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In re K.D.B.

Court of Appeals of Texas, First District

August 29, 2019


          On Appeal from the 312th District Court Harris County, Texas Trial Court Case Nos. 2014-61822 and 2003-69065

          Panel consists of Justices Keyes, Higley, and Landau Justice



         Appellant A.L.B. (Mother) moved for rehearing of our March 12, 2019 opinion. We deny Mother's motion for rehearing, but we withdraw our March 12, 2019 opinion and issue this opinion in its stead. The Concurring and Dissenting

         Opinion dated March 12, 2019, and our judgment dated March 12, 2019, remain unchanged.

         In these consolidated cases, the Texas Department of Family and Protective Services (DFPS or the Department) sought to modify the conservatorship and possession exercised by appellant A.L.B. (Mother) over her two minor children, K.D.B. (Kevin) and L.R.A. (Laura).[1] The trial court granted DFPS's petition to modify and named Kevin's father, Ken, sole managing conservator over Kevin and named Laura's father, Lance, sole managing conservator over Laura. The trial court named Mother possessory conservator over both children and required that her visitation with the children be supervised.[2] In three issues on appeal, Mother contends that the trial court erred by (1) finding that a material and substantial change in circumstances had occurred justifying modification and that the modification was in the children's best interest; (2) appointing Ken and Lance as sole managing conservators and Mother as possessory conservator; and (3) requiring that Mother's visitation with the children be supervised.

         We affirm.


         Laura was born in July 2003. In December 2003, the trial court entered an order adjudicating Lance as Laura's biological father. In this order, the trial court named Mother and Lance as joint managing conservators over Laura and gave Mother the exclusive right to designate Laura's primary residence. The trial court imposed a standard possession order setting out Lance's possession of Laura and ordered Lance to pay current and retroactive child support to Mother.

         Kevin was born in August 2012. In October 2014, the Texas Attorney General's Office filed a petition to establish the parent-child relationship between Kevin and Ken. After Ken, Kevin, and Mother all underwent DNA testing, the trial court entered an order in April 2015 adjudicating Ken as Kevin's biological father and establishing a parent-child relationship between Ken and Kevin. The trial court appointed Mother and Ken as joint managing conservators over Kevin and gave Mother the exclusive right to designate Kevin's primary residence. The trial court imposed a standard possession order and required Ken to pay current and retroactive child support to Mother.

         On May 30, 2017, DFPS moved to modify the conservatorship orders for both Laura and Kevin and, in the alternative, sought termination of Mother's, Lance's, and Ken's parental rights.[3] DFPS alleged that the circumstances of the children or a conservator had materially and substantially changed since the trial court entered the December 2003 order pertaining to Laura and since the April 2015 order pertaining to Kevin. After an adversarial hearing, the trial court appointed DFPS as Laura's and Kevin's temporary managing conservator.

         DFPS created a family service plan for Mother, Lance, and Ken. At an August 2017 status hearing, the trial court approved the service plan and adopted the plan as an order of the court. The service plan set out the allegations and referrals that led to DFPS's involvement with Mother and the children. The service plan required Mother, Lance, and Ken to participate in a substance abuse assessment and submit to random drug testing. The plan also required each of the parents to maintain regular employment, to refrain from engaging in illegal activities, to maintain safe and stable housing, to participate in a psychosocial evaluation, and to participate in parenting classes. The service plan further required Mother to participate in Narcotics Anonymous/Alcoholics Anonymous ("NA/AA") meetings at least twice per week, to participate in individual counseling until discharged, and to participate in family counseling with the children.

         The trial court held a final bench trial on the cases in August 2018. Candis Benoit, the DFPS caseworker assigned to the cases, testified that Laura had been living with Lance since March 2018 and that Kevin had been living with Ken since June 2018. She stated that she had no concerns with the children living with their respective fathers and that the children's fathers were meeting all of the children's needs. Kevin had had some behavioral issues during the pendency of the case, but both he and Laura were doing well in their placements. Benoit stated that both Lance and Ken had completed all services required of them by the service plan. She testified that the Department was requesting that the children remain in their current placements, that Lance be named Laura's sole managing conservator, that Ken be named Kevin's sole managing conservator, and that Mother be named possessory conservator of both children.

