Appeal from the 314th District Court Harris County, Texas
Trial Court Cause No. 2016-04856J
consists of Justices Wise, Jewell, and Hassan.
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. 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.
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.
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.
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.
we affirm the trial court's decree.
Pretrial removal affidavit
following facts come from the affidavit of Department
caseworker Tinisha Williams.
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.
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."
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.
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.
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.
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.
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.
The first trial and appeal
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
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
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).
The second trial
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.
Evidence about 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."
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.
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.
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.
believed termination of Mother's parental rights was in
Michael's best interest.
Evidence about 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.
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
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.
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
Evidence about Mother
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.
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.
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?
Q. It says robbery bodily injury. Did you smack her around?
A. It was a fight, yeah.
her guilty plea, in June 2016 Mother once again was placed on
deferred adjudication community supervision, this time for
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.
A. He was saying he was gonna call the police.
Q. What were you doing to have him call the ...