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In The

Court of Appeals

Seventh District of Texas at Amarillo

No. 07-19-00147-CV

 

Kevin Robert Bell and Traci Leigh Dillard,

Father and Mother, Appellants

Vs.

TEXAS DEPARTMENT OF FAMILY AND PROTECTIVE SERVICES, Appellee

On Appeal from the County Court at Law No. 3

Lubbock County, Texas

Trial Court No. 2012501599

FIRST AMENDED APPELLANTS’ BRIEF

Traci Leigh Dillard                

C/O PO Box 3191                     

Lubbock, Texas 79452

(806) 777-1048

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Kevin Robert Bell

C/O PO Box 3191

Lubbock, Texas 79452

(806) 466-7702

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ORAL ARGUMENT NOT REQUESTED

 

IDENTITY OF PARTIES AND COUNSEL

APPELLANTS

Traci Leigh Dillard,

Mother

C/O PO Box 3191

Lubbock, Texas 79452

(806) 777-1048

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Kevin Robert Bell,

Father

C/O PO Box 3191

Lubbock, Texas 79452

(806) 466-7702

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APPELLEE

 

TEXAS DEPARTMENT OF FAMILY AND PROTECTIVE SERVICES, aka DEPARTMENT OF FAMILY AND PROTECTIVE SERVICES, CPS, “Department,” TDFPS

Represented by:

Jerry L. Reyes,

Appellate Attorney

2401 Ridgepoint Dr., Bldg. H-2

Austin, Texas 78754

Phone: (512) 929-66816

Fax: (512) 339-5876

Email: This email address is being protected from spambots. You need JavaScript enabled to view it.

State Bar No. 24057620

Kacee Harvey,

Trial Attorney

Civil District Attorney Lubbock County, Texas

PO Box 10536

Lubbock, Texas 79408

Phone: (806) 775-1174

Fax: (806) 775-7952

E-mail: This email address is being protected from spambots. You need JavaScript enabled to view it.

State Bar No. 24058475

 

INTERVENORS

Jennifer Garriga and Amanda Garriga

Represented by:

Lindsey Murray

1001 Main Street Suite 806

Lubbock, Texas 79401

Phone: (806) 712-3333

Fax: (806) 853-9043

Email: This email address is being protected from spambots. You need JavaScript enabled to view it.

State Bar No.:24066252

TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL................................................. i

TABLE OF CONTENTS.............................................................................. iii

INDEX OF AUTHORITIES.......................................................................... v

Cases:...................................................................................................... v

CPS Policies:........................................................................................ vii

Federal Statutes and Regulations:.................................................. viii

Rules:.................................................................................................. viii

Texas State Statutes:........................................................................ viii

STATEMENT OF THE CASE..................................................................... ix

STATEMENT REGARDING ORAL ARGUMENT.................................. xii

ISSUES PRESENTED............................................................................... xiii

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

A. FAMILY HISTORY................................................................................... 1

B. FATHER’S BACKGROUND AND STATUS WHEN CPS BECAME INVOLVED.................................................................................................... 2

C. MOTHER’S BACKGROUND AND STATUS WHEN CPS BECAME INVOLVED.................................................................................................... 3

D. EVENTS LEADING UP TO CPS INVOLVEMENT............................. 5

E. CALL TO LAW ENFORCEMENT.......................................................... 6

F. LAW ENFORCEMENT’S CALL TO CPS.............................................. 8

G. DEPARTMENT’S FIRST CONTACT WITH L.M.B AND TRACI...... 8

H. DEPARTMENT’S FIRST CONTACT WITH FATHER........................ 9

I. APRIL 5, 2018 ORIGINAL PETITION AND EMERGENCY HEARING        11

J. APRIL 10, 2018 ADVERSARY HEARING........................................... 12

K. APRIL 17, 2018 RESCHEDULED ADVERSARY HEARING........... 13

L. APRIL 17, 2018 KINSHIP PLACEMENT WITHOUT COURT ORDER        14

M. MAY 8, 2018 STATUS HEARING....................................................... 15

N. MAY 2018 CPS CONTACT WITH FATHER AND FAMILY SERVICE PLAN....................................................................................................................... 16

