In re Interest of M.M.

IN THE INTEREST OF M.M., A.M., AND E.M., CHILDREN

No. 07-20-00089-CV

Court of Appeals Seventh District of Texas at Amarillo

August 25, 2020

On Appeal from County Court at Law Number 1 Lubbock County, Texas

Trial Court No. 2018-532,606; Honorable Mark Hocker, Presiding

MEMORANDUM OPINION

Before QUINN, C.J., and PIRTLE and PARKER, JJ.

Following a two-week trial with more than a dozen witnesses, including experts, presenting conflicting testimony, a jury terminated the parental rights of Appellants, S.M. and N.M., to their sons, M.M., A.M. (twin boys), and E.M.¹ The father, S.M., and the mother, N.M., appeal the trial court's Order of Termination, presenting multiple complaints alleging ineffective assistance of trial counsel. We affirm that order.

BACKGROUND

S.M. and N.M. have been married for more than twenty years. S.M. has been employed as a correctional officer with the Texas Department of Criminal Justice for over fifteen years. His work schedule is four days on and four days off; therefore, the mother was the primary caregiver and disciplinarian. S.M. and N.M. also have an adult son with physical challenges who lives with them. Furthermore, S.M. has an adult daughter from a previous relationship who has a family of her own. N.M. is a stay-at-home mom and a caregiver for her older son. Prior to the investigation by the Texas Department Family and Protective Services, she had been pursuing a degree in social work.

In 2009, when the twins were about seventeen months old and their younger brother was just a few weeks old, their biological mother relinquished possession of them to the Department and they were placed in foster care with S.M. and N.M. Two years later, the biological mother's rights were terminated and S.M. and N.M. adopted all three boys.

For the next five years, the family lived what can be described as a normal life. The children were described as good students and "great kids." In 2016, the twins made an outcry of physical abuse by their parents. At that time, the three children were removed from their parents' care. Some of the allegations included the mother "stomping" on them until they passed out then blowing in their faces to revive them, holding their heads under cold water in the bathtub, making one of the twins lie down in a cold shower, severe andrepeated spankings with a spiked belt, washing their eyes out with Axe soap, slapping them, and injuring each of the twins' arms on separate occasions.²

After an investigation, the disposition against the father was that the allegations were "ruled out" and the disposition against the mother was a finding of "unable to determine."³ At that time, the children recanted the allegations and they were allowed to return to their parents. After the investigation, the parents decided to cease spankings as a form of discipline.

Several years later, on October 3, 2018, while in school, the twins reported to a teacher that their younger brother had been physically abused by their parents the night before and they were afraid to go home after school. They described the abuse to the teacher. The school counselor was asked to go to the classroom and speak with the twins. She found them visibly upset and took them to her office. They were "crying," "sobbing," and "shaking" as they described the abuse to her. The allegations mirrored the 2016 allegations. Most of the accusations were directed at their mother. They stated that their mother would threaten to kick their father out of the house if he did not discipline them. The younger brother was brought to the counselor's office later that day. He was uncooperative and the counselor testified he told her the twins should not have said anything "because we're going to get in trouble."

A representative of Child Protective Services and a police officer came to the school. The boys were then taken to the Children's Advocacy Center for forensic interviews. The interviews were conducted separately. The twins described the abuse in great detail and were upset and crying. They reported they would get in trouble for making grades below an eighty-five or if they did not perform their chores. The twins claimed their mother was nice when she was in public but not at home. One of the twins alleged his mother would wash his eyes out with soap for making mistakes while reading. The twins also said their mother told them to lie if they were ever questioned about any visible injuries or bruises. They claimed their father would sometimes come to their defense but their mother would threaten to kick him out of the house. During his forensic interview, the younger brother was defiant, rude, and disrespectful. He denied there was any abuse and described his mother as "nice." He refused to answer basic questions and told the interviewer it was none of her business. At that time, the children were removed from the home and placed in the Department's care. A week later, the Department initiated proceedings to protect the children and terminate parental rights.⁴

For the next seventeen months, the children lived in approximately eight to nine different foster homes in Lubbock, Tyler, Granbury, and Houston. Most of their placements were not ideal. They experienced bullying and trauma in some of the foster placements. With each move, they became more traumatized and eventually, they were treated for mental health issues with psychotropic medications.

The youngest child was eventually placed with friends in Lubbock and was doing well in their care. The goal was for that family to adopt him. The twins were placed together in a foster home in the Houston area in May 2019. However, in June 2019, they were separated when one of the twins was admitted to a residential treatment center for suicidal ideations.⁵ The foster parent was hopeful that the twin in the residential treatment center would be returned to her care upon his release and be reunited with his twin.

While the children were in foster care, the parents were diligent about complying with all monitored visitation regardless of the geographical location. The testimony was that the visits went very well with two exceptions. On one occasion, the parents visited the twins in Houston. They went to dinner and the visit was observed by a CPS monitor. The monitor reported that the parents inappropriately spoke with the children about the pending case and "bad mouthed" the Department. That gave rise to a new allegation of emotional abuse by the mother and visitation with the boys was suspended.

When visitation resumed, there was an incident involving one of the twins. He had lowered his head during a visit with both parents and the CPS monitor alleged the mother inappropriately grabbed the twin by the face to get his attention. The twin left the visit and refused to return.

The evidence is undisputed that the parents have no issues with drug or alcohol abuse and complied with all of the required tests. They have sufficient income to provide a suitable home for their children. The evidence established they substantially complied with their family service plan and completed more parenting classes than were required.The only points of contention regarding the actions necessary for the parents to have their children returned involved family therapy and compliance with providing the Department with proof of employment. The parents interpreted the trial court's orders as permitting them to make an appointment with their own family therapist while the Department insisted that the parents were not ready for family therapy. Regarding proof of employment, the parents submitted pay stubs from the father's employment with vital information blacked out.

Testimony from numerous witnesses established that the events described by the children were too detailed and consistent to be fabricated. An expert witness, a doctor in counselor education with twenty-five years of experience in working with traumatized children, had several sessions with the children after their removal. She explained why the children recanted the 2016 allegations and then repeated those same allegations in 2018. According to her research, it is difficult for a child to make up a detailed description of abuse without experiencing it. She testified that it is rare for a child to lie when making an accusation but often will lie in recanting it so the child can return home. In her session with one of the twins, he told her his parents "told us what to say so CPS would send us home." She explained that "trauma bonding" causes a child to form an attachment to the abuser. She diagnosed the youngest child with PTSD and complex trauma that built up over years due to numerous incidents. In her opinion, the PTSD and complex trauma existed well before the youngest child was removed and placed in foster care.

The children's lifelong pediatrician testified that she never saw any physical signs of abuse and that a broken arm was not indicative of abuse. She was not aware of the previous allegations the children had made in 2016 and she did not treat their arminjuries.⁶ She examined the youngest child in May 2019, diagnosed him with depression, and prescribed Prozac. Another pediatrician who examined the children approximately a month after their removal testified that their statements were consistent with a history of abuse and their description of events was too unusual to be made up.

A CASA volunteer who established a good relationship with the children first believed it would be in their best interests to return home. As time passed, however, he changed his opinion because the parents were not addressing the reasons for removal. He testified, "[i]t's hard to keep a story that consistent over that long with professionals interviewing you and reinterviewing and talking about it." His testimony continued, "[t]hey're recalling memories. They're not recalling a story. They're recalling things they witnessed and things they experienced."

A CASA...