in the Interest of C. J. a Child v. Department of Family and Protective Services
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Opinion
Opinion issued January 26, 2021
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-19-00704-CV ——————————— IN THE INTEREST OF C.A.J., A CHILD
On Appeal from the 313th District Court Harris County, Texas Trial Court Case No. 2018-00169J
MEMORANDUM OPINION
In this accelerated appeal,1 appellant, mother, challenges the trial court’s
order, entered after a jury trial, terminating her parental rights to her minor child,
C.A.J.2 In six issues, mother contends that the evidence is legally and factually
1 See TEX. FAM. CODE ANN. § 263.405(a); TEX. R. APP. P. 28.4. 2 The trial court also terminated the parental rights of C.A.J.’s alleged father. He is not a party to this appeal. insufficient to support the jury’s finding that termination of her parental rights was
in the best interest of C.A.J.,3 the trial court erred in appointing the Department of
Family and Protective Services (“DFPS”) as C.A.J.’s sole managing conservator and
in excluding certain evidence at trial, her trial counsel provided her with ineffective
assistance of counsel, the trial court’s judgment does not conform to the verdict, and
the case should be remanded to the trial court for a new trial in the interest of justice
because of the cumulative effect of the trial court’s errors.
We affirm.
Background
On January 18, 2018, the DFPS filed a petition seeking termination of
mother’s parental rights to C.A.J. and managing conservatorship of C.A.J.4
Removal Affidavit
At trial, the trial court admitted into evidence a copy of the affidavit of DFPS
Investigations Supervisor Nisela Zamorano. Zamorano testified that on January 12,
2018, DFPS received a referral alleging negligent supervision of C.A.J. by mother.
C.A.J., who was five years old in January 2018, had tested positive for cocaine use
on January 8, 2018 after being taken to West Oaks Hospital (“West Oaks”)—a
3 See TEX. FAM. CODE ANN. § 161.001(b)(2). 4 C.A.J. was born in March 2012. He was five years old when he was removed from mother’s care in January 2018, and he was seven years old at the time of trial.
2 hospital that provides psychiatric care for children. Mother took C.A.J. to West
Oaks after he stated that he wanted to harm himself and mother. 5 According to the
referral received by DFPS, on January 10, 2018, C.A.J. was retested for narcotics
use. The narcotics-use testing results from January 10, 2018 were negative for
cocaine use, which indicated either that there had been a mistake with C.A.J.’s
January 8, 2018 testing or that the cocaine that was previously in C.A.J.’s system
had “left his system” before the January 10, 2018 retest.
Regarding DFPS’s investigation of the allegation of negligent supervision,
Zamorano testified that DFPS Investigator Melissa Scott6 interviewed C.A.J. at West
Oaks. C.A.J. appeared clean and healthy. C.A.J. told Scott that he was in the
hospital “for saying hateful things to his mother.” C.A.J. said that he had an attitude
with mother and was mean to her when he had no reason to be. C.A.J. stated that he
and mother lived together in a home, there was food in his home, and he received
timeouts when he got in trouble. C.A.J. noted that he took medicine at home “for
not listening.”
Scott also spoke with David Page, a caseworker at West Oaks, who stated that
C.A.J. was admitted to the hospital on January 7, 2018. C.A.J. was diagnosed with
5 At the time that Zamorano signed her affidavit on January 18, 2018, C.A.J. was still a patient at West Oaks. 6 The trial court admitted into evidence a copy of Scott’s Child Protective Services (“CPS”) Investigation Report. We note that Scott’s first name is spelled differently throughout the record.
3 disruptive mood dysregulation disorder (“DMDD”) and attention deficit
hyperactivity disorder (“ADHD”) and prescribed medication. On January 8, 2018,
the day after he was admitted to West Oaks, C.A.J. tested positive for cocaine use
by urinalysis. He was retested on January 10, 2018 by urinalysis, and he tested
negative for cocaine use. It could not be determined whether the January 8, 2018
positive testing results were a mistake because, by the January 10, 2018 retest, the
cocaine that was previously present in C.A.J.’s system could have left C.A.J.’s
system.
When Scott interviewed mother, she admitted to being a user of cocaine and
explained that after she quit drinking alcohol, she began using cocaine. Mother
stated that the last time she had used cocaine was while C.A.J. was being treated at
West Oaks in January 2018. Mother denied using cocaine in her home, but she
admitted to using cocaine at her friend’s house. Mother stated that she did not bring
narcotics into the home. Mother did not know how C.A.J. would have ingested
cocaine and could not explain why C.A.J. could have tested positive for cocaine use.
While speaking to C.A.J.’s babysitter on the telephone in front of Scott, mother told
the babysitter that she had “used cocaine in the park one day.”7
7 Scott’s CPS Investigation Report states that when mother visited C.A.J. at West Oaks for a “family session” her behavior was erratic. She “constantly hiccupped and sniffed and wiped her nose with her fingers.” Mother was “seemingly unable to remain in a comfortable seated position,” her eye contact was erratic, and she “fumbled in her chair.” Mother’s pupils appeared to be dilated, and she had trouble 4 During her interview with Scott, mother acknowledged that she had a criminal
history and a history with DFPS. Mother also told Scott that she had been “arrested
because she had fallen asleep behind the wheel [of the car], but [the criminal case
against her was] going to be dismissed.”8 On the day of that arrest, mother consumed
“one shot” of alcohol at a restaurant.
Regarding C.A.J., mother told Scott that she did not receive child support from
C.A.J.’s father. C.A.J. took Adderall, and after being admitted to West Oaks, C.A.J.
had also been prescribed Abilify. Mother took C.A.J. to West Oaks after he was
“very withdrawn with her” and “made . . . threatening statements.” According to
mother, she stated that C.A.J. had stated in the past that his “life [was] worthless”
and he would throw things. (Internal quotations omitted.)
Zamorano’s affidavit also detailed mother’s history with DFPS. In fall 2012,
when C.A.J. was an infant, he was removed from mother’s care after she was found
highly intoxicated while caring for the child. Mother admitted that she could not
recall the details of that evening.9 About a month later, mother was transported to
answering questions. The therapist in the family session believed that mother was “under the influence of a substance[].” C.A.J. moved seats and seemed uncomfortable sitting next to mother. As Scott explained in her report, because of mother’s “erratic behavior[] [and C.A.J.’s] possible cocaine trace,” “there [was] concern of substance abuse in [mother’s] situation and [there was a] consequential a concern for [C.A.J.’s] well[-]being.” 8 The date of this arrest is unclear. 9 Scott’s CPS Investigation Report states that, in October 2012, mother was found unresponsive after consuming a large quantity of alcohol. C.A.J. was present at the 5 the hospital for “a possible overdose and alcohol abuse.” Mother told the nurse that
she had taken “two pills,” and she tested positive for barbiturates use. C.A.J. was
then placed in foster care, but he was returned to mother’s care at some point.10
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Opinion issued January 26, 2021
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-19-00704-CV ——————————— IN THE INTEREST OF C.A.J., A CHILD
On Appeal from the 313th District Court Harris County, Texas Trial Court Case No. 2018-00169J
MEMORANDUM OPINION
In this accelerated appeal,1 appellant, mother, challenges the trial court’s
order, entered after a jury trial, terminating her parental rights to her minor child,
C.A.J.2 In six issues, mother contends that the evidence is legally and factually
1 See TEX. FAM. CODE ANN. § 263.405(a); TEX. R. APP. P. 28.4. 2 The trial court also terminated the parental rights of C.A.J.’s alleged father. He is not a party to this appeal. insufficient to support the jury’s finding that termination of her parental rights was
in the best interest of C.A.J.,3 the trial court erred in appointing the Department of
Family and Protective Services (“DFPS”) as C.A.J.’s sole managing conservator and
in excluding certain evidence at trial, her trial counsel provided her with ineffective
assistance of counsel, the trial court’s judgment does not conform to the verdict, and
the case should be remanded to the trial court for a new trial in the interest of justice
because of the cumulative effect of the trial court’s errors.
We affirm.
Background
On January 18, 2018, the DFPS filed a petition seeking termination of
mother’s parental rights to C.A.J. and managing conservatorship of C.A.J.4
Removal Affidavit
At trial, the trial court admitted into evidence a copy of the affidavit of DFPS
Investigations Supervisor Nisela Zamorano. Zamorano testified that on January 12,
2018, DFPS received a referral alleging negligent supervision of C.A.J. by mother.
C.A.J., who was five years old in January 2018, had tested positive for cocaine use
on January 8, 2018 after being taken to West Oaks Hospital (“West Oaks”)—a
3 See TEX. FAM. CODE ANN. § 161.001(b)(2). 4 C.A.J. was born in March 2012. He was five years old when he was removed from mother’s care in January 2018, and he was seven years old at the time of trial.
2 hospital that provides psychiatric care for children. Mother took C.A.J. to West
Oaks after he stated that he wanted to harm himself and mother. 5 According to the
referral received by DFPS, on January 10, 2018, C.A.J. was retested for narcotics
use. The narcotics-use testing results from January 10, 2018 were negative for
cocaine use, which indicated either that there had been a mistake with C.A.J.’s
January 8, 2018 testing or that the cocaine that was previously in C.A.J.’s system
had “left his system” before the January 10, 2018 retest.
Regarding DFPS’s investigation of the allegation of negligent supervision,
Zamorano testified that DFPS Investigator Melissa Scott6 interviewed C.A.J. at West
Oaks. C.A.J. appeared clean and healthy. C.A.J. told Scott that he was in the
hospital “for saying hateful things to his mother.” C.A.J. said that he had an attitude
with mother and was mean to her when he had no reason to be. C.A.J. stated that he
and mother lived together in a home, there was food in his home, and he received
timeouts when he got in trouble. C.A.J. noted that he took medicine at home “for
not listening.”
Scott also spoke with David Page, a caseworker at West Oaks, who stated that
C.A.J. was admitted to the hospital on January 7, 2018. C.A.J. was diagnosed with
5 At the time that Zamorano signed her affidavit on January 18, 2018, C.A.J. was still a patient at West Oaks. 6 The trial court admitted into evidence a copy of Scott’s Child Protective Services (“CPS”) Investigation Report. We note that Scott’s first name is spelled differently throughout the record.
3 disruptive mood dysregulation disorder (“DMDD”) and attention deficit
hyperactivity disorder (“ADHD”) and prescribed medication. On January 8, 2018,
the day after he was admitted to West Oaks, C.A.J. tested positive for cocaine use
by urinalysis. He was retested on January 10, 2018 by urinalysis, and he tested
negative for cocaine use. It could not be determined whether the January 8, 2018
positive testing results were a mistake because, by the January 10, 2018 retest, the
cocaine that was previously present in C.A.J.’s system could have left C.A.J.’s
system.
When Scott interviewed mother, she admitted to being a user of cocaine and
explained that after she quit drinking alcohol, she began using cocaine. Mother
stated that the last time she had used cocaine was while C.A.J. was being treated at
West Oaks in January 2018. Mother denied using cocaine in her home, but she
admitted to using cocaine at her friend’s house. Mother stated that she did not bring
narcotics into the home. Mother did not know how C.A.J. would have ingested
cocaine and could not explain why C.A.J. could have tested positive for cocaine use.
While speaking to C.A.J.’s babysitter on the telephone in front of Scott, mother told
the babysitter that she had “used cocaine in the park one day.”7
7 Scott’s CPS Investigation Report states that when mother visited C.A.J. at West Oaks for a “family session” her behavior was erratic. She “constantly hiccupped and sniffed and wiped her nose with her fingers.” Mother was “seemingly unable to remain in a comfortable seated position,” her eye contact was erratic, and she “fumbled in her chair.” Mother’s pupils appeared to be dilated, and she had trouble 4 During her interview with Scott, mother acknowledged that she had a criminal
history and a history with DFPS. Mother also told Scott that she had been “arrested
because she had fallen asleep behind the wheel [of the car], but [the criminal case
against her was] going to be dismissed.”8 On the day of that arrest, mother consumed
“one shot” of alcohol at a restaurant.
Regarding C.A.J., mother told Scott that she did not receive child support from
C.A.J.’s father. C.A.J. took Adderall, and after being admitted to West Oaks, C.A.J.
had also been prescribed Abilify. Mother took C.A.J. to West Oaks after he was
“very withdrawn with her” and “made . . . threatening statements.” According to
mother, she stated that C.A.J. had stated in the past that his “life [was] worthless”
and he would throw things. (Internal quotations omitted.)
Zamorano’s affidavit also detailed mother’s history with DFPS. In fall 2012,
when C.A.J. was an infant, he was removed from mother’s care after she was found
highly intoxicated while caring for the child. Mother admitted that she could not
recall the details of that evening.9 About a month later, mother was transported to
answering questions. The therapist in the family session believed that mother was “under the influence of a substance[].” C.A.J. moved seats and seemed uncomfortable sitting next to mother. As Scott explained in her report, because of mother’s “erratic behavior[] [and C.A.J.’s] possible cocaine trace,” “there [was] concern of substance abuse in [mother’s] situation and [there was a] consequential a concern for [C.A.J.’s] well[-]being.” 8 The date of this arrest is unclear. 9 Scott’s CPS Investigation Report states that, in October 2012, mother was found unresponsive after consuming a large quantity of alcohol. C.A.J. was present at the 5 the hospital for “a possible overdose and alcohol abuse.” Mother told the nurse that
she had taken “two pills,” and she tested positive for barbiturates use. C.A.J. was
then placed in foster care, but he was returned to mother’s care at some point.10
In January 2013, mother was found unconscious while caring for C.A.J. as the
result of either drinking alcohol or using pills.11 Mother admitted to consuming
alcohol and to “passing out.” Testing results showed that mother was positive for
alcohol use. C.A.J. was again removed from mother’s care. After mother completed
certain requirements dictated by DFPS, C.A.J. was returned to her care.12
time. Another adult was also present, but he or she was not completely sober and was not comfortable caring for C.A.J. Concerns were raised about mother’s ability to safely care for C.A.J. due to her level of alcohol consumption. Mother admitted to not being able to recall the details of that evening. 10 Scott’s CPS Investigation Report states that, in November 2012, a subsequent report was made that mother was unable to provide appropriate care for C.A.J. as she had possibly overdosed, was in the hospital, and had no one to care for C.A.J. Mother told the nurse at the hospital that she had taken “two pills.” Narcotics-use testing results showed that mother was positive for barbiturates use, and C.A.J. was placed into foster care. The suit against mother was dismissed in December 2012 because of a “no show” by the local CPS agency. 11 Scott’s CPS Investigation report states that, on January 30, 2013, mother placed C.A.J. at risk of harm because she was found unconscious for a third time while caring for C.A.J. Mother admitted to consuming alcohol and remembered “passing out.” C.A.J. was again removed from mother’s care. The report notes that mother refused to accept that she had a problem with or an addiction to alcohol and she denied needing inpatient treatment services. Mother insisted that she was having a negative reaction to her medications which caused her to “black out[]” and “pass[] out.” (Internal quotations omitted.) Mother purportedly hid liquor bottles in the freezer, the cabinets, the restroom, and luggage areas in her home. 12 Scott’s CPS Investigation Report states that C.A.J. was returned to mother’s care after she completed “court ordered services” and “remained sober.”
6 In 2016, C.A.J. was removed from mother’s care for a third time when a law
enforcement officer found mother “intoxicated and incoherent at a red light with
[C.A.J.] in the car.” C.A.J. handed the law enforcement officer “a bottle of [liquor]
and stated that it was . . . mother’s [bottle].” Mother admitted to consuming alcohol
that day. After mother completed certain requirements dictated by DFPS, C.A.J.
was returned to her care.
Dr. Uzokwe
Dr. Festus Uzokwe, a psychiatrist who treated C.A.J. at West Oaks, testified
that C.A.J. was admitted to West Oaks on January 7, 2018 because “he was feeling
like killing himself” and had been “hearing voices telling him to hurt himself” and
mother.13 He was angry and agitated. C.A.J. was supposed to be taking Adderall
regularly while in mother’s care because he had been previously diagnosed with
ADHD. Dr. Uzokwe also diagnosed C.A.J. with DMDD and prescribed Abilify, a
psychotropic drug, to address C.A.J.’s hallucinations. Dr. Uzokwe noted that he had
difficulty reaching mother to discuss C.A.J.’s condition or treatment while C.A.J.
was a patient at West Oaks, but he did speak to her on one occasion. When he did
13 The trial court admitted into evidence a copy of C.A.J.’s records from West Oaks. The notes in the records state that C.A.J. threatened to kill mother and himself with a knife by cutting his own throat because of auditory hallucinations. C.A.J. was exhibiting physical aggression at home and school. C.A.J. reportedly would “rage[] with minimal provocation,” yell, and break things. His aggression purportedly started about six to eight weeks before January 7, 2018. Mother was also concerned about C.A.J. lying.