O. JUNE 2018 CPS CONTACT WITH MOTHER AND FATHER........ 17

P. JULY 2018 KINSHIP CAREGIVER HOME ASSESSMENT............ 18

Q. TRANSFER OF SUIT TO LUBBOCK COUNTY............................... 19

R. SEPTEMBER 19, 2018 PERMANENCY HEARING.......................... 20

S. SEPTEMBER 20, 2018 PERMANENCY PLANNING CONFERENCE AND REVISED FAMILY SERVICE PLAN....................................................... 21

T. OCTOBER 2018 PETITION FOR INTERVENTION......................... 23

U. DECEMBER 2018 ATTORNEY GENERAL NOTICE AND ASSOCIATE JUDGE ACTING AS ATTORNEY............................................................ 23

V. JANUARY 2019 PERMANENCY HEARING..................................... 24

W. FEBRUARY 2019 DE NOVO HEARING............................................ 25

X. MARCH 2019 PRE-TRIAL AND UNTIMELY DISCOVERY............ 26

Y. APRIL 2019 PRE-TRIAL AND TRIAL................................................. 29

Z. APRIL AND MAY 2019 POST-TRIAL MOTIONS.............................. 31

SUMMARY OF THE ARGUMENT........................................................... 34

ARGUMENT................................................................................................ 35

PRAYER....................................................................................................... 55

CERTIFICATE OF SERVICE.................................................................... 56

CERTIFICATE OF COMPLIANCE.......................................................... 58

APPENDIX................................................................................................... 59

INDEX OF AUTHORITIES

Cases:

