In re Interest of A.B.

IN THE INTEREST OF A.B., G.B., L.B., S.B., AND K.B., CHILDREN

NUMBER 13-19-00539-CV

COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG

February 27, 2020

On appeal from the County Court at Law of Aransas County, Texas.

MEMORANDUM OPINION

Before Chief Justice Contreras and Justices Longoria and Perkes

Memorandum Opinion by Justice Perkes

Appellants E.B. (Father) and B.B. (Mother) challenge the termination of their parental rights to their five children, A.B., G.B., L.B., S.B., and K.B.¹ See TEX. FAM. CODEANN. §§ 161.001(b)(1)(D), (E), (b)(2). By what we construe as two issues, Father and Mother argue: (1) the trial court erred in its denial of a requested six-month extension of the dismissal deadline; and (2) the evidence is legally and factually insufficient to support findings that Father and Mother committed one or more statutory predicate acts or omissions under family code § 161.001(b)(1) or that termination is in the children's best interest. See id. We affirm.

I. BACKGROUND

On October 15, 2019, the trial court presided over the termination hearing. Prior to the hearing, the court heard arguments on Mother and Father's joint motion for extension, before ultimately denying the motion.

Sandra Lopez, an investigator with appellee, the Department of Family and Protective Services (the Department), first intervened on November 2, 2018, after receiving a priority referral in reference to S.B. "The report indicated that [Father] had notified [the] daycare that [S.B.'s] arm was broken," said Lopez. Later that same day, Lopez visited Father and Mother's residence accompanied by law enforcement.² Mother claimed S.B. had injured herself at daycare and she planned on taking S.B. to the doctor the following day. Because Father and Mother had not sought medical intervention in the three days since the alleged injury, the Department initiated emergency removal of all five children, citing medical neglect and neglectful supervision. The Department transported S.B. to a nearby hospital, and S.B. was initially diagnosed with having a fracturedhumerus by the emergency room physician and received a temporary cast. However, it was later determined that she had a "nursemaid's elbow,"³ and physical abuse was ruled out. After the initial basis for removal, medical neglect, was found to be unsubstantiated, the Department modified the family's service plan to address the children's unsuitable living conditions and parents' continued substance abuse issues. Both parents participated during the family plan service meeting; however, Father participated via telephone conference because he was in jail in Florida for cashing a fraudulent check.⁴

Lopez testified that the family resided in a one-bedroom R.V. trailer in Rockport, Texas. A.B. and G.B. shared bunk beds situated below a collapsing rooftop; L.B. and S.B. shared a futon; and the youngest child, K.B., who was nine months old at the time, slept on the floor underneath a table. Lopez described the residence as "musty," smelling of "urine," "feces," and "cigarette smoke." The trailer had sustained roof damage, the "[air conditioning unit] had fallen in and created a hole," and the residence lacked running water. Father and Mother were instructed to rectify the safety hazards and improve the children's living conditions.

Valerie Moretish, a Department caseworker, testified that both parents were also required to participate in random drug testing and attend substance abuse counseling, which was held at their home because neither parent owned nor had access to a vehicle. In February 2019, Father and Mother began substance abuse counseling. They stoppedcounseling services in April 2019 and resumed two weeks before the termination hearing in October 2019. According to Moretish, Mother tested positive for marijuana in November 2018, negative for marijuana in December 2018, positive for marijuana between January and May 2019, and negative for marijuana in June and August 2019. Mother did not submit to drug testing in July 2019, and the Department did not ask Mother submit to drug testing in September or October 2019. Meanwhile, Father continued to test positive for marijuana from November 2018 until July 2019; Father also tested positive for cocaine in November 2018 and again in late-December 2018. Father tested negative for drugs in July 2019, September 2019, and October 2019; Father did not submit to testing in August 2019.