7 so, mother reported to Dr. Uzokwe that C.A.J. had been experiencing “moodability,”
aggression, and difficulty sleeping, and he had been hearing voices. Mother
consented to C.A.J. being given Adderall and Abilify, although she expressed
concern about the potential for addictiveness.
Dr. Uzokwe also explained that on January 8, 2018, C.A.J. was tested for
narcotics use. The urinalysis testing results14 showed that C.A.J. was positive for
cocaine use, and they did not show that C.A.J. had been taking his Adderall while in
mother’s care.15 Because cocaine usually only stays in a person’s urine for two to
three days, the January 8, 2018 positive testing results indicated that C.A.J. would
have ingested cocaine within forty-eight to seventy-two hours before being brought
to West Oaks. In other words, C.A.J. would have ingested cocaine while in mother’s
care. Dr. Uzokwe explained that the ingestion of cocaine by a child is worrisome
because it could cause increased agitation, irritability, hallucinations, paranoia,
respiration difficulty, sleeping difficulty, and an increase in heart rate, which could
lead to a heart attack or a stroke.
Because of the January 8, 2018 positive testing results, C.A.J. was retested for
narcotics use on January 10, 2018. The urinalysis testing results from January 10,
14 The trial court admitted into evidence a copy of the January 8, 2018 narcotics-use testing results for C.A.J. 15 According to Dr. Uzokwe, the January 8, 2018 narcotics-use testing results should have shown that C.A.J. was taking Adderall unless he was not being given it regularly while in mother’s care.
8 2018 showed that C.A.J. was negative for cocaine use, but that he was taking his
Adderall—which the hospital staff had been giving him since his arrival on January
7, 2018. Dr. Uzokwe noted that these testing results could mean that the cocaine
that was previously in C.A.J.’s system had “passed” or “gone out” or it was possible
that there was a mistake with the January 8, 2018 positive testing results.
Dr. Uzokwe also testified that, while at West Oaks, C.A.J. participated in
group activities and counseling sessions with the goal of establishing “coping
strategies or anger management skills appropriate for [C.A.J.’s] age and
problem[-]solving skills.” C.A.J. was discharged from West Oaks at the end of
January. At the time that he was discharged, C.A.J. was not experiencing
hallucinations or suicidal or homicidal thoughts. C.A.J. was instructed to continue
taking Adderall and Abilify after leaving West Oaks.16
According to Dr. Uzokwe, C.A.J., while being treated at West Oaks, was
cooperative and smart, but he had episodes of behavioral challenges. C.A.J., during
his counseling or therapy sessions, identified mother as a coping resource, and he
appeared to be bonded with her. C.A.J. stated that he relied on mother for support
16 C.A.J.’s records from West Oaks state that he was discharged on January 31, 2018. At the time of discharge, C.A.J. had goal-oriented and logical thought processes, did not show signs of delusion or paranoia, was not experiencing hallucinations, and did not have suicidal or homicidal thoughts.
9 and “felt he could go to her.” Dr. Uzokwe did not have any concerns about C.A.J.
not being fed while in mother’s care or about his physical appearance.
Bruce Jeffries
Bruce Jeffries, who works for the National Screening Center and National
Assessment Center, testified as an expert on narcotics-use testing. Regarding
C.A.J.’s narcotics-use testing, Jeffries explained that C.A.J. was tested for narcotics
use for a third time on January 22, 2018. The hair follicle testing results17 showed
that C.A.J. was positive for cocaine use, specifically that C.A.J. had ingested cocaine
sometime within the ninety days before the January 22, 2018 test. The results
indicated that C.A.J.’s level of usage of cocaine was “[a] lot” and that C.A.J. was
using cocaine “almost daily” during the previous ninety days. Jeffries stated that
C.A.J. was a “chronic user” of cocaine. And Jeffries had “no doubt” that C.A.J. had
ingested “high levels of cocaine.” Jeffries opined that a five-year-old ingesting
cocaine was dangerous and that a child could be given cocaine daily without being
aware of it.
Jeffries also stated, about C.A.J.’s January 8, 2018 narcotics-use testing
results, that the urinalysis results did not show that C.A.J. had any Adderall in his
system, but it showed that he was positive for cocaine use. However, Jeffries could
17 The trial court admitted into evidence a copy of the January 22, 2018 narcotics-use testing results for C.A.J.
10 not determine from the January 8, 2018 testing results whether C.A.J. had been
taking his Adderall as prescribed. The positive testing results for cocaine use
indicated that C.A.J. had ingested cocaine one to three days before January 8, 2018.
And if C.A.J. had ingested cocaine before he was admitted to West Oaks on January
7, 2018, it may have left his system by the January 10, 2018 retest. Although Jeffries
generally questioned the validity of the January 8, 2018 and January 10, 2018
narcotics-use testing that occurred at West Oaks, he was confident that the
narcotics-use testing performed by his company on January 22, 2018, which showed
that C.A.J. had ingested cocaine, was reliable. Jeffries stated that he was “100
percent” confident that C.A.J. had ingested “[a] lot” of cocaine sometime within
ninety days before the January 22, 2018 narcotics-use testing and no combination of
medications would have caused the January 22, 2018 positive testing results that
revealed cocaine use.
Regarding mother’s narcotics-use testing, Jeffries testified that mother was
tested for narcotics use on January 18, 2018.18 The hair follicle testing results
showed that mother was positive for cocaine use, specifically that mother had
ingested cocaine sometime within the ninety days before the test—likely when
C.A.J. was in her care. As with C.A.J., the results indicated that mother was using
18 The trial court admitted into evidence a copy of the January 18, 2018 testing results for mother.
11 cocaine on a daily or “nearly daily” basis within the ninety days before the January
18, 2018 test. Jeffries described mother’s cocaine usage as “heavy.” The urinalysis
testing results from January 18, 2018 showed that mother was positive for cocaine
use and prescription Xanax use.19 Based on these results, Jeffries explained that
mother would have used cocaine within the three days before the test. The level of
cocaine in mother’s urine was “pretty high,” indicating that mother would have
“used an extensive amount of cocaine” sometime within the seventy-two hours
before the January 18, 2018 test.
Jeffries testified that mother was tested again for narcotics use on March 8,
2018.20 The hair follicle testing results showed that mother was positive for cocaine
use, specifically that mother had ingested cocaine sometime within the ninety days
before the test. The urinalysis testing results showed that mother had not used
cocaine within the seventy-two hours before the March 8, 2018 test.
Mother was next tested for narcotics use on May 24, 2018.21 The hair follicle
testing results showed that mother was positive for cocaine use, specifically that
19 Jeffries noted that Xanax usually stays in a person’s urine for one to three days, but it could stay in a person’s urine for up to fourteen days. Cocaine stays in a person’s urine for up to three days. 20 The trial court admitted into evidence a copy of the March 8, 2018 testing results for mother. C.A.J. had not been in mother’s care since January 2018. 21 The trial court admitted into evidence a copy of the May 24, 2018 testing results for mother.
12 mother had ingested cocaine within the ninety days before the test.22 According to
Jeffries, this would indicate that mother had used cocaine sometime between her first
January 18, 2018 narcotics-use test and her May 24, 2018 narcotics-use test and after
C.A.J. had been removed from her care. The urinalysis testing results showed that
mother had not used cocaine within seventy-two hours of the May 24, 2018 test.
Mother was again tested for narcotics use on June 14, 2018.23 The urinalysis
testing results showed that mother was positive for barbiturates and codeine use.
Mother was then tested for narcotics use on October 3, 2018, November 30,
2018, and February 6, 2019.24 Mother’s October 3, 2018 urinalysis testing results
showed that mother was positive for prescription Valium and Vicodin use. And
mother’s November 30, 2018 urinalysis testing results showed that mother was
positive for prescription Vicodin use. Further, mother’s February 6, 2019 urinalysis
testing results showed that mother was positive for prescription Xanax, Valium, and
Vicodin use. Jeffries noted that mother would need prescriptions for the positive
testing results for such narcotics to not be concerning. Yet, the results for mother’s
22 Ninety days before May 24, 2018 is February 24, 2018. See Higginbotham v. Gen. Life & Accident Ins., Co., 796 S.W.2d 695, 696 (Tex. 1990) (court may take judicial notice of dates). 23 The trial court admitted into evidence a copy of the June 14, 2018 testing results for mother. 24 The trial court admitted into evidence copies of the October 3, 2018, November 30, 2018, and February 6, 2019 testing results for mother.
13 narcotics-use testing on June 14, 2018, October 3, 2018, November 30, 2018, and
February 6, 2019, copies of which the trial court admitted into evidence, stated that
mother’s testing results were considered “positive [for prescription narcotics use]
until further verification of prescriptions.”
On May 30, 2019 mother tested negative for narcotics use.25
DFPS Investigations Supervisor Zamorano
DFPS Investigations Supervisor Zamorano testified that on January 12, 2018,
DFPS received a report alleging negligent supervision of C.A.J. by mother after
C.A.J. tested positive for cocaine use while being treated at West Oaks. The report
also alleged that mother had arrived at West Oaks acting erratically and nervously.
After DFPS received the report, mother consented to having C.A.J. tested for
narcotics use by DFPS. Mother also participated in an interview with a DFPS
investigator. During her interview with the investigator, mother admitted to using
cocaine, but stated that she had never used narcotics around C.A.J. Therapists from
West Oaks also told the DFPS investigator that C.A.J. was angry and upset by
mother. During his interview with the DFPS investigator, C.A.J. denied being left
alone while in mother’s care, denied seeing any narcotics, and denied seeing mother
25 The trial court admitted into evidence a copy of the May 30, 2019 testing results for mother. The trial court also admitted into evidence a copy of the testing results from June 27, 2019, which were negative for narcotics use.
14 using narcotics or consuming alcohol. At the completion of DFPS’s investigation,
it was determined that there had been neglectful supervision of C.A.J. by mother.
Regarding mother’s history with DFPS, Zamorano explained that C.A.J. was
removed from mother’s care and placed in a foster home in November 2012 when
C.A.J. was an infant because allegedly mother had been highly intoxicated while
caring for C.A.J. It was also reported to DFPS that mother had potentially
overdosed. Mother admitted to being intoxicated and “taking some pills” while
C.A.J. was in her care. C.A.J. was later transitioned back into mother’s care in
January 2013, but within about two weeks of C.A.J. being returned to mother’s care,
he was removed again due to concerns with mother’s continued narcotics use and
alcohol abuse. C.A.J. was returned to mother’s care in October 2013. According to
Zamorano, C.A.J. was later removed from mother’s care in June 2016 after a “traffic
incident” involving mother. Mother was found intoxicated, incoherent, and
unresponsive at a red light with C.A.J. in the car with her. When a law enforcement
officer arrived at the scene, C.A.J. handed him a bottle of liquor. C.A.J. was later
returned to mother’s care in November 2016 after mother “worked services [dictated
by DFPS] . . . and regained sobriety.”
In Zamorano’s opinion, it was not safe for C.A.J. to be returned to mother’s
care after he was discharged from West Oaks at the end of January 2018 because of
mother’s narcotics use. And although C.A.J. was bonded with mother, Zamorano
15 stated that she had “grave concern” about the fact that C.A.J. had tested positive for
cocaine use given that mother had a history of substance abuse. And although
mother had participated in substance-abuse treatment in the past, she tended to revert
to the same behavior. Because of C.A.J.’s previous removals from mother’s care
and the level of cocaine found in his system, in Zamorano’s opinion, it was crucial
that C.A.J. remain in a safe and stable home for the rest of his childhood.
Zamorano further noted that after being discharged from West Oaks, DFPS
placed C.A.J. in a “therapeutic foster home.”26 It was important for C.A.J. to be
placed in a therapeutic foster home because he had been diagnosed with ADHD and
DMDD, he had tested positive for cocaine use, and he had expressed suicidal and
homicidal thoughts.
Sergeant Collier
Corpus Christi Police Department (“CCPD”) Sergeant J. Collier testified that
on June 27, 2016,27 around 6:22 p.m., she was dispatched in response to a call about
mother being “passed out behind the wheel” of a car that was stopped in the left-hand
lane of a major roadway. When Collier arrived at the scene, which was a busy
intersection, she saw mother “passed out” in the driver’s seat of her car, “slumped
26 Zamorano described a “therapeutic foster home” as a “foster home that caters more to children with more needs in terms of having more hands-on care.” 27 The trial court took judicial notice that June 27, 2016 was a Monday.
16 over,” and unconscious. Collier could smell “the intoxicating beverage emanating”
from mother. Mother’s car was in the middle of the street. Emergency medical
technicians (“EMTs”) were attending to mother, and they administered Narcan
because it was unclear why mother was unconscious.28 Because Narcan did not have
any effect on mother, the EMTs did not believe narcotics use to be the reason for
mother’s unresponsiveness. Mother did regain consciousness before leaving the
scene, but Collier noted that mother continued to be “[i]n and out” of consciousness
until she arrived at the hospital. The EMTs transported mother to the hospital by
ambulance.
While searching mother’s car, Collier found a partially empty liquor bottle,
and the EMTs gave her an empty prescription bottle for hydrocodone with mother’s
name on it, which they had found in mother’s lap. Collier believed that mother was
intoxicated, and she explained at trial that it was unusual to find someone driving
while intoxicated with a child in the car. At the hospital, mother was uncooperative
with the medical staff, her speech was slurred, and her eyes were red and glassy.
Collier stated that mother was “obviously intoxicated” but not unconscious at the
hospital. Collier did not have mother perform any field sobriety tests at the hospital
because Collier felt that “due to her intoxicated state she could hurt herself if she
28 Narcan is an antidote to opioid overdose. See Bowen v. State, No. 02-19-00255-CR, 2020 WL 1949021, at *2 n.5 (Tex. App.—Fort Worth Apr. 23, 2020, pet. ref’d) (mem. op. not designated for publication).
17 tried walking.” Collier obtained a search warrant so that mother’s blood could be
drawn.
Regarding C.A.J., Sergeant Collier stated that he was found unbuckled in the
back seat of mother’s car by the first law enforcement officer that arrived at the
scene. C.A.J. handed that first arriving officer the liquor bottle that Collier later
recovered from mother’s car. No one else was in the car other than mother and
C.A.J. In Collier’s opinion, C.A.J. was in danger while inside the car with an
unconscious mother because mother’s car was parked in the middle of the street, so
it could have been hit by another car. C.A.J. was also four years old at the time, and
he could have “run off” or been “hit by a car.” At the scene, C.A.J. was upset and
worried about mother. And he was worried “about where he was going to be going”
and “[w]ho was going to be taking care of him.” C.A.J. did not appear to be
physically harmed and appeared healthy to Collier.29
29 The trial court admitted into evidence a copy of the CCPD “Incident/Investigation Report” from the June 27, 2016 incident involving mother. The first arriving law enforcement officer stated the following in the report: I . . . was patrolling the area . . . , when I observed several vehicles at a stop on the 5100 block of Weber NB and several citizens assisting a female inside a small passenger car, slumped over her steering wheel. The female was unresponsive. An unknown citizen advised that the vehicle was off and she witnessed the female appear[ing] to be asleep inside her car, on the roadway; therefore, she pulled over to assist. . . . [T]here was heavy traffic during th[at] time. I witnessed a child in the back of the vehicle, out of his child safety seat, and I witnessed a 2/3 full liquor bottle on the front passenger seat, next to a large purse. The child grabbed the 18 DFPS Caseworker Owens
DFPS caseworker LaQuesha Owens testified that C.A.J. entered DFPS’s care
after he and mother tested positive for cocaine use in January 2018. After C.A.J.
entered DFPS’s care, he was discharged from West Oaks at the end of January 2018
and placed in a foster home from January 2018 to May 2018. In May 2018, C.A.J.
was admitted to IntraCare North Hospital (“IntraCare North”)—a psychiatric
hospital—for about a month.30 C.A.J. was then placed in another foster home from
June 1, 2018 until July 6, 2018, while DFPS waited for the results of a home study
for a foster to adopt placement in Corpus Christi, Texas. The potential foster to
adopt placement was with a family that C.A.J. had previously known and stayed
with. C.A.J. stayed with the foster family in Corpus Christi from July 2018 until
November 2018.31 Ultimately though, C.A.J.’s Corpus Christi foster family could
liquor bottle and handed it to me and stated, “this is my mommy’s drink.” . . . I placed the liquor bottle on the floor board behind the driver[’]s seat and advised assisting officers of my finding. I then grabbed the child and placed him in my patrol [car] while [the EMTs] attended to his mother, who remained unresponsive. The report contains additional information about the June 27, 2016 incident, and states that mother was “arrested for suspicion of driving while intoxicat[ed] with a child.” 30 At IntraCare North, C.A.J. was again diagnosed with ADHD and DMDD. 31 C.A.J.’s Corpus Christi foster mother, Alda Hernandez, testified that she met mother in 2013 when mother was a resident at an inpatient substance abuse rehabilitation center and Hernandez was the female program manager. They maintained contact after mother left the rehabilitation center, and when C.A.J. was reunited with mother sometime after July 2013, Hernandez would babysit him while mother worked. C.A.J. was about two years old at the time, and he and mother both lived in Corpus 19 not continue caring for him because of an emergency health situation with another
member of the foster family.32 DFPS then sought to find C.A.J. another “forever
home.” In November 2018, C.A.J. was placed in a foster home with a new adoptive
foster family, which DFPS thought would be a good fit for him. After about two
weeks though, the foster mother reported that she could not handle C.A.J.’s
misbehavior and asked that C.A.J. be removed from the home. Thus, C.A.J. was
moved to another adoptive foster family on November 20, 2018. C.A.J. was still in
that foster placement at the time of trial.33
Christi. Hernandez was also called to pick up C.A.J. at the scene on June 27, 2016 when mother was found unconscious in the driver’s seat of her car with C.A.J. in the back seat. DFPS temporarily placed C.A.J. in Hernandez’s home for about two months after the June 27, 2016 incident. 32 Hernandez testified that when C.A.J. was placed with her family in July 2018, she and her husband planned to adopt him. However, Hernandez’s daughter-in-law had a stroke and became disabled, which required certain additional family members to move into Hernandez’s home, and she and her family were not going to be able to give C.A.J. the support that he needed. Hernandez stated that, while in her care in 2018, C.A.J. took medications to help with listening, sleeping, and waking up in the morning. C.A.J. had been diagnosed with oppositional defiant disorder (“ODD”), ADHD, and depressive mood disorder, and he saw a therapist while in Hernandez’s care. When C.A.J. came to live with her family in July 2018, he would throw tantrums when things did not go his way, he would hit himself, he would scratch himself, and he would say things like no one loved him, he wanted to go to back to the hospital, he wanted to hurt mother, he did not want to see mother, and he wanted to hurt himself. According to Hernandez, C.A.J. would, “[a]t times,” report that he missed mother. After C.A.J. would have visits with mother, he would “come back very aggressive” and would “act[] out” for a couple of days, which was different than his normal behavior. 33 C.A.J. met his current foster parents before he was placed with them.
