In re Interest of M.F.

IN THE INTEREST OF M.F. AND M.F., CHILDREN

NO. 14-19-00964-CV

State of Texas in the Fourteenth Court of Appeals

May 28, 2020

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

Trial Court Cause No. 2018-02334J

MEMORANDUM OPINION

Appellant K.G. ("Mother") appeals the trial court's final order terminating her parental rights and appointing the Department of Family and Protective Services ("Department") as sole managing conservator of her twin children M.F. ("Miguel") and M.F. ("Michelle").¹ The trial court terminated Mother's parental rights on predicate grounds of endangerment and failure to comply with the service plan for reunification. See Tex. Fam. Code § 161.001(b)(1)(D), (E), and (O). The trial court further found that termination of Mother's parental rights was in the children's bestinterest. See Tex. Fam. Code § 161.001(b)(2). On appeal, Mother asserts nine issues. For the reasons set forth below, we affirm.

I. BACKGROUND

A. Pretrial Proceedings

1. The Initial Referral and Investigation

The Department became involved on April 28, 2018, when it received a referral alleging physical neglect of Miguel and Michelle, physical abuse of Michelle, and medical neglect of Miguel by Mother. Mother had been arrested and charges were pending for child endangerment and possession of a controlled substance after law enforcement responded to a call that a Mother was walking around a motel parking lot with two small children. Mother was taken to Harris County Jail and the children were admitted to Texas Children's Hospital. According to the physician report, Michelle had a one-inch superficial laceration to her left cheek, a healing bruise on her right cheek, bruises to her left thigh, and several bruises and bite marks from insects on her body. Miguel had a swollen knee, cellulitis on his knee and thigh, and a possible leg infection. The doctor noted that Miguel's knee needed to be drained and X-rayed, and an MRI was necessary to determine if an operation was needed. The doctor's report opined that the knee swelling could be a result of fever that caused an infection in Miguel's body.

On April 30, 2018, while the children were hospitalized, the Department filed an emergency petition to take possession or custody of the twins. The petition requested relief against Mother, Kam (the alleged Father),² and the unknown father.At that time, both Mother and Kam were in jail.³ A Department supervisor contacted the maternal grandmother and noted she would be considered as a potential placement. The trial court granted the Department temporary managing conservatorship of the children. When the children were released from the hospital, they were placed in a foster home where they remained throughout the pendency of the proceedings.

The trial court held additional hearings and determined that May 6, 2019, was the automatic dismissal date for the case. See Tex. Fam. Code § 263.401(a).

On June 27, 2018, the court ordered Mother to comply with the family service plan submitted by the Department. The terms of the family service plan required Mother, in pertinent part, to submit to random drug test screening, showing progress by testing negative. The court ordered that Mother "shall have no visits with subject child[ren] until she drug tests."

At some point in October 2018, Mother was released from jail. A permanency order entered on October 10, 2018, noted that Mother has not demonstrated "adequate and appropriate compliance with the service plan." On December 27, 2018 Mother moved to Corpus Christi.

In January 2019, Tracy Ratcliff, a Child Protective Specialist with the Department, filed a follow-up permanency report, noting Mother began substance abuse classes but did not show up for meetings in November and December 2018.⁴ Ratcliff also reported that the foster parents wanted to adopt the children. During areview hearing on January 23, 2019, Ratcliff testified the placement in the foster home was meeting the children's physical and emotional needs. Ratcliff stated the goal for the children was unrelated adoption, with a concurrent relative adoption; however, the Department had not identified a possible relative for adoption at that time. Ratcliff testified that Mother still had services to complete under her plan, including parenting, individual counseling, and substance abuse classes. According to Ratcliff, Mother visited the children and they were excited to see their mom. Citing Mother's recent behavioral concerns (e.g., becoming extremely agitated and using profanity when exchanging certain information with the caseworker), Ratcliff requested the trial court order Mother to submit to drug screening.

The parties also discussed possible placement with Mother's friend, Dorothea Gordin. Ratcliff testified that she had reached out to Gordin and advised her that the Department would need to conduct a home study and background check. Ratcliff stated that Gordin said she was uncomfortable giving that information because "she didn't know who I [Ratcliff] was." Ratcliff offered to have Gordin call her at Ratcliff's work number, through the switchboard or by email. When Ratcliff called, Gordin did not answer the phone or return Ratcliff's telephone calls.

