                                                                          ACCEPTED
                                                                      01-17-00988-CV
                                                           FIRST COURT OF APPEALS
                                                                   HOUSTON, TEXAS
                                                                    5/25/2018 3:02 PM
                                                                CHRISTOPHER PRINE
                                                                               CLERK


                   NO. 01-17-00988-CV

                                                 FILED IN
                                          1st COURT OF APPEALS
              IN THE COURT OF APPEALS         HOUSTON, TEXAS
           FOR THE FIRST JUDICIAL DISTRICT5/25/2018 3:02:59 PM
                OF TEXAS AT HOUSTON       CHRISTOPHER A. PRINE
                                                  Clerk



                   IN THE INTEREST OF
               J.I.T. AND J.A.T., CHILDREN

                       P.M.,
                    APPELLANT
                        VS.
TEXAS DEPARTMENT OF FAMILY AND PROTECTIVE SERVICES,
                     APPELLEE

             ON APPEAL FROM THE 311TH
      DISTRICT COURT OF HARRIS COUNTY, TEXAS

           TRIAL COURT CAUSE NO. 2011-53185


           REPLY BRIEF FOR APPELLANT P.M.


                               CONNOLLY & SHIREMAN, LLP

                               William B. Connolly
                               State Bar No. 04702400
                               Email: wbc@conlawfirm.com
                               2211 Norfolk, Suite 737
                               Houston, Texas 77098
                               Telephone (713) 520-5757
                               Facsimile (713) 520-6644

                               ATTORNEY FOR P.M.
                                        TABLE OF CONTENTS

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

REPLY POINTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

RESPONSE TO APPELLEE’S STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . 2

ARGUMENT AND AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

              REPLY POINT ONE (RESTATED): DFPS FAILED TO INTRODUCE
              LEGALLY AND FACTUALLY SUFFICIENT EVIDENCE TO
              SUPPORT THE PROPOSITION THAT THERE WERE GROUNDS
              FOR TERMINATION OF PARENTAL RIGHTS.. . . . . . . . . . . . . . . . . . . . 6

              REPLY POINT TWO (RESTATED): DFPS FAILED TO INTRODUCE
              LEGALLY AND FACTUALLY SUFFICIENT EVIDENCE TO
              SUPPORT THE PROPOSITION THAT TERMINATION OF PARENTAL
              RIGHTS WAS IN THE CHILD’S BEST INTEREST . . . . . . . . . . . . . . . . 14

              REPLY POINT THREE (RESTATED): DFPS FAILED TO INTRODUCE
              LEGALLY AND FACTUALLY SUFFICIENT EVIDENCE TO
              SUPPORT THE PROPOSITION THAT DFPS SHOULD HAVE NAMED
              AS MANAGING CONSERVATOR AND SUCH AN AWARD WAS
              AN ABUSE OF DISCRETION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

CONCLUSION AND PRAYER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

CERTIFICATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20




Reply Brief                                              ii
                                     TABLE OF AUTHORITIES

                                                       Cases

Casualty Underwriters v. Rhone, 134 Tex. 50, 123 S.W.2d 97 (1939). . . . . . . . 2, 9

Edwards v. Dickson, 2S.W. 718 (Tex. 1886). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Gulbenkian v. Penn, 252 S.W.2d 929 (Tex.1952) . . . . . . . . . . . . . . . . . . . . . . . . . 12

In re C.H., 89 S.W.3d 17 (Tex. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

In re E.N.C., 384 S.W.3d 796 (Tex. 2012). . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 7, 9

In re J.F.C., 96 S.W.3d 256 (Tex. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

In the Interest of G.M., 596 S.W.2d 846 (Tex. 1980) . . . . . . . . . . . . . . . . . . . 13, 18

                              Statutes and Constitutional Provisions

Tex. Const. Art 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Tex. Const. Art 19 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Tex. Fam. Code §153.131 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

