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In re A.B._G

Court of Appeals of Texas, Second District, Fort Worth

August 8, 2019

In the Interest of A.B.-G. and A.B.-G., Children

          On Appeal from the 231st District Court Tarrant County, Texas Trial Court No. 231-583258-15

          Before Kerr, Birdwell, and Womack, JJ.

          MEMORANDUM OPINION

          ELIZABETH KERR, JUSTICE

         After a bench trial, the trial court terminated Mother's parental rights to her then-11-year-old twins, Austin and Angela.[1] On appeal, Mother asserts that the evidence does not support the trial court's best-interest and grounds findings. We affirm.

         The Findings

         The Court found by clear and convincing evidence that

• termination of the parent-child relationship between Mother and the children was in the children's best interest. See Tex. Fam. Code Ann. § 161.001(b)(2).
• Mother had knowingly placed or knowingly allowed the children to remain in conditions or surroundings that endangered their physical or emotional well-being. See id. § 161.00l(b)(1)(D).
• Mother had engaged in conduct or knowingly placed the children with persons who engaged in conduct that endangered the children's physical or emotional well-being. See id. § 161.00l(b)(1)(E).
• Mother had been convicted or had been placed on community supervision, including deferred-adjudication community supervision, for being criminally responsible for the death or serious injury of a child under penal code section 22.04. See id. § 161.00l(b)(1)(L); Tex. Penal Code Ann. § 22.04 ("Injury to a Child, Elderly Individual, or Disabled Individual").

         Background

         A. Procedural

         1. The Department removed Mother's children.

         Nine-year-old Austin and Angela came into the Department of Family and Protective Services' care in November 2016 after Austin appeared at school with a bruised eye and attributed it to Mother's hitting him with a belt. The school nurse observed additional bruising on Austin's back and arm.

         2. Forensic interviewers met with the children.

         a. Austin described Mother's hitting him with a belt.

         A forensic interviewer at the Alliance for Children recorded her November 2016 interview with Austin during which he said that Mother had hit him "hard" with a leather belt in the face, striking his eye and causing it to swell. Initially, he described how Mother had hit him once on the back and how his backbone felt like it had been broken; later he said that she had hit him several times on the back. When shown photos of his injuries, Austin acknowledged other marks that Mother had left on his arms and shoulder from the same incident.

         Austin reported only one other similar incident, in which Mother had struck him twice on the palm of his hand. He acknowledged also having seen Mother give his sister Angela a "whupping." Despite everything, Austin expressed concern about Mother's getting in trouble.

         b. Angela also described Mother's beltings.

         A different forensic interviewer at the Alliance for Children interviewed Angela on the same day. Angela explained that Austin had misbehaved at the mall and that a few days later Mother had hit him with a belt. While Angela was in the bathroom at their home, she heard Austin screaming and Mother telling him to sit still. Angela then heard approaching footsteps; Mother entered the bathroom, swung the belt onto a rack, and helped Angela with her bath. The next morning, Angela saw that Austin had a big bump on his eye, and when she asked him what had happened, Austin's only response was, "Whupping."

         Angela explained that when Mother treated Austin this way, Angela usually hid in her bedroom. When asked how often she had to hide, she responded, "A lot." She hid because she was scared and because she hated it when Mother took a belt to Austin.

         And Austin was not the only child whom Mother hit with a belt. Angela described a time when she was riding her scooter and talking too much: Mother took off her belt, chased Angela into a parking lot, and struck her in the back. After Angela tried to hide in the bushes, Mother "whipped her belt way up high and swung through the bush," leaving a "scar" on the side of Angela's face. On another occasion, Angela took the last slice of a pizza, so Mother grabbed the belt and struck her, leaving marks on her arm and leg. Another time, Mother hit Angela with a metal spatula, causing Angela to bleed; after that, Mother stopped using a spatula.[2]

         3. After being indicted, Mother pleaded guilty to injury to a child.

         Indicted in 2017 for injury to a child, a third-degree felony, Mother entered a plea-bargain agreement and was placed on deferred-adjudication community supervision.

         4. Mother's monitored return failed.

         In April 2018, the trial court signed an "Order for Monitored Return" that set out a transitional period before placing the children back in Mother's home. But during the specified period, the trial court vacated the monitored-return order.[3]

         5. The Department then sought termination.

         The case proceeded to a bench trial in February 2019.

         B. Evidentiary

         1. Mother had a history of physically abusing her oldest child.

         Mother had three children. Austin and Angela, the youngest, had an older half-sibling, Sister, who was 22 years old at the time of trial.

         Mother had a history with the Department involving Sister, too: in 2007, the Department removed Sister (then aged 10 or 11) due to negligent supervision, and in 2009 after Mother had completed her services, the Department returned Sister to Mother. But four months later the Department removed Sister again, this time for physical abuse. After that second removal, Sister remained in foster care-at Sister's own request-until she aged out. Mother's psychological evaluation reported that Sister "had made repeated outcries of serious physical and psychological abuse from her mother" and that "[i]t [was] unusual for a child not to want to return to a parent[, ] and this [spoke] volumes."

         2. Mother acknowledged physically abusing Austin.

         Regarding Austin and Angela's November 2016 removal, Mother acknowledged striking Austin with a belt, pleading guilty to injury to a child, and being placed on deferred-adjudication community supervision. And at trial, Mother agreed that striking Austin was not discipline but was, instead, child abuse.

