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In re F.L.B.

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

December 5, 2019


          On appeal from the 267th District Court of Victoria County, Texas.

          Before Justices Benavides, Longoria, and Perkes



         Appellant T.M. (Mother) challenges the termination of her parental rights to her youngest child, E.B.M.[1] See Tex. Fam. Code Ann. §§ 161.001(b)(1)(N), (O), (b)(2). By what we construe as two issues, Mother argues the evidence is legally and factually insufficient[2] to support a finding that the Department of Family and Protective Services (the Department) met its burden to show: (1) Mother committed one or more statutory predicate acts or omissions under section 161.001(b)(1); and (2) termination is in the child's best interest. See id. We affirm.

         I. Background

         A. The Department's Initial Case Involving F.L.B., A.C.B., J.G.B., and E.B.M.[3]

         The Department first became involved in late 2013 after Mother's eldest daughter, F.L.B., outcried that her step-father B.M., a registered sex offender, had sexually abused her. As part of its initial investigation, the Department also determined that Mother: (1)physically and emotionally abused F.L.B.; (2) neglected A.C.B., J.G.B., and E.B.M.; (3) exposed all four children to domestic violence; and (4) failed to comply with the stipulations of the initial safety plan. Mother's four children were removed from the home, and the Department was granted temporary managing conservatorship of each child on January 17, 2014.

         Mother was aware when she married B.M. that he was a registered sex offender, and until B.M. confessed, she refused to believe that F.L.B. had been sexually abused by him. B.M. was convicted of indecency with a child in connection with his abuse of F.L.B., and he was sentenced to fifteen years in prison on May 13, 2014. By October 2014, Mother had (1) completed parenting, anger management, and domestic violence classes; (2)attended individual counseling; and (3) obtained housing and gainful employment.

         Mother continued to consistently visit her children, [4] and the three eldest children were returned to Mother's home on November 6, 2015. Following one year of monitored return, the Department transferred sole managing conservatorship of F.L.B., A.C.B., and J.G.B. to Mother on October 4, 2016. E.B.M. remained in the Department's custody because, in the two years that had elapsed, Mother had declined to complete the Department's reunification goals specific to E.B.M.'s special needs.

         On January 17, 2019, after E.B.M. had spent five years[5] in the Department's care, the Department filed a petition to modify the suit affecting the parent-child relationship and terminate Mother's parental rights under 161.001(b)(1)(N) (constructive abandonment) and (O) (failure to abide by the courts' orders) of the Texas Family Code. See id.

         B. Termination Hearing Involving E.B.M.

         E.B.M. is a special needs, non-verbal seven-year-old, who has been diagnosed with cerebral palsy, congenital scoliosis, and autism. E.B.M. also suffers from seizures, hearing loss, and significant developmental delays. He is unable to eat solid foods, remains in pull-up diapers, and requires 24-hour care. When the Department first intervened, E.B.M.-although already two years old-was unable to sit up or crawl. E.B.M. still requires a great deal of assistance, said Jessica Alex Morales, E.B.M.'s former case worker. Jessica testified to E.B.M.'s progress as well as to her observations of Mother's unwillingness to cooperate with the Department throughout the duration of the reunification plan.

         E.B.M. was initially placed in a relative's home, but he was removed in January 2014 due to concerns regarding the home environment. E.B.M. then briefly resided in a foster home before being placed at Respite Care of San Antonio, [6] a residential care facility for children with special needs, where he remained until April 2019. Jessica testified E.B.M. thrived at Respite Care and described E.B.M. as a happy child, who can now walk, [7] interact with others, and feed himself. E.B.M. currently attends occupational, physical, and speech therapy, and he sees several medical specialists, including a neurologist, two orthopedists, an ophthalmologist, and a gastroenterologist.

         Jessica explained that, as part of the Department's initial reunification plan, Mother was instructed, in relevant part, to: (1) complete parenting classes specific to caring for E.B.M.'s conditions; (2) participate in individual and family counseling with a therapist of her choice; (3) allow the Department to conduct home evaluations; (4) either in person or via telephone, attend E.B.M.'s medical appointments and participate in E.B.M.'s developmental therapies; and (5) visit E.B.M. at his placement "at least once per month."

         According to Jessica, Mother never provided proof of class attendance or completion though Mother was given information for free classes in her city. During cross-examination, Jessica conceded that while it was possible that Mother's employment kept her from attending classes, the classes were offered at the same time each month so Mother could have conceivably made arrangements in advance. There were also periods of time when Mother was unemployed.

         Mother told Jessica that she continued to attend therapy after her eldest three children were returned to her care, but Mother "refused to sign releases". Consequently, the Department was unable to verify what, if any, progress had occurred.

