Opinion
13-21-00114-CV
10-15-2021
IN THE INTEREST OF A.M.M., M.A.M., K.A.M., J.G.M., J.E.M., AND J.I.M.P., CHILDREN
On appeal from the 138th District Court of Cameron County, Texas.
Before Contreras Chief Justice and Benavides and Silva Justices.
MEMORANDUM OPINION
GINA M. BENAVIDES Justice.
Appellant F.M. appeals the trial court's order terminating the parent-child relationship between her and her children, A.M.M., M.A.M., K.A.M., J.G.M., J.E.M., and J.I.M.P. By seven issues, F.M. argues (1) her due process rights were violated by the trial court's refusal to appoint an interpreter for the entire duration of trial; (2) her due process rights were violated because a trial over Zoom prevented her from having access to her attorney throughout the proceedings; (3) the evidence was legally and factually insufficient to support termination under Texas Family Code § 161.001(b)(1)(D); (4) the evidence was legally and factually insufficient to support termination under Texas Family Code § 161.001(b)(1)(E); (5) the evidence was legally and factually insufficient to support termination under Texas Family Code § 161.001(b)(1)(O); (6) the trial court improperly terminated her parental rights because she was economically disadvantaged; and (7) the evidence was legally and factually insufficient to support a finding that termination of the parent-child relationship was in the best interest of the children. We reverse and remand.
We refer to the children and their family members by their initials in accordance with the rules of appellate procedure. See Tex. R. App. P. 9.8(b)(2).
We note that we have an obligation to ensure "as far as reasonably possible" that parental termination appeals are brought to final disposition within 180 days of the date the notice of appeal is filed. See Tex. R. Jud. Admin. 6.2(a).
The trial court called the case for a bench trial before an associate judge on August 25, September 1, and September 3, 2020.
A. Procedural History
The Department was initially appointed the temporary managing conservator of the children on July 22, 2019. On June 16, 2020, the trial court held a hearing and noted on the docket sheet that it "extended dismissal 30 days" and set a permanency review hearing before final order for August 19, 2020, at 1:00 p.m. and trial for August 25, 2020, at 8:30 a.m.
The dissent makes a point of saying that all of the documents filed in this case were in English. However, official court documents are required to be filed in English. Additionally, testimony from the case worker, Joanna Granado, stated that she communicated with F.M. in Spanish and that Spanish was F.M.'s primary language. Granado additionally stated that although the family service plan was in English, she explained it to F.M. in Spanish so she could understand it.
No written order is found in the record memorializing the extension. Ostensibly, the trial court extended the deadline by thirty days under the Seventeenth Emergency Order Regarding COVID-19 State of Disaster, then in effect. See Seventeenth Emergency Order Regarding COVID-19 State of Disaster, 609 S.W.3d 119, 120 (Tex. 2020) (permitting a trial court to "modify or suspend any and all deadlines . . . including but not limited to [§] 263.401(b) [of the family code] . . . for a stated period not to exceed 180 days"). No party objected to the extension nor challenges it on appeal.
On August 25, 2020, when the case was called, F.M. requested an interpreter.The trial court notified her that: "If I get an interpreter here at all, it will probably just be for her testimony. I'm not allowed an interpreter though-for the course of termination trials. That's all they give me. That's the way it's been for almost 12 years, 11 years." When asked for opening statements, F.M. objected to the trial proceeding without an interpreter and through Zoom, asserting that "[she] will be deprived of her Constitutional rights under the 5th and 14th Amendment [of] the U.S. Constitution and Article 1, Section 19 of the Texas Constitution." F.M. further complained that she would not have adequate representation because she was not able to be by her attorney's side to assist in her defense. F.M. suggested the trial court could grant an extension due to extraordinary circumstances of COVID-19 "and allow [her] time to find housing for her children in order to secure their return."
The dissent also states that the trial court did not consider on the record if an interpreter was "actually necessary." However, although it was not directly stated, the trial court found an interpreter was necessary by providing one to F.M., although delayed. There is nothing in the record to support the dissent's suggestion that the trial court can use "surprise" as a reason to deny an interpreter. The record before us does not indicate if F.M. had requested or received an interpreter at other hearings during the pendency of the case. The dissent states that there was no evidence that F.M. had previously requested a translator for any of the other hearings in this case. However, the only information this Court was provided regarding any previous hearings comes from the case summary contained in the clerk's record. See Tex. R. App. P. 34.5. The notes taken on the summary are from the trial court and do not document every detail of each hearing. Some of the entries just state that a hearing or day of trial occurred without more information. Therefore, we do not rely on the case summary to make any determination about the details of previous hearings. In re Bill Heard Chevrolet, Ltd., 209 S.W.3d 311, 315 (Tex. App.-Houston [1st Dist.] 2006, orig. proceeding) ("A docket-sheet entry ordinarily forms no part of the record that may be considered; rather, it is a memorandum made for the trial court and clerk's convenience.").
The trial court overruled the objections and noted that an interpreter was not available on that day. Therefore, the trial court proceeded without an interpreter for the first six witnesses, but later located an interpreter who was brought in for the last two witnesses presented that day.
On the second day of trial, September 1, the trial court noted that the interpreter was tied up in another court. F.M. again objected to proceeding without an interpreter and without being able to confer with her attorney during the proceedings. An interpreter became available about halfway through the second day of trial, due to the fact that the Department had a witness that need translation. He was available for the Department's witness and for F.M.'s testimony that day.
When trial counsel objected prior to the beginning of the testimony on day two, the trial court responded by stating:
You can take that up with the board of directors. That's all they give me. Okay? Or the board of judges. That's what they give me.
. . . .
Again, you can take that issue up with the board of judges and the referring court. If they want to give her a new trial for that reason, then they can give her a new trial.
. . . .
Okay. If not, you've got a whole record. Translate it, if needed.
. . . .
Later, in reference to availability of court reporters and interpreters, the trial court stated:
Same thing with interpreters. That's all I get. I've never had assigned interpreters for terminations, for trials. They are made available to me if-for the witnesses. And if they're not needed in any other court, then they're available to this court.
I still have the duty to proceed with all my cases promptly, including trials. You get de novo reviews with my referring courts. So[, ] the issues that you want to argue to the referring court is not necessarily the substance of the trial that's being conducted. It's the procedural resources that are made available to this court. I'll let the referring court decide whether parents in that situation are entitled to an entire new trial or not.
On September 3, the interpreter returned for the third day of trial to finish translating F.M.'s testimony, but F.M. appeared late, so the trial court released the interpreter. After F.M. appeared, the trial court recalled the interpreter to interpret the remaining part of the two witnesses' testimony for F.M. and complete the translation of F.M.'s testimony. The Department called fifteen witnesses at trial; Mother did not have an interpreter for ten of those witnesses.
The associate judge ordered termination of F.M.'s rights pursuant to Texas Family Code § 161.001(b)(1)(D), (E), and (O) and found that termination was in the best interest of the children. See Tex. Fam. Code Ann. § 161.001(b). On September 9, 2020, F.M. requested a de novo hearing, wherein she requested the trial court reform the associate judge's proposed order to extend the jurisdictional deadline rather than terminating F.M.'s parental rights. See Tex. Fam. Code Ann. §§ 201.014, 201.015, 263.401(b). F.M. asserted that trial via Zoom did not allow adequate representation because it "precluded side by side representation" and that she was deprived of due process because "[a]n interpreter for most of her . . . trial was not provided." F.M. argued the trial court should instead grant an extension up to 180 days due to extraordinary circumstances caused by COVID-19. F.M.'s counsel acknowledged that if a new trial occurred, F.M. could be in her office to allow side by side representation. The referring court denied F.M.'s request to modify the associate judge's order.
B. Evidence at Trial
Even though we are deciding this case on its due process issue, we lay out the evidence presented at trial in order to show the extent of the evidence presented.
On day two, Amy Quintero, Cristina Garzoria, and Maria Guadalupe Hernandez testified prior to the interpreter being available. The interpreter was brought in for Department witness, Eloina Patricia Sanchez Sixto, and F.M. On day three, the interpreter was present but released due to F.M.'s confusion about when the proceedings were to begin. The Department put on testimony from Joanna Granado, and the interpreter logged back in halfway through her testimony. The interpreter was present for the remainder of Granado's testimony, the remainder of F.M.'s testimony, Angela Nix, and the closing arguments. On day one of trial, the Department put on testimony from Luis Almaraz, Reyes Olivarez, Venansio Castillo, Cheryl Lucero, Pedro Rangel, and Martina Gonzalez prior to an interpreter being made available. The interpreter was present for Elizabeth Garcia and Armida Meza's testimony.
