in the Interest of F.R. AKA F.R. AKA F.R., A.L.R., I.R.L. AKA I.R.L., Children

• Court: Court of Appeals of Texas
• Decided: November 4, 2019
• Docket: 07-19-00215-CV
• Status: Published

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo

No. 07-19-00215-CV

IN THE INTEREST OF F.R. AKA F.R. AKA F.R., A.L.R., I.R.L. AKA I.R.L., CHILDREN

On Appeal from the 287th District Court Bailey County, Texas Trial Court No. 9740, Honorable Carry Baker, Presiding

November 4, 2019

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

M.L., mother of the children the subject of this appeal and a Guatemalan national,

appeals an order terminating her parental rights to F.R., A.L.R., and I.R.L. The Texas

Department of Family and Protective Services (the Department) was named managing

conservator in the same termination order. Through five issues, M.L. contends that 1)

the trial court lacked jurisdiction over the parties, 2) the evidence was legally and factually

insufficient to support termination grounds (D), (E), and (O) and that termination was in the best interest of the children, and 3) the trial court abused its discretion in appointing

the Department as managing conservator of the children.1 We affirm.

Background

The final hearing began with testimony from M.L.’s immigration attorney. Its

substance follows. A deportation order has been entered for M.L., from which she has

filed an appeal. She presently is being held in a detention center. Her attorney believed

they had grounds for reversal and if that were to happen then she would have another

hearing and could possibly be released on bond. Her hearing could be anywhere

between two to three years to determine whether she would receive asylum in the U.S.

If M.L. is not successful with her appeal, she could be deported back to Guatemala soon

thereafter.

Regarding the children the subject of this proceeding, F.R. is a female who was

born in Guatemala and at the time of the hearing was 5 years old. A.L.R. and I.R.L. are

both males and were born in the United States, ages three and one, respectively, at the

time of the hearing. The Department had attempted to contact their fathers who were

believed to be living in Guatemala. That effort included contacting the Guatemalan

Consulate in Houston, Texas.

Sergeant Leonardo Aviles, of the Muleshoe Police Department, also testified. The

substance of his testimony follows. Shortly after 10:00 a.m. on June 23, 2017, he

received a call from one of M.L.’s neighbors who reported that the three children were

home alone. When he arrived at M.L.’s home, he found the neighbor with two children

outside the house. The oldest child appeared to be about age three and the younger

1 The trial court also terminated the parental rights of three alleged fathers, R.S.G., M.P.G., and P. None filed a notice of appeal.

2 about one or two. Inside the house, he found an infant appearing to be about age three

or four months old. The children looked as if they had not showered. Their diapers

needed changing, and the infant was crying. The neighbor told him he found the children

outside about 9:30 a.m., which meant they had been home alone from 6:00 a.m. until

9:30. The officer also said that: 1) I.R.L.’s legs and foot appeared to be in “bad condition”

due to lack of bathing and skin care; 2) the children were transported to the police station;

3) M.L. picked them up five hours later; 4) “[M.L.’s] house was dirty,” needed to be cleaned

and had trash everywhere; and 5) “the kitchen look[ed] like it [had not] been cleaned for

a while, greasy. . . . [with] dead roaches or different type of insects, spiders.”

Pictures of the home depicted an overturned bucket near the stove. M.L.

conceded that the bucket’s placement would have allowed F.R. or A.L.R. to reach the

stove. Another photograph showed an unprotected electrical outlet on the wall near the

floor beside the kitchen table.

The next witness was the children’s caseworker Elvia Buelna who testified that 1)

a report had been received on June 23, 2017, about three young children being left home

alone and unattended; 2) she discovered the home “in filthy and unsanitary conditions”;

3) the children were dirty and seemed hungry; 3) M.L. was, at the time of hearing, in “an

immigration detention center” and unable to care for her children; 4) M.L. lacked a stable

home for the children; 5) M.L. lacked stable employment; 6) M.L. had not addressed the

issues of why her children came into care; 7) after the children were removed, M.L. was

given unsupervised visitation over weekends with the plan to reunite them; and 8) at the

end of the first visit, the children and their clothes were unclean and the children were

hungry.

3 The caseworker also related the events of the second unsupervised visit. I.R.L.

had contracted pink eye before arriving. M.L. was given eye drops to use to combat the

pink eye and was shown how to use them. Thereafter, the caseworker made an

unannounced visit to the home while the children were there and discovered that A.L.R.

and I.R.L. had fevers while I.R.L. also was “just limp, no life in him, his eyes were shut

with gunk, the eye gunk that comes out, and his cheeks were bright, bright red.” When

questioned about the children’s condition, M.L. “just kind of shrugged her shoulders.” The

caseworker then transported the children to the emergency room, where “the doctor

stated that [I.R.L.] had a grave case of pink eye” and “[b]oth of the boys had high

temperatures” ranging from 102.5 to 103.9.

