in the Interest of J. I. G., A. D. G. Children v. Department of Family and Protective Services

ACCEPTED
01-18-00023-CV
FIRST COURT OF APPEALS
HOUSTON, TEXAS
5/25/2018 4:35 PM
CHRISTOPHER PRINE
CLERK

No. 01-18-00023-CV
In the Court of Appeals for the
First District of Texas at Houston, Texas FILED IN
1st COURT OF APPEALS
___________________________________ HOUSTON, TEXAS
5/25/2018 4:35:55 PM
In the Interest of J.I.G. & A.D.G., Children CHRISTOPHER A. PRINE
__________________________________ Clerk

D.C.G., Appellant

v.

Department of Family & Protective Services, Appellee

____________________________________

On appeal from the Harris County District Court
315th Judicial District; No. 2016-03202J
____________________________________

APPELLEE’S BRIEF
____________________________________

VINCE RYAN
COUNTY ATTORNEY
State Bar #99999939
Sandra D. Hachem (SBN 08667060)
Sr. Assistant County Attorney
1019 Congress, 17th Floor
Houston, Texas 77002
Telephone: (713) 274-5293
Facsimile: (713) 437-4700
Email: sandra.hachem@cao.hctx.net
ATTORNEY FOR APPELLEE,
DEPARTMENT OF FAMILY &
PROTECTIVE SERVICES
 TABLE OF CONTENTS
INDEX OF AUTHORITIES.................................................................................... iii

PARTY NAME SUBSTITUTIONS .........................................................................iv

RECORD ABBREVIATIONS .................................................................................iv

STATEMENT OF THE CASE .................................................................................. v

REPLY POINT .......................................................................................................... v

STATEMENT OF FACTS ........................................................................................ 1

SUMMARY OF ARGUMENT ............................................................................... 24

ARGUMENT AND AUTHORITIES ...................................................................... 27

REPLY POINT ONE: The evidence sufficiently supported the court’s
findings for termination of the father’s parental rights ..................................... 27

I. Applicable Law and Standard of Review .............................................. 27

2. Father’s pattern of criminal behaviors, abuse of the children under
his care and neglect supported the court’s findings under Subsections D
and E of Section 161.001(b)(1) of the Family Code. .............................. 29

3. The evidence sufficiently supported the court’s finding under
Subsection O of Section 161.001(b)(1) of the Family Code. ................. 35

4. The evidence supporting the court’s findings under Subsections D, E,
and O of Section 161.001(1) of the Family Code adequately supported
the court’s finding that termination was in the child’s best interest ... 41

PRAYER FOR RELIEF .......................................................................................... 47

CERTIFICATE OF SERVICE ................................................................................ 47

CERTIFICATE OF WORD COUNT COMPLIANCE ........................................... 48

APPENDIX ..................................................................................................(attached)
ii
 INDEX OF AUTHORITIES
CASE PAGE

In re A.V., 113 S.W.3d 362 (Tex. 2003) .................................................................. 35

In re B.B., 971 S.W.2d 160 (Tex. App.―Beaumont 1998, pet. denied). ............... 30

In re C.H., 89 S.W.3d 17 (Tex.2002) ...................................................................... 28

In re D.R.A., 374 S.W.3d 528 (Tex.App.—Houston [14th Dist.]
2012, no pet.) ......................................................................................................... 28

In re E.C.R., 402 S.W.3d 239 (Tex. 2013) .............................................................. 35

In re H.M.O.L., No. 01-17-00775-CV, 2018 WL 1659981
(Tex. App. – Houston [1st Dist.] 2018, pet. denied) ............................................. 34

Holley v. Adams, 544 S.W.2d 367 (Tex. 1976), ..................................................... 41

In re J.F.C., 96 S.W.3d 256 (Tex.2002) ......................................................28, 29, 39

In re J.M.T., 519 S.W.3d 258 (Tex. App. – Houston
[1st Dist.] 2017, pet. denied).................................................................................. 38

In re J.O.A., 283 S.W.3d 336 (Tex.2009) ..........................................................28, 29

Jordan v. Dossey, 325 S.W.3d 700 (Tex. App. – Houston [1st Dist.]
2010, pet. denied ..............................................................................................33, 46

In re K.N.D., No. 01-12-00584-CV, 2014 WL 3970642
(Tex. App.—Houston [1st Dist.] Aug. 14, 2014, no pet.). ...........................39, 40

In re L.G.R., 498 S.W.3d 195 (Tex. App. – Houston [14th Dist.]
2016, pet. denied) ................................................................................................... 46

In re M.M.M., Nos. 01-17-00980-CV, 2018 WL 1954178
(Tex. App. – Houston [1st Dist.] 2018, no pet. h.) ............................................... 34

In re T.M., No. 01-16-00942-CV, 2017 WL 1885406
(Tex. App. – Houston [1st Dist.] 2017, pet. denied) (mem. op.). ........................ 42

iii
Texas Dep't of Human Servs. v. Boyd, 727 S.W.2d 531 (Tex.1987) .................30, 32

In re V.V., 349 S.W.3d 548, 555 (Tex. App. – Houston [1st Dist.]
2010, pet. denied) ................................................................................................... 32

Vasquez v. Tex. Dept. of Prot. & Reg. Servs., 190 S.W.3d 189
(Tex. App. – Houston [1st Dist.] 2005, pet. denied) ............................................. 34

STATUTES

Tex. Fam. Code Ann. § 101.007 (West 2014) ......................................................... 28

Tex. Fam. Code § 161.001(b) (West 2015) ...........................................27, 28, 35, 41

Tex. Fam. Code Ann. §263.307 (West 2014) ....................................................41, 46

RULES

Tex. R. Civ. P. 306 ....................................................................................................iv

PARTY NAME SUBSTTUTIIONS
Substitution Description .
John J.I.G., oldest child of Mother and Father
Angela A.D.G., middle child of Mother and Father
Grace G.M.G., youngest child of Mother and Father (not in this
suit)
Amanda Mother
Daniel Father/Appellant

RECORD ABBREVIATIONS
Abbreviation Description
CR Clerk’s Record from 2016-03202J
CR-Appendix Appendix to Clerk's Record from 2016-03202J
RR-2 Volume 2 of 5
RR-3 Volume 3 of 5
RR-4 Volume 4 of 5
RR-5 Volume 5 of 5

iv
 STATEMENT OF THE CASE

On May 24, 2016, the Texas Department of Family and Protective Services

(“Department”) filed a child protection suit regarding John and one of his younger

siblings, Angela. CR p. 5. The court signed an order that same day granting the

Department temporary sole managing conservatorship of John and Angela. CR-

Appendix Tab 1.

On December 19, 2017, the judge of the court signed a judgment previously

approved by the Associate Judge. CR 212. The judgment declared Daniel to be

the father of the children and terminated his parental rights and Amanda’s as well

as appointing the Department as sole managing conservator. CR p. 204. Per Tex.

R. Civ. P. 306, the judgment recited that the parents’ rights were terminated on the

findings that termination was in the children’s best interest and Subsections D, E

and O of Section 161.001(b)(1) of the Family Code. Daniel filed a notice of appeal

January 9, 2018, 21 days after the judgment was signed. CR p. 238.

REPLY POINT

The evidence sufficiently supported the court’s findings for termination of the
father’s parental rights

v
 No. 01-18-00023-CV
In the Court of Appeals for the
First District of Texas at Houston, Texas
___________________________________

In the Interest of J.I.G. & A.D.G., children
__________________________________

D.C.G., Appellant

v.

Department of Family & Protective Services, Appellee

____________________________________

On appeal from the Harris County District Court
315th Judicial District; No.2016-03202J

____________________________________

APPELLEE’S BRIEF
____________________________________

TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:

Department of Family & Protective Services, Appellee, [hereinafter

“Department”] submits this brief in response to the brief of the father, DCG,

hereinafter "Daniel"

STATEMENT OF FACTS

Amanda and Daniel are the parents of two children, John (born 2012) and

Angela (born 2014). RR-5 p. 143. In 2003, several years before the children were

born, Daniel was the subject of a sexual assault felony. RR-5 p. 149. In 2011, he

1
was convicted for failure to register as a sex offender. RR-5 p. 149. On September

27, 2012, shortly after John was born, Daniel was again convicted for failing to

register. RR-5 p. 155-56. Though sentenced to two years jail time, Daniel was

apparently allowed to serve community supervision, because a judgment issued in

2013 states the court deferred his proceedings and placed him on community

supervision. RR-5 p. 158. Nonetheless, that 2013 judgment also states while on

community supervision he violated that community supervision by committing a

law offense against the state of Texas. RR-5 p. 159. The judgment does not

describe the offense, but adjudicated his guilt and sentenced him to 8 months

incarceration on January 9, 2013. RR-5 p. 158.

In 2013, Amanda began her own criminal history with a forgery offense.

RR-5 p. 149. In connection with that, the Department received a referral because

Amanda left John with an inappropriate caregiver when she was arrested. RR-5 p.

149. There is no indication the Department ever was required to take custody,

because a community agency was willing to care for John until alternative

arrangements could be made. RR-5 p. 149.

In 2014, not long after their second child was born, the Department received

a referral alleging neglectful supervision by both Amanda and Daniel. RR-5 p.

149. The first report was that John suffered a black eye. RR-5 p. 140. The second

report concerned a skull fracture that Angela suffered at just one month old. RR-5

2
p. 140. The physician statement stated that “the injury would have come from

excessive force.” RR-5 p. 149. The Department determined the mother’s story of

the injury was inconsistent with that statement. RR-5 p. 149. The case disposition

was “reason to believe with removal.” RR-5 p. 149. After the children came in

care, the parents completed their services, the children were returned home

February 26, 2016 and the Department’s case was nonsuited on May 11, 2016. RR-

5 p. 149; RR-2 p. 60.

From February to May the children were in the custody of their parents.

RR-2 p. 60. However, on May 19, 2016, the Department of Family and Protective

Services (DFPS) received another referral. RR-5 p. 148. This time, it was reported

that John had a bruise on his chest and two parallel linear bruises about 6 cm in

length on his hip/lower back and it was noted “he explained that his mother,

[Angela], hit him.” RR-5 p. 148. The examining physician stated the marks on

John’s left side were consistent with a belt mark. RR-5 p. 148; 128 (“bruising on

[the] abdomen consistent with a belt/stick”).

Medical records for the hospital reflect the hospital social worker spoke with

both parents. RR-5 p. 128 and 139. Amanda said the daycare reported the bruises

to CPS and a caseworker told the parents to take the children to the hospital for an

exam. RR-5 p. 128. The notes added the mother described the bruises as not

severe, and suggested the bruises occurred in connection with a birthday party the

3
prior weekend in Santa Fe, Texas where there were outside activities. RR-5 p. 128.

Daniel also referred to the birthday party when asked about the bruising. RR-5 p.

139. He commented that he noticed a mark on John's chest the day after the party

but did not notice bruising to John's back or hip area. RR-5 p. 139. Daniel denied

that John had any other falls and denied using a belt to discipline John or Angela.

RR-5 p. 139. The social worker’s notes indicate John stated "I fell" but did not

elaborate. RR-5 p. 139. The father acknowledged he spanked the children

sometimes but denied hitting the children with a belt. RR-5 p. 139.

The social worker documented that while interviewing the parents, she

observed the children playing aggressively and at one point the youngest child

bumped into the older child causing a nose bleed. RR-5 p. 131. Notwithstanding,

that rambunctious behavior, neither parent appeared to control or redirect the

children and neither parent demonstrated strong parenting toward the children’s

behavior. RR-5 p. 131.

The CARE Team documented the following “social history” given to them

by Daniel in their “Final Report”:

Lives with mother, father, 21 month old sister [Angela]. [John] and [Angela]
were in foster care for 19 months; CPS was called on two occasions. The
first report was made when [John] suffered a black eye while under the care
of a babysitter while mother was giving birth to [Angela]. The second report
was regarding a skull fracture when [Angela] was 1 month old. Father stated
that [John] pulled [Angela] from the bed causing the fracture. Father states
he had a domestic violence charge at age 16 or 17 regarding an altercation
with his stepfather. He denies any other domestic violence history.