In October 2018, Texas Department of Family and Protective Services (Department) investigator Luis Almaraz received a report of neglectful supervision and physical neglect of the children by their mother, F.M. According to the report, M.A.M., age twelve, was left to care for K.A.M., age eleven, and J.I.M.P., age three. The report further alleged the home was "dirty and inappropriate for the children." Almaraz received two additional reports, one in November for physical neglect and another in December for physical abuse. The physical neglect report was due to a pending eviction while the physical abuse report was because A.M.M. stabbed her brother, M.A.M., in the face and back with a pencil and was arrested.
The children's fathers are not parties to this appeal. Accordingly, our review focuses on F.M. and the children. No fathers were parties to the initial reports or investigations.
According to Almaraz, the seven-member family was living in a one-bedroom trailer with "lots of animals inside" and the home was dirty. Further, the home had holes in the floor and the windows to the trailer were broken and boarded up. The home also did not have electricity-the family received electricity by running an extension cord from the neighbor's home. The affidavit in support of removal described the home as "deplorable," and "reek[ing] of 'filth and feces.'" Although F.M. and her six children shared one bed, Almaraz observed the bed and bedroom to be clean. F.M. subsequently moved to a two-bedroom home that Almaraz described as "better than the other home" because F.M. kept it clean. F.M. told Almaraz that she had attempted to take A.M.M. and M.A.M. for mental health treatment, but M.A.M. kept refusing, so she would reschedule their appointments and they ultimately did not receive care.
In addition to the three previous reports, Almaraz learned that the children missed a lot of school and "school personnel voiced [concern regarding] the hygiene for the children." Almaraz noted that F.M. had eleven or twelve past investigations, five of which were referred to family-based safety services (FBSS) and three of which led to the removal of the children from the home. Among the reports was a report of medical neglect in 2005, but the investigation could not be completed "as the family had moved to Mexico." In 2007, the children were removed because F.M. was in a mental health facility and unable to care for her children. In 2010, the children were observed to be in the street unsupervised, which led to a removal. In 2013, F.M. was referred to FBSS for neglectful supervision for leaving the children alone and concerns that there was not sufficient food in the home. The third removal for neglectful supervision occurred in 2016 when the children were again left unsupervised. Finally, in 2017, F.M. was again referred to FBSS. There were several other investigations in "which there was not a preponderance of the evidence [of neglect or abuse] and the family was not involved with the Department." Each prior removal ultimately resulted in the children being returned to F.M. Almaraz's 2018 investigation ended in a referral to FBSS.
Pedro Rangel, an FBSS worker with the Department, was assigned to F.M.'s case on January 23, 2019. Rangel contacted F.M. and the children on February 4, 2019. Rangel developed a service plan that included a mental health evaluation, parenting classes, individual counseling, and a psychosocial evaluation. Rangel attempted to contact F.M. later in February but was unable to locate F.M. or the children. The Department finally contacted the family on March 7 and learned they had been evicted and moved to a new home with family friends, Mercedes "Meche" and Juanita Giron. F.M. told Rangel that she was evicted because she could not afford rent. Rangel assessed the new home and found it to be dirty, have holes in the walls and ceiling, and the children rotated between sharing a single bed and sleeping on cushions on the floor.
Rangel testified that he made several visits to the home but F.M. was not there each time. On April 11, F.M. expressed that she was willing to begin services. Rangel stated thereafter when he would go to the home to meet with F.M., she was again not there, and Juanita was left caring for the children. On July 10, Rangel learned that F.M. was working for a shrimp company out of town, though he was unable to confirm the employment. At this time, K.A.M., who was twelve years old, could not be located. Juanita told Rangel that F.M. had taken K.A.M. with her, but K.A.M. was found living with another family friend of F.M. When she was located, K.A.M. stated the reason she left was because A.M.M. reported Meche had touched her inappropriately several times in the past, and she did not want that to happen to her. Rangel interviewed A.M.M. who reported Meche touched her on her breasts, butt, and vaginal area on three separate occasions. A.M.M. reported to Rangel that she had told F.M. about the inappropriate touching.
The date that K.A.M. began residing with her friend is unclear from the record.
Rangel testified that F.M. was arrested for burglary of a building on July 14, 2019, and remained in jail at the time of removal. Further, A.M.M. was with F.M. during the offense and was also arrested. F.M. told Rangel she was aware of the allegations against Meche but did not report them because she was afraid the children would be removed from her. The Department sought emergency removal of the children on July 18, 2019. J.I.M.P. was originally not included in the removal because he was living with his biological father at the time. However, after the children were removed, A.M.M. made an additional outcry that J.I.M.P.'s father had also sexually abused her in the past. The Department sought removal of J.I.M.P. later in the day.
Armida Meza, with Affinity Community Services, monitored seventeen visits between F.M. and her children. Meza testified that F.M. "no[-]show[ed]" for two in-person visits and five virtual visits. According to Meza, the children were excited to see their mother at the beginning of the visits, but J.I.M.P. did not react to her much. Meza noted that when the children misbehaved, M.A.M. would attempt to redirect their behavior rather than F.M. During the visits, the children expressed their desire to return to their mother and were sad when the visits would end.
Meza noted that during the visits, there were times that she had to remind the children to speak Spanish instead of English so F.M. could understand what they were saying.
Venansio Castillo, a licensed professional counselor, provided counseling and therapy services to F.M. and the children as part of the family service plan. Castillo testified that F.M. was referred to him in January 2020, but there was a delay in the initiation of services because F.M. was incarcerated. F.M. was initially ordered to complete six individual sessions, which she completed on July 6, 2020. The primary focus of the sessions was helping F.M. to make better decisions to provide a safe environment for her children; they also discussed F.M.'s history with relationships involving domestic violence. Castillo also initiated family counseling sessions for F.M. and her children, which began on August 7, 2020. Castillo recommended a minimum of six sessions, but they were delayed due to COVID-19. The children expressed their desire to have a stable home environment to Castillo, but he believed F.M.'s continued instability would have a detrimental effect on the children. The children also expressed to him they did not want to lose contact with their mother but understood her situation and were "okay" if termination occurred. Castillo expressed that F.M.'s conduct in the past has placed the children in "situations where possibly there [was] danger" and that "it would be somewhat unsafe" for them to return to F.M. However, he acknowledged that if F.M. had a stable home and was financially stable enough "to provide for the children's basic needs," then his opinion may differ.
Cheryl Lucero, a clinical therapist, provided therapy to J.I.M.P. Lucero testified that J.I.M.P. referred to his stepmother as "mom" and to F.M. as "[A.M.M.]'s mom." Although J.I.M.P. originally expressed continued desires to live with his father and stepmother, in his last two sessions he expressed the desire to live with "[A.M.M.]'s mother." Lucero expressed some concern because when she asked J.I.M.P. about F.M., J.I.M.P. had no recollection of her as opposed to having a much better recollection of his stepmother. Lucero testified that she did not believe terminating the parent-child relationship between F.M. and J.I.M.P. would cause him any emotional harm, but that terminating the relationship between J.I.M.P. and his father would. Lucero further testified that J.I.M.P. did not have much of a relationship with his maternal siblings but did speak often of his paternal siblings.
Cristina Garzoria began fostering A.M.M. and J.I.M.P. in August 2019. Garzoria also testified that J.I.M.P. referred to his stepmother as his mother and to F.M. as "[A.M.M.]'s mother" and would refuse to talk to F.M. during scheduled phone visits. In contrast, J.I.M.P. was very engaged with his stepmother and paternal siblings during their phone calls. Garzoria explained that although A.M.M. was in the seventh grade when she arrived, an assessment showed her to have a third-grade level in math and reading; A.M.M. was subsequently diagnosed with dyslexia. However, at the time of trial, A.M.M. had advanced into the ninth grade and was enrolled in the cosmetology program at her school. A.M.M. was also diagnosed as being prediabetic. When asked if she was willing to adopt A.M.M. and J.I.M.P., Garzoria stated "[she was] not sure about that" because "[her and her husband] have had nothing but bad experiences with [F.M.] and it worries [them]."
Garzoria at one point explained that F.M. got upset with her on a call because J.I.M.P. was crying and Garzoria was speaking to him in English. A.M.M. had to explain to F.M. what Garzoria was saying because F.M. did not understand.
Maria Hernandez began fostering M.A.M., K.A.M., J.G.M., and J.E.M. in late June 2020. Hernandez testified that K.A.M. expressed to Hernandez that she was "okay" if the parent-child relationship was terminated between her and F.M. because "it's better for her and for her siblings." Although he originally expressed his desire to remain with his mother, M.A.M. eventually told Hernandez that "whatever happened, he was okay with it." According to Hernandez, K.A.M. said the reason the children missed so much school is because they "didn't have what they needed" like clean clothes, so they were "embarrassed to go." Hernandez said J.G.M. and J.E.M., ages eleven and eight respectively, did not talk about school or their desires regarding their mother.