U.S. Const. Amend 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

U.S. Const. Amend 14 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13




Reply Brief                                               iii
                                      REPLY POINTS

              REPLY POINT ONE: DFPS FAILED TO INTRODUCE LEGALLY AND
              FACTUALLY SUFFICIENT EVIDENCE TO SUPPORT THE
              PROPOSITION THAT THERE WERE GROUNDS FOR TERMINATION OF
              PARENTAL RIGHTS

              REPLY POINT TWO: DFPS FAILED TO INTRODUCE LEGALLY AND
              FACTUALLY SUFFICIENT EVIDENCE TO SUPPORT THE
              PROPOSITION THAT TERMINATION OF PARENTAL RIGHTS WAS IN
              THE CHILD’S BEST INTEREST

              REPLY POINT THREE: DFPS FAILED TO INTRODUCE LEGALLY
              AND FACTUALLY SUFFICIENT EVIDENCE TO SUPPORT THE
              PROPOSITION THAT DFPS SHOULD HAVE NAMED AS MANAGING
              CONSERVATOR AND SUCH AN AWARD WAS AN ABUSE OF
              DISCRETION.

                               SUMMARY OF ARGUMENT

              In cases of child abuse and neglect, parents are asked to do services and

address the reasons why the children came to the attention of the Department.

Appellant had been charged with injury to a child. Everyone knew exactly what

happened to the child. DFPS designed a service plan based upon what happened and

the assumption that Appellant injured her son. It did not matter to DFPS whether

Appellant admitted criminal conduct in order to design and implement a Family Plan

of Service, parenting classes and therapy that would ensure that the children would

be safe with Appellant if she completed the services that were necessary for her to

obtain return of the children. Appellant accomplished everything requested of her,




Reply Brief                                   1
DFPS represented to the Court that she had done so, the Court found that she had

done so and no one requested that she do anything more or anything different. Once

her criminal case was resolved, Appellant took full responsibility for the injury and

fully explained what had occurred. DFPS and the Court should be estopped from

imposing additional, unwritten, unspoken requirements as a condition for return of

the children. The evidence being legally and factually insufficient to support the

orders of the Court, the Decree should be reversed and rendered on both termination

and conservatorship and Appellant’s children should be returned to her.

                 RESPONSE TO APPELLEE’S STATEMENT OF FACTS

              Appellee has attempted to recast the testimony and evidence and ascribe

allegations or opinions made in the underlying case or in a criminal proceeding as if

they were somehow established facts in this proceeding. (Appellee Brief 2, 3, 4, 14,

27, 42, 48, and 53) These conclusions are speculation and conjecture and not

evidence of abuse or neglect as to either of these children. Evidence to support

termination must be based upon something other than surmise or speculation of harm.

In re E.N.C., 384 S.W.3d 796, 804 (Tex. 2012). Conclusory statements, without

factual support, are insufficient to support a judgment. Casualty Underwriters v.

Rhone, 134 Tex. 50, 123 S.W.2d 97, 99 (1939). The mere fact that a referral was

made to DFPS or that an allegation was made in a criminal case does not mean that




Reply Brief                                   2
these allegations become established facts or evidence in this case. What some law

enforcement officer asserted in a charging instrument establishes nothing other than

allegation. Similarly, assertions of domestic violence against Appellant as a child or

as an adult does not establish facts relevant to claims of abuse or neglect of these

children. DFPS asserts investigations of reports of possible abuse or neglect, which

DFPS, itself ruled out for abuse or neglect, is evidence of abuse or neglect. Moreover,

statements of concerns by the Department in the Family Service Plan are assumed to

be fact when they remain, simply that, statements of concern. The evidence clearly

established, without equivocation, from the only eye witnesses and investigators that

the children had not been previously subjected to abuse or neglect or other

inappropriate discipline. (Appellee Brief 27).

