In re Interest of E.S.
| Decision Date | 27 May 2021 |
| Docket Number | No. 02-20-00407-CV,02-20-00407-CV |
| Parties | IN THE INTEREST OF E.S. AND A.J., CHILDREN |
| Court | Texas Court of Appeals |
On Appeal from the 211th District Court Denton County, Texas
Before Birdwell, Womack, and Wallach, JJ.
This case arises from the trial court's decision to appoint Appellant, Mother, as possessory conservator of her children, E.S. and A.J.1 The Texas Department of Family and Protective Services (the Department) received a report that Mother's husband—the children's stepfather—assaulted Mother on December 1, 2019, in front of the children. Mother suffered multiple injuries. The children cried after witnessing the assault. Having obtained a writ of attachment from the trial court, the Department removed the children from the home and sought temporary sole managing conservatorship in the trial court.
At the initial adversary hearing, Mother agreed with the Department's temporary orders and voluntarily signed them. The temporary orders included a service plan. Mother understood that her parental rights could be further restricted if she did not comply with the service plan.
On March 6, 2020, the trial court conducted a second adversary hearing regarding M.S., E.S.'s biological father. Cassandra Kovalkevich, the Department's caseworker, testified that M.S. was willing to take both children.
During the hearing, M.S. discussed a domestic violence report he filed against his wife after she poured gasoline on a vehicle that he was inside of, along with hiscousin and his wife's two children. M.S. testified that neither E.S. nor A.J. were present for that event. M.S. explained that he had separated from his wife in 2019. M.S. also stated that he was divorcing his wife but had non-suited the divorce due to COVID-19. M.S. also admitted that he had previously served time in prison for the offenses of burglary and possession of a controlled substance but that he had not been in any trouble since his release in 2015. The court-appointed special advocate (CASA), Rebecca Duncan, stated that M.S.'s home was in great condition and that she had no concerns with his home.
On July 14, 2020, the trial court conducted a third adversary hearing regarding A.J.'s biological father, A.S. A.S. was incarcerated in Oklahoma at the time of the hearing and throughout the pendency of this case. A.S. was properly served and notified of the case involving A.J., and he was informed of the hearing dates in the case. However, A.S. never filed an answer or otherwise made an appearance in this case.
At the same hearing, the trial court conducted an initial permanency hearing. Kovalkevich said that although Mother had been participating in her services, she "still ha[d] a little ways to go" because she was not addressing the reasons why her children were removed. Further, Kovalkevich stated that the Department believed stepfather had assaulted Mother more than once.
Kovalkevich also discussed stepfather's services. She stated that stepfather had initially volunteered to complete a Batterer's Intervention Prevention Program (BIPP)class through Dallas Sigma, but had been discharged due to his behavior. Kovalkevich confirmed, however, that stepfather later enrolled in another BIPP program and completed the class. Kovalkevich explained that stepfather was not allowed any visitation with the children because the children feared him. Kovalkevich also testified that Mother planned to remain with stepfather despite being aware of the children's fear of him.
Mother also testified at the initial permanency hearing. Mother described three relationships she had been in where domestic violence occurred; she agreed that those relationships negatively impacted her children.
At the conclusion of the initial permanency hearing, the trial court approved placement of E.S. and A.J. into M.S.'s home. It also ordered Mother to have weekly visitation with the children.
Before the next permanency hearing occurred, Mother's attorney and Mother filed separate motions with the trial court asking it to allow Mother's attorney to withdraw. At the next permanency hearing on November 10, 2020, the trial court admonished Mother before allowing her attorney to withdraw. It also reiterated that the parties were set for a final trial on November 30, 2020, and that Mother would be "treated like [she was] a licensed attorney." The trial court encouraged Mother to prepare for trial by reviewing evidentiary and procedural rules.
Kovalkevich testified at the second permanency hearing. She stated that the children were doing well in their placement with M.S. and were enrolled in virtualschool. She also said that Mother had not demonstrated the behavioral changes that the Department needed to see from her and explained the negative implications of Mother choosing to remain in a relationship with stepfather. Kovalkevich was concerned that Mother could not protect the children.
