Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

In re M.D.M.

Court of Appeals of Texas, First District

June 13, 2019

IN THE INTEREST OF M.D.M., T.L.H., AND J.D.B., CHILDREN

          On Appeal from the County Court at Law Washington County, Texas Trial Court Case No. CCL8785

          Panel consists of Justices Keyes, Kelly, and Goodman.

          OPINION

          EVELYN V. KEYES JUSTICE.

         In this case, the trial court terminated the parental rights of B.L.B. (Mother) to her minor son and to her two minor daughters. The trial court also terminated the parental rights of each of the children's fathers. Two of the fathers have appealed the trial court's order terminating their parental rights. Appellant T.D.H. (Truman)[1]raises five issues, arguing that the Department of Family & Protective Services (DFPS or the Department) did not present legally and factually sufficient evidence that (1) his daughter was kept in an environment that endangered her physical and emotional well-being; (2) his conduct in placing his daughter with her grandmother, which occurred prior to the conduct by Mother that brought DFPS into the children's lives, endangered her physical and emotional well-being; (3) he constructively abandoned his daughter; (4) his incarceration would last more than two years or that he would be unable to care for his daughter during his incarceration; and (5) termination of his parental rights would be in his daughter's best interest.

         Appellant J.K., Sr. (Jeffrey) also raises five issues, arguing that the Department (1) violated his due process rights because it did not properly serve him with process; (2) failed to present legally sufficient evidence that his daughter was kept in an environment that endangered her physical and emotional well-being; (3)failed to present legally sufficient evidence that his conduct in allowing Mother to have possession of his daughter endangered her physical or emotional well-being; (4)failed to present legally sufficient evidence that it removed his daughter from him for "abuse or neglect"; and (5) failed to present legally sufficient evidence that termination of his parental rights would be in his daughter's best interest.

         We affirm.

         Background

         Mother has three children who were the subjects of the underlying proceedings: M.D.M. (Michael), a son born in 2006; T.L.H. (Tamara), a daughter born in 2009; and J.D.B. (Jennifer), a daughter born in 2016. Mother voluntarily relinquished her parental rights to all three children, and she is not a party to this appeal. Michael's father, M.D.M., also voluntarily relinquished his parental rights to Michael, and he is not a party to this appeal. Truman is the father of Tamara, and Jeffrey is the father of Jennifer. Truman and Jeffrey are the only appellants in this appeal. Jeffrey has an adult son who has the same name as Jeffrey. In this opinion, we refer to Jeffrey's son as J.K., Jr.

         DFPS became involved with Mother and the children after Mother was in a car accident in College Station, Texas, shortly after Christmas in December 2017. A Texas A&M University Police Department officer conducted a routine traffic stop and discovered that Mother had outstanding warrants. Mother then tried to flee the scene, and she hit head-on the patrol vehicle of another University Police Department officer who had arrived at the scene to provide backup. Michael and Jennifer were in the car with Mother; Tamara was visiting with Joe, her paternal grandfather, at the time of the accident. Michael, who was eleven at the time, was sitting in the front seat, and he was holding Jennifer, who was almost two, on his lap. Jennifer was not sitting in a car seat, and neither she nor Michael were restrained by seatbelts. Mother and Michael had minor injuries from the wreck, but Jennifer appeared "very lethargic" and "had some bruising on her face" and some swelling around her eyes, so officers transported all three of them to a local hospital.[2]

         Mother was subsequently placed in custody at the Brazos County Jail, and Michael and Jennifer went to live with their maternal grandmother, Dierdre. Tamara had been living with Dierdre since August 2017, so after the car accident in December 2017, Dierdre had possession of all three children.

         DFPS caseworker Mandy Hodde met with the children and Dierdre at Dierdre's house in Bryan, Texas, on January 4, 2018. Michael had already been interviewed by another DFPS worker, so Hodde did not interview him again, but she noted that Michael appeared "to be free of any visible marks or bruises." Due to Jennifer's young age, Hodde could not interview her, but she noted that Jennifer had "some healing lacerations on her face," but no other marks or bruises. Hodde did conduct a full interview with Tamara, who had not been present during the car accident, and who also did not have any visible marks or bruises.

         During Hodde's interview with Tamara, who was eight years old at the time, Tamara stated that she had observed Mother using drugs, that Mother had physically abused her and Michael, and that she was afraid of Mother. Hodde testified:

In regards to drug use, [Tamara] described in detail marijuana use and observing marijuana. She also described pills of various colors that she had observed her mom taking before and described an incident where her mother took a bottle of pills while driving because she was being stopped by officers.