              On the other hand, DFPS does concede some very salient facts which do not

support the judgment:

              1.    Penny had been a victim of domestic violence (Appellee Brief at 2 and
                    19-20);

              2.    DFPS “ruled out” other referrals for suspected abuse or neglect
                    (Appellee Brief 4);

              3.    Appellant’s historical discipline would be to give the children a chance,
                    to not hit or spank the children but that sometimes he would get a
                    spanking on his bottom and be told by Appellant to not do that again
                    (Appellee Brief at 7);




Reply Brief                                      3
              4.    That after Jimmy was injured, Appellant apologized to the child, said
                    she was sorry and that she would never do that to him again (Appellee
                    Brief at 8);

              5.    The Appellant warned the children about the dangers of playing with
                    fire (Appellee Brief at 10);

              6.    That Appellant treated the burns at home, followed up with treatment at
                    the Clinic and later with a burn specialist at the Hospital and was told
                    that the burns were healing well and to continue treatment and only
                    return if the child had fever or pain (Appellee Brief at 10-11; 16);

              7.    That Appellant was permitted by Court Order to visit her children but
                    was deprived of those visits when DFPS repeatedly told Appellant and
                    the trial Court that Appellant was prohibited from seeing her children by
                    a Court Order in the criminal case even though there was no such Court
                    Order (Appellee Brief 13, 23-24, 34, 43 and 51);

              8.    Penny completed her parenting class which addressed protective
                    parenting (Appellee Brief at 20-21);

              9.    Appellant provided proof of her lease and employment (Appellee Brief
                    at 20);

              10.   It was reported to the Court before that Appellant had completed her
                    services and the main barrier to not obtaining return of the children was
                    her criminal case (Appellee Brief at 22);

              11.   Appellant was granted a pre-trial diversion in her criminal case on July
                    12, 2017 without having to admit to injury (Appellee Brief at 21);

              12.   The children expressed a desire to return to their parents and missed
                    their mother (Appellee Brief at 22-23);

              13.   Appellant did not give any form of statement to law enforcement
                    (Appellee Brief at 25);




Reply Brief                                      4
              14.   Appellant did not have a history of abusing her children (Appellee Brief
                    at 27);

              15.   Appellant had been told not to discuss the details of the incident further
                    by her criminal defense attorney (Appellee Brief at 29);

              16.   Appellant took the child to the clinic to ensure that the wounds healed
                    properly (Appellee Brief at 29);

              17.   Appellant completed the requirements of her Family Service Plan
                    (Appellee Brief at 30);

              18.   Appellant’s therapist recommended that she be reunified with her
                    children (Appellee Brief 30);

              19.   The children expressed desire to return to their mother (Appellee Brief
                    at 34);

              20.   The nurse at the East End Clinic never asked that the child’s injuries be
                    reported to DFPS by employees and nothing in the clinic records reflect
                    a request of any kind for a referral of the case to DFPS for child abuse
                    or neglect (Appellee Brief at 34-35);

              21.   Appellant had maintained stable employment for the 18 months prior to
                    trial (Appellee Brief at 39);

              22.   Appellant spent time with the children in a domestic violence shelter
                    after the boys’ father damaged her home (Appellee Brief at 40);

              23.   The child blew out the flames to the stove burners, gas was coming out,
                    Appellant panicked, she did not intentionally burn the child, she was
                    intending to just give him a spanking and thought of allowing the child
                    to feel the heat but never intended to burn the child (Appellee Brief at
                    40-41);

              24.   Appellant regretted her actions describing it as the “the worst thing I’ve
                    done in my life” and she apologized to the child “for what I had done to
                    him” (Appellee Brief at 41);



Reply Brief                                      5
              25.   DFPS reported that Appellant had completed all of her services.
                    Appellant was never told that she had to tell the true story behind the
                    child’s injuries in order to complete her services and Roy never told her
                    caseworker that Appellant had not properly completed her services
                    (Appellee Brief at 56); and

              26.   The DFPS worker who had the case for a majority of the time testified
                    that the children missed their mother, she completed her services and
                    that she would not be a future danger to the children (Appellee Brief at
                    56-57).