20 Regarding C.A.J.’s current adoptive foster placement, when C.A.J. was
placed with his current foster family, there was a foster mother, a foster father, and
a thirteen-year-old foster child in the home.34 Prior to placing C.A.J. with his current
foster family, Owens spoke with the foster parents about his history of misbehavior,
acting out, being defiant, cursing, lying about certain situations, and taking things
that did not belong to him. The first couple of months in C.A.J.’s current placement
were “rough” because of C.A.J.’s misbehavior and because the thirteen-year-old
foster child in the home admitted to engaging in inappropriate sexual touching with
C.A.J.35 The inappropriate sexual touching incident occurred in November or
December 2018, and upon learning of its occurrence, C.A.J.’s foster parents
immediately separated the thirteen-year-old foster child and C.A.J. And C.A.J. and
his foster mother left the home until the thirteen-year-old foster child was removed
from the home and placed elsewhere. The foster parents also immediately reported
the incident to the appropriate agencies, and C.A.J.’s foster mother took C.A.J. to
therapy to help him deal with the situation. C.A.J. continued to see a therapist
34 The thirteen-year-old foster child may have been placed in the foster home shortly after C.A.J. was placed in the home. 35 The thirteen-year-old foster child admitted to being the instigator of the inappropriate sexual touching. Owens noted that the thirteen-year-old foster child had previously been a victim of sexual abuse and neither DFPS nor the C.A.J.’s foster parents were aware of the child’s sexual-abuse history when C.A.J. was placed in the foster home. DFPS’s investigation revealed that the inappropriate sexual touching incident was not a “one-time thing,” but had occurred over a period of a few weeks.
21 throughout the pendency of the termination case, and his current foster parents take
him to his therapy appointments.36 According to Owens, C.A.J.’s current therapist
did not believe that C.A.J. would have long-lasting effects from the inappropriate
sexual touching incident with the thirteen-year-old foster child.
Owens further testified that C.A.J.’s behavior improved in the beginning of
2019 and he was doing better in his current foster home.37 C.A.J. had a very good
relationship with his foster parents and there appeared to be a bond between them.
C.A.J.’s foster parents told Owens that they wanted to see C.A.J. in a permanent,
stable, and safe placement and they wanted to adopt him. C.A.J.’s foster parents are
committed to him. Owens believed that the best placement for C.A.J. was his current
foster placement because his foster parents keep him safe and provide him with
stability and permanency with his schooling and in the home. C.A.J.’s foster parents
have not put him in any danger. Owens noted that she had observed the foster
parents’ parental abilities and she did not have concerns.38 For instance, when C.A.J.
36 Owens testified that she was comfortable with the steps that C.A.J.’s current foster parents took to address the inappropriate sexual touching incident after they learned about it. 37 The only people living in C.A.J.’s current placement at the time of trial were him, his foster mother, and his foster father. 38 Child Advocates, Inc. volunteer Joy Franklin testified that she had observed C.A.J. in his current foster placement. C.A.J. appeared happy, seemed to be a part of the community, and “look[ed] like he[] [was] in a home-like environment.” She believed that C.A.J. should remain with his current foster placement, which had structured, loving, and nurturing caregivers, who provided C.A.J. with a solid foundation.
22 was “acting out,” his foster parents would tell him that there were consequences for
his actions, such as having his iPad taken away or an outing canceled due to his
misbehavior.
Owens did note that mother had suggested other possible placements for
C.A.J., including with her girlfriend, Amber. Although DFPS looked into Amber as
a possible placement for C.A.J., Owens stated that DFPS did not feel that Amber
would be protective of C.A.J. or be able to keep him safe. And Owens explained
that Amber had not seemed to take an interest in C.A.J. during the pendency of the
termination case. According to Owens, DFPS also looked into placing C.A.J. with
his maternal grandparents, but they declined to take him, stating that they would not
be able to care for him due to their age and the fact that C.A.J.’s older sister was
already living in their home. C.A.J.’s maternal grandmother also told Owens that if
C.A.J. were to come live with her, she wanted to be able to give him back to mother
without DFPS’s involvement.
Regarding mother’s substance-abuse issues, Owens testified that mother
attended the Nexus Recovery rehabilitation facility (“Nexus Recovery”) in Dallas,
Texas around March 2018 after C.A.J. was removed from her care. And at some
point, in spring 2018, mother was successfully discharged from that rehabilitation
facility. Mother then “relapsed” “with pills” and entered the Cenikor rehabilitation
23 facility (“Cenikor”) in Deer Park, Texas.39 In May 2018, mother was unsuccessfully
discharged from Cenikor because she had twice tested positive for opiates and
benzodiazepines use. Next, mother entered a ninety-day outpatient treatment
program at Billy T. Cattan Recovery Outreach Center (“Billy T. Cattan Recovery”)
in Victoria, Texas. Mother began that program in June 2018, and she was
unsuccessfully discharged in January 2019 for “excessive absences” and not
complying with treatment.”40 In February 2019, mother entered the La Hacienda
Treatment Center (“La Hacienda”) in Kerrville, Texas and she successfully
completed a thirty-day treatment program. The goal after mother completed the
program at La Hacienda was for her to “maintain her sobriety” and to become
39 The trial court admitted into evidence a copy of the “Discharge Summary” from Cenikor, which states that mother began treatment at the rehabilitation facility on May 1, 2018 and she was discharged on May 25, 2018. The “Final Assessment” in the report states that mother “did not appear motivated to change the behavior[] and attitude[] that contributed to her addiction. She was at a high risk of relapse at discharge.” It also notes that mother “d[id] not have a supportive family situation” at the time. 40 The trial court admitted into evidence copies of several “Monthly Progress Report[s] and Treatment Team Meeting Record[s]” from Billy T. Cattan Recovery, which state that mother entered treatment on June 11, 2018. The June 30, 2018 progress report states that her participation was “[p]oor” and she missed group and individual appointments. The July 31, 2018 progress report states that mother’s participation was “[p]oor” and her progress was “[p]oor.” Mother did not attend any appointments in July. The August 31, 2018 progress report states that mother’s participation was “[p]oor” and her progress was “[p]oor.” Mother missed five appointments in August. The September 30, 2018 progress report states that mother’s participation was “[p]oor” and her progress was “[p]oor.” Mother “made no progress th[at] month in [the] program” and had excessive absences. The October 31, 2018 progress report states that mother’s participation was “[p]oor,” her progress was “[p]oor,” and mother did not attend any appointments in October.
24 involved with an Alcoholics Anonymous program. Mother then entered a long-term
treatment program at Omega Recovery in Austin, Texas. In May 2019, shortly
before trial, mother was tested for narcotics use and that was the first test where
mother was negative for illegal and prescription narcotics use since the termination
case had begun.41
Regarding mother’s Family Services Plan (“FSP”), Owens explained that
mother was required to submit to a psychosocial evaluation, a substance-abuse
assessment, and random narcotics-use testing. Mother was also required to maintain
stable employment and stable housing, sign a “release of information form,” stay in
contact with the DFPS caseworker, and attend family-therapy sessions. Mother’s
counsel went over her FSP with her at a status hearing, and there was no indication
that mother was confused by its requirements. Owens noted that mother completed
the required parenting classes at one of the substance-abuse treatment programs that
she attended, and mother maintained contact with Owens through her attorney.
Mother missed two court hearings during the pendency of the case, and Owens did
not receive monthly proof that mother had stable employment.42 Owens stated that
proof of a stable income was necessary to show that mother could provide for C.A.J.
41 According to Owens, mother did not have prescriptions for certain prescription narcotics that she tested positive for during the termination case. In other words, mother’s “prescription list that she gave [Owens] and the results[] [from her narcotics-use testing] didn’t match.” 42 Owens noted that mother had been having problems with her nursing license.
25 if he was returned to her care.43 Mother did not participate in family-therapy sessions
because C.A.J.’s therapist never recommended that mother and C.A.J. attend
family-therapy sessions.44 As to mother’s ability to maintain safe and stable
housing, Owens testified that mother provided her with a leasing agreement in
October 2018. However, Owens also explained that when DFPS became involved
with C.A.J. in early 2018, mother was living in Houston, Texas, but in June 2018,
Owens was told that mother was living in Victoria with her girlfriend, Amber.
Owens then learned that mother had moved again, and at some point, during this
case, mother lived in Waco, Texas.
Regarding mother’s visits with C.A.J., Owens testified that mother had a visit
scheduled in February 2018. On the day of the visit, C.A.J. was brought to the visit
location, but mother did not timely arrive. When Owens called mother, mother told
Owens that she was about fifteen minutes away, but she showed up two hours later.
According to Owens, C.A.J. knew he was supposed to have a visit with mother that
day and he was expecting to see her, but mother was so late that C.A.J. left before
she arrived. Mother had a visit with C.A.J. in March 2018, but she cancelled her
visit with C.A.J. in April 2018. Mother then saw C.A.J. in May 2018, but Owens
43 Owens stated that mother gave C.A.J. clothes and gifts while he was in DFPS’s care. 44 C.A.J.’s therapist believed that participating in family-therapy sessions with mother would increase C.A.J.’s misbehavior.
26 was not present at that visit. Owens did observe mother’s visit with C.A.J. in June
2018, which Owens described as “fine.” Owens noted that mother’s interaction with
C.A.J. was appropriate and C.A.J. appeared bonded with mother. C.A.J. was excited
to see mother that day, and it was clear to Owens that mother and C.A.J. loved each
other. After the June 2018 visit, mother expressed concern that C.A.J. looked sick,45
“his toenails were too long,” she did not like his haircut, and his feet smelled.
Owens, who was present at the visit, did not share those same concerns about C.A.J.
Mother next attended visits with C.A.J. on August 9, 2018, August 16, 2018,
August 22, 2018. But in September 2018, the trial court stopped mother’s visits with
C.A.J. because there was concern about C.A.J.’s misbehavior before and after his
visits with mother. Mother did attend a “Christmas visit” with C.A.J. in December
2018, and C.A.J. seemed to have a good time with mother. Mother’s girlfriend,
Amber, also attended that visit, and Owens stated that it did not appear that C.A.J.
had a bond with Amber. Visits with mother and C.A.J. remained suspended until
April 2019, when C.A.J.’s therapist recommended that visits be resumed. Mother’s
visits with C.A.J. in April and May 2019 went well. Owens expressed concern
though that whenever C.A.J. would bring up something about his foster mother
45 Owens stated that she informed C.A.J.’s foster mother at the time of the sick “allegations” and the foster mother took C.A.J. to see a doctor who determined that C.A.J. was fine. Owens also mentioned mother’s hygiene concerns for C.A.J., and the foster mother took steps to address those concerns.
27 during a visit, for instance by saying, “Well, my mom,” mother would correct him
and tell him to use the term “foster mom” instead of “mom.” (Internal quotations
omitted.) This caused C.A.J. to be “taken aback.” Owens noted that C.A.J. said
“good things about [his] foster parents” during his visits with mother.
Regarding the suspension of mother’s visits with C.A.J. during the pendency
of the termination case, Owens stated that while C.A.J. was at West Oaks, his contact
with mother was cut off during the latter part of his stay, and after that occurred,
C.A.J. started telling his therapist that he was angry with mother and began talking
about wanting to die and wanting to kill mother. But C.A.J. also missed mother
while at West Oaks, and according to Owens, being cut off from mother during his
stay at West Oaks could have impacted C.A.J.’s misbehavior during that time.
After C.A.J. was discharged from West Oaks and placed in a foster home,
C.A.J. saw mother in March 2018 for a visit. Following that visit with mother,
C.A.J.’s misbehavior escalated. He started acting disrespectfully and aggressively
at school and at home, using profanity, and “taking things that didn’t belong to him.”
According to Owens, this misbehavior by C.A.J. was more than “the
typical . . . limit-testing behavior[]” that children normally exhibit. C.A.J.’s
behavior was centered around having contact with mother.46
46 Owens explained that when C.A.J. did not have contact with mother during the termination case, he would “do normal five-year-old things.”
28 Owens also testified that beginning in April 2018, after C.A.J. would have a
telephone call with mother, he acted out more, was more disrespectful to his foster
family, “started taking things that didn’t belong to him,” started lying more, and
began misbehaving in school. This trend of misbehavior continued to escalate after
a visit with mother. C.A.J. also started using “racial slurs” directed at his foster
family and his teacher. C.A.J.’s misbehavior prompted him to be taken to a
psychiatric hospital in May 2018, where he stayed about a month for treatment.47
Although his misbehavior subsided for a bit after he was discharged from the
psychiatric hospital, it eventually returned and was again exhibited after C.A.J.’s
visits with mother. For instance, C.A.J. would have “meltdowns that [would] last
over an hour” and he would threaten himself and mother. C.A.J. also started acting
out before his visits with mother. C.A.J. would say to his foster family such things
as “why do I have to go to these stupid visits” or “I told you . . . I didn’t want to see
her.” C.A.J would also hit his head on the wall. Then, after his visits with mother,
C.A.J. would have “total meltdowns” and “literally tear up his bedroom.” Such
misbehavior was concerning, and his visits with mother were stopped based on his
therapist’s recommendation. When C.A.J. was told that his visits with mother would
be stopped, he was “okay” with it.
47 According to Owens, C.A.J. was admitted to the psychiatric hospital because of his erratic behavior. He had made threats toward his foster parents, had threatened to harm himself, other kids at school, and his teacher, and was using racial slurs.
29 According to Owens, after C.A.J.’s visits with mother were suspended, C.A.J.
“settle[d] down” and she would not receive as many reports of C.A.J. exhibiting
aggressive behavior. However, after C.A.J.’s “Christmas visit” with mother, in
December 2018, C.A.J. tore up everything that mother brought him. Further, when
visits with mother resumed in April 2019, C.A.J.’s misbehavior started again both
before and after his visits with mother.
During her testimony, Owens expressed concern about mother’s parental
abilities due to mother’s “multiple rehab[] [stays] and . . . relapses” because such
difficulties did not indicate the stability that C.A.J. needed. Owens stated that
mother’s narcotics use, and alcohol use had placed C.A.J. in danger, and the fact that
C.A.J. ingested cocaine while in mother’s care was particularly dangerous. This
termination case was the fourth time that DFPS had to remove C.A.J. from mother’s
care. C.A.J. needed a safe and stable environment where his medical needs could
be taken care of. Owens noted that C.A.J. had been participating in therapy since he
came into DFPS’s care, particularly to address his emotions and misbehavior,
including his meltdowns. C.A.J. had received psychiatric treatment in every
placement he had been in while in DFPS’s care. And C.A.J. had several
psychological evaluations completed while in DFPS’s care. At the time of trial,
C.A.J. took certain medications for ADHD.