J.I.M.P.'s stepmother, E.P.S.S., testified that she was interested in long-term placement of J.I.M.P. E.P.S.S. maintained contact with J.I.M.P. while he was in foster care, despite J.I.M.P.'s father being in prison for drug possession. E.P.S.S. is also the mother to J.I.M.P.'s three paternal siblings. E.P.S.S. agreed to continue visits with J.I.M.P.'s maternal siblings should he be placed with her.
F.M. testified that she and the children left the first residence because "[the Department was] going to take [her] kids away" if she stayed. F.M. acknowledged that she was arrested for stealing clothes, though she denied that A.M.M. was with her at the time. When asked about A.M.M.'s outcries about Meche, F.M. responded that "[s]he was not abused . . . [s]he was just disrespected." However, F.M. acknowledged that she was aware A.M.M. made allegations of sexual abuse. F.M. testified that she would leave the children with the Girons during the week while she worked out of town because the children had nowhere to go.
F.M. was released from jail on December 13, 2019, but did not begin her services until January or February of 2020. At the time of trial, F.M. was living with an acquaintance, had been working for four to six weeks as a provider earning approximately $300 per week, and was on a waiting list for housing. During the pendency of the case, F.M. worked at a hotel, a laundromat, and various restaurants for about two weeks each, with various reasons for leaving each job. When asked about her future plans for the children, F.M. said "before it was their behavior, but well, [M.A.M.]'s behavior has improved and it's just to live better and as a family." F.M. was aware that A.M.M. was prediabetic; when asked what steps were taken to prevent diabetes, F.M. responded "[i]t's because she would eat a lot of sweets and a lot of greasy food." F.M. testified that she pleaded guilty to misdemeanor theft on the burglary of a building charge.
Joanna Granado was the Department's conservatorship worker for F.M. Granado testified that F.M. was ordered to complete individual and family therapy, a psychological evaluation, a substance abuse assessment and, if necessary, substance abuse treatment, random drug testing, parenting classes, visitation with the children, and pay $5 per month in child support. Granado further testified that F.M. completed her individual counseling, and the psychological evaluation, which recommended a psychiatric evaluation and psychotherapy, but she did not complete the treatments as recommended. One of the services offered by Tropical Texas Behavioral Health (Tropical Texas) included a program to assist individuals in obtaining housing, but F.M. did not fully engage the service. According to Granado, F.M. completed the parenting classes but did not complete family therapy. F.M. did not pay the court-ordered child support. Granado testified that out of the thirty possible visits, F.M. made nineteen and would frequently appear late to the virtual visits or terminate the visits early. To assist F.M. in completing services, the Department offered her transportation. Granado said she even gave F.M. some of her own money to buy food. Lastly, Granado testified that A.M.M. expressed to Granado that she wanted to return to her mother and recanted her allegations against J.I.M.P.'s father.
Angela Nix, guardian ad litem for the children, testified that she believed termination of the parent-child relationship was in the best interest for each child.
Following the termination and the district court's denial of the request for de novo review, F.M. filed this appeal.
II. Due Process
Although F.M. raised multiple issues on appeal, we first must address her due process claims. She argues that her due process rights were violated when (1) trial court failed to have an interpreter present and available during the entirety of her trial; and (2) her trial proceeded through Zoom, instead of in-person, which deprived her of access to her counsel.
The United States Supreme Court held in Santosky v. Kramer that "[w]hen the State moves to destroy weakened familial bonds, it must provide the parents with fundamentally fair procedures." In re J.F.C., 96 S.W.3d 256, 273 (Tex. 2002) (quoting Santosky v. Kramer, 455 U.S. 745, 753-54 (1982)). Even though parental termination cases are not criminal in nature, "constitutional rights were at stake: the natural right of a parent to the care, custody, and control of her children involves fundamental constitutional rights." M.M.V. v. Tex. Dep't of Fam. & Prot. Serv's, 455 S.W.3d 186, 189-90 (Tex. App.- Houston [1st Dist.] 2014, no pet.) (citing In re A.B., 437 S.W.3d 498, 502 (Tex. 2014)). "Accordingly, as in the criminal law context, litigants in civil proceedings to terminate parental rights are entitled to an interpreter." M.M.V., 455 S.W.3d at 190; Castro v. Ayala, 511 S.W.3d 42, 47 (Tex. App.-El Paso 2014, no pet.). The right to an interpreter is a matter of due process." M.M.V., 455 S.W.3d at 190; In re L.M.I., 117 S.W.3d 1, 4 (Tex. App.-Houston [14th Dist.] 2001), aff'd, 119 S.W.3d 707 (Tex. 2003).
"[D]ue process requires, at a minimum, that absent a countervailing state interest of overriding significance, persons forced to settle their claims of right and duty through the judicial process must be given a meaningful opportunity to be heard." Boddie v. Connecticut, 401 U.S. 371, 377 (1971). Parents have a fundamental interest "in the care, custody, and management of their child." Santosky, 455 U.S. at 753.
"In analyzing a claim of deprivation of procedural due process, we determine: (1) whether the complaining party has a liberty or property interest entitled to protection; and (2) if so, what process is due." In re L. N.C. , 573 S.W.3d 309, 322 (Tex. App.-Houston [14th Dist.] 2019, pet. ref'd); In re A.J., 559 S.W.3d 713, 719 (Tex. App.-Tyler 2018, no pet.). "At a minimum, due process requires notice and an opportunity to be heard at a meaningful time and in a meaningful manner." Mathews v. Eldridge, 424 U.S. 319, 333 (1976). "What process is due in any given situation is measured by a flexible standard that depends on the practical requirements of the circumstances." In re A.J., 559 S.W.3d at 720 (citing Eldridge, 424 U.S. at 334). To assess what process F.M. was due, we weigh the three factors laid out by the United States Supreme Court in Eldridge:
(1) the private interest affected by the proceeding or official action;
(2) the countervailing government interest supporting use of the challenged proceeding; and
(3) the risk of an erroneous deprivation of that interest due to the procedures used. Id. at 335; In re B.L.D., 113 S.W.3d 340, 352 (Tex. 2003); In re A.J., 559 S.W.3d at 720.
"In a parental termination case, the private interest affected is the right of a parent to raise his or her child, which is undeniably 'an interest far more precious than any property right.'" In re J.F.C., 96 S.W.3d at 273 (quoting Santosky, 455 U.S. at 758-59). "The [United States] Supreme Court has correctly observed that '[w]hen a State initiates a parental rights termination proceeding, it seeks not merely to infringe that fundamental liberty interest, but to end it.'" Id. (quoting Santosky, 455 U.S. at 759). Thus, the "private interest in a parental termination case is a 'commanding one.'" Id. (quoting Santosky, 455 U.S. at 759). The "private interests of both the parent and the child in the accuracy and justice of the decision to permanently end their relationship, weighs heavily in favor" of allowing F.M. the opportunity to understand the evidence put forth against her. In re L. N.C. , 573 S.W.3d at 322. The first factor weighs in favor of finding that under the circumstances presented here, F.M. did not receive due process. See id.
The second factor looks at the Department's interest in protecting the health and safety of the children. See Eldridge, 424 U.S. at 333. The Department, parents, and children all have an interest in timely resolution of parental termination cases. In re J.F.C., 96 S.W.3d at 274. Here, the original dismissal date was July 27, 2020, extended to August 26, 2020, following the thirty-day extension by the trial court. See Tex. Fam. Code Ann. § 263.401(a); Seventeenth Emergency Order Regarding COVID-19 State of Disaster, 609 S.W.3d 119, 120 (Tex. 2020). Although the Department was up against its deadline, that does not allow a violation of F.M.'s due process rights. The trial court began the trial on August 25, 2020, and proceeded to hear from six witnesses prior to an interpreter being brought in. An interpreter was available to the trial court on August 25, 2020, but just not at the time the court wished to begin its trial. Following that date, the trial court reset day two of the termination trial for a week later on September 1, 2020. F.M. had made the trial court aware of her inability to understand the English language on day one of trial and yet still, no interpreter was made available until three of the Department's witnesses had already testified. Additionally, that interpreter was available when the Department wished to call a witness that only spoke the Spanish language. On day three of the trial, September 3, 2020, F.M. was not present when the trial court wished to start due to a misunderstanding about what time the proceeding was beginning, and the trial court released the interpreter who was present, and continued with the Department's next witness. The interpreter logged back in halfway through the Department witness's testimony. Once the trial commenced, the Department's deadline issue was rectified.
The trial court called the case at 8:36 a.m. F.M. was not present because, according to her counsel, she thought they were beginning at 9:00 a.m. F.M.'s counsel asked if another witness could be called since F.M. was still on the witness stand from day two. F.M. logged in at 8:54 a.m. The interpreter logged back in at 9:22 a.m.