         Tamara also told Hodde that Mother was "very mean" to Dierdre, that Mother had pushed Dierdre down before, that Mother had hit Tamara and Michael before, that Mother had once caused Michael to have a bloody nose, and that Mother "threatened to hang [Tamara] the last time CPS talked to [Mother]." Hodde believed that Dierdre's home was an appropriate place for the children, and she did not investigate other potential familial placements for the children.

         On January 5, 2018, the Department filed its original petition for protection of the children and sought termination of the parental rights of Mother and of all the children's fathers. This petition named Truman as Tamara's father. Truman had been incarcerated since May 2017, and he was served with a copy of the original petition while in prison. This petition also named J.K. as Jennifer's alleged father, but the petition did not specify J.K., Sr. (appellant Jeffrey), or J.K., Jr. (Jeffrey's adult son, who is not involved in this case). As the date of birth for J.K., the petition stated a date in November 1985, which is J.K., Jr.'s birthdate, not that of Jeffrey, who was born in January 1966.[3] Citation issued to J.K. was returned unserved.

         The trial court held the statutorily-required adversary hearing on January 18, 2018. Jeffrey appeared in person, and Hodde recalled that he was the only father present at the hearing. She testified that Jeffrey "made an appearance in front of the bench, and he also met in chambers," and he "acknowledged being the father of" Jennifer. According to Hodde, during the meeting in the trial court's chambers, Jeffrey "expressed that he wanted [Jennifer] to stay with her grandmother," Dierdre. Jeffrey signed a "Temporary Order Following Adversary Hearing" that, among other things, required "[J.K.]" to submit to a paternity test, to undergo a psychological evaluation, to participate in parenting classes and drug and alcohol assessments, and to comply with each requirement in a family service plan. Hodde acknowledged at trial that the Department's original petition referred to "the wrong [J.K.]"

         The appellate record includes a family service plan for J.K., again without specifying if the plan was for J.K., Sr. or J.K., Jr. The service plan recited the facts leading to DFPS's involvement with the children, including the car accident and Hodde's interview with Tamara. Among other requirements, the service plan required J.K. to complete a drug and alcohol assessment, to maintain a safe and stable home, to maintain a stable income, to provide proof of employment, to submit to random drug tests, to contact the caseworker twice per month, to "live a criminal free lifestyle and take care of pending charges," and to complete a psychosocial evaluation. Jeffrey signed the family service plan on February 20, 2018. Jeffrey also attended a status hearing before the trial court on this date and signed an order following the hearing. At this hearing, Jeffrey requested the appointment of an attorney, but he never completed the required affidavit of indigency. This was the last court appearance Jeffrey made.

         On October 23, 2018, the trial court appointed an attorney ad litem to represent "[J.K.]" This order did not indicate whether it referred to J.K., Sr. or J.K., Jr. On November 1, 2018, DFPS filed a "Supplemental Petition to Correct Identification of Parties" and alleged that its original petition incorrectly identified J.K., Jr., born in November 1985, as Jennifer's alleged father. Instead, J.K., Sr.- Jeffrey-born in January 1966, was Jennifer's alleged father. The record does not include a return of service for this supplemental petition, although the supplemental petition's certificate of service stated that the pleading was sent by e-mail to the attorney ad litem appointed to represent "[J.K.]"

         The trial court held the final hearing on December 4 and 6, 2018. The court issued a bench warrant for Truman, and he appeared in person along with his court-appointed counsel. Jeffrey did not appear in person, although the attorney ad litem appointed in October 2018 appeared on his behalf. Ad litem counsel explained during opening statements that Jeffrey had not been able to take off from work to attend the final hearing. Counsel also argued that Jeffrey was a "non-offending father," that he had "not done anything that has jeopardized" Jennifer, and that he "is very interested in continuing his relationship with his daughter."

         Samantha Miller, a DFPS conservatorship worker, testified that she was assigned the case approximately one week before the adversary hearing in January 2018. She attended the adversary hearing and spoke with Dierdre and Jeffrey, and she observed Hodde reviewing the Department's original petition with Jeffrey. Miller obtained a phone number and an address for Jeffrey, and she also requested that he complete a drug test, which he did, and which was "clean." She let Jeffrey know that she would be in contact with him to schedule supervised visitation between him and Jennifer. Miller testified that Jeffrey contacted her once during the pendency of the case and that she was never able to set up supervised visitation between him and Jennifer "because he never responded as to what day, what time" even though she reached out to him on a monthly basis.

