In re Interest of A.L.H.

515 S.W.3d 60

IN the INTEREST OF A.L.H., a Child

NO. 14–16–00556–CV

NO. 14–16–00578–CV

Court of Appeals of Texas, Houston (14th Dist.).

Opinion filed January 10, 2017

Rehearing Overruled February 14, 2017

Pamela B. Williams, Sarah Regina Guidry, Mani Nezami, Houston, TX, for appellant.

Mark Thomas Zuniga, Sandra D. Hachem, Kali Morgan, Maria Valeria Brock, Houston, TX, John R. Millard, Sugar Land, TX, for appellee.

Panel consists of Justices Boyce, Busby, and Wise.

OPINION

Ken Wise, Justice

These appeals concern the conservatorship of a child, Adam, who has been embroiled in custody litigation for most of his life.¹ This is Adam's second trip to the court of appeals.

The first appellate proceeding arose from the termination of Adam's parents' parental rights. Both his mother, T.H. ("Mother"), and his father, L.M. ("Father"), appealed the termination to this court. While the appeals were pending, two competing petitions were filed by people seeking to be named Adam's managing conservator: one by his paternal aunt, M.M.; and the other by his foster parents, Amy and Thomas Hood.

We issued our opinion in the parents' appeals in June 2015. In re A.L.H. , 468 S.W.3d 738 (Tex. App.–Houston [14th Dist.] 2015, no pet.). We affirmed the termination as to Mother, and her parental rights are no longer at issue. We reversed the termination as to Father due to legally insufficient evidence. After Father's parental rights were reinstated, the Hoods filed a petition to terminate his rights and adopt Adam.

Beginning in May 2016, a jury trial was held to decide: (1) should Father's parental rights be terminated, and (2) who should be Adam's conservator. The jury returned a verdict that Father's rights should be terminated, the Hoods should be Adam's managing conservator, and M.M. should not be a possessory conservator of Adam. The trial court signed a judgment on the verdict.

M.M. and Father have separately appealed that judgment, and those are the appeals we decide today. The primary issues in both appeals are the sufficiency of the evidence to support the verdict and whether the trial court erred in permitting the Hoods' suit to be heard with M.M.'s suit. Each appellant also raises issues regarding particular pretrial and post-trial rulings.

This opinion is divided into three parts. First, we lay out the procedural and factual background. Second, we consider M.M.'s appeal. Third, we consider Father's appeal.

BACKGROUND

A. Proceedings in First Termination Suit

In January 2014, the Texas Department of Family and Protective Services ("the Department") filed suit seeking to terminate the parental rights of Mother and Father ("First Termination Suit"). The Hoods intervened over objection in the First Termination Suit in September 2014. They sought termination of Mother's and Father's parental rights and adoption of Adam or, alternatively, joint managing conservatorship of Adam.

The First Termination Suit was tried to the bench in December 2014. The trial court terminated both parents' rights and named the Department as Adam's sole managing conservator. Mother and Father both appealed ("the First Appeal"). The Hoods did not appeal.

In February 2015, while the First Appeal was pending, M.M. filed a petition to modify the parent-child relationship in which she sought sole managing conservatorship of Adam ("M.M.'s Suit to Modify"). The Hoods intervened, again over objection, in M.M.'s Suit to Modify in April 2015, again seeking to be named Adam's managing conservators ("Hoods' Intervention").

This court decided the First Appeal in June 2015. We affirmed the termination as to Mother, reversed and rendered the termination as to Father, and affirmed the trial court's naming of the Department as Adam's managing conservator. Father's parental rights were reinstated on June 16, 2015.

The Hoods filed a separate suit in January 2016 to terminate Father's parental rights and adopt Adam ("Hoods' Adoption Suit"). The Hoods' Adoption Suit was consolidated over objection with M.M.'s Suit to Modify ("Consolidated Cases").

The Consolidated Cases were tried to a jury for eight days beginning in May 2016. The following factual discussion comes from the evidence adduced at trial of the Consolidated Cases.

B. Adam's birth and removal

Mother and Father were incarcerated when Adam was born in September 2013, so Mother asked a family friend, Carlon, to take Adam until she got out of jail. Carlon told M.M., who lived in Arizona, that Adam was born and would be staying with her. M.M. paid for a stroller and infant car seat for Carlon to transport Adam. Carlon picked Adam up from the hospital when he was three days old. M.M. said she regularly spoke to Adam on the phone or "chatted" with him through an Internet video chat service while he lived with Carlon.