30 According to Owens, mother’s parental rights to C.A.J. should be terminated
because C.A.J. needed permanency and a safe, stable, narcotics-free environment
where he could be taken care of, not harmed, and where he could grow, be happy,
and prosper. C.A.J. should not be in a home where he feels like there is a possibility
that he will be removed and placed in DFPS’s care again.
C.A.J.’s Foster Mother
C.A.J.’s current foster mother testified that she, C.A.J., and her husband,
C.A.J.’s foster father, lived together in a home. C.A.J. started living with his current
foster family during the last week in November 2018, when he was six years old. At
the time of trial, C.A.J. had been living with his foster family for about eight months.
C.A.J.’s foster mother was told that C.A.J. had been struggling with his misbehavior
in his previous foster home and that he had threatened another child in the home.
After C.A.J. was placed in her home, another foster child, a thirteen-year-old, was
also placed in the home as well. C.A.J.’s foster mother was told that the
thirteen-year-old foster child had “a failed adoption,” his adoptive parents had “put
him back into foster care in January of 2018,” and he had been in a group home.
C.A.J’s foster mother was not told that the thirteen-year-old foster child had been
sexually abused in the past.
Regarding the inappropriate sexual touching incident between C.A.J. and the
thirteen-year-old foster child, C.A.J.’s foster mother explained that on the evening
31 of December 25, 2018, the thirteen-year-old foster child told her and her husband
that he had engaged in inappropriate sexual touching with C.A.J. and that “he didn’t
want it to happen anymore.” C.A.J.’s foster parents talked to the thirteen-year-old
foster child about what had happened, how it started, and why it started, and the
thirteen-year-old foster child disclosed “that there was some previous abuse from his
own family” that C.A.J.’s foster parents had not been told about. C.A.J.’s foster
parents immediately separated the thirteen-year-old foster child and C.A.J. C.A.J.’s
foster mother called the DFPS caseworkers who were involved and the “CPS intake
hotline.” C.A.J.’s foster mother stayed upstairs in their house with the
thirteen-year-old foster child and C.A.J.’s foster father went and sat downstairs with
C.A.J. Because it was already around 9:00 p.m. when the information was disclosed
and reported, that night, C.A.J.’s foster mother slept downstairs on the couch outside
the thirteen-year-old foster child’s bedroom and C.A.J.’s foster father and C.A.J.
both slept upstairs. The foster parents set up two baby monitors in each bedroom
“to make sure that no one was crossing paths.”
On December 26, 2018, C.A.J.’s foster parents contacted C.A.J.’s therapist,
who spoke to C.A.J. that day, and C.A.J.’s foster parents discussed with the therapist
what additional support C.A.J. might need as a result of the inappropriate sexual
touching incident. C.A.J. and his foster mother also went to stay at a friend’s home
by themselves for about ten to thirteen days, while C.A.J.’s foster father and the
32 thirteen-year-old foster child stayed at the family’s home until another placement
was found for that child. C.A.J.’s foster mother explained that this allowed for at
least one parent to remain with each child and ensured that C.A.J. and the
thirteen-year-old foster child no longer had any interaction. It was decided that
C.A.J. would stay with his foster mother because he would usually seek her out if he
needed comforting or if he was struggling with something.
C.A.J.’s foster mother also testified that she and her husband explained to
C.A.J. why he and his foster mother would be staying temporarily at a friend’s home,
and they told him that he could talk about the inappropriate sexual touching incident
with them, that it was safe for him to talk to them, and he could ask any questions
that he needed to. Additionally, they told C.A.J. that if he did not feel comfortable
talking to them, he could talk to his therapist. C.A.J.’s foster mother stated that in
her previous training about trauma-informed care, she was taught that when a foster
parent talked to a child about sexual abuse, it was not the foster parent’s job to
investigate or ask questions, the foster parent’s job was to support the child and to
let the child know that he was okay, that he was safe, and that it was okay to have
feelings about whatever was happening. Following the inappropriate sexual
touching incident, C.A.J.’s therapist did not have concerns about C.A.J. engaging in
inappropriate interactions or behavior with other children.
33 C.A.J.’s foster mother further explained that DFPS’s investigation determined
that the thirteen-year-old foster child was the perpetrator of the inappropriate sexual
touching incident. C.A.J.’s foster mother stated that had she and her husband known
about the thirteen-year old foster child’s sexual-abuse history, they would not have
had the children interact in the same way. However, without being informed of the
sexual-abuse history, they could not have known that allowing C.A.J. and the
thirteen-year-old foster child to play video games upstairs together, play outside
together, or to campout in the backyard in a tent could have been problematic.
As to C.A.J. in general, his foster mother reported that when C.A.J. first
entered his current foster home, he had a hard time listening to any direction that
was given and if he was “told no to something, it would trigger a large meltdown.”
A meltdown usually involved C.A.J. throwing himself on the floor, complaining
about whatever was happening, using foul language toward his foster mother,
throwing things, including things at his foster mother, tearing apart his room, ripping
his bed off of its box spring and taking the sheets off, dumping every toy out of his
toy box, and breaking toys. A meltdown could last anywhere from forty minutes to
four hours. During a meltdown, C.A.J.’s foster mother would “stand in the same
space as [C.A.J.] and let him know that the behavior he was having was not okay.”
She would talk to C.A.J. about “whatever was upsetting him” and that “breaking
things [was] not okay.” She would usually let C.A.J. finish having a meltdown and
34 then discuss with him afterward “what . . . [he] could have done differently.” It was
important for C.A.J.’s foster mother to stay in the same room with him while he was
having a meltdown so that she could make sure that he was safe and that he was not
going to hurt himself because he had hit himself in the past and had tried to hit his
head on the wall multiple times. If C.A.J. was ever going to hurt himself, she would
step in and hold him. She would also ask if he needed something different, like a
drink of water or a stuffed animal. C.A.J.’s “really bad tantrums” lasted until about
January 2019. At that point, a lot of his meltdowns were under control, and they
mostly just consisted of argumentative crying. In C.A.J.’s foster mother’s opinion,
the consistent structure and boundaries that were set and practiced in the home
helped curb C.A.J.’s meltdowns, as did letting C.A.J. know that he could talk to his
foster parents and that “nobody was going to be upset with him” because of his
feelings. From January 2019 until April 2019, C.A.J.’s foster mother stated that
C.A.J. was struggling in school behaviorally, but he was doing well academically.
At home, he was just displaying his “normal . . . argumentative behavior[].”
According to C.A.J.’s foster mother, however, when C.A.J. began his visits
with mother again in spring 2019, C.A.J. would become upset and start to say things
like “you’re not my mom, or you can’t tell me what to do, or I don’t have to listen
35 to you.”48 C.A.J. would also take the things that mother gave him at their visits and
“use them in excess and break them.” Before his visits with mother, C.A.J. would
say things like “I don’t want to go, or this is stupid, why do I have to [go].” And
after visits, C.A.J. would have anxiety and would not know what to do. For instance,
C.A.J. did not know if he could show his foster parents the things that he received
from mother or if he could tell them about his visits. His foster parents would tell
him that he could always talk to them about his visits with mother. C.A.J.’s foster
mother stated that she and her husband had never tried to dissuade C.A.J. from
talking about mother and they had encouraged C.A.J. to talk freely about mother.
She told C.A.J. that “his mom is his mom and that would never change, and that she
loves him[,] and he loves her, and that’s okay.” C.A.J. had a “photo box” that his
foster parents looked at with him, and he would tell them about his memories with
mother and stories about his sister and his grandparents.
C.A.J.’s foster mother stated that she hoped that C.A.J. would be placed
wherever he would be the safest, and if it was determined that he could not return to
mother’s care, then she and her husband would like to adopt him. If C.A.J. continued
living with his current foster family, they would continue to support him through
therapeutic interventions, behavior modifications at home, and redirection support.
48 C.A.J.’s foster mother testified that neither she nor her husband told C.A.J. that he had to call them “mom” and “dad.” C.A.J. could call his foster parents whatever he felt comfortable calling them.
36 C.A.J.’s foster mother explained that she would continue to take C.A.J. to therapy
sessions and help him participate in group therapy if desired. C.A.J. had “[a]
lot . . . happen[] in his life,” and therapy provided him with “a safe place to talk about
that.”49 She would also continue to take C.A.J. to doctor’s appointments. At the
time of trial, C.A.J. was taking two medications, and C.A.J.’s foster mother believed
that the medications helped regulate C.A.J.’s behavior.
C.A.J.’s foster mother noted that neither she nor her husband had a history
with cocaine use, alcohol abuse, or prescription-narcotics abuse. She had never been
intoxicated and neither she nor her husband had ever been so intoxicated that they
were rendered unconscious. C.A.J.’s current foster home was a stable environment.
In his foster mother’s opinion, it was important for C.A.J. to be in a home that was
free from alcohol or narcotics abuse and to have caregivers that were mentally and
physically present.
C.A.J.’s foster mother did explain that in February 2019, while she was out of
town for a night, C.A.J.’s foster father forgot to give C.A.J. his medications in the
morning. At some point that day, C.A.J. told his foster father that he was going to
play with a friend across the street, but when the foster father went to check, C.A.J.
49 C.A.J.’s foster mother noted that C.A.J. was placed in his current foster home during the last week in November 2018, and she took him to see a therapist the first week in December 2018. His foster mother also took C.A.J. to his yearly psychological evaluation in 2019 as instructed by DFPS. And she took him to see his primary care physician and for appointments with his psychiatrist.
37 was not there. C.A.J.’s foster father called his wife to see if she knew what other
friends C.A.J. would have gone to play with, and C.A.J.’s foster mother told him
about two other neighborhood homes because “sometimes all of the kids run
together.” C.A.J.’s foster father was then able to find C.A.J. C.A.J.’s foster mother
explained that usually C.A.J. was “pretty good about coming home and saying,
Mom, I’m going here, or can I go here, and letting [them] know.” But also C.A.J.’s
foster mother knew the parents at the homes that C.A.J. played at and she
communicated with them. She was comfortable that those parents could provide
adequate supervision for C.A.J. while he played with his friends.
Mother
Mother testified that she had two children: C.A.J. and M.W., C.A.J.’s sister,
who was seventeen years old at the time of trial. Mother stated that she was
employed at a restaurant as a server,50 and she lived in Portland, Texas. Although
mother had lived in Portland since October 2018, she also sought treatment at
multiple rehabilitation facilities located in other areas of Texas during the pendency
of the termination case. At the time of trial, mother’s nursing license was delinquent,
but according to mother, it had not been revoked. Mother stated that she received
50 Mother stated that she had also worked at a treatment center during the pendency of the termination case.
38 an FSP in February 2018 that provided her with a list of requirements which she
believed she had completed.
Mother also testified that she had a “better support system” in place at the time
of trial than she had in the past. Her support system included her best friend, Robert,
her parents, her girlfriend, Amber, her sponsor, and “people at work.”
Regarding her criminal history, mother testified that in 2002 she was
convicted of the offense of theft.51 On March 3, 2003, mother was arrested for the
offenses of possession of marijuana, theft, and “forgery due to fraud or harm.”52 On
May 30, 2003, she was arrested for the offense of “stealing and receiving a stolen
check,” and on October 14, 2003, she was arrested for the offense of possession of
a controlled substance.53 At some point in 2003, mother was convicted of the offense
of forgery of a financial instrument and her punishment was assessed at confinement
51 Certain exhibits that the trial court admitted into evidence state that on October 9, 2002, mother entered a plea of nolo contendere to the misdemeanor offense of theft. Mother was convicted of the misdemeanor offense of theft, and her punishment was assessed at confinement for five days. 52 Scott’s CPS Investigation Report states that on March 3, 2003, mother was arrested for the offenses of possession of marijuana, theft, and “forgery to defraud or harm . . . another.” 53 The trial court admitted into evidence a copy of a February 5, 2004 judgment stating that mother pleaded guilty to the felony offense of possession of a controlled substance, namely methamphetamine, weighing less than one gram, which had occurred on October 14, 2003. The trial court assessed her punishment at confinement for 180 days. Certain other exhibits that the trial court admitted into evidence state that on February 5, 2004, mother pleaded guilty to the felony offenses of forgery and possession of a controlled substance and her punishment was assessed at confinement for 180 days.
39 for 180 days.54 Further, in April 2004 and May 2004, mother was convicted of
multiple offenses of forgery of a financial instrument and she was sentenced to eight
months confinement for one offense and nine months confinement for the other
offense.55 In June 2011, mother was arrested for the offense of driving while
intoxicated, and in June 2012, when C.A.J. was an infant, mother was placed on
community supervision for twelve months related to that offense.56 Additionally, on
April 28, 2012, when C.A.J. was five weeks old, mother was arrested for the offense
of assault, but, according to mother, the criminal charges were later dismissed.57 On
54 Scott’s CPS Investigation Report states that mother was arrested for the offense of forgery of a financial instrument on October 14, 2003. And certain other exhibits that the trial court admitted into evidence state that on December 11, 2003, mother was convicted of “3 counts” of the felony offense of debit card abuse and the felony offense of “[f]raudulent [u]se or [p]ossession of [i]dentifying [i]nformation” and her punishment was assessed at confinement for six months. 55 Certain exhibits that the trial court admitted into evidence state that on May 28, 2004, mother was convicted of the felony offense of forgery and her punishment was assessed at confinement for nine months. Further, the exhibits state that on June 16, 2004, mother was convicted of another felony offense of forgery and her punishment was assessed at confinement for eight months. And on October 4, 2004, mother was convicted of the felony offense of forgery of a commercial instrument or check and her punishment was assessed at confinement for one year. Mother was also ordered to pay $2,923 to the complainant. 56 The trial court admitted into evidence a copy of a February 28, 2012 judgment stating that mother pleaded guilty to the offense of driving while intoxicated, which occurred on June 11, 2011. The trial court assessed mother’s punishment at confinement for 180 days, suspended mother’s sentence, and placed her on community supervision for twelve months. 57 The trial court admitted into evidence a copy of a judgment stating that mother pleaded guilty to the offense of assault of a family member, which occurred on April 28, 2012. The trial court deferred adjudication of mother’s guilt and placed her on community supervision for twenty-four months. As to that incident, mother stated 40 June 27, 2016, mother was arrested for the offense of driving while intoxicated with
a child. At trial, mother admitted to consuming alcohol that day and “end[ing] up
unconscious behind the wheel” with C.A.J. in the car. Mother also testified that in
January 2019, she was “pulled over on the side of the road” by a law enforcement
officer. Mother stated that she was not intoxicated that day; instead, her “blood
sugar[] . . . was 45.” But she stated that she “couldn’t even drive” at the time.
Regarding her history with DFPS, mother testified that DFPS received a
referral in fall 2012, when mother was living in Harlingen, Texas, alleging that
mother was “passed out on the floor of [her] apartment” while C.A.J., an infant, was
asleep in his baby swing. DFPS received a second referral in November 2012, and
C.A.J. was removed from mother’s care after she was transported to the hospital.
According to mother, she had taken medication for a headache or migraine and had
a reaction to it. The person who owned the daycare that C.A.J. attended at the time
arrived at mother’s home that day and called for emergency assistance because
mother was unconscious, asleep, or “passed out” with C.A.J. in her care. C.A.J. was
later returned to mother’s care in January 2013, but then re-removed until October
2013, when he was again returned to her care.
that her girlfriend at the time was changing C.A.J.’s diaper when mother told her that their relationship was over. Her girlfriend then “pushed [mother] into the laundry room” and mother grabbed a “[large]-sized detergent and [was] able to get her [girlfriend] away from” her.
41 Mother further explained that DFPS became involved with her and C.A.J.
again in June 2016 when mother was found “[p]assed out” in her car at a red light
with C.A.J. in the back seat. Mother noted that there was alcohol in her car and that
she was unconscious. She clarified that C.A.J. was buckled in his car seat when she
stopped at the light, but she stated that C.A.J. could get out of his car seat on his
own. Mother could not say whether or not she had alcohol in her system that day,
but she stated that she was not driving while intoxicated and her low blood sugar
had caused her to pass out.58 Mother explained that she was arrested on June 27,
2016 and charged with a felony offense, but the case against her was dismissed.
C.A.J. was removed from mother’s care on June 27, 2016 because of the
above-described incident and then returned to mother’s care later in 2016.
Regarding the circumstances involved in the termination case, mother
testified that she took C.A.J. to West Oaks in January 2018 because he was
hallucinating, said that he wanted to kill mother and himself, was exhibiting
aggressive behavior, and had been lying. Mother explained that C.A.J. would say
that he “want[ed] to die” when “he was mad and he didn’t get his way.” C.A.J. was
also getting in trouble at school. Such misbehavior had been going on for about six
58 A supplemental note to the “Incident/Investigation Report” from the June 27, 2016 incident involving mother states that mother’s blood alcohol concentration that day was 0.29.