Blackwell v. Humble,

241 S.W.3d 707 (Tex. App. – Austin 2007, no pet. ……………………52

Clarendon Nat'l Ins. Co. v. Thompson,

199 S.W.3d 482, 494 (Tex.App.-Houston [1 Dist.] 2006, no pet.)….48

Dawson v. Duncan, 

144 Ill.App.3d 532, 98 Ill. Dec. 778, 494 N.E.2d 900, 905 (1986) ….40

Doe v. Heck

327 F.3d 492, 518 (7th Cir. 2003) ………………………………………35

Downer v. Aquamarine Operators, Inc.,

701 S.W.2d 238, 241-42 (Tex.1985) …………………………………….48

Ex parte Slavin,

412 S.W.2d 43, 44 (Tex. 1967) …………………………………………. 43

Fuentes v. Shevin,

407 U.S. 67, 80 (1972) ……………………………………...…………….51

Gates, 

537 F.3d at 429………………………………………………………….…38

Good v. Dauphin County Soc. Servs. for Children & Youth,

891 F.2d 1087, 1094 (3d Cir.1989). ………………………………….…38

Griswold v. Connecticut,

381 US 479, (1965). ……………………………………………………...…45

In re C.M.C.,

192 S.W.3d 866 (Tex. App. – Texarkana 2006, no pet.) ….…………...52

In re M.S.,

115 S.W.3d 534, 549 (Tex. 2003) ……………………………………..….. 36

In re S.M.D.,

329 S.W.3d 8 (Tex. App. – San Antonio, 2010, pet. Dismissed ..…….52

KTRK TV, Inc. v. Robinson,

409 S.W.3d 682, 689

(Tex. App.—Houston [1st Dist.] 2013, pet. denied) …………………… 43

Long v. Shorebank Development Corp.,

182 F.3d 548 (C.A. 7 Ill. 1999) ………………………………………….. 41

Marshall v. Jerrico, Inc.,

446 U.S. 238, 242 (1980) …………………………………………………. 51

Merritt v. Hunter,

C.A. Kansas 170 F2d 739………………………………………………… 50

Morris v. Dearborne

181 F.3d 657, 666 (5th Cir. 1999) …………………………………….…35

Nault’s Auto. Sales, Inc. v. American Honda Motor Co., Inc., Acura Auto.,

Div., 148 F.R.D. 25, 30 (D.N.H. 1993) …………………………………...45

Pinnacle Arabians, Inc. v. Schmidt, 

274 Ill.App.3d 504, 210 Ill.Dec. 963, 654 N.E.2d 262, 266 (1995) …40

Quatela v. Stryker Corp.,

820 F.Supp.2d 1045, 1050 (N.D. Cal. 2010) ……………………………44

Quilloin v. Walcott,

98 S Ct 549; 434 US 246, 255^Q56, (1978) …………………………… 49

Santosky v. Kramer

455 U.S. 745, 753 (1982). ………………………………………………… 35

Schwarz v. Schwarz, 

27 Ill.2d 140, 188 N.E.2d 673, 676 (1963) ………………………………40

Woodford v. Stamper,

801 S.W.2d 108, 109 (Tex. 1990) .……………………………………….. 39

Wooley v. City of Baton Rouge

211 F.3d 913, 922-923 (5th Cir. 2000) …………………………………. 35

Black’s Law Dictionary,

    1167 (8th ed. 2004)  ……………………………………………….…….... 43

CPS Policies:

CPS Policy 1619.1 …………………………………………………………… 71

CPS Policy 2241 ………………………………………………………….…9, 71

CPS Policy 4114.11 ….……………………………………………….10, 15, 72

CPS Policy 4114.5 …………………………………………………….……… 74

CPS Policy 5162 ………………………………………………. 13, 41, 42, 75

CPS Policy 11120 …………………………………………………………... 75

Federal Statutes and Regulations:

Title IV-E 475(5)(A) Social Security Act ……………………………..41, 86

Constitution of the United States of America.,Amend. I, IV, V, VI, VIII

………………………………………………………………………………..45, 36

Rules:

TEX. R. CIV. P.  21(b) ……………………………………….……….……… 12

TEX. R. CIV. P. 216(a) ………………………………….….……………...…84

TEX. R. CIV. P. 190.3 (b)(1)(A) .…………………………..……….……51, 84

TEX. R. CIV. P. 18b …………………….…………………………...……47, 83

Texas State Statutes:

Article V, Section 11, Texas Constitution.…………………………… 47, 81

Texas Administrative Code §681.41. (l)(5) ………………………………. 77

Tex. Fam. Code §161.001(b)(1)(O) ………………………………………… 41

Tex. Fam. Code §262.104 ……………………………………….……….37, 79

Tex. Fam. Code §262.201(n) ………………………………………. 13, 15, 49

Tex. Fam. Code §263.103 …………………….…………………….……41, 42

Tex. Fam. Code §263.109 ………………………………………..… 14, 15, 49

No. 07-19-00147-CV

 

FIRST AMENDED APPELLANTS’ BRIEF

TO THE HONORABLE COURT OF APPEALS:

COMES NOW, Kevin Robert Bell and Traci Leigh Dillard, Father and Mother, and Appellants, in the above numbered cause and files this first-amended brief to present this Court with the following:

STATEMENT OF THE CASE

This case concerns a Termination of Parental Rights Order. The suit was filed in Runnels County as an Original Petition for Protection of a Child, For Conservatorship, and For Termination in Suit Affecting the Parent-Child Relationship (C.R.7) by Department of Family and Protective Services on April 5, 2018, after the Department’s Investigator removed L.M.B. without a court order. This case was transferred on July 23, 2018 to Lubbock County Court of Law #3 into an inactive Title IV-D Post Judgment Case. The disposition of the case by the trial court was Order of Termination (C.R. 142), granting Texas Department of Family and Protective Services Managing Conservatorship. Judge John A. Didway signed the Order of Termination on April 9, 2019 and the Order was filed on April 12, 2019. The appellants filed a joint notice of appeal on April 29, 2019.

