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In re I.S.

Court of Appeals of Texas, Fifth District, Dallas

December 9, 2019

IN THE INTEREST OF I.S. AND S.S, CHILDREN IN THE INTEREST OF J.L., JR., J.L.L., AND J.M.L., CHILDREN

          On Appeal from the 254th Judicial District Court Dallas County, Texas Trial Court Cause Nos. DF-14-10695-R and DF-17-19273-R

          Before Chief Justice Burns, Justice Whitehill, and Justice Molberg.

          MEMORANDUM OPINION

          ROBERT D. BURNS, III CHIEF JUSTICE.

         These appeals follow the trial court's judgments terminating the parental rights of (1) appellant, M.T. (Mother), to five of her six her children and (2) appellant, J.L., Sr. (Father), to his three children. Mother and Father challenge the sufficiency of the evidence to support the findings that they engaged in the two alleged grounds for termination. Additionally, Mother challenges the sufficiency of the evidence to support the findings that termination was in the children's best interest and that the Department of Family and Protective Services (the Department) should be appointed the children's permanent managing conservator. For the reasons that follow, we affirm the trial court's judgments.

         BACKGROUND

         The children at issue are I.S., born August 2007; S.S., born January 2013; J.L., Jr., born September 2014; J.L.L., born September 2015; and, J.M.L., born July 2017. As reflected in the chart below, IS. and S.S. were born to Mother and J.S, [1] who were together from 2007 until 2013, and J.L., Jr., J.L.L, and J.M.L. were born to Mother and Father, who have had an "off and on" relationship since 2014.

         (Image Omitted)

         I. The Family's History with the Department

         The incident that led to the Department filing suit to terminate Mother's and Father's parental rights occurred in September 2017, but Mother's and Father's history with the Department began long before then. Mother's history began in 2004 when the Department received a referral regarding her drug use and neglect of her first child, not one of the children identified above.[2] Mother tested positive for cocaine, but did not believe she had done "anything wrong" or that the Department should have been involved. She refused to participate in services that would have addressed the concerns leading to the referral, and the child was permanently placed with Mother's father.

         Five years later, the Department received another referral. This referral alleged neglectful supervision of IS. by Mother based on burns on I.S.'s forearm from an unattended curling iron.[3] At the time, IS. was a year old. During the Department's investigation of this allegation, Mother and IS. tested positive for amphetamines, with IS. testing at a higher level than Mother. Mother also admitted smoking marijuana. The Department, concerned about Mother's decision-making and drug use, removed I.S. from the home and offered Mother services. Mother completed the services and the Department, believing she had made the necessary changes to provide a safe environment for I.S., returned I.S. home.

         Between 2014 and 2016, the Department received four more referrals on Mother for neglectful supervision. These referrals also alleged neglectful supervision by Father and stemmed from Father's violent character. At least two of the referrals stemmed from incidents of domestic violence between Mother and Father, one of which occurred while Mother was pregnant with J.L., Jr. in 2014 and resulted in Father's arrest and order prohibiting him from having any contact or communication with Mother.[4] Following each referral, the Department offered Mother and Father services to keep the family intact. The Department also offered therapy to I.S. following the last referral.

         II. The September 2017 Referral

         The Department received the referral that led to this suit after Mother took two-month-old J.M.L. to the hospital with a fractured femur. Neither Mother nor Father could explain how J.M.L. was injured, resulting in the removal of the children. At the time, I.S. was ten, S.S. was four, J.L., Jr. was three, and J.L.L. was two.

         Mother and Father were again provided services and, over the course of the next fifteen months or so, submitted to random drug and alcohol testing and completed parenting classes, psychological and psychiatric evaluations, and individual counseling. Father also completed a batterer's intervention program. However, believing neither of them had made sufficient progress and changes, the Department pursued termination.

         III. The Trial

         The case was tried to the bench over a three-day period. Based primarily on Mother's relationship with Father and Father's violent nature, the Department asserted Mother's and Father's rights should be terminated on the grounds that their conduct and home environment endangered the children's well-being. See Tex. Fam. Code Ann. § 161.001(D), (E). In support, the Department called as witnesses two of its caseworkers, Mother's and Father's counselors, I.S. and S.S.'s counselor, and the relatives with whom the children had been placed.

         Department caseworker Kayla Landry testified she investigated the referral concerning J.M.L. and familiarized herself with the facts of the other cases. Although she was unable to determine how J.M.L. was injured, she learned from interviews with Mother and Father that J.M.L. had started "crying continuously" while in Father's care the night before she was taken to the hospital. Mother and Father were living separately at the time and the children were with Father for the weekend. When J.M.L. would not stop crying, Father took her back to Mother, who observed the injury the next day during a diaper change. Landry testified the police were called, but no charges were filed against either parent.

