IN THE INTEREST OF T.L.E. A/K/A T.E., AND D.V.E A/K/A A.D.E., CHILDREN
Appeal from the 315th District Court Harris County, Texas
Trial Court Cause No. 2017-04339J
consists of Justices Wise, Zimmerer, and Spain.
CHARLES A. SPAIN, JUSTICE
issues in this case involve whether the trial court's
findings to terminate a father's parental rights are
supported by legally- and factually-sufficient evidence. This
accelerated appeal arises from a final order in which, after
a bench trial, the trial court terminated the parental rights
of F.G.M. (Mother) and S.C.E. (Father) with respect to their
children, T.L.E. (Ted) and D.V.E. (Dale),  and appointed the
Department of Family and Protective Services to be the
children's sole managing conservator. See Tex.
Fam. Code Ann. § 109.002(a-1).
executed a voluntary affidavit of relinquishment and has not
appealed the termination of her parental rights. Father
challenges the legal and factual sufficiency of the evidence
to support the trial court's findings on the predicate
ground of endangerment and that termination is in the
children's best interest. See Tex. Fam. Code
Ann. § 161.001(b)(1)(D), (E), (2). Father further argues
the record in this appeal should be limited to the
reporter's record because the trial court did not take
judicial notice of its file. We affirm.
Pretrial Removal Affidavit
children came into the care of the Department when Dale was
born. At Dale's birth, Mother tested positive for
methamphetamine and marijuana in her hair. The Department
engaged Family Based Safety Services (FBSS) in an attempt to
reunite the family. Despite completing substance abuse
counseling through FBSS Mother relapsed, testing positive for
cocaine and marijuana. Father was repeatedly asked to submit
to a hair follicle test, but would not cooperate with the
Department. The Department was unable to verify Father's
whereabouts due to his "continual avoidance of any
Department requests." The children were placed in a
temporary Parental Child Safety Placement with their maternal
has three other children by another man, N.H. (Nick). One of
those children, N.H. (Nancy) was the complainant in an
indecency-with-a-child charge filed against Father. In 2001
the Department received a referral alleging sexual abuse by
Father against Nancy, Father's stepdaughter. Nancy was
interviewed by the Children's Assessment Center where she
disclosed sexual abuse by Father, which included fondling of
her vagina, over her underwear. Nancy's siblings,
Mother's other two children, disclosed physical abuse by
Father alleging that Father "whips the children with a
cowboy belt and leaves bruises." The children reported
domestic violence in their home between Father and Mother.
Mother agreed to allow Nancy and her siblings to live with
Nick, who was protective of the children.
subsequently pleaded guilty to indecency with a child by
contact and was sentenced to two years in prison. Father was
also required to register as a sex offender under Chapter 62
of the Code of Criminal Procedure.
an allegation of sexual abuse of Ted by Father was reported,
but ruled out.
has been convicted of burglary of a motor vehicle (1989),
unauthorized use of a motor vehicle (1990), indecency with a
child by sexual contact (2001), and driving while license
the children were removed, Father contacted the Department
caseworker. Father told the caseworker he "has been in
his children's lives and has been in communication with
[Mother]." Father was informed that in order to obtain
the return of his children he would need to complete drug
testing as requested and follow up with another caseworker
about services required by a family-service plan. The
caseworker noted in the affidavit's conclusion that
Father did not report for a hair-follicle test and had
stopped cooperating with the Department.
Department caseworker introduced her permanency report to the
court, which was admitted without objection. In the report
the caseworker noted that the Department received a referral
alleging neglectful supervision of both children because Dale
was exposed to drugs while Mother was pregnant. The report
noted both parents' history of involvement with the
Department, which began in 1998 with Mother's children
and picked up again in 2015 with allegations of abuse by
Father against Ted, and in 2016 with allegations of abuse by
both parents against Ted.
report described Ted as a well-mannered four-year old who
enjoyed coloring and playing with his toys. Ted had been
learning Spanish and was described as "very
bright." At the time of the report Ted was placed in a
foster home, which was providing a safe and nurturing
environment. In addition to providing Ted with basic needs of
food, clothing, and shelter, the foster parents provided Ted
with extracurricular and social activities including church
attendance, birthday parties, and vacations.
was described as a happy one-year-old boy who was walking and
exploring his surroundings. Dale had begun speaking and
repeating numbers and letters. Dale lived in the same foster
home as Ted and was enjoying the same safe and nurturing
environment with his brother. Dale attended church with his
foster family as well as birthday parties.
stated she was voluntarily entering substance-abuse treatment
and was relinquishing her parental rights. Mother did not
object to the children being placed with Father's cousin.
caseworker testified that a family-service plan was created
for Father, who was required to maintain employment and
stable housing in addition to cooperating with the Department
and attending all court hearings and permanency reviews.
Father was not required to submit to drug testing as a part
of his plan. Father fully complied with the service plan.
Father was consistent in visiting the children, and the
children appeared to have bonded with him.
caseworker testified about Father's 2001 conviction for
indecency with a child. When the caseworker spoke with Father
about the offense, Father denied committing the offense,
arguing that Nancy was coerced to accuse him. The caseworker
testified that the Department sought to terminate
Father's rights based on the prior conviction for
indecency and Father would be incapable of caring for Ted and
Dale because of the allegations of abuse of his stepchildren.
The caseworker testified that it is the Department's
policy not to place children with registered sex offenders.
foster mother has been caring for the children since they
came into care with the exception of three days. For those
three days the children were with their older half-sibling,
Nancy. The children were removed from Nancy because she did
not seek medical care for one of the children when he had an
obvious eye infection, and she allowed Father unsupervised
access to the children.
testified that he pleaded guilty to the earlier
indecency-with-a-child charge in which Nancy was the
complainant. Nancy was seven years old and Father was 28
years old at the time of the offense. At the time Dale was
born, Father and Mother had been living together for more
than twenty years. When Ted was two years old Father moved
out for one year, but reconciled with Mother approximately
one year later. Father testified that after he discovered
Mother's drug use he did not leave her alone with Ted.
Father left Mother again when he found out she tested
positive for methamphetamine when Dale was born. Father's
testimony was contradicted by the caseworker who testified
that Mother and Father were living together at the time Dale
was born and that family members told the caseworker that Ted
has always lived with Mother.
cross-examination Father acknowledged that he pleaded guilty
to indecency with a child by contact noting, "They said
I touched her." When asked: "That you touched her
on her genitals," he responded, "Yes." He then
volunteered the following additional comment: "Over her
asked at what point he learned about Mother's drug use,
Father responded: "Well, when she had the baby, it was
prescribed drugs. They said methamphetamines or something
like that." When asked if he knew methamphetamine was
not a prescribed drug, he said, "I know it's pills.
I know it was ecstasy pills." When asked if ecstasy
pills were a prescribed medication, Father said, "I
don't know much about it."
foster mother testified that the children had lived with her
since Dale was eight months old. At that time Dale was behind
on his immunizations and Ted had nine cavities. Ted was also
behind on immunizations. The foster mother ensured that both
children received the medical and dental care they needed.
The foster mother used her own money to pay for Ted's
dental work because she did not want him to have inferior
dental work. Both children were in school at the time of the
final hearing in addition to receiving tutoring. Ted and Dale
accompanied the foster family on outings including birthday
parties and museum visits. The ...