4
RR-5 p. 140.

In a document titled, “Final Report,” and electronically signed by two

doctors, it made the following assessment:

The marks on [John] clearly resulted from a beating with a belt, but father
denied this even when directly confronted with our assessment. … [John]’s
bruises represent excessive physical punishment, and the abuse could
escalate if not addressed intensively now.
RR-5 p. 141.

The Department filed suit and was granted emergency temporary

conservatorship of John and Angela on May 24, 2016. Appendix Tab 1. On July

14, 2016, an adversary hearing order was signed that warned the parents that

actions required of them in that order were necessary and failure to comply could

result in restriction or termination of parental rights. Appendix, Tab 2. The first

action referenced was the Service Plan that the order stated would be approved at

the Status Hearing to define the rights and duties of the parents. Id.

On July 20, 2016, service plans were filed with the court for Amanda and

Daniel. CR 45-59. Three primary goals of the plan were listed. Those goals

required the parent to learn about their children’s needs, including their age

appropriate behaviors, apply realistic expectations for their age and developmental

capabilities, learn and demonstrate reasonable discipline to meet the child’s needs

and demonstrate ability to change behaviors that resulted in abuse. CR 54.

5
 Daniel’s service plan then required several tasks. CR 54. The first task

required the parents to participate in couple’s therapy and demonstrate what they

learned in therapy sessions with the caseworker. CR 54. The second task required

Daniel to complete a psychosocial assessment and follow its recommendations CR

54. The third task required him to attend scheduled visits, court hearings,

permanency conferences and meetings required by the Department or the court.

CR 54. The fourth task required him to participate in parenting classes and provide

the caseworker with a certificate upon completion. CR 55. The plan specifically

provided that it was Daniel’s responsibility to locate and pay for the fees for the

parenting classes. CR 55. The plan also required Daniel to maintain appropriate

housing and employment, and refrain from illegal activities. CR. 54-56. A final

task required that he agree to fully comply with the Agency in an effort to

reduce/eliminate the behaviors/actions that resulted in the removal of the children

and added that would “include participating in all recommended services.” CR 56.

On August 24, 2016, the court approved the family service plans and made

them orders of the court. RR-5 p. 162, 164. The order specifically found Daniel

“understands the service plan and has been advised that unless he is willing and

able to provide the children with a safe environment, even with the assistance of a

service plan, within the reasonable period of time specified in the plan, his parental

and custodial duties and rights may be subject to restriction or to termination or the

6
children may not be returned to him.” RR-5 p. 163. The order then stated:

IT IS ORDERED that, except as specifically modified by this order or
any subsequent order, the plans of service for [Daniel] filed with the
court, and incorporated by reference as if the same were copied
verbatim in this order, is APPROVED and made an ORDER of this
Court.

RR-5 p. 164.

The court further required visits with the children to be conducted in a

therapeutic setting with a qualified therapist and added with respect to the

parenting classes that the parents be referred to parenting classes specifically

tailored for children with special needs. RR-5 p. 164.

A subsequent permanency conference was held October 13, 2016, but

Daniel did not attend or notify his caseworker he could not attend. RR-5 p. 145.

He also was not present at the permanency hearing held November 16, 2016. RR-5

p. 170 (only attorney) and p. 145 (did not appear). The court documented in its

order at that time that Daniel and Ashley had not demonstrated adequate

compliance with the service plans. RR-5 p. 172. The order also ordered genetic

counseling. RR-5 p. 174 and 145. A later note indicates Angela’s neurologist had

recommended the counseling because of chromosomal abnormalities discovered

during a screening test. RR-5 p. 145. In this same order, the court also continued

its previous orders without modification. RR-5 p. 174.

In October of 2016, David completed a psychological evaluation. RR-5 p.

7
145. That evaluation required a medical examination to determine possible

treatment for ADHD, individual and couples counseling, as well as parenting

classes. RR-5 p. 145. Daniel did not complete the medical consultation

recommended. RR-5 p. 145.

Until February of 2017, David only attended one of the two scheduled

parent-child visits each month and did not begin counseling until March 2017. RR-

5 p. 145. The therapist observed that both of the children were fearful of Daniel for

several months and at one visit in May 2017 they ran to the therapist appearing

fearful when Daniel used a loud voice. RR-5 p. 145.

In May of 2017, this couple had another child. RR-5 p. 146. Once the baby

was born, the therapist observed the mother seemed unsure what to do when the

baby cried, which she found surprising considering it was her third child. RR-5 p.

145. She noted neither parent was good at managing all three children successfully

and did not think they were able to meet their special needs. RR-5 p. 145.

In the meantime, Daniel did not proactively seek to find the special needs

parenting classes required by his service plan until June 2017, which was almost a

year after the service plan was ordered. RR-5 p. 145, 162, 164. The therapist said

the kids did better at visits after June and noticed they did not exhibit fear toward

the parents. RR-5 p. 145. Daniel went to individual and couples counseling but

stopped working with the CPS funded therapist and began paying for his own

8
therapist until the court ordered this funded by the Department. RR-5 p. 145.

In July of 2017, Angela completed a psychiatric evaluation that

recommended random urine drug screen individual psychotherapy, depression

medication with follow up, parenting classes and participation in an autism support

group. RR-5 p. 144. She began working with a therapist, taking depression

medication and parenting classes but did not receive drug testing or attend autism

support group sessions. RR-5 p. 144.

On October 18, 2017, the Guardian ad Litem for the children filed a report

with the court. RR-5 p. 143. The report recommended that the Department obtain

PMC of the children, parental termination and that the children remain in their

current placement. RR-5 p. 149. The report detailed the basis of the

recommendations, which included reference to the therapist’s findings, the parents’

lack of cooperation and the children’s situation.

In that regard, the report made several comments about the lack of

understanding the parents demonstrated concerning the children’s special needs.

RR-5 p. 146. The parents had not completed special needs parenting classes and

had not been able to articulate an understanding of all the children’s diagnoses.

RR-5 p. 146. It noted when the children came back in care, it was apparent the

parents did not adequately meet the children’s needs. RR-2 p. 146. For example,

while Texas Children’s Hospital gave numerous reminder calls to the mother about

9
a follow up MRI for Angela due to a hospitalization in March 2016, the calls were

never returned and the MRI was not done until the children came back into foster

care. RR-5 p. 146. It was further noted that when John came back in care, he

would not engage with people as he had before and was frantic upon waking if he

had wet the bed as he was very afraid of being disciplined. RR-5 p. 146.

The report noted both children were in a foster/adopt family selected from a

process in June of 2017. RR-5 p. 146. While that just recently occurred, the report

noted the children were well acquainted with this foster family, because they lived

in the same community as their former foster family. RR-5 p. 146. It added the

children lived with the former foster family from September 2014 until February

2016 in the first case and then from May 2016 to June 2017 in this second case.

RR-5 p. 147. The report noted the children were in a loving, consistent and stable

environment and the new foster family was very dedicated to securing the

children’s special services, medical appointments and therapies for their special

needs. RR-5 p. 147.

The report added that the younger child, Angela, had a neurological disorder,

paroxysmal tonic upgate (PTU), which causes her to look out of the tops of her

eyes, walk wobbly and unsteady. RR-5 p. 147. The neurologist stated the

condition is rare but she should outgrow it. RR-5 p. 147. A neuro-ophthalmologist

also diagnosed this child with vision loss in the lower left quadrant of both eyes.

10
RR-5 p. 147. The doctor attributed this vision loss to optic nerve damage from the

skull fracture that brought her in care in the previous case. RR-5 p. 147.

Angela also suffered from a febrile seizure disorder and was under the care

of a neurological team at Texas Children’s Hospital. RR-5 p. 147. By the time of

this report, it was noted she had not experienced seizures for several months. RR-5

p. 147. A Chromosomal Micro Array done in April 2016 at Texas Children’s

Hospital showed she had abnormalities on two chromosomes that would require

further monitoring and evaluation but as of August 2017 she was progressing

normally. RR-5 p. 147.

Angela began attending a Pre-K program in August 2017 with vision and

orientation and mobility services. RR-5 p. 147. She was specially fitted with a

soft helmet to protect her when she stumbles due to her diminished vision and has

a special cane with a wheel to help her negotiate the ground. RR-5 p. 147. It was

noted she needed constant monitoring for her safety because her incidents of

falling increased. RR-5 p. 157.

John was diagnosed with Autism Spectrum disorder, Attention Deficit

Hyperactivity Disorder and Disruptive Mood Dysregulation Disorder in which a

child is chronically irritable and has severe explosive outbursts grossly out of

proportion to the situation. RR-5 p. 148. Jacob also had a chromosomal disorder

responsible for global development delay as well as behavior disruption. RR-5 p.

11
148. He also struggles with speech and articulation and his motor skills are

delayed.

John is enrolled in a kindergarten program in which he qualified for PPCD

due to his ADHD and speech impairment. RR-5 p. 147. He receives speech

therapy at school as well as weekly sessions at home. RR-5 p. 147. He also

receives occupational therapy twice a week at home. RR-5 p. 147. His foster

parents also give him daily tutoring with his academics as well as working with

him on fine motor skills and muscle development. RR-5 p. 145. He takes ADHD

medication to help manage aggression and hyperactivity and Ritalin in addition to

the gunfacine to help with focus and impulsivity. RR-5 p. 148. He also takes, as

needed, Hydroxyzine, to calm down when he has an explosive meltdown. RR-5 p.

148. The neurologist made a referral to Texas Children’s Meyer’s Clinic for

behavioral therapy and he had his first appointment in May of 2017. RR-5 p. 148.

He since received medical orders for therapy to address behavior and social

interaction as well as orders for speech and occupational therapy. RR-5 p. 148.

The foster family was on a 6-month waiting list for in-home therapy which was the

only option given his current school and other in-home therapy. RR-5 p. 148.

The report went on to note that the parents secured housing together. RR-5

pp. 144 and 145. Amanda was employed with Goodwill and Daniel had part time

employment with Metco and a hunting guide business. Id.

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 Trial was held November 17, 2017. RR-2. The Department’s first witness

was Dr. Rebecca Girardet. RR-2 p. 20. Dr. Girardet is board certified in child abuse

pediatrics and the director of the CARE Team at Memorial Hermann Children’s

Hospital. RR-2 p. 20. She testified that she had treated John during his

hospitalization in May 2016. RR-2 p. 21.

She noted that John had a past medical history of ADHD, disruptive

behavior syndrome, and febrile seizures. RR-2 p. 22. She testified that John

presented to the hospital with “a mark on his left hip that was two parallel lines

that was consistent with a belt mark.” RR-2 p. 23. She further testified that Daniel

denied the mark resulted from a belt. RR-2 p. 24. He indicated the cause was from

falling from a boucy house onto grass several times. RR-2. P. 24. However, she

noted the pattern was clearly a belt mark. RR-2 p. 24. She stated the mark was not

consistent with an accidental fall. RR-2 p. 26. She stated the explanation given

was not consistent with the injury. RR-2 p. 26.

Dr. Giradet was asked by Daniel’s attorney if the mark could have occurred

by John falling on a bouncy house strap. RR-2 p. 37. She testified that the child

would not have been able to hit the strap with enough force to leave the mark that

she observed. RR-2 p. 37. She added: “He was struck.” RR-2 p. 37.

The next witness, Susan Imre, stated she had been the children’s advocate

since May 2015 during the first Department case involving these children. RR-2 p.

13
50. She acknowledged Child Advocates was opposed to returning the children

during that first case. RR-2 p. 67.

She confirmed Daniel called her on May 20, 2016 to tell her about the

referral for this second case. RR-2 p. 41. In that conversation, Daniel denied hitting

John with a belt but commented he used the snapping of a belt to get John’s

attention. RR-2 p. 41-42.

Susan was asked to talk about her report on behalf of Child Advocates. RR-

2 p. 43. She confirmed it was recommending parental termination and considered

the fact that the children had special needs which neither parent had total grasp.

RR-2 p. 43.