         Landry provided affidavits in support of the filing of the suit and removal of the children.[5]The affidavits chronicled the steps she took during her investigation and summarized Mother's and Father's backgrounds and their history with the Department. Although the affidavits were not admitted into evidence, she testified concerning certain statements in her affidavits. She noted that the affidavits recited that Father had been arrested in 2014 for "impeding Mother's breath," and the assault occurred in the presence of I.S., who was six at the time, and S.S., who was one. The affidavits also recited that the first of two 2014 referrals was "closed" after Mother ended her relationship with Father and the second was "ruled out" because a protective order was in place preventing Father from living in the house and being around the children. Landry testified that Mother and Father were offered services throughout and that Father completed a batterer's intervention program in 2015. Landry expressed concern about Father's violence towards Mother and noted that, despite Father completing a batterer's intervention program, he still engaged in domestic violence with Mother.

         Tara Harris, the "ongoing" or conservatorship caseworker, testified she began working with Mother, Father, and the children after Landry had concluded her investigation. She explained the Department's goal is to reunify families, and the services offered to parents are intended to "provid[e] parents with some type of education to kind of rebuild the foundation." However, completion of services alone is not sufficient for reunification. Harris explained that parents must demonstrate "the necessary environmental and behavioral changes," and that a parent's progress is assessed on a monthly basis.

         Based on her assessments of Mother and Father, Harris did not believe they had made the necessary changes. Specifically, as to Mother, Harris opined Mother had not accepted responsibility for the children being removed from the home and remained "on the defense" when discussing the domestic violence and home environment. Asked if Mother had endangered the children, Harris replied she had by "going back to" Father. Harris referenced the referrals between 2014 and 2016 and expressed concern that even after Father assaulted Mother in 2014, Mother had two more children with Father. Harris worried Mother would again reunite with Father and, if the children were returned to her, they would be subjected to the same lifestyle that initiated this case. Harris did not believe Mother had the ability to provide a safe and stable home for the children and felt Mother had either not learned from the services she had completed multiple times or struggled to apply what she had learned.

         Turning to Father, Harris believed termination was proper because Father committed violence in Mother's home in the children's presence and that impacted the children. Additionally, Father had an extensive criminal history that began in 2003 that included, in addition to assault family violence, convictions for possession with intent to deliver a controlled substance.[6] In Harris's opinion, Father's parenting abilities were limited, and he could not meet the children's emotional and physical needs. Harris noted Father had "several" outbursts in court, used profanity towards I.S. and S.S.' grandmother, was verbally aggressive towards her and the children's attorney ad litem, and was not receptive to suggestions and advice. Harris testified the Department had offered all the services it could multiple times to Mother and Father and had no more programs to assist them.

         Asked about the children, she noted I.S. and S.S. were living with their paternal grandmother, and J.L., Jr., J.L.L., and J.M.L. were living with their paternal aunt. All children were thriving, and their level of anxiety had decreased tremendously. Harris believed children need a safe and stable home, and believed it was in the children's best interest to terminate Mother's and Father's parental rights because they could not provide that to the children but Grandmother and Aunt could. Harris noted both Aunt and Grandmother had expressed difficulties co-parenting with Mother and Father and noted further that, for almost a year, Mother refused to contact I.S. and S.S. or attend their activities.

         Christi Rogers, I.S. and S.S's counselor, also testified children need safety and stability. She believed children who live in an environment where domestic violence exists generally experience many negative effects and have a greater chance of repeating the domestic violence cycle. According to Rogers, both I.S. and S.S. witnessed Mother and Father "fighting." I.S. had also seen Father choke and hit Mother in the face. Rogers testified S.S. would hide in another room when Mother and Father "fought," and I.S. talked to her about how she feared returning to Mother's home because Father might be there. Both girls had "experienced trauma" in the home and suffered with anxiety. By contrast, the girls felt safe in Grandmother's home, and Rogers felt Grandmother was the "main person for them that is able to calm them down or to be of support." Rogers testified the girls told her they wished to remain with Grandmother, and she worried a return home would be detrimental to the children.

         Father's counselor, Crystal Walker, met with Father for twelve sessions. She testified Father reported to her that this was his first case with the Department and admitted to using marijuana and "fighting" with Mother. In her opinion, Father minimized the "fighting." She believed that the "fighting" was "very much domestic violence," and counseled him on the impact domestic violence has on children and on identifying triggers that "fuel" the reactive behaviors. She explained to him that domestic violence makes children very fearful and distrustful and causes emotional instability and uncertainty. She believed he understood the impact, but expressed concern that he would continue to be abusive if he and Mother were together. She also expressed concern about the children being returned to him based on the injury to J.M.L. not being explained.

         Mother's counselor, Betty Cannon, testified Mother was "very active" in counseling and had taken several steps to show the children should be returned to her. For example, she had maintained employment and obtained appropriate housing. She had also made plans for day care. However, Cannon did not believe the children should be returned to Mother because she did not think Mother could protect either herself or the ...


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