In re Interest of C.A.M.

633 S.W.3d 68

In the INTEREST OF C.A.M. and Z.J.M., Children

No. 07-21-00043-CV

Court of Appeals of Texas, Amarillo.

August 17, 2021

Joel B. Jackson, for Real party in interest.

Dale A. Rabe, for Appellant.

J. A. Martindale, Pampa, Civil - Ad Litem for M., C. A., M., Z. J.

Kellie S. Price, for Appellee.

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

Patrick A. Pirtle, Justice

When a parent makes a good faith effort to comply with every requirement placed on him or her "for the return of their children," and that parent substantially complies with those requirements; and when the attorney for the Texas Department of Family and Protective Services never directly asks any witness whether termination of the parent-child relationship would be in the children's best interests ; and when the children's attorney ad litem recommends reunification, does a trial court err in finding that termination is in the best interests of the children? There has been an uptick in termination cases in the last decade. When the Department deploys a practice of offering parents a positive consequence (family reunification) in exchange for a particular course of action (working services), it seems disingenuous to this court that such a practice should result in termination when the parent does what is asked. The fallacy with this "carrot and stick" process is that often times a parent's misconduct, which was the original cause of a child's removal, is then used against that parent to terminate parental rights, even after that parent has made a good faith effort to complete the necessary steps outlined to obtain the return of the child. In many cases that come before this court, it appears as though the Department ceases to work with a parent solely because the statutory deadline for disposition of the termination proceeding is fast approaching. Courts have long held that "[t]he fundamental liberty interest of natural parents in the care, custody, and management of their child does not evaporate simply because they have not been model parents or have lost temporary custody of their child to the State." Santosky v. Kramer , 455 U.S. 745, 753, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982). That is why the facts of this particular case are so troubling.

By this appeal, Appellant, P.M., challenges the trial court's order terminating her parental rights to her children, C.A.M. and Z.J.M.¹ By a sole issue, she challenges the sufficiency of the evidence to support the trial court's finding that termination of her parental rights was in her children's best interests. Relevant to this appeal in the context of a best interest analysis is the presumption that preserving the parent-child relationship is of the highest priority. We believe an injustice has occurred in this case because the parent's original misconduct was used in an attempt to rebut that presumption, even after she had complied with the services required by the family service plan. The Department's process, even if unintentional, sets up a compliant parent for failure. Based on the record before us, we are critical of that practice and reverse and remand the cause for further proceedings.

BACKGROUND

P.M. is a young mother who had her first child when she was sixteen years old. The children's father is approximately twenty years older. At the time of the final hearing, P.M. was in her mid-twenties. Her son was nine years old and her daughter was three. P.M., a child herself when she became a mother, was a victim of domestic violence at the hands of the children's father. She was completely dependent on him for transportation and other necessities. In November 2018, while both parents were intoxicated, the father assaulted P.M. in the children's presence. Police responded to a request for a welfare check and the father was arrested.

The Department's investigator interviewed P.M. and her older child about the domestic violence and concluded there was a "reason to believe" there was neglectful supervision. In January 2019, he referred the case to Family Based Safety Services and the Department petitioned to have the parents participate in services while the children were allowed to remain in the home.

Under the supervision of Rachel Baca, the first caseworker assigned to the case, P.M. agreed with a safety plan that did not allow the father to visit or live in the home or have any unsupervised contact with the children. The Department believed that neither parent was cooperating with the services being offered and it petitioned the trial court to order them to cooperate with the required services. The trial court signed an Order for Required Participation on May 1, 2019.

Eventually, all the parties agreed that P.M.’s mother would move into P.M.’s home to supervise all contact between the children and the parents. However, one month later, the Department learned that the children's father had been in the home without supervision. Both parents were intoxicated, and the children's father had again assaulted P.M. She refused to press charges but agreed to leave her home and move into her mother's home. The Department cautioned her to follow the safety plan because future incidents could result in the children's removal.

During the summer of 2019, the children's father continued a pattern of domestic violence against P.M. The Department's investigator confirmed that P.M. had been a victim for some time and had never been the aggressor. Despite the domestic violence, P.M. was hopeful for a reconciliation with the children's father once the Department resolved the case against them. However, there were more incidents of domestic violence in the children's presence.

As a result of the continued domestic violence by the children's father, the Department commenced termination proceedings on August 29, 2019. The children were removed from P.M. on September 4, 2019. At that time, they were placed in foster care. A second caseworker, Sharlotte Watson, was then assigned to the case.

While the case was pending, P.M. was arrested three times. On August 6, 2020, she and the children's father were arrested following execution of a search warrant for drugs. Drugs were found in a chest of drawers shared by P.M. and the children's father. The drugs, however, were found only in the drawers containing men's clothing and not in any drawers containing only women's clothing. During cross-examination at the final hearing, one of the officers who executed the search warrant confirmed that the target of the warrant was the children's father based on information from a confidential informant. He verified there was no information to request a warrant for P.M. and that she was not the target of the investigation.

Later in August 2020, P.M. was arrested for providing alcohol to a minor and assaulting her sister. A few months later, on October 7, 2020, she was arrested for driving while intoxicated following a collision. None of the officers or other witnesses who testified at the final hearing could confirm the disposition of any of these arrests.

At the final hearing, caseworker Baca testified that between January and May 2019, P.M. was not proactive in working her services. She expressed concern that P.M. continued to allow the children's father to have unsupervised contact with them in violation of the safety plan. She further testified that while she was assigned to the case, P.M. tested positive for cocaine on May 3, 2019.

In May 2019, P.M. began to turn her life around. Caseworker Baca testified that every subsequent drug test was negative. Caseworker Watson testified that P.M. eventually realized her relationship with her children was paramount to her relationship with their father. She testified that P.M. was no longer living with the children's father, and they were no longer in a relationship. According to caseworker Watson, since her turnaround, P.M. had obtained gainful employment and had successfully completed her services toward the goal of family reunification. She participated in programs for psychosocial assessment, individual counseling, and domestic violence, and she had shown stability in employment and housing. P.M. also participated in drug and alcohol assessments and out-patient drug classes. As testified to by caseworker Baca, her drug screens subsequent to May 3, 2019, were all negative. Caseworker Watson was, however, unsure whether P.M. had attended every required AA or NA meeting, as she did not provide documentation for those programs.

Caseworker Watson testified that P.M. was on track for family reunification beginning with unsupervised visits between her and the children which were scheduled to begin on August 8, 2020. Unfortunately, P.M. was arrested on August 6, pursuant to the search warrant that was directed at the children's father. As a result, the Department discontinued P.M.’s visits with her children. A therapist who was counseling P.M.’s son recommended the children have no contact with P.M. after that arrest. Notwithstanding the cessation of visits, P.M. continued to maintain contact with the Department and regarding that contact, caseworker Watson testified, "[w]e've never had any issues with [P.M.]."

After the Department presented its evidence and rested, P.M. also rested. During the presentation of evidence, the Department caseworkers were never directly asked if it was in the best interests of the children that the parent-child relationship between them and their mother be terminated. During closing arguments, the attorney ad litem for the children argued in favor of the continuation of the parent-child relationship between P.M. and her children. Subsequent to closing arguments, the trial court found that P.M. (1) knowingly placed or knowingly allowed her children to remain in conditions which endangered their physical and emotional well-being; (2) engaged in conduct or knowingly placed the children with persons who engaged in conduct which endangered their physical or emotional...