                             ARGUMENT AND AUTHORITIES

REPLY POINT ONE (RESTATED): DFPS FAILED TO INTRODUCE
LEGALLY AND FACTUALLY SUFFICIENT EVIDENCE TO SUPPORT THE
PROPOSITION THAT THERE WERE GROUNDS FOR TERMINATION OF
PARENTAL RIGHTS.

              DFPS, in its reply, without citation to Appellant’s Brief suggests an argument

by Appellant that was never made and then attempts to refute it. (Appellee Brief at

62). Appellee claims that Appellant denied burning the child at trial. She did not deny

it. To the contrary, she clearly articulated the facts, her intended discipline that went

wrong, her accidental burn of the child and her home, clinic and hospital treatment

of the child. (Appellee Brief at 33-34). Appellee cites to the record claiming

evidence in an Affidavit but no affidavit can be found at the place cited. (Appellee

Brief at 62). The testimony of Appellant is virtually identical to the original reports,

to the findings and is consistent with what the police investigator (Bookman), CPS

investigator (LaFleur), her supervisor, the 4 C’s clinician (Hand), the conservatorship


Reply Brief                                      6
worker (Mendez) and her supervisor (Dominguez) used to create the Family Service

Plan. All of this was consistent with the therapy provided to Appellant. While there

can be a disagreement as to whether Appellant actually intended to burn the child or

whether the burn was an accident, the statements of the child and the testimony of

Appellant are, in fact, the only persons who knew what happened and both gave

consistent versions of what happened. It is true that Appellant was not criminally

convicted. She was placed on a pre-trial diversion. Appellant described in detail how

she did not intent to injure the child but that she burned the child’s hand.

(Appellant’s Brief 13).

              There was no proof of a course of conduct that endangered the children.

Termination under this section requires a continuing, voluntary course of action

rather than a single act or omission by the parent. In re E.N.C., 384 S.W.3d 796, 803

(Tex. 2012). There was one isolated incident followed by medical care administered

first in the home, then at a clinic and then at a hospital with a burn specialist. While

the nurse did speculate that the initial infection could have been caused by

Appellant’s delay in coming to the clinic, this was not established as the actual cause

of the infection. Nevertheless, Appellant treated the injury, took the child to the

clinic, filled the prescription at the pharmacy and followed up with the Children’s

Memorial Hermann Hospital burn specialist. This latter doctor found that the burns




Reply Brief                                   7
were healing well, no additional treatment was necessary and refused to give DFPS

a statement supporting a claim of abuse or neglect.

              Appellee also speculates about other abuse (Appellee Brief at 64) even though

DFPS itself ruled out any claims of abuse. Moreover, Bookman testified that

Appellant had no criminal history and no history of abuse and there were no instances

that the children had been abused before. (RR6:165). Edwards testified that DFPS

had no other claims for possible harm to the children. (RR10:95). Conjecture and

speculation do not support a judgment. Subsequent evidence of a prior referral (that

was ruled out as such by DFPS) that a child has a bump, bruise or scratch is not

evidence of abuse. (RR12:302). Moreover, DFPS speculates that sexual abuse

occurred based upon a single statement in the entire record that a child reported “that

he was touched by a male member in his parents home”. (RR12:302). There was no

testimony of any sexual abuse, no therapy noted to be related to any prior sexual

abuse and no proof of any sexual abuse. There is no other testimony or evidence to

explain what this statement meant, what it referred to, what kind of touching it was,

where it occurred, when it occurred or who it was that touched him. There was no

follow up and no context other than it had to be someone other than Appellant. There

is no indication as to whether Appellant had any contemporaneous or subsequent

knowledge of the statement or what it meant. The statement itself provides no sexual




Reply Brief                                     8
content or any reference as to whether the contact was in any way sexual at all.

