In re B.D.A.

• Decision Date: 08 February 2018
• Docket Number: NO. 01–17–00065–CV,01–17–00065–CV
• Citation: 546 S.W.3d 346
• Parties: IN the INTEREST OF B.D.A., L.A.A.–M., and J.X.A., Children
• Court: Texas Court of Appeals

546 S.W.3d 346

IN the INTEREST OF B.D.A., L.A.A.–M., and J.X.A., Children

NO. 01–17–00065–CV

Court of Appeals of Texas, Houston (1st Dist.).

Opinion issued February 8, 2018

Donald M. Crane, SBN: 5005900, 810 South Mason Road, Suite 350, Katy, TX 77450, for Appellant.

Vince Ryan, Harris County Attorney, Robert J. Hazeltine–Shedd, SBN: 99999939, Assistant County Attorney, 1019 Congress, 17th Floor, Houston, TX 77002, for Appellee.

Panel consists of Chief Justice Radack and Justices Keyes and Massengale.

OPINION ON REHEARING

Evelyn V. Keyes, Justice

Appellant, L.A.A. a/k/a L.A.A.–M. ("Father"), asserts six issues challenging the legal and factual sufficiency of the evidence supporting the trial court's final decree terminating his parental rights to his three children, B.D.A., L.A.A.–M., and J.X.A. The panel's opinion dated July 24, 2017, reversed the trial court's decree and remanded for further proceedings. The Texas Department of Family and Protective Services ("the Department") moved for rehearing and en banc reconsideration of that opinion. We now grant the motion for rehearing, withdraw the July 24, 2017 opinion and judgment, and issue this opinion and judgment in their stead.¹

Because we conclude that the record contains legally and factually sufficient evidence to support the trial court's having formed a firm belief or conviction that termination under Family Code section 161.001(b)(1) and (2) was warranted, we affirm the decree of the trial court.

Background

B.D.A., the eldest child involved in this suit, was born in October 2009 and is eight years old. Her brother, L.A.A.–M., was born in March 2011 and is now six. The youngest child, J.X.A., is a boy who was born in November 2012 and has just turned five years old.

In July 2012, before J.X.A. was born and when B.D.A. and L.A.A.–M. were two-and-a-half years and one year old, respectively, Father committed the first-degree felony offense of aggravated robbery with a deadly weapon and was held in jail until his trial. In February 2013, he was sentenced to fifteen years in prison. Father was still serving this sentence at the time of the final hearing in this termination case.

On December 15, 2014, in an effort to investigate a referral that the Department had received regarding abuse and neglect of B.D.A., L.A.A.–M., and J.X.A. by their mother,² the Department filed an application for an ex parte order to place the family on a Child Safety Check Alert List. The Department alleged that it was unable to locate the family—including the mother, the father, and the maternal grandmother—so that it could investigate the reports. The trial court signed an order on December 15, 2014, finding that "[t]he Department has received a report of child abuse or neglect and is trying to investigate," that "[t]he Department has exhausted all means available to [it] for locating the Family and has been unsuccessful," and that the Department filed an application which included "[a] summary of the report of child abuse or neglect the Department is attempting to investigate and the Department's efforts to locate the family." The trial court "APPROVE[D] the Application and ORDER[ED] the HOUSTON POLICE DEPARTMENT to notify the Texas Crime Information Center to place the family on the Child Safety Check Alert List."

The children were removed from their mother's care in June 2015, following a referral of neglectful supervision of L.A.A.–M., who is hearing-impaired and autistic, resulting in his hospitalization for a "head scalp injury from a dog bite." The affidavit accompanying the Department's first amended petition asserted that, at the time of this incident, "the mother's whereabouts were unknown." When she arrived at the hospital, she "appeared to be intoxicated," and her "speech was slurred and she appeared lethargic." The Department investigator also averred that, among other indicators of intoxication, "mother fell asleep twice while answering hospital staff's questions" and that "it took two nurses to physically assist mother to the new room because mother could not walk without wobbling."

The Department's investigator spoke with the mother during L.A.A.–M.'s hospitalization, and, among other statements, the mother expressed her belief that Father "is incarcerated in Amarillo, Texas, and will be there for a long time," but she was unsure why he had been incarcerated. The Department's investigator averred that Father was actually serving a fifteen-year sentence in Huntsville, Texas.