         Benoit agreed with DFPS's counsel that the cases "started out as participation in services," but "[t]here were some issues with compliance and the case escalated to a conservatorship case." She stated that a service plan was in place for Mother. Mother completed the required psychological evaluation, and she participated in substance abuse treatment at a facility called Career and Recovery, but she was unsuccessfully discharged from that program in March 2018. Mother participated in drug testing at Career and Recovery, but she did not participate in any of the random drug tests requested by DFPS. Mother's drug testing results for Career and Recovery demonstrated that she tested positive for PCP and she tested positive for marijuana in May 2018. Benoit testified that, to her knowledge, Mother had not participated in any other substance abuse treatment program after being discharged from Career and Recovery.

         Benoit further testified that Mother still had several services left to complete, including participating in NA/AA meetings, parenting classes, anger management classes, and individual and family counseling. Mother had to demonstrate that she could maintain safe and stable housing, and she needed to successfully complete substance abuse treatment. Benoit stated that DFPS's major concern with Mother was her sobriety. DFPS also had concerns arising out of Mother's psychological assessment, during which she made "threatening statements about the folks in this case." Due to DFPS's concerns about Mother's mental health and her sobriety, the Department believed that keeping the children with their respective fathers was in their best interest.

         With respect to Mother's visitation with the children, Benoit stated that, the last time she had spoken with Lance and Ken, they were not comfortable supervising Mother's visitation. The Department thus requested that if the fathers and Mother could not come up with a mutually-agreeable person to supervise Mother's visitation, the visitation should be done through a supervisory program. Benoit also testified that Laura, who was fifteen at the time of trial, had a cell phone and occasionally communicated with Mother in that manner. Benoit believed that it was in Laura's best interest to allow phone communications with Mother to continue and that it was up to Lance to make sure the communications were appropriate. She stated that the Department was not seeking to prevent electronic communication between Mother and Laura, and she agreed that Laura loved Mother and wanted to stay in contact with her.

         Benoit also agreed with Mother's counsel that, throughout the pendency of the case, Mother had consistently wanted to see her children, and she had been present for every court hearing. Benoit agreed that Mother had had Kevin enrolled in school. She also agreed that Mother had never indicated that she wished to harm Kevin or Laura. Benoit testified that if Mother wanted to meet up with Laura at the mall, for example, it would be up to Lance to decide whether to allow that, but the Department did not want Mother meeting with Laura alone due to Mother's "behaviors on top of the positive drug tests that we have received through the provider that she went to." Benoit stated that Mother had informed her that she worked as a caregiver for the elderly, but Mother had not told Benoit that she had a stable place to live.

         On examination by Ken's counsel, Benoit testified that Ken had completed all services required by the service plan, that Ken had demonstrated that he was benefitting from the services provided to him, and that he felt as though participating in the services had made him a better father. She testified that Kevin is very happy in Ken's home and that he is thriving there. She stated that Ken's home was clean and stable, and Ken and his partner had demonstrated that they were able to provide for Kevin's emotional and physical needs. She agreed that Ken had expressed to her that he wants Kevin to complete school and go to college, and she had made Ken aware that Kevin would be eligible for a college tuition waiver. Benoit also agreed that Ken wants to avoid "drama" with Mother and that he believed it would be best for him and Mother to mutually agree on someone to supervise Mother's visits with Kevin. Benoit agreed that Ken did not want to prevent Mother from having access to Kevin.

         Ken testified that Kevin had been living in his home for a couple of months, that everything was fine, and that Kevin got along well with the other children in his home. Ken did not have any concerns about Kevin being placed with him on a permanent basis, and he believed it would be in Kevin's best interest for him to remain in Ken's home. Ken stated that he had the same concerns as Benoit with regard to Mother having unsupervised visitation with Kevin, and he hoped that he and Mother could agree on someone to supervise Mother's visitation. Upon questioning by the trial court, Ken agreed that if the court modified the conservatorship order to give him primary custody of Kevin his child support obligation should cease. He stated that he had not thought about whether Mother should be required to pay child support to him.

         Ken agreed with Mother's counsel that Kevin loves Mother and that Mother loves Kevin. He did not have any fear that Mother would harm Kevin. He would be willing to think of people who could supervise Mother's visitation with Kevin, and he named his younger sister as an example. He stated that he did not wish to keep Mother from seeing Kevin or from spending holidays with him.