Record References

Court Clerk’s Record: The records consist of the original and first Clerk’s Record in one Volume, the First Supplemental Clerk’s Record, and Second Supplement Clerk’s Record. The original and first Clerk’s Record with be referred to as (C.R.). The first supplemental Clerk’s Record will be referred to as (Suppl. C.R.). The second supplemental Clerk’s Record will be referred to as (Suppl.2 C.R.).

Reporter’s Record: The Reporter’s Record from the trial consists of three (3) Volumes: RR-Vol001, RR-Vol003, and RR-Vol008, which are referred to herein as (R.R.Vol001), (R.R.Vol003), and (R.R.Vol008), followed by a Page reference.

PARTY REFERENCES

The Appellant’s are Kevin Robert Bell and Traci Leigh Dillard. Kevin and Traci are man and woman who conceived their daughter. Kevin, Traci, and their daughter are made in God’s image as per Genesis 1:26-28. Kevin, Traci, and their daughter are also beneficiaries to the Constitution of the United States of America and to the Texas Constitution. They are not negligent fiduciaries to the Constitution.

Kevin Robert Bell is the father and appellant in the case. He will be referred to as “father,” “Kevin” or joined with Traci Leigh Dillard when being referred to as “appellants” or “parents.” Traci Leigh Dillard is the mother and appellant in the case. She will be referred to as “mother,” “Traci” or joined with Kevin Robert Bell when being referred to as “appellants” or “parents.”

The appellants’ daughter will only be referred to in this case as “L.M.B.,” or appellants’ “daughter.”

Appellee is Texas Department of Family and Protective Services and will be referred to in this brief as “Department,” “CPS,” “DFPS,” and “TDFPS.”

Intervenors in the lower court were Jennifer Garriga, the estranged daughter of Kevin Robert Bell and half-sister of the Appellants’ daughter who the Department took possession of. The other Intervenor, Amanda Garriga, is the partner of Jennifer Garriga, unrelated otherwise to any other party in the case. They will be referred to by name, as “intervenors” or “foster kin.”

STATEMENT REGARDING ORAL ARGUMENT

The Appellants do not request oral argument. However, they do not object to oral argument if this will assist the Court with their review and final decision of the issues.

ISSUES PRESENTED

  • The parents seek review of the Court’s order on April 5, 2018 and final Order of Termination appointing the Department as conservator because the order is void for procurement by way of fraud due to false allegations by a government employee. The Department violated established laws, the parents’ rights under the 4th Amendment, and it misled the Court in justifying its illegal and unlawful removal of the appellants’ daughter. The Court then violated established laws with respect to the father’s constitutionally protected right to the care and custody to his daughter while the mother was in the hospital. The Department committed more fraud by reporting that a court order existed to send the appellants’ daughter 400 miles away in violation of federal laws, state laws, and policy. Therefore, a review is needed in this matter.
  • The Appellants seek review of actions of the lower courts for abuse of discretion that violated the parents’ due process rights. The actions by the Court in corroboration with the Department and opposing attorneys deprived the father and the mother of the right to be fully informed of the nature and cause of the proceedings and accusations, of fair and meaningful hearings, of the right to be heard, and of the ability to prepare any kind of defense for trial. Such actions by the Court included repeated showing of favoritism, denying parents access to the Court, violating procedure in order to railroad the parents in pre-trial matters, and change in procedures without notice to the parents.


STATEMENT OF FACTS

A. FAMILY HISTORY

Kevin and Traci were married on March 16, 2010 and their daughter, herein referenced to as “L.M.B.,” was born May 4, 2010. Kevin and Traci sustained a home, two careers, and shared responsibility in not only providing for their daughter but nurturing, loving, and ensuring she was regularly exposed to memorable experiences. Kevin and Traci divorced in June 2012 and they agreed on the terms, including the child support terms. Kevin cared for his daughter on weekends and on certain days of the week and maintained an active role in his daughter’s life. Kevin and Traci continued to take their daughter on regular outings together as a family and co-parented their daughter in a flexible and friendly manner. L.M.B. was enrolled in Karate and later in Gymnastics. L.M.B. was consistently enrolled in child development centers beginning at age two and continued to attend part-time while she was home schooled to ensure she had social time with her peers. To date, Traci and Kevin are living together and are engaging in the fight for their daughter together. Traci sold her home in Ballinger in December 2018 and purchased another home in Lubbock in February 2019.

