Castorena v. Texas Department of Protective and Regulatory Services, No. 03-02-00653-CV (Tex. App. 4/29/2004)
| Decision Date | 29 April 2004 |
| Docket Number | No. 03-02-00653-CV.,03-02-00653-CV. |
| Parties | PEDRO CASTORENA AND PENNY RENEE DELGADO, Appellants, v. TEXAS DEPARTMENT OF PROTECTIVE AND REGULATORY SERVICES, Appellee. |
| Court | Texas Court of Appeals |
Appeal from the District Court of Hays County, 274th Judicial District, No. 2001-0993, Honorable Don B. Morgan, Judge Presiding.
Affirmed.
Before Chief Justice LAW, Justices B. A. SMITH and PURYEAR.
After a bench trial, the court found by clear and convincing evidence that the parental rights of Pedro Castorena (Castorena) and Penny Renee Delgado (Delgado) should be terminated. In two issues on appeal, each contends that the evidence was factually insufficient to support the grounds for termination and to support a finding that the termination was in the children's best interest.1
Delgado is the mother of the four children involved in this termination suit. M.D., the oldest, was born in February 1994. M.D.'s father is Miguel Delgado, Penny Delgado's second husband, to whom she was still legally married at the time of trial. F.H., whose father is Jose Hernandez, was born in June 1997.2 M.D.C. was born in March 1999, E.D.C. in June 2000. Castorena is the father of the two youngest children.
The referral that ultimately resulted in the filing of these termination proceedings occurred in July 2001. Julie Melton, the CPS investigator handling the referral, discovered that CPS had conducted investigations into this family dating back to December 1995 for physical and medical neglect, physical abuse, and neglectful supervision.4 Although services were offered on more than one occasion, no previous referral resulted in the children being removed from the home. The December 1995 referral alleged, among other things, that Delgado's boyfriend locked her out in the cold, along with her baby clothed only in a diaper; maggots were found in the sink and in the couch where the baby had been sleeping.
In June 1997, Seton Home Health Care became involved with the family because Delgado had alcohol in her system when F.H. was born and admitted a lack of child care knowledge. Delgado also admitted that she was in an abusive relationship with F.H.'s father. She said that on several occasions he had kicked the car seat while F.H. was in the seat. Delgado said that her mother had been married seven times and the different husbands had abused her and her siblings until CPS intervened and pressured the men to move; Delgado said she supposed CPS would have to do the same with her.
In September 1997, a police officer contacted Delgado because three-year-old M.D. was running around the apartment complex, including the pool area, unsupervised. Delgado told the police officer that M.D. was bright and could handle herself. In October 1997, Delgado told a CPS worker that she did not see any danger in letting M.D. play outside at the complex unsupervised. She further told the caseworker that she had been in jail for hitting M.D.'s father with a hammer because she wanted to get back together and he refused.
A July 1999 referral alleges that Delgado reported to law enforcement that Castorena abused M.D. by kicking the child in the back and flicking a beer-bottle cap at her, striking her under the eye. In January 2000, Delgado was investigated for leaving six-year-old M.D. to care for the younger children. She admitted to a pattern of leaving the children alone for as long as an hour while she went to the store with Castorena. M.D. was not in school because she did not have immunizations. In February 2000, Delgado told the caseworker that Castorena regularly beat her and hit the children. Sometimes he withheld food. At that point, the Department started family-based safety services. The case worker noted poor bonding and attachment between Delgado and the children; lack of supervision and chronic neglect; dirty children with chronic lice; medical treatment was not sought for the children and Delgado did not obtain prenatal care, although she was approximately six months pregnant. Castorena apparently never sought medical care on her behalf. There was a history of domestic violence between Delgado and Castorena, which Delgado minimized as "arguing." At a March 2000 visit, there was no food in the house. A woman's shelter provided a bus ticket to Georgia so Delgado and the children could stay with some of Delgado's relatives.