         Lance testified that Laura had been living with him and his mother, Laura's grandmother, since March 2018, and he had no concerns with her remaining in his house. Lance also stated that he was not comfortable supervising Mother's visitation with Laura, but he mentioned an aunt as a possible person who could supervise, and he understood that if he and Mother could not agree on a supervisor, a supervisory program would be used. He also shared the Department's concerns about Mother's having unsupervised visitation, and he believed that supervised visitation would be in Laura's best interest. Lance also testified that Laura and Mother communicated by cell phone, that the communications had been appropriate so far, and that he would stop the communications if they became inappropriate. Lance also requested that his child support obligation stop, and he stated that he would "leave that up to the Court to decide" whether to impose a support obligation on Mother.

         Lance agreed with Mother's counsel that Laura was not afraid of Mother and that they communicated frequently. Although he had no concern that Mother, if left unsupervised with Laura, would kidnap her or leave the state with her, he still was not comfortable with Mother's having unsupervised visitation, even if that visitation occurred in a public place like a mall.

         Lance also testified that Laura and Kevin were close and that Laura wished to maintain her relationship with Kevin. Lance stated that he would help ensure that Laura and Kevin could stay in contact, and he agreed to work with Ken in that regard.

         Mother testified that she did not agree that Lance and Ken should have primary custody of Laura and Kevin, stating, "They could have had them a long time ago. They left. They chose to live their life. And now it's about money and they doing what they wanting them to do." Mother stated, "All CPS is worried about is a check" and "[k]eep[ing] the kids in the circle so they can get paid." She did not agree that supervised visitation was necessary because she loved the children and she would not hurt them. She also testified, "I made their program [Career and Recovery], I just never did go get discharged. I have somewhere to stay and I work and I'm not doing nothing," referring to using drugs.

         Mother testified that she worked for a home delivery company and as a caregiver for the elderly and that she had two patients at the time of trial. She stated that she was able to take care of her children. She also stated, "I want to see my kids. I don't need nobody around me and my kids. [The children] don't want that either. Nobody wants that but her back there [Benoit] to keep her money flowing to pay for her new truck." Mother stated that she and Lance could work together with regard to Laura, and she indicated that she had had regular visitations with Laura, but she had not seen Kevin since he had been placed with Ken. With respect to completing the substance abuse treatment program, Mother testified:

Yes, I did what I needed. I took out my time and went and did that, lost money doing that. Losing money every time I come here. While everybody else making their money clocking they dollars, I'm losing money. Everybody want to keep this going to keep money going. But it's more-it's more than money. All this money that they done slung- my tax dollars slung around on therapists. No, it ain't nothing wrong with my kids but them. My daughter is just stressing because she don't want to be there. You know what I'm saying? All of this is-my kids not used to all of this. Ain't nothing wrong with my kids. You don't send kids to no doctor, you don't put kids on medicine without they momma knowing-without they mother consent.
So, she [Benoit] needs to watch the bad she doing with my kids. She needs to watch her kids, because what you do to somebody else comes back on you ten times. And I already told her I'm not worried about that lady back there. She . . . that is a paycheck to her. When this case over with it's going to be another child.

         Mother agreed that she could get along with both Lance and Ken for the children's sake, stating, "I don't have to like them to get along with them."

         On cross-examination, Mother testified that she can set her own hours at her job, working as much or as little as she wants, and that she makes between $25 to $40 per hour. However, Mother testified that she could not afford child support, stating, "I can keep taking care of my children because that's money I earn and he not getting." Mother had the following exchange with Ken's counsel:

Q. [Mother], you can certainly afford to pay child support?
A. No, I can't.
Q. Why can you not afford that?
A. Because if it come down to pay child support, I ain't going to work because I'm not fixing to give them a dime. I can take care of my own kids. I don't need nobody to raise them up or taking care my kids for me when I been doing it and I'm going to keep doing it.
Q. So, you're able to make-
A. So, if it's money you aiming for, I'm through with that conversation, move to the next.
Q. So, you're able to work full time at 25 to $40 per hour, but if you're ordered ...

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