In that connection, Susan spoke about the children’s special needs. She

noted that John had problems with autism and ADHD. RR-2 p. 44. She noted he

was enrolled in a school program for children with special needs. RR-2 p. 45. She

stated he received speech and occupational therapy and was specially monitored

for his behavior problems. RR-2 p. 45. Susan noted he was behind in school, but

making progress and showing a lot of development. RR-2 p. 45. She added she met

with the child and found him very focused and it was hard to divert his attention

once he focused on doing something. RR-2 p. 46. She stated he could be loving

but could also be rough and very impulsive. RR-2 p. 46.

Concerning Angela, she acknowledged she was 3 years old at the time of

14
this trial. RR-2 p. 48. She noted that when this child came back in care she had a

noticeable neurological issue in which she was wobbly and looked out of the tops

of her eyes. RR-2 p. 49. Nonetheless, the child had not been seen for that

condition. RR-2 p. 49. When she asked the dad about that, he just commented that

was part of her seizure thing. RR-2 p. 49. She noted the child also had a skull

fracture in the first case that caused loss of vision from nerve damage. RR-2 p. 52.

She commented the father was not aware that was permanent. RR-2 p. 52.

In discussing Child Advocate’s recommendation of parental termination, she

commented that Child Advocates had concerns about medical and physical neglect.

RR-2 p. 53. She noted there were two cases where the explanation was not

consistent with the medical injury. RR-2 p. 53. Also, there was concern about the

mother’s ability to care for not only two special needs children as well as an infant.

RR-2 p. 53. She added “I realize that’s a separate case, but [John] is a very

challenging child and needs constant monitoring.” RR-2 p. 53. She added, that

Angela has vision loss and PTU that needed monitoring and neither child could be

left together alone. RR-2 p. 53.

She added that Angela was hospitalized for febrile seizures in March of

2016, and when the parents were questioned about why the child did not make an

appointment for a follow up MRI, the mother said she did not need it. RR-2 p. 54.

Also, though the dad said it would be done right away, but it was not. RR-2 p. 54.

15
 She further commented that the father was away a lot and the bulk of child

care, including medical appointments, fell to the mother. RR-2 p. 55. She stated

she observed an inability of the mother to grasp the magnitude of the severity of

her children’s condition and their needs. RR-2 p. 57. She also commented that

during a previous court hearing, Amanda laughed inappropriately while she

testified about the children’s needs. RR-2 p. 57-58. She noted it was disturbing to

her that she laughed during testimony about all the special needs of her children.

RR-2 p. 58.

She added the children’s needs were currently met, they were thriving and

doing extremely well. RR-2 p. 56. She stated if you compare the way the children

were when the children first came in to care, the difference was night and day. RR-

2 p. 56. She stated the caregivers show the children great attention to their special

needs and take them to all their required therapy and doctor appointments. RR-2 p.

56. She stated the foster parents are very patient with these children, give them

lots of love and support and continue to make the children healthier. RR-1 p. 57.

Susan confirmed the children had been in two different foster placements.

RR-2 p. 62-63. She noted they were taken from the first placement because they

did not want to adopt and in this case, the goal had been unrelated adoption from

day one. RR-2 p. 63. She stated after the legal risk broadcast in June 2016, the

children were moved to a family selected in June of that year. RR-2 p. 63.

16
 Susan stated the family visits were occurring every two weeks at a play

therapist office in Kingwood. RR-2 p. 64. She added that therapeutic visits were

requested because when the children first came back in care, they had negative

reactions seeing the parents, and, particularly to the father. RR-2 p. 65. When

asked to describe the negative behaviors, she noted when they indicted they were

going to see their parents, John was saying, “No, No.” RR-2 p. 65. She added that

Angelica would cling to her foster mom and not want to see the parents, but with

the play therapist they calmed down and she witnessed the children playing

happily with dad there and no overt fear being shown. RR-2 p. 65.

Susan noted when the children first came in care, John was 2 and Angela

was only about 4 weeks old. RR-2 p. 65-66. She said Angela was 2 when she first

came back in care this time. RR-2 p. 70. Taking away the two or three months of

monitoring, she commented that Angela had been with her foster parents her entire

life. RR-2 p. 66. Susan added there was significant bonding between the children

and their foster parents. RR-2 p. 66.

The Department’s caseworker, Lakeela Caraway testified next. RR-2 p. 77.

She confirmed the Department shared all of the same concerns testified to by the

child advocate. RR-2 p. 82. She further testified that even after working with the

family for the last three years, the parents are not able to provide a safe and stable

environment for their children. RR-2 p. 83.

17
 Lakeela acknowledged the parents went to couples and individual therapy,

did a psychological assessment, and had been visiting. RR-2 p. 87. She also

acknowledged they attended special needs parenting classes. RR-2 p. 87. She

added the parents’ home was appropriate and the father was working full-time. RR-

2 p. 88.

Daniel testified next. RR-2 p. 90. Daniel acknowledged he was the same

Daniel who was convicted of failing to comply with sex offender registry

requirements in 2012 and again in 2013 as evidence by Petitioner’s exhibits 4 and

5 (RR-5 p. 154-158). RR-2 p. 90.

Daniel claimed he never hit John nor had he ever seen Amanda hit John with

a belt. RR-2 p. 90. He also stated he had no concerns with leaving any of his

children alone with Amanda. RR-2 p. 92. He stated neither of them caused the

skull fracture to Angela. RR-2 p. 92. He added it was not by physical force by him

or his wife and he was never questioned by law enforcement. RR-2 p. 92. He

stated she was hurt when she was pulled off the bed by her 3 year old brother. RR-

2 p. 92. He stated the bed was two feet off the ground. RR-2 p. 93.

When asked about the belt mark, he maintained that occurred at a bouncy

house. RR-2 p. 94. Daniel stated he saw the mark on John and stated it was the

same shape and size as the strap of the bouncy house. RR-2. p. 102.

When asked about the genetic testing, Daniel confirmed he did not go. RR-2

18
p. 94. He acknowledged he was informed his children suffer from genetic

abnormalities. RR-2 p. 95.

Daniel stated he is home by 3:00 and has a support system of family and

friends. RR-2 p. 103. He stated he received enough from his job to care for the

children’s financial needs. RR-2 p. 103.

Daniel stated they were aware of John’s ADHD but did not know of his

other special needs until he was back in custody. RR-2 p. 105. He stated he

completed special needs parenting. RR-2 p. 105. He stated with completing the

family service plan, they were better parents. RR-2 p. 106. He stated they also

started therapy with the therapist in the courtroom. RR-2 p. 106. He believed the

therapy assisted them to be mother and father to their children educationally and

dealing with situations between their relationship. RR-2 p. 106.

Daniel stated that the main things he learned through the special needs

parenting classes were about immunizations and respite to deal with the children.

RR-2 p. 108. Through these classes, he believed he and Amanda became better

able to parent their children’s special needs. RR-2 p. 108. However, when asked if

he knew their special needs, he acknowledged he did not know the specifics of

their needs. RR-2 p. 110.

Amanda testified next. When asked how Angela got a skull fracture, she

stated her brother pulled her off the bed. RR-2 p. 111. She acknowledged the

19
medical providers at the hospital disagreed with that explanation. RR-2 p. 111.

She stated she never struck John with a belt leaving a mark. RR-2 p. 112. When

asked if she witnessed John run into a cable or line or hit a buckle or something to

cause a mark on the bouncy house, she stated she did not. RR-2 p. 112.

Amanda admitted that the child advocate had contacted her and Daniel on

multiple occasions to have genetic counseling set up to comply with the court

order. RR-2 p. 113. She also acknowledged there were multiple occasions with

Judge Ellis where she was told she needed to get the genetic counseling set up and

Daniel was with her during those conversations. RR-2 p. 113.

Amanda stated she had concern about her children’s genetic abnormalities.

RR-2 p. 113. When asked what she did to address that, she stated she researched

on the internet about potential causes of the genetic abnormalities but had not set

up an appointment with a professional. RR-2 p. 114. She added she had never

contacted the children’s physicians or reviewed the children’s medical records. RR-

3 p. 113. She confirmed she had not done that in the last three years and did not

contact their therapists or specialists. RR-2 p. 115.

Amanda claimed she asked CPS for the physician’s name at some point and

said she asked “five, four or three” times. RR-2 p. 115-16. She claimed she made

the requests over the phone adding “I can’t get ahold of her.” RR-2 p. 116.

Amanda acknowledged she had to do genetic testing and counseling. RR-2 p. 116-

20
17. She claimed CPS never provided her with the contact information for genetic

testing and genetic counseling. RR-2 p. 117. She claimed she contacted the

hospital regarding genetic testing. RR-2 p. 117.

When asked if she was married to Daniel, Amanda stated that they were

common law adding: “it’s complicated. RR-2 p. 117-18. Amanda stated they

started out paying for their therapy and CPS was ordered to pay for the therapy.

RR-2 p. 119. She added they were not reimbursed and paid for about three

months. RR-2 p. 120.

The Foster Mother of the children testified next. She stated her plan was to

adopt the children if parental rights were terminated. RR-2 p. 123. She stated in

order to get up to speed on the children’s special needs, she attended all of the

meetings with the school board where they go over the child’s special needs for

school and the services they would receive. RR-2 p. 123. She added she takes

John to appointments with his psychiatrist, genetics appointments and neurologist

appointments. RR-2 p. 123. She stated they work with Angela’s visions needs and

monitor her at home to make sure she’s safe and learning her environment well.

RR-2 p. 123.

The Foster Mother stated they were comfortable addressing the special

needs of the children and acknowledged they had several and they changed over

time. RR-2 p. 124. She stated they were willing to keep the children in their home,

21
to love them and continue to help them as they grow up. RR-2 p. 125.

The Foster Mother, confirmed she was the one who set up the appointments

with doctors, meetings and anything like that. RR-2 p. 125. She noted he

continued doctor visits from the previous foster placement. RR-2 p. 125.

The Foster Mother stated even if the parental rights were not terminated they

would be willing to continue care for the children if their medical needs were

covered through CPS. RR-2 p. 125-26. She also confirmed they would be willing

to keep the children in their home until they aged out of the system. RR-2 p. 126.

She stated they care about all three of the children. RR-2 p. 126.

The following witness was Michele Criddle. She stated she was a marriage

and family therapist and met Amanda and Daniel after Amanda called her. RR-2 p.

127. She stated she worked with the parents since June 26, 2017. RR-2 p. 127 and

141. She stated she provided them couples therapy as well as individual therapy for

them. RR-2 p. 128. She met with them every other week for individual sessions

and couple sessions every other week, including crisis intervention. RR-2 p. 128.

She commented that crisis intervention was when emotions are escalated or

emotional distress occurs where they feel they need additional therapeutic support.

RR-2 p. 128. She stated they attended regularly since June. RR-2 p. 128-29.

She stated her goals in couples therapy was to teach Davis and Amanda to

emotionally regulate and work on their communication as well as learn what their

22
parenting goals should be. RR-2 p. 129. She believed they progressed. RR-2 p.

129. Specifically, she commented that she worked with the parents to redevelop

parenting abilities that are deficient and anger management. RR-2 p. 130. Ms.

Criddle indicated the parents progressed with therapy. RR-2 p. 131.

Ms. Criddle acknowledged she had not met the children nor had she

reviewed any of the children’s medical records regarding their past injuries that

brought them into care. RR-2 p. 132-133. She further acknowledged she could not

render an opinion on whether the parents were fit to have the children returned

home to them. RR-2 p. 133. She added that was why she requested to have therapy

with the children and parents together. RR-2 p. 133.

Nonetheless, Ms. Criddle stated she disagreed with the Child Advocates’

opinion and stated she believed Amanda had “capacity” and “ability” adding “we

have to guide her .. educate her about what that is.” RR-2 p. 137. She added her

past experiences with her parental upbringing did not give her guidelines that she

needed to be the parent she needed to be. RR-2 p. 137. She added Amanda was

very willing and Ms. Criddle commented she was very pleased with the way that

they parent. RR-2 p. 127. She further added she believed the parents had the love

and intention and capacity but they needed “additional resources to do so” and she

was advocating for that. RR-2 p. 138.

When Ms. Criddle was asked if she believed the relationship between

23
Amanda and Daniel was stable, she stated it was “stable.” RR-2 p. 139. She

admitted, however, that approximately two weeks before trial Amanda took $500

out of the bank and left a note for David stating their relationship was over. RR-2

p. 140.

