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In re C.E.P.

Court of Appeals of Texas, First District

August 6, 2019

IN THE INTEREST OF C.E.P., III, A CHILD

          On Appeal from the 308th District Court Harris County, Texas Trial Court Case No. 2017-03697

          Panel consists of Chief Justice Radack and Justices Higley and Hightower.

          MEMORANDUM OPINION

          Laura Carter Higley Justice.

         This is an accelerated appeal[1] of the termination, following a bench trial, of Father's and Mother's parental rights to their young son, Child.[2] In three issues, Father contends that the evidence is legally and factually insufficient to support the trial court's findings under Family Code subsections 161.001(b)(1)(E), (N), and (O). In three issues, Mother contends that the evidence is legally and factually insufficient to support the trial court's findings under Family Code subsections 161.001(b)(1)(N), (O), and (b)(2). We affirm.

         Background

         Child was born to Mother and Father in 2015. He was about three-and-a-half years old at the time of trial.

         I. The Department's Current Involvement with Child

         The investigation by the Department of Family and Protective Services (the "Department" or "CPS," as the trial witnesses and evidence sometimes refer to it) that led to this suit began while Child was in the hospital. He was admitted to the hospital in October 2016. He had suffered scalding burns, apparently from hot water.

         On January 11, 2017, the Department "received a report alleging neglectful supervision of" Child. According to the report, Father and Mother

were involved in an escalating argument with one another in which father was observed to "spit" on the mother 3 times. . . . [F]ather was subsequently arrested in the lobby of Children's Memorial Hermann Hospital after assaulting a hospital visitor who attempted to intervene on behalf of the mother upon observing the father attempting to assault the mother. . . . [T]he family has significant CPS history[, ] and "there is believed to be ongoing family violence between the mother and father."

         The Department's subsequent investigation led it to file this suit, seeking to terminate Father's parental rights to Child under Family Code subsections 161.001(b)(1)(E), (N), (O), and (b)(2) and to terminate Mother's parental rights under Family Code subsections 161.001(b)(1)(N), (O), and (b)(2). The trial court appointed the Department as Child's temporary managing conservator on April 19, 2017. Ultimately, the Department's plan was for Child to be adopted by a non-relative.

         This suit went to trial in September 2018, but the trial court later ordered a new trial, which went forward without a jury in January 2019. After the January 2019 trial, the trial court rendered its judgment, terminating Mother's parental rights under statutory predicates (N) and (O) and Father's rights under statutory predicates (E), (N), and (O) and finding that the terminations were in Child's best interest. The trial court also appointed the Department as Child's sole managing conservator, which neither Mother nor Father challenge on appeal.

         II. Trial Testimony & Other Evidence

         During the January 2019 trial, five witnesses testified: a law-enforcement officer, a hospital clinical social worker, the Department's caseworker, Father, and Mother.

         A. Law-Enforcement Officer's Testimony

         Deputy J. Davison works for the Harris County Precinct 4 Constable's Office, patrolling Municipal Utility District No. 290. In the past, he has responded to calls for service at Mother's and Father's home for what he called "[f]amily disturbances; sort of information-type calls." He responded in four or five such instances involving Mother and Father from January 2018 to June 2018. According to him, a "family disturbance . . . occurs between two family members or two members of the same household" and "can be as little as a verbal argument between the two." The family disturbances involving Father and Mother to which Deputy Davison responded sometimes involved their children. But "most of the times that [he] ha[s] been to their residence, it involved [Father] and [Mother]."

         On one occasion in summer 2018, Deputy Davison responded to Father's and Mother's home because their daughter "said that she was assaulted by" Father. Father told Deputy Davison "that he pulled her feet from underneath her because she was standing on the couch shouting or standing over him," that "he restrained her by holding her down," and that he was "attempting to get her in control." Deputy Davison added, however, that Mother "did not believe that anything that occurred was overdone or that anything took place that would be assault." Deputy Davison relayed what he learned to the district attorney's office. The office "stated that that was not a case of abuse-that it was a case of the father disciplining the child." There was no "further reporting of that incident to the" Department.

         Deputy Davison continued that he "ha[s] not been there to witness" any instance of Father and Mother "be[ing] physically combative" with each other. He testified that "[t]hey don't come [a]cross as overly aggressive most of the time. I believe just one incident which each individual in the case of them being a little too excitable." He also did not know of any allegation by either Father or Mother that the other had been physically combative.