Conjecture and speculation cannot and does not support a judgment. Evidence to

support termination must be based upon something other than surmise or speculation

of harm. In re E.N.C., 384 S.W.3d 796, 804 (Tex. 2012). Conclusory statements,

without factual support, are insufficient to support a judgment. Casualty

Underwriters v. Rhone, 134 Tex. 50, 123 S.W.2d 97, 99 (1939). It is no evidence

at all. There is absolutely no evidence of a dangerous environment under (D) and

judgment should be rendered in favor of Appellant. Likewise there is no evidence of

a course of conduct under (E) sufficient to warrant termination and judgment should

be rendered in favor of Appellant.

              With respect to (O), Appellee confuses the record by asserting that Appellant

was dishonest with her therapist. (Appellee Brief at 66). However, there is a

difference between Hand, the 4 C’s clinician whom she saw one time at the beginning

of the case and Leyzak whom she saw throughout the duration of her Family Service

Plan. Appellee’s record references are to Hand and not Leyzak. The whole purpose

of the Family Service Plan and the services designed in this case was to provide

Appellant with different parenting skills, protective intervention techniques,

alternative anger management skills and coping skills. (RR 9: 124-125). This was all

done successfully and the therapist and DFPS caseworker recommended that the




Reply Brief                                     9
children be returned home. (RR 11: 74-75; 77). No one was misled in any way by

Appellant’s initial statements to Hand. They designed a plan to address each and

every concern they had over a parent intentionally burning a child. (RR11:48-49, 71,

72, 85; RR12:Pet. Ex. 5). They knew that Appellant had limitations on her ability

to speak out in detail due to her pending criminal case. At the first opportunity she

had after the criminal case was concluded, she told the story of what happened. This

was at the trial. Her services were fully completed prior to the conclusion of her

criminal case. The Judge found that she had completed her services in May of 2017.

Her caseworker disappeared and did not inform her of the existence of the new

worker. There were no Permanency Hearings or Permanency Conferences between

May and the trial when she told the Court what had happened. (RR 10: 31).

              Appellee ignores the testimony of Hand, LaFleur, Mendez and Dominguez all

of whom knew the ultimate facts of the case and all of whom designed a Family

Service Plan with the assumption that Appellant burned the child’s hand with a flat

iron. (RR11:48-49, 71, 72, 85; RR12:Pet. Ex. 5). DFPS requested Leyzak to provide

therapy in conjunction with the Family Service Plan that they created using the

assumption that Appellant intentionally burned the child. Appellant completed all of

these services.

              Instead, the Department relies upon the speculative opinion and conjecture of

Edwards that Appellant treated the services “like a checklist” even though she never

Reply Brief                                     10
met Appellant, never discussed the case or the facts with persons intimately involved

and was not familiar with the file. Edwards admitted that her opinions in the case

were not based upon the case file or having complete knowledge of the case or

IMPACT. (RR 10:31). This conjecture and speculation is not evidence. There is

nothing in the Family Service Plan, nothing in the Court Reports and no evidence of

any disclosure to Appellant that she was required to incriminate herself of a criminal

act while she was pending prosecution for injury to her child. In fact, Johnson

testified she would never have been required to admit criminal conduct and

incriminate herself as a part of a family service plan. (RR6:263-265). However, it

was being secretly required by Edwards and Roy. (RR7:57-60; RR 10:137). DFPS

never told Appellant that this was a specific requirement of her services.(RR 9:143;

RR11:73).

              The uncontradicted testimony was that the therapist worked out arrangement

to therapeutically deal with the intentional act which resulted in the accidental injury

without requiring an admission. This was well known to Mendez, Dominguez,

Leyzak and everyone else that knew the details of the case. It was not well known to

Roy and Johnson because they never even read the case file. (RR6:261-262; RR7:14-

18;RR 11 186-187;189-190). Every other person in case signed off on this process

approved it and represented to the Court that it was sufficient. No one told her




Reply Brief                                   11
otherwise.

