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In re E.C.S.

Court of Appeals of Texas, Fourteenth District

June 25, 2019


          On Appeal from the County Court at Law Grimes County, Texas Trial Court Cause No. 34, 344-CCL

          Panel consists of Chief Justice Frost and Justices Spain and Poissant.



         The issues in this case involve whether the trial court's findings to terminate a mother'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 R.L.S. (Mother) with respect to her children, E.C.S. (Erin), A.M.S. (Alex). T.J.B. (Ted), and K.S. (Kevin), [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). The trial court also terminated the parental rights of (1) J.B., Alex and Ted's father, (2) J.R.T., Kevin's father, and (3) the unknown father of Erin.

         Mother challenges the legal and factual sufficiency of the evidence to support the trial court's findings (1) on the predicate grounds of endangerment, failure to support, constructive abandonment, failure to comply with a service plan, and use of a controlled substance in a manner that endangered the health and safety of the children, and (2) that termination is in the children's best interest. See Tex. Fam. Code Ann. § 161.001(b)(1)(D), (E), (F), (N), (O), (P), (2). The fathers have not appealed the termination of their parental rights. We affirm.

         I. Background

         A. Pretrial Proceedings

         1. Pretrial Removal Affidavit

         In late 2017, the Department received a referral alleging neglectful supervision and physical neglect of all four children by Mother. The referral detailed concerns for Mother's ability to adequately protect and supervise the children as Mother allegedly would leave the children unsupervised for six to twelve hours at a time. At the time of the referral Erin was thirteen-years old, Alex was nine-years old, Ted was seven-years old, and Kevin was two-months old. The report also noted concerns about the condition of the home stating that the home was unsanitary and did not have working utilities.

         Three days after the referral, Gloria Smith, an investigator with the Department, went to the family residence to interview the children and Mother and to conduct a home assessment. Mother was present while Smith interviewed the three older children. Ted told Smith they had six puppies living in the home and that sometimes he "urinates off the front porch because their bathroom is broken." Ted told Smith that his Mother occasionally attended the Renaissance Festival on the weekends and left the children in the care of thirteen-year-old Erin. Ted said that sometimes the next-door neighbor also watched the children. At the time of the interviews Kevin, the infant, was in the care of the neighbors, Jenny Baker and Jerry Baker.[2]

         Smith noted that the home was "generally cluttered and unkempt, and there was dog urine on the floor in the living room." The home had working electricity, but no running water. The home's walls and roof were damaged and appeared to be under construction. According to Mother, the children used the bathroom, showered, and brushed their teeth at Jenny's home.

         Mother admitted that she was on deferred-adjudication probation for five years with three years remaining. The offense was food-stamp fraud. Mother denied going to the Renaissance Festival every weekend and denied leaving the children unsupervised. Mother reported that she occasionally worked on Saturday nights at the Renaissance Festival. Mother submitted to an oral drug-swab test, which later returned negative for all substances.

         Due to the conditions of the home and possible neglectful supervision of the children, Smith asked Mother to sign and agree to a safety plan, which stated that Mother must clean the home and not leave the children unsupervised. Mother agreed to the terms of the safety plan.

         Approximately one week later, investigator Holly Frankum made an unannounced visit to the residence to follow up on the progress of the safety plan. Frankum observed that the home still did not have running water and appeared to be under renovation. Mother was still using the Bakers' home for the family's baths and the bathroom.

         About one month after the referral, Smith returned to the home, but Mother was not home. While Smith was outside the home, Jenny spoke with Smith and expressed several concerns about the family. Jenny reported that Mother had been dishonest with the investigator about caring for the children and efforts to renovate the home. Jenny reported that she, rather than Mother, had been caring for Kevin since his birth. Jenny told Smith that Mother "leaves for days at a time and will not answer her phone or tell [Jenny] when she will return." Jenny reported that she cared for all four children during Mother's absences. Mother had not been trying to repair the home, clean it, or restore running water. There were six puppies living in the home "that urinate and defecate throughout the entire house." Jenny reported that the three older children occasionally spent the night with her and that she cared for the infant "full-time." Jenny reported that the children had been "urinating in the bathtub and defecating off the front porch." Jenny reported that Mother was lying about the children using her bathroom facilities at night, but that Jenny was ensuring that the children went to school and had a safe home.

         The next day Jenny sent pictures of the inside of Mother's home. In the photographs, the home "appeared to be in a state of complete disarray and clutter." Jenny expressed "great concern for the unsanitary conditions of the home and the safety and wellbeing of the children."

         Two days after receiving the pictures, Smith made an unannounced visit to the home. Smith described the inside of the home as "worse than my initial home visit, as the clutter and mess was spread through several rooms in the home." Smith observed a distinct odor of dog feces and urine and observed "numerous piles of feces on the floor throughout several rooms of the home." One room in the home, which was accessible to the children, contained exposed insulation, screws, holes in the walls and floors, and exposed electrical wiring. The home smelled musty and was noticeably hot from lack of air conditioning. The living room was "cluttered with dirty laundry, construction tools, blankets, and various household items." The room where the children slept contained two air mattresses with blankets and pillows. Several windows in the home were broken, and there was mold or mildew on the ceiling in the bathroom. There was still no running water in the home.

         When Smith discussed her concerns about the home, Mother agreed the home was not suitable for the children. Mother excused the state of the home stating that she had been gone the entire weekend and the six puppies had escaped from their room and destroyed the home. Mother admitted the children had been staying with Jenny. Smith and Mother then went to Jenny's home where Jenny was caring for Kevin. Jenny showed Smith where the children slept at her home. Smith noted that the space appeared appropriate and clean.

