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A. L. G. A. v. Texas Department of Family and Protective Services

Court of Appeals of Texas, Third District, Austin

July 10, 2019

A. L. G. A. and W. F. A. M., Appellants
v.
Texas Department of Family and Protective Services, Appellee

          FROM THE 395TH DISTRICT COURT OF WILLIAMSON COUNTY NO. 17-0150-CPS395, THE HONORABLE RYAN D. LARSON, JUDGE PRESIDING

          Before Chief Justice Rose, Justices Kelly and Smith

          MEMORANDUM OPINION

          JEFF ROSE, CHIEF JUSTICE

         A.L.G.A. (Mother) and W.F.A.M. (Father) appeal from the trial court's order terminating their parental rights to their children Wayne, born in February 2008; Judy, born in February 2011; Kate, born in August 2015; and Matt, born in September 2016.[1] In a bench trial held in January 2019, the trial court found that termination was in the children's best interest, see Tex. Fam. Code § 161.001(b)(2), and that Mother and Father had placed the children or allowed them to remain in surroundings that endangered them, see id. § 161.001(b)(1)(D); engaged in conduct or placed the children with someone whose conduct endangered the children, see id. § 161.001(b)(1)(E); and failed to comply with a court order that established actions necessary to regain custody of the children, see id. § 161.001(b)(1)(O). The court further determined that Mother had a mental illness or deficiency that made her unable to provide for the children, see id. § 161.003, and that Father had used a controlled substance in a manner that endangered the children and had either not completed a treatment program or, after completing such a program, had continued to abuse a controlled substance, see id. § 161.001(b)(1)(P). On appeal, both parents challenge the best-interest determination. Mother also challenges the statutory grounds, asserts that her due process rights were violated because the Texas Department of Family and Protective Services did not provide adequate language translation throughout the underlying proceeding, and argues that the Department did not make reasonable efforts to provide services to Mother. We affirm the trial court's order of termination.

         STANDARD OF REVIEW

         To terminate a parent's rights to their child, the Department must prove by clear and convincing evidence that the parent engaged in conduct that amounts to a statutory ground for termination and that termination is in the child's best interest. Id. § 161.001; In re S.M.R., 434 S.W.3d 576, 580 (Tex. 2014). Clear and convincing evidence is proof "that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established." Tex. Fam. Code § 101.007; In re K.M.L., 443 S.W.3d 101, 112 (Tex. 2014). In reviewing the sufficiency of the evidence, we must "provide due deference to the decisions of the factfinder, who, having full opportunity to observe witness testimony first-hand, is the sole arbiter when assessing the credibility and demeanor of witnesses." In re A.B., 437 S.W.3d 498, 503 (Tex. 2014); In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005).

         In evaluating the legal sufficiency of the evidence, we look at "all the evidence in the light most favorable to the finding to determine whether a reasonable trier of fact could have formed a firm belief or conviction that its finding was true." In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002); Williams v. Williams, 150 S.W.3d 436, 449 (Tex. App.-Austin 2004, pet. denied). We "assume that the factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could do so" and will "disregard all evidence that a reasonable factfinder could have disbelieved or found to have been incredible." J.F.C., 96 S.W.3d at 266. Our review does not require that we disregard undisputed evidence contrary to the determination. K.M.L., 443 S.W.3d at 113. If after viewing the evidence in the proper light, including undisputed evidence that does not support the findings, we conclude that no reasonable factfinder could have formed a firm belief or conviction that the Department carried its evidentiary burden, we will hold that the evidence is legally insufficient. J.F.C., 96 S.W.3d at 266; Williams, 150 S.W.3d at 449. In considering the factual sufficiency, we consider the entire record and ask whether the "disputed evidence is such that a reasonable factfinder could not have resolved that disputed evidence in favor of its finding." J.F.C., 96 S.W.3d at 266. If the disputed evidence that could not be credited in favor of the finding is so significant that a reasonable factfinder could not have formed a firm belief or conviction as to the truth of the Department's allegations, we will hold that the evidence is factually insufficient. Id.

