R. P. v. Tex. Dep't of Family & Protective Servs.

R. P. and M. J., Appellants v. Texas Department of Family and Protective Services, Appellee

No. 03-21-00326-CV

Court of Appeals of Texas, Third District, Austin

October 13, 2021

FROM THE 146TH DISTRICT COURT OF BELL COUNTY NO. 308924, THE HONORABLE CHRISTOPHER L. CORNISH, JUDGE PRESIDING

Before Justices Goodwin, Baker, and Smith

MEMORANDUM OPINION

Melissa Goodwin, Justice

R.P (Mother) and M.J. (Father) appeal from the trial court's decree of termination following a bench trial.^[1] The trial court terminated their parental rights to their four children and appointed the Texas Department of Family and Protective Services as the children's managing conservator. In five issues, Mother and Father challenge the admission of the removal affidavits and the legal and factual sufficiency of the evidence to support the predicate ground findings see Tex. Fam. Code § 161.001(b)(1)(D), (E) (O); that termination of their parental rights was in their children's best interest, see id. §161.001(b)(2); and that appointment of the Department as managing conservator was in the children's best interest. For the following reasons, we affirm the trial court's decree of termination.

BACKGROUND

In April 2019, the Department filed an original petition in a suit affecting the parent-child relationship and sought termination of appellants' parental rights to, and managing conservatorship of, two-year-old Child 1 one-year-old Child 2, and infant Child 3. In the supporting affidavit, the Department's investigator averred about intake reports alleging "severe physical neglect" based on the appearance of Mother, Child 1, and Child 2; concerns about Mother's lack of "general hygiene practices" when she was at the hospital giving birth to Child 3; and the unsanitary living condition of the family's residence, in which its floors were covered with large piles of trash, clothes, and food and one of its rooms had pieces of lumber and a saw that were accessible to the children. The children were removed, and the Department was appointed the children's temporary managing conservator.

In August 2019, the parties entered into a Rule 11 agreement. Pursuant to the agreement, the Department was dismissed as the children's temporary managing conservator, Mother and Father were ordered to participate in family-based safety services, the children were returned to Mother and Father on a monitored return, and the Department agreed to provide daycare.

In September 2019, the Department filed a new petition seeking to terminate parental rights and to be appointed managing conservator of the children based on appellants' noncompliance with the monitored return and lack of cooperation with the Department. In the supporting affidavit, the Department's representative averred that the Department had received an intake report that the family was not responding to requests for Department personnel to visit their residence and was "evading meeting with [the] Department." Concerning his investigation, the representative averred that: (i) daycare staff advised that the children had not been present for several days; that when present, they were "often dirty," "have scratches and bruises," and a "strong odor as well"; and that Mother was "usually unkempt" and had a "strong odor" when she brought the children to daycare; (ii) the representative unsuccessfully attempted to meet the family at their residence and observed "debris and trash all over" their front yard; (iii) he later made contact with the family at a store and observed the concerning condition of the children^[2]; and (iv) Mother and Father were "extremely hostile from the beginning and refused to cooperate with [him] concerning viewing their residence, or explaining why they had not complied with court ordered services." The trial court signed an order for protection of the children in an emergency, and the children were removed and placed in foster care.

In April 2020, Mother prematurely gave birth to Child 4, and the Department filed an amended petition that included all four children and sought to remove and place Child 4 in foster care. In the supporting affidavit, the Department's investigator averred about multiple additional intakes that the Department had received, including "neglectful supervision" based on concerns that Mother and Father were homeless and living in their vehicle "with no air" and "filled with garbage" and that Mother forced discharge from the hospital with Child 4 against medical advice. The investigator observed Child 4 in appellants' vehicle when the weather was "very hot," the vehicle was "filled from floor to ceiling with garbage and other items," and Child 4's "space" "was very small and was surrounded by items that could have easily fallen on the baby while [the] vehicle [was] moving."^[3] The trial court entered further orders, removing Child 4, placing her in foster care, and extending the dismissal date and the court-ordered services.

During the pendency of the case, Mother and Father participated in court-ordered services. They maintained contact with the Department, completed psychological and psychiatric evaluations, participated in weekly supervised visits with their children, and attended court hearings.^[4] They both were employed, working six days a week, and continued to participate in therapy. On their weekly day off from work, they attended sessions with their therapist and supervised visits with their children at the Department's office. Concerning their residence during the pendency of the case, they stayed with a friend in a camper and Mother's sister, and in the early part of 2021, they began living in a trailer on family property. They also acquired a new vehicle prior to the bench trial.

The bench trial occurred over two days, February 25 and April 29, 2021. The Department sought to terminate parental rights and for the children to stay in their current placements. Approximately a month before trial, the Department had placed Child 1 and Child 2 in one placement and Child 3 and Child 4 in a separate one.

On the trial's first day, the trial court took judicial notice of its entire file, and the Department's witness was appellants' current counselor who began seeing them in May 2020 after they were unsuccessfully discharged from two prior counseling places. He testified that he counseled them on how to properly care for children but that they did "not really" acknowledge the condition that the children were in when they came into care or that their living conditions were not appropriate for the children. He also did not think "they ever fully grasped in counseling what [he] was trying to explain to them about the need of little children who crawl on the floor, and so forth, to have a clean home." He, however, testified that he had not noticed hygiene issues when the sessions with Mother and Father were in person and testified that they both had cognitive skills. He testified that if the Department's only concern was their living conditions, it made "sense" to give them "a little more time to see if they're going to maintain the trailer." He explained, "if the case were extended and they were able to keep the house clean, then we would know that there was some good work done; otherwise, [he didn't] think we have any proof that they have come to grips with this problem."

When the trial resumed two months later, the trial court admitted the Department's September 2019 and May 2020 supporting affidavits as exhibits over appellants' hearsay objections and, without objection, the family service plan. The Department's stated concerns in the family service plan included: (i) Mother and Father's "physical living conditions of the home [that] were deplorable" and posed a safety risk to the children's health and well-being; (ii) the long-term exposure to unsanitary conditions that may be causing detrimental effects to the children's health; and (iii) Mother and Father's struggle to understand health and safety risks to children associated with unsanitary physical living conditions.

The Department's witness on the final day of trial was its conservatorship caseworker who had been assigned to the case from its beginning. She testified that the Department became involved with the three older children because of "[n]eglect and deplorable, unsanitary living conditions" and the children's "failure to thrive" and not "meeting their educational growth charts." There was "[t]rash in the home, unclean kitchen living conditions, roaches in the home, things of that nature," and the children were dirty and "unkempt." Concerning the attempted monitored return and subsequent removal of the three oldest children, the caseworker explained that after they were initially removed, Mother and Father moved locations to another home, and the children were returned to them on a monitored return; and that, at the beginning, the new home was in good condition, and the children "were doing well"; but that after a month with family based services, "the home returned to the same unsanitary, deplorable conditions," and the children were removed again.

Concerning the removal of Child 4, the caseworker testified about the intakes from the hospital where Mother gave birth to Child 4 and the observed condition of appellants' vehicle with Child 4 in it. She explained that Mother had left the hospital against medical advice; the hospital's stated concerns included that Child 4 had "some smoke inhalation"; appellants' vehicle was observed to be "full of trash, trash coming out of the vehicle, trash stacked up to the back of the windows of the vehicle, and [Child 4] was in a dirty type car seat"; and there was concern that Mother was living in the vehicle at the time.

The caseworker also testified...