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In re M.R.

Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg

August 30, 2019


          On appeal from the 36th District Court of Bee County, Texas.

          Before Chief Justice Contreras and Justices Hinojosa and Tijerina.



         In this parental termination case, appellant N.H.[1] challenges the termination of his parental rights to his daughters M.R., a three-year-old, and M.H., a two-year-old. By three issues, N.H. challenges: (1) the legal and factual sufficiency of the evidence supporting a finding that it was in the best interests of his children to terminate the parent-child relationship; (2) the legal and factual sufficiency of the evidence supporting termination under Texas Family Code § 161.001(b)(1)(D), (E), (F), (N), and/or (O); and (3) whether he received effective assistance of counsel. We affirm.

         I. Background

         N.H. and D.R. are the father and mother, respectively, of M.R and M.H.[2] In July of 2017, Family Based Safety Services (FBSS), a division of the Texas Department of Family and Protective Services (the Department), opened a case in Goliad County, Texas after receiving reports regarding possible neglect.

         A. Testimony from Department Employees

         Rebecca Villarreal, an FBSS worker, testified at the permanency trial. She stated that M.R. and M.H. were referred to her local office for services when their mother, D.R., moved to Beeville, Texas in October 2017.[3] While assisting this family, Villarreal learned that D.R. refused to let N.H. visit his daughters because of previous allegations of domestic abuse. Villarreal also testified that N.H. had not been paying child support, and he repeatedly refused to let the Department know the address of where he was living. The Department offered parenting and domestic violence education services to N.H., but he refused them all.

         After three months of attempted services, a court appointed the Department as temporary managing conservator of the girls on January 3, 2018. The impetus for removing the girls from their mother's home was that they were arriving to daycare unwashed, in soiled clothing, and M.H.'s vaginal area had a "foul odor" even after daycare employees changed her diaper. M.R. and M.H. were put into a foster placement due to this neglect. The Department did not consider placing them with their father because it did not know if he could provide a safe and stable living environment for them, given that he refused to provide his address. Further, the Department did not know with whom N.H. was living. Villarreal further testified that N.H. had a prior criminal history of violating protective orders.

         Claudia Rodriguez was the first Department case worker assigned to this case. Rodriguez explained that the Department creates a family plan of services for the parents with the goal of family reunification. The family plan is typically a collaborative effort by both the Department and family to coordinate needed or requested services, such as counseling or housing and job placement assistance. N.H. did not attend his conference. The Department, therefore, established the following plan for him: (1) cooperation with the Department; (2) drug assessments, including random drug testing; (3) employment; (4) a psychosocial evaluation; (5) housing; (6) regular visitations with the children; and (7) paying child support.

         N.H. received this plan in the mail and discussed it with Rodriguez over the phone. He, however, failed to fully comply with the plan. For example, N.H.'s communication with the Department was inconsistent. He did not pay child support for his children. He failed to provide accurate documentation of where he lived. Rodriguez testified that she visited a home that N.H. claimed was his, but she soon learned it was his ex-sister-in-law's home and that he did not live there. Regarding employment, N.H. provided one pay stub from where he was working but shortly thereafter changed jobs. Rodriguez did note, however, that she observed some of N.H.'s visits with his girls and that the girls and their father seemed to love each other and share a bond.

         Rodriguez further testified that N.H. failed to appear for scheduled drug tests in February, June, and July of 2018. Rodriguez suspected that N.H. was doing drugs, though, based on some accidental text messages she received from him. On September 10, 2018, Rodriguez texted N.H. that she would "not be able to do a visit with [him] this Friday." N.H. responded, "Okay. Let me [k]now when your [sic] ready." Then, N.H. wrote, "Can u bring t[w]o grams on Staples and Morgan[, ] the store?" The next text from N.H. read, "Of that glue PVC that[']s all I need[.] I have one more [p]ipe to glue." And the final text from N.H. stated, "Sorry wrong person trying [to] let my boss [k]no[w] that I need PVC." Rodriguez believed that N.H. was soliciting two grams of an illegal drug, as she knows that PVC glue is not measured in grams. On September 21, 2018-about ten days after those texts-N.H.'s hair follicle tested positive for cocaine.

         Maria Garza, the second Department case worker assigned to this case, testified that N.H. only attended five out of eighteen potential visits with his children in the four months prior to trial. She, like Rodriguez, also reported that she was unable to verify N.H.'s home address, despite repeated requests for that information. Garza stated that N.H. further failed to attend his Battering Intervention and Prevention Program, which the Department arranged for N.H. given D.R.'s assertions of past domestic violence and N.H.'s previous criminal history of violating protective orders. Finally, Garza reported that N.H. admitted using drugs when he was grieving his mother's death.

         B. Testimony from Counselors

         Jinnelle Powell is a licensed professional counselor who contracts with the Department to provide counseling services. The Department arranged for N.H. to receive counseling from Powell, but she discharged N.H. twice due to his inconsistent attendance. According to Powell, N.H. only attended four out of fifteen scheduled sessions. Powell testified that, based on her psychosocial assessment, she believed N.H. might have Bipolar Disorder I. She was concerned about some of the "grandiose" ideas he shared in counseling: although he was unemployed, did not have stable housing, and did not have consistent contact with his children, he "felt he was a really great parent and that he was doing everything that he could to be a good parent."