B. FATHER’S BACKGROUND AND STATUS WHEN CPS BECAME INVOLVED

After a 20-year tenure with the United States Postal Service, Kevin retired in 2000 but went on to maintain other long-term employment positions and is currently employed full-time. Kevin does not struggle with substance abuse issues or mental health issues, is not under the care of a psychiatrist, and has not been diagnosed with any mental health or substance abuse issues. Kevin was charged with Possession of Components of Explosives in November 2008 and completed 10 years of deferred adjudication probation without any setbacks in November 2018. This arrest occurred before his daughter was conceived, was not violent in nature, did not involve a “victim,” and Kevin has not had any charges or negative encounters with law enforcement since. Kevin had no history with CPS prior to this case. When CPS became involved on April 4, 2018, Kevin and Traci did not live together. Traci bought a home in Ballinger, Texas in February 2018. Kevin lived in Lubbock, Texas.

C. MOTHER’S BACKGROUND AND STATUS WHEN CPS BECAME INVOLVED

When CPS became involved, Traci had just purchased a home in for Ballinger after receiving early inheritance. Traci was finishing up her associate degree in business administration from South Plains College, where she was on the Dean’s List each semester from Fall 2016 through Spring 2018. Traci owned and operated a web design and SEO service since January 2013 and worked as a freelance writer. Since her daughter was born, Traci worked as a lead merchandiser, title researcher, web assessor, mail manager for student housing, and often maintained more than one position to provide financially for L.M.B.. Traci developed and struggled with alcoholism at an early age. After 2006, she began getting long stints of sobriety as she developed healthier coping skills. Traci sought help for and received therapy for symptoms of Post-Traumatic Stress Disorder between 2014 to 2015 and has learned how to manage her symptoms. From 2008 to 2015 Traci was completely sober. In late 2015, she had a relapse of alcoholism that she recovered from by early 2016. Traci had a second relapse was after L.M.B. was removed from her custody in April 2018 that lasted a few weeks. She has now been sober since May 27, 2018. Although Traci has had issues with alcohol in the past, she does not have a history of addiction to other drugs and does not associate with drug users. Traci has never been diagnosed with or taken medication for psychosis. Traci has misdemeanors on her record, most of which occurred prior to 2006. Traci does not excuse or deny that she made poor choices when she was younger. Traci was pulled over and charged with a DWI that she was charged with on May 27, 2018. The DWI occurred when she was on her way to Abilene to Serenity Center Treatment Center to detox after waiting for approximately four weeks for a bed at this facility. A representative of Serenity Center called her and let her know a bed would be open on May 28, 2018. Traci let CPS know prior to leaving that a bed was opened at Serenity Center and Traci called CPS after she was released from jail for the DWI to let them know what had happened. Traci was medically detoxed while in jail for 12 days and she has been sober since the arrest. That was her only DWI. In 2004, Traci lost two daughters to CPS after they were removed as a result of a suicide attempt that stemmed from untreated post-partum depression. The children were not in her care when the suicide attempt occurred. The day her daughters were removed, Traci was put into a hospital and got out to no home and no support. Traci lacked stability and resources at the time to get her daughters back. She has not attempted suicide again since 2004.

