Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg
IN THE INTEREST OF M.R., R.R., P.R., C.R., B.R., M.R., M.H., CHILDREN
appeal from the 36th District Court of Bee County, Texas.
Chief Justice Contreras and Justices Hinojosa and Tijerina.
LETICIA HINOJOSA JUSTICE.
parental termination case, appellant N.H. 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
and D.R. are the father and mother, respectively, of M.R and
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.
Testimony from Department Employees
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. 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.
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.
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
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.
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.
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.
Testimony from Counselors
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."
"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.
Testimony from the Mother, D.R.
M.R. and M.H.'s mother, testified that she has had seven
children in her life.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."
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.
Testimony from Defendant, 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
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.
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.
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
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
Testimony from the Foster Mother
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.
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.
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.
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.
Testimony from ...