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In re C.H.

Court of Appeals of Texas, Ninth District, Beaumont

October 17, 2019

IN THE INTEREST OF C.H. AND A.H.

          Submitted on August 19, 2019

          On Appeal from the 418th District Court Montgomery County, Texas Trial Cause No. 17-09-11182-CV

          Before McKeithen, C.J., Kreger and Johnson, JJ.

          MEMORANDUM OPINION

          STEVE McKEITHEN CHIEF JUSTICE.

         K.K. appeals the trial court's order terminating her parental rights. In seven issues, K.K. challenges the legal and factual sufficiency of the evidence supporting the best interest finding, as well as the termination grounds specified in section 161.001(b)(1)(D), (E), (O), and (P), and complains that the trial court abused its discretion by not allowing three witnesses to testify on K.K.'s behalf and not granting additional time to place the children with family. See Tex. Fam. Code Ann. § 161.001(b)(1)(D), (E), (O), (P), (b)(2). We affirm the trial court's order terminating K.K.'s parental rights.

         BACKGROUND

         On March 4, 2019, the trial court called the case for trial. K.K.'s counsel stated that she was not ready to proceed with trial and asked for a reset, but counsel stated that she was ready to proceed as to status documents. The Department called K.K. to the stand, and she testified that she is the children's mother and provided the children's dates of birth. The trial judge then stated, "As much as I hate to do it, everybody announced ready and we started evidence in the matter, but I really think we['d] better recess. . . ." The trial court noted that K.K.'s counsel was not feeling well and reset the case.

         When the proceeding resumed on May 15, 2019, the trial court conducted a hearing on K.K.'s motion for continuance, in which K.K. asserted that a home study of the children's maternal grandmother had been approved. K.K.'s counsel stated that she had not seen a copy of the study, but requested time to obtain a copy and then suggested that the case could "perhaps . . . proceed to mediation[.]" The attorney for the children's father, J.H., (who is not a party to this appeal) joined in the motion and asserted that continuing the case would be in the children's best interest. The attorney for the Department argued that the case had been pending for twenty months, and that the motion for continuance had no verification or affidavit regarding the source of the information about a home study of the maternal grandmother, from whom the information came, or precisely what information K.K.'s counsel had received. The Department's counsel also asserted that the Department was unaware of any approved home study for the maternal grandmother.

         K.K.'s counsel called Department case worker Victoria Warmuth to testify at the hearing. Warmuth testified that she had been in contact with the children's maternal grandmother, who resides in Florida, as well as the case worker in Florida. Warmuth explained that she did not receive notice of a home study regarding the maternal grandmother being approved while she was the case worker. Warmuth testified that because the maternal grandmother's own children had been removed and she had been involved with "several people who have been physically violent with her," Warmuth had concerns about placing the children with her.

         CPS conservatorship caseworker Brenda Lara testified that she is the current caseworker for the children. Lara testified that as of the day before trial, the Department had not received the results of the home study regarding the maternal grandmother.

         The Department's supervisor Kimberly Rodgers-Porter[1] also testified at the hearing on the motion for continuance. Rodgers-Porter testified that the Department had not received notice that a home study had been approved. According to Rodgers-Porter, the study was "still pending." Rodgers-Porter testified that she believed moving forward with the trial was in the children's best interest. Rodgers-Porter testified that the allegation in K.K.'s motion for continuance regarding a relative home study was untrue.

         After Rodgers-Porter testified, K.K.'s counsel asked to call the maternal grandmother and the Department's supervisor in Florida by phone as witnesses, which the trial court denied. K.K. then called CASA's guardian ad litem, Susan Munkres. Munkres testified that the Department was still awaiting a determination regarding the maternal grandmother. Munkres also testified that the maternal grandmother has "a history of at least 15 years of abusive relationships with men." The trial judge noted that the issue at trial would be whether parental rights should be terminated and denied the motion for continuance.

         When trial on the merits began, the Department called CPS investigator Daniel Willbur to testify. Willbur explained that when the case was assigned to him, the Department was concerned that the children's father, J.H., had been using them "to make pornography[, ]" and the FBI was investigating. Willbur testified that he prepared the affidavit in support of removal. According to Willbur, K.K. was incarcerated on a drug-related charge at that time, and she refused to tell Willbur where the children were. Willbur explained that when he spoke with K.K., she stated that she did not believe J.H. would have committed the crimes of which he was accused.

         K.K. testified that she stopped using drugs when she was pregnant with A.H., but she resumed using drugs in 2017 after J.H. was incarcerated. K.K. explained that in 2017, she had lost everything and was living in her truck with the children. According to K.K., the longest period of time she has held a job since the children's birth is six months. K.K. testified that in August 2017, she was arrested for manufacturing and possession of methamphetamines, and she pleaded guilty and received ten years of deferred adjudication community supervision. K.K. explained that she was told that A.H. tested positive for methamphetamine. K.K. testified that she was incarcerated when the Department became involved. K.K. also testified that she was charged with criminal trespass in December 2017. K.K. explained that she has been diagnosed with post-traumatic stress disorder, anxiety, and depression. According to K.K., the children were in J.H.'s care when the FBI investigation began. K.K. testified that if she had known about the pornography, she would not have left the ...


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