In re B.D.A.

IN THE INTEREST OF B.D.A., L.A.A.-M., and J.X.A, Children

NO. 01-17-00065-CV

Court of Appeals For The First District of Texas

July 24, 2017

On Appeal from the 313th District Court Harris County, Texas

Trial Court Case No. 2014-06547J

OPINION

This is an appeal from a decree terminating the parental rights of an incarcerated father with respect to his three biological children, B.D.A., L.A.A.-M., and J.X.A. The father contends that the evidence was insufficient to support the trial court's decree.

Rather than supporting a firm belief or conviction that termination would be in the children's best interest, the record before us raises more questions than it answers. Did the Department of Family and Protective Services make reasonable efforts to provide appropriate services to facilitate the children building or maintaining a healthy relationship with their incarcerated father? Were all the children's eligible relatives considered as possible kinship placements? And what is the plan for the children to achieve permanency, particularly in light of the separation of three siblings into separate placements, with no evidence of their placement history in foster care or of prospective adoptive placements?

The children can't live with their father in prison, but that fact alone is not sufficient to justify terminating their last formal legal connection to their natural family. Evaluating the evidence in light of the Holley v. Adams factors used to evaluate whether termination of parental rights is in the best interest of the children,¹ we conclude that the Department failed to carry its burden of proof by clear-and-convincing evidence. We reverse and remand to the trial court for further proceedings.

Background

For most or all of the lives of the three children involved in this parental-termination proceeding, their father has been in jail or prison. The children wereremoved from the mother's custody, and the Department of Family and Protective Services filed a petition seeking to terminate the parental rights of both the mother and the father. Just before trial, the mother voluntarily relinquished her parental rights. Our review of the sufficiency of the evidence on appeal is limited to the information received into evidence at trial (which is comprehensively detailed in this opinion), as well as any matter the trial court properly could have judicially noticed.

Trial was held before a master on December 15, 2016.² Before offering witness testimony, the parties offered exhibits into evidence. The mother tendered into evidence her affidavit of voluntary relinquishment of parental rights. The Department then offered nine exhibits into evidence. The first six exhibits were the children's three birth certificates and three letters certifying that each child had not been the subject of a prior suit affecting the parent-child relationship. The Department also offered the father's judgment of conviction for aggravated robbery with a deadly weapon, a family service plan for the father, and the trial court's order establishing the father's parentage.

The father's family service plan was dated July 29, 2015, and the Department's "Permanency Goals" for each child were identified as "FamilyReunification."³ The plan included the following description of the "reason for Child Protective Services involvement":

On June 16, 2015, the Texas Department of Family and Protective Services (DFPS and/or the agency) received a referral for neglectful supervision of [L.A.A.-M.], by his mother, [S.M.]. According to the referral the child, [L.A.A.-M.], sustained a head scalp injury from a dog bite while at [the mother's] friend's house party and at the time of the incident the mother's whereabouts were unknown. The referral indicated the mother appeared to be intoxicated and attempted to drive herself to the hospital but was stopped by EMT, asked to ride in the EMT truck, and mother agreed. At the hospital, the mother's speech was slurred and she appeared lethargic. According to the referral, while at the hospital, it was very difficult to wake the mother and a doctor tried pressing on her chest to wake her up. It was reported that the mother fell asleep twice while answering hospital staff questions. . . . According to the intake report, while moving [the] child to the new hospital room, it took two nurses to physically assist mother to the new room because the mother could not walk without wobbling. The TXDFPS requested to be named Emergency Temporary Managing [Conservator] of the children. At this time, the mother, [S.M.], has a C-SCAL alert out of the 313th District Court in Harris County Texas (Cause# 2014-06547J) because she has a history of fleeing from DFPS in the past.⁴ The child, [L.A.A.-M.] was discharged. Clear Lake Hospital was cooperative until CPS could find suitable placement for the child due to him being a[u]tistic; and thefact that the mother is not an appropriate caregiver for him at this time. The relative placement for the other two children, [B.D.A.] and [J.X.A.], could no longer take care of them. Due to there being no other appropriate placements that have been identified to care for the three children and ongoing danger, TXDFPS was granted [temporary managing conservatorship].