42 to eight weeks before mother took him to West Oaks, meaning that C.A.J.’s
misbehavior started around November 2017.59
In January 2018, C.A.J. was removed from mother’s care. When mother
spoke to DFPS Investigator Scott, she admitted to using cocaine. But she did not
know how C.A.J. could have ingested cocaine, and she stated that he did not get
cocaine from her. Mother conceded that her cocaine use was dangerous and exposed
her to being arrested and to the possibility of incarceration.
As to mother’s history with substance abuse and her participation in various
substance-abuse treatments, mother noted that she had been “an addict” for “a lot of
[her] adult life.” She first started abusing alcohol in 2012. She explained that in
2012, after C.A.J. was removed from her care by DFPS, mother sought treatment for
alcohol abuse at Charlie’s Place Recovery Center in Corpus Christi. Mother got
sober in 2013 and then relapsed by consuming alcohol again in 2016. After C.A.J.
was removed from her care in June 2016, mother sought treatment for alcohol abuse.
In November 2017, mother started using narcotics. Mother used cocaine with a
doctor that she worked with, and she engaged in cocaine use while C.A.J. was with
his babysitter. Despite her narcotics-use testing results, mother denied engaging in
daily cocaine use. But mother stated that she tested positive for cocaine use while
59 Mother stated that she began using cocaine in November 2017, while C.A.J. was in her care. Mother also admitted that she had used cocaine on January 12, 2018, while C.A.J. was being treated at West Oaks.
43 she was working at a hospital as a registered nurse and a default order was later
entered against her which revoked her nursing license.60
After C.A.J. was removed from mother’s care in January 2018, mother entered
Nexus Recovery in Dallas for sixty days and completed the program. After leaving
60 The trial court admitted into evidence a copy of the “Formal Charges” brought against mother by the Texas Board of Nursing which states: On or about November 28, 2017, while employed as a Registered Nurse with Ben Taub Hospital - Emergency Center, Houston, Texas, [mother] lacked fitness to practice nursing in that she exhibited signs of impaired behavior while on duty, including, but not limited to: overly exaggerated and confusing responses. [Mother’s] condition could have affected her ability to recognize subtle signs, symptoms or changes in patients’ conditions, and could have affected her ability to make rational, accurate, and appropriate assessments, judgments, and decisions regarding patient care, thereby placing the patients in potential danger. .... [Further,] [o]n or about November 28, 2017, while employed as a Registered Nurse with Ben Taub Hospital - Emergency Center, Houston, Texas, [mother] engaged in the intemperate use of [c]ocaine in that she produced a specimen for a drug screen which resulted positive for [c]ocaine. Furthermore, [mother] admitted to facility staff that she would test positive for [c]ocaine. Unlawful possession of [c]ocaine is prohibited by Chapter 481 (Controlled Substances Act) of the Texas Health & Safety Code. The use of [c]ocaine by a [n]urse, while subject to call or duty, could impair the nurse’s ability to recognize subtle signs, symptoms, or changes in a patient’s condition, and could impair the nurse’s ability to make rational, accurate, and appropriate assessments, judgments, and decisions regarding patient care, thereby placing a patient in potential danger. Mother testified that she petitioned to have an order revoking her nursing license set aside, and she had been granted a rehearing. Thus, at the time of trial, it did not appear that mother’s nursing license had been formally revoked. Mother did admit to previously being placed on probation by the Texas Board of Nursing for failing to submit to random narcotics-use testing.
44 Nexus Recovery, mother relapsed by using prescription Xanax. After her relapse,
mother sought treatment at Cenikor rehabilitation facility in Deer Park because she
was using benzodiazepines or Xanax “too much.” According to mother, she had
become addicted to her prescription narcotics. Mother believed that she had
successfully completed the short-term program, about three weeks, at Cenikor, but
according to mother, she was hospitalized for “blood sugar.” After her
hospitalization, mother stated that she “went back to the long-term program,” which
she estimated was about twenty-four or twenty-five days. Mother testified that if the
records from Cenikor state that she did not complete the program, then the records
are incorrect.
Mother further testified that after she left Cenikor she “stayed clean,” but she
used the prescription narcotics that had been prescribed to her. And she sought
outpatient treatment at Billy T. Cattan Recovery in Victoria while living with her
parents in Waco. Mother stated that she was unsuccessfully discharged from that
rehabilitation program because of “hospitalizations.” Mother then sought treatment
at La Hacienda in Kerrville for opioid-use disorder and sedative-use disorder
because she did not want to take the prescription narcotics that she was prescribed.
When mother entered treatment at La Hacienda in February 2019—more than one
year after C.A.J. had been removed from her care— she was not lucid, she almost
overdosed, and she was taken to the hospital. Mother successfully completed her
45 treatment at La Hacienda and was discharged on March 29, 2019. Mother then
“chose to go to extended care” in Austin. Although she was at that the Austin facility
for “a few weeks,” she was told that she could not stay because “they were too
concerned about [her] blood sugar dropping without having medical professionals
on staff.” Mother stated that she had been sober since February 21, 2019, and at the
time of trial, she was participating in a twelve-step program and had a sponsor.
Mother agreed that May 2019 was the first time during the pendency of the
termination case that she received negative narcotics-use testing results.
Regarding her health, mother testified that she had been diagnosed with
endocrine neoplasia, type 1. She stated that since 2012, when DFPS became
involved with her and C.A.J., she had reported that she had ulcerative colitis, aplastic
anemia, depression, tumors, pituitary issues, a pancreatic tumor, pancreatic pain, and
hypoglycemia. Mother stated that she went to the emergency room between five
and ten times since January 2018. While in the emergency room, she was sometimes
given narcotics as well as on-going prescriptions for narcotics.
As to C.A.J., mother noted that any time she was unconscious, whether due to
a medical issue or alcohol or narcotics use, she was unable to provide care for C.A.J.
and that could be dangerous for C.A.J. And she admitted that some of her choices
in the past had put C.A.J. at risk.
46 Mother’s FSP
The trial court admitted into evidence a copy of mother’s FSP, which states
that on January 12, 2018, DFPS received a referral for negligent supervision of
C.A.J. by mother. The referral alleged C.A.J. had tested positive for cocaine use and
that “there may be drugs in the home.” Regarding “[i]nitial concerns” of DFPS,
mother’s FSP states that mother had not “demonstrated an ability to stay sober/drug
free and in recovery to ensure that [C.A.J. would be] safe from harm,” mother’s
“drug/alcohol addiction affect[ed] the quality of care that she [was] able to provide”
to C.A.J., mother had a prior history with DFPS “in which there were [other]
removals” of C.A.J. from mother’s care, mother “admitted to using cocaine,” and
mother’s “drug addiction impair[ed] her protective capacity to take care of [C.A.J.]”
Mother’s FSP lists the following tasks that she was required to complete
during the pendency of the termination case: (1) provide the DFPS caseworker with
names, addresses, and telephone numbers of any relatives or friends that may be a
possible placement for C.A.J.; (2) attend all court hearings and permanency
conference meetings; (3) maintain contact with the DFPS caseworker in person or
via telephone at least monthly; (4) notify the DFPS caseworker within forty-eight
hours of any change in contact information or housing; (5) be available by
reasonable request and allow the DFPS caseworker to conduct random and
scheduled home visits; (6) have stable employment or income to meet the family’s
47 basic needs; (7) provide the DFPS caseworker with paystubs or income verification
every month; (8) maintain stable housing, that is safe, clean, and free from hazards,
and demonstrate the ability to keep a stable environment for the family; (9) provide
the DFPS caseworker with housing agreement or utility bill; (10) participate in
supervised visits with C.A.J. and if mother is unable to make a scheduled visit, notify
the DFPS caseworker twenty-four hours in advance; (11) actively participate in
parenting classes in person and successfully complete the parenting classes and
provide the DFPS caseworker with a certificate of completion within seven days of
the last class date; (12) demonstrate learned behaviors from the parenting class
during family visits; (13) sign a release of information so that DFPS can have access
to mother’s records; (14) submit to random narcotics-use testing; (15) participate in
family-therapy sessions with C.A.J.; (16) attend and actively participate in a “drug
assessment” and follow all recommendations given; (17) successfully complete the
treatment program at Nexus Recovery in Dallas; and (18) participate in a
psychological and psychiatric evaluation and follow all recommendations.
C.A.J.’s 2019 Psychological Evaluation
The trial court admitted into evidence a copy of C.A.J.’s psychological
evaluation from February 2019.61 The evaluation states that C.A.J. and his current
61 The trial court also admitted into evidence copies of other earlier psychological evaluations of C.A.J.
48 foster mother were present for the evaluation. It notes that C.A.J. appeared well
groomed and was happy and engaging. His appearance was appropriate for his age,
and he was cooperative and respectful. He maintained eye contact, his thought
process was logical, his attention was sufficient, and he appeared insightful. C.A.J.
reported that he liked playing outside, sports, riding a bicycle, and baseball.
C.A.J.’s foster mother described C.A.J.’s environment with his foster family
as normal, stable, and laid back. She reported that C.A.J. was adjusting well to the
home and the family had established a consistent routine. C.A.J.’s foster mother
worked from home and his foster father worked outside of the home from
approximately 7:00 a.m. to 6:00 p.m. C.A.J. called his foster parents “mom” and
“dad.” C.A.J. did not like to be left with other people and did not like strangers.
When C.A.J. would feel uncomfortable, he sought out his foster parents. C.A.J. was
proud of his foster family and “like[d] that he [was] part of a big family,” which
included nineteen aunts and uncles.
C.A.J.’s foster mother also reported that C.A.J. had friends in his
neighborhood and at school and his friends were positive influences. She stated that
when C.A.J. would be “in his own space” he could be self-centered and “d[id] not
like to share.” But C.A.J. did “fairly well when he [was] outside of his own space
and [he was] more willing to share” under those circumstances. C.A.J. was an
outgoing child.
49 C.A.J attended elementary school, and in 2019, he was in the first grade.
C.A.J.’s foster mother reported that he received “straight A’s.” C.A.J. enjoyed
school and felt confident in his ability to understand the concepts that were being
taught. His strengths were math and art, and art was calming for C.A.J. When C.A.J.
first began living with his foster family, his foster mother received daily notes from
school about C.A.J.’s misbehavior, but that had decreased, and he went an entire
month without any notes from school.
Regarding mother, C.A.J.’s foster mother reported that mother’s influence
affected C.A.J.’s behavior. His behavior would change after he had interactions with
mother. Mother corrected C.A.J. and told him to call his foster parents by their first
names. After visits with mother, C.A.J. acted out, used “foul language,” and was
disrespectful. C.A.J. had a “the world revolves around me” attitude, especially after
a visit with mother.
C.A.J.’s foster mother also reported, related to mother’s influence on C.A.J.’s
behavior, that C.A.J. hit a teacher, laughed at a teacher, and talked over a teacher at
school. And he had pushed another child at school and was involved in a physical
altercation with a neighborhood child which the other child allegedly instigated.
C.A.J. had verbal and physical meltdowns when he did not get his way. C.A.J.,
while in the care of his current foster parents, saw a therapist once a week.
50 The “Conceptualizations” section of C.A.J.’s evaluation states the following:
[C.A.J.] is a six-year old [child] who is presently residing with his foster parents . . . since December 2018. [C.A.J.] has a reported history of trauma that includes neglect that led to him being removed from his mother’s care and sexual abuse while in foster care. . . . [C.A.J.] has displayed significant behavior difficulties in a previous foster home as well as at his current placement. [His foster mother] described [C.A.J.] as having difficulty with attention, being defiant, not following the rules, adapting to change, [being] fidgety, [being] easily distracted, pushing boundaries, [having] physical and verbal aggression, and having strong emotional reactions to events and stressors. She further noted [that] he was hospitalized for making comments that he heard voices that told him to do things, [having a] suicide attempt and being under the influence of cocaine. [C.A.J.] has adjusted well to his [current] foster home and he appears to be doing well. [C.A.J.] has [a] history of significant emotional reactions as reported by previous foster parents as noted in previous psychological [evaluations] after visitations with his mother. Close monitoring of any visitations with mother is suggested as well as therapy sessions shortly after [C.A.J.’s visits with mother which would] allow [C.A.J.] the opportunity to process his emotions, if any contact with mother continues. His emotional reactions after contact with his mother has greatly impacted his ability to function at school and his placements as it takes days for [C.A.J.] to be able to regain some emotional stability.
. . . [C.A.J.] yielded several at-risk and clinically significant scores in areas such as hyperactivity, atypicality, attention problems, adaptive skills[,] and social skills . . . . This may indicate [that C.A.J.] may have difficulty maintaining necessary levels of attention at school and this may disrupt academic performance and functioning in other areas. . . . [C.A.J.] meets the criteria for [ADHD]. . . . According to the [psychological testing] results, [C.A.J.] has difficulty maintaining attention as well as experiencing hyperactivity/attention problems and his difficulties are impacting his school and home life. He has a reported history of being diagnosed with ADHD. [C.A.J. also] meets the criteria for [ODD]. [C.A.J.] often loses [his] temper, [is] irritable, refuses to comply[,] or has problems with authority. It was reported [that] he has a history of becoming physically aggressive towards authority and peers. He was previously diagnosed with ODD. 51 The evaluation provides the following diagnoses for C.A.J.: ADHD, ODD,
DMDD, and unspecified trauma and stressor related disorder. The evaluation
recommends that C.A.J. participate in art therapy, individual therapy, family
therapy, and athletic programs. More specifically, regarding therapy, the evaluation
states that C.A.J. would benefit from participating in individual therapy on a
consistent basis with a therapist who is adept in cognitive behavioral therapy or art
therapy. Therapy should address “coping with [his] parent’s neglect, verbalizing
feelings, emotional regulation, and . . . strategies to manage [his] ADHD
symptomology.” It also recommended that C.A.J.’s caretaker employ an
authoritative parenting style with him, meaning that his caretaker should set high yet
achievable expectations and provide clear guidelines for C.A.J. while still being
responsive and nurturing through encouragement, praise, positive reinforcement,
and affection.62 Additionally, C.A.J. should participate in extracurricular activities,
with a focus on non-contact sports to minimize the possibility of altercations. Any
62 DFPS Caseworker Owens testified that a previous psychological evaluation recommended that C.A.J. have structure, a nurturing environment, close supervision, and constant discipline when he was misbehaving. It also recommended that C.A.J. participate in play therapy. Owens stated that another prior psychological evaluation recommended therapy to address C.A.J.’s anger issues.
52 educational needs should also be addressed, including certain listed accommodations
at school.63
Sufficiency of Evidence
In her first issue, mother argues that the trial court erred in terminating her
parental rights to C.A.J. because the evidence is legally and factually insufficient to
support the jury’s finding that termination of her parental rights was in the best
interest of C.A.J. See TEX. FAM. CODE ANN. § 161.001(b)(2).
A parent’s right to “the companionship, care, custody, and management” of
her child is a constitutional interest “far more precious than any property right.”
Santosky v. Kramer, 455 U.S. 745, 758–59 (1982) (internal quotations omitted). The
United States Supreme Court has emphasized that “the interest of [a] parent[] in the
care, custody, and control of [her] child[] . . . is perhaps the oldest of the
fundamental liberty interests recognized by th[e] Court.” Troxel v. Granville, 530
U.S. 57, 65 (2000). Likewise, the Texas Supreme Court has concluded that “[t]his
natural parental right” is “essential,” “a basic civil right of man,” and “far more
63 We note that additional witnesses testified at trial on behalf of both parties. The Court has reviewed the complete record in this appeal, including all testimony and evidence presented to the trial court. See TEX. R. APP. P. 47.1; Obernhoff v. Nelson, No. 01-17-00816-CV, 2019 WL 4065017, at *18 n.19 (Tex. App.—Houston [1st Dist.] Aug. 29, 2019, no pet.) (mem. op.); Sullivan v. Arguello Hope & Assocs., PLLC, No. 03-18-00144-CV, 2018 WL 6424200, at *1 n.2 (Tex. App.—Austin Dec. 7, 2018, no pet.) (mem. op.) (“Because the parties are familiar with the facts of the case and its procedural history, we do not recite them in this opinion except as necessary to advise the parties of the Court’s decision and the basic reasons for it.”).
53 precious than property rights.” Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985)
(internal quotations omitted). Consequently, “[w]e strictly construe involuntary
termination statutes in favor of the parent.” In re E.N.C., 384 S.W.3d 796, 802 (Tex.
2012).
Because termination of parental rights is “complete, final, irrevocable and
divests for all time that natural right . . . , the evidence in support of termination must
be clear and convincing before a court may involuntarily terminate a parent’s rights.”
Holick, 685 S.W.2d at 20. Clear and convincing evidence is “the measure or degree
of proof that will produce in the mind of the trier of fact a firm belief or conviction
as to the truth of the allegations sought to be established.” TEX. FAM. CODE ANN.