These events and M.L.’s inability to meet her children’s basic needs led the

Department to keep the children in its care. M.L. “immediately became upset and made

threats towards” the caseworker when told of this decision. The threats included cursing

her “to God” and cursing the caseworker’s children. M.L. also threatened to return the

children back to Guatemala if they were returned to her. M.L. then refused to release the

children to the caseworker and shoved the latter when effort was made to approach the

children. Both F.R. and I.R.L. were in her arms when she shoved the worker. M.L.’s

brother also stood near M.L. holding a knife, at the time. That resulted in the caseworker

becoming scared, leaving without the children and contacting the police. The police

subsequently arrested M.L. and charged her with the offense of terroristic threat, to which

charge she pled guilty.

Other evidence revealed that, at the time of the hearing, the children were “in a

legal risk home in the Dallas area,” doing very well, all together, and happy. The home

4 was safe and clean and large with ample space for the children inside and out. Each

child had their own bed. The placement or foster parent expressed interest in adopting

the children and in addressing F.R.’s immigration issues. Remaining in the foster home

was the best opportunity for the children, according to the caseworker. And, though other

foster children were in the home, all the children developed an instant bond and adapted.

M.L. testified as well. She 1) denied leaving the children alone but in the care of

others who either left or failed to appear; 2) explained that she could not take the two

children running high fevers to the hospital because of a lack of transportation; 3) denied

threatening the caseworker (despite pleading guilty to the charge of terroristic threat); and

4) accused the caseworker of upsetting the children the day the police were called.

Issue One – Jurisdictional Challenge

By her first issue, M.L. argues that the trial court lost jurisdiction over the

proceeding due to the failure to commence trial within the statutory deadlines. See TEX.

FAM. CODE ANN. § 263.401(a) & (b) (West 2019) (respectively establishing the initial

deadline as the first Monday following the one-year anniversary of the date the court

appointed the Department temporary managing conservator and permitting a 180-day

extension of one-year deadline). We overrule the issue.

The record illustrates that the trial court scheduled the hearing to begin within the

initial statutory deadline, extended the deadline by appropriate order, and convened trial

before the extension date lapsed, and heard some testimony from the caseworker.

Thereafter, the Department’s attorney proposed recessing until a later date, to which

proposal M.L.’s attorney voiced no objection. The latter also indicated he had filed a

motion for continuance. The final hearing resumed on February 20, 2019, and continued

5 over two other settings. M.L. now argues that the Department’s presentation at the initial

hearing did not constitute the commencement of “trial on the merits” as required

by § 263.401(a). M.L. waived her complaint given that the proceeding was controlled by

the pre-September 2017 amendment to § 263.401(a).

The amendment applied to termination suits filed on or after September 1, 2017.

In re T.W., 557 S.W. 3d 841, 843 n.2 (Tex. App.—Amarillo 2018, no pet.). The suit at bar

was filed before then. And, under the pre-amended version, the statutory deadline was

non-jurisdictional and required the parent to move for dismissal. See In re A.F., __

S.W.3d __, __, 2019 Tex. App. LEXIS 8563, at *9 (Tex. App.—Fort Worth Sept. 24, 2019,

no pet. h.). M.L. filed no motion to dismiss.

Issue Three – Sufficiency of (D) & (E)

We address M.L.’s third issue next because by doing so we dispense with the need

to address her second issue.2 By her third issue, M.L. argues the evidence was legally

and factually insufficient to support the trial court’s predicate findings under subsections

161.001(b)(1)(D) and (E). We address only the subsection (D) finding since it has

sufficient evidentiary support. In re K.C.B., 280 S.W.3d 888, 894-95 (Tex. App.—Amarillo

2009, pet. denied) (holding that only one statutory ground is required to support

termination).

In reviewing whether the evidence is sufficient, we apply the standards described

in In re K.M.L., 443 S.W.3d 101, 112-13 (Tex. 2014), and In re K.V., No. 07-16-00188-

CV, 2016 Tex. App. LEXIS 11091, at *6-8 (Tex. App—Amarillo Oct. 11, 2016, no pet.)

