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In re K.N.J.

Court of Appeals of Texas, Fourth District, San Antonio

July 3, 2019

In the INTEREST OF K.N.J., N.-L.F.J., and F.J.J., III, Children

          From the 57th Judicial District Court, Bexar County, Texas Trial Court No. 2017-PA-01058 Honorable Charles E. Montemayor, Associate Judge Presiding [1]

          Sitting: Rebeca C. Martinez, Justice Luz Elena D. Chapa, Justice Beth Watkins, Justice

          OPINION

          LUZ ELENA D. CHAPA, JUSTICE

         Shari J.[2] appeals the trial court's order terminating her parental rights, arguing there is legally and factually insufficient evidence that termination of her parental rights is in the children's best interest. We conclude the evidence is insufficient to prove termination of Shari's rights is in the children's best interest and reverse that part of the trial court's order. We do not disturb the rest of the order, including the order appointing the Texas Department of Family and Protective Services as sole managing conservator of the children.

         Procedural Background

         The children-K.N.J. (born in 2006), N.-L.F.J. (born in 2008), and F.J.J. (born in 2009)- were removed from the custody of their father, Francis, in May 2017, after allegations of physical abuse and neglect on the part of Francis and his girlfriend and reports the children had been sexually acting out with each other. The Texas Department of Family and Protective Services filed a petition for protection, conservatorship, and termination of Francis and Shari's parental rights. When the petition was filed in May 2017, Francis was the children's permanent managing conservator and Shari was a possessory conservator, pursuant to a June 2015 final order in a previous case.

         The trial court issued temporary orders naming the Department the children's temporary managing conservator and both Shari and Francis possessory conservators. The trial court also appointed an attorney ad litem and a guardian ad litem for the children and used the services of a CASA volunteer who had worked with the children in the previous case. Shari signed a family service plan in July 2017. The case was pending for seventeen months and was tried to the bench in October 2018. The witnesses at trial were Arden Dana, the therapist for the two younger children, the CASA volunteer N.M., Department caseworker Lenore Salazar, Department supervisor Mary Rosetti, Francis, and Shari.

         During the trial, Francis signed an irrevocable affidavit, relinquishing his parental rights. At the conclusion of trial, the Department sought termination of Shari's rights on the grounds that she had not completed her plan of services and termination was in the children's best interest. The Department also argued that if the court did not believe it had met its burden, then the Department should be named the children's permanent managing conservator and Shari be named a possessory conservator and be required to continue her therapy. Shari, the children's guardian ad litem, and their attorney ad litem all argued termination was not in the children's best interest, asked the court to deny the request to terminate Shari's parental rights, and argued Shari should retain her rights as a parent possessory conservator. The trial court took the case under advisement. The court subsequently signed an order terminating both parents' rights. The court found by clear and convincing evidence Shari failed to comply with the provisions of the family service plan and termination of her rights was in the children's best interest.

         On appeal, Shari argues the order of termination should be reversed because the evidence is legally and factually insufficient to support the trial court's finding that the termination of the parent-child relationship between her and the children is in the children's best interest.

         The Evidence

         History with the Department

         The testimony at trial disclosed that the children were removed from Shari's custody in July 2014 as a result of allegations Shari's boyfriend had sexually abused them. That case resulted in a June 2015 final order that named Francis the children's permanent managing conservator and Shari a possessory conservator. CASA volunteer N.M. first became involved with the children during the first case.[3] She testified that while that case was pending, the children were evaluated and placed on medication, they were each receiving individual therapy, and one or two were receiving occupational therapy. She testified Francis was provided resources and support to continue these services for the children after the case was over. However, according to N.M., after Francis took custody of the children, their medication regimen and all therapy and other services were discontinued.

         The previous final order also provided Shari would have weekend visitation with the children. Department supervisor Mary Rosetti and N.M. testified Shari exercised some of her visitation rights, but Francis had restricted her visitation and controlled how, when, and where she could see the children. Shari testified she lost her job and was unable to make child support payments for six months. Francis told her she could no longer visit the children and did not allow the children to talk to her on the telephone or visit her. Shari testified that at that time, she believed Francis's statements suggesting she forfeited her right to visits because she was not paying child support. She also testified she was therefore unaware of the conditions the children were living in and the mistreatment they were suffering.

