Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg
IN THE INTEREST OF F.L.B., A.C.B., J.G.B., E.B.M., CHILDREN
appeal from the 267th District Court of Victoria County,
Justices Benavides, Longoria, and Perkes
GREGORY T. PERKES, JUSTICE
T.M. (Mother) challenges the termination of her parental
rights to her youngest child, E.B.M. 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 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.
The Department's Initial Case Involving F.L.B., A.C.B.,
J.G.B., and E.B.M.
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.
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.
continued to consistently visit her children,  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.
January 17, 2019, after E.B.M. had spent five
years 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.
Termination Hearing Involving 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.
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,
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,  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
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."
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.
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
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. and whether Mother had an
adequate support system in place to assist her in caring for
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
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
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.
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.
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
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 . . . .
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."
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.
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.
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
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 ...