Linda Escobedo, a Department assistant caseworker, testified that Father's unstable mental condition and history of belligerent outbursts are additional causes for concern. Escobedo claimed she had witnessed Father publicly berate Mother on several occasions. In one instance, Mother had brought little toys for the children during a visitation, and "apparently [Father] didn't like that, . . . [a]nd he got really upset, and they started cussing at each other." Moretish testified to a separate incident in April 2019, wherein Moretish was transporting Mother and Father to a visitation. Moretish said she was forced to pull over after Father began "yelling at [her] in the car and [] threaten[ing] to blow up buildings and kill himself." Father's statements, according to Moretish, were in response to Moretish telling Father that the Department would be changing the service plan goal to unrelated adoption if the parents continued to test positive for drugs and fail to make the necessary improvements to the home.

According to Laura Morales, a licensed professional counselor, Father suffers from"[b]ipolar disorder, major depression, intermittent explosive disorder, [and] ADHD." Father was referred to her in 2018, and again in 2019 for an "[u]ntreated mental illness, anger, [and] poor communication between him and [Mother]." Morales testified that she saw the couple for five or six sessions in 2018, before the couple "kind of disappeared." Father returned for treatment in July 2019. When asked by the Department whether Father "seem[ed] willing to learn any skills to manage his anger," Morales opined, "I think in time he is probably capable, but did he say, [']Yeah, I want to learn?['] No." During cross-examination, Morales maintained she felt her sessions with Father were unproductive. "[I]t's really hard to work with someone to get them calm and use better coping skills when they are volatile and every little thing triggers that. You've got to stabilize them," explained Morales, emphasizing Father's need for pharmaceutical intervention, which he repeatedly declined.

Morales also testified to the developmental effect on a child's emotional well-being when a child "witness[es] a lot of anger and negative interactions between parents." Morales testified, for example, that G.B. was referred to counseling at six years old after being expelled from elementary school for threatening to take "a gun to school, [and] sa[ying] he was going to kill everybody there."

Morales expressed apprehension over Mother's mental health as well, describing Mother as overwhelmed and depressed. Although Morales suspected domestic violence in the home, both parents denied any history of physical abuse. Morales said she based her suspicions on Mother's "demeanor and how afraid [sic] to speak up and say anything." Mother vocalized her emotional dependence on Father and her struggle to independently parent her children, said Morales. "[S]he would say, 'I just can't do this without [Father].They don't listen to me. They only listen to him.'" Escobedo witnessed Mother's frustrations first-hand. "[T]here are times when I was taking her [to visitations] on her own without him and she was very, very frustrated. She couldn't give everybody the attention." Escobedo said Mother would have a "melt down in the restaurant and be yelling and screaming that she can't do this." Moretish testified that Mother teetered between "just sit[ing] there and not really engag[ing]" with her children and "leav[ing] [Moretish] to watch her children" for her. "And so we're trying to keep the kids in line [during visitations], and we would provide the discipline for them," said Moretish. Father echoed sentiments shared by Moretish and the counselor at trial. Father described Mother as "depressed" and voiced concerns about Mother managing the children on her own. Mother, although present in the courtroom, did not testify.⁵

Father testified that he made significant strides in the last "four weeks" before trial to address his mental health, become more fiscally responsible, and make the necessary improvements to his home, such as completing the roof repair and fixing the leak in plumbing so water could be turned on.⁶ Construction to repair the hole in the wall left by a collapsing air conditioning unit remains on-going, however. Father testified that he now has money to "purchase new mattresses for the kids"—including a temporary play pen for the youngest child so that she no longer has to sleep on the floor—but he had not yet made any purchases. Father said he was working on getting a 40-foot R.V., which wouldprovide ten feet of additional living space for the family so "everybody would have a place to sleep," but "[i]t's not guaranteed" and contingent on the landlord "kicking people out of" it first. Regarding the couple's finances, Mother has been continuously employed since the Department first intervened and remains the primary breadwinner.⁷ Father testified he is starting his own bike repair service shop, work has been "steady for a bike shop," and he is in talks with the Rockport Police Department to work as a contracted bicycle repairman.

Father addressed the Department's depictions of him as an unstable aggressor:

I mean, excuse my language, I'm an a**hole, I know that. I'm very firm with my kids. I don't know why everybody says I'm always angry, maybe it's just my face, I don't know, but I'm not always angry. I'm angry with the situation . . . . I mean, I'm not the best husband, I'm not the best father, but I

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