         Had Father shown signs of "fighting," Deputy Davison would have removed him from the scene. He has removed Father from the scene once. On that occasion, he put Father into a squad car so Father would calm down, and he did calm down.

         B. Hospital Clinical Social Worker's Testimony

         Kristen Soudelier works as a "clinical social worker in the Pediatric ICU" for "Children's Memorial Hermann" hospital. In her role, she is "responsible for assessment of the patients and family when they arrive into the ICU." She also "work[s] with families providing support; resources; community resources; as well as too, if there is concern of abuse or neglect, making the appropriate referrals to Child Protective Services and/or law enforcement as well as assuring for a safe discharge." She testified that "the children in the families that [she] work[s] with [are] in some sort of critical medical situation."

         Soudelier first met Child on October 11, 2016, when she "was asked to see him on the morning that he had been admitted" to the hospital. He was admitted "for scald burns to his head, face, [and] chest area." She saw Child's burns in person while he was in Intensive Care and "on a breathing machine." His burns "were pretty extensive to the patterns on the top of his head coming down to his face" and were on "multiple areas of his face, chest, and areas of that sort." During the first part of his hospital stay, Child was sedated due to the severity of his burns. Soudelier recalled that Child was discharged from the hospital on either February 1 or February 13, 2017.

         During the hospital stay, Soudelier talked with Father and Mother. She performed "a psychosocial assessment on the family," which involves "[g]athering their demographic information; getting a better understanding from both of them on their account of what happened to the child that brought them into the hospital"; and investigating potential "substance abuse, mental health, [and] domestic violence in order to complete the full assessment."

         Soudelier is not always able to perform psychosocial assessments for families due to time constraints, but Child's case "warranted a full assessment." This was because the physicians treating Child "were concerned that his injuries were not consistent with the story that was being told." And when Soudelier first met with Father and Mother, she too was concerned about "inconsistencies from the story . . . that [Father] had in stated [sic] the amount of water could have caused that much damage to the child."

         Soudelier was concerned about the family's "stability and their home environment as well as . . . some of the history that they had shared with [her]." She was concerned because Father and Mother "said that their relationship was . . . on the rocks. . . . [A]t first they said they didn't live together; they were separated; but then they were together. And [Father] had indicated he came over to help [Mother] as much as possible in the home, but they . . . were actually living together." She also was concerned about "CPS history" relating to Mother and to Child's having "tested positive at birth."[3] Shortly after his birth, the Department removed Child from Mother. And Mother "worked her services and d[id] what she needed to do" to get Child back. Nevertheless, Soudelier considered this earlier incident "a red flag."

         She testified that, during Child's months-long hospital stay, Father and Mother visited Child less frequently than once a week. She noted that Father visited more often than Mother did. Soudelier's normal work hours, however, were 8:00 a.m. to 5:00 p.m., and she took some vacation days during Child's hospital stay. Her knowledge of Father's and Mother's visit frequency came from reports from others about whether Father or Mother had requested the hospital's available overnight room.

         Father's and Mother's infrequent visits caused her concern: "There were several times we were not able to reach" them, and "[w]hen physicians needed consent, they had not a good working phone number like that when they were not at bedside." She "tried to offer resources to help them come and stay frequently." But the hospital was not always able to reach the parents.

         When Father and Mother did visit, "there were several occasions"-about four or more-when "[Soudelier] did have to interject [sic] them because they were fighting." One of the fights involved "physically fighting." Father "was lunging towards [Mother] and coming aggressively towards her. [Soudelier] did not see him punch [Mother], but . . . we did have to separate him because he was lunging toward her." So Soudelier called security, and Father and Mother "were removed from the hospital." Soudelier also called security when Father and Mother "were found . . . at the valet in an altercation, and bystanders tried to come and help" Mother. Father "assaulted the bystander" and was arrested for assault. Soudelier did not witness this incident and "do[es]n't know what precipitated the fight." Child's hospital stay was a "highly emotional" and "stressful" time for Mother and Father. After the incident, Father "was told that he was going to get a no-trespass warning, and he was not allowed to come back" to the hospital.