         Miller testified that, at the time of the adversary hearing, she believed that it was in the best interests of the children for them to be placed with Dierdre during the pendency of the case. Her opinion "was reaffirmed" after she had a chance to visit the children at Dierdre's house approximately one week after the adversary hearing. She testified that she made "multiple attempts to make an appointment with" Jeffrey to visit his home, and while he would occasionally respond to her text messages by saying that he was "busy or not available," he "was for the most part unresponsive" to Miller. At a February 2018 status hearing, Miller met with Jeffrey and he acknowledged his paternity of Jennifer and signed a family service plan, which she then filed with the court. During the pendency of the case, Jeffrey informed Miller that he believed he did not need to be subject to random drug tests, that he did not need to contact her to schedule supervised visitation with Jennifer, that he did not need to meet with Miller, and that he did not need to complete his service plan. Miller testified that she had not had contact with Jeffrey since August 2018.

         Miller also testified concerning Jeffrey's visitation with Jennifer during the pendency of the case. She stated:

I wanted to go ahead and set up weekly visitations between [Jeffrey] and his daughter, [Jennifer], at the Bryan CPS office initially. And after being able to observe that relationship, after a couple of visits, then I would, if [Dierdre] were comfortable, allow her to supervise that. He had not contacted her in about six months. He's shown up once or twice at [Dierdre's] old apartment complex that she resided at, but he doesn't know where she resides now. He's contacted her once or twice and asked for a visit, and she's directed him to me, and he's been unresponsive. He's not contacted me for a visit.

         Miller agreed with Jeffrey's ad litem counsel that Jeffrey was a "non-offending parent, "[4] but she testified that Dierdre had asked her and the Department to "step in" and supervise any visitation between Jeffrey and Jennifer. Miller stated that the Department was "happy to step in and allow the father and the child to see each other." Miller also stated that the Department initially "wanted to put the child with the father," but that was not Jeffrey's "preference at the time." Miller drove by Jeffrey's home, and she agreed with ad litem counsel that the home was "apparently okay from the outside." She also agreed that there was "nothing in any record that he is a danger" to Jennifer.

         Hodde likewise testified that, during her investigation, she did not find any evidence that Jeffrey "did anything to hurt or harm" Jennifer, but he did "allow [Jennifer] to go with [Mother] as often as she would like." Hodde stated that, at the adversary hearing, she witnessed Jeffrey interacting with Jennifer, and "there seemed to be somewhat of a relationship" between the two of them. She did not, during the course of her investigation, make an effort to visit Jeffrey's home. She testified that, based on the facts she obtained during her investigation, it was in the children's best interest for them to remain in Dierdre's home.

         Jeffrey's ad litem counsel asked Miller if she could name one thing Jeffrey had done to endanger Jennifer. Miller stated, "He knowingly, willingly and intentionally allowed his child to be placed in the care of [Mother]." When asked if she knew whether Jeffrey was aware of Mother's behavior around the children, Miller stated, "Yes, because he expressed a strong desire asking me to never allow his child to go back to her mother['s] care."

         With respect to Truman, the trial court admitted certified copies of five judgments and sentences dated August 3, 2017, or approximately five months before the car accident that brought the children to DFPS's attention. These judgments reflected that Truman had pleaded guilty to and been convicted of: (1) the first-degree felony offense of assault on a family member-impeding breathing or circulation-previous conviction; (2) the second-degree felony offense of injury to a child; (3) the second-degree felony offense of participation in a riot; and (4) the second-degree felony offense of assault on a family/household member-previous conviction. The criminal court assessed Truman's punishment at twelve years' confinement for each offense, to run concurrently. Also on August 3, 2017, the criminal court revoked Truman's community supervision[5] for the state jail felony offense of engaging in organized criminal activity and assessed his punishment at two years' confinement, to run concurrently with his other four sentences.

         On June 20, 2018, while Truman was incarcerated, Miller spoke with Truman by phone and discussed a family service plan, the conditions of which would be imposed on Truman once he was released from confinement.[6] During this conversation, Truman mentioned his desire to possibly relinquish his parental rights, telling Miller that he had a "very positive relationship" with Dierdre and that he knew Tamara would be safe at Dierdre's house. Miller testified that it was her understanding that Truman did not have a set date for his release from confinement. Miller did not know if Truman was eligible for parole. She also testified that she had not had any communication with Truman since June 2018.

