In re A.M.M.
| Decision Date | 15 October 2021 |
| Docket Number | 13-21-00114-CV |
| Parties | IN THE INTEREST OF A.M.M., M.A.M., K.A.M., J.G.M., J.E.M., AND J.I.M.P., CHILDREN |
| Court | Texas Court of Appeals |
On appeal from the 138th District Court of Cameron County Texas.
Before Contreras Chief Justice and Benavides and Silva Justices.
Appellant F.M. appeals the trial court's order terminating the parent-child relationship between her and her children A.M.M., M.A.M., K.A.M., J.G.M., J.E.M., and J.I.M.P.[1] By seven issues, F.M. argues (1) her due process rights were violated by the trial court's refusal to appoint an interpreter for the entire duration of trial; (2) her due process rights were violated because a trial over Zoom prevented her from having access to her attorney throughout the proceedings; (3) the evidence was legally and factually insufficient to support termination under Texas Family Code § 161.001(b)(1)(D); (4) the evidence was legally and factually insufficient to support termination under Texas Family Code § 161.001(b)(1)(E); (5) the evidence was legally and factually insufficient to support termination under Texas Family Code § 161.001(b)(1)(O); (6) the trial court improperly terminated her parental rights because she was economically disadvantaged; and (7) the evidence was legally and factually insufficient to support a finding that termination of the parent-child relationship was in the best interest of the children. We reverse and remand.
The trial court called the case for a bench trial before an associate judge on August 25, September 1, and September 3, 2020.
The Department was initially appointed the temporary managing conservator of the children on July 22, 2019.[3] On June 16, 2020, the trial court held a hearing and noted on the docket sheet that it "extended dismissal 30 days"[4] and set a permanency review hearing before final order for August 19, 2020, at 1:00 p.m. and trial for August 25, 2020, at 8:30 a.m.
On August 25, 2020, when the case was called, F.M. requested an interpreter.[5]The trial court notified her that: When asked for opening statements, F.M. objected to the trial proceeding without an interpreter and through Zoom, asserting that "[she] will be deprived of her Constitutional rights under the 5th and 14th Amendment [of] the U.S. Constitution and Article 1, Section 19 of the Texas Constitution." F.M. further complained that she would not have adequate representation because she was not able to be by her attorney's side to assist in her defense. F.M. suggested the trial court could grant an extension due to extraordinary circumstances of COVID-19 "and allow [her] time to find housing for her children in order to secure their return."
The trial court overruled the objections and noted that an interpreter was not available on that day. Therefore, the trial court proceeded without an interpreter for the first six witnesses, but later located an interpreter who was brought in for the last two witnesses presented that day.
On the second day of trial, September 1, the trial court noted that the interpreter was tied up in another court. F.M. again objected to proceeding without an interpreter and without being able to confer with her attorney during the proceedings.[6] An interpreter became available about halfway through the second day of trial, due to the fact that the Department had a witness that need translation. He was available for the Department's witness and for F.M.'s testimony that day.
On September 3, the interpreter returned for the third day of trial to finish translating F.M.'s testimony, but F.M. appeared late, so the trial court released the interpreter. After F.M. appeared, the trial court recalled the interpreter to interpret the remaining part of the two witnesses' testimony for F.M. and complete the translation of F.M.'s testimony. The Department called fifteen witnesses at trial; Mother did not have an interpreter for ten of those witnesses.
The associate judge ordered termination of F.M.'s rights pursuant to Texas Family Code § 161.001(b)(1)(D), (E), and (O) and found that termination was in the best interest of the children. See Tex. Fam. Code Ann. § 161.001(b). On September 9, 2020, F.M. requested a de novo hearing, wherein she requested the trial court reform the associate judge's proposed order to extend the jurisdictional deadline rather than terminating F.M.'s parental rights. See Tex. Fam. Code Ann. §§ 201.014, 201.015, 263.401(b). F.M. asserted that trial via Zoom did not allow adequate representation because it "precluded side by side representation" and that she was deprived of due process because "[a]n interpreter for most of her . . . trial was not provided." F.M. argued the trial court should instead grant an extension up to 180 days due to extraordinary circumstances caused by COVID-19. F.M.'s counsel acknowledged that if a new trial occurred, F.M. could be in her office to allow side by side representation. The referring court denied F.M.'s request to modify the associate judge's order.
