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In re T.L.E.

Court of Appeals of Texas, Fourteenth District

May 21, 2019


          On Appeal from the 315th District Court Harris County, Texas Trial Court Cause No. 2017-04339J

          Panel consists of Justices Wise, Zimmerer, and Spain.



         The 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), [1] 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).

         Mother 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.

         I. Background

         A. Pretrial proceedings

         1. Pretrial Removal Affidavit

         The 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 aunt.

         2. Department History

         Mother 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.

         Father 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.

         In 2015 an allegation of sexual abuse of Ted by Father was reported, but ruled out.

         3. Criminal History

         Father 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 suspended (2015).

         4. The Investigation

         After 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.

         B. Final Hearing

         The 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.

         The 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.

         Dale 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.

         Mother 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.

         The 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.

         The 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.

         The 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.

         Father 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.

         On 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 clothes."

         When 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."

         The 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 ...

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