         Miller had one conversation with Joe, Truman's father, early in the summer of 2018, in which he asked if Tamara could spend a long weekend with him. Based on a conversation with Tamara, Miller did not allow this visitation to occur. Joe made no other requests for visitation with Tamara to Miller, and neither did any other member of Truman's family. During the pendency of the case, Joe assisted in transporting Michael and Tamara to and from their equine therapy appointments. In September 2018, Tamara began having increased behavioral problems, and Tamara informed Miller that she wanted Miller and her Court Appointed Special Advocate (CASA) caseworker to be her "primary transporters" to equine therapy. Miller then contacted Joe and requested that he no longer assist in transporting the children. Miller stated that Joe and Dierdre typically worked out between themselves when Joe could see Tamara without Miller's intervention and that Joe and Tamara have a "positive relationship."

         Miller testified that it was the Department's opinion that the termination of Truman's and Jeffrey's parental rights was in the best interest of Tamara and Jennifer. She stated that the termination of rights would allow the children, including Michael, to be adopted together by Dierdre, "which would allow them what they need as far as to have their needs being met." She also stated that, every time she sees the children, they tell her that they wish to stay with Dierdre. Miller testified that the Department visits Dierdre's home at least once per month-sometimes as frequently as three or four times per month-and there have been no concerns with the children's placement in Dierdre's home. She testified:

[Dierdre] very quickly moved into a much larger apartment to accommodate the children's needs so that [Michael] has his own room. The girls are sharing a room, but it's a much larger room. It's a better school district. It's in a better area of the community. It's better accessible to the children's therapists. Whether it's their play therapists, their doctors, their schools, better school district, like I said. Everything that [Dierdre] does is for the best interest of the children.

         Miller stated that, since being in Dierdre's care, the children have made all of their scheduled doctor's appointments and that Dierdre "has exceeded the expectations of the Department in meeting these children's needs." Miller also testified concerning some of the benefits that the children would have if all three of them were adopted together by Dierdre, including staying on the state's Medicaid program until at least age twenty-one, receiving an adoption subsidy through age eighteen, and receiving free tuition at a state public university.

         Dierdre testified that Michael and Jennifer do not have special needs, but Tamara has dyslexia, and Dierdre had been working with her school to learn more about what accommodations she would need and whether Dierdre would need any special training. She stated that she planned on adopting the children and that her plans were "[t]o take care of them to the best of [her] knowledge like [she has] been doing and get them as much help as [she] can do."

         Dierdre testified that she has not received any support for Tamara from Truman or Truman's family, although she does allow Tamara to see Truman's family and to call them. She stated that Tamara last saw Truman's family for around an hour on Thanksgiving 2018, which was approximately two weeks before the final hearing. Tamara's ninth birthday had been earlier in November, but she did not receive any presents from Truman or his family. With respect to Jeffrey, he had spoken to Dierdre's sister the week before the final hearing, and he asked how Jennifer was doing. In terms of support for Jennifer, Dierdre had received around four packs of diapers and $15 from Jeffrey. She stated that the Attorney General's Office had given her a debit card that Jeffrey was supposed to place money on for Jennifer's support, but he had not placed any money on this card.

         Dierdre testified that she had been concerned about Mother raising the children since before the car accident that occurred in December 2017. Dierdre was aware that Mother had been using drugs, and she routinely asked Mother to allow her to have custody of the children, but Mother refused. She spoke to both Truman and to Michael's father about Mother's behavior, and she tried to enlist their assistance in getting the children out of Mother's house. She stated that she told both men that she thought Mother was using drugs and that "they knew it just as well." According to Dierdre, Truman told her that he would help, but then nothing happened.

         Dierdre testified that she had a similar conversation with Jeffrey, telling him that she believed that Mother was using drugs and Mother's house was not safe for Jennifer. Dierdre stated: "And with a lot of drama, back and forth, getting into it, [Jeffrey] just told me [Mother's] crazy, your daughter's crazy. And that was it." Jeffrey did not do anything to assist Dierdre in removing Jennifer from Mother's house. Dierdre testified that she had had conversations with Jeffrey about Mother, and Jeffrey told Dierdre that Mother "had hit his vehicle and he called [the police] on her, and that wasn't the first or second time he did it." She stated that Jeffrey told her that ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.