         Jenny called Smith the next day and reported that the children's school had called her about Alex because they could not reach Mother. Alex had head lice again, and Jenny explained Alex had a recurrent problem with head lice. Jenny expressed concern for the children saying that she believed the children were being neglected. Mother had not yet taken Kevin to a doctor for a check-up or immunizations. Jenny took Kevin to the doctor. Kevin was diagnosed with thrush, an ear infection, and a cold. The doctor could find no record of any check-ups or immunizations since Kevin's birth.

         That same day the social worker for the Waller Independent School District called Smith. The social worker had been unable to contact Mother despite multiple attempts to call and an attempted visit to the home. The social worker reported that Ted needed glasses to complete testing to assess his educational needs. The school had been trying to work with Mother for weeks to get glasses for Ted but had not had any success.

         The next day Smith interviewed Erin, the oldest child. Erin reported that her mother's house is usually dirty because the dogs destroy everything, and her mother does not clean. Erin described the house as "gross" and stated that Mother's room was covered in mold. Erin did not feel safe in the home because her bedroom window was broken. Erin reported that Mother was gone from home almost every weekend "because she goes out partying with friends, to the Renaissance Festival, or to her boyfriend's house." Erin reported that Alex contracted chicken pox because Mother never had her immunized. Erin described Mother as "angry, lazy, and irresponsible." She further reported that Mother lied about cleaning the house and that the children had done all the cleaning. This was consistent with Jenny's reports that the children had been cleaning the house, including the dog feces. All of Erin's clothes were dirty because Mother did not do any laundry. Erin stated that Mother blamed Erin for their house being dirty and the Department's intervention.

         The same day as Smith's interview with Erin, Smith spoke with the principal, assistant principal, and counselor at the elementary school where Alex and Ted were enrolled. All three school officials were concerned that Mother had not followed through on getting glasses for Ted. They had explained to Mother there would be no charge for the glasses as they would be paid for by the Lion's Club. Mother's only responsibility was to schedule an appointment and take Ted to the doctor. Ted could not proceed with academic testing until he had glasses. The counselor reported that Ted had several "restroom accidents" at school, but the school was unable to contact Mother to get a change of clothes for him. The principal reported that the children had "a recurrent issue with head lice."

         The next day Smith spoke with Officer Lyndall Barr with the Harris County Sheriff's Office, who was personally familiar with the family. Barr stated that the family had been living in tents before she helped find the house where they were living at the time of the referral. Barr said that the children have had recurrent issues with head lice. Barr stated that when she had been to the home, the conditions were "deplorable." She stated that Mother had six puppies and two grown dogs inside the home that would defecate throughout the home and "created a potent odor of dog feces and urine." Barr stated that Mother left the children with Jenny for several days or even a week at a time to go to the Renaissance Festival or with her boyfriend. Barr advised that in the past, Mother left the children alone and they would hurt one another. She had witnessed bruises on Alex's face and "up and down her legs," which were caused by Alex's other siblings in Mother's absence. Barr advised that Mother blamed Erin "for everything, including stating that [Erin] is the reason Child Protective Services is investigating their family."

         Four days after receiving Officer Barr's statement, the children were placed in Jenny's care, where they were safe. Jenny had expressed her desire to protect the children and provide long-term care, if necessary.

         2. History of Department's Involvement with the Children

         In 2005, when Erin was 18 months old, the Department received a referral alleging physical abuse by an unknown perpetrator. Erin had a bruise on her arm where she had been bitten. Despite Mother's inconsistent stories about how Erin had been injured the allegation was disposed as "unable to determine."

         Five years later, shortly after Ted was born, the Department received a referral alleging physical abuse by Mother. Mother and the newborn Ted both tested positive for marijuana at Ted's birth. The family was referred for ongoing services with the Department through Family Based Safety Services (FBSS). Mother completed services approximately six months later.

         When Kevin was born seven years later the Department received a referral alleging neglectful supervision of the newborn. Mother tested positive for marijuana when Kevin was born but Kevin's urine and meconium tests were negative for marijuana. The allegation of neglectful supervision was ruled out.

         3. Mother's Criminal History

         On June 12, 2013, Mother was placed on five years' deferred-adjudication probation for the state jail felony of theft of property valued between $1, 500 and $20, 000.

         4. Family Service Plan

         On January 8, 2018, the trial court signed an order requiring, among other things, compliance with the Department's family service plan. Mother's family service plan required her to:

• obtain and maintain a safe and stable home;
• allow Department caseworkers to make home visits announced and unannounced;
• obtain and maintain a stable and legitimate income;
• contact the Department caseworker at least twice a month;
• attend supervised visits with the children as approved and scheduled by the Department;
• sign a release of information with service providers to allow the Department to access information with service providers;
• attend individual counseling and follow recommendations;
• live a crime-free lifestyle and take care of pending charges;
• submit to random drug tests as requested by the Department;
• complete a drug and alcohol assessment and follow recommendations;
• complete a psychological evaluation and follow recommendations; and
• follow probation requirements.

         B. Final Hearing

         After opening statements, the Department requested that the trial court take judicial notice of its file. The trial court announced that it took judicial notice of its file.

         Gloria Smith, the Department investigator, testified that the facts in the removal affidavit were within her knowledge and were accurate. The removal affidavit was admitted into evidence over Mother's objection. Smith testified to the events described in the removal affidavit, specifically that Mother ...

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