         Rosetti testified the Department began receiving referrals about possible abuse and neglect of the children in October 2016. The children were living with Francis, his girlfriend and multiple generations of the girlfriend's family in a small home. The allegations generally concerned lack of supervision, physical abuse, sexual abuse, and concerns the children were being sexually inappropriate with each other. The children were removed from the home in May 2017. The oldest, K., was admitted to a psychiatric hospital for several months and then transferred to a group residential treatment center, where she remained at the time of trial. The two younger children were initially placed at the Children's Shelter and later placed in separate foster homes.

         The children

         All three of the children are in counseling. Arden Dana is a child and family therapist who is specially trained in trauma focused, cognitive behavioral therapy. Dana testified she had been treating N., a ten-year-old female, for about eight months, and F., an eight-year-old male, for six months. Dana testified she had never met Shari or the oldest child, K.

         Dana meets with N. weekly. She testified N. has been the victim of traumatic physical abuse perpetrated by her mother's previous boyfriend and by Francis and Francis's girlfriend. Dana testified N. disclosed knowledge about sexual activity a child her age would not normally have and N. was found accessing pornographic websites on her tablet. At the beginning of May 2018, N. started disclosing sexual assaults on her and her sister K. by her father.[4] Dana also discussed with N. the reports that N. and K. had been sexually acting out with each other. Dana testified N. admitted the conduct, stating her sister had initiated it and their father had taught her. According to Dana, N. is working through her issues and has made significant progress. She stated N. has progressed from being extremely angry and aggressive to being more able to talk about her feelings and to trust the adults in her life. Dana testified N. is in a temporary foster home where she has adjusted fairly well and is happy. Dana testified N. wants to live with her mother and is adamant about wanting to keep the sibling group together.

         Dana began therapy sessions with eight-year-old F. in late April 2018. He had suffered physical abuse but did not demonstrate indicators strongly suggesting sexual abuse. Dana testified F. is inclined to aggressive behavior and has had some issues in school and with his peers. She testified he also lies frequently because he is fearful of being harmed if he tells the truth. They are working in therapy to help F. learn he is now in an environment where the truth is acceptable and where consequences for wrongdoing are reasonable, such as loss of privileges instead of physical violence. Dana stated F. is in a very loving and nurturing foster home. He is happy there and would be happy staying there permanently; however, the foster parents are an older couple who do not feel capable of raising a child as young as F. Dana testified F. has also expressed a desire to live with his mother.

         Dana testified both N. and F. continue to have problems with aggressive behavior and need continued therapy. She is working with them to understand the reasons for the behavior and to understand how it negatively affects them and to find more productive and appropriate ways to express themselves.

         K.'s therapist did not testify. However, CASA volunteer N.M. testified K. is under a specialized level of care in an institutional residential treatment center. She testified that although it is not a home environment, it is very structured, which is what K. needs. She stated K. had only recently opened up about some of the trauma she had suffered, and she needed continued around-the-clock structured, supportive, therapeutic supervision to move forward. N.M. testified she was hopeful K's placement could change as she makes more progress.

         All three of the children are on medication, according to Department caseworker, Lenore Salazar, and will need therapy for a long period of time. In addition, N.M. testified all three have specialized educational needs. Finally, there was a consensus among the Department's witnesses that the children should remain in a structured environment with direct supervision. Although each of the children was doing well in their placement at the time of trial, none of them was in a permanent placement. Neither Francis nor Shari had identified any suitable family or fictive kin with whom to place the children. Supervisor Rosetti testified F. was not having as many issues as he had previously, and if he continued progressing, she had hopes the Department could find a foster-to-adopt home for him. Dana and N.M. testified about the children's desires to be together and supported the goal, but emphasized it was only a possibility for the future and would require a highly structured home with very involved and supportive parenting. Caseworker Salazar agreed with Rosetti that at the time of trial there was no path to permanency in place for any of the children.

         Rosetti, Salazar, and Dana all testified the children are bonded with their mother, love her, and want to maintain their relationship with her and continue visiting with her. Rosetti testified the children look forward to their visits with her and the visits are "a big bright spot" in their lives.

         Shari

         In her testimony, Shari acknowledged the children had been abused both by her previous boyfriend and by their father. She testified she understands the children have gone through trauma and face significant challenges as a result. She testified she did not know about the abuse by Francis when it was occurring because he had prevented her from seeing or talking to the children, but she believed the children when they outcried. Shari testified her individual counseling has helped her understand how much support the children need. Shari testified she has not had any contact with her former boyfriend in three or four years. ...


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