In re J.H.

IN THE INTEREST OF J.H. A/K/A I.J.C.-H. A/K/A J.I.C.H., A CHILD

No. 01-22-00629-CV

Court of Appeals of Texas, First District

February 23, 2023

On Appeal from the 313th District Court Harris County, Texas Trial Court Case No. 2020-02245J

Panel consists of Chief Justice Adams and Justices Countiss and Rivas-Molloy.

MEMORANDUM OPINION

Julie Countiss, Justice.

In this accelerated appeal,^[1] appellant, mother, challenges the trial court's order, entered after a bench trial, terminating her parental rights to her minor child, J.H., also known as I.J.C.-H. and also known as J.I.C.H ("J.H."),^[2] and awarding the Department of Family and Protective Services ("DFPS") sole managing conservatorship of J.H. In four issues, mother contends that the trial court erred in appointing DFPS as the sole managing conservator of J.H. and the evidence is legally and factually insufficient to support the trial court's findings that mother knowingly placed or knowingly allowed J.H. to remain, in conditions or surroundings which endangered his physical or emotional well-being,^[3] failed to comply with the provisions of a court order that specifically established the actions necessary for her to obtain the return of J.H.,^[4] and termination of her parental rights was in the best interest of J.H.^[5]

We affirm.

Background

On November 30, 2020, DFPS filed a petition seeking termination of mother's parental rights to J.H. and managing conservatorship of J.H.^[6]

Removal Affidavit

At trial, the trial court admitted into evidence a copy of the affidavit of DFPS investigator Marlena Benitez. Benitez testified that on November 25, 2020, DFPS received a referral alleging neglectful supervision of J.H. by mother. J.H., who was four years old at the time, ran out of mother's apartment and was sitting on the street curb in front of his apartment complex for hours. J.H. ran across a main street to a store and stole an ice cream. J.H. then began to walk back across the main street in front of oncoming traffic. A third party was able to stop J.H. and walk him back across the street. The third party walked J.H. to mother's apartment and knocked on the door to return J.H. to mother. When J.H. was back in mother's care, the third party saw mother slap J.H. with a cane.

Following the referral, Benitez, spoke with the third party who returned J.H. to his apartment on November 25, 2020. The third party stated that she and her husband saw J.H. sitting on the street curb in front of an apartment complex. The third party pulled her car over to help J.H. when she saw him "bolt across" a main street through oncoming traffic. J.H. went into a store and came out with an ice cream. The third party went inside the store and paid for the ice cream because J.H.'s parent was not inside the store. The third party then saw J.H. "proceed[] to run across the [main] street with oncoming traffic" again. She stopped J.H. and helped him cross the street safely. She tried to communicate with J.H., but he did not speak English. She followed J.H. through the apartment complex to his door, where she knocked. Mother answered the door, and the third party asked if J.H. was mother's child. Mother stated that he was and told the third party that J.H. was "always running out." As soon as the third party started walking away, mother "slapped [J.H.] across the face with her cane aggressively."

After the November 25, 2020 incident, Benitez also spoke to Danys^[7]- mother's oldest adult-son-who told Benitez that he was supposed to ensure that J.H. had a protective caregiver, but on November 25, 2020, mother told Danys that she was depressed and "needed company," so Danys left J.H. with mother instead of taking him to a babysitter when Danys went to work.

Benitez also spoke to mother who stated that J.H. ran out of the apartment on November 25, 2020, while he was under her supervision. Mother denied hitting J.H. with a cane.

Benitez saw J.H. three days after the November 25, 2020 incident and tried to speak to him. But she could not interview him because he was unable to complete a full sentence. J.H. ran around and would not sit still. Benitez saw "marks on" J.H.'s face and "scratches over his body." J.H. was unkempt. His clothes were not clean, his hair was not combed, and it appeared that J.H. did not bathe. J.H.'s teeth were brown and looked rotten. It did not look like J.H. had ever been to a dentist.

As to mother's home, which Benitez saw during her investigation, Benitez testified that it was a one-bedroom apartment. The apartment was cluttered and had broken glass on the floor. J.H. was barefoot in the apartment when there was broken glass on the floor. The apartment had food and working utilities. The apartment was free of odor, and there was "a chain lock and cables on the door."