         FACTUAL & PROCEDURAL SUMMARY

         In September 2017, the Department filed its original petition seeking conservatorship of Matt, who was a year old, after it received referrals on August 30 and 31 alleging physical abuse and physical and medical neglect by Mother and after a pediatric surgeon refused to discharge Matt into Mother's care. An affidavit by Department supervisor Natalie Kramer was attached to the petition. Kramer averred that Matt was significantly developmentally delayed, had been hospitalized multiple times for feeding issues, and had a feeding pump and a G-tube or G-button installed.[2] Those devices had been inserted because Mother had reported that Matt "aspirates and vomits when being fed by mouth."

         The affidavit further stated that Mother had recently brought Matt to the Dell Children's Hospital emergency room for the fourteenth time, [3] asking that he be admitted and that she and her other children be given a room at the Ronald McDonald House. However, hospital staff "do not ever observe the infant to have the same issues" Mother would report during the frequent hospital visits. Staff told the Department that Mother "continues to report making the child's condition worse than it is" and that "[t]here is worry that mother is having the child undergo surgery and medical test unnecessar[ily]." In addition to the fourteen visits to Dell Children's Hospital, Mother had brought Matt to another emergency room three times in the last month, "[e]ach time with concerns that mother reports that no other medical professional witnesses." The Department further received a report that Mother had thrown away Matt's G-tube and feeding pump, which had been provided five days earlier, and that insurance would generally only approve a new one every five years. The Department's affidavit stated that Mother's living situation was unstable and that there were concerns that Mother was homeless and was seeking Matt's repeated hospitalization so that she could stay at the Ronald McDonald House. However, the affidavit explained, the Ronald McDonald House would no longer accept Mother because of her frequent requests to stay there, "along with asking for money, food, and gas money while she is there despite . . . having food stamps."

         The affidavit stated that the Department was involved with the family due to "significant mental health concerns" about Mother, who is an undocumented immigrant, had been both victim and perpetrator of domestic violence with Father, and had been diagnosed as bipolar. The affidavit further stated that Mother suffers from severe depression, that she had a history of suicidal and homicidal ideations, and that "[t]here is an ongoing worry that she fails to maintain her medication to treat her mental health concerns." Father is also an undocumented immigrant who had been deported in 2014 due to allegations of domestic violence against Mother and had since returned and was believed to be living in Dallas.

         The affidavit recited the Department's history of involvement with the family, saying it had been working with the family "nonstop" since May 2012, "with only two short breaks of case closures." The first referral, alleging neglectful supervision by Mother, was received in mid-2012-the children were removed after Mother said she was depressed and had suicidal thoughts and then later were returned to her care. In late 2013, the Department received another report of neglectful supervision, as well as an allegation that Wayne had been sexually assaulted-the investigation closed in early 2014, and at its conclusion, the children were allowed to stay with Mother. In August 2015, the Department received a report that Mother went "for periods of time with untreated Depression and Bi Polar"-that investigation closed in January 2016. Six months later, the Department received a report alleging: physical neglect by Mother and Father; that Mother left the children with a friend while she went to Dallas for work, during which time the friend's husband attempted to molest Judy; and that Mother had assaulted Father. That case remained open until a Family Based Safety Services case was opened in 2017. In June 2017, the Department received an allegation of medical neglect stating that Mother had refused to feed Matt "because she reports that he would throw up every time she fed him," that medical professionals did not observe the swallowing issues reported by Mother, and that Mother "insisted that [Matt] be hospitalized, despite no medical need." That case was closed because the family was already "involved with Family Based Safety Services."

         The Department received the most recent referrals in late August and early September 2017. In October 2017, the Department filed an amended petition seeking conservatorship of the three older children as well. The Department explained that concerns had arisen during its investigation into the allegations related to Matt; that since Matt's removal, the Department had "continue[d] to receive ongoing concerns by all those who interact" with Mother and her children; that Mother had refused to cooperate with the Department's safety plan or its efforts to offer her services; and that since Matt's removal, there were concerns that "one of the other children may be at risk of [Mother's] exaggerating a medical condition to gain resources and housing while that child is hospitalized."

         In its January 2019 bench trial, the trial court heard testimony from both parents, hospital social worker Rachel Union, therapist Yolanda Moreno, Department supervisor Natalie Kramer, therapist Lisa Peterson, Department investigator Justin Vavra, Department caseworker Laisdy Sparks, psychiatric nurse practitioner Katherine Brinkmann, the children's court-appointed special advocate (CASA) Whitney Piedfort, and several other witnesses.