         Octavio "Toby" Flores is a licensed chemical dependency counselor. Initially, Flores only provided drug counseling to N.H., but eventually Flores's contract included anger management and parenting services as well. Flores testified that although N.H. initially denied drug use, he eventually admitted to it. N.H. shared with Flores that he used drugs to cope with the stress of not being with his children and also his mother's death. Flores did not believe N.H. had mental disabilities and testified that he hoped N.H. could be reunited with his children. Flores admitted, though, that N.H. did not have stable housing or employment and that those factors would be necessary to provide for the children.

         C. Testimony from the Mother, D.R.

         D.R., M.R. and M.H.'s mother, testified that she has had seven children in her life.[4]D.R. testified that her main source of income was from disability benefits she receives for her anxiety, depression, and back problems. Regarding the Department's case involving M.R. and M.H., D.R. admitted that there was a three-month period when she did not take her prescribed medications to manage her mental health, so she was not caring for the girls like she should. She admitted to smoking marijuana in the past but denied using it within the last year. She acknowledged posting drug-related updates on Facebook, however, such as "F--- love. Get high" and "smoke weed at my funeral." D.R. admitted taking her two young daughters to her father's house at one point when she did not have housing, even though D.R.'s father had sexually abused her as a child. She explained that it "was the only place [she] had."

         D.R. explained that she did not allow N.H. to be in his children's lives because he "was abusive." She testified that "he was always hitting [her] and making [her] lip fat." She reported that he would strike her in the face, give her bruises all over her body, and break her phones. D.R. also testified that he would yell at M.R. when she was a baby and crying. D.R. was afraid N.H. would hit the girls. She confirmed that he never paid child support to her for M.R. or M.H.

         D. Testimony from Defendant, N.H.

         N.H. testified that D.R. and the girls used to live with him. He admitted that he would yell at D.R. because "she was always having my babies dirty or not taking them a bath." He denied ever being violent with D.R. and instead stated that she had once attacked him with a knife. N.H. testified he had six children total with three different mothers. The evidence showed that he twice violated a protective order against the mother of his three oldest children. The evidence also showed that he had been violent with the mother of his fourth-oldest child, a son with special needs.

         N.H. testified that he tried to visit M.R. and M.H. while they were in foster care but could not always make the scheduled visitations. He listed the death of his mother, transportation issues, and a robbery of his home as the reasons for these missed visits. When he did visit with his daughters, he shared that he played with them, fed them, and hugged them. He stated, "they are babies" and he "show[ed] them a lot of love." He would bring them food, toys, and clothing.

         N.H. testified that he has had four jobs since the Department's case began, doing air conditioning, plumbing, and electrical work. His current employer currently provides his housing. He shares this housing with fifteen other men and was "not going to take [his] kids there." He testified that if the court awarded him custody of his girls, he would move in with a female cousin who had a two-bedroom home in Rockport, Texas. He opined that his cousin and her young son would share one bedroom while he and his girls would share another.

         N.H. explained that the reason he tested positive for cocaine was because he was smoking marijuana and "it was laced." He testified that he normally does not use drugs because his employers conduct random drug tests, but that he used cocaine after his mother passed away. He explained, "I was depressed, I had drank a little bit, and I made a wrong choice, wrong decision. I'm not perfect." According to N.H., he was non-compliant with the Department's family plan because he was "being stubborn" and he "didn't feel like [he] should pay for [D.R.'s] mistakes." He believed that D.R. was the reason his daughters were in foster care, not him. He testified, "I don't see the importance of these classes getting done. For what? What is that going to change? I'm not the one that made the mistakes, and the reason we're here, I'm not that person, so why blame it on me or act like it was me?" N.H. did, though, acknowledge that the Court explained to him that following this family plan of service was what he had to do to get his daughters returned.

         N.H. testified that D.R. used cocaine and marijuana and was unstable. He described her as going "in and out of these crazy states" and admitted that it was a mistake to leave his girls alone with her. Additionally, he acknowledged that he did not pay child support and blamed the attorney general for not taking it out of his paycheck. He also admitted to not paying child support for his older five children.

         E. Testimony from the Foster Mother

         M.R. and M.H.'s foster mother, Sylvia Garcia, testified at trial. She stated that she has had the girls in her home for a year and two months. She has fostered nearly thirty children in her home over ten years.

         Garcia reported that both girls arrived at her home with lice. M.H., a little over a year old when she arrived at her foster placement, was "very developmentally delayed." According to Garcia, she had poor trunk control. M.H. only sat and did not crawl or walk. She also could not chew or swallow very well. Garcia stated that if she showed M.H. a toy, M.H. would not grab it like a normal baby.

         M.R. was similarly delayed. Garcia testified that the little girl was "very fearful" and "anxious." She had a poor appetite and would constantly grab her stomach. Garcia had trouble changing her diaper because M.R. would get scared when Garcia got too close. Garcia reported that M.R. would flap her hands, would only babble and not talk, and did not know how to play: these characteristics caused Garcia to request that M.R. be tested for autism. M.R. was defiant at school and displayed learning difficulties.

         Garcia reported that M.H.'s development now seems on target for her age. M.H. walks, talks, and is loving and affectionate with her older sister. M.R. still has anxiety and is defiant, but her health and development have improved. Garcia believes the girls should remain together. She states they "both need a place where they are going to be in an environment where they will be paid attention to so that they can thrive. They need to thrive." Regarding N.H., Garcia stated that M.R. is excited to see her father but M.H. does not know who he is and has no real connection to him.

         F. Testimony from ...

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