Ms. Criddle stated she believed the parents’ explanation of Angela’s skull

fracture injuries. RR-2 p. 140. She also believed their explanation about the belt

marks to his body. RR-2 p. 140. Ms. Criddle confirmed she was a marriage and

family therapist and commented she did not need to have a medical degree or

experience with trauma or physical injuries to the body. RR-2 p. 140-41.

SUMMARY OF ARGUMENT

The Appellant’s Brief requests reversal of the parental termination judgment

against Daniel based on insufficiency of the evidence. Namely, the brief claims

there was insufficient proof to establish he endangered his children, placed them in

dangerous circumstances or failed to comply with a court order for reunification

and that termination of his parental rights was in their best interest. However, the

record in this case provides more than sufficient proof.

First, the record shows Daniel committed dangerous behaviors and placed

the children in dangerous conditions for the findings under D and E. The record is

undisputed he was the subject of crimes of domestic violence and sexual abuse

before his oldest child was born and, after his oldest was born, he failed to comply

24
with the requirement that he register as a sex offender and ultimately got an 8

months sentence while his oldest child was very young. In addition, while under

Daniel’s parentage, the oldest child suffered a black eye in 2014 and belt marks

and bruising in 2016 that a doctor determined resulted from excessive punishment.

The youngest child also suffered a fractured skull at one month of age that was

found to have resulted from excessive force. In all of these incidents, it was found

the parents’ excuses for the children’s injuries were inconsistent with medical

determinations.

The appellant’s brief argues there was not sufficient proof to disbelieve the

parents’ excuses because they were consistent in their claims. Nevertheless, a trier

of fact was not required to believe them, especially considering it was observed

during this second case that the children were afraid of Daniel. There also was

evidence that the parents were not properly responding to the children’s special

medical needs and remained ignorant of them. Considering the children’s special

needs were great and required monitoring, this was a fact that established the

parents jeopardized the well-being of their children for both D and E.

As for the finding under Subsection O, the evidence is conclusive. The

court ordered Daniel to comply with the Department’s service plan after these

children came into care upon learning that John suffered bruises and a belt mark

that a doctor concluded showed excessive punishment. Daniel failed to comply

25
with requirements at the beginning of the case by failing to go to a court hearing,

permanency conference and some visits and then delayed one of the most

important tasks involving parenting classes for almost a year. Also, he did not

show by the time of trial that he learned what was necessary under the goals of the

plan, which included a showing of a safe environment.

The Appellant’s Brief argues there was no order for purposes of Subsection

O, but that is not what the record shows. In particular, the brief argues that the

ordered service plan could not be considered ordered because it was not put in

evidence as an exhibit. However, this was a bench trial, and this court has held this

court presumes the court takes judicial notice of its own records in a case. The

family service plan was part of the trial court’s record in this case, therefore, it may

be presumed the trial court considered it.

The appellant’s brief also refers to language in a permanency hearing order

that orders a service plan attached to the order and argues that means the service

plan was never ordered because it was not attached. However, that disregards that

the service plan was already ordered in an earlier order (the Status Hearing Order)

and the court ordered it by referring to the service plan filed with the court.

Nothing in the later permanency order vacated the order of that service plan.

Consequently, this claim should be rejected.

26
 The last challenge in the Appellant’s Brief challenges the sufficiency of the

evidence for the finding that termination was in the children’s best interest. The

court had sufficient basis for terminating Daniel’s parental rights considering the

same evidence that supported the court’s findings under D, E and O. Moreover, the

undisputed proof that Daniel did not know his children’s special needs by the time

of trial when these children had many special needs that required medical visits

and monitoring weighed heavily in favor of the court’s finding. That is especially

true considering these children have lived in foster care for most of their lives in

the last three years, have a very significant bond with the foster parents, the foster

parents have been addressed their special medical needs and want to adopt them.

In light of this evidence, the evidence was more than sufficient to support the

court’s finding that parental termination was in the children’s best interest. The

judgment should, therefore, be affirmed.

ARGUMENT AND AUTHORITIES

REPLY POINT: The evidence sufficiently supported the court’s findings for
termination of the father’s parental rights

1) Applicable Law and Standard of Review

The court’s decree confirms that Daniel’s parental right were terminated

under Section 161.001 of the Family Code upon clear and convincing proof that

(1) he committed acts under Subsection (b)(1)(D), and (E) per section 161.001(1)

of the Family Code; and (2) that termination was in the best interest of the child.

27
CR 134-35; Tex. Fam. Code § 161.001(b)(1), (2); In re J.O.A., 283 S.W.3d 336,

344 (Tex.2009). Notably, the involuntary termination of parental rights is a serious

matter, because it implicates fundamental constitutional rights. Holick v. Smith,

685 S.W.2d 18, 20 (Tex.1985); In re D.R.A., 374 S.W.3d 528, 531 (Tex.App.—

Houston [14th Dist.] 2012, no pet.). However, while of constitutional magnitude,

parental rights are not absolute. In re C.H., 89 S.W.3d 17, 26 (Tex.2002) (“Just as

it is imperative for courts to recognize the constitutional underpinnings of the

parent-child relationship, it is also essential that emotional and physical interests of

the child not be sacrificed merely to preserve that right.”).

To address the serious interests in the permanent and severe decision of

parental termination, Section 161.001 of the Family Code imposes a burden of

proof that is heightened under the clear and convincing evidence standard. See

Tex. Fam. Code § 161.001(b) (West Supp. 2016); In re J.F.C., 96 S.W.3d 256,

265–66 (Tex.2002). In this connection, the Family Code defines “Clear and

convincing evidence” as “the measure or degree of proof that will produce in the

mind of the trier of fact a firm belief or conviction as to the truth of the allegations

sought to be established.” Tex. Fam. Code Ann. § 101.007 (West 2014); accord In

re J.F.C., 96 S.W.3d at 264.

The heightened burden of proof at trial also results in a heightened standard

of review. In re C.M.C., 273 S.W.3d 862, 873 (Tex. App.—Houston [14th Dist.]

28
2008, no pet.). In reviewing a legal sufficiency challenge, an appellate court

considers all the evidence in the light most favorable to the finding to determine

whether a reasonable fact finder could have formed a firm belief or conviction that

its finding was true. In re J.O.A., 283 S.W.3d at 344; In re J.F.C., 96 S.W.3d at

266. It is also assumed in that analysis that the fact finder resolved disputed facts in

favor of its finding if a reasonable fact finder could do so, and an appellate court

will disregard all evidence that a reasonable fact finder could have disbelieved. In

re J.O.A., 283 S.W.3d at 344; In re J.F.C., 96 S.W.3d at 266.

Appellate review of the factual sufficiency of the proof considers and weighs

all of the evidence, including disputed or conflicting evidence. In re J.O.A., 283

S.W.3d at 345. “If, in light of the entire record, the disputed evidence that a

reasonable fact finder could not have credited in favor of the finding is so

significant that a fact finder could not reasonably have formed a firm belief or

conviction, then the evidence is factually insufficient.” Id. Importantly, in such

review, the appellate court acknowledges the fact finder is the sole arbiter of the

credibility and demeanor of witnesses and, as such, will give due deference to the

fact finder's findings and not substitute its own judgment for that of the fact finder.

In re H.R.M., 209 S.W.3d 105, 108 (Tex.2006).

2) Father’s pattern of criminal behaviors, abuse of the children under
his care and neglect supported the court’s findings under Subsections
D and E of Section 161.001(b)(1) of the Family Code.

29
 The findings under D and E involve parental conduct stated as follows:

(D) knowingly placed or knowingly allowed the child to remain in
conditions or surroundings which endanger the physical or
emotional well-being of the child;
(E) engaged in conduct or knowingly placed the child with persons
who engaged in conduct which endangers the physical or
emotional well-being of the child;

Tex. Fam. Code Ann. §161.001(b)(1)(D), (E) (West Supp. 2016).

The term “endanger,” used in these sections includes the commonly

understood meaning: i.e. exposing a child to loss or injury or jeopardizing a child's

emotional or physical health. Texas Dep't of Human Servs. v. Boyd, 727 S.W.2d

531, 533 (Tex.1987). As clarified by the Supreme Court, the proof for

endangerment does not have to be established as an independent proposition, but

can be inferred from parental misconduct alone. Boyd, 727 S.W.2d at p. 533. Also,

it is not necessary that the parental misconduct be directed at the child, occur in the

child’s presence or that the child actually suffer injury from it; and it may include

evidence of conduct before the child's birth as well as before and after the child has

been removed by the Department. See In re B.B., 971 S.W.2d 160, 166-69 (Tex.

App.―Beaumont 1998, pet. denied).

Based on these standards, there was more than sufficient evidence showing

Daniel engaged in conduct endangering to his children and placed them in

dangerous surroundings. Such evidence included the following:

30
1. Parents engaged in behaviors that subjected the parents to
incarceration after the children were born. RR-3 p. 140 (“Father states
that he had a domestic violence charge at age 16 or 17 regarding an
altercation with his stepfather”); RR-3 p. 149 (3/24/2003 – sexual assault
felony; 4/25/2011 failure to register-convicted; 5/23/2012-failure to register-
convicted; 6/21/2012-failure to comply with registration-state jail felony-
convicted); RR-5 p. 155 (September 2012 sentenced 2 years for failure to
register); RR-5 p. 158 (January 2013 sentenced 8 months based on
adjudication of prior deferred offense for failure to register, because violated
law); RR-5 p. 149 (2013 mom gets forgery offense).

2. Children experienced injuries from excessive force under the parents’
care on separate occasions and each time parents’ excuses were
inconsistent with medical assessment RR-5 p. 149 (2014 John suffered
black eye, Angela had skull fracture and physician statement provides “the
injury would have come from excessive force,”and Department determined
mom’s story inconsistent with physician statement); RR-5 p. 148 (2016
reported John had bruise on chest and two parallel linear bruises on his
hip/lower back and “he explained that his mother, [Angela], hit him.”); RR-5
p. 141 (doctors concluded marks on John clearly resulted from beating with
belt, though father denied, and they concluded bruises represented excessive
physical punishment); RR-2 p. 37 (Dr. Giradet confirmed marks could not
have come from a belt strap in a bouncy house and stated, “He was struck.”);
RR-2 p. 53 (advocate explained basis of her recommendation included fact
that these parents were subject of two cases where the explanation was not
consistent with the medical injury).

3. Pattern of neglectful parenting by parents, especially in light of
children’s special needs. RR-5 p. 155-56 (Daniel convicted twice after
John born for failing to register and was sentenced to 8 months jail on
January 9, 2013, which, of course, made him unavailable for this child’s
care); RR-5 p. 149 (2013 Amanda left John with an inappropriate caregiver
when arrested and arrangements had to be made with an outside resource);
RR-5 p. 131 (social worker observed despite aggressive playing by children
resulting in one child causing other child’s nose to bleed, parents did not
appear to control or redirect the children and social worker determined
neither parent demonstrated strong parenting toward the children’s
behavior); RR-5 p. 145 (therapist observed mother unsure what to do when
her newborn baby cried, and found neither parent was good at managing all
three children successfully and did not think they were able to meet their

31
 special needs); RR-5 p. 146 (when children back in their care after first case,
apparent parents did not adequately meet the children’s needs and noted
mother did not take Angela for follow up MRI after March 2016
hospitalization despite numerous reminder calls by Texas Children’s
Hospital); RR-2 p. 54 (commenting on parents’ failure to follow up after
March 2016 hospitalization, Advocate noted mother insisted child did not
need it and though father said it would be done right away, it was not done);
RR-2 p. 49 and 52 (advocate observed Angela had noticeable neurological
issue in which she was wobbly and looked out of the tops of her eyes, had
not been seen for condition, dad just commented it was part of her seizure
thing; and father was unaware this child’s vision loss from skull fracture was
permanent); RR-2 p. 55, 57-58 (Advocate noted father away a lot and left
responsibilities to mother whom Advocate noted was unable to grasp
magnitude of children’s condition and laughed inappropriately when she
spoke in court about the children’s many special needs).

