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In re M.B.

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

November 14, 2019


          On appeal from the County Court at Law of Aransas County, Texas.

          Before Justices Benavides, Longoria, and Perkes



         By two issues, appellant K.B., whose parental rights to M.B. (M.B.1) and M.B. (M.B.2), [1] were terminated, challenges the legal and factual sufficiency of the evidence supporting the grounds for termination and supporting a finding that termination was in the children's best interest. See Tex. Fam. Code Ann. § 161.001(b)(1)(D), (E), (O). K.B.'s parental rights to a third child, D.B. were not terminated. We affirm.

         I. Background

         A. Removal

         In May 2018, the Department of Family and Protective Services (the Department) filed a petition seeking conservatorship of three children, D.B., M.B.1, and M.B.2, ages fifteen, fourteen, and twelve, respectively. Their father is R.B. D.B. and M.B.2 were removed after K.B. overdosed on prescription pills and was hospitalized on April 20, 2018. M.B.1 was staying with R.B. at the time. Until M.B.2 called the local police department on April 27, 2018, while K.B. was hospitalized, the two children had been left in the care of their paternal grandfather and their mother's boyfriend, both of whom drank excessively and were threatening towards them. M.B.2 reported to the local police department that they did not know how long K.B. would be gone or where she was hospitalized.

         Before K.B.'s overdose, the children lived with their mother and paternal grandfather in a trailer on a rural plot of land near Rockport. K.B. also shared a shack on the property with her boyfriend. Neither the trailer nor the shack had electricity or running water after they were damaged by Hurricane Harvey. Hurricane Harvey hit the area on August 26, 2017. About a month after Hurricane Harvey, K.B. received $15, 000 from FEMA to make repairs but admitted that her father used the money "for things they needed" and not for repairs. Eight months later, she had not made any repairs or restored utilities. Instead she used her car and a converter to make electricity for the trailer on a part-time basis. The social worker also observed "large amounts of trash and debris from their home and sheds [that were] destroyed by Hurricane Harvey scattered throughout the property [that] pos[ed] a safety and sanitary hazard" to the children. When the social worker interviewed K.B., she admitted to using methamphetamine within a week before the children were removed.

         The trial court heard evidence that K.B. and two of the children have mental health issues. K.B. was diagnosed with bipolar disorder and depression. D.B. and M.B.1 are both intellectually impaired. Both D.B. and M.B.1 had been cutting themselves, and D.B. had expressed thoughts of suicide for a year before removal. In addition, D.B. had been diagnosed with bipolar disorder, attention deficit disorder, and depression. At the time the children were removed, D.B. was out of medication and K.B. had not taken her for follow up appointments at the local Mental Health and Mental Retardation facility. The school counselor had made numerous referrals for counseling for both children, but K.B. had not taken them. M.B.2 reported that K.B. became physically abusive towards D.B. and M.B.1 for telling school personnel anything about themselves or their home life. K.B. received social security and Medicaid benefits based upon D.B.'s disability.

         R.B. moved to San Angelo when he separated from K.B., but the date he moved was not clear from the record. M.B.1 was with him when K.B. overdosed. When R.B. was contacted by the Department in late April 2018, M.B.1 had been missing for approximately 30 hours. Although she returned home safely and reported that she had been at her boyfriend's home, the Department was concerned. After an investigation in San Angelo, the Department removed M.B.1. R.B. admitted to using intravenous methamphetamine and had been for some time. R.B. lives with his mother and his mentally ill and sometimes violent brother who punched holes in the wall when he became angry. R.B.'s residence was dirty with large holes in the walls and with sheets hung as dividers between rooms. There was a large glass cabinet at the house in which medicines and chemicals were stored that was accessible to M.B.1.

         B. Prior History With the Department

         In 2005, the Department received a report that K.B. physically abused her two eldest children by punching them, neglected them by failing to bathe them, and the children had lice and sores on their heads. The allegation of physical abuse was ruled out.

         In 2006, the Department received a report that a thirteen-year-old cousin inappropriately touched D.B., who was four years old at that time. D.B. was examined and unusual bruises were found on her body. Both D.B. and M.B.1, who was three, appeared to be developmentally delayed and were unable to communicate what happened. The family participated in services and was cooperative. The Department was "unable to determine" the truth of the sexual abuse allegation although they ruled out any physical abuse.

         In 2007, the Department received another report of physical abuse to D.B. who had a purple bruise on her swollen cheek. D.B. also cringed if a hand was raised as if to strike her. Home conditions were poor at the time of the investigation. However, physical abuse was ruled out when D.B. indicated she had fallen and her pediatrician expressed no concern.

         Four months later in 2008, the Department received a report that R.B. was manufacturing drugs and that K.B. and R.B. were using drugs and placing the children at risk. Another report of physical abuse and medical neglect was received a few days later. Medical neglect was ruled out after an investigation confirmed that the children were seen regularly by their pediatrician. The Department found reason to believe neglectful supervision but ruled out physical abuse by K.B. and the paternal grandfather. However, the Department found reason to believe that physical abuse by R.B. had occurred.

         In February 2009, the Department received another referral alleging that the children lived in unsanitary conditions and received inadequate physical care and supervision. At this time, all of the children had visible head lice. Drug use by both K.B. and R.B. was reported along with reports of other drug users present on the property. K.B. drug tested clean between June 2009 and March 2010. Shortly thereafter another referral alleged that D.B. had multiple bruises on her legs of unknown causes. The Department was unable to determine allegations of neglectful supervision, physical abuse and neglect, and sexual abuse. In April 2010, the Department again ruled out physical abuse to the children.

         In 2014, the Department received a report of possible sexual abuse of the children based upon alleged sexual acting out by M.B.1. The Department investigated and ruled out sexual abuse.

         In March 2018, the Department received a referral alleging that the adults were unable to control the children, that D.B. was suicidal, and that M.B.1 kicked and pushed her grandmother which resulted in a referral to Adult Protective Services (APS). The APS referral was closed with no services needed.

         C. Post-Removal

         The children were initially separated from each other. D.B. was placed in a foster home in Waco and the other children were placed in Pearland. By October 2018, the children were ...

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