In March 2019, Ratcliff filed another permanency report. In the report, she noted Mother had not been cooperating with the Department. Mother did not show up for group and individual substance abuse classes in November and December 2018. On January 23, 2019, Mother was a no show for court ordered urinalysis and hair follicle testing. On March 1, 2019, Mother was again a no show for her urinalysis and hair follicle drug screen testing.

2. Family Service Plan

The Department prepared a family service plan for Mother on June 4, 2018, which was subsequently ordered by the court, and included requirements to develop a support group; participate in parenting classes for six to eight weeks, participate in a psychological evaluation and follow all recommendations; participate in individual counseling and follow all recommendations, participate in substance abuse assessment and follow all recommendations, submit to random drug test screening; maintain consistent stable housing with proof of lease, maintain employment and provide proof of employment, and maintain contact with her caseworker.

B. Trial Testimony

The trial court conducted a bench trial which commenced in May 2019 and was completed in November 2019. The witnesses at trial were Candace Mouton, (the Department's investigator), Bruce Jeffries (owner of the National Drug Screening Center), Mother, Dr. Angela Bachim (medical doctor with subspecialty in child abuse pediatrics at Texas Children's Hospital), Officer Nallely Gonzales (officer with Houston Police Department), Mark Stanley (brother to Mother's paramour), Stephanie Jones (kinship specialist with the Department), Diana Villareal (caseworker in Corpus Christi), Alexa Reyes (the Department caseworker from June 2019 through November 2019), Foster mom, and Dorothea Gordin (friend of Mother).

1. May 2, 2019

On May 2, 2019, the parties appeared for trial: the assistant district attorney representing the Department, Mother and Mother's counsel, the ad litem for the children, the unknown father's counsel, and counsel for intervenor Scot Stanley (Mother's boyfriend). The parties confirmed that the case would begin that day butthen would continue on a future date. The trial court and counsel discussed exhibits to be admitted.

After being sworn, Mother briefly testified that she had three children (an older son and the twins), none of whom were in her care. The twins, Miguel and Michelle, the subject of this proceeding, were born in 2015. Mother acknowledged that she thought Kam was the father of the twins, but DNA testing proved otherwise; Mother did not know of another possible father. After Mother testified, the trial court asked the parties if anyone had any objection to recessing the trial and resuming at a later date. There were no objections, and the trial court recessed the trial.

2. August 23, 2019

In the record, there is evidence of several trial settings between May 2 and November. Many of these settings were reset without taking up substantive matters. On August 23, 2019, however, the court received evidence and heard testimony from witnesses without the Mother or her counsel present.

3. November 1 and 5, 2019

Trial recommenced on November 1, 2019. Mother's counsel moved for dismissal and/or mistrial, arguing trial was not timely commenced under the statute. Mother's counsel argued, in the alternative, if the trial court determined trial timely commenced, then a mistrial should be declared because Mother was unfairly prejudiced and her due process rights were violated by not having representation of counsel for a long period during trial. The court denied both motions.

C. Termination

After hearing the evidence and arguments of counsel, the trial court stated it was terminating Mother's parental rights to the twins on the predicate grounds of Subsections D, E, and O of Section 161.001(b)(1) of the Family Code. See Tex. Fam. Code § 161.001(b)(1)(D), (E), and (O). The trial court further found that termination of Mother's parental rights was in Miguel and Michelle's best interests. The trial court signed a Decree for Termination on November 14, 2019, terminating Mother's parental rights. Thereafter, the trial court entered Findings of Fact and Conclusions of Law, restating the grounds for termination. Mother timely appealed.

II. ISSUES

In issues one, two, three, and six, Mother contends the evidence is legally and factually insufficient to support the termination of her parental rights under Tex. Fam. Code § 161.001(b)(1)(D), (E), and (O). In issues four, five, and seven, Mother asserts that the evidence is legally and factually insufficient to support that termination is in the child's best interest. Tex. Fam. Code § 161.001(b)(2). In issue eight, Mother asserts that she was...