§ 101.007; see also In re J.F.C., 96 S.W.3d 256, 264 (Tex. 2002). Because the
standard of proof is “clear and convincing evidence,” the Texas Supreme Court has
held that the traditional legal and factual standards of review are inadequate. In re
J.F.C., 96 S.W.3d at 264–68.
In conducting a legal-sufficiency review in a termination-of-parental-rights
case, we must determine whether the evidence, viewed in the light most favorable
to the finding, is such that the fact finder could reasonably have formed a firm belief
or conviction about the truth of the matter on which DFPS bore the burden of proof.
Id. at 266. In viewing the evidence in the light most favorable to the finding, we
“must assume that the factfinder resolved disputed facts in favor of its finding if a
54 reasonable factfinder could do so,” and we “should disregard all evidence that a
reasonable factfinder could have disbelieved or found to have been incredible.” In
re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005) (internal quotations omitted). But this
does not mean we must disregard all evidence that does not support the finding. In
re J.F.C., 96 S.W.3d at 266. Because of the heightened standard, we must also be
mindful of any undisputed evidence contrary to the finding and consider that
evidence in our analysis. Id. If we determine that no reasonable trier of fact could
form a firm belief or conviction that the matter that must be proven is true, we must
hold the evidence to be legally insufficient and render judgment in favor of the
parent. Id.
In conducting a factual-sufficiency review in a termination-of-parental-rights
case, we must determine whether, considering the entire record, including evidence
both supporting and contradicting the finding, a fact finder reasonably could have
formed a firm conviction or belief about the truth of the matter on which DFPS bore
the burden of proof. In re C.H., 89 S.W.3d 17, 25–26 (Tex. 2002). We should
consider whether the disputed evidence is such that a reasonable fact finder could
not have resolved the disputed evidence in favor of its finding. In re J.F.C., 96
S.W.3d at 266. “If, in light of the entire record, the disputed evidence that a
reasonable factfinder could not have credited in favor of the finding is so significant
that a factfinder could not reasonably have formed a firm belief or conviction, then
55 the evidence is factually insufficient.” In re H.R.M., 209 S.W.3d 105, 108 (Tex.
2006) (internal quotations omitted).
In order to terminate the parent-child relationship, DFPS must establish, by
clear and convincing evidence, one or more of the acts or omissions enumerated in
Texas Family Code section 161.001(b)(1) and that termination of parental rights is
in the best interest of the child. See TEX. FAM. CODE ANN. § 161.001(b); Tex. Dep’t
of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987) (both elements must be
established). Multiple non-exclusive factors are considering when determining a
child’s best interest. See TEX. FAM. CODE ANN. § 263.307; Holley v. Adams, 544
S.W.2d 367, 371–72 (Tex. 1976).
In her first issue, mother argues that the evidence is legally and factually
insufficient to support the jury’s finding that termination of her parental rights was
in the best interest of C.A.J. because the jury’s best-interest finding is not supported
by the factors set out in Texas Family Code section 263.307 or Holley.
In an appeal from a judgment rendered on the basis of a jury verdict, including
a trial court’s judgment terminating a parent’s rights to her minor child, a party
cannot complain about the legal or factual sufficiency of the evidence for the first
time on appeal. See TEX. R. APP. P. 33.1(d); In re S.G., No. 01-18-00728-CV, 2019
WL 1448870, at *4 (Tex. App.—Houston [1st Dist.] Apr. 2, 2019, pet. denied)
(mem. op.). To preserve for appellate review a challenge to the legal sufficiency of
56 the evidence, a party must: (1) move for an instructed verdict; (2) object to the
submission of a jury question; (3) move for judgment notwithstanding the verdict;
or (4) move for a new trial. See Cecil v. Smith, 804 S.W.2d 509, 510–11 (Tex. 1991);
In re J.M.S., 43 S.W.3d 60, 62 (Tex. App.—Houston [1st Dist.] 2001, no pet.). To
preserve for appellate review a challenge to the factual sufficiency of the evidence,
a party must move for a new trial. See TEX. R. CIV. P. 324(b)(2), (3); Cecil, 804
S.W.2d at 510; In re J.M.S., 43 S.W.3d at 62. And the party’s motion or objection
must be reasonably specific as to the nature of the evidentiary sufficiency challenge
that is being made to preserve a sufficiency-point for appellate review. See TEX. R.
APP. P. 33.1(a); In re S.G., 2019 WL 1448870 at *4.
Here, the jury found that mother’s parental rights to C.A.J. should be
terminated,64 and thus, the trial court, in its judgment, terminated mother’s parental
rights. Although mother challenges on appeal the legal and factual sufficiency of
the evidence supporting the jury’s finding that termination of her parental rights was
in the best interest of C.A.J., she did not move for an instructed verdict, object to the
submission of a jury question, move for judgment notwithstanding the verdict, or
move for a new trial. Accordingly, we hold that she has not preserved her
64 In doing so, the jury found, by clear and convincing evidence, that mother committed one or more of the acts or omissions enumerated in Texas Family Code section 161.001(b)(1) and that termination of her parental rights was in the best interest of C.A.J. See TEX. FAM. CODE ANN. § 161.001(b); Tex. Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987).
57 sufficiency-complaints for our review. See In re S.G., 2019 WL 144887, at *4; In
re J.M.S., 43 S.W.3d at 62.
Managing Conservatorship
In her second issue, mother argues that the trial court erred in “disregarding
the jury’s finding [that] DFPS should not be [appointed as C.A.J.’s] managing
conservator” and in appointing DFPS as C.A.J.’s sole managing conservator because
the trial court could not override the jury’s conservatorship verdict.
The Texas Family Code provides that “[i]f the court terminates the
parent-child relationship with respect to both parents or to the only living parent, the
court shall appoint a suitable, competent adult, [DFPS], or a licensed child-placing
agency as managing conservator of the child.” TEX. FAM. CODE ANN. § 161.207(a);
see also In re S.M.G., No. 01-17-00056-CV, 2017 WL 2806332, at *8 (Tex. App.—
Houston [1st Dist.] June 29, 2017, pet. denied) (mem. op.) (“When the parents’
parental rights have been terminated, [Texas] Family Code section 161.207 governs
the appointment of a managing conservator.”). Generally, we review a trial court’s
conservatorship determination for an abuse of discretion. In re J.A.J., 243 S.W.3d
611, 616 (Tex. 2007).
Importantly, an order terminating the parent-child relationship divests the
parent of all legal rights and duties with respect to her child. See TEX. FAM. CODE
ANN. § 161.206(b); In re A.L.J., No. 01-19-00251-CV, 2019 WL 4615826, at *9
58 (Tex. App.—Houston [1st Dist.] Sept. 24, 2019, no pet.) (mem. op.). A parent with
no legal rights with respect to her child lacks standing to attack the portion of the
trial court’s order appointing DFPS as the sole managing conservator of the child.
See A.L.J., 2019 WL 4615826, at *9.
Here, we have held that mother did not preserve for our review her complaint
that the trial court erred in terminating her parental rights to C.A.J. because the
evidence is legally and factually insufficient to support the jury’s finding that
termination of her parental rights was in the best interest of C.A.J. Because mother
did not preserve her sufficiency-complaints for our review, she is bound by the trial
court’s order terminating her parental rights to C.A.J. See In re Y.V., No.
02-12-00514-CV, 2013 WL 2631431, at *1–2 (Tex. App.—Fort Worth June 13,
2013, no pet.) (mem. op.); In re R.A., Jr., No. 07-08-0084-CV, 2009 WL 77853, at
*2 (Tex. App.—Amarillo Jan. 13, 2009, no pet.) (mem. op.). As such, mother has
become a former parent with no legal rights with respect to C.A.J. See In re Y.V.,
2013 WL 2631431, at *1–2; In re R.A., Jr., 2009 WL 77853, at *2.
Having no legal rights with respect to C.A.J., we hold that mother lacks
standing to challenge the portion of the trial court’s order appointing DFPS as sole
managing conservator of C.A.J. See In re A.L.J., 2019 WL 4615826, at *9 (“Mother
does not have standing to challenge the portion of the order appointing [DFPS] as
permanent managing conservator of the children because any alleged error could not
59 injuriously affect her rights.”); In re Y.V., 2013 WL 2631431, at *1–2; In re H.M.M.,
230 S.W.3d 204, 204–05 (Tex. App.—Houston [14th Dist.] 2006, no pet.).
We overrule mother’s second issue.
Ineffective Assistance of Counsel
In her third issue,65 mother argues that the trial court erred in terminating her
parental rights to C.A.J. because her retained trial counsel did not provide her with
effective assistance at trial. See U.S. CONST. amend. VI; see also In re M.S., 115
S.W.3d 534, 544 (Tex. 2003). Mother asserts that her trial counsel did not object to
certain portions of the trial court’s charge to the jury or make proffers and counsel
did not “object to the [trial] court’s responses to the jury’s questions.”
We first address DFPS’s argument that mother cannot seek reversal of the trial
court’s judgment terminating her parental rights to C.A.J. based on any alleged
ineffective assistance of her trial counsel because mother’s trial counsel was retained
rather than appointed.66 We have previously addressed the merits of a parent’s claim
65 To the extent that mother asserts, as part of her third issue, that the trial court erred in “not correctly charging the jury,” we hold that mother has not preserved that complaint for appellate review. See In re B.L.D., 113 S.W.3d 340, 349–50 (Tex. 2003) (“[T]he failure to raise a complaint at trial to a jury charge waives review of that complaint on appeal.”); In re S.G., No. 01-18-00728-CV, 2019 WL 1448870, at *5 (Tex. App.—Houston [1st Dist.] Apr. 2, 2019, pet. denied) (mem. op.); see also TEX. R. APP. P. 33.1; TEX. R. CIV. P. 274. 66 This issue is currently pending before the Texas Supreme Court. See In re D.T., 593 S.W.3d 437, 439–40 (Tex. App.—Texarkana 2019, pet. granted) (holding parent who hires own attorney cannot assert ineffective-assistance-of-counsel complaint).
60 for ineffective assistance of counsel when the parent had retained counsel at trial.
See L.F. v. Dep’t of Family & Protective Servs., Nos. 01-10-01148-CV,
01-10-01149-CV, 2012 WL 1564547, at *12 n.9 (Tex. App.—Houston [1st Dist.]
May 3, 2012, pet. denied) (mem. op.); In re V.V., 349 S.W.3d 548, 558–61 (Tex.
App.—Houston [1st Dist.] 2010, pet. denied); see also In re A.A.H., Nos.
01-19-00612-CV, 01-19-00748-CV, 2020 WL 1056941, at *16, *21–23 (Tex.
App.—Houston [1st Dist.] Mar. 5, 2020, pet. denied) (mem. op.); In re E.R.W., 528
S.W.3d 251, 257–61 (Tex. App.—Houston [14th Dist.] 2017, no pet.) (non-indigent
parent may challenge judgment in suit by governmental entity to terminate
parent-children relationship based on alleged ineffective assistance of retained
counsel); In re D.J.W., 394 S.W.3d 210, 218–19, 218 n.9 (Tex. App.—Houston [1st
Dist.] 2012, pet. denied) (addressing mother’s ineffective-assistance-of-counsel
complaint and declining to hold that mother, who had retained trial counsel, could
not raise claim of ineffective assistance of counsel on appeal); Donihoo v. Lewis,
No. 01-08-099277-CV, 2010 WL 1240970, at *11 (Tex. App.—Houston [1st Dist.]
Mar. 25, 2010, pet. denied) (mem. op.) (“We recognize that the constitutional right
to effective assistance of counsel has been extended to certain civil proceedings,
61 such as termination of parental rights cases . . . .”). Thus, we will do so in this case
as well.67
The statutory right to counsel in a termination-of-parental-rights case
includes, as a matter of due process, the right to effective counsel. C.S.F. v. Tex.
Dep’t of Family & Protective Servs., 505 S.W.3d 618, 619–20 (Tex. 2016); In re
M.S., 115 S.W.3d at 544; In re A.A.H., 2020 WL 1056941, at *21. To evaluate
claims of ineffective assistance of counsel in termination-of-parental-rights cases,
the Texas Supreme Court has adopted the ineffective-assistance-of-counsel standard
applied in criminal cases and set forth by the United States Supreme Court in
Strickland v. Washington, 466 U.S. 668 (1984). See In re M.S., 115 S.W.3d at 544–
45; see also Walker v. Tex. Dep’t of Family & Protective Servs., 312 S.W.3d 608,
622–23 (Tex. App.—Houston [1st Dist.] 2009, pet. denied). Thus, proving a claim
of ineffective assistance of counsel requires a showing that (1) counsel’s
performance was deficient, i.e., “counsel made errors so serious that counsel was not
functioning as ‘counsel’ guaranteed by the Sixth Amendment,” and (2) the deficient
performance of counsel prejudiced the defense in a manner “so serious as to deprive
the [parent] of a fair trial, a trial whose result is reliable.” In re M.S., 115 S.W.3d at
545 (quoting Strickland, 466 U.S. at 687); see also In re H.R.M., 209 S.W.3d at 111;
67 We note that irrespective of whether we review the merits of mother’s ineffective-assistance-of-counsel complaint, the outcome of mother’s appeal remains unchanged. See infra.
62 In re A.A.H., 2020 WL 1056941, at *21. To establish an
ineffective-assistance-of-counsel claim, a parent must successfully show both
prongs of the test. In re M.S., 115 S.W.3d at 545; Walker, 312 S.W.3d at 622–23;
see also In re J.O.A., 283 S.W.3d 336, 344 (Tex. 2009). A parent’s failure to satisfy
one prong negates the court’s need to consider the other prong. See Strickland, 466
U.S. at 697; In re E.R.W., 528 S.W.3d at 262; see also In re A.A.H., 2020 WL
1056941, at *21 (parent has burden to prove by preponderance of evidence).
In analyzing whether counsel’s performance was deficient, the Texas
Supreme Court has explained that, “tak[ing] into account all of the circumstances
surrounding the case,” a court “must primarily focus on whether counsel performed
in a reasonably effective manner.” In re M.S., 115 S.W.3d at 545 (internal quotations
omitted); see also In re H.R.M., 209 S.W.3d at 111; Walker, 312 S.W.3d at 622. A
court “must give great deference to counsel’s performance, indulging a strong
presumption that counsel’s conduct falls within the wide range of reasonable
professional assistance, including the possibility that counsel’s actions are strategic.”
In re M.S., 115 S.W.3d at 545 (internal quotations omitted); see also In re H.R.M.,
209 S.W.3d at 111; Walker, 312 S.W.3d at 622. We may not speculate to find trial
counsel ineffective. Walker, 312 S.W.3d at 623; see also In re A.A.H., 2020 WL
1056941, at *21–22 (“An assertion of ineffective assistance will be sustained only
if the record affirmatively supports such a claim.”). Challenged conduct constitutes
63 ineffective assistance only when it is “so outrageous that no competent attorney
would have engaged in it.” In re M.S., 115 S.W.3d at 545 (internal quotations
omitted); see also In re H.R.M., 209 S.W.3d at 111; Walker, 312 S.W.3d at 622.
“Ordinarily, counsel should not be condemned as unprofessional or
incompetent without an opportunity to explain the challenged actions.” In re A.A.H.,
2020 WL 1056941, at *22 (internal quotations omitted); see also In re S.L., 188
S.W.3d 388, 395 (Tex. App.—Dallas 2006, no pet.). “Thus, when the record is silent
regarding counsel’s reasons for h[er] conduct,” as it is here, “we defer to counsel’s
decision if there is at least the possibility that the conduct could have been legitimate
trial strategy.” In re A.A.H., 2020 WL 1056941, at *22 (internal quotations omitted);
see also In re S.L., 188 S.W.3d at 395. In other words, without testimony from trial
counsel, we must presume that counsel had a plausible reason for her conduct. In re
K.H.M., 181 S.W.3d 1, 7 (Tex. App.—Houston [14th Dist.] 2005, no pet.).
In addition to showing trial counsel’s deficient performance, a parent must
show that her trial counsel’s deficient performance prejudiced her defense. See In
re J.O.A., 283 S.W.3d at 344; In re V.V., 349 S.W.3d at 559. To satisfy this burden,
the record must permit the reviewing court to determine that there is a reasonable
probability that, but for the deficient performance, the result of the proceeding would
have been different, i.e., the parent’s parental rights to her child would not have been
terminated. In re M.S., 115 S.W.3d at 549–50; see also Medellin v. Tex. Dep’t of
64 Family & Protective Servs., No. 03-11-00558-CV, 2012 WL 4466511, at *5 (Tex.
App.—Austin Sept. 26, 2012, pet. denied) (mem. op.) (father must show “reasonable
probability that his parental rights would not have been terminated”). In this context,
“[a] reasonable probability is a probability sufficient to undermine confidence in the
outcome.” Strickland, 466 U.S. at 694; see also P.W. v. Dep’t of Family &
Protective Servs., 403 S.W.3d 471, 476 (Tex. App.—Houston [1st Dist.] 2013, pet.
dism’d w.o.j.).
