M. F. R.-E. v. Tex. Dep't of Family & Protective Servs.

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M. F. R.-E., Appellant v. Texas Department of Family and Protective Services, Appellee

No. 03-22-00662-CV

Court of Appeals of Texas, Third District, Austin

March 9, 2023

FROM THE 21ST DISTRICT COURT OF BASTROP COUNTY NO. 21-20677, THE HONORABLE BENTON ESKEW, JUDGE PRESIDING

Before Chief Justice Byrne, Justices Triana and Theofanis

MEMORANDUM OPINION

Darlene Byrne, Chief Justice

M.F.R.-E (Mother) appeals from the trial court's decree terminating her parental rights to G.N.M.-E. (Daughter), who was six years old at the time of trial.^[1] See Tex Fam. Code § 161.001(b). Mother challenges the legal and factual sufficiency of the evidence supporting termination under the predicate statutory grounds and supporting the best interest finding.^[2] We affirm the trial court's termination decree.

BACKGROUND

The underlying removal proceeding began when the Texas Department of Family and Protective Services (Department) received a referral alleging possible physical abuse and neglectful supervision by Mother and J.J.A., her boyfriend (Boyfriend). On April 21, 2021, Mother asked Boyfriend to discipline Daughter for lying while Mother was at work. Boyfriend struck Daughter several times on her buttocks, leaving bruises on her lower back and buttocks; those injuries led to the referral. During the investigation, Daughter also disclosed that Mother had previously hit her with a belt, leaving marks on her arm. Following its initial investigation, the Department sought and obtained emergency removal of Daughter from Mother. Daughter was initially placed in a kinship household recommended by Mother, but Daughter was subsequently moved into her current foster placement because of concerns that Daughter was being abused in the kinship placement.

Contemporaneous with the removal, Mother requested Boyfriend move out from their shared living space, although Mother did not end their relationship until approximately November 2021. Mother was indicted on August 3, 2021, on third-degree felony charges for injury to a child for the injuries to Daughter; she remained incarcerated until March 2022. During the same period, Boyfriend was also indicted on charges for felony injury to a child.

On August 30, 2022, the final bench trial commenced. At the hearing, the trial court heard testimony from Brook McIntyre Department supervisor; Hillary Bernhard, conservatorship caseworker; Rhonda Caffee, Daughter's therapist; A.S Daughter's foster mother in her current placement (Foster Mother); Mother; and Mary Moody, the court-appointed volunteer advocate (CASA).

Brook McIntyre testified about the Department's initial investigation of the physical abuse against Daughter. McIntyre testified that Daughter was removed after investigation revealed "abrasions on the child's bottom, bruising on her arm, bruising on her forehead and right side of her face," which occurred from physical abuse by Mother and Boyfriend.^[3] McIntyre testified that the abuse occurred more than once, that in previous incidents Boyfriend had spanked and punched Daughter, and that there was a previous Department investigation for physical abuse involving the same parties (although Daughter was not removed then). She also testified that Mother had requested Boyfriend discipline Daughter and that Mother appeared to have "full knowledge that abuse and neglect was occurring through [Boyfriend]"; McIntyre later clarified that she did not know whether Mother was physically present when Boyfriend abused Daughter. She further testified that Daughter made an outcry that both Mother and Boyfriend were physically abusing her, and McIntyre cautioned that the physical abuse had a "long-standing [traumatic] impact" on Daughter. On cross-examination, McIntyre also relayed that she had been advised Mother had completed her services.

Hillary Bernhard then testified regarding the conservatorship of Daughter and that termination was in the best interest of Daughter. Bernhard testified that the Department became involved "due to physical violence towards [Daughter], excessive discipline." She testified that a service plan was created for Mother but that currently there is no visitation schedule for Mother; she explained that the Department does not do visitations for incarcerated parents, and after Mother was released, no child therapist had recommended visitation begin between Mother and Daughter. Bernhard testified that Daughter stated she did not want to see Mother, and a psychological evaluation of Daughter recommended she have no contact with Mother at this time. Bernhard testified that Daughter told her that Mother had struck Daughter with a belt. She further testified that Daughter had been traumatized by Mother, Boyfriend, and her initial kinship home placement and that "[i]t could not have been easy for [Daughter] to experience so much physical abuse at such a young age from people that were caring for her."