              This is a classic case where the principles of estoppel should apply. The

Department created a Family Service Plan under the assumption that Appellant

intentionally burned her child, Appellant completed those services, DFPS

caseworkers and supervisors provided sworn testimony and reports to the Court that

the services were completed and the Court made a finding that the services were

completed. No additional services were requested. None of the facts had changed

relative to how the child was injured. DFPS made representations that this is what you

have to do and Appellant relied upon those representations to her detriment.

Dominguez testified that when a parent completes the service on the Family Service

Plan they should have their children returned to them. Every case worker presented

to both Appellant and the Court that Appellant had done everything necessary under

the Family Service Plan. DFPS and the Court should be estopped from imposing

unwritten and unspoken requirements in order to claim that Appellant was

unsuccessful in her compliance with the plan. Clearly there was a false representation

or concealment of material fact that was made with knowledge on the part of DFPS

but held in secret from Appellant, made with the intention that it be relied upon,

which was clearly relied upon by Appellant to her detriment. This Court should

soundly reject this position. Edwards v. Dickson, 2S.W. 718,721 (Tex. 1886);




Reply Brief                                   12
Gulbenkian v. Penn, 252 S.W.2d 929 (Tex.1952).

              This Court should disregard all secret, undisclosed requirements that DFPS

employees were adding to the Family Service Plan. This Court should hold that a

Court adopting a Family Service Plan can only enforce the actual Family Service Plan

and should be estopped from super imposing additional unspecified requirements that

were never disclosed to the parent. This is particularly evident in light of the

testimony that DFPS would never require a parent to incriminate themselves in a

Family service Plan.

              The Department’s argument fails because it is based entirely upon secrecy,

speculation and conjecture. Moreover, it was entirely contradicted by the very DFPS

employees and contractors that created and monitored and provided service to

Appellant.

              Affirming this decision would allow DFPS to operate with no standards, no

transparency and secret requirements that would never have to be articulated to a

parent. It would sanction the ability of the Department to arbitrarily change direction

and goals, without accountability. There was no change in the facts or services. DFPS

asserts that the mere change of employees within the Department is sufficient grounds

for termination of the parent-child relationship. There is nothing in the statutes,

constitutions or case law that permit this secrecy in order to achieve the goal of

terminating a constitutionally protected parent-child relationship. U.S. Const. Amend


Reply Brief                                   13
5, 14; Tex. Const. Art 1, 19; In the Interest of G.M., 596 S.W.2d 846 (Tex. 1980).

REPLY POINT TWO (RESTATED): DFPS FAILED TO INTRODUCE
LEGALLY AND FACTUALLY SUFFICIENT EVIDENCE TO SUPPORT THE
PROPOSITION THAT TERMINATION OF PARENTAL RIGHTS WAS IN
THE CHILD’S BEST INTEREST

              Appellee states its best interest analysis with a claim that this Court held that

the young age of a child renders the desires of the child neutral. (Appellee Brief at

69). The case cited by DFPS to support this argument is an appeal of a Jury Verdict

by a drug abusing parent that never discusses the age and desires of the child in its

best interest analysis. The children in this case were 10 and 9 years old at the time

of trial and the records reflect that they were more than capable of expressing their

desires. Those desires were being adhered to by the therapist who was providing

reunification therapy. Unfortunately, it was ignored by Edwards, Johnson and Roy.

The cases cited by the Department are clearly distinguishable. (Appellee Brief at 69-

70). Those cases involved a drug abusing parent who used during pregnancy, after the

case started and after drug treatment. It also involved evidence of incarceration for

probation violations after the case started. In the other case, there was a parent with

mental illness that refused to comply with her treatment requirements, self-medicated

with illicit drugs, violated her safety placement agreements, was homeless and had

a prior termination of parental rights. In this case we have no drug abuse, a parent that

previously protected her children from the conduct of another parent and a parent


Reply Brief                                       14
who demonstrated that she effected positive changes through the completion of her

services to the point she had recommendation of return of the children from the

therapist and all of the people who designed her Family Service Plan.