Mother first argues that her retained trial counsel did not provide her with
effective assistance at trial because counsel did not object to the trial court’s charge
which allowed the jury to terminate mother’s parental rights based on her purported
failure to complete her FSP. According to mother, “the record conclusively
establishe[d] [that] [m]other completed” her FSP. And her counsel’s failure to
object to the trial court’s charge because there was no evidence that mother failed to
comply with the provisions of a court order that specifically established the actions
necessary for her to obtain the return of C.A.J. prevented mother from challenging
on appeal the trial court’s broad-form submission to the jury. See TEX. FAM. CODE
ANN. § 161.001(b)(1)(O); see also In re B.L.D., 113 S.W.3d 340, 349–50 (Tex.
2003) (complaints of error in broad-form submission must be preserved by objection
at trial).
65 In its charge to the jury, the trial court instructed the jury that to terminate the
parent-child relationship between mother and C.A.J., it must have been proven by
clear and convincing evidence that termination of mother’s parental rights was in the
best interest of C.A.J. and that at least of one of the following had occurred:
• Mother “knowingly placed or knowingly allowed [C.A.J.] to remain in conditions or surroundings which endanger[ed] the physical or emotional well-being of [C.A.J.]”;
• Mother “engaged in conduct that knowingly placed [C.A.J.] with persons who engaged in conduct which endanger[ed] the physical or emotional well-being of [C.A.J.]”;
• Mother “failed to comply with the provisions of a court order that specifically established the actions necessary for [mother] to obtain the return of [C.A.J.] who ha[d] been in temporary managing conservatorship of [DFPS] for not less than nine months as a result of [C.A.J.’s] removal from [mother] under Chapter 262 (Procedures in Suit by Governmental Entity) for the abuse or neglect of [C.A.J.]”; or
• Mother “used a controlled substance, as defined by Chapter 481, Health and Safety Code, in a manner that endangered the health and safety of [C.A.J.], and (1) failed to complete a court-ordered substance abuse treatment program; or (2) after competition of a court-ordered substance abuse treatment program continued to abuse a controlled substance[.]”
These instructions were followed by Question 1, which asked the jury: “Should the
parental rights of mother . . . be terminated as to [C.A.J.]?” The jury answered:
“Yes.”
Although mother asserts that there is no evidence that she failed to comply
with the provisions of a court order that specifically established the actions necessary 66 for her to obtain the return of C.A.J., we disagree. Cf. In re B.S., No. 09-06-293-CV,
2007 WL 1441273, at *4 (Tex. App.—Beaumont May 17, 2007, no pet.) (mem. op.)
(parent argued trial counsel ineffective for not objecting to jury charge where no
evidence showed she failed to regularly visit or maintain contact with her children
and thus jury should not have been allowed to consider that ground for termination
purposes).
Mother’s FSP, a copy of which the trial court admitted into evidence, required
mother to “attend all court hearings[] [and] permanency conference meetings,”
maintain “stable employment or income to meet [her] family’s basic needs,”
“provid[e] the [DFPS] caseworker with paystubs or income verification every
month,” and “participate in supervised visits” with C.A.J. If mother was unable to
make a scheduled visit, she was required to call the DFPS caseworker “24 hours in
advance.” Mother’s absence from a visit without notice constituted a failure to
comply with a requirement of her FSP.
DFPS caseworker Owens testified that mother missed two court hearings
during the pendency of the termination case, and mother did not provide Owens with
monthly proof that she had stable employment. Mother also missed her scheduled
February 2018 visit with C.A.J. According to Owens, although C.A.J.’s foster
mother brought C.A.J. to the scheduled visit, Owens had to call mother to find out
67 where she was because mother was late. Mother showed up to the visit two hours
late and after C.A.J. had left.
The record contains some evidence that mother did not comply with the
provisions of a court order that specifically established the actions necessary for her
to obtain the return of C.A.J. Cf. In re B.S., 2007 WL 1441273, at *4. A trial court
must submit the questions, instructions, and definitions raised by the written
pleadings and the evidence. TEX. R. CIV. P. 278; Elbaor v. Smith, 845 S.W.2d 240,
243 (Tex. 1992). If there is some evidence to support the submission of an
instruction, a trial court commits reversible error if it fails to submit the instruction.
4901 Main, Inc. v. TAS Auto., Inc., 187 S.W.3d 627, 630–31 (Tex. App.—Houston
[14th Dist.] 2006, no pet.). Some evidence supported the trial court’s instruction to
the jury that the parent-child relationship between mother and C.A.J. may be
terminated if it was proven by clear and convincing evidence that termination of
mother’s parental rights was in the best interest of C.A.J. and mother “failed to
comply with the provisions of a court order that specifically established the actions
necessary for [mother] to obtain the return of [C.A.J.] who ha[d] been in temporary
managing conservatorship of [DFPS] for not less than nine months as a result of
[C.A.J.’s] removal from [mother] under Chapter 262 (Procedures in Suit by
Governmental Entity) for the abuse or neglect of [C.A.J.]” And, as such, we cannot
conclude that mother’s trial counsel’s performance was deficient because she failed
68 to object to a properly submitted instruction to the jury. See In re B.S., 2007 WL
1441273, at *4 (trial counsel’s performance was not deficient for not objecting to
trial court’s charge where some evidence supported trial court’s submission of
instruction to jury in termination-of-parental-rights case); In re S.A.S., 200 S.W.3d
823, 828–30 (Tex. App.—Beaumont 2006, pet. denied) (“[I]t is not ineffective
assistance for an attorney to fail or refuse to make objections to a charge that have
no arguable basis.”); see also In re J.F.C., 96 S.W.3d at 283 (holding counsel’s
failure to object to broad-form submission of termination issues not deficient where
Texas Supreme Court had approved broad-form submission in
termination-of-parental-rights cases); Kennedy v. State, No. 01-92-01056-CR, 1994
WL 649090, at *9 (Tex. App.—Houston [1st Dist.] Nov. 17, 1994, pet. ref’d) (not
designated for publication) (“Failure to object to an acceptable jury charge is not
ineffective assistance.”).
Mother next argues that her retained trial counsel did not provide her with
effective assistance at trial because counsel did not object to irrelevant and
superfluous instructions for jury Questions 2 and 3 and did not proffer “proposed
questions giving the jury the [other conservatorship] option[s].”
Question 1 of the trial court’s charge to the jury asked: “Should the parental
rights of mother[] . . . be terminated as to [C.A.J.]?” The jury answered: “Yes.”
The trial court’s charge then asked the jury to “proceed to Question 2” and stated
69 that “the instructions and definitions on the following page” applied to both
Questions 2 and 3 in the court’s charge. After providing the jury with “Special
Instructions and Definitions for Questions 2 and 3,” Question 2 of the charge asked
the jury: “Should [DFPS] be appointed Managing Conservator as to [C.A.J.]?” And
Question 3 of the charge asked the jury: “Should [mother] be appointed Sole
Managing Conservator as to [C.A.J.]?”
Mother’s ineffective-assistance-of-counsel complaint on appeal relates to the
“Special Instructions and Definitions for Questions 2 and 3,” which she asserts were
superfluous and irrelevant, as well as to her counsel’s failure to proffer other jury
questions on the issue of conservatorship beyond what was asked of the jury in
Questions 2 and 3 of the trial court’s charge. But, before even reaching the “Special
Instructions and Definitions for Questions 2 and 3” or Questions 2 and 3 in the trial
court’s charge, the jury would have already answered Question 1 and found that
mother’s parental rights to C.A.J. should be terminated. See Turner, Collie &
Braden, Inc. v. Brookhollow, Inc., 642 S.W.2d 160, 167 (Tex. 1982) (we presume
jury properly followed trial court’s instructions).
In addition to showing that her trial counsel’s performance was deficient,
mother must show that there is a reasonable probability that, but for her counsel’s
deficient performance, the result of the proceeding would have been different. See
In re M.S., 115 S.W.3d at 549–50; see also Medellin, 2012 WL 4466511, at *5. In
70 other words, mother must demonstrate that if her trial counsel had objected to the
purportedly irrelevant and superfluous instructions provided to the jury for
Questions 2 and 3 and if her counsel would have proffered “proposed questions
giving the jury [other conservatorship] option[s],” her parental rights to C.A.J. would
not have been terminated. See Medellin, 2012 WL 4466511, at *5 (father “must
show that had his counsel objected to portions of [the witness’s] testimony, and had
that testimony been excluded, there is a reasonable probability that his parental rights
would not have been terminated”).
In a single sentence in her brief, mother states that her “defense was
prejudiced by her counsel’s failure to object and/or offer appropriate proffers.”
Texas Rules of Appellate Procedure require that an appellant’s brief “contain a clear
and concise argument for the contentions made, with appropriate citations to
authorities and to the record.” See TEX. R. APP. P. 38.1(i). Conclusory statements
are not enough. See In re G.P., No. 01-16-00346-CV, 2016 WL 6216192, at *22
(Tex. App.—Houston [1st Dist.] Oct. 25, 2016, no pet.) (mem. op.); Izen v. Comm’n
for Lawyer Discipline, 322 S.W.3d 308, 321–22 (Tex. App.—Houston [1st Dist.]
2010, pet. denied); Sullivan v. Bickel & Brewer, 943 S.W.2d 477, 486 (Tex. App.—
Dallas 1995, writ denied) (points not supported by argument and authority waived).
The failure to provide substantive analysis waives an issue on appeal. See In re
G.H., Jr., No. 12-16-00327-CV, 2017 WL 2464694, at *4 (Tex. App.—Tyler June
71 7, 2017, pet. denied) (mem. op.); see also Fredonia State Bank v. Gen. Am. Life Ins.
Co., 881 S.W.2d 279, 284–85 (Tex. 1994); In re G.P., 2016 WL 6216192, at *22.
Mother does not provide the Court with any argument or analysis regarding
whether there is a reasonable probability that, but for her trial counsel’s purported
deficient performance, the result of the proceeding would have been different, i.e.,
her parental rights to C.A.J. would not have been terminated. Instead, she summarily
states that she was prejudiced. This is not sufficient. See, e.g., In re G.P., 2016 WL
6216192, at *22–23; L.F., 2012 WL 1564547, at *12–14.
Still yet, even if mother’s prejudice assertion had been properly briefed, she
cannot not show that if her counsel had objected to the purportedly irrelevant and
superfluous instructions provided to the jury for Questions 2 and 3 or if her counsel
would have proffered “proposed questions giving the jury [other conservatorship]
option[s],” her parental rights would not have been terminated. This is because the
jury, in this case, found that mother’s parental rights should be terminated before it
even read the “Special Instructions and Definitions for Questions 2 and 3” or
Questions 2 and 3 in the trial court’s charge—the portions of the trial court’s charge
about which mother complains. And even if mother’s trial counsel would have
proffered “proposed questions giving the jury [other conservatorship] option[s]”
than those provided for in Questions 2 and 3, such as mother being appointed as a
possessory conservator of C.A.J. or the appointment of joint managing conservators
72 of C.A.J., those additional conservatorship questions would have only become
relevant to the jury’s deliberations if they did not find that mother’s parental rights
to C.A.J. should be terminated. Because mother cannot show that her trial counsel’s
purported deficient performance prejudiced her, we conclude that her
ineffective-assistance-of-counsel complaint must fail. See In re M.S., 115 S.W.3d
at 549–50.
Finally, mother argues that her retained trial counsel did not provide her with
effective assistance at trial because counsel did not object to the trial court’s
responses to questions from the jury.
During deliberations, the jury submitted a note to the trial court, which asked:
“If Question 3 is answered no, what is the result? How will this affect [C.A.J.’s]
conservatorship?” The trial court, without objection from mother’s trial counsel,
responded to the jury’s note by stating: “[P]lease refer to the instructions given in
the jury charge.” The jury submitted another note to the trial court, which asked:
“If Question 3 is answered no, will [C.A.J.] be placed in (joint managing
conservatorship)? The trial court, without objection from mother’s trial counsel,
responded to this note by stating: “[T]he Court cannot advise you as to the effect of
your answers. Please refer to the definitions in the jury charge.”
Mother asserts that her trial counsel “should have objected to the[] [trial
court’s] responses, argued [that] the instructions and definitions were of no help to
73 the jury, that the [trial] court should [have] respond[ed] that only [m]other or DFPS
would be considered for conservatorship, and that the instructions about possessory
conservatorship, joint managing conservatorship, and placements with others were
irrelevant to the jury’s answers.” (Emphasis omitted.)
As noted above, mother must show not only that her trial counsel’s
performance was deficient, but also that there is a reasonable probability that, but
for her counsel’s deficient performance, the result of the proceeding would have
been different, i.e., her parental rights to C.A.J. would not have been terminated. See
In re M.S., 115 S.W.3d at 549–50; see also Medellin, 2012 WL 4466511, at *5.
Again, we note that, in a single sentence in her brief, without analysis, mother states
that her trial counsel’s failure to object to the trial court’s responses to the jury’s
notes “prejudiced [her] defense because it misled the jury.” See TEX. R. APP. P.
38.1(i); In re G.H., Jr., 2017 WL 2464694, at *4; In re G.P., 2016 WL 6216192, at
*22. This is not sufficient to assert mother’s ineffective-assistance-of-counsel
complaint on appeal.
Still yet, even if mother’s prejudice assertion had been properly briefed,
mother cannot show that had her trial counsel objected to the trial court’s responses
to the jury’s questions her parental rights to C.A.J. would not have been terminated.
This is because mother’s complaint focuses on the trial court’s responses to the
jury’s notes concerning Question 3. And before the jury ever reached Question 3 in
74 the trial court’s charge, the jury responded “Yes” to Question 1, finding that mother’s
parental rights to C.AJ. should be terminated. Because mother cannot show that her
trial counsel’s purportedly deficient performance prejudiced her, we conclude that
her ineffective-assistance-of-counsel complaint must fail.
We hold that mother’s retained trial counsel did not provide her with
ineffective assistance at trial.
We overrule mother’s third issue.
Exclusion of Evidence
In her fourth issue, mother argues that the trial court erred in excluding certain
evidence of “other viable conservatorship and/or kinship placement options” and of
“DFPS not following the law and its own policies” because the trial court’s error
likely caused the rendition of an improper judgment.
We review the admission or exclusion of evidence for an abuse of discretion.
See Bay Area Healthcare Grp., Ltd. v. McShane, 239 S.W.3d 231, 234 (Tex. 2007);
In re J.P.B., 180 S.W.3d at 575. An abuse of discretion occurs if the trial court acts
unreasonably or arbitrarily, without reference to guiding principles. Bowie Mem’l
Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002); Calderon v. Tex. Dep’t of Family &
Protective Servs., No. 03-09-00257-CV, 2010 WL 2330372, at *6 (Tex. App.—
Austin June 11, 2010, no pet.) (mem. op.). We uphold a trial court’s admission or
exclusion of evidence unless (1) there was no legitimate basis for the court’s ruling,
75 and (2) the error probably caused the rendition of an improper judgment. Calderon,
2010 WL 2330372, at *6; see also Interstate Northborough P’ship v. State, 66
S.W.3d 213, 220 (Tex. 2001). If the substance of the excluded evidence was before
the court in other testimony, there is no reversible error. In re H.L.B., No.
01-12-01082-CV, 2013 WL 3866651, at *8 (Tex. App.—Houston [1st Dist.] July
23, 2013, no pet.) (mem. op.); Tex. Dep’t of Transp. v. Able, 981 S.W.2d 765, 770–
71 (Tex. App.—Houston [1st Dist.] 1998), aff’d, 35 S.W.3d 608 (Tex. 2000).
Global complaints that the trial court committed harmful error by excluding
certain evidence are insufficient to present an issue for appellate review. See TEX.
R. APP. P. 38.1(i); In re Estate of Curtis, 465 S.W.3d 357, 379 (Tex. App.—
Texarkana 2015, pet. dism’d). An appellate court is not required to search the
appellate record to determine if the record supports the party’s argument. See
Citizens Nat’l Bank v. Allen Rae Invs., Inc., 142 S.W.3d 459, 489–90 (Tex. App.—
Fort Worth 2004, no pet.); Wade v. Comm’n for Lawyer Discipline, 961 S.W.2d 366,
373 (Tex. App.—Houston [1st Dist.] 1997, no writ) (“An appellate court is under no
duty to make an independent search of the record for evidence supporting an
appellant’s position.”); see also In re B.T.D., No. 01-16-00582-CV, 2017 WL
343613, at *7 (Tex. App.—Houston [1st Dist.] Jan. 20, 2017, no pet.) (mem. op.).
