver transplant. Further, Kaylee's portable crib was filled with clothing and trash, and Mother said she slept in the same bed with Kaylee "because she didn't want to get up in the middle of the night to have to get her if she was crying." Pillow discussed "safe sleep" with Mother and explained that Kaylee's small size made sleeping in the same bed dangerous, and Mother said she would clean out the crib.

         The Department introduced into evidence an audio recording of Pillow's interview with Mother, in which Mother explained her concerns about the liver transplant surgery, the possibility of rejection, reactions to the medications, and other potential side-effects. In the recording, Pillow asked if Mother had ever said that if Kaylee died, it was "nature taking its course," and Mother said that she had not and that "I feel like God's plan might not be for her to get the transplant." She also said that she was going to put Kaylee on the transplant list but that she had not yet done so because she was not "for sure saying yes." Mother said that Kaylee had been doing well recently and was gaining weight and that Mother had not agreed to have a feeding tube inserted because Kaylee had pulled one out of her nose when she was an infant. Pillow asked more about Mother's religious beliefs and Kaylee's conditions, and Mother said, "God is going to pick the way she's going to live." She also said that she was keeping an open mind about medical treatment, that she would get Kaylee medical attention if her condition worsened, and that she would not simply think it might be "God's will for her to die."

         After Pillow's interviews, the Department sought emergency conservatorship. The next day, Pillow and some other Department personnel met Mother and Kaylee at a coffeeshop. When they explained that they were taking custody of Kaylee, an unidentified individual took Kaylee back to the apartment building, where she was passed from apartment to apartment in an attempt to elude the Department. During that time, Pillow testified, Mother, Grandmother, and Mother's younger sister would come out and curse and yell at Pillow and then retreat into their apartment. After several hours, Kaylee was given to the Department, at which time she was brought to the hospital and found to have a low-grade fever and to be "severely dehydrated." She was in the hospital for about two days and released to a foster home with experience in complicated medical conditions. Kaylee had an NG-tube installed in August 2017, several months after being in the foster home. She was placed on the transplant list in February 2018 and had the transplant surgery in late June 2018, about five months before trial.

         Hospital social worker Jacqueline Frausto made the referral that initiated Pillow's investigation. She testified that in March 2017, she received a report from the medical staff that Kaylee was failing to thrive. Frausto was informed that Mother had missed at least two appointments with specialists and had told a nurse that medical staff "just have to call me" to arrange for new appointments and that she would not reach out herself to do so. Frausto next spoke to Megan Dryer, the family's Any Baby Can caseworker, who told Frausto that "the situation wasn't good," that she had been unable to reach Mother in a week because Mother's phone was not working, and that she would be going to see Mother and Kaylee soon. Finally, Frausto spoke to the clinic's dietician and the WIC office, which confirmed that Mother had missed two appointments to pick up Kaylee's prescribed formula. Frausto then made her referral to the Department, which initiated Pillow's investigation.

         Megan Dryer testified that Any Baby Can had offered Mother case management and physical therapy services and that Mother "had a really hard time maintaining" visits with Kaylee's physical therapist-"[a] lot of visits were canceled or we would go to the home and she wouldn't be there"-and declined an offer for more frequent physical therapy for Kaylee. In November 2016, Mother told Dryer that she had declined Kaylee's doctors' recommendations for an NG-tube, and when Dryer asked why, Mother "just expressed disinterest in learning about how to utilize the NG-tube." Dryer further testified that in about January 2017, Mother told her that she had taken Kaylee off the liver transplant list, [3] saying, "quote, God was going to save her baby. God would-God was going to make sure [Kaylee] was okay." Dryer expressed her concerns, noting Kaylee's yellowed eyes and encouraging Mother to keep her on the list and to have an NG-tube inserted. Dryer testified that whenever she spoke to Mother about the NG-tube or liver transplant, "the term that [Mother] used the most was 'God is going to heal my baby.'"

         Dryer stated that she would periodically visit the family's residence to check on the family. The apartment appeared to be fairly clean for her visits, and Dryer never observed a roach problem. Dryer smelled marihuana in the apartment "a few times" but she never asked Mother or Grandmother about it, nor did she report it to anyone. Grandmother usually "seemed annoyed" by Dryer's visits and would not answer questions about how Kaylee was doing, instead referring Dryer to Mother. When Dryer would speak with Mother, she "was typically laying in bed, on her cell phone. Getting her engaged in the conversation was difficult. She wasn't always able to answer questions about [Kaylee's] health, when doctors' appointments were going to be." When Dryer attempted to give Mother advice on organizing Kaylee's medical information and appointments, Mother "was pretty ...


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