         3. Mother completed most of her services, but doubts persisted.

         At trial, the Department did not dispute that Mother had completed most of her services, and Mother assured the court that she would not hit her children again: "My plan is to not even ever think about spanking my children ever again. . . . I have verified that with several police officers-that it is the law. I never will spank my children ever again." From her services, Mother asserted that she had learned a new approach: "My plan is to use communication to speak with them and let them know and to reiterate again and communicate and reiterate and talk." But Mother also admitted that five times since 2006 the Department had found "reason to believe"[4]that she had physically abused her children, that each time she had promised not to do it again, and that she did it again anyway. When asked why anyone should believe her now, Mother responded, "[S]panking is not against the law. However, spanking does bring about an environment where CPS is called, the police are called[, ] and my children are removed from the home." She continued, "So going through that several times, I have learned other ways of communication . . . ."

         But several witnesses expressed doubt that Mother had changed.

         For example, Mother's probation officer denied seeing anything showing that Mother had learned to think and behave differently: "[E]verything [Mother] would say sounded like [a] textbook answer. It appeared that she wasn't grasping what I was asking her. . . . She wasn't giving any examples of what someone would learn." Further, Mother was not taking responsibility for hitting Austin; instead, she blamed Austin for moving and not being still. The probation officer explained that admitting to having done something and taking responsibility for it were not necessarily the same: "Externalizing blame. Blaming someone else for their actions. There's a criminal thinking error[] . . . if they minimize it or blame someone else, then they're not taking responsibility for their actions."

         The caseworker, too, said that Mother blamed the children: "At one point in December [2018] when we went over why the children came into care, she told me if her children were . . . well-mannered children, we wouldn't be in this situation." The caseworker doubted that Mother had changed: "[Mother] would tell me that that was her way of disciplining the children and that CPS wanted a perfect parent. She never really-from my conversations with her, she never really grasped that concept." Although Mother now used time-outs, which the caseworker commended, Mother still disciplined in ways that the caseworker found unacceptable. For example, Mother had forced Austin to do push-ups in a public area, and during Mother's last visit with the children, Mother had ended the visit early when the children disobeyed her.

         The push-up incident happened at a McDonald's only a month before trial. The court-appointed special advocate (CASA worker) described it: "[Mother] was upset with [Austin, ] and she made him get on the middle of the floor . . . and give her 20 pushups, and [Austin] was crying[, ] and obviously he was embarrassed[, ] and people saw it . . . ." This happened not once but twice. "[W]hen [Austin] finished his pushups and came back, [Mother] had him do it again for something else she was upset with."

         The CASA worker was concerned that physical abuse would continue. When asked to explain why, she responded, "The way that [Mother] reacts to the children. She can get real angry with them[, ] and she doesn't physically do anything to them, but she becomes agitated and yells at them there at the visit."

         Overall, the Department did not think the children would be safe returning to Mother.

         4. Mother's mental-health issues made her resist change.

         Mother's mental-health therapist thought that Mother had made progress "for her abilities" but opined that Mother needed to continue counseling. The therapist added that "CPS usually requests bigger changes, bigger progress in a quicker time frame than I thought [Mother] was able to make."

         A lack of intelligence was not the problem; Mother's therapist described her as "an intelligent lady who . . . talk[s] a good game" but nonetheless as having "a serious lack of insight into and understanding of her own behaviors" and as presenting "an extremely defensive profile." According to the therapist, "She prefers to give cerebral responses and avoids discussing her emotional reactions or how she feels about situations." In the therapist's psychological evaluation, she explained why Mother's ability to change was effectively stunted:

Although [Mother] attempted to present[] herself in a positive manner, some of the scales [are] still elevated and indicate her personality profile is associated with people who tend to think everyone is working against her, who have major trust issues, and are described by others as hypersensitive, resistant, and angry at times. People who produce such profiles are often viewed as guarded and distrustful. The profile is also associated with people who may have a marked overreaction to minor stress. They tend to have difficulty expressing their emotions in an adaptive manner and may alternate between being over-controlled and direct to having under-controlled emotional outbursts. [Mother] tends to make excuses for her poor decision making and accepts little responsibility for CPS being involved in her life once again. . . .
When a person tries to create a favorable impression of herself and takes a guarded and defensive approach to the test taking, this results in limited understanding of the person because they were not open to the process. . . .
. . . . [Mother] presented as an individual who has little insight into her motivations and shows little awareness of the consequences to others because of her behavior. Excessive disciplining can affect children negatively.

         As examples of Mother's lack of insight, the therapist pointed to how Mother answered two incomplete-sentence prompts:

• "If I could change one thing about myself it would be to be more perfect."
• "I failed to prove to CPS that I am not an abusive parent."

         "It is very hard," the therapist concluded, "to help someone when they don't see a need to make changes." And because of Mother's "lack of insight and defenses which keep her stuck," the prognosis for any type of psychological intervention was "poor."

         At trial, the therapist testified that Mother would sometimes admit to having abused Sister but later revert to blaming her for what Mother had done. This vacillating did not concern the therapist, though, because that was "somewhat normal behavior" for persons who were "dealing with situations like this" and because Mother's vacillating depended on Mother's mood and on what they were discussing.

         Mother told her therapist that she felt the Department was railroading her, and to an extent her therapist tended to agree. The therapist explained that after a parent completes the family-care plan, the Department would usually work toward transitioning the children back to the parent, something the Department did not do with Mother. But the therapist acknowledged that she had never observed Mother during Mother's visits with the children.

         5. Mother's visits with her children sparked emotional-abuse concerns.

         But those persons who had observed Mother interact with her children expressed at trial their concerns that she was abusing them emotionally.

         For example, the caseworker testified:

[Mother] would often belittle the children's accomplishments, . . . .
[Mother] would ask-you know, make them go to the restroom even though the children had stated they ...

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