Although the dissent expresses concern with the Department's ability to meet its deadline, we cannot allow a deadline to be the reason to violate a parent's rights. It places the blame on F.M. for not filing a motion requesting an interpreter, although a motion is not required by the code. See Tex. Gov't Code Ann. § 57.002(a), (b). The Department was aware of its deadline, and chose to have the trial set one day prior to its expiration.The Department's fundamental interest is in protecting children's health and safety, yet the children in this case were all in alternate housing, not placed with F.M. This was also not the Department's first interaction with F.M. For the dissent to say that the Department was "surprised" that F.M. needed an interpreter and had a strict deadline to keep, which had already been moved once, does not provide a valid reason to violate due process rights. See In re L. N.C. , 573 S.W.3d at 323 ("The Department's interest in resolving the case in a single day cannot be given more weight than the interests of [appellant] in a just and accurate result.").
Once the trial commenced, the Department's deadline was met. Day two and three of the trial were set the following week with no deadline issue. See Tex. Fam. Code Ann. § 263.401(a); In re R.J., 579 S.W.3d 97, 110 (Tex. App.-Houston [1st Dist.] 2019, pet. denied); In re R.F., Jr., No 04-17-00582-CV, 2018 WL 1308542, at *1 (Tex. App.-San Antonio Mar. 14, 2018, no pet.) (mem. op.) (holding trial commenced for the purposes of § 263.401 when parties appeared, made announcements, trial court denied motion for continuance, and a Department witness briefly testified); In re D.S., 455 S.W.3d 750, 753 (Tex. App.-Amarillo 2015, no pet.) (suggesting "commencement of trial" means, at a minimum, that parties have asked to make their respective announcements, and trial court has ascertained whether any preliminary matters need to be considerered).
The Department argues that since F.M. did not file a motion requesting an interpreter, the provision of an interpreter was discretionary. See Tex. Gov't Code § 57.002(a), (b). While we agree with the Department that it is the trial court's discretion to provide an interpreter when no motion is filed, once that determination has been made, it is not an arbitrary decision as to which testimony is interpreted. The determination that F.M. required an interpreter was not disputed by the Department; in fact, some of its witnesses explained that F.M. only spoke Spanish and they communicated with her in Spanish in order for her to understand what was being requested of her. Once the trial court made the decision that an interpreter was necessary-as was the case here-it was not free to arbitrarily provide an interpreter sporadically throughout the trial. Instead, F.M.'s right to due process in this proceeding involving her "fundamental liberty interest"- her right to parent her children-required the presence of an interpreter throughout the proceeding once the trial court determined she needed one. See in re J.F.C., 96 S.W.3d at 273.
Texas Government Code § 57.002 states:
(a) A court shall appoint . . . a licensed court interpreter for an individual who can hear but does not comprehend or communicate in English if a motion for the appointment of an interpreter is filed by a party or requested by a witness in a civil or criminal proceeding in the court.
(b) A court may, on its own motion, appoint a . . . licensed court interpreter for an individual who can hear but does not comprehend or communicate in English.Tex. Gov't Code § 57.002(a), (b).
The dissent's statement that "nothing in the record demonstrates that the Department, the trial court, or other parties had reason to believe F.M. would need an interpreter" is disingenuous. The Department was aware that F.M. only spoke and understood Spanish, as multiple witnesses testified regarding their interactions with F.M. Granado explained that even though the family service plan was in English, she explained the entire plan to F.M. in Spanish so she could understand. There is also no information contained in the record to show the trial court was not aware of F.M.'s ability or inability to understand proceedings in English.
The Department also states that "some of the testimony for which [F.M.] did not have an interpreter was not relevant to her case." Our review of the record shows that there were ten witnesses called with no interpreter present and a substantial portion of the evidence presented was in relation to F.M. While we recognize that the Department's interests in protecting the health and safety of the children and proceeding to trial were extremely important, under the circumstances of this case, they did not exceed F.M.'s right to due process. This factor weighs in favor of finding that under the circumstances presented here, F.M. did not receive due process.
The third factor "the risk of an erroneous deprivation of that interest due to the procedures used," weighs in favor of a violation of due process. Eldridge, 424 U.S. at 335. Because the trial court allowed the use of an interpreter for select portions of the trial, but not the entire trial, the procedures used caused the risk of erroneous deprivation. See id. Due to the facts and factors listed previously, the trial court was aware of the need for an interpreter from the beginning of the trial, but the trial court nonetheless proceeded forward without one, and brought an interpreter when available. Although the trial court does not control the county availability, it did control its scheduling and could have delayed the trial until later in the day when the interpreter was available. However, it does not mean that because of scheduling conflicts, F.M.'s due process rights can and should be violated. The trial continued on the following week and still no interpreter was present for the entirety of those days. F.M.'s constitutional rights were at stake and we must require "fundamentally fair procedures." In re J.F.C., 96 S.W.3d at 273. To have interpretation for portions of, but not the whole trial, is not fundamentally fair. See id. This factor weighs in favor of finding that under the circumstances presented here, F.M. did not receive due process. Therefore, because we find that all of the factors weighed in favor of a finding of a violation of F.M.'s due process.
We sustain F.M.'s first issue.
III. Conclusion
Though unusual, we find the need to respond to the dissent's opening paragraph due to the improper analysis it uses. The statements made and suggestion provided sets a dangerous precedent that this Court cannot allow to be followed.
The analysis and disposition does not amount to "to an absolute right to an interpreter." We merely find that once the trial court determines F.M. or any parent should have access to an interpreter in proceedings where the Department is attempting to terminate their parental rights, access should be for the entire trial, and not pieces of it. The dissent characterizes F.M.'s actions as "delay[ing] until the last minute" to request the assistance of an interpreter where there is no evidence that the trial court was not aware of F.M.'s inability to understand English. We cannot review a case based upon alleged evidence outside the record and this argument is not before this Court.
Additionally, the Department put on evidence of extensive involvement with F.M. and her children, so it is also disingenuous to state that the Department must have been "surprised" at such a request. The Department's own witnesses testified that F.M. only communicated in Spanish.
No person should be denied the fundamental constitutional right to understand proceedings where the Department is trying to terminate their rights to their children. For the dissent to use an improper analysis and go so far outside this appellate record to suggest that "parents in State-initiated termination suits now have a mechanism by which they can win by default: wait until the dismissal date to raise a due process concern and get their children back when jurisdiction expires because the trial could not commence on or before the dismissal date," is unsupported speculation. To state that a mother is playing games and "winning by default" because she requested an interpreter to understand allegations eliminating her parental rights is wrong; exercising consitutuioal rights do not warrant playing a game.
We note that this case was further complicated by the pandemic era in which we are living. F.M. and her attorney were before the trial court via Zoom, each in separate physical locations. To claim that her attorney was available to translate the proceedings for F.M., as well as provide her with adequate representation, places a onerous and undue burden on her lawyer to be both counsel and interpreter. We cannot allow anyone's due process rights to be "trample[d]" when a party simply desires to understand the proceedings before them.
We reverse the decision of the trial court and remand for proceedings consistent with this opinion.
Because the violation of F.M.'s due process rights warrant a new trial, we need not address her other issues. See Tex. R. App. P. 47.1.
Dissenting Memorandum Opinion by Justice Silva. Delivered and filed on the 15th day of October, 2021.
DISSENTING MEMORANDUM OPINION
CLARISSA SILVA Justice.
By establishing what essentially amounts to an absolute right to an interpreter, the majority discourages parents from taking timely steps to protect their own due process interests and encourages them to delay until the last minute to raise an issue with the trial court, effectively impairing the ability of trial courts and the Department to alleviate the deficiency. Consequently, parents in State-initiated termination suits now have a mechanism by which they can win by default: wait until the dismissal date to raise a due process concern and get their children back when jurisdiction expires because trial could not commence on or before the dismissal date. Such mechanism may be intended to protect the due process rights of the parents, but it ultimately tramples on the due process rights of the children and the State's fundamental interest in protecting the children. Therefore, I respectfully dissent.
I. Background
I believe the majority's recitation of the relevant background is accurate; however, I would like to add some additional information. All the documents filed in this case, including the original and amended petitions, supporting affidavits, and plans of service, were in English. This includes the family plan of service signed by F.M., filed with the court, and adopted as an order of the court. The record indicates that the family plan of service for adjudicated father R.C. was translated into Spanish for his benefit. Further, there is no evidence from the record that F.M. requested a translator for any of the other hearings throughout the suit, but a docket notation reflects that on June 16, 2020, an interpreter was present for R.C.
There were two copies of the family plan of service filed: the first on September 19, 2019, which was unsigned by F.M., and the second on August 25, 2020, which was signed by F.M.