Bernhard also testified that Daughter's home country is Honduras but that the Department is not aware of any proper placement there. Bernhard testified that Mother has been working with a therapist and attending parenting classes on discipline, but she has not yet been successfully discharged and had not completed her service yet.^[4] She described the ongoing safety concerns regarding Mother because of Mother's pending criminal charge and her uncertain immigration status, noting that the pending felony charge includes the possibility of deportation. Bernhard stated that Mother was currently employed and living in a home that was "minimal[ly]" clean but expressed concerns about the stability of Mother's housing if she went to prison or was deported.

Rhonda Caffee testified that she began therapy sessions with Daughter in June 2021 and had twice-weekly sessions with Daughter starting in August. Caffee testified that she diagnosed Daughter with specified disruptive impulse-control disorder and post-traumatic stress disorder. Caffee testified she did not recommend visitations with Mother, explaining that Daughter has clearly stated she does "not want to ever see [her] mother again." Caffee stated that this reaction was "highly unusual" and that usually children want to see their birth parents, especially in a safe setting, "no matter what the abuse."

Caffee testified that Daughter initially had "very concerning" self-harm outbursts before starting therapy but has made "tremendous progress," with Daughter talking "a lot about how she feels very, very safe with her foster family." Caffee stated that the foster parents are trained in trauma-related therapy and are very engaged. Caffee described Daughter as bright, having a "verbal capacity" that is "well beyond a six-year-old," and having an "unusual awareness about her particular situation." Caffee testified that Daughter is still extremely anxious, does not trust things would be different with Mother now, and has a hard time trusting because "her trust was completely betrayed by the birth parents." Caffee also relayed that Daughter told her, "I do not feel safe with my mother or any of those other people in my family, and I don't want to see them again." She also relayed Daughter's descriptions of the physical abuse she suffered, including when Mother had hurt her "really bad with the arm," that her Mother would often have Boyfriend punish Daughter when Daughter did something wrong, and that Boyfriend would hit Daughter with a belt; Daughter emphasized that the belt buckle "really, really hurt me" and that she was hit with a belt multiple times. Caffee also testified that Daughter told her that Mother would do "something with her throat" if Daughter ate too slowly and Daughter thought "she was going to choke and she was going to die," and that Mother had once hit her with "a heavy book on her spine." Caffee testified that Daughter being reintroduced to her Mother would be "extremely traumatic" for Daughter, that Daughter would need therapy for years because of her trauma.

Foster Mother testified that she has been trained in trust-based relationship intervention and that she and her husband were committed to the long-term care of Daughter.

She described Daughter's "huge meltdowns" involving self-harm when she was originally placed with them but that Daughter has since made "extreme progress" and now demonstrates an ability to self-regulate. Foster Mother stated that Daughter is regularly attending therapy, is attending school without incident, has "tons of friends," and has expressed a desire to "stay with us forever and ever." She also testified that Daughter had repeatedly described the physical abuse by Mother, including demonstrating that Mother had punched her with a closed fist "on her arm, on her back, a number of places." Daughter also told Foster Mother that she had been hit by Boyfriend too.

Mother testified that she did not want to invoke her Fifth Amendment privilege, and she conceded that the removal happened because of her "wrong actions," including spanking Daughter. Mother explained that she was raised in Honduras that "family violence has been in [my family] my whole life," that her mother would beat her and her brother leading her to believe that physically hitting children was normal, but that she has taken classes and learned "there's a difference between discipline and just hitting or hurting somebody, especially a kid." Mother testified that she was attending therapy once a week and wanted Daughter returned. Mother testified that she was in jail for ten months, but since release she has established housing and been working steadily. Mother testified that once, during Daughter's previous placement, Daughter "was crying out to [Mother] and she told [Mother] she wanted to stay with me." Mother testified...