Colbert v. Department of Family Services
| Decision Date | 21 December 2006 |
| Docket Number | No. 01-05-00124-CV.,No. 01-04-01233-CV.,No. 01-05-00126-CV.,No. 01-05-00127-CV.,No. 01-04-01232-CV.,01-04-01232-CV.,01-04-01233-CV.,01-05-00124-CV.,01-05-00126-CV.,01-05-00127-CV. |
| Citation | 227 S.W.3d 799 |
| Parties | Ericka Shanette COLBERT, Appellant, v. DEPARTMENT OF FAMILY & PROTECTIVE SERVICES, Appellee. |
| Court | Texas Court of Appeals |
Reo Harris Jr., Spring, TX, William B. Connolly, William B. Connolly & Associates, Houston, TX, for Appellant.
Lisa Rice Hulsey, Asst. Co. Atty., Sandra D. Hachem, Sr. Asst. Co. Atty., Houston, TX, for Appellee.
Panel consists of Justices NUCHIA, JENNINGS, and HIGLEY.
Appellant, Ericka Shanette Colbert, appeals five orders terminating her parental rights to her seven children, T.J.C. and T.D.C. (the twins), and D.N.C., T.L.J., T.B.J., E.D.C., and J.D.M (the five older children).1 In three issues, appellant challenges (1) the legal and factual sufficiency of the evidence to support the trial court's finding that she knowingly placed or allowed the twins to remain in conditions or surroundings that endangered their physical or emotional well-being, (2) the legal sufficiency of the evidence to support the finding that the termination of parental rights was in the best interest of the twins, and (3) the factual sufficiency of the evidence to support the findings that the termination of parental rights was in the best interest of all the children. We reverse the order relating to the twins and render judgment in appellant's favor. We reverse the orders relating to the five older children and remand those cases to the trial court.
In April 2003, appellant was living in a three-bedroom house with her five children, ten-year-old D.N.C., eight-year-old J.D.M.,2 six-year-old E.D.C., five-year-old T.L.J., and three-year-old T.B.J. The children's maternal grandmother, JoAnn Colbert (the grandmother), and the grandmother's boyfriend, Kenneth Newman, also lived in the home. In early April, Trenton Jackson, the father of T.L.J. and T.B.J., moved into the household. On or about April 3, Jackson brought T.J., his three-year-old daughter by another woman, into the home to visit. On April 4, Jackson "spanked" or "whipped" T.J. with a leather belt for wetting her pants. On April 5, Jackson again "whipped" T.J., this time for defecating in her pants. In the early evening of April 5, T.J. was found unconscious, and someone called 9-1-1. T.J. was taken to the hospital by ambulance, and Jackson was arrested and charged with injury to a child. T.J. died on April 9, and an autopsy showed that the cause of death was a blunt-force head injury. In April 2004, Jackson was found guilty of injury to a child and was sentenced to life in prison.
In May 2003, the Department of Protective and Regulatory Services, the predecessor of the Department of Family and Protective Services ("DFPS"), took possession of appellant's five children and filed a petition for protection of a child, for conservatorship, and for termination of appellant's parental rights with respect to each of her five children.3 The petition also sought termination of the parental rights of each of the children's fathers.4 As grounds for the termination of appellant's rights, the petition recited subsections (1)(A)-(G) and (J)-(S) and (2) of section 161.001 of the Family Code.5 DFPS did not remove the children from the home at that time.6
Jackson was out of jail on bond while he awaited his trial, and DFPS had told appellant not to allow Jackson to be around the children. However, appellant did not believe that Jackson's actions had caused T.J.'s death, and she let Jackson move back into the house. DFPS later learned that Jackson was living in the house and removed the children from appellant. DFPS placed J.D.M with his paternal grandfather and the other children with the grandmother, who, along with Newman, still lived in appellant's house. Appellant moved out of the house, stayed with a cousin, and visited her children during the day.