Benitez's affidavit also detailed mother's history with DFPS. Previously, there was another allegation of neglectful supervision of J.H. by mother. As to that allegation, the affidavit states that J.H. was living in the apartment with Danys and mother and Danys left J.H. with mother while he went to work. But mother had a stroke about three months prior and had lost mobility in half of her body. Mother admitted that J.H. had left the apartment while he was under her supervision, and she had attempted to run after him but was physically unable to do so. Danys and mother agreed to a "safety plan" with DFPS, which stated that J.H. would no longer be left unsupervised with mother. Danys agreed to pay for a babysitter to take care of J.H. while Danys was at work, and Danys and mother placed new locks on the door to the apartment to try to prevent J.H. from getting out of the apartment.

Benitez ultimately concluded, based on her investigation, that J.H. had managed to get out of mother's apartment on multiple occasions when he was without adequate supervision. Mother was physically unable to care for J.H., as she had suffered a stroke, which left half of her body paralyzed. Because of her stroke, mother had placed the responsibility of J.H.'s care on Danys, her oldest adult-son, who was nineteen years old at the time, and he lacked the maturity and the understanding of DFPS's concerns to keep J.H. safe and unharmed. While in mother's care, J.H. had been put at risk of being hit, injured, or killed because he had been able to leave mother's apartment unsupervised and cross a main street into oncoming traffic. J.H. had been allowed to "roam[] outside of" mother's apartment for several hours without mother or a caregiver knowing his whereabouts. Once J.H. returned home, mother struck him with a cane in his face.

DFPS Caseworker Cherry

DFPS caseworker Jamesha Cherry testified that J.H. was placed with foster parents that wanted to adopt him. J.H. was doing well in his foster parents' home. He was in kindergarten and was adjusting to his new school. J.H. spoke both English and Spanish, and his Spanish-language skills had improved in his placement with his foster parents. J.H.'s kindergarten class was a bilingual class. Cherry explained that J.H. was good at math and was very smart. Cherry noted that when J.H first entered DFPS's care, he was timid and shy, but now he was "super hyper, super loving" and a "very good boy."

According to Cherry, when J.H. entered DFPS's care, he had a speech delay. He could not speak English or Spanish. J.H. spoke "gibberish." While in DFPS's care, J.H. participated in speech therapy services, and his speech had improved. He was now able to understand what was being asked of him and was able to identify things. He spoke "very well." J.H. did not receive speech therapy services while he was in mother's care.

Cherry also testified that before J.H. entered DFPS's care, he had "never brushed his teeth"; they were rotten and decaying. J.H. had not been receiving dental care while in mother's care, and J.H.'s medical records showed that mother had neglected his dental care for years.^[8] Cherry also noted that J.H. had not received any immunizations while in mother's care. And mother did not give a reason for her failure to vaccinate J.H. While in DFPS's care, J.H. had "received extensive dental work." He had "received caps on many teeth and silver caps." His dental work required medical sedation. In his home with his foster parents, J.H.'s dental hygiene had improved, and he now "kn[ew] how to brush his teeth."

As to his current placement, Cherry explained that J.H. was placed with a couple that was married. J.H.'s foster parents were bilingual, and the family had two dogs. J.H.'s foster father worked at a chemical plant, and J.H.'s foster mother was a teacher. J.H. attended the same school where his foster mother taught. There were no other children in the home. According to Cherry, there were no concerns about the foster parents' home, and DFPS's goal was for J.H. to be adopted by his foster parents.

As to mother, Cherry testified that mother had received a Family Service Plan ("FSP"), but she had not completed its requirements. She had not completed her psychiatric evaluation, parenting classes, or individual counseling. Mother was unsuccessfully discharged from individual counseling because she did not attend her sessions. Mother also failed to maintain contact with DFPS. Cherry was never given a phone number to contact mother; she only received contact information for mother's oldest adult-son Danys. Although mother had received an extension in the case to "allow [her] some additional time" to complete her FSP, at the time of trial, she still had not completed its requirements.

Cherry further noted that mother had been allowed to complete the requirements of her FSP virtually, and the services mother was required to participate in were conducted in...