D. EVENTS LEADING UP TO CPS INVOLVEMENT

The incident that led to CPS involvement in April 2018 was not due to mental health or drug abuse but rather an isolated incident. The week prior to CPS involvement, L.M.B. went out of town to Lubbock for one week to visit Traci’s brother and his family for Easter Holiday. Traci went out one night while L.M.B. was away and had the misfortune of inviting a stranger into her home that slipped her a drug that caused hallucinations instantaneously. She was not using meth, as was assumed by CPS, and Traci still does not know what he gave her. Traci does not deny that she exercised poor judgment inviting this man in her home. The individual ended up staying in her home for two to three days. He dismantled her phones, hid her keys, and stole money. Police call sheets reflect Traci had her neighbor called law enforcement to get the individual off her property. Because Traci’s phones were dismantled, nobody had heard from her. Out of concern, Kevin drove to Ballinger to find out what was going on. Kevin stayed with Traci while the effects of this drug subsided and then she went to Lubbock with Kevin to pick up L.M.B.. By the time Kevin and Traci picked L.M.B. up on Monday, April 2, 2018, she was feeling better and not experiencing hallucinations. Traci and L.M.B. stayed the night with Kevin and left Tuesday, April 3, 2018. Because Traci’s car was still in Ballinger, she took L.M.B. back home in Kevin’s vehicle and they had plans to meet up later in the week to get the vehicle back to him. The events that took place during this time period do not reflect the norm for what life was like in the home.

E. CALL TO LAW ENFORCEMENT

Early the next morning, Wednesday, April 4, 2018, Traci began experiencing hallucinations again and thought she saw an intruder in the back yard. In fear, Traci locked the home, took her daughter into the bathroom and told her they needed to go get help. At approximately 5:00 AM, Traci climbed out of the window and then helped L.M.B. out of the window. They went next door, knocked, and Traci asked the neighbors to please call the police, as she thought someone was trying to break in. Traci had locked the home from inside before they exited the window and after police were on the scene, she broke a window to gain entry. Police did a walk-through and then drove Traci to the hospital. Traci asked the neighbors to watch L.M.B. until Kevin could get to Ballinger. The neighbors agreed to keep L.M.B. for the day. Traci was transported to Scenic Mountain Medical Center in Big Spring, Texas, not “Big Spring Mental Hospital,” as was alleged in the Affidavit. Traci was discharged three days later and was cleared of having any symptoms of hallucinations. Traci’s final diagnosis was “Drug-Induced Psychosis.” This final diagnosis from the hospital is also in the Evidence (C.R. 89). Throughout the case, the Department continued to allege Traci has mental health issues with “frequent hallucinations” in its reports. The Department asserts in the Affidavit that Ballinger Police Department Sergeant Chris Sargent told CPS Investigator Kandi Pendleton that police had “responded to her home four times in the last week due to her hallucinations.” There are no Police calls sheets or records in existence that substantiate the police were called four times in the week prior. The only person that claimed Traci continued to hallucinate after the episode was Traci’s Court Appointed Attorney, Benjamin Clayton, in Runnels County. Benjamin Clayton never met or spoke to Traci, a fact he later admitted in correspondence to a BAR grievance filed by Traci. He did not have any medical or mental health reports to substantiate his claims to the Court and Traci was not aware of this claim he made until late August 2018 when she received the Court file from her attorney in Lubbock.

F. LAW ENFORCEMENT’S CALL TO CPS

Ballinger Police Officer Robert Garcia called CPS and spoke to Javier Banda, a Statewide Intake employee for the Department. The Department’s Statewide Intake Worker, Javier Banda (SWIS II), who took the call, reported that Mother “tossed” her daughter out of a window. The Police Report written by Officer Robert Garcia did not match Javier Banda’s allegations. Copies of the two reports were filed as Evidence (C.R. 89) by Traci. Because of Javier Banda’s allegations, the call was escalated to a Priority One call. This was the only allegation of physical harm.

G. DEPARTMENT’S FIRST CONTACT WITH L.M.B AND TRACI

Between 9:00 AM and 11:00 AM, Kandi Pendleton went to Traci’s neighbor’s home and interviewed L.M.B. without the consent of Traci or Kevin. L.M.B. did not have the capacity to consent herself. Pursuant to CPS Policy 2241, CPS Investigators are required to attempt to gain consent from parents before they interview the child in question before gaining consent from anyone else. Kandi Pendleton found the environment safe enough to leave L.M.B. at the neighbors because she left to go to the hospital to speak with Traci, after being advised by staff not to speak to Traci. Kandi Pendleton did not articulate an emergency or describe circumstances consistent with imminent danger or exigent circumstances in her Affidavit (C.R.7). Kandi Pendleton’s did not express safety concerns with L.M.B. being in the care of the neighbors.