         Soudelier was also concerned about Mother's "ability to care for either herself or [Child] while she was at the hospital." According to Soudelier, Mother has some "disabilities": Mother "was at times or oftentime[s] found to have urine at the bottom of her wheelchair on the floor." Soudelier "tried to address that with her and tried to help her determine if she needed supplies, cat supplies, but she denied those services or those needs." This caused Soudelier, and "also the medical staff," concern because, "[d]ue to [Child's] open wounds and burns, it was very important that the environment has to be clean." But after Soudelier explained to Mother "that it was very important for her to remain hygienic so that [Child] wouldn't catch an infection," and "offered [Mother] resources to help with that problem," "incidents of unsanitary behavior continue[d]."

         As for Father, Soudelier was concerned about his altercations with others and about his sometimes appearing "to be under the influence of a substance." She noted his "mumbled speech"; "unsteady gait"; "red eyes"; and, coinciding with instances of mumbled speech or unsteady gait, "aggressive behavior, where at times his general personality had been calm." These instances sometimes led Soudelier "to get security involved." On the other hand, she admitted, red eyes could have been from lack of sleep because of the stress on Father surrounding Child's hospitalization.

         "Because of the nature of [Child's] injuries," it was "important that when he was ready for discharge that he be released to a home that was stable, safe, and clean." But Soudelier's concerns, "based on [her] interaction with them during the months that [Child] was in the hospital," undermined her confidence that Father and Mother could provide such an environment.

         The "hospital attempted to provide resources to address the concerns that they had." But Father and Mother did not "take [Soudelier] up on" any of "the community resources" that were offered. They did, however, take her up on "the in-house resources-Ronald McDonald House and things like that." Soudelier spoke with Mother "about housing" and "about SSI, making sure they had the financial ability." Father and Mother told Soudelier that they had a house to live in and that they had SSI too. Soudelier's SSI-related concern was that Father and Mother had not yet applied for SSI for Child. But Father and Mother did report that they had the financial means to care for Child.

         Then, "as [Child] got better," Soudelier developed other concerns about Father's and Mother's ability to care for him. To care for him, Father and Mother needed "to learn how to do medication; they had to do dressing changes; [and] they would have had to comply with the therapy that he would have needed-the occupational and physical therapy." They would have to be "educate[d] . . . on the proper care of the G-tube" that Child was discharged with to help him eat. They did "come in for some of those classes" offered by the hospital. And "they did attend the classes" for wound-care training. But they did not "complete them to the point that [Soudelier] would have been comfortable with their ability to care for [Child] medically." Soudelier admitted that she has no personal knowledge of whether they completed the training, but she testified that she learned about it from notes in Child's medical records.

         Soudelier last saw Child in February 2017, not long before his discharge from the hospital. She is not aware of what care Child needs now, whether specialized or otherwise. She is unaware of what training Mother has had since Child's discharge. And she admitted that she "ha[s] really nothing to offer in terms of the current situation for [Child], [Father], and [Mother]."

         C. Department's Caseworker's Testimony

         Janison King was "a conservatorship worker for [Child]" and worked Child's case for the Department from about December 2017 to about October 2018. King testified that she had difficulty making and maintaining contact with Father and Mother during December 2017 and January 2018. All three "were kind of . . . playing phone tag." But, King admitted, Father did call her "on a number of occasions." For as long as King has been on the case, Father has not missed a court appearance, save for a time during which he was recovering from having been shot.

         King testified that the Department created family service plans for Father and Mother, in part "to alleviate[] the concerns of the abuse and neglect." In January 2018, King and Father talked by phone, and they "went through the family plan of service" together. King also discussed with him Child's "short-term needs."

         1. Father's Family Service Plan

         King testified extensively about Father's family service plan. Ultimately, he did not complete all of the services that the plan asked of him. His plan ordered him to "participate in random UA/hair follicle testing" for the presence of illegal drugs. But Father never submitted to a drug test, and there are no drug-test results for Father. King admitted, however, that the Department does not allege that Father used drugs.

         Father's plan also ordered him to "maintain employment to ensure that all of [Child]'s financial needs are met" and to "maintain stable, clean, and clutter[-]free housing." Father explained to King that he was doing "little odds and ends for his father" to make money, but she testified that he was unable to provide her any proof that he was getting paid. Father was "in process of getting [SSI] started," but he did not "indicate [that] he was ever able to get that started" successfully. Father did not indicate to her "any other type of government assistance."

