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In re M.T.R.

Court of Appeals of Texas, Fourteenth District

May 16, 2019

IN THE INTEREST OF M.T.R., A CHILD

          On Appeal from the 314th District Court Harris County, Texas Trial Court Cause No. 2016-04856J

          Panel consists of Justices Wise, Jewell, and Hassan.

          OPINION

          Ken Wise, Justice.

         This accelerated appeal arises from a final decree in a suit in which termination of the parent-child relationship was at issue. Tex. Fam. Code Ann. § 109.002(a-1). The child is Michael.[1] The appellants are his mother, C.A.R. (Mother), and his maternal grandmother, A.R. (Grandmother), who was an intervenor in the trial court. The trial court terminated Mother's parental rights and appointed the Texas Department of Family and Protective Services (the Department) to be Michael's managing conservator. Mother and Grandmother appealed.

         Mother raises five issues on appeal. She contends (1) the trial court should have dismissed the suit for want of prosecution, (2) the trial court failed to comply with the Indian Child Welfare Act by not determining Michael's American Indian status, (3) the judgment cannot stand because it is based on legally and factually insufficient evidence, (4) the judgment cannot stand because the Department failed to adhere to its internal "care plans," and (5) Mother had ineffective assistance of counsel. Grandmother raises only one issue; she alleges the judgment cannot stand because it is based on legally and factually insufficient evidence.

         First, we hold the trial court did not err by not dismissing the case, because trial was timely under section 263.401(b-1) and (c) of the Texas Family Code. Second, we conclude legally and factually sufficient evidence supports the trial court's findings that Mother endangered Michael and that termination of the parent-child relationship is in Michael's best interest. Third, Mother's assertion regarding the Indian Child Welfare Act is not supported by the record; Michael's American Indian status was denied by Grandmother. Fourth, Mother failed to preserve error with respect to the Department's "care plans," because she did not object in the trial court and did not adequately brief the issue on appeal. Finally, we hold Mother has not shown she received ineffective assistance of counsel.

         Grandmother lacks standing to complain of the termination of Mother's parental rights. She has standing to complain only about the trial court's appointment of the Department, rather than her, as Michael's managing conservator. We hold Grandmother has not shown the trial court abused its discretion in its conservatorship decision.

         Therefore, we affirm the trial court's decree.

         Background

         A. Pretrial removal affidavit

         The following facts come from the affidavit of Department caseworker Tinisha Williams.

         The Department received a referral in mid-June 2016 alleging neglectful supervision of then-18-month-old Michael. The reporter alleged Mother was in a physical fight with someone at an apartment complex while Michael was nearby in the car. Mother's boyfriend, who was also present, allegedly pointed a gun at the person with whom Mother was fighting. The reporter said Mother smokes marijuana and uses other drugs in front of Michael. Finally, Mother and the boyfriend were both said to be affiliated with separate gangs.

         There is no suggestion as to what, if anything, occurred in the six-week period after the referral. The first indication in the record of activity in this investigation is Williams' attempts "throughout the month of August" to find Michael. On September 1, Williams requested law enforcement to conduct a welfare check for Michael. A police officer found Michael in the apartment in which he lived with Mother, Mother's boyfriend, and Grandmother. The officer's initial assessment was that the apartment was clean and Michael appeared healthy. Grandmother said she was the primary caregiver for Michael because Mother was in jail, though she expected Mother to be released soon. Williams arrived at the apartment shortly thereafter. She agreed with the officer that the apartment's physical environment was safe and appropriate for Michael, but she found the apartment "reeked of marijuana."

         Williams asked Grandmother to give her the name, social security number, and date of birth for every person 14 years or older who lived in the apartment. Grandmother said she could provide only her personal information. She was unable or unwilling to provide that information with respect to an unidentified male Williams observed walking in and out of the apartment or her "sons" whom she said visit the apartment frequently. Other than denying he is Michael's father, Mother's boyfriend refused to provide Williams any information. Williams tried to photograph the home but was denied permission by Grandmother.

         Grandmother had history with the Department. When her now-adult children were minors, the Department found reason to believe on four occasions that Grandmother neglectfully supervised and/or physically neglected them. Mother had no adult history with the Department, but she had criminal history as well as three pending criminal charges. Mother's boyfriend, later identified as Jason, also had extensive criminal history.

         Williams visited Mother in jail the same day. Mother identified three people who might be able to care for Michael during the Department's investigation. Two of the three people were ruled out due to their criminal and/or Department history. The third person said her work schedule prevented her from being able to care for Michael adequately.

         Believing Michael to be in immediate danger, the Department filed this lawsuit the next day and requested an order of removal and writ of attachment for Michael. Williams' affidavit was attached to the Department's original petition. The record does not contain a ruling on the Department's request for an order of removal and writ of attachment.

         Two weeks later, the trial court conducted a full adversary hearing and signed an order naming the Department as Michael's temporary managing conservator. Six weeks after that, the trial court signed an order approving a family service plan the Department created for Mother and requiring her to comply with that plan and any amended plan.

         B. The first trial and appeal[2]

         Mother executed an unrevoked or irrevocable affidavit of relinquishment of her parental rights as to Michael. Michael's father, A.E. (Father), proceeded to trial. Following a bench trial, the trial court found termination of Mother's and Father's parental rights was in Michael's best interest. The court terminated Mother's parental rights based on her affidavit of relinquishment, terminated Father's rights on other grounds, and named the Department as Michael's permanent managing conservator. Mother and Grandmother appealed; Father did not.

         Mother's affidavit of relinquishment designated Grandmother as Michael's sole managing conservator. The trial court found that designation rendered the relinquishment "conditional and not voluntary." Accordingly, in early June 2018, about six weeks after signing the final decree of termination, the trial court granted a new trial for Mother and Grandmother. The termination of Father's rights stood.