II. Due Process
By her first two issues, F.M. argues her due process rights were violated when (1)the trial court failed to have an interpreter available to her for the entirety of trial; and(2)trial proceeded through Zoom rather than in-person, thus depriving her of access to her counsel throughout the proceedings.
A. Standard of Review
"We review questions raising constitutional concerns de novo." In re Commitment of C.H., 606 S.W.3d 570, 573 (Tex. App.-Houston [14th Dist.] 2020, no pet.) (citing State v. Hodges, 92 S.W.3d 489, 494 (Tex. 2002)). "When the trial court may grant or deny relief based on its factual determinations, we apply an abuse of discretion standard of review." Id. (citing In re Doe, 19 S.W.3d 249, 253 (Tex. 2000)). "In this connection, we typically apply an abuse of discretion standard of review to procedural rulings or 'other trial management determinations.'" Id. (quoting In re Doe, 19 S.W.3d at 253).
When the State seeks to terminate the parent-child relationship, "it must provide the parents with fundamentally fair procedures." In re J.F.C., 96 S.W.3d 256, 273 (Tex. 2002) (quoting Santosky v. Kramer, 455 U.S. 745, 753-54 (1982)). "In the termination context, due process turns on a balancing of three distinct factors." Id. (quoting Santosky, 455 U.S. at 754) (cleaned up). "Those factors are: 'the private interests affected by the proceeding; the risk of error created by the State's chosen procedure; and the countervailing governmental interest supporting use of the challenged procedure.'" Id. (quoting Santosky, 455 U.S. at 754). "While parental rights are of constitutional magnitude, they 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." Id.
We note that the three-factor balancing test employed in In re J.F.C. is the same balancing test employed in Mathews v. Eldridge. Compare In re J.F.C., 96 S.W.3d 256, 273 (Tex. 2002) (quoting Santosky v. Kramer, 455 U.S. 745, 753-54 (1982)); with Mathews v. Eldridge, 424 U.S. 319, 333 (1976). Accordingly, I agree with the majority's use of this test, but disagree with the outcome of its application.
B. Applicable Law
F.M. asserts that the trial court's failure to appoint her an interpreter violates her rights under the Fifth, Sixth, and Fourteenth Amendment to the U.S. Constitution and Article I, Section 10 of the Texas Constitution. See U.S. Const. amends. V, VI, XIV; Tex. Const. art. I, § 10. However, "[t]he protections provided by the Sixth Amendment are explicitly confined to 'criminal prosecutions.'" Austin v. U.S., 509 U.S. 602, 608 (1993). Similarly, Article I, Section 10 of the Texas Constitution only applies to criminal prosecutions. In re S.A.G., 403 S.W.3d 907, 912 (Tex. App.-Texarkana 2013, pet. denied). F.M. primarily relies on criminal law procedure and case law in support of her assertion that the failure to have an interpreter available throughout the entire proceeding violated her constitutional due process rights. However, the code of criminal procedure applies to criminal cases, not civil, cf. Tex. Code Crim. Proc. Ann. art. 1.03, and parental termination proceedings are civil. See In re S.A.G., 403 S.W.3d at 912. Further, F.M. erroneously relies on criminal case law in support of her assertion that the Confrontation Clause requires an interpreter for parental termination suits. See In re S.A.G., 403 S.W.3d at 912 (holding the Sixth Amendment to the U.S. Constitution and Article I, Section 10 of the Texas Constitution are inapplicable in suits to terminate the parent-child relationship brought by the State). Accordingly, our review is limited to due process applicable to civil cases, including parental termination suits.
Whether due process affords a parent the right to be given an interpreter for the entire trial proceedings in a parental termination case appears to be a matter of first impression for this Court. F.M. relies on In re L.M.I. for the proposition that the right to an interpreter in a parental termination suit is a matter of due process. See In re L.M.I. (L.M.I. I), 117 S.W.3d 1, 4 (Tex. App.-Houston [14th Dist.] 2001) (concluding "[father's] right to have the affidavit [of relinquishment] accurately interpreted in a language he understands is a matter of due process"), aff'd, 119 S.W.3d 707 (Tex. 2003) (L.M.I. II). However, the Texas Supreme Court declined to reach the issue after determining that appellant father failed to preserve the argument. In re L.M.I. II, 119 S.W.3d at 711 ("[A]llowing appellate review of unpreserved error would undermine the Legislature's intent that cases terminating parental rights be expeditiously resolved . . . ."). Thus, the Texas Supreme Court left the termination intact but declined to resolve the question of whether a parent has the due process right to an interpreter for parental termination proceedings. Id.; but see M.M.V. v. Tex. Dep't Fam. & Prot. Servs., 455 S.W.3d 186, 190 (Tex. App.-Houston [1st Dist.] 2014, no pet.) (concluding that "litigants in civil proceedings to terminate parental rights are entitled to an interpreter" but appellant failed to preserve complaint regarding interpreter's competency).
C. Analysis
1. Interpreter
I agree with the majority that for a parent to have "fundamentally fair procedures" in a parental termination case, the parent must typically be able to understand the proceedings. See In re J.F.C., 96 S.W.3d at 273. As such, to protect the parent's due process rights, a parent is generally entitled to an interpreter when he or she cannot understand the proceedings. See id. To determine whether F.M.'s due process rights were violated by the specific circumstances presented in the case, we must balance "the private interests affected by the proceeding; the risk of error created by the State's chosen procedure; and the countervailing governmental interest supporting use of the challenged procedure." See id. (quoting Santosky, 455 U.S. at 754) (cleaned up).
The private interest at stake is F.M.'s fundamental interest in the care, custody, and management of her children, "'an interest far more precious than any property right.'" In re J.F.C., 96 S.W.3d at 273 (quoting Santosky, 455 U.S. at 758-59). As such, "the private interest in a parental termination case [is] 'a commanding one.'" Id. (quoting Santosky, 455 U.S. at 758-59).
I believe the majority's opinion does not properly analyze the risk of erroneous deprivation. See In re J.F.C., 96 S.W.3d at 273. In this case, the risk of error created by proceeding without an interpreter was significant but not determinative. That risk was partially mitigated by the presence of F.M.'s counsel, who was able to understand the proceedings and assist F.M. in responding to the evidence presented by the Department. The risk was also partially mitigated by the attendance of an interpreter for F.M.'s testimony as well as a portion of the trial to translate the proceedings to F.M. It is crucial to note that the nature and content of the Department's evidence in a termination suit would not change based on the presence of an interpreter; rather, it changes F.M.'s ability to respond to it. The Department maintains the burden of proving by clear and convincing evidence both the predicate grounds for termination and that such termination is in the child's best interest in its case in chief. See Tex. Fam. Code Ann. § 161.001(b); Santosky, 455 U.S. at 768 (requiring a clear and convincing burden of proof before the State may terminate the parent-child relationship in order to protect the due process rights of the parent). Although the majority emphasizes that "there were ten witnesses called with no interpreter present[, ]" such fact seems irrelevant to its ultimate conclusion: "F.M.'s right to due process . . . required the presence of an interpreter throughout the proceeding." The majority appears to hold for the first time that a parent's right to an interpreter in a termination suit is absolute. But see In re C.H., 89 S.W.3d 26 ("While parental rights are of constitutional magnitude, they are not absolute.").
Additionally, nothing in the record demonstrates that the Department, the trial court, or the other parties had reason to believe F.M. would need an interpreter on the day of trial. Rather, the record reflects that, up until that point, the proceedings and filings were in English, and F.M. did not require an interpreter to proceed. Although the trial court did not consider on the record whether an interpreter was actually necessary, nor do I, such information demonstrates surprise to the parties and trial court.
The Department, parents, and children all have an interest in timely resolution of parental termination cases. In re J.F.C., 96 S.W.3d at 274. Here, the original dismissal date was July 27, 2020, extended to August 26, 2020, following the thirty-day extension by the trial court. See Tex. Fam. Code Ann. § 263.401(a); Seventeenth Emergency Order Regarding COVID-19 State of Disaster, 609 S.W.3d 119, 120 (Tex. 2020). F.M. did not request an interpreter until the day of trial on August 25, 2020, despite being aware of the trial date for over sixty days. See Tex. Gov't Code Ann. § 57.002(a) (mandating the appointment of an interpreter for a party who files a motion requesting such).
The majority notes that "absent a countervailing state interest of overriding significance, persons forced to settle their claims of right and duty through the judicial process must be given a meaningful opportunity to be heard." Boddie v. Connecticut, 401 U.S. 371, 377 (1971). Although minimized by the majority, a countervailing state interest existed here: the Department's fundamental interest in protecting the children's health and safety was of overriding significance. See id.; In re A.B., 437 S.W.3d 498, 505 (Tex. 2014) ("[I]n parental termination cases, the parents' fundamental interest in maintaining custody and control of their children is balanced against the State's fundamental interest in protecting the welfare of the child.") (emphasis added); see also Tex. Fam. Code Ann. § 263.401(a), (b) (terminating the trial court's jurisdiction if trial on the merits has not commenced by the dismissal date). Further, the Department's interest was not only "proceeding to trial in a timely manner" as the majority states but proceeding to trial at all when faced with jurisdictional deadlines.