         As for housing, Father and Mother indicated having an apartment together, but Father did not provide any lease agreement to prove it, nor has Father ever requested that King visit his home. Part of the plan's housing requirement was that Father "give [caseworker] a copy of his lease as proof of residency" or, if in a month-to-month rental, "a letter from his management company stating his rent amount and [that] he [i]s a resident of the apartment."

         Neither Father nor Mother ever asked King to see their homes. She otherwise "know[s] for a fact that [Father] has a house or an apartment of some sort," but she "just ha[s]n't been there." She has not personally contacted Father or his counsel "ask[ing] to be able to come to [Father's] home," including during the several times that she has been in court together with them. She does not know what condition Father's home is in. And, though she learned of their address in January 2018, she testified that there "was no point of going out to the home" because, "in January, we were getting ready for trial, but it kept getting reset and reset and reset."

         Father's plan also ordered him to "participate in Individual Therapy and address his role and responsibility in the current CPS case and explore family[-]of[-]origin issues." The Department would pay for the therapy. Though the therapy facility tried to contact him, Father never started the therapy.

         The plan also ordered Father to "submit to a Psychological Evaluation and provide honest and accurate information in order to determine what psychological needs exist" and to "follow all recommendations from this evaluation." The Department would pay for this service too. Father "was referred for that service" but did not complete it.

         Father's plan originally required him to (1) "participate in Anger Management in order to discover healthy alternatives to deal with and express anger"; (2) "participate in Domestic Violence Abuse Therapy to become educated about the risk and [e]ffects that domestic violence can have on both [Mother] and [C]hild's emotional, physical[, ] and mental states"; and (3) "participate in BIPP (Battering Intervention and Prevention Training) for perpetrators of domestic violence" to "provide [him] with knowledge and understanding of domestic violence and the effects on it[]s victims." At trial, however, the Department's counsel announced what she referred to as a "stipulation": though "Father was to do BIPP, domestic violence, and anger management," "anger management and domestic violence were not actually part of his service plan" and "were stricken from his plan." Among these three original requirements, then, this left "only the BIPP class that he was ordered to complete."

         King testified that Father presented his BIPP certificate to the court but that "he did not give that certificate to" her. And she testified that the judge acknowledged that Father had completed the BIPP requirement.

         In sum, Father understood his plan's requirements-King discussed them with him. She recalled his telling her "that he was unable to successfully complete his service plan because somebody tried to kill him" when a person shot him. King does not believe that "placing [Child] in an environment where somebody's trying to kill [Father]" is "a safe and stable environment for [Child]."

         2. Mother's Family Service Plan

         King also testified extensively about Mother's family service plan. Her plan ordered her too to "participate in random UA/hair follicle testing" for illegal drugs. She did not participate, despite being told about the requirement. As with Father, King admitted that the Department does not allege that Mother ever used drugs, nor had King read anything in the case file indicating that drugs were "an issue that brought [Child] into care." King only "sent [Mother] one time" for a drug test. There is no record of any drug-test result.

         Mother's plan also ordered her "to maintain monthly face[-]to[-]face contact with Caseworker, as well as consistent bi-weekly or weekly contact with [Caseworker] to update on service progress." King testified that Mother "was not" "successful in that." King and Mother did not have "consistent contact"-they spoke only three times. They made contact in January 2018 and then had "more of a phone-tag type of deal" through March. King admitted, though, that "there was never any period of time where [Mother] completely disappeared and [King] didn't know where [she] was and was completely unable to make contact with her."

         Mother's plan also ordered that she "participate in parenting classes" for six to eight weeks. King did not "talk with [Mother] about enrolling and completing parenting classes."

         Like with Father's plan before the requirement was stricken, Mother's plan ordered her to "participate in Domestic Violence Abuse Therapy to become educated about the risk and [e]ffects that domestic violence can have on both her and [C]hild's emotional, physical[, ] and mental states." Mother was to participate in this because of her relationship with Father, but Mother did not complete the service. To King, this service was "especially important" because "it would show [Mother's] ability to be able to be protective against [sic] her son; not only just herself, but also her son." After discussing it with Mother in January 2018, King did not "discuss with [Mother] completing that task" again.