         The Department introduced into evidence some of Matt's medical records, in which hospital personnel expressed significant concerns about Mother's care for Matt because she was confrontational and irrational and gave reports that conflicted with medical observations. The records reflect that Mother had difficulty understanding Matt's medical issues-hospital staff did not know whether it was due to a lack of knowledge or an unwillingness to accept the information. By the time Matt was a year old, Mother had already been given three feeding pumps because they kept being "thrown away" by Mother or others in the household. Further, during some hospital visits, Mother denied that Matt had had bowel movements or wet diapers, but nurses found wet or dirty diapers concealed in the trash. One note said, "Mom is interfering with her son's care. Social work has been working with CPS and been make [sic] aware of her hiding wet diapers."

         Rachel Union testified that she was involved in arranging housing and other services for the families of patients at Dell Children's Hospital. She said that she eventually became "suspicious" about Mother's seeking assistance "because the information she was providing kept changing." Union came to believe that Mother "had another motive, other than truly being homeless," but Union never knew what that motivation might be. Union further testified that Mother "frequently presented with concerns that the child was vomiting, and none of us had witnessed the child vomit." When medical staff attempted to test Matt's tolerance for taking food by mouth, Mother interfered, feeding him via his G-tube before staff could give him a bottle. Union had concerns about Mother's interactions with her older children as well, saying that Mother got frustrated and impatient and sometimes seemed unresponsive when one of her younger children was hurt by a sibling's aggressive behavior. She said Mother "kept coming in and things kept developing, and then I kept seeing the actions between the children and with her, and then taking [Matt] to seek care elsewhere and talking to other people in the hospital about his care . . ., then I became very concerned about her ability to care for the children." Mother once told Union that her phone had been dropped in a bucket of water by her then-two-year old while Mother was sleeping all day, raising Union's concerns about Mother's ability to supervise the children. Finally, Union testified that Mother had told her that she had bipolar disorder but was not taking her medication because it made her tired.

         Caseworker Laisdy Sparks testified about the medical issues of the three oldest children. She explained that Matt "was initially diagnosed with failure to thrive, and because of that, he has-has a lot of developmental delays." He has a G-tube "where he receives the majority of his feedings," and he needs speech, occupational, and physical therapy, as well as a number of medical specialists. When the Department took Matt into custody at about a year old, he could not sit or crawl. Since his removal, he had learned to walk and was beginning to speak, he was "[a]lmost on track" developmentally, and he was "happy and content and doesn't seem to be in any type of distress." When Judy first came into Department care, her development was so delayed that there were concerns that she was intellectually disabled, but testing shows she has an IQ "in the 80s," which is in the low normal range. Sparks testified that since her removal, Judy takes medication for ADHD, she no longer has the same level of tantrums at school or at home, her reading levels and social skills had "increased tremendously," and she was passing her classes. Medical testing conducted after the children's removal showed that Wayne has fatty liver disease-Sparks testified that Mother knew about Wayne's liver disease before the removal but neglected to tell the Department. Because of his liver disease, Wayne has specific nutritional and dietary needs, and since his removal, Wayne had been losing weight and his health has improved. Doctors have reported that the disease will "go away completely" if he continues to eat well and lose weight, but if he were to return to his old diet, his disease could return and could eventually lead to autoimmune hepatitis.

         Sparks testified that Judy and Wayne had been placed together in their foster home and that both children had shown improvements in school and at home and were in ongoing "trauma-based therapy." Kate was in a different foster home from her siblings, the same home in which she was placed at the beginning of the case. She was not yet old enough for school and did not need therapy or special assistance. Matt was in a specialized placement where his foster parents have medical training and the ability to care for a child with special needs. Sparks testified that all three of the foster homes were "long-term placement[s]" that could be permanent and that the children were all thriving in their placements.

         Sparks described Mother's behavior throughout the case as erratic, disruptive, and hostile. Mother seemed to have difficulty understanding and following the rules related to visitations, such as bringing items she had been told were not allowed or disrupting Father's visits. She would come to Department offices without having made an appointment, and "there have been times when [Mother] tells stories, and her stories are not consistent with, like, reality and, like, what really happened." Sparks also said that when Mother "gets angry, . . . she can be a little scary." Sparks testified that she had tried to text with Mother and Mother's attorney to communicate because she did not want her "words to be twisted." Sparks testified that she was fluent in Spanish, that Father never complained about her Spanish, and that she ...


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