If trial had not commenced by August 26, 2020, one day after the actual commencement date, the trial court would have lost jurisdiction, F.M. would have automatically retained her parental rights, and the children would need to be returned to her care and custody. Tex. Fam. Code Ann. § 263.401(a), (b); cf. In re L. N.C. , 573 S.W.3d 309, 323 (Tex. App.-Houston [14th Dist.] 2019, pet. denied) (considering that "[t]he case was not at risk for dismissal" before concluding that "the Department's interest in resolving the case in a single day cannot be given more weight than the interests of [the parents] in a just and accurate result"). Such outcome would completely strip the Department, and by extension the State, from an opportunity to protect its fundamental interests. See Boddie, 401 U.S. at 377. The children could potentially be subjected to additional abuse and neglect on the basis that the trial court could not have an interpreter available upon
F.M.'s request at the time trial was set to begin. As such, the Department's interests in protecting the health and safety of the children and proceeding to trial outweighed F.M.'s right to an interpreter for the entire proceeding. In re C.H., 89 S.W.3d at 26 ("[I]t is . . . essential that emotional and physical interests of the child not be sacrificed merely to preserve [the parent's] right" to the parent-child relationship.)
The majority notes that an interpreter was available to the trial court later in the first day, and thus the trial court could have simply delayed trial until later in the day. Yet, nothing in the record demonstrates that the trial court was or should have been aware that such availability would occur. The majority also states that the "interpreter was made available when the Department wished to call a witness that only spoke Spanish." However, nothing in the record indicates that the interpreter was made available. On this record, it is just as likely that the Department waited until the interpreter was available to call the witness or that it made arrangements in advance to have the interpreter available for a witness it knew only spoke Spanish.
F.M. urged the trial court to extend the case for up to 180 days under Texas Family Code § 263.401(b). See Tex. Fam. Code Ann. § 263.401(b). However, to extend the jurisdictional deadline, the trial court must "find[] that extraordinary circumstances necessitate the child[ren] remaining in the temporary managing conservatorship of the [D]epartment and that continuing the appointment of the [D]epartment as temporary managing conservator is in the best interest of the child[ren]." Id. When determining whether extraordinary circumstances exist, the focus is on the needs of the children. In re A.J.M., 375 S.W.3d 599, 604 (Tex. App.-Fort Worth 2012, pet. denied). Further,
"[a]ctions that are considered to be the parent's fault will generally not constitute extraordinary circumstances." In re J.S.S., 594 S.W.3d 493, 501 (Tex. App.-Waco 2019, pet. denied) (citing In re O.R.F., 417 S.W.3d 24, 42 (Tex. App.-Texarkana 2013, pet. denied)). F.M. did not establish that her failure to make a timely request for an interpreter constitutes an extraordinary circumstance or that remaining in the temporary managing conservatorship of the Department was in the children's best interest. See Tex. Fam. Code Ann. § 263.401(b); see also id. § 263.307(a) ("[T]he prompt and permanent placement of the child in a safe environment is presumed to be in the child's best interest."). Although it is not F.M.'s fault that she is not fluent in the English language, she bears responsibility for failing to timely request an interpreter. See In re J.S.S., 594 S.W.3d at 501.
Because I believe the majority does not give the proper weight to the State's fundamental interests and the consequences of the pending jurisdictional deadline, I would conclude that the trial court did not abuse its discretion or violate F.M.'s due process rights by denying F.M.'s request for an extension and proceeding to trial without an interpreter for portions of the trial. See In re Commitment of C.H., 606 S.W.3d at 573 (citing In re Doe, 19 S.W.3d at 253) (applying abuse of discretion standard to factual determinations, procedural rulings, and other trial management decisions); In re J.F.C., 96 S.W.3d at 273. I would conclude that requiring a parent to make a timely request for an interpreter provides "fundamentally fair procedures" to the parent, the State, and the children. See In re J.F.C., 96 S.W.3d at 273. For the foregoing reasons, F.M.'s first issue should be overruled. I proceed to consider the merits of F.M.'s other issues. I proceed to consider the merits of F.M.'s other issues.
The majority suggests that once the trial court commenced trial prior to the dismissal date, the case was not in jeopardy of dismissal under Texas Family Code § 263.401(a). See Tex. Fam. Code Ann. § 263.401(a). However, it also concludes that "[the trial court] was not free to provide an interpreter sporadically throughout the trial[, ]" but instead "required the presence of an interpreter throughout the proceeding." These two conclusions appear to be in conflict: the trial court cannot simultaneously commence trial without an interpreter to stop the jurisdictional deadline and provide an interpreter for the entire proceeding. The majority correctly identifies that the trial court controlled its own scheduling but concludes that the trial court could have delayed the trial to some unknown day and time without the benefit of knowing the availability of the trial court, witnesses, and parties. Further, I would caution against the encouragement of commencing trial for the sole purpose of skirting jurisdictional deadlines. See Tex. Fam. Code Ann. § 263.402 ("The parties to a suit under [Chapter 263] may not extend the deadlines set by the court under this subchapter by agreement or otherwise.") (emphasis added).
2. Access to Counsel
By her second issue, F.M. argues her due process rights were violated by the "failure to provide access and effective communication between trial counsel and [F.M.] during the trial." Beyond this assertion, F.M. provides no reference to a statute, rule, or case law supporting her position. A "brief must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record." Tex.R.App.P. 38.1(i). Failure to do so may result in waiver of the argument. See RSL Funding, LLC v. Newsome, 569 S.W.3d 116, 126 (Tex. 2018); see also H&H Sand & Gravel, Inc. v. Suntide Sandpit, Inc., No. 13-17-00510-CV, 2019 WL 2293585, *7 (Tex. App.-Corpus Christi-Edinburg, May 30, 2019, pet. denied) (mem. op.). We may, however, address F.M.'s point in the interest of justice. In re O.R.F., 417 S.W.3d at 42. I do so here.
F.M. does not argue that she received ineffective assistance of counsel. See In re M.S., 115 S.W.3d 534, 544 (Tex. 2003) ("[T]he statutory right to counsel in parental-rights termination cases embodies the right to effective counsel.").
A review of the record reveals no action by the trial court or circumstance of trial that prohibited F.M. from having access to her attorney during trial. At trial, F.M.'s counsel asserted that conducting the trial via Zoom prohibited F.M. from being "side by side" with her. However, during F.M.'s de novo hearing, the trial court asked F.M.'s counsel, "[L]et's assume that I do grant a new hearing. Are you able to have [F.M.] side by side with you, even though she has masks, in the next hearing?" F.M.'s counsel responded, "We would have to do that. Yes, Your Honor. I would have to go ahead and do it in my office somehow, Your Honor." F.M. does not argue that such a situation was not possible for the original trial, nor does the record demonstrate any evidence in support of such. I would conclude that F.M.'s due process rights were not violated due to lack of access to and effective communication between F.M. and her trial counsel. See In re A.T.M., No. 13-21-00008-CV, 2021 WL 2584402, at *8 (Tex. App.-Corpus Christi-Edinburg June 24, 2021, no pet.) (mem. op.) (concluding father's telephonic appearance, rather than personal appearance, did not "meaningfully deprive[] him of any constitutional right."). F.M.'s second issue should be overruled.
III. Sufficiency of the Evidence A. Standard of Review
By her third, fourth, fifth, and seventh issues, F.M. argues the evidence was legally and factually insufficient to support termination. By her sixth issue, F.M. argues termination was improperly based on evidence that she was economically disadvantaged. See Tex. Fam. Code Ann. § 161.001(c)(2) (prohibiting termination based on evidence that a parent is economically disadvantaged).
"[I]nvoluntary termination of parental rights involves fundamental constitutional rights" and divests the parent and children of all legal rights, privileges, duties and powers normally existing between them, except for the children's right to inherit from the parent. Holick v. Smith, 685 S.W.2d 18, 20 (Tex 1985); In re LJN, 329 S.W.3d 667, 671 (Tex App-Corpus Christi-Edinburg 2010, no pet); see In re KML, 443 S.W.3d 101, 121 (Tex 2014) (Lehrmann, J, concurring) ("Termination of parental rights, the total and irrevocable dissolution of the parent-child relationship, constitutes the 'death penalty' of civil cases."). Accordingly, "termination proceedings must be strictly scrutinized." In re K.M.L., 443 S.W.3d at 112. In such cases, due process requires application of the "clear and convincing" standard of proof. Id. (citing Santosky, 455 U.S. at 769; In re J.F.C., 96 S.W.3d at 263). This intermediate standard falls between the preponderance of the evidence standard of ordinary civil proceedings and the reasonable doubt standard of criminal proceedings. In re G.M., 596 S.W.2d 846, 847 (Tex. 1980); In re L.J.N., 329 S.W.3d at 671. It is defined 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. A parent's rights to their children may be terminated upon a showing by clear and convincing evidence that (1) he or she engaged in certain acts or omissions prescribed by statute and (2) termination is in the children's best interest. Tex. Fam. Code Ann. § 161.001(b).