              The remainder of the Department’s best interest analysis is devoid of citations

to the record and any analysis of the facts or application of the facts to the law. There

is no evidence that Appellant continued to exercise poor judgment or that she did not

resolve her therapeutic needs. Appellant did everything she was requested to do and

her therapist recommended that the children be returned to her. DFPS relies upon

conjecture and speculation to arrive at the argument that Appellant did not do so. It

came from witnesses who opined without reference to any of the case records or the

people with first hand intimate knowledge of the case; who did not know Appellant

and who decided that the case warranted termination irrespective of everyone’s prior

assertions to the Court.

              Irrespective of the conjecture of Appellee’s counsel, Appellant fully

acknowledged what she did at the first opportunity given to her after the resolution

of her criminal case. In doing so, she fully addressed the behaviors and incident in the

manner that everyone at DFPS said was successful, sufficient and satisfactory. It was

not until Appellant appeared at the Final Trial did Appellant hear that DFPS was

asserting that she was unsuccessful in her services. None of the cases cited by

Appellee in support of its best interest argument actually support termination under


Reply Brief                                      15
the facts of this case.

              Moreover, there was no evidence at all that DFPS could provide a prompt,

permanent or safe home for the children. There was nothing prompt about the

agency’s efforts towards permanency. After over eighteen (18) months the behavior

of the children deteriorated in foster care and the Department was proposing to move

the children to a home relative to which there was not a single shred of evidence

presented. There was no evidence as to whether it was permanent or safe. The trial

Court knew absolutely nothing at all about the home except no one at DFPS had ever

met the proposed foster family and they were selected because it was the only family

that responded to the broadcast for placement.

              In considering some additional factors in determining best interest, Appellant

would show the following:

                    1.     The children were of sufficient age and were capable of
                           expressing their desires and speaking up for themselves;

                    2.     Under DFPS the children were placed in multiple out of home
                           placements where their condition deteriorated and DFPS was
                           seeking to move them again to a family that no one at DFPS had
                           ever met;

                    3.     This was a serious burn in an isolated incident that had fully
                           healed;

                    4.     There were no incidences of reported harm after the initial report
                           and intervention. In fact, there were multiple visits, without
                           incident, prior to the breakdown of the initial kinship placement;



Reply Brief                                     16
                    5.     The children were not fearful of returning home and repeatedly
                           expressed a desire to return home to their mother and family;

                    6.     The results of all therapeutic interventions supported a return of
                           the children;

                    7.     While there was some history of prior abusive or assaultive
                           conduct, the person involved lived out of state at the time of trial
                           and had no access to the children’s home;

                    8.     There was no history of substance abuse by anyone who lived in
                           or had access to the home;

                    9.     The perpetrator of the harm was identified at the outset of the
                           case;

                    10.    Appellant sought out, accepted and completed all counseling
                           services, cooperated with DFPS and the therapist chosen by DFPS
                           under the close supervisor of her caseworker;

                    11.    Appellant demonstrated to the DFPS caseworker and the therapist
                           provided by DFPS that she had effected positive environmental
                           and personal changes within a reasonable period of time;

                    12.    Appellant demonstrated adequate parenting skills through the
                           only means DFPS provided her during the course of the case, i.e.
                           parenting classes and therapy; and

                    13.    There was an adequate extended family support system as
                           Appellant, her parents and relatives all lived in different houses
                           on the same property. (RR9: 73-74)

              The record reflects that Appellant satisfied all of the criteria of best interest

considerations under Holley v. Adams and 100% of the additional statutory factors

outlined in § 263.307 of the Texas Family Code. In light of this evidence, no

reasonable fact finder could reasonably form a firm belief or conviction about the


Reply Brief                                       17
truth of the state’s allegations relative to termination being in the best interest of the

children. In the Interest of G.M., 596 S.W.2d 846, 847 (Tex. 1980); In re J.F.C.,

96 S.W.3d 256, 265 (Tex. 2002); In re C.H., 89 S.W.3d 17, 25 (Tex. 2002).

              Accordingly, the Decree for Termination should be set aside and the case

should be reversed and rendered on the issue of termination of the parent-child

relationship and the children should be returned to Appellant. In the alternative, the

case should be reversed and remanded for a new trial.