These facts together established a firm basis for the trier of fact to conclude the

parents exposed their children to loss or injury and jeopardized their emotional or

physical health to support the court’s finding of endangering conduct and

circumstances. See Boyd, 727 S.W.2d at 533.

As indicated above, the parents’ endangering behavior began with

intentional criminal behaviors by both parents that placed their children in a

situation that jeopardized their well-being. In re V.V., 349 S.W.3d 548, 555 (Tex.

App. – Houston [1st Dist.] 2010, pet. denied) (“Intentional criminal activity that

exposes a parent to incarceration is conduct that endangers the physical and

emotional well-being of a child.”). Such intentional criminal activity jeopardized

the stability and safety of these children especially considering these children were

very young when these behaviors occurred as well as the fact that both parents

32
engaged in behaviors that resulted in incarcerations. Moreover, with respect to

Daniel particularly, his pattern of his criminal behaviors raised concern about his

potential for violence, because he previously was involved in a domestic violence

incident when 16 or 17, a felony sexual assault crime at some point thereafter, and

then violated sex registration requirements several times and ultimately went to jail

under an eight months sentence while his first child was very young. RR-5 pp.

149, 155-56, 158, 159; RR-3 p. 140.

Of course, the most concerning endangering conduct listed above concerns

the injuries these children suffered on separate occasions documented to include a

black eye, a fractured skull from excessive force and belt marks from excessive

punishment. RR-5 p. 149 and 141; Jordan v. Dossey, 325 S.W3d 700, 724 (Tex.

App. – Houston [1st Dist.] 2010, pet. denied) (abusive and violent criminal

conduct by a parent can produce an environment that endangers a child). The

father’s brief claims the father testified he did not harm his children, always gave

consistent reasonable explanations and mainly left the children with the mother.

However, the trier of fact did not have to believe the father’s claims especially in

light of medical findings documented that showed these injuries were the result of

excessive force or punishment and the doctor at trial rejected Daniel’s excuse of

play or falling on a belt in a bouncy house. RR-5 p. 145, 141; RR-2 p. 37; See In

re J.P.B., 180 S.W.3d 570, 574 (Tex. 2005) (acknowledging it was within the

33
province of trier of fact to judge father’s demeanor and decide to disbelieve his

testimony that he did not know how the child was injured); See also In re H.R.M.,

209 S.W.3d 105, 108-09 (Tex. 2006) (holding appellate court could not supplant

trier of fact’s conclusion to disbelieve parent’s claim that he would be paroled).

Moreover, the final issue of dangerous behaviors involved Daniel’s neglect

of the children, especially in connection with their special medical needs. In re

H.M.O.L., No. 01-17-00775-CV, 2018 WL 1659981 *13 (Tex. App. – Houston

[1st Dist.] 2018, pet. denied) (parent’s failure to provide appropriate medical care

may constitute endangering conduct for purposes of Subsection E). Based on

observations of the social worker in the hospital, therapist, and Child Advocate it

was concluded these parents demonstrated inappropriate parenting in response to

these children’s medical and personal needs. Such observations supported a

finding the Daniel engaged in behavior endangering to his children. See Vasquez

v. Tex. Dept. of Prot. & Reg. Servs., 190 S.W.3d 189, 196 (Tex. App. – Houston

[1st Dist.] 2005, pet. denied) (finding caseworker’s observations of incidents

indicating appellant’s negligent in supervision could be considered as part of

dangerous course of conduct).

In sum, considering all of these facts together shows a pattern of parental

behaviors that exposed these children to unsafe surroundings and uncertainty and

instability that endangers a child’s physical and emotional well-being. In re

34
M.M.M., Nos. 01-17-00980-CV, 2018 WL 1954178 *10 (Tex. App. – Houston [1st

Dist.] 2018, no pet. h.) (citing In re R.W., 129 S.W.3d at 739). There was not any

disputed evidence of such significance as to outweigh this proof, consequently,

there was legally and factually sufficient proof for the court’s findings of D and E.

3) The evidence sufficiently supported the court’s finding under
Subsection O of Section 161.001(b)(1) of the Family Code.

Only one predicate finding under Section 161.001(b)(1); therefore,

consideration of the evidence under Subsection O is unnecessary. See In re A.V.,

113 S.W.3d 362 (Tex. 2003). Nonetheless, the evidence is sufficient under that

subsection as well. Under Subsection O, a court may terminate the parent-child

relationship if the court finds, by clear and convincing evidence, that the parent

failed to comply with the provisions of a court order that
specifically established the actions necessary for the parent to obtain
the return of the child who has been in the permanent or temporary
managing conservatorship of the Department of Family and
Protective Services for not less than nine months as a result of the
child's removal from the parent under Chapter 262 for the abuse or
neglect of the child.
TEX. FAM. CODE § 161.001(1)(O) (West 2014); In re E.C.R., 402 S.W.3d 239, 243

(Tex. 2013).

The evidence in this case supported that finding with the following evidence:

1. Temporary orders placed children in Department’s care for more than a
year from May 2016 to November 2017. Appendix, Tab 1 and 2; RR-2
p. 1.

35
2. Children came in Department’s conservatorship by order under Chapter
262 for abuse or neglect. CR-5 pp. 18-23 (facts of abuse or neglect
described in affidavit for emergency order); Appendix Tab 1
(emergency order appoints Department temporary managing
conservator; Appendix, Tab 2 (orders recites court’s findings under
chapter 262 for abuse or neglect for appointment of Department as
conservator); RR-5 p. 148 (Child Advocate notes Department named
temporary managing conservator of the children on May 24, 2016 after
referral of physical abuse on report of bruises on child, child said
mother hit him, and examining physician said mark consistent with belt
mark and inconsistent with family’s explanation); RR-5 p. 141 (doctor
statement said the marks reflected excessive punishment); RR-5 p. 173
(November 2016 court found neither parent willing and able to provide
child with safe environment, therefore, return was not in the children’s
best interest).

3. Parents ordered to do service plan and warned that failure to comply
with service plan could result in parental termination Appendix, Tab 2
(order, signed July 14, 2016, warned failure to comply with the service
plan approved at status hearing could result in parental termination);
CR 45-59 (Parents’ service plans filed July 20, 2016); RR-5 p. 164
(Status Hearing Order, signed August 24, 2016, approved parents’
service plans filed with the Court and incorporated it by reference as if
copied verbatim in the court’s order); RR-5 p. 163 (Order specifically
found parents reviewed and understood their services plans and were
advised unless they were willing and able to provide the children with a
safe environment, even with the assistance of a service plan, within
reasonable time specified in plan, parental rights may be subject to
termination). RR-5 p. 163; RR-5 p. 164 (Order amended the service
plan to require the parents to be referred to parenting classes and anger
management specifically tailored for children with special needs). RR-5
p. 174 (Order of November 2016 orders: “The actions specified in each
service plan … on file as of the date of this order represent actions
which this Court requires of the Parent specified in the service plan ..
and the actions much be performed in order for the parent to regain
custody of the children who are presently in the temporary managing
conservatorship of the Department.”).

36
4. Daniel’s service plan, ordered August 24, 2016, required Daniel to
attend and participate in scheduled visitation, court hearings, and
permanency conferences. CR 55; RR-5 p. 162, 164.

5. Daniel did not attend all scheduled visits, court hearings, and
permanency conferences. RR-5 p. 145 (did not go to permanency
conference in October 2016 and did not tell caseworker could not); RR-
5 p. 145 (Daniel did not go to court hearing November 16, 2016; RR-5
p. 172 (November 16, 2016 Court found parents had not demonstrated
adequate compliance with the plan); RR-5 p. 145 (Until February of
2017, David only attended one of the two scheduled parent-child visits
each month); RR-5 p. 146 (parents cancelled visits on several occasions
for non-emergency reasons).

6. Daniel’s service plan, ordered August 24, 2016, required Daniel to
locate, pay for and attend parenting classes and the court’s order that
ordered this service plan added that the parents should be referred to
classes specifically tailored for children with special needs. CR 55 and
57; RR-5 p. 164.

7. Daniel did not even attempt to locate parenting classes tailored for
children’s special needs until June of 2017, almost a year after this task
was ordered. RR-5 p. 145. The parents still had not completed this task
by the time the Child Advocate reported in October 2017. RR-5 p. 146.
Daniel reported he completed the task by the time of trial in November
2017. RR-2 p. 105.

8. The service plan had specific goals requiring Daniel to “learn and apply
realistic expectations for the age and developmental capabilities of the
child” and “demonstrate an ability to change the pattern of behaving
that resulted in abuse.” CR 54.

9. Nonetheless, Daniel did not demonstrate he learned realistic
expectations for the children’s developmental capacities or his ability to
change the pattern of behaving that resulted in abuse. RR-2 p. 108
(when asked what he learned in parenting classes, Daniel stated he
mainly learned about immunizations and respite); RR-2 p. 92 amd 55
(Daniel stated he had no concerns with leaving any of his children
alone with Amanda and Child Advocate noted father was away a lot
and left bulk of child care to father); RR-2 p. 55 (nonetheless, Child

37
 Advocate stated mother was unable to grasp magnitude of her
children’s conditions and even laughed when the advocate detailed all
the special needs of her children during a hearing).

As indicated above, there was proof that Daniel violated the service plan by failing

to attend visits, court hearings, and a permanency hearing, delaying on performing

his parenting classes until approximately a year into this case and failing to

demonstrate realistic expectations considering his children’s developmental

capabilities, indicating the pattern of abuse from the past was not addressed.

While it is acknowledged Daniel stated he completed his service plan, and

the testimony indicates he completed tasks required in his service plan by the time

of trial, substantial or partial compliance with a court ordered service plan does not

avoid a finding under Subsection O. In re J.M.T., 519 S.W.3d 258, 267 (Tex. App.

– Houston [1st Dist.] 2017, pet. denied). As noted by this court, Texas courts take a

strict approach to O and even one failure of a service plan will support an O

finding. Id.

Moreover, it is important to consider in this case that this was not Daniel’s

first time to be required to do a service plan, because they finished a service plan in

a prior case and got their children returned. Consequently, it cannot be said he did

not understand the importance of completing a court ordered plan in this type case.

Further, he violated the court’s order in a material way by delaying attending

parenting classes on special needs for such a long time (approximately a year) and

38
failing to demonstrate learned behaviors because he was fine leaving the kids with

the mother even though the advocate noted she lacked ability to understand the

children’s needs. RR-3 p. 121; RR-2 p. 45 and pp. 72-73. Consequently,

considering the evidence in this case, the proof in support of Subsection O was

established conclusively as a matter of law. See J.F.C. , 96 S.W.3d 256, 278-79

(Tex. 2002) (because there was undisputed proof that both parents failed to comply

with material provisions of the court ordered plans and those failures occurred

between the time the children were removed under chapter 262 until the time of

trial on orders issued during that time, the evidence conclusively established the

court’s finding under Subsection O “as a matter of law” even giving the parents

credit for partial compliance of other tasks).

Appellant’s brief argues that the order that required Daniel to comply with

the service plan was not a valid order, because the family service plan did not seek

reunification. However, the Department’s goals in a service plan do not prevent

the order from being a prerequisite for a parent to obtain reunification. As noted

by this court, “[t]he order need not bear a title stating that it is an order “to obtain

return of a child”; rather, it will be sufficient under subsection (O) so long as it

directs a parent to perform specific acts and advises the parent that failure to

provide a safe environment within a reasonable time period could result in

termination of .. parental rights.” In re K.N.D., No. 01-12-00584-CV, 2014 WL

39
3970642, at *6 (Tex. App.—Houston [1st Dist.] Aug. 14, 2014, no pet.). This

court has also noted that a trial court may direct a parent to perform specific acts

for purposes of Subsection O by ordering the parent to comply with a family

service plan created by the Department. Id. That is what the records shows in this

case.

The appellant’s brief also argues that there was no proof of a family service

plan was ordered as it was not admitted in evidence. Nonetheless, this court has

held “in a bench trial, we may ‘presume the trial court took judicial notice of its

record without any request being made and without any announcement that it has

done so.’” In re K.N.D., 2014 WL 3970642 (Tex. App. – Houston [1st Dist.] 2014,

pet. denied). As such, because the clerk’s record reflects Daniel’s service plan was

filed before the status hearing order was signed, the status hearing order

incorporated that plan into its order and ordered it, we may presume the trial court

took judicial notice of what the court previously ordered.