When reviewing the factual sufficiency of the evidence supporting termination, we ask "whether the evidence is such that a factfinder could reasonably form a firm belief or conviction about the truth of the [Department]'s allegations." In re C.H., 89 S.W.3d at 25. In conducting this review, we consider whether the disputed evidence is such that a reasonable finder of fact could not have resolved the disputed evidence in favor of its finding. In re J.F.C., 96 S.W.3d at 266. "If, in light of the entire record, the disputed evidence that a reasonable factfinder could not have credited in favor of the finding is so significant that a factfinder could not reasonably have formed a firm belief or conviction, then the evidence is factually insufficient." Id.
Under the factual sufficiency standard, we defer to the trier of fact's determinations on the credibility of the witnesses "so long as those determinations are not themselves unreasonable." In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005) (per curiam); see In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006) (per curiam); see also In re C.H., 89 S.W.3d at 26 ("A standard that focuses on whether a reasonable jury could form a firm conviction or belief retains the deference an appellate court must have for the factfinder's role.").
When reviewing the legal sufficiency of the evidence, we "should look at all the evidence in the light most favorable to the finding to determine whether a reasonable trier of fact could have formed a firm belief or conviction that its finding was true." In re J.F.C., 96 S.W.3d at 266. We must assume "the factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could do so." Id. Finally, we "should disregard all evidence that a reasonable factfinder could have disbelieved or found to have been incredible" while considering "undisputed facts that do not support the finding." Id. If we "determine[] that no reasonable factfinder could form a firm belief or conviction that the matter that must be proven is true, then [we] must conclude that the evidence is legally insufficient." Id.
B. Applicable Law
1. § 161.001(b)(1)(D) and (E)
Among the prescribed grounds for termination is that the parent "knowingly placed or knowingly allowed the child to remain in conditions or surroundings which endanger the physical or emotional well-being of the child" or "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." Id. § 161.001(b)(1)(D), (E). The primary difference between Subsection (D) and Subsection (E) is that Subsection (D) focuses on the child's conditions or surroundings while Subsection (E) focuses on the parent's or another's conduct, whether by overt act or omission. In re A.L.H., 624 S.W.3d 47, 55-56 (Tex. App.-El Paso 2021, no pet.). However, the same evidence may support a finding under either subsection, depending on the circumstances. Id. (providing the example of continued domestic violence in the home with the children as grounds under both Subsection (D) and (E)). "[E]ndangerment encompasses 'more than a threat of metaphysical injury or the possible ill effects of a less-than-ideal family environment.'" In re D.L.W.W., 617 S.W.3d 64, 78 (Tex. App.-Houston [1st Dist.] 2020, no pet.) (quoting Tex. Dep't of Hum. Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987)). "'[E]ndanger' means to expose to loss or injury; to jeopardize." In re J.F.-G., 627 S.W.3d 304, 312 (Tex. 2021) (quoting Boyd, 727 S.W.2d at 533).
Under Subsection (D), "we must examine the time before the children's removal to determine whether the environment itself posed a danger to the [children's] physical or emotion well-being." In re L.W., 609 S.W.3d 189, 199-200 (Tex. App.-Texarkana 2020, no pet.) (quoting In re L.C., 145 S.W.3d 790, 795 (Tex. App.-Texarkana 2004, no pet.)). The children's physical or emotional well-being is endangered when the parent fails to remove them from a home in which abusive or violent conduct is occurring. Id. Unsanitary living conditions may also endanger the children's physical or emotion well-being by posing a health risk to the children. In re S.B., 597 S.W.3d 571, 584 (Tex. App.-Amarillo 2020, pet. denied).
Subsection (E) focuses on the parent's conduct rather than the child's conditions; it requires more than a single act or omission, but rather a "voluntary, deliberate, and conscious course of conduct by the parent." In re A.L.H., 624 S.W.3d at 56 (citing In re K.A.C., 594 S.W.3d 364, 372 (Tex. App.-El Paso 2019, no pet.)). "Sexual abuse is conduct that endangers a child's physical or emotional well-being." In re E.A.G., 373 S.W.3d 129, 143 (Tex. App.-San Antonio 2012, pet. denied). "Sexual assault of a child in the home is conduct we may infer will endanger the physical and emotional well-being of other children in the home who may either discover the abuse or be abused themselves." Id. "[N]eglect can be just as dangerous to the well-being of a child as direct physical abuse." In re M.C., 917 S.W.2d 268, 270 (Tex. 1996) (per curiam). "The failure to provide appropriate medical care for a child may constitute endangering conduct under Subsection (E)." In re J.D.G., 570 S.W.3d 839, 852 (Tex. App.-Houston [1st Dist.] 2018, pet. denied). Incarceration alone is not sufficient to support termination under Subsection (E), but "evidence of criminal conduct, convictions, and imprisonment may support a finding of endangerment." In re E.R.W., 528 S.W.3d 251, 264 (Tex. App.-Houston [14th Dist.] 2017, no pet.).
2. Best Interest
In addition to proving the requisite grounds for termination, the Department must prove by clear and convincing evidence that such termination is in the best interest of the child. Tex. Fam. Code Ann. § 161.001(b)(2). When determining whether a child's best interest is served by termination, we may consider the Holley factors:
(1) the child's emotional and physical needs; (2) the emotional and physical danger to the child now and in the future; (3) the parental abilities of the individuals seeking custody; (4) the plans for the child by those individuals and the stability of the home; (5) the plans for the child by the agency seeking custody and the stability of the proposed placement; (6) the parent's acts or omissions that may indicate the existing parent-child relationship is improper; and (7) any excuse for the parent's acts or omissions.In re A.C., 560 S.W.3d 624, 631 (Tex. 2018) (citing Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976)). Not all the prescribed factors must weigh in favor of termination and undisputed evidence of just one factor may be sufficient to support a finding regarding best interest. In re C.H., 89 S.W.3d at 27. Evidence supporting a predicate ground may also support a finding that termination is in the best interest of the child. Id.
C. Analysis
1. § 161.001(b)(1)(D) and (E)
By her third and fourth issues, F.M. argues that the Department presented "no evidence to support a finding" under Subsections (D) and (E), respectively. I disagree. At the time of the removal, F.M. was incarcerated for alleged burglary of a building, subsequently pleading guilty to misdemeanor theft. A.M.M. outcried to her mother that Meche, whom F.M. left the children with, had touched her breasts, butt, and vaginal area. The children, except for J.I.M.P., were living with the Girons when A.M.M. was abused. K.A.M. went to stay with a family friend for fear of also being assaulted by Meche. F.M. did not contest that A.M.M. made the outcry to her; rather, she downplayed it by saying Meche merely "disrespected her." Rangel testified that F.M. explained she intentionally withheld the information from the Department to prevent the children being removed.
There can be no doubt that a child who is experiencing sexual assault is endangered, both physically and emotionally. See In re E.A.G., 373 S.W.3d at 143. Further, such conduct endangers the other children in the home. See id. The evidence shows F.M. was aware of the outcry and intentionally withheld the information to allow the children to remain with the abuser. See In re L.W., 609 S.W.3d at 200. Such evidence is legally and factually sufficient to support a finding that F.M. "knowingly allowed the child[ren] to remain in conditions or surroundings which endanger [their] physical or emotional well-being[, ]" see Tex. Fam. Code Ann. § 161.001(b)(1)(D), and "knowingly placed the child[ren] with persons who engaged in conduct which endangers [their] physical or emotional well-being." See id. § 161.001(b)(1)(E); In re J.F.C., 96 S.W.3d at 266.