(Emphasis supplied.) The family service plan form included spaces to identify "family strengths and supports" and "community supports," each of which were filled out with the words "Not Applicable."

Under the heading "Family and CPS Concerns Related to Risk and Safety," the family service plan identified the following "Initial Concerns" as of July 29, 2015:

All children are 5 years old and under and is unable to protect themselves [if] danger occurs. [L.A.A.-M.] is autistic and can be violent if his mother is not in his sight. [L.A.A.-M.] is non-verbal.

The mother, [S.], stated she suffers from anxiety, depression and insomnia. [The mother] stated she doesn't have any medication because she doesn't have the funds to get her medication. [The mother] tested positive for cocaine and marijuana by hair follicle. [L.A.A.-M.] is autistic, but can't take any medication because he's too young.

It's unknown if [the mother] left her children to inappropriate caregivers because she failed to provide information about the whereabouts of her children.

[The mother] disclosed she was a victim of sexual abuse by a family member. There were 4 previous CPS cases . . . 1 cause her children to be removed, 2 unable to complete cases because the family couldn't be located and 1 physical abuse case that was ruled out. It's unknown if [the mother] has her children exposed to people who's not appropriate.

It's unknown where the children were living during the investigation. [The mother] stated they were living with a cousin, but wasn't able to provide an address of where the cousin lived. It's unknown if the home was unsanitary or clean. [The mother's] family support is unknown because she stated she doesn't associate with her family since her last CPS case when admitted to the Santa Maria Hostel.

[The mother] stated she didn't want to be involved with CPS and only went to the hospital to [have] her son treated for dog bite injuries, but [not] for CPS to take her children. [The mother] has been untruthful about where her children were.

[The mother] had limited outside support that can help her with her children due to communications abandoned and family conflict.

(Emphasis supplied.) The plan identified the following "Service Plan Goals (Changes Needed to Reduce Risk)":

Parent will demonstrate an understanding of and ability to provide for the special needs of the child. Parent will demonstrate the willingness and ability to protect the child from harm.

Parent will learn new behaviors that promote cooperation, stability, and a sense of self-worth among family members. Parent will actively participate in therapy to understand how their own abuse/neglect as a child may impact their current parenting style.

Parent will demonstrate an ability to provide basic necessities such as food, clothing, shelter, medical care, and supervision for the child. Parent will demonstrate the ability to put the needs of the children ahead [of] their own.

Parent will build a support network that will help ensure the safety of the child. Parent will demonstrate ability to protect the child from harm.

Family will understand and support efforts to deal with issues related to their prior maltreatment; including but not limited to counseling, medical care, or drug treatment of the child.

Parent will maintain housing that is safe and free of hazards and provide protection, food, and shelter for the child and family. Parent will demonstrate an ability to use willing and appropriate friends and relatives to help with the child.

Parent will actively cooperate in fulfilling the agreed upon safety plan in order to control the risk of abuse or neglect.

Under the heading "Tasks and Services," the plan included one item that was "assigned to" the parents:

[F]ather . . . will submit to DNA testing. Upon verification, the Family Plan of Service may be modified. [Father] is currently incarcerated with a projected release date of July 14, 2027. Services will be requested if there is a sooner release date.

(Emphasis supplied). The plan identified a person to be contacted by a parent for information about the family service plan or the children. The contact person was identified as Deitra E. Smith, and a phone number was provided.

The family service plan included a page for the parents to acknowledge receipt of the plan. It included signature lines for up to four parents, a caseworker, and a supervisor. The document offered into evidence was signed on August 6, 2015 by caseworker Bridgette Sharkey and a supervisor, but it was not signed by any parent.⁵

The Department presented two witnesses. Caseworker Sharkey testified that at the time of trial, B.D.A. was seven years old, L.A.A.-M. was five years old, and J.X.A. was four years old....