The appellant’s brief also argues that the service plan was not ordered,

because the Permanency Order signed in November of 2016 ordered a service plan

“attached” to the order. See RR-5 p. 174. However, that disregards that the court

previously ordered the family service plan “filed with the court” approved and

made an order of the court, and the Permanency Hearing order signed in November

did not vacate that order. RR-5 p. 164. In fact, the Permanency Order specifically

40
provided “all previous orders issued by this court shall continue without

modification.” RR-5 p. 174. Consequently, that does not establish that Daniel did

not have a court ordered service plan. The finding under Subsection O should be

affirmed.

4) The evidence supporting the court’s findings under Subsections D, E,
and O of Section 161.001(1) of the Family Code adequately supported
the court’s finding that termination was in the child’s best interest.
In reviewing Daniel’s last challenge to the sufficiency of the evidence for

the trial court’s best interest finding under Section 161.001(b)(2) of the Family

Code, this court is guided by numerous factors in case law and the Family Code. In

particular, Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976), provides a

number of factors a trial court may consider in evaluating whether parental

termination is in a child’s best interest. Those facts include the child’s desires,

physical and emotional needs, emotional and physical danger to the child, parental

abilities, programs to assist in promoting the child’s best interest, plans by those

seeking custody, stability of the home, improper parental acts and any excuse for

the improper acts or omissions by the parents. Also, besides those factors, the

Family Code, at Section 263.307, provides some directions in evaluating a child’s

best interest generally. It directs that the prompt and permanent placement of a

child in a safe environment is in a child’s best interest and then lists numerous

41
factors in evaluating a parent’s willingness to provide that safe environment. See

Tex. Fam. Code Ann. §263.307 (West 2008).

1. Desires of Children

The subject children were too young, at ages 3 and 5, to state their position

on whether it was in their best interest that their father’s parental rights be

terminated and there is nothing in the record indicating they made any comments

about their desires with respect to the father. RR-5 p. 143. However, this court has

held when the children are too young to express their desires, the court may

consider the children’s bond with the foster family, whether they are well-cared by

them and whether they have spent minimal time with the parent. In re T.M., No.

01-16-00942-CV, 2017 WL 1885406 *9 (Tex. App. – Houston [1st Dist.] 2017,

pet. denied) (mem. op.).

In this connection, the child advocate reported the children lived with the

former foster family from September 2014 until February 2016 in the first case and

then from May 2016 to June 2017 in this second case. RR-5 p. 147. Susan further

commented that, other than the two to three months when the children were

returned, Angela have been in foster placements her entire life. RR-2 p. 66.

Susan acknowledged the children were in two different foster placements.

RR-2 p. 62-63. Nevertheless, her report confirmed the children were well-

acquainted with this new foster home as it was in the same community as the

42
former foster family. RR-5 p. 146. Also, at trial, she confirmed there was

significant bonding between the children and their foster parents. RR-2 p. 66. She

also noted the children’s needs were met, they were thriving and doing extremely

well. RR-2 p. 56. In addition, the foster mother testified she wanted to adopt the

children. RR-2 p. 123.

The court likely also considered that these children had negative behaviors

seeing their parents and showed fear for several months with Daniel. RR-2 p. 65;

RR-5 p. 145. While the play therapist has been able to calm them so that the

children were seen playing happily with dad there and no overt fear being shown,

that does not show the children desired to be under their father’s care especially

without a therapist to assist them in their fears. RR-2 p. 65.

Consequently, considering the fear these children expressed toward their

father, the fact he had not provided care for these children for most of the last three

years, and the children are significantly bonded and well-cared for by their current

foster family, the court had more than sufficient basis to conclude that parental

termination would be in the best interest of the children under the factor of the

children’s desires.

2. Present and future dangers, acts and omissions

Appellant’s Brief claims there is no proof the father posed a danger to his

children. That is incorrect. As already discussed in connection with the prior

43
discussion concerning the proof under Subsections D and E, there was undisputed

proof establishing Daniel was the subject of domestic violence and sexual assault

crimes in his past and maintained a pattern of behaviors that resulted in his

incarceration even after his son’s birth. See In re B.D.A., 2018 WL 76131 (Tex.

App. – Houston [1st Dist.] 2018, no pet. h.) (father’s commission of felony after

births of his children that resulted in his incarceration considered dangerous

behavior that weighed against father in best interest analysis). In addition, there

was proof of his negligent parenting in failing to properly respond to his children’s

special needs as well as the excessive force and punishment experienced by these

children under his care. With that proof, the evidence that established these

children were endangered while Daniel parented them weighed in favor of the

finding that termination of Daniel’s legal rights as their parent was in the children’s

best interest.

3. Parenting Abilities and Programs.

The Appellant’s brief argues the factor concerning the father’s parenting

ability should weigh against parental termination, because the record shows he had

a stable home and employment, completed the various tasks required by his family

service plan, and the children were doing well with him during visits. However,

that does not reflect a full assessment of his parenting abilities from the record.

44
 First, as already noted above, the Department does not agree that Daniel

complied with the service plan. Though required to go to visits, court hearings and

permanency hearings, the evidence shows he violated that. Also, he did not look

for the court ordered parenting classes for almost a year after it was ordered and he

did not demonstrate at trial he learned to change behaviors that could result in

abuse or neglect again consistent with the goals in the service plan.

Also, the therapist concluded neither parent was good at managing all three

children successfully and did not think they were able to meet their special needs.

RR-5 p. 145. Further, the Child Advocate testified that the children had special

needs that neither parent had total grasp. RR-2 p. 43. In this connection, Daniel

confirmed at trial he did not know the specifics about his children’s special needs.

RR-2 p. 110. Considering these children had many special needs and the court

ordered that the parenting classes address special needs to ensure that important

aspect of serving their interests was addressed, Daniel admission about his

ignorance of their special needs proved he was unable or unwilling to address

them.

In contract, the foster caregivers showed the children great attention to their

special needs and brought them to all their required therapy and doctor

appointments. RR-2 p. 56. She stated the foster parents were also very patient with

these children, gave them lots of love and support and continued to make the

45
children healthier. RR-1 p. 57. Considering these facts, the court had more than

sufficient basis to find parental termination was in the children’s best interest

considering parenting abilities.

4. Stability and Plans

While the Appellant’s Brief suggests the father was never at fault and had an

appropriate plan for the children’s care, the record indicates otherwise. The facts

that have jeopardized stability for these children for most of their lives has mostly

been the result of the behaviors and neglect of the parents. His past behaviors

during the lives of his children have failed to take into account the basic and

special needs of his children, and the trier of fact did not have to believe he had

any better ability by the time of this trial, especially when he admitted he still did

not know his children’s special needs. Consequently, the court had more than

sufficient basis on to terminate Daniel’s parental rights so that the children could

be adopted by foster parents who had addressed the children’s special needs and

wanted to adopt them. Because the need for permanence is a paramount

consideration in determining a child’s present and future needs, the court had more

than sufficient basis to find termination of Daniel’s parental rights was in the

children’s best interest. See In re L.G.R., 498 S.W.3d 195, 205 (Tex. App. –

Houston [14th Dist.] 2016, pet. denied); Jordan, 325 S.W.3d at p. 731; Also see

46
Tex. Fam. Code Ann. §263.307(a) (prompt and permanent placement in child’s

best interest). The judgment should be affirmed.

WHEREFORE, PREMISES CONSIDERED, the Department prays that this

court affirm the trial court’s judgment and for such other and further relief to

which it may be entitled in law or in equity.

Respectfully submitted,

VINCE RYAN
COUNTY ATTORNEY

By: /s/ Sandra Hachem
Sandra Hachem,
Assistant County Attorney
State Bar #08667060
1019 Congress, 17th Floor,
Houston, Texas 77002
Phone: 713/274-5293; Fax: 713/437-4700
Email: Sandra.Hachem@cao.hctx.net
Attorney for Appellee,
Department of Family & Protective Services

CERTIFICATE OF SERVICE

I hereby certify that on this the 25th day of May, 2018, a true and correct
copy of the foregoing Appellee’s brief was sent to all parties to this appeal by
sending a copy of this brief by electronic transmission to:

Appellant, Daniel
c/o his attorney of record William Thursland
by email at wmthursland@hotmail.com

and

47
 Attorney Ad Litem for the Child
Sylvia Yvonne Escobedo by email at sylviaescobedo@me.com.

/s/ Sandra Hachem
Sandra Hachem

CERTIFICATE OF COMPLIANCE OF NUMBER OF WORDS

This is to certify, pursuant to Tex. R. App. P. 9.4(i)(3), that the foregoing
computer generated brief consists of no more than 15,000 words, excluding the
caption, identify of parties and counsel, table of contents, index of authorities,
statement of the case, statement of issues presented, statement of procedural
history, signature, proof of service, certification, certificate of compliance and
appendix. Relying on the word count of the computer program used to prepare this
document, the number of words, subject to count under the rules, is 11,937 words.

/s/ Sandra Hachem
Sandra Hachem

48
 No. 01-18-00023-CV
In the Court of Appeals for the
First District of Texas at Houston, Texas
___________________________________

In the Interest of J.I.G. & A.D.G., Children
__________________________________

D.C.G., Appellant

v.

Department of Family & Protective Services, Appellee

____________________________________

APPENDIX
____________________________________

DESCRIPTION ATTACHMENT NO.

Emergency Order
Signed May 24, 2016
Image Number 70417014 1

Temporary Order Following Adversary Hearing Order
Signed July 14, 2016
Image Number 711110358 2

49
 Tab 1

Emergency Order
Signed May 24, 2016
Image Number 70417014
 5/24/201611:00:37 AM
Chris Daniel - District Clerk
Harris County

2016-03202J / Court~ Envelope No: 10789464
By: EVERS, LONNA K
Filed: 5/24/2016 11 :00:37 AM "
ORIGINAL NOTICE: TIllS DOCUMENT
CONTAINS SENSITIVE DATA

MICHAEL EJEH 176-7
LOREE GEISELHART 176-7
CAUSE NO. _ _ _ _ _ _ _ _ _ __

IN THE INTEREST OF IN THE DISTRICT COURT OF

J G
HARRIS COUNTY, TEXAS
A G

CHILDREN ~ JUDICIAL FAMILY/JUVENILE DISTRICT
ORDER FOR PROTECTION OF A CIDLD IN AN EMERGENCY
AND NOTICE OF HEARING

On May 24,2016, the Department of Family and Protective Services ("the Department")
presented its Petition to the Court.

1. Appearances

1.1. The Department of Family and Protective Services ("the Department") appeared
through MICHAEL EJEH, caseworker, and by attorney and announced ready.

1.2. Respondent MOTHER A M D
o appeared in person and announced ready.
o appeared through attorney of record _ _ _ _ _ _ _ _ _ _ _ _ and
. )lIDounced re~dy. •
ti'a1r)Qeared In p rso d through attorney of record
-+-''-=f__....~-L.:....L..>".......-''...._..:b_'Id'_'_ and announced ready.
o wai d issuance and service 0 Citation by waiver duly filed.
o agreed to the terms of this order as evidenced by signature below.
o although duly and properly notified, did not appear and wholly made default.
o was not notified, and did not appear.
1.3. Respondent ALLEGED FATHER D C G
CertifiedDocumentNumber:70417014-Page1of9

o appeared in person and announced ready.
o appeared through attorney of record _ _ _ _ _ _ _ _ _ _ _ _ and
".announced ready.
ij1" ~~ared in 11persol:! through attorney of record
~ fJ,.J.)./\A ttU(o(l,l1O ~and announced ready.
J

o waived issuance and service of citation by waiver duly filed.
o agreed to the terms ofthis order as evidenced by signature below.
o although duly and properly notified, did not appear and wholly made default.
o was not notified, and did not appear.