The affidavit supporting the Department's first amended petition also included previous referrals of neglect and abuse of the children by the mother. An investigation into the mother's neglectful supervision of these children, conducted between November 27, 2012, and May 1, 2013, was disposed of with the notation "reason to believe"; two separate investigations into the mother's physical neglect and neglectful supervision of the children, conducted between July 17, 2014, and October 22, 2014, and between October 17, 2014, and December 18, 2014, were disposed of as "unable to complete" because the family could not be located.

The Department asserted that it had sought emergency temporary orders following the latest referral, in June 2015, on the ground that the mother could not care for the children upon L.A.A.–M.'s release from the hospital and "[t]he relative placement for [B.D.A. and J.X.A.] can no longer take care of them." The Department investigator also averred that, when it was determined that the relative keeping B.D.A. and J.X.A. while L.A.A.–M. was in the hospital could only keep them for a few weeks, he asked mother "to give me names, date of birth, and social security numbers for possible placement option[s] for her children." He stated that mother told him "all of the people she would want to be considered either [have] a criminal background or [do not] want to be involved with CPS." The First Amended Petition listed both the mother and Father as parties to be served, noting that Father was "[t]he alleged father of the children."

On June 25, 2015, the trial court signed an order containing the following findings:

3.1 Having examined and reviewed the evidence, including the sworn affidavit accompanying the petition and based upon the facts contained therein, the Court finds that all reasonable efforts, consistent with time and circumstances have been made by [the Department] to prevent or eliminate the need for removal of the children the subject of this suit from the home and to make it possible for the children to return home, but the continuation in the home would be contrary to the children's welfare.

3.2 The Court finds that:

3.2.1. there is an immediate danger to the physical health or safety of the children or the children have been the victims of sexual abuse and that continuation in the home would be contrary to the children's welfare; and

3.2.2. there is not time, consistent with the physical health or safety of the children and the nature of the emergency, to hold an adversary hearing or to make reasonable efforts to prevent or eliminate the need for removal of the children.

The trial court found that it was in the children's best interests to name the Department as their temporary sole managing conservator.

On July 9, 2015, the trial court also signed a "Temporary Order Following Adversary Hearing."³ It found that Father was not notified of the hearing and did not appear. Accordingly, the trial court signed an order appointing an attorney ad litem for Father, and the order stated that "[t]he attorney ad litem shall examine the record in this case and may present evidence to the court concerning the diligent effort to identify, locate, or serve said party." The trial court's temporary order also contained the following findings:

3.1 The Court finds there is sufficient evidence to satisfy a person of ordinary prudence and caution that: (1) there was a danger to the physical health or safety of the children which was caused by an act or failure to act of the person entitled to possession and for the children to remain in the home is contrary to the welfare of the children; (2) the urgent need for protection required the immediate removal of the children and makes efforts to eliminate or prevent the children's removal impossible or unreasonable; (3) notwithstanding reasonable efforts to eliminate the need for the children's removal and enable the children to return home, there is a substantial risk of a continuing danger if the children are returned home.

....

3.2 The Court finds that placement of the children with the children's noncustodial parent or with a relative of the children is inappropriate and not in the best interest of the children.

The trial court further ordered that the Department continue as the children's temporary managing conservator. The trial court ordered both the mother and Father to "execute an authorization for the release of [their own] and the children's (if needed) past, current or future medical and mental health records" and "to provide the Department with a list of the names and addresses of all physicians, psychologists, or other healthcare providers who have treated [them] or the children." Finally, the trial court ordered Father to "submit the Child Placement Resources Form provided under [Family Code section] 261.307, if the form has not previously been provided and provide the Department and the Court the full name and current address or whereabouts and phone number of any and all relatives of the subject children ... with whom the Department may place the subject children during the pendency of this suit, pursuant to § 262.201, Texas Family Code."

On July 14, 2015, the Department filed its "Second Amended Petition for Protection of Child for Conservatorship, and for Termination in Suit Affecting the Parent–Child Relationship," again naming Father as the children's "alleged" father and requesting service on him in prison or in court. The petition included the...