The undisputed evidence also showed F.M. failed to secure proper treatment for A.M.M.'s prediabetes or A.M.M.'s and M.A.M.'s psychiatric needs. See In re M.C., 917 S.W.2d at 270; In re J.D.G., 570 S.W.3d at 852. A.M.M.'s untreated psychiatric needs led to her stabbing M.A.M. in the face and back with a pencil, undoubtedly endangering his physical well-being. See Tex. Fam. Code Ann. § 161.001(b)(1)(D). A.M.M.'s physical well-being was further endangered by her untreated prediabetes. See In re J.D.G., 570 S.W.3d at 852. The evidence also showed that F.M. routinely failed to ensure the children attended school regularly, causing some of them to be held back twice, which endangers their emotional well-being. See In re M.C., 917 S.W.2d at 270. F.M. further endangered J.I.M.P. by leaving him under the care of M.A.M. while he was suffering from untreated psychiatric conditions. Finally, the initial investigation by the Department revealed that the children were living in unacceptable conditions, including a dirty home with holes in the walls and ceilings and without electricity, except that which they got from their neighbor. See In re S.B., 597 S.W.3d at 584. In addition, F.M. failed to obtain and maintain psychiatric treatment for herself. See Jordan v. Dossey, 325 S.W.3d 700, 723-24 (Tex. App.-Houston [1st Dist.] 2010, pet. denied) ("A parent's mental instability . . . may contribute to a finding that the parent engaged in a course of conduct that endangered a child's physical or emotional well-being."). Although each act alone may not necessarily be sufficient to support a finding that F.M. "engaged in conduct . . . which endanger[ed] the [children's] physical or emotional well-being[, ]" together they show a "voluntary, deliberate, and conscious course of conduct by the parent" that constitutes neglect. See Tex. Fam. Code. Ann. § 161.001(b)(1)(E); In re A.L.H., 624 S.W.3d at 56. I would conclude that a reasonable factfinder could have formed a firm belief or conviction that F.M. engaged in the conduct described in Subsections (D) and (E). See In re J.F.C., 96 S.W.3d at 266-67. F.M.'s third and fourth issues should be overruled.
"To affirm a termination judgment on appeal, a court need uphold only one termination ground-in addition to upholding a challenged best interest finding-even if the trial court based the termination on more than one ground." In re N.G., 577 S.W.3d 230, 232 (Tex. 2019) (per curiam). The Texas Supreme Court has held that sufficiency of the evidence supporting endangerment under Subsections (D) or (E) must always be reviewed when challenged on appeal, regardless of whether the evidence supporting termination under another statutory ground is sufficient. Id. at 237. Having done so, I need not address F.M.'s fifth issue, which challenges the trial court's finding under Subsection (O). See Tex. R. App. P. 47.1; see also Tex. Fam. Code Ann. § 161.001(b)(1)(O) (providing predicate grounds for termination for a parent who fails to complete the court-ordered service plan when the children have been in the temporary or permanent conservatorship of the Department for at least nine months).
By her sixth issue, F.M. argues that termination was improperly based on evidence that she was economically disadvantaged. See Tex. Fam. Code Ann. § 161.001(c)(2). While it is true that evidence was presented regarding F.M.'s economic status, such as F.M.'s difficulty obtaining and maintaining housing and employment and F.M.'s struggle to provide clean clothing so that the children could attend school, I would conclude that the termination was not based solely on such evidence. Rather, as detailed, F.M. routinely engaged in behavior, either overtly or by omission, which endangered the children's physical health or emotional well-being. Because there was ample evidence that a reasonable factfinder could have found clear and convincing to establish that F.M. endangered the children's physical and emotion well-being under Subsections (D) and (E), F.M.'s argument fails. See In re J.T.G., 121 S.W.3d 117, 127 (Tex. App.-Fort Worth 2003, no pet.) (upholding termination where evidence supported jury's finding of endangerment, despite appellant's assertion that it was based on economic disadvantage). F.M.'s sixth issue should be overruled.
2. Best Interest
By her seventh issue, F.M. contends the evidence was legally and factually insufficient to support a finding that termination was in the children's best interest. In support of her argument, F.M. contends there was limited or no evidence as to (1) the emotional or physical needs of the children, now and in the future; (2) the emotional and physical danger to the children, now and in the future; or (3) programs available to assist the individuals in promoting the children's best interest. Regarding the children's wishes, F.M. notes that the testimony reflected "the children missed their mother and looked forward to returning to her." Regarding the parental abilities of F.M., F.M. merely states that the evidence shows she wished to retain her parental rights and "did not have transportation because she lacked the financial resources." Regarding the stability of the proposed home, F.M. notes that the evidence "showed she was working as a provider, had a place to reside and was working with Tropical Texas to get a home through [the] PATH program." Regarding the acts or omissions by a parent that indicate the existing parent-child relationship is an improper one, F.M. summarizes the evidence, stating it showed she completed all her services and never tested positive for drugs and was never convicted of trespass or burglary to a building. Finally, regarding any acts or omissions committed by the parent, F.M. simply argues that she was economically disadvantaged and lacked support.
The evidence regarding the physical and emotional needs of the children, now and in the future, include A.M.M.'s continued need for treatment for prediabetes as well as M.A.M.'s need for psychiatric treatment. This is also true for their educational delays brought on by excessive absences from school. F.M.'s minimization of these needs and history of failing to address them demonstrate that she is either incapable or unwilling to meet the children's needs. This factor weighs in favor of termination.
I disagree there was no evidence of any emotional or physical danger to the children now or in the future. Evidence of F.M.'s history of endangering the children's physical or emotional well-being permits an inference that she may endanger the children in the future if returned to her care. See In re M.D.M., 579 S.W.3d 744, 765 (Tex. App.- Houston [1st Dist.] 2019, no pet.). This factor weighs in favor of termination.
I also disagree that there was no evidence of programs available to assist F.M. in providing care for the children. The record reveals that F.M. was able to receive services that included mental health treatment, housing, and food assistance. However, F.M. failed to fully avail herself of the available assistance. Although F.M. contends she was seeking housing through the PATH program provided by Tropical Texas, Granado testified that F.M. had not sought the service. Granado further testified that although F.M. completed a psychological exam, the provider recommended psychiatric treatment for F.M., which she never received. However, the record clearly establishes that F.M. took advantage of the food assistance programs. Accordingly, this factor weighs only slightly in favor of termination.
Although the evidence does reveal the children missed F.M., it is not so clear that they "looked forward to returning to her." J.I.M.P.'s therapist testified that he expressed the desire to return to F.M. but was concerned about that desire because J.I.M.P. did not seem to understand who F.M. was to him. Further, the evidence showed that he typically reacted more favorably to his stepmother than F.M. and referred to F.M. as "[A.M.M.]'s mom" and his stepmother as "mom." A.M.M. did express her desire to return to her mother, but in the end, the other children were "okay" with F.M.'s rights being terminated.
A reasonable factfinder could have formed a firm belief or conviction that this factor weighed in favor of termination for M.A.M., K.A.M., J.G.M., J.E.M., and J.I.M.P. while weighing against termination in favor of A.M.M. See In re J.F.C., 96 S.W.3d at 263, 266.
The evidence, as previously detailed, supports a finding that F.M.'s parenting abilities were lacking. Specifically, her home was routinely unsanitary, she failed to provide appropriate medical care for the children, neglected the children's educational needs, and did not take steps to protect her children after A.M.M. made an outcry of sexual abuse. This evidence also goes to the factor considering the parent's acts or omissions that indicate the existing parent-child relationship is improper. Although F.M. was not convicted of criminal trespass or burglary of a building, she pleaded guilty to theft charges stemming from the incident. Additionally, F.M. brought A.M.M. to commit the crime, causing A.M.M. to receive juvenile charges as well. F.M. asserts that Granado testified that she completed all her services, but a review of Granado's testimony reveals that F.M. failed to obtain psychiatric services as recommended, failed to pay child support, failed to attend all her visits with the children, and failed to complete family therapy. These factors weigh in favor of termination.
Although at trial F.M. testified that she was working as a provider, she estimated she had been working there for approximately four to six weeks. She further testified that she had at least four other jobs during the pendency of the case, each lasting about two weeks. Additionally, the evidence shows that prior to removal, F.M. lived in three separate homes with her children and another without them. Although F.M. "had a place to reside[, ]" she did not have stable housing, as demonstrated by the need for housing assistance through PATH. F.M. claims that Castillo testified that if F.M. had stable housing and employment his opinion "would change on whether the children should be returned to their mother[, ]" but such a change has not occurred, and as such, he expressed concern about the prospect of the children returning. F.M.'s instability weighs in favor of termination.
Finally, F.M.'s sole excuse for any acts or omissions is that she is economically disadvantaged. As discussed supra, F.M.'s economic status does not excuse leaving the children in the home with somebody who sexually abused one of the children, failing to obtain proper medical care for the children, having an unsanitary home environment, or neglecting the children's educational needs to the significant detriment of the children. As such, this factor weighs in favor of termination.
Having reviewed the record, I would conclude that a reasonable factfinder could have formed a firm belief or conviction that termination of F.M.'s parental rights was in the children's best interest. See Tex. Fam. Code Ann. § 161.001(b)(2); In re A.C., 560 S.W.3d at 631; In re J.F.C., 96 S.W.3d at 266. F.M.'s seventh issue should be overruled.
IV. Conclusion
Accordingly, I would affirm the trial court's judgment.