         Due to the new-trial order, Mother and Grandmother sought voluntary dismissal of their appeal. We dismissed the appeal near the end of August 2018. See In re M.R., No. 14-18-00389-CV, 2018 WL 4037493 (Tex. App.-Houston [14th Dist.] Aug. 23, 2018, no pet.) (mem. op.) (per curiam).

         C. The second trial

         The second trial was held at the end of October 2018. The testifying witnesses were Mother and Department caseworker Demetrias Byrd. Grandmother represented herself and questioned both witnesses, but she did not testify. The documentary evidence included Williams' removal affidavit, admitted over Mother's hearsay objection; Mother's family service plan and the court order requiring her to comply with it; drug test results for Mother; judgments and orders reflecting Mother's criminal history; permanency reports by the Department; and various orders by the trial court.

         1. Evidence about Michael

         Michael and Mother lived with Grandmother at the time of removal. Mother said Grandmother and Michael were very close and Grandmother "taught him stuff." Specifically, "he knew a lot of words. He knew how to connect certain things. Like he knew shoes and how to go get his bottle and his cup and she potty trained him and everything."

         Following removal, Michael was placed in a foster home, where he remained through the time of the second trial some 26 months later. The foster parent was meeting all of Michael's needs, according to Byrd, and was very bonded with him.

         Byrd testified Michael's visits with Grandmother were appropriate after Michael became accustomed to them. Initially, Byrd said, "he would cry, like, hysterically for the first 20, 30 minutes of our visits." Byrd was not sure if Michael was bonded with Grandmother even at the time of the second trial, but she acknowledged he "began to recognize [Grandmother's] face and understood who she was after some time." Michael was "always ready to leave" after visits with Grandmother, according to Byrd. At the end of one visit, Michael said he wanted to go with "Mimi." Grandmother believed she was "Mimi"; Byrd said she believed "Mimi" referred to Michael's foster mother's mother.

         Almost four years old at the time of the second trial, Michael knew the alphabet, shapes, and 20 sight words. Byrd agreed Michael had excelled and thrived in the foster home. She elaborated:

This is his family. This is what he knows. This is the comfort and stability that he has established. At this time, that's all that he knows. So to remove him from the placement and to not terminate and provide permanency for him will be detrimental to his behavior and the progress that he's made while being in care in this home.

         Byrd believed termination of Mother's parental rights was in Michael's best interest.

         2. Evidence about Grandmother

         Grandmother was a solid presence in Michael's life until he was removed, according to Mother. Grandmother attended his birth. She went to all his medical appointments. After removal, she consistently communicated to the Department her desire to have him placed with her. She attended every court hearing.

         After conducting a home study, the Department concluded Grandmother was not an appropriate caregiver for Michael. Byrd testified the Department was troubled that (1) there were still people living in Grandmother's apartment whom she would not identify, and (2) Grandmother appeared unwilling to keep Mother away from Michael. Further, Grandmother had history with the Department in 2002 and 2010. The details of that history are not included in the record. Byrd testified the Department "validated" the allegations in four or five of the referrals about Grandmother and was unable to complete the investigations in two other referrals. Mother testified she does not remember the Department coming to her house when she was a child. She also said she does not remember Grandmother ever physically disciplining her or her siblings "to an extreme event or at all for that matter."

         In closing argument, Grandmother contested the allegation in the removal affidavit that her apartment "reeked of marijuana." She was, according to the trial court, "complaining that nobody drug tested [her]." The trial court asked Grandmother if anything prevented her from submitting to a drug test on her own. Grandmother said she did not know her drug status was important until trial.

         Byrd testified Grandmother said she did not want to adopt Michael. But Grandmother suggested in her closing argument that she had not understood the niceties of adoption versus conservatorship at the beginning of the case. She assured the trial court she wants to adopt Michael if Mother's rights are terminated.

         3. Evidence about Mother

         a. Criminal history

         Mother's criminal activity reflected in the record all occurred while she was pregnant with Michael or after he was born. When she was eight months pregnant, she was arrested for criminal mischief resulting in damages between $1, 500 and $20, 000, a state jail felony. The complaint alleges she struck the complainant's car with her car. At trial, Mother described the incident:

Q. [W]hat did you do then?
A. I had a wreck in my job parking lot.
Q. There wasn't an incident during that timeframe where you basically rammed this person's car?
A. Well the car was old and I did hit that car. I did, yes.

         As part of a plea-bargain agreement with the State, Mother pleaded guilty to a lesser-included class A misdemeanor in May 2015 and was placed on deferred adjudication community supervision for two years.

         In January 2016, when Michael was 13 months old, Mother was arrested for robbery with bodily injury, a second-degree felony. She elaborated on that incident at trial as well:

Q. . . . Says here you're charged with robbery of a Vonda Wilkinson. Who's Vonda Wilkinson?
A. A worker at Wal-Mart.
Q. What did you do to her?
A. We had a fight. She grabbed me and we had a fight. I was stealing from Wal-Mart.
Q. You were stealing from Wal-Mart?
A. Yes.
Q. It says robbery bodily injury. Did you smack her around?
A. It was a fight, yeah.

         Following her guilty plea, in June 2016 Mother once again was placed on deferred adjudication community supervision, this time for five years.

         Just one month later, Mother committed another robbery with bodily injury. She testified:

Q. . . . [Y]ou got charge for a robbery on, looks like Tom O-n-g, who's that?
A. He worked at a corner store, manager at a store.
Q. What did you do to him?
A. I took his phone and broke it.
Q. Why?
A. He was saying he was gonna call the police.
Q. What were you doing to have him call the ...

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