H. DEPARTMENT’S FIRST CONTACT WITH FATHER

Kandi Pendleton alleged in her Affidavit in Support of Removal, “Father, Kevin Bell, was contacted by phone but stated he had no financial means to pick up or care for the child therefore he was not considered appropriate placement.”

However, per the Investigation Report, Kandi Pendleton wrote, “I contacted Kevin Bell. Kevin stated that he did not have the financial means or transportation to come pick L.M.B. up. He currently resides in Lubbock. He stated he comes down to Ballinger to see L.M.B. when he can. He stated he would try to get a GreyHound bus ticket to San Angelo.” This statement conflicts with itself. This section of the Investigation Report was filed in Evidence by Traci (C.R. 89). Kevin has rebutted Kandi Pendleton’s Affidavit throughout the case. Kevin was gainfully employed and told Kandi Pendleton his vehicle was at Traci’s home and that he needed to arrange to get to Ballinger. Kevin has denied her statement throughout the case regarding inability to travel and having no money. During the first call between Kandi Pendleton and Kevin, Kandi gave Kevin two hours to get to Ballinger. Kevin told her it takes three hours to get there and she then told Kevin that she would call her supervisor and then call him back. Within the hour, Kandi called Kevin back and told him “never mind” and that they have taken L.M.B. into custody. Kandi ignored Kevin’s calls and made no attempts after the removal to get L.M.B. to her father or arrange a visit. Kevin had a Constitutional right to the care and custody of his daughter. Pursuant to CPS Policy 4114.11, “Noncustodial parents are generally entitled to have a child placed with them, since they have constitutional protections involving the parent’s relationship with the child.”  No evidence of “reasonable efforts” to prevent removal or evidence of “reasonable efforts” to return L.M.B. were presented.

A CPS courtesy worker visited Kevin’s home on April 5, 2018 and asked him to take a drug test. Kevin submitted to a drug test and it was negative. This CPS Courtesy worker informed Kevin that she would follow up the next day and she never did. CPS did not show evidence for not getting L.M.B. to her father when the case initiated and did not explain the decision any time during the case.

I. APRIL 5, 2018 ORIGINAL PETITION AND EMERGENCY HEARING

On April 5, 2018, the Department filed its Original Petition for Protection of a Child, For Conservatorship, and For Termination in Suit Affecting the Parent-Child Relationship (C.R. 7) in Runnels County, Texas as Cause Number 954. On this day an Order for Protection of a Child in An Emergency and Notice of Hearing (Suppl.C.R.4) was signed by Associate Judge Gary Banks and a Full Adversary Hearing was scheduled for April 10, 2018 at 10:30 AM.

J. APRIL 10, 2018 ADVERSARY HEARING

Kevin Robert Bell, Father and Appellant, was served with Citation (C.R. 10) that was not in compliance with TEX. R. CIV. P.  21(b), at approximately 2:00 PM on April 9, 2018, with less than 24 hours’ notice of the hearing that was approximately 180 miles away. Kevin did not have adequate time to take off work for the hearing. The Department did not try to serve Traci at her residence prior to the hearing. Traci was notified of the hearing by Kevin. Traci arrived at the hearing, where the court clerk then gave Traci the Citation (C.R. 9) on April 10, 2018.

At the Adversary Hearing on April 10, 2018, Associate Judge Gary Banks rescheduled the hearing for April 17, 2018. An Order Extending Emergency Orders Pursuant to Texas Family Code 262.103 (C.R. 8) was filed. The Court appointed Benjamin Clayton to represent the mother. Traci tried calling Benjamin Clayton and he was never available and never returned her calls. Benjamin Clayton never spoke to or met Traci.

K. APRIL 17, 2018 RESCHEDULED