REPLY POINT THREE (RESTATED): DFPS FAILED TO INTRODUCE
LEGALLY AND FACTUALLY SUFFICIENT EVIDENCE TO SUPPORT THE
PROPOSITION THAT DFPS SHOULD HAVE NAMED AS MANAGING
CONSERVATOR AND SUCH AN AWARD WAS AN ABUSE OF
DISCRETION.

              A decision on conservatorship is an abuse of discretion where it is arbitrary and

unreasonable, such is the case here. Despite Appellee’s singular assertion on one (1)

page of its brief made without support of any analysis or citation to the record,

(Appellee Brief at 73-74) there is no evidence, pattern or history of child abuse or

neglect in this case. There was no evidence that the appointment of Penny as

Managing Conservator would significantly impair the physical health or emotional

development of the children. Tex. Fam. Code §153.131. A historically protective and

appropriate mother panicked after her child engaged in an act that endangered the

lives of everyone in the family, in the household and on the adjoining property. She




Reply Brief                                       18
attempted a traditional and not inappropriate discipline of letting a child know that

heat can burn, but it went horribly wrong and she ended up burning her child. She

apologized, expressed remorse and despite her greatest fear took her child in for

medical care. She followed up on the medical care and was on track for reunification

under FBSS until the placement broke down. The facts never changed. Everyone

knew what they were. DFPS designed a plan of service with the specific

understanding that Appellant did not have to admit to criminal conduct in order to

successfully complete the plan. It was arbitrary and an abuse of discretion to

terminate her rights and remove her from conservatorship based upon some secret

unspoken conditions thought up by a supervisor who decided that her rights should

be terminated long before the trial commenced, without reference to any of the

information from others or the file.

              Accordingly, the portion of the Decree awarding DFPS Managing

Conservatorship of the children should be reversed, this Court should enter the

judgment that the trial court should have entered by appointing Appellant as the Sole

Managing Conservator of the children.

                               CONCLUSION AND PRAYER

              Appellant prays that this Court find that DFPS failed to meet its burden of

proof on termination of parental rights and managing conservatorship, enter the

Judgment that the trial Court should have by reversing and rendering and reuniting


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Appellant with her children. In the alternative, Appellant request that the Court

reverse and remand for a new trial.

                                               Respectfully submitted,

                                               CONNOLLY & SHIREMAN, LLP

                                               /s/William B. Connolly
                                               William B. Connolly
                                               State Bar No. 04702400
                                               Email: wbc@conlawfirm.com
                                               2211 Norfolk, Suite 737
                                               Houston, Texas 77098
                                               Telephone (713) 520-5757
                                               Facsimile (713) 520-6644

                                               ATTORNEY FOR APPELLANT


                                        CERTIFICATION

              I, William B. Connolly certify that this First Amended Appellant’s Brief was

prepared with WordPerfect 17, and that, according to that program’s word-count

function, the sections covered by Tex. R. App. P. 9.4(i)(1) contains 4,580 words.


                                               /s/William B. Connolly
                                               William B. Connolly

                                 CERTIFICATE OF SERVICE

              I certify that a true and correct copy of the foregoing Reply Brief for Appellant

P.M. was forwarded to:

              Michael R. Hull, Attorney for Department of Family and Protective Services,


Reply Brief                                       20
              via email: michael.hull@cao.hctx.net;

              Valeria Lee Brock, Attorney for Appellee R. T., via email at
              valeria.lee.brock@gmail.com; and

              JB Lee Bobbitt, Attorney Ad Litem for the Children J. I. T. and J. A. T., via
              email at jb@bobbittlegal.com.

on May 25, 2018.

                                              /s/William B. Connolly
                                              William B. Connolly




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