         Mother often withheld her residence information, relocating "at least six different" times over the five-year period. Mother was also reluctant to allow the Department to conduct home evaluations or speak with her other children, Jessica said. Jessica testified that she was told by Mother: "'[Y]ou can't come to my home. You can't talk to my children.'" Jessica said she tried to respect Mother's boundaries and agreed to meet Mother at her place of employment instead. In March 2018, "[Mother] said I was no longer able to go to her job. And at that point[, ] she preferred to only meet with me via text[, ] and she didn't understand why she had to meet with me in person." Because of Mother's persistent lack of cooperation, Jessica testified that the Department struggled to establish whether Mother's residence was a safe environment for E.B.M.[8] and whether Mother had an adequate support system in place to assist her in caring for E.B.M.

         In five years, Mother did not attend a single one of E.B.M.'s medical appointments or developmental therapy sessions either in person or via telephone, and visitations to E.B.M. were scarce though the Department offered Mother gas cards, bus passes, and alternatively, to have caseworkers drive Mother and her three children to and from E.B.M.'s out-of-town placement.

         After prolonged periods of minimal contact with her son and minimal participation in the Department's service plan, Jessica opined that Mother had constructively abandoned E.B.M. Jessica testified that Mother's failure to create a substantial relationship with her son and educate herself on his care requirements resulted in a mother who was ill-equipped to raise a special needs, developmentally fragile child.

         Megan Morales, E.B.M.'s current case worker, expounded on the severity of E.B.M.'s condition and reiterated many of Jessica's statements regarding Mother's noncompliance with the Department's reunification plan.

         Megan testified that E.B.M., in addition to attending on-going weekly therapies, will need to undergo spinal surgery in the near future. Should Mother receive sole managing conservatorship of E.B.M., Mother would need to be able to frequently transport E.B.M. out-of-town because Victoria lacks the pediatric specialists to treat E.B.M. locally. Megan was not confident that Mother would be able to transport E.B.M. to his necessary appointments given Mother's inability to attend one of E.B.M.'s medical or therapeutic appointments in five years.

         Megan said Mother made several attempts to visit her son as the termination hearing drew closer in mid-2019, visiting him four times. In contrast, Mother visited E.B.M. three times in 2017 and three times in 2018. Megan said Mother's conduct following E.B.M.'s recent placement transfer [9] exemplified Mother's long-standing inability to remain consistently involved in E.B.M.'s life:

She does not call me to ask me how his therapies are going[, ] and she does not follow up with the placements regarding how he's doing. When he was placed in the foster home in Houston I-the foster mom was fine with [Mother] having her contact information. So I provided the number to [Mother], and it took her almost over a month to call foster mom.
. . . .
And foster mom said she was calling[, ] and she called everyday for about a week-and-a-half and then the phone calls stopped. And from what I have gathered with reading the file is that that is [Mother's] pattern.
. . . .
And so that's just my concern is that when we get close to court . . . she wants to, you know, start working in services or reach out and see [E.B.M.]. But any other time, you know, there's those lapses to where she doesn't call or she doesn't visit . . . .

         Mother had previously confided in Megan that "she felt that it would be fine for [E.B.M.] to live at a nursing home up until he was an adult or even afterwards."

         In addition to the Departments observations regarding Mother's absence in E.B.M.'s life, Megan opined that Mother was unaware of how to adequately provide a safe environment for her son. Megan testified that, in December 2018, she asked Mother to explain the living arrangements should Mother receive custody of E.B.M.; Mother stated E.B.M. would share a bed with A.C.B., and F.L.B. could watch E.B.M. after school. Megan explained to Mother that her proposed arrangement would be inappropriate given A.C.B. suffers from oppositional defiant disorder, F.L.B. first displayed suicidal tendencies at the age of eleven and still struggles with major depressive disorder, and E.B.M. "is not verbal so he would not be able to make an outcry if something were to happen to him." Although Megan noted that Mother appeared amenable to learning how to better care for E.B.M., Mother's statements in 2018 were indicative of how little progress had been made since 2014.

         Susan White, E.B.M.'s court appointed special advocate (CASA), appointed to the case at the onset, echoed Megan's statements. White testified that in 2018, Mother still "wasn't to the point where [she could say] [']I can do this for my child. I will do whatever it takes.[']" Instead, White recalled Mother expressing interest in having E.B.M. remain in facility care. "She was looking at long term [care] through a different facility," said White.

         White described Mother as generally non-communicative and uncooperative. Although White was instrumental in Mother's reunification with F.L.B., A.C.B., and E.B.M., Mother repudiated any assistance from White once Mother received custody. Thereafter, Mother refused to allow White into her home. White stated she also tried referring Mother to multiple local support groups to no avail. "I did the research. I turned the research over to her. She said she was going to look them up, try to get into them. And that never happened."

         White testified she also found it problematic that she had visited E.B.M. "triple" the number of times Mother had. "There's not a bond there," she said. White testified to her observations from the most recent visitation on May 30, 2019. She said E.B.M. spent the visitation hour "watch[ing] Baby Shark on [Mother's] phone and eat[ing] his mashed potatoes and drink[ing] his milkshake." According to White, Mother still had to be directed what foods were appropriate for E.B.M., who is prone to asphyxiation. The visitation was typical, White said. White reasoned that Mother's documented behaviors, including her limited interactions with her son, are not those of a mother seeking ...

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