(mem. op.). Next, § 161.001(b)(1)(D) permits termination when clear and convincing

2 In her second issue, M.L. contends the evidence is insufficient to support ground (O).

6 evidence shows that the parent “knowingly placed or knowingly allowed the child to

remain in conditions or surroundings which endanger the physical or emotional well-being

of the child.” TEX. FAM. CODE ANN. § 161.001(b)(1)(D). It requires a showing that the

child’s environment posed a danger to the child’s physical or emotional health, and it

permits termination based on a single act or omission by the parent. In re K.C.F., No. 01-

13-01078-CV, 2014 Tex. App. LEXIS 6131, at *32-34 (Tex. App.—Houston [1st Dist.]

June 5, 2014, no pet.) (mem. op.) (citation omitted). Though the subsection concerns the

child’s living environment, a parent’s conduct may be considered since it may create an

environment endangering the child. Jordan v. Dossey, 325 S.W.3d 700, 721 (Tex. App.—

Houston [1st Dist.] 2010, pet. denied).

Leaving the small children alone on June 23, 2017, in a filthy home, leaving them

with access to the stove and an unprotected electrical outlet, leaving them unwashed and

unfed before removal and during visits, leaving them without medical attention when sick

and suffering from extremely high fevers on another occasion, and engaging in

threatening and assaultive conduct when others decided to help the children may

reasonably be construed by a fact-finder as clear and convincing evidence that the

environment of the children at bar posed a danger to their physical and emotional health.

In a bench trial, the court, as fact-finder, is the exclusive judge of the witnesses’ credibility

and the weight given their testimony; it also is free to resolve any inconsistencies in the

evidence. In re I.M.M., No. 07-18-00303-CV, 2019 Tex. App. LEXIS 1387, at *3-4 (Tex.

App.—Amarillo Feb. 25, 2019, pet denied) (mem. op.) (juvenile case) (citing Iliff v. Iliff,

339 S.W.3d 74, 83 (Tex. 2011)). Thus, the trial court here was free to discredit M.L.’s

testimony wherein she denied or attempted to explain away the foregoing circumstances.

7 Issue Four – Best Interest

By her fourth issue, M.L. argues the evidence was legally and factually insufficient

to support the trial court’s finding that termination was in the best interest of each of the

children. We overrule the issue.

To assess whether the best interests of the child warrant termination of parental

rights, we consider the evidence in relationship to the Holley factors. Those factors are

itemized in Holley v. Adams, 544 S.W.2d 367 (Tex. 1976), and we implicitly consider them

in undertaking our analysis here even though we may not explicitly mention them.

The aforementioned circumstances and evidence supporting the (D) finding are

relevant in addressing the best interest equation. To them we add other evidence

discussed under our heading “Background” above and found in the record. It consists of

1) M.L.’s threats to return the children to Guatemala, a place she left to escape abuse; 2)

the safe, adequate, and stable environment of the children’s post-removal placement; 3)

their foster parent’s interest in adoption; 4) their foster parents’ willingness to address

F.R.’s immigration concerns; 5) M.L.’s lack of employment and a home at the time of

hearing; 6) M.L.’s pending immigration status that may result in deportation; 7) the general

tenuousness of finding a relative within the United States with whom the children may be

placed; and 8) the happiness of the children with their foster placement.3 This evidence,

when considered together, is sufficient to permit a fact-finder to form a firm conviction or

belief that terminating M.L.’s parental rights was in the best interest of the children.

3 M.L. had a younger sister in Nebraska who appeared to be in the United States illegally.

8 Issue Five – Appointment of a Non-parent as Managing Conservator

Through her fifth and final issue, M.L. argues the trial court abused its discretion

by appointing the Department sole managing conservator of the children. We overrule

the issue.

A final order terminating the parental relationship divests the parent and child of all

legal rights and duties with respect to each other. TEX. FAM. CODE ANN. § 161.206(b)

(West Supp. 2018). Because M.L.’s parental rights were terminated and we overruled

her attack on that decision, she had and has no standing to challenge the Department’s

appointment as permanent managing conservator. In re C.J.B., No. 05-19-00165-CV,

2019 Tex. App. LEXIS 7470, at *29 (Tex. App.—Dallas Aug. 21, 2019, no pet.) (mem.

op.); In re D.K.W., No. 01-17-00622-CV, 2017 Tex. App. LEXIS 11929, at *15 (Tex.

App.—Houston [1st Dist.] Dec. 21, 2017, pet. denied) (mem. op.).

Having overruled each of M.L.’s issues, we affirm the final order of the trial court.

Per Curiam