Even though we are deciding this case on its due process issue, we lay out the evidence presented at trial in order to show the extent of the evidence presented.[7]
In October 2018, Texas Department of Family and Protective Services (Department) investigator Luis Almaraz received a report of neglectful supervision and physical neglect of the children by their mother, F.M.[8] According to the report, M.A.M., age twelve, was left to care for K.A.M., age eleven, and J.I.M.P., age three. The report further alleged the home was "dirty and inappropriate for the children." Almaraz received two additional reports, one in November for physical neglect and another in December for physical abuse. The physical neglect report was due to a pending eviction while the physical abuse report was because A.M.M. stabbed her brother, M.A.M., in the face and back with a pencil and was arrested.
According to Almaraz, the seven-member family was living in a one-bedroom trailer with "lots of animals inside" and the home was dirty. Further, the home had holes in the floor and the windows to the trailer were broken and boarded up. The home also did not have electricity-the family received electricity by running an extension cord from the neighbor's home. The affidavit in support of removal described the home as "deplorable," and "reek[ing] of 'filth and feces.'" Although F.M. and her six children shared one bed, Almaraz observed the bed and bedroom to be clean. F.M. subsequently moved to a two-bedroom home that Almaraz described as "better than the other home" because F.M. kept it clean. F.M. told Almaraz that she had attempted to take A.M.M. and M.A.M. for mental health treatment, but M.A.M. kept refusing, so she would reschedule their appointments and they ultimately did not receive care.
In addition to the three previous reports, Almaraz learned that the children missed a lot of school and "school personnel voiced [concern regarding] the hygiene for the children." Almaraz noted that F.M. had eleven or twelve past investigations, five of which were referred to family-based safety services (FBSS) and three of which led to the removal of the children from the home. Among the reports was a report of medical neglect in 2005, but the investigation could not be completed "as the family had moved to Mexico." In 2007, the children were removed because F.M. was in a mental health facility and unable to care for her children. In 2010, the children were observed to be in the street unsupervised, which led to a removal. In 2013, F.M. was referred to FBSS for neglectful supervision for leaving the children alone and concerns that there was not sufficient food in the home. The third removal for neglectful supervision occurred in 2016 when the children were again left unsupervised. Finally, in 2017, F.M. was again referred to FBSS. There were several other investigations in "which there was not a preponderance of the evidence [of neglect or abuse] and the family was not involved with the Department." Each prior removal ultimately resulted in the children being returned to F.M. Almaraz's 2018 investigation ended in a referral to FBSS.
Pedro Rangel, an FBSS worker with the Department, was assigned to F.M.'s case on January 23, 2019. Rangel contacted F.M. and the children on February 4, 2019. Rangel developed a service plan that included a mental health evaluation, parenting classes, individual counseling, and a psychosocial evaluation. Rangel attempted to contact F.M. later in February but was unable to locate F.M. or the children. The Department finally contacted the family on March 7 and learned they had been evicted and moved to a new home with family friends, Mercedes "Meche" and Juanita Giron. F.M. told Rangel that she was evicted because she could not afford rent. Rangel assessed the new home and found it to be dirty, have holes in the walls and ceiling, and the children rotated between sharing a single bed and sleeping on cushions on the floor.
Rangel testified that he made several visits to the home but F.M was not there each time. On April 11, F.M. expressed that she was willing to begin services. Rangel stated thereafter when he would go to the home to meet with F.M., she was again not there, and Juanita was left caring for the children. On July 10, Rangel learned that F.M. was working for a shrimp company out of town,...
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