After DFPS took custody of the children, The Children's Crisis Care Center (the CCCC) did a family evaluation, during which appellant revealed that the grandmother had a history that included drug convictions, that she was currently on parole, and that she no longer used drugs and had made a better life for herself. DFPS learned that the grandmother also had convictions for prostitution and burglary, and that Newman had convictions for aggravated robbery, breaking and entering, and possession of cocaine. In December 2003, DFPS took possession of the four children and put them in substitute care. J.D.M. remained with his grandfather. At the time of trial, the two boys were in the same foster home and the two girls were each in different foster homes.
DFPS offered various services to appellant and her family as a part of DFPS's permanency planning. Appellant participated in therapy, parenting classes, and anger management classes and was allowed supervised visits with the children for one hour every two weeks. Appellant attended all the family visits allowed by DFPS and made all her court appearances.
On January 30, 2004, appellant gave birth to T.D.C. and T.J.C., whose father was Jackson. In April 2004, DFPS removed the two-and-one-half-month-old twins from appellant's home. DFPS filed a petition for protection, conservatorship, and termination of parental rights with respect to the twins. The five cases, which included all seven children, were tried together in November 2004.
At her trial in November 2004, appellant testified that she saw Jackson spank T.J. only one time—with a belt on April 5.7 Appellant further testified that she bathed T.J. after the spanking and told Jackson that there were better ways to discipline a child. Appellant said that, after bathing T.J., she left the house and returned one and one-half to two hours later. Appellant testified that when she returned home, the ambulance had gone and Jackson was sitting in a police car.
Brenda Hornaday, the therapist who treated four of the five older children beginning in about August 2003, testified that she visited with the children in appellant's home weekly and that her primary focus with the children was behavior modification. She said that the house was orderly, but that there was chaos. She testified that there were a lot of people in the house and that children were always present. She said that the grandmother allowed her to conduct the therapy in the grandmother's bedroom. Hornaday testified that, based on her visits, she could not assess whether the home environment was conducive to the children's return. She said that she had no opinion regarding the termination of appellant's parental rights. She thought that the children would be able to deal with never going back to their mother. She said that the children needed consistency, stability, structure, and patience and were getting some of those things at home, but that they need all of those things.
Hornaday testified that all the children were very much bonded with their mother and that they loved Jackson. She said that two of the children told her that they got "whippings," but did not say by whom and she did not ask. She was not able to address the severity of the whippings, because the children did not talk about that. She testified that the children would need continuing therapy, and that, if they were returned to their mother, Hornaday would continue to treat them. She also stated that, if stability, consistency, patience, and structure could prevail in the chaos in appellant's home, it would be in the best interest of the children to return them to their mother. If not, returning them would not be in their best interest. She stated that she did not have sufficient information on appellant to assess whether appellant could develop the needed attributes. She knew that family visitations were scheduled every two weeks, but she had never observed one. In response to a hypothetical situation in which a mother had one hour to visit with all her children, she responded that it was possible that one child might feel neglected.
Kenneth Williamson, J.D.M.'s paternal grandfather, testified that J.D.M. had been living with him for about a year and had previously lived with him from the ages of five months to eight or nine years. He testified that J.D.M. lived with him because Williamson did not like the atmosphere at appellant's home, with its "[i]n and out traffic," which he suspected was drug trafficking, although he could not be sure. He said that appellant visited J.D.M. "two, three, four times at the most" and that J.D.M. spent some weekends with appellant. He testified that J.D.M. saw appellant as a mother figure and that the two had a close bond. He opined that appellant loved all her children, but made bad choices. He said he would not have concerns if J.D.M. went back to appellant's home, but would have concerns if the home had the same environment as before. He had attended the family visits and thought that appellant treated all the children the same.
David Cooney, the children's guardian ad litem through Child Advocates, had been involved in the case since August 2003. He testified that he visited the home before the children were removed and had concerns about the presence of Kenneth Newman, the grandmother's boyfriend, in the home because of his criminal record. Cooney also testified that he had concerns about the grandmother's extensive criminal history. He further testified that, in December 2003, he recommended to the court that the children be removed from the home because of his concerns about appellant's minimizing Jackson's role in the death of T.J. and appellant's failure to acknowledge her own responsibility to protect T.J. or to admit the severity of T.J.'s bruises. However, he testified that, if appellant...
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