         The plan also ordered Mother to "maintain stable, clean, and clutter[-]free housing," including "giv[ing] [the caseworker] a copy of her lease as proof of residency" or, if in a month-to-month rental, "giv[ing] [the caseworker] a letter from her management company stating her rent amount and [that she] [i]s a resident of the apartment." Mother did not provide King with her lease agreement or "request for [King] to come to the home and view its suitability for [Child] to be placed back in that home." King also did not discuss Mother's living situation with her. But, according to King, an "investigator" told her that "the home was not appropriate," "messy," and "dirty." However, King did not "talk with [Mother] about that" and "didn't make any arrangements to view that home as an appropriate placement."

         At some point "during the pendency of this case, [Mother] was in a rehab facility," which the Department considers not to be "stable housing for a child to be placed" in. This was not a drug rehab but a medical rehab-Mother had an infection in her legs. Otherwise, Father and Mother lived together in an apartment for "[t]he majority" of the time the Department's current involvement with Child was ongoing.

         Mother's plan in particular ordered her not to "allow [Father] access to the home to prevent [C]hild from being exposed to the risk of physical abuse and domestic violence." Theirs was an "ongoing volatile relationship" and was "a concern for the agency." It caused King concern that "at least in the last several months the police have still been called to their home four or five times." This suggested to King "that though [Father] has finished his BIPP class, perhaps there is more that he can learn regarding domestic violence." "[C]oncerns with ongoing domestic violence between" Father and Mother caused King concern "[b]ecause we don't know what type of environment the home is in if we place the child back in the home."

         Mother's plan also ordered her to "participate in Individual Therapy and address her role and responsibility in the current CPS case and explore family[-]of[-]origin issues." Mother did not "complete that service," though it was offered to her at no cost. King did not talk with Mother about it.

         The plan also required the "Psychological Evaluation" for Mother and that she "provide honest and accurate information in order to determine what psychological needs exist." This too would be free of cost to Mother, but King did not "get an assessment back from any provider" about such an evaluation taking place. King did not make a referral to Mother for such an evaluation.

         3. Family History & Current Circumstances

         In addition to explaining the parents' family service plans and whether they complied with them, King also testified about Father's, Mother's, and Child's history and current circumstances. Child had been the subject of an earlier proceeding with the Department. Father and Mother "completed all of their services" in that instance, "[a]nd so as a result they were able to get their children back."

         This time, Child has "ongoing medical needs": "a G-tube" and "learning to eat solid food." So "the environment that he's living in" must "be clean and sanitary so that his G-tube is not infected." Mother and Father "have been aware that [Child] was on a G-tube and that he is getting occupational and speech therapy . . . and physical therapy." But King does not recall talking with Mother "about her going and learning how to care for [Child]." King did not "discuss with [Father and Mother] at any time that they would need-particularly [Mother]- would need a special training on how to care for [Child]."

         "During the pendency of this case," Father and Mother did not "visit with [Child]," nor "[d]id they request visits with [Child]," "outside of the hospital" until about 18 months into the case. Visitation was available to them though.

         Then, in March 2018, Father asked to visit Child. He made more such requests after March too. And Mother requested a visit with Child "[i]ndirectly through [Father]" about two or three times, beginning in May 2018. King refused to set up a visit "[b]ecause, at the time, they had not had contact with [Child] in over a year."[4] King met with her supervisor and with Child's attorney ad litem about the request for visits. Afterward, she told Father that the Department "was not in agreement to continue his visits but that, if he wanted to, he should ask his attorney to have a special hearing." King admitted that, "if [Father and Mother] asked to see [Child] even to this day, if the court stated that they could see their child, and they asked to see their child, [King] would have to at least make some type of accommodations so they could see their child." Neither Father nor Mother asked the court to order visits.

         Father told King that "he did not want to visit the child as long as [the visit] was at a CPS office." According to King, Father also told the court that he did not want to visit because "it would be hard on him to have to see [Child] when [Child] goes back home to a foster home." King testified that Mother gave similar reasons.

         Father and Mother have not "been able to bond with [Child]" because they failed to visit him. Mother "has not had any contact with" Child while King has been the caseworker. Neither Father nor Mother gave birthday or Christmas gifts to Child. They did not "ask ...


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