Order For Protection Of A Child·ln An Emergency and Notice Of Hearing (!alainn)
Page 1 '. May242016
RECORDER'S MEMORANDUM .
This instrumentis of poor quality
at the time of imaging
 1.4. Respondent UNKNOWN FATHER
o appeared in person and announced ready.
o appeared through attorney of record _ _ _ _ _ _ _ _ _ _ _ _ _ and
announced ready.
o appeared In person and through attorney of record
_ _ _ _ _ _ _ _ _ _ _ _ _ and announced ready.
o waived issuance and service of citation by waiver duly filed.
o agreed to the tenns of this order as evidenced by signature below.
o ~though duly and properly notified, did not appear and wholly made default.
Gt' was not notified, and rdid n~t ~pear.
1.5. I - CD~nted by the Court as Attorney and Guardian
Litem 0 the children the subject of this suit,
appeared and announced ready.
agreed to the terms of this order.
agreed to the terms of this order, but did not appear
o although duly and properly notified, did~ot app~ar.

1.6. A CMAQdlWl.: .
CertifiedDocumentNumber:70417014-Page8of9

IF YOU APPEAR IN OPPOSITION T6 HE SUIT, CLAIM INDIGENCE, AND
REQUEST THE APPOINTMENT OF AN ATIORNEY, THE COURT WILL
REQUIRE YOU TO SIGN AN AFFIDAVIT OF INDIGENCE MlJ) THE COURT
MAY HEAR EVIDENCE TO DETERMINE IF YOU ARE INDIGENT. IF THE
COURT DETERMINES YOU ARE INDIGENT AND ELIGIBLE FOR
APPOINTMENT OF AN ATTORNEY, THE COURT WILL APPOINT AN
ATTORNEY TO REPRESENT YOU."

Order For Protection Of A Child In An Emergency and NotiCe 01 Heamg (Islelnn)
PageS . May 24, 2016
 r,

11. Dismissal Date and Notice of Full Adversary Hearing:

Pursuant to §263.306(1l), Texas Family Code, tte COjrt determines that the date for
dismissal of this cause shall be CS ;.1. "-::?
q I-<'1- .
Notice is given to Respondents A D and D M C
G t at his cause is seh. for
a full adversary hearing on
- '~-t--\-.........- - - - , at vI'. '50
o'clock j}.m. in the ~Judicial
District Court of arris Connty, in Houston, Texas
.
SIGNED thIS _ _ day of
MAY 2 4 2016 ,2016.

MASTER 0

SIGNEDthis _ _ dayof MAY 24 2016,2016.

/) ' ~'
JUDGE~V
..
CertifiedDocumentNumber:70417014-Page9of9

Order For Protection Of A Child In An Emergency and Notice Of Hearing (Ialeinn)
Page 9 . May 24,2016
 I, Chris Daniel, District Clerk of Harris
County, Texas certify that this is a true and
correct copy of the original record filed and or
recorded in my office, electronically or hard
copy, as it appears on this date.
Witness my official hand and seal of office
this May 15, 2018

Certified Document Number: 70417014 Total Pages: 9

Chris Daniel, DISTRICT CLERK
HARRIS COUNTY, TEXAS

In accordance with Texas Government Code 406.013 electronically transmitted authenticated
documents are valid. If there is a question regarding the validity of this document and or seal
please e-mail support@hcdistrictclerk.com
 Tab 2

Temporary Order Following Adversary Hearing Order
Signed July 14, 2016
Image Number 711110358
 Oft T GINAL
I,EU.
. .
~ 5/241201611:00:37 AM
Chris Daniel· District Clerk
Harris County
Env~ No: 10789464
20 16-03202J / Court: ~~d: 51:22i~N1~~O~:37 AM
NOTICE: TIiIS DOCUMENT
CONTAINS SENsmVE DATA P15
MICHAELEJEH 176-7
LOREE GEISELHART 176-7
CAUSE NO. --ftYl(IjX
IN THE INTEREST OF IN THE DISTRICf COURT OF

J I G
BA~SCOUNTY,TEXAS
A G

CHILDREN ~~ICIAL FAMILY/JUVENILE DISTRICT
TEMPORARY ORDER FOLLOWING ADVERSARY HEARING

On 01 . . '3 - I ~, a full adversary hearing pursuant to §262.20l or
9-e?
262.205, Texas Family Code, was held in this cause.

1. Appearances

1.1. The Department of Family and Protective Services ("the Department") appeared
through MICHAEL EJEH, caseworker, and by attorney and announced ready.

1.2. Respondent MOTHER A M D
o hpeared in person and announced ~
'IZ' appeared through attorney of record ~O "" f\AAL~d
~. nn
announcedready."\l
o appeared in person and through.. attorney of record
_ _ _ _ _ _ _ _ _ _ _ and announced ready.
o waived issuance and service of citation by waiver duly filed.
to
o agreed the terms of this order as evidenced by signature below.
[] although duly and properly notified, did not appear and wholly made default.
[] was not notified, and did not appear.

1.3. Respondent ALLEGED FATHER D C G
.0 ~aTed in person and announced reaW· Ij \.
CertifiedDocumentNumber:71110358-Page1of13

O""appeared through attorney 'of record cJt IU~AI\... \{,b ha4C~nd
V\
announced ready. .
o appeared . in person and through attorney of record
_ _ _ _ _ _ _ _ _ _ _ and announced. ready.
o waived issuance and service of citation by waiver duly filed. .
o agreed to the tenns of this order as evidenced by signature below.
D although duly and properly notified, did not appear and wholly made default.
o was not notified, and did not appear.

Temporary Ordanl (1aIeiuI)
Pagel
RECORDER'S MEMORANDUM May 24. 2016
ThIa InIb'wnent Is of poor quality
altha lima of imaging.
 1.4. Respondent UNKNOWN FATHER
[] appeared in person and announced ready.
[] appeared through attorney of record _____________ and
announced ready.
o appeared in person and through attorney of record
_ _ _ _ _ _ _ _~-~-- and announced ready.
[] waived issuance and service of citation by waiver duly filed.
o agreed to the tenus of this order as evidenced by signature below.
~ although duly and properly notified, did not appear and :wholly ma4e default.
J~ was not notified, and did not appear. .

1.5. -?;Y(Vta ft;Cbbedo,aPPointed by the Court as Attorney and Guardian
~Litcm of the children tbt'subject of this suit,
[] appeared and announced ready.
o agreed to the terms of this order.
o agreed to the terms of this order, but did not appear
o although duly and properly notified, did not appear.
1.6.
AI~O~~c_
2. Jurisdiction

2.1. The Court, after examining the record and hearing the evidence and argument of
counsel, finds that all necessary prerequisites ofthe law have been satisfied and that
this Court has jurisdiction of this case and of all the parties.

2.2. The Court further finds that the State of Texas has jurisdiction of this case pursuant
to Subchapter C, Chapter 152, Texas Family Code, because Texas has been the
home state of the children for at least six months prior to the date of the
commencement of this proceeding, and no parent or person acting as a parent
continues to live in the state where an initial child custody detennination was made.

3. Indian Child Welfare Act
CertifiedDocumentNumber:71110358-Page2of13

The Court has inquired whether the children's family has Native American heritage and
identified any Native American Tribe with which the children may be associated.

4. Findings

4.1. 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 thc
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

Temporary 0JderB (faleinn)
Page 2 . May 24.2018
 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; and (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.

4.2. The Court finds sufficient ev.idence to satisfy a person of ordinary prudence and
caution that there is a continuing danger to the physical health or safety of the
children and for the children to remain in the home is contrary to the welfare of the
children.

4.3. The Court finds with respect to the J I G AND
A G , that reasonable efforts consistent with the children's
. health and safety have been made by the Department to prevent or eliminate the
need for removal of the children from the home and to make it possible for the .
children to return home, but that continuation in the home would be contrary to the
welfare of the children.

4.4. 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.

4.5. The Court finds that appointment of the parent or parents as managing conservator
of the children is not in the best interest of the children because the appoinbnent
would significantly impair the children's physical health or emotional development

4.6. The Court finds that the following orders far the safety and welfare of the children
are in the best interest of the children.

5. Appointment of Counsel for Parents or Parties

5.1. The Court finds that A M D is! ~ indigent. Based on the·
finding that A M D is not indigent and pursuant to §107.015 of
the Texas Family Code, IT .IS ORDERED that A M D is
responsible to pay a reasonable fee in the amount set by the Court by separate order
to the attorney ad litem appointed to represent the children, J I
G AND A G .
CertifiedDocumentNumber:71110358-Page3of13

5.2. The Court finds that D C G isl iaIm indigent. Based on
the finding that D C G is not indigent and pursuant to
§ 107.015 afthe Texas Family Code, IT IS ORDERED that D C
G is responsible to pay a reasonable fee in the amount set by the Court by
separate order to the attorney ad litem appointed to represent the children, J
I G ANDIOR A G .
 6. Appointment of Single COUDsel for Both Parents

The Court finds that the interests of both indigent parents who have responded in
opposition to the tennination of the parent-child relationship are not in conflict, and
therefore has appoi~ted a single attorney ad litem to represent the interests of both parents.

7. Conservatorship

7.1. IT IS ORDERED that the Department of Family and Protective Services is
appointed Temporary Managing Conservator of the following children:

Name: J I G
Sex: MALE
Date of Birth:
Indian Child Status: UNKNOWN

Name: A G
Sex: FEMALE
Date of Birth:
Indian Child Status: UNKNOWN

7.2. IT IS ORDERED that the Temporary Managing Conservator shall have all the
rights and duties set f~rth in §153.371, Texas Family Code.

7.2.1. IT IS ORDERED that in addition to the rights and duties listed in
§lS3.371, Texas Family Code, the Department its employee or designee is .
authorized to consent to medical care of t~e subject children, pursuant to
§266.004, Texas Family Code.
CertifiedDocumentNumber:71110358-Page4of13

7.3. The Court finds that it is in the best interest of the children to linnt the rights and
duties of each paren~app±'d iB i iii40lary pUSSGS¥ij rud' lSI.

~.. 'iThe
,A"'-'
Court makes ;0
finding at this time with regard to the appointment of a
Temporary Possessory Conservator.

TempolClrY Olders (1alelm)
Page 4 May 24. 2016
 8. Righls a T~'=
es m;:::pareni
8.1. ... Each =_ .
"PlI01IlIM bl !I!i. Ii•••: ohaJI hav~ 1he
following rights:

8.1.1. the right to receive information concerning the health, education, and
welfare of the children;

8.1.2. the right to access to medical, dental, psychological, and educational
records of the children;

8.1.3. the right to consult with a physician, dentist, or psychologist of the children;

8.1.4. the right to consult with school officials concerning the children's welfare
a~d educational status, including school activitie!it\

consent for the child
g

t the moral and religious
CertifiedDocumentNumber:71110358-Page5of13

8.2. Each TetBj~Il!3Z=j!a:~m~~~~~~~IiI!~ms:::a&'shall have the
following duties:

Temporary Orders {faIeInII)
PageS May 24. 2016
 8.2.2.

8.3. Possession of and Access to the children

8.3.1. The Com finds that the application of the guidelines for poSsession of and
access to the children, as set out in Subchapter F, Chapter 153, Texas Family
Code, is not in the children's best interest. IT IS ORDERED that the parent
. named as temporary possessory conservator of the children shall have
limited access to and possession of the children as set forth below.

The Court finds that the parents shall have the right to visitation with the
children in accordance with the policy established by Department of Family
and Protective Services and at aU other times mutually agreeable to the
Temporary Managing Conservator and the parents of said children.

9. Chlld Support
The Court finds that the parents have a duty to support the child the subject of this suit.
CertifiedDocumentNumber:71110358-Page6of13

The Court makes no finding at this time with regard to the payment of child support.

Ttmpollly Orders (1aIaInn)
Pag.s May 2", 2016
 IT IS ORDERED that any chlld support ordered to be paid for the support of the children
as a result of any prior court order be ordered to be redirected and paid to the Texas
Department of Family and Protective Services.

10. Medieal Support

The Court finds that the parents have a duty to provide medical for the child the subject of
this suit

y
The Court makes no finding at this time with regard to the payment of medical support.