When Delgado relocated to Georgia, the Department had been at the point of removing the children because of Castorena's presence. She returned to Texas in April of 2000 and moved into a mobile home in Kyle. The Department understood that Castorena would not live there but he moved in within three days. Services started again in August 2000.
In July 2001, CPS picked up the children based on a referral alleging that Delgado abandoned the children. Delgado left the children at Maria Rodriguez' house. Delgado told Rodriguez that she was going to go fill out some job applications. Rodriguez thought Delgado would be gone for a couple of hours, but after three days she had not returned. Not knowing how to contact Delgado, Rodriguez called the police, who took the children to their maternal grandmother for only one day, after which CPS picked them up. Melton said that the children stated that before being left with Rodriguez, they had been sleeping in the car at rest stops. The children did not know where their mother was.
The children were picked up on July 12; Delgado contacted Melton on July 16. She said that Castorena had evicted them from the mobile home in Kyle in May. Even before evicting them, Castorena had the electricity turned off. The children lived there for about a month longer. After being evicted they had been sleeping at rest stops, as well as staying with friends and with persons contacted through Delgado's church. She was not working, but her pastor had been helping with some money and supplies. Delgado claimed that Rodriguez had agreed to care for the children for four or five months while Delgado looked for work.
F.H. told the children's guardian ad litem, Jill McLaughlin, that the children slept on the road, not in the car. There were maggots in the car. McLaughlin testified that she feels that Delgado takes very little responsibility for anything. Based on her conversation with Rodriguez, she thought the children had been abandoned. McLaughlin did not believe Delgado was simply looking for a job.
Ms. McLaughlin testified that the Department made extensive efforts to find a relative with whom the children could be placed. For a variety of reasons, none of Delgado's relatives could keep them. Castorena could not provide a name of any of his relatives who were in the country legally. However, Delgado said that she took the children to Castorena's mother, who refused to help Delgado by keeping the children temporarily because she wanted Castorena to have custody.
Delgado admitted that she and Castorena were physically violent to each other. Delgado characterized herself as "more violent than Pedro [Castorena]." In addition to attacking Miguel Delgado with a hammer (with one or more children present) because he would not get back together, she admitted threatening Castorena's sister with a knife and was on probation for a terroristic threat conviction based on this incident. Cheryl Reitz of the Hays County probation office testified that a motion to revoke probation was filed because Delgado failed to obey the court's orders to keep gainful employment, failed to report on one date, failed to pay probation fees one month, and failed to obey the admonishment to have no contact with Castorena. The probation file noted a history of domestic violence between the two.
Castorena had had a misdemeanor assault charge in 1999 and later was on deferred adjudication for another. Castorena told Reitz that he was concerned about his safety, that Delgado was stalking him and causing him to lose jobs. He wanted a protective order against her. Delgado took the children over to a neighbor where Castorena was staying and said that she might have to kill Castorena. Castorena apparently took no steps to protect the children against any possible violence.
David Sweet, pastor of the Hays Hills Baptist Church, testified that he tried to help Delgado with several crises in her life over a several-month period in 2000. He found places for the children to stay when Delgado spent time in jail. Sweet testified that he began to see that Delgado cared for the children, but she did not have the desire or maturity to do what it took to protect them. He was concerned that she had no safety net; her parents would not take the kids because of where they were living. He could not believe that Castorena did not care for her and give her any support. In several homes in which she stayed in the summer of 2000, Delgado was asked to leave after a short stay because of her irresponsibility and personality conflicts. Sweet was particularly concerned about one place she stayed because of a large number of single adult males living there.
He testified that the church gave her a car seat, but she did not make any effort to buckle it in the car, so the car seat was freestanding. At the time, Delgado and the children were living in the car. The people with whom she stayed in three different homes said that Delgado would party at night, would go out and leave the kids, forcing M.D. to change diapers and otherwise be the responsible party. Sweet said that Delgado relied on M.D. to take care of the baby more than he thought appropriate. The baby was not changed very often; the other children were often dirty. He ultimately concluded that Delgado did not have the maturity or stability to keep the children and take care of them. "She loved the kids like a ten...
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