Adam is Mother's fourth child.² The Department removed each of her other three children shortly after birth. We refer to those children as they were referred to at trial: (1) I.M., a boy born in November 2010; (2) Baby Girl, born in August 2011; and (3) Eddie, born in August 2012. Those removals were based generally on the child or Mother testing positive for drugs and the parents' refusal to consent to necessary medical treatment for the child, reported membership in a cult, and suspected mental illness. M.M. knew the bases of at least one child's removal. She also knew Father was a long-time drug user. She had not met Mother.

Mother was released from jail and moved in with Carlon and Adam within a month of his birth. Despite the circumstances of the other children's removals and not knowing Mother, M.M. believed Adam was safe with Mother because Carlon was with them. M.M. also presumed the Department would have removed Adam at birth if he was in danger. Father was released in early January 2014, at which time he also moved into Carlon's home. M.M. continued to believe Adam was safe with his parents and Carlon.

Adam had been showing symptoms of pertussis (whooping cough ) for two or three weeks when Mother and her boyfriend took him to Dallas for a few days in mid-January 2014. He was still sick when they returned to Carlon's home, but his parents reportedly refused to take him to the hospital. Carlon let M.M. know Adam was sick, and M.M. told her to try to get him medical treatment. The record does not reflect whether Adam was treated at that time.

A week later, the Department received a referral alleging Adam's parents were medically neglecting him as well as drinking and using drugs. The Department removed Adam on January 30, placed him in foster care, and filed the First Termination Suit. M.M. contacted the Department and offered herself as a possible placement for Adam. However, the date of contact is in dispute. M.M. said she called around the time of Adam's removal. Department supervisor Teara McKentie testified M.M. did not call until April or May of 2014.

C. Adam, Father, M.M., and the Hoods

1. Adam

a. Placement in the first foster home

Adam entered foster care at four months of age. He was placed in the same foster home as his brother Eddie. The caregivers reported Adam cried excessively. The foster home lost its license and closed a few months later. When he left that home, Adam had little hair on the back of his head, suggesting he might have spent excessive time in an infant seat. He could not sit up unattended.

Adam could not be placed with M.M. because her home study was not complete. The Department contacted the adoptive mother of Adam's sister, Baby Girl, and asked if she could take Adam. The adoptive mother was not able to take him at that time but asked that the Department keep in touch with her because she would be interested in sibling visits between Baby Girl and Adam.

b. Placement with the Hoods

Adam was placed with Amy and Thomas Hood on May 23, 2014. McKentie testified the placement with the Hoods was expected to be temporary. The Hoods were classified as foster-to-adopt, which meant they were open to adopting a child placed with them. Amy Hood testified Adam bonded with her very quickly. He connected with Thomas more slowly but was attached to him within a month.

In July 2014, Adam's attorneys ad litem asked the trial court for an order prohibiting Adam from being moved from the Hoods' home without court or ad litem approval. They based the request on Adam's strong bond with the Hoods and his progress in their care. The trial court granted the request in an order signed July 17, 2014 ("Do Not Move Order").

c. Development

Early Childhood Intervention (ECI) workers assessed Adam when he was 10 months old. Most of Adam's abilities were average or above average. However, he failed his hearing screening and communicated at the level of a five-month-old baby, though he learned some sign language quickly after he was placed with the Hoods. ECI referred Adam to speech therapy to address his communication difficulties.

Adam responded well to ECI services and was discharged when he was 15 months old. His communication abilities, previously his lowest score, had improved to those of a 20–month-old child. Adam was assessed again when he was two and a half. Most of his abilities still fell in the average range; some were above average.

At the time of trial, Adam was said to get along with children of all ages. He preferred being with other children than being by himself. He had age-appropriate difficulty sharing.

2. Father

Father was represented by counsel at trial but did not attend personally. Almost 54 at the time of trial, Father began abusing drugs when he was 19. He failed to appear at court-ordered drug tests in September 2015 and February 2016. The Department treats failures to appear as positive results. He has been convicted at least six times for possession of controlled substances. Carlon, the family friend who cared for Adam when he was born, met Father at work in 2000. They had an intimate relationship. Father and other people sold drugs out of Carlon's house. Carlon and Father were arrested in September 2003 for...