11. Release of Medical and Mental Health Records

IT IS ORDERED that Respondents A M D and D
C G execute an authorization for the release of Respondents', and the
children's (if needed) past, current or future medical and mental health records to the
Department from all physicians, psychologists, or other health care professionals, who
have treated Respondents or their children which information the Department shall be
authorized to share with all other groups or persons it deems necessary; and to further
provide the Department with a list of the names and addresses of an physicians,
psychologists, or other healthcare providers who have treated Respondents or the children ..
Respondents shall execute the authorization and deliver it, together with the list of
physicians, psychologists, or other healthcare providers, to the Department within 15 days
of the date of this hearing.

12. Required Home Study

12.1. The Court finds that Respondent Mother, A M D , hasll -
submitted the Child Placement Resources Fonn required under §261.307. Texas
Family Code.
CertifiedDocumentNumber:71110358-Page7of13

12.2. The Court finds that Respondent Father, D C G , hasAllfllt
~submitted the Child Placement Resources Form required under §261.307,
Texas Family Code.

12.3. IT IS ORDERED that each Parent, Alleged Father or Relative of the subject
children before the Court submit the Child Placement Resources FOnD provided
under §261.307, if the form has not previously been provided and provide the
Department and the Court the full name and cun'ent address or whereabouts and
phone number of any and all relatives of the subject children the subject of this suit
 with whom the Department may place the'subject children during the pendency of
this suit, pursuant to §262.201 " Texas Family Code. .

12.4. IT IS ORDERED that the Department shall continue to evaluate substitute
caregiver options until the Department identifies a relative or other designated
individual qualified to be a substitute caregiver.

13. FINDING AND NOTICE

THE COURT FINDS AND HEREBY NOTIFIES THE PARENTS THAT EACH OF
THE ACTIONS REQUIRED OF THEM BELOW ARE NECESSARY TO ODTAIN
THE RETURN OF THE CHILDREN, AND FAILURE TO FULLY COMPLY
WITH THESE ORDERS MAY RESULT :U"l THE RESTRICTION OR
TERMINATION OF PARENTAL RIGHTS.

"14. o ,~~-s=~

.. G is ORDERED, pursuant to §263.l06 Texas
'ly Co comply' 'ent ent's original,
or any amended, service plan during the penl'l ..1II'I"V

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CertifiedDocumentNumber:71110358-Page8of13

14.4. The court finds that this order, as supplemented by the service plan to be approved
at the Status Hearing under Texas Family Code §263.201, sufficiently defines the
rights and duties of the parents of the child pursuant to Texas Family Code
§ 153.602 and satisfies the requirements of a parenting plan. To the extent there is
evidence demonstrating that the children have been exposed to harmful parental
conflict, the court orders that the Department address this issue in the Family Plan
of Service. .

Temporary ORIelS (falelnn)
~8 _~~
 15. Required Information

15.1. IT IS ORDERED that each Respondent to this cause provide to the Department
and the Court, no later than thirty days from the date of this hearing, the information
detailed below.

15.2. IT IS ORDERED that each Respondent to this cause provide to the Department
and the Court the full name and current address or whereabouts and phone number
of any" absent parent of the children the subject of this suit, pursuant to Rule 194,
Texas Rules of Civil Procedure.

15.3. IT IS ORDERED that each Respondent to this cause submit the Child Placement
Resources Form provided under §261.307, Texas Family Code, ifthe form has not"
been previously provided and provide to the Department and the Court the full
name and current address or whereabouts and phone number of any relative of the
children the subject of this suit with whom the Department may place the children
during the pendency ofthis suit, pursuant to Rule 197, Texas Rules of Civil Procedure,
and §262.201(e), Texas Family Code.

15.4. IT'IS ORDERED that each Parent furnish information sufficient to accurately
identify that parent's net resources and ability to pay child support along with
copies of income tax returns for the past two years, any financial statements, bank
statements, and current pay stubs, pursuant to Rule 196, Texas Rules of Civil
Procedure., and §lS4.063, Texas Family Code.

15.5. IT IS ORDERED that each Respondent provide the Deparbnent and the Court
information sufficient to establish the parentage and immigration status of the
children, including but not limited to marriage records,. birth or death certificates,
baptismal records, social security cards, records of lawful permanent residence
("green cards''), naturalization certificates, and any other record of the United States
Citizenship and Inunigration Services and records of Indian ancestry or tribal
membership.

15.6. IT IS ORDERED that each Respondent provide the Department with any
information regarding whether the children or the children's family has Native
American heritage and identify any Native American Tribe with which the children
may be associated and provide all available family history information relevant to
CertifiedDocumentNumber:71110358-Page9of13

determination of Indian child status on request

15.7. IT IS ORDERED that each Respondent furnish to the Department all information
necessary to ensure the Department has an adequate medical history for the
children, including but not limited to the immunization records for the children and
the names and addresses of all treating physicians.
 15.8., IT IS ORDERED that each Respondent provide the Department information
regarding the medical history of the parent and parent's ancestors on the medical
history report form, pursuant to §161.2021, Texas Family Code.

15.9. IT IS ORDERED that each Respondent to this cause provide to the Department
and ~he Court a current residence address and telephone number at which each can
be contacted.

15.10. IT IS ORDERED that each Respondent to this cause notify the Department and
the Court of any change in his or her residence address or telephone number within
five (5) days of a change of address or telephone number.

16. Duty To Provide Information

16.1. IT IS ORDERED pursuant to §153.076(a), Texas Family Code that each
conservator of a child has a duty to infoIm the other conservator of the child in a
timely manner of significant information concerning the health, education, and
welfare of the child.

16.2. IT IS ORDERED pursuant to §153.076(b), Texas Family Code, that each
conselVator of the child has the duty to infonn the other conservator if the
conservator resides with for at least 30 days, marries, or intends to marry a person,
who the conservator knows:

16.2.1. is registered as a sex offender under Chapter 62, Code of Criminal
Procedure;oT

16.2.2. is currently charged with an offense for which on conviction the person,
would be required to register under that chapter.

, J6.3. The notice required to be made under §153.076(b), Texas Family Code, must be
made as soon as practicable but not later than the 40th day after the date the
conservator of the child begins to reside with the person or the 10th day after the'
date the marriage occurs, as appropriate. The notice must include a description of
the offense that is the basis of the person's requirement to register as a sex offender
or of the offense with which the person is ,charged.
CertifiedDocumentNumber:71110358-Page10of13

16.4. IT IS ORDERED pursuant to §153.076(b-1), Texas Family Code, that each
conservator of J I G AND A G has the
duty to infonn the other conservator of the children if the conservator:

16.4.1. Establishes a residence with a person who the conservator knows is the
subject of a final protective order sought by an individual other than the
conservator that is in effect on the date the residence with the person is
established; pursuant to §153.076(b-l )(1), Texas Family Code, or

Teqxuary OnIars (1aIainn)
Page 10 May 24, 2016
 16.4.2. Resides with, or allows unsupervised access to a child by, a person who is
the subject of a final protective order sought by the conservator after the
expiration of the 60 day period following the date the final protective order
is issuedi pursuant to § 153.076(b-1 )(2), Texas Family Code, or

16.4.3. Is the subject of a final protective order issued after the date of the order
establishing conservatorship, pursuant to §153.076(b-1)(3), Texas Family
Code.

16.5. The notice required to be made under §153.076(b-1), Texas Family Code, must be
made as soon as practicable but not later than:

16.5.1. The 30th day after the date the conservator establishes residence with the
person who is the subject of the final protective order, if notice is required
by §153.076(b-l}(I), Texas Family Code or

16.5.2. The 90th day after the date the final protective order was issued, if notice is
required by subsection §153.076(b-l)(2), Texas Family Code above; or

16.5.3. The 30th day after the date the final protective order was issued, if notice is
required by subsection §153.076(b~1)(3), Texas Family Code above.

16.6. A CONSERVATOR COMl'vllTS AN. OFFENSE IF THE CONSERVATOR
. FAILS TO PROVIDE NOTICE IN THE MANNER REQUIRED BY
SUBSECTIONS (b) AND (e), OR S"UBSECTIONS (b-l)' AND (c-l), AS
APPLICABLE, OF §153.076, Texas Family Code. AN OFFENSE UNDER
TmS SUBSECfION (d) IS A CLASS C MISDEMEANOR

16.7. "YOU HAVE THE RIGHT UNDER §262.102(d), TEXAS FAMILY CODE,
TO BE REPRESENTED BY AN ATIORNEY. IF YOU ARE INDIGENT
AND UNABLE TO AFFORD AN ATTORNEY, YOU HAVE THE RIGHT
TO REQUEST THE APPO ~T OF AN AITORNEY BY
CONTACfING THE COURT AT 1C1JbDICIAL DISTRICT COURT OF
BARRIS COUNTY, THE NILE JUSTICE CENT~R, 1200
CONGRESS, HOUSTON J2, "17 .
IF YOU APPEAR IN OPP S TION TO,THE SmT, CLAIM INDIGENCE,
AND REQUEST THE APPOINTMENT OF AN ATTORNEY, THE COURT
CertifiedDocumentNumber:71110358-Page11of13

WILL REQUIRE YOU TO SIGN AN AFFIDAVIT OF INDIGENCE AND
THE COURT MAY HEAR EVIDENCE TO DETERMINE IF YOU ARE
INDIGENT. IF THE COURT DETERMINES YOU ARE INDIGENT AND
ELIGIBLE FOR APPOINTMENT OF AN ATTORNEY, THE COURT
WILL APPOINT AN ATTORNEY TO REPRESENT YOU."

Temporary Ordell (IaIeIm)
Page 11 May 24. 2016
 17. Dismissal Date and Notice of Status Hearing

Pursuant to §263.306(1l), Texas mily Code, the Court,determincs that the date for
dismissal of this cause shall be . 7. .
IT IS ORDERED that . cause is s for a tatus Haring, jursnant to §~OI
Texas ~ode, on (;4 at ~! :WQ'clo .m.
in the ~ uudicial District of Harris ounty in Houston, Texas.

18. All said TEMPORARY ORDERS shall continue in force during the pendency of this
suit or until further order of the Court.

SIGNED ,this __ day odJl 1 3.2016 ,2016.

JUl 1.A 2016 . -..
SIGNED this _ _ day of . , 2016.

JUDGE PRESIDING
CertifiedDocumentNumber:71110358-Page12of13

Tempormy 0nIeIs (faJalnn)
Pag812 May 24. 2016
 .
NOTICE: TIDS DOCUMENT
CONTAINS SENSITIVE DATA

MICHAEL EJEH 176-7
LOREE GEISELHART 176-7
CAUSE NO. 2016-03202J

IN THE INTEREST OF IN THE DISTRICT COURT OF

J I G
HARRIS COUNTY, TEXAS
A G

CHILDREN 315TH JUDICIAL JUVENILE DISTRICT

CERTIFICATE OF SERVICE REGARDING
TRCP RULE 21 SERVICE OF ORDERS

Parties subject of this suit received or will be sent a true and correct copy of the above conformed order signed by this
Court, or waived their right to receive it, as evidenced by their signature below.

Ryan J. Mitchell
Attorney and Guardian Ad Litem for the Children Attorney Ad Litem for the Mother, A M D
FAJ(:713-583-4877 FAJ(: 832-369-2919
waived by fax hand delivery waived by fax hand delivery
by Certified Mail, Return Receipt Requested by Certified Mail, Return Receipt Requested
no address known at this time no address known at this time

in accordance with the Texas Rules of Civil Procedure on """"",'---''---I'-L---F--='-'''<.~'9-'
CertifiedDocumentNumber:71110358-Page13of13

Certificate of Service Regarding 2016-03202113 [5th
TRCP Rule 21 Service of Orders June 23, 2016 (FALEINN)
Page I
 I, Chris Daniel, District Clerk of Harris
County, Texas certify that this is a true and
correct copy of the original record filed and or
recorded in my office, electronically or hard
copy, as it appears on this date.
Witness my official hand and seal of office
this May 15, 2018

Certified Document Number: 71110358 Total Pages: 13

Chris Daniel, DISTRICT CLERK
HARRIS COUNTY, TEXAS

In accordance with Texas Government Code 406.013 electronically transmitted authenticated
documents are valid. If there is a question regarding the validity of this document and or seal
please e-mail support@hcdistrictclerk.com