Because a party bears the burden of showing that the record supports the contention
raised, and of specifying the place in the record where matters upon which she relies
76 or of which she complains are shown, we focus on the portions of the record that
mother directs this Court to in her opening brief.68 See TEX. R. APP. P. 38.1;
Houghton v. Port Terminal R.R. Ass’n, 999 S.W.2d 39, 51 (Tex. App.—Houston
[14th Dist.] 1999, no writ).
First, mother appears to complain that the trial court erred in excluding certain
testimony of mother’s girlfriend, Amber. During Amber’s testimony, she testified
about a home study conducted related to her being a potential placement for C.A.J.,
and she stated that her home was recommended as an appropriate placement for the
child. Mother’s trial counsel asked Amber certain questions about the home study
that was completed, such as “When th[e] home study was performed on you, did
they do a background check?” and “What, if any, hits came up on you for a criminal
history?” The trial court sustained objections to several of mother’s counsel’s
questions to Amber about the home study’s revelations, the home-study process, and
the type of questions that Amber had been asked as part of the home study. Despite
the trial court sustaining such objections, though, the trial court admitted a copy of
68 Although mother refers to pages of the reporter’s record in her brief, her citations lack specificity. See Toldson v. Denton Indep. Sch. Dist., No. 02-18-00394-CV, 2019 WL 6205245, at *12–14 (Tex. App.—Fort Worth Nov. 21, 2019, no pet.) (mem. op.) (noting difficulties with imprecise citation to record and holding issue waived for inadequate briefing); In re Caldwell-Bays, No. 04-18-00980-CV, 2019 WL 1370316, at *8 (Tex. App.—San Antonio Mar. 27, 2019, orig. proceeding) (mem. op.) (noting party’s citations to record were imprecise and identifying what court “believe[d] she [was] referring to”).
77 the entire twenty-five-page home-study report completed on Amber in March or
April 2019. See In re H.L.B., 2013 WL 3866651, at *8; Able, 981 S.W.2d at 770–
71; see also In re R.H.W. III, 542 S.W.3d 724, 740 (Tex. App.—Houston [14th Dist.]
2018, no pet.) (“When evidence identical or similar to the objected-to evidence is
admitted elsewhere without objection, there is no harm.”); Pyle v. S. Pac. Transp.
Co., 774 S.W.2d 693, 696 (Tex. App.—Houston [1st Dist.] 1989, writ denied).
Mother’s trial counsel also asked Amber whether she had “made [herself]
available to [DFPS] for permanent placement for [C.A.J.]?” And although the trial
court sustained an objection to that question, this information is also available in the
twenty-five-page home-study report, a copy of which the trial court admitted into
evidence. Amber also testified about the steps she had taken to request that C.A.J.
be placed with her. And DFPS caseworker Owens testified that DFPS looked at
Amber as a potential placement, noting that a home study of Amber was completed
by DFPS in March or April 2019. See In re H.L.B., 2013 WL 3866651, at *8; Able,
981 S.W.2d at 770–71; see also In re R.H.W. III, 542 S.W.3d at 740; Pyle, 774
S.W.2d at 696. Thus, we hold that the trial court did not commit reversible error in
sustaining objections to certain complained-of portions of Amber’s testimony.
Mother also appears to complain about a portion of the testimony of C.A.J.’s
maternal grandmother during which mother’s trial counsel sought to question the
grandmother about having C.A.J. placed with her. The grandmother testified,
78 without objection, that although she and her husband, C.A.J.’s maternal grandfather,
initially felt that they were too old to take care of C.A.J.—a very active child—she
and her husband changed their minds and sought to have C.A.J. placed with them.
And C.A.J.’s maternal grandmother spoke to caseworker Owens about having C.A.J.
placed in her home. See In re H.L.B., 2013 WL 3866651, at *8; Able, 981 S.W.2d
at 770–71; see also Pyle, 774 S.W.2d at 696. We hold that the trial court did not
commit reversible error in sustaining objections to certain complained-of portions
of the maternal grandmother’s testimony.69
Finally, mother asserts that the trial court erred in excluding the testimony of
mother’s expert witness, Cheryl Harvick, who was going to testify about DFPS’s
failure to “follow[] the law and its own policies” as well as the “statistics about
adoption placements breaking down.”70
Outside the presence of the jury, mother’s trial counsel made an offer of proof
and summarized what she believed Harvick would testify to at trial, stating:
[I]f . . . Harvick were to testify, she would testify specifically to the investigation that was held in this case. I believe she has the expertise and the experience to give an opinion as to the investigation of [mother] and as to the allegations against her with [C.A.J.]. I believe 69 To the extent that the trial court sustained objections to the aforementioned portions of Amber’s testimony and the testimony of C.A.J.’s maternal grandmother, we note that no one requested that the testimony be stricken or that the trial court instruct the jury to disregard the complained-of portions of testimony. Thus, mother was still able to get before the jury the testimony that she complains was excluded. 70 We need not address DFPS’s assertion that mother did not preserve this complaint for appellate review. See TEX. R. APP. P. 47.1.
79 that her expertise and her knowledge, that she would be able to educate the jury on the policies, the procedure and the law as it relates to . . . DFPS as to what their policies and procedures are when it comes to investigation.
. . . I believe she would be able to testify that th[e] investigation report and those [DFPS] investigators that were involved in the investigation did not follow the policies and procedures of [DFPS], that they did not perform a proper investigation when it comes to the allegations made against [mother] as to how she may or may not have harmed [C.A.J.].
I believe that once she testified to the report pointing out all of the errors, mistakes, and the way that the caseworkers did not properly perform their duties, I think that that would be directly related to the credibility of those witnesses, specifically, Melissa Scott as well as her supervisor, Nisela [Zamorano] . . . . I believe it would go to those two witnesses[’] credibility. Once that credibility would be attacked, I think they could also be impeached based on their report versus what they testified to.[71]
I think that . . . specifically relates to the issue here at trial because the jury will have a duty of finding a fault ground plus best interest. The fault ground can only come into effect in this case when [mother] had [C.A.J.] in her care, custody and control which happened before the removal in December 2018; therefore, the only way they can find a fault ground is based on the investigation. Specifically[,] in this case, it was that [C.A.J.] tested positive for cocaine.
The investigation shows that there were two drug tests . . . done at West Oaks . . . . [One test] came up positive for cocaine and then a repeat [test] two days later came up negative for cocaine. There was a removal based on those two . . . tests as well as [mother] admitting to participating in using cocaine; however, when asked if she would have any idea how cocaine may have gotten in [C.A.J.’s] system, she
71 We note that mother called Scott to testify at trial and Scott did not testify about the contents of her CPS Investigation Report, making impeachment “based on [her] report versus what [she] testified to” at trial improbable. Mother does not complain about any portions of Scott’s testimony being excluded.
80 repeatedly denied having any knowledge of how that would have happened.
In addition, the investigation shows that there were no collaterals interviewed. There were no teachers, no doctors, no neighbors, no relative, nobody was interviewed properly to see whether these allegations could be confirmed or not. The removal happened . . . in January, but the removal happened before there was an additional drug test that came back where [DFPS] had requested a hair follicle on [C.A.J.]. That hair follicle came back positive for cocaine above 20,000 picograms. Based on the investigation and the testimony, there [was] no investigation as to how that cocaine in [C.A.J.’s] hair, if at all, how it got there. There’s not even any testimony as to whether he suffered any effects from having cocaine at that level in his hair, whether it caused him injury, whether it’s caused him any kind of developmental delay or any physical injury as to a level of cocaine in his body if it is even true. And I don’t believe that, based on the investigation being done improperly, that that would give the jury enough information to find a fault ground without the testimony of . . . Harvick.
The only way they would know that the policies and procedures had been violated, the only way they would know that the investigation was not done properly, would be through the testimony [of] . . . Harvick, through her expertise. Because when asked those questions, the caseworkers on the stand . . . said they either didn’t know what the policy was, they didn’t recall what the policy was or they didn’t recall what had or had not happened within the investigation. And so[,] without that [the] expert testimony of . . . Harvick, the jury would be unable to determine the credibility of the witnesses, the investigators . . . as well as the proper procedure done on the investigation.
Another issue . . . that will be before the jury[] . . . is whether [DFPS] should get [permanent managing conservatorship of C.A.J.] and [mother] terminated and whether [C.A.J.] should ultimately be placed for adoption. We’re talking about a child who is seven years old now with a minimum of four mental health diagnos[es] who has experienced trauma since in care, not in his mother’s care, but since in care. He has been removed from seven -- six different
81 placements. . . . And the therapist has testified about his behavioral problems.
....
. . . Harvick, in her testimony as a master investigator, has had to remove many children, whether they were placed for adoption or just in long-term placement based on their behavior. She would be able to testify to the amount of homes that -- placements that break down because of the child’s behavioral issues. She would be able to testify, at least in her experience, the number of adoptive homes that have broke[n] down or the adoptive parents have returned the child to [DFPS] based on their behaviors where she has had to pick those children up. That’s an issue that is directly related to [C.A.J.] and the best interest in this case.
Any error by the trial court in excluding the testimony of Harvick is reversible
only if mother can show that the error was harmful, meaning that it probably caused
the rendition of an improper judgment. Diamond Offshore Servs. Ltd. v. Williams,
542 S.W.3d 539, 551–52 (Tex. 2018); Interstate Northborough, 66 S.W.3d at 220;
see TEX. R. APP. P. 44.1. In determining whether the erroneous admission of
evidence was harmful, we review the entire record. Interstate Northborough, 66
S.W.3d at 220; Sundance Energy, Inc. v. NRP Oil & Gas LLP, No. 01-18-00340-CV,
2019 WL 3819523, at *7 (Tex. App.—Houston [1st Dist.] Aug. 15, 2019, pet.
denied) (mem. op.). “Typically, a successful challenge to a trial court’s evidentiary
ruling[] requires the complaining party to demonstrate that the judgment turns on the
particular evidence excluded or admitted.” Interstate Northborough, 66 S.W.3d at
220; see also In re N.F., No. 09-19-00435-CV, 2020 WL 2070286, at *20 (Tex.
82 App.—Beaumont Apr. 30, 2020, pet. denied) (mem. op.) (“Evidentiary rulings do
not usually cause reversible error unless an appellant can demonstrate that the
judgment turns on the particular evidence that was admitted or excluded.”).
The judgment in a termination-of-parental-rights case necessarily rests on all
of the evidence by which the fact finder determines whether the parent has
committed one or more of the acts or omissions enumerated in Texas Family Code
section 161.001(b)(1) and whether termination of parental rights to a child is in the
child’s best interest. See TEX. FAM. CODE ANN. § 161.001(b); Boyd, 727 S.W.2d at
533; see also In re B.K.G.D., No. 01-20-00057-CV, 2020 WL 3821086, at *16 (Tex.
App.—Houston [1st Dist.] July 2, 2020, no pet.) (mem. op.). In her brief, mother
does not assert that the judgment turns on Harvick’s excluded testimony, see TEX.
R. APP. P. 38.1, and a review of the entire record does not show that the judgment
terminating mother’s parental rights turned on the testimony of Harvick. See In re
B.K.G.D., 2020 WL 3821086, at *16. Mother’s assertion in her offer of proof that
the only way that DFPS could establish that mother committed one or more of the
acts or omissions enumerated in section 161.001(b)(1) would be “based on [DFPS’s
improper] investigation,” specifically, that C.A.J. “tested positive for cocaine,” is
incorrect. We also note that mother has not challenged on appeal the sufficiency of
the evidence to establish that she committed one or more of the acts or omissions
enumerated in section 161.001(b)(1).
83 Because mother has not shown that the judgment terminating her parental
rights turned on Harvick’s excluded testimony, we hold that the trial court did not
commit reversible error in excluding the testimony of mother’s witness, Harvick.
See In re B.K.G.D., 2020 WL 3821086, at *16.
We overrule mother’s fourth issue.
Judgment
In her sixth issue, mother argues that the trial court erred in entering its
judgment because the trial court’s judgment does not conform to the jury’s verdict
in that the judgment contains certain inapplicable or irrelevant language and “reads
as though [it] follow[ed] a bench trial, rather than a jury[] trial.”
To preserve a complaint for appellate review, the record must show that the
complaint was made to the trial court by a timely request, objection, or motion and
the trial court either ruled on the party’s request, objection, or motion, or refused to
rule, and the party objected to that refusal. TEX. R. APP. P. 33.1(a); see also Ortiz v.
Collins, 203 S.W.3d 414, 427 (Tex. App.—Houston [14th Dist.] 2006, no pet.) (to
preserve complaint for appellate review, party must first present issue to trial court).
A motion for new trial or a motion to modify, correct, or reform a judgment is an
appropriate method of preserving error regarding an alleged defect in the trial court’s
final judgment. See Ortiz, 203 S.W.3d at 427; Holland v. Hayden, 901 S.W.2d 763,
84 765 & n.5 (Tex. App.—Houston [14th Dist.] 1995, writ denied); see also Luna v. S.
Pac. Transp. Co., 724 S.W.2d 383, 384 (Tex. 1987).
Here, mother did not file a motion for new trial or a motion to modify, correct,
or reform a judgment to bring to the trial court’s attention the purported errors in its
judgment. See TEX. R. CIV. P. 329b. Because mother did not raise her complaint
about the trial court’s judgment below, we hold that she has not preserved her
complaint for appellate review.72 See Sheets v. Autogroup Premier, Inc., No.
14-18-00279-CV, 2020 WL 548366, at *4 n.6 (Tex. App.—Houston [14th Dist.]
Feb. 4, 2020, no pet.) (mem. op.) (party’s responsibility to challenge contents of
signed final judgment via motion for new trial or motion to alter, modify, or correct
judgment); see also TEX. R. APP. P. 33.1; Valdez v. Valdez, 930 S.W.2d 725, 728
(Tex. App.—Houston [1st Dist.] 1996, no writ) (because party never complained to
the trial court, he never gave trial court opportunity to correct alleged error).
Remand
In her fifth issue, mother argues that this Court should remand her case to the
trial court in the interest of justice because the cumulative effect of the trial court’s
errors necessitates a new trial.
72 To the extent that mother appears to incorporate a sufficiency-of-the-evidence complaint in her sixth issue, we hold that she has not preserved it for appellate review. See TEX. R. APP. P. 33.1(d); In re S.G., 2019 WL 1448870, at *4.
85 Multiple errors, even if considered harmless when taken separately, may in
some instances result in reversal and remand if the cumulative effect of such error is
harmful. Jones v. Lurie, 32 S.W.3d 737, 745 (Tex. App.—Houston [14th Dist.]
2000, no pet.); Owens-Corning Fiberglas Corp. v. Malone, 916 S.W.2d 551, 570
(Tex. App.—Houston [1st Dist.] 1996), aff’d, 972 S.W.2d 35 (Tex. 1998). But
before we may reverse a judgment and order a new trial, we must determine that the
error committed by the trial court was reasonably calculated to cause and probably
did cause the rendition of an improper judgment. Weidner v. Sanchez, 14 S.W.3d
353, 377–78 (Tex. App.—Houston [14th Dist.] 2000, no pet.); Malone, 916 S.W.2d
at 570; see TEX. R. APP. P. 44.1.
Here, mother must show that, based on the record as a whole, but for the
alleged errors, the jury would have rendered a verdict favorable to her. Weidner, 14
S.W.3d at 377–78; Malone, 916 S.W.2d at 570. Significantly, mother has not
directed this Court to any authority holding that the trial court’s non-errors may, in
their cumulative effect, require reversal and a new trial. See In re Commitment of
Sells, No. 09-15-00172-CV, 2016 WL 1469059, at *12 (Tex. App.—Beaumont Apr.
14, 2016, pet. denied) (mem. op.); see also Chamberlain v. State, 998 S.W.2d 230,
238 (Tex. Crim. App. 1999).
In light of our previous analysis related to mother’s other issues and based on
the entire record, we hold that mother has failed to show that but for the cumulative
86 effect of the trial court’s errors, if any, the jury would have rendered a verdict
favorable to her.73 See Fisher v. Kawasaki Heavy Indus., Ltd., No. 13-15-00364-CV,
2017 WL 2817662, at *8 (Tex. App.—Corpus Christi–Edinburg June 29, 2017, no
pet.) (mem. op.) (overruling appellant’s cumulative-error argument in light of
court’s disposition of appellant’s other issues); Gainsco Cty. Mut. Ins. Co. v.
Martinez, 27 S.W.3d 97, 107 (Tex. App.—San Antonio 2000, pet. dism’d by agr.).
We overrule mother’s fifth issue.
Conclusion
We affirm the order of the trial court.
Julie Countiss Justice
Panel consists of Justices Kelly, Goodman, and Countiss.
73 The authorities cited by mother in her brief are inapplicable.
Related
Cite This Page — Counsel Stack
in the Interest of C. J. a Child v. Department of Family and Protective Services, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-the-interest-of-c-j-a-child-v-department-of-family-and-protective-texapp-2021.