Additionally, Kovalkevich described the safety issues caused by stepfather during visitations. Kovalkevich informed the trial court that the individuals who had monitored Mother's visits with the children refused to continue doing so because they did not feel safe around stepfather. At the conclusion of the second permanency hearing, the trial court continued the children's placement with E.S.'s biological father, M.S.
On November 16, 2020—fourteen days before the scheduled bench trial—Mother filed a jury trial demand. The Department filed a motion to strike Mother's jury trial demand because it was not timely filed. Mother then filed an "Emergency Motion for Discovery Modification and Trial Continuance" on November 19, 2020. The record does not contain any evidence showing that Mother obtained a ruling on her motion for continuance.
The bench trial proceeded as scheduled on November 30, 2020. Each party announced ready, except for Mother. Mother stated that she filed a jury trial demand and was not ready to proceed with a trial because she "lost her attorney" twenty days before the final trial.
The trial court reiterated that it had appointed a duly qualified attorney to represent Mother, but that Mother requested her attorney be allowed to withdraw twenty days before trial. The trial court then granted the Department's motion to strike Mother's jury trial demand and proceeded to opening statements. Mother did not object to the trial court's ruling and fully participated in the bench trial.
Mother, Kovalkevich, the CASA worker, M.S., and the ad litem attorney testified at trial. Mother testified that stepfather assaulted her in December 2019, while the children were present, and that she had suffered numerous injuries as a result of the assault. Mother was also asked about an instance where stepfather choked her until she lost consciousness in front of E.S. Mother testified that E.S. witnessed her ex-boyfriend, D.B., choke her, not stepfather. Lastly, Mother stated that she intended to continue living with stepfather.
Kovalkevich testified that because Mother had not completed her individual counseling, she had not completed all her services. Additionally, Kovalkevich explained that the Department had not seen the behavioral changes it wanted to see from Mother, including acknowledging her history of domestic violence, demonstrating the ability to see red flags, developing healthy relationships, and creating a safe environment for the children.
Finally, Kovalkevich stated that E.S.'s biological father, M.S., had cared for the children's needs and she believed that naming Mother possessory conservator of the children was in the children's best interest. Kovalkevich also believed it was in thechildren's best interest to preclude stepfather from having any visitation with either child because the children were terrified of him.
During cross-examination, Mother questioned Kovalkevich about the permanency report that Kovalkevich had filed before the initial permanency hearing. Specifically, Mother asked Kovalkevich why the permanency report did not reflect that she had completed certain classes. Kovalkevich replied that although she did not recall seeing certificates of completion for those classes when she wrote the permanency report, she had ultimately testified at the initial permanency hearing that Mother had completed those classes.
The CASA worker testified that it was in the children's best interest for Mother to be named possessory conservator because she did not believe Mother could provide a safe environment for the children. She discussed in detail the fact that both children feared stepfather and did not want to return to Mother's home if stepfather was a part of the household. The CASA worker, like Kovalkevich, believed that it was in the best interest of the children to keep stepfather away from them.
M.S. testified at trial that he and A.B., the children's maternal grandmother, function "as a family unit" even though they are not blood related and that E.S. and A.J. would see each other often if the trial court placed E.S. with him and A.J. with A.B. M.S. also said that he would help A.B. with A.J. if the trial court placed A.J. with her. Lastly, M.S. described E.S.'s disclosure of an episode of abuse of Mother that he had witnessed. M.S. said that E.S. told him that stepfather
The attorney ad litem reported to the trial court that both E.S. and A.J. love Mother very much but neither want to be in a home with stepfather. The ad litem believed it was in the children's best interest to maintain a relationship with Mother but not to live in the same household as stepfather.
At the close of evidence, the trial court appointed M.S. as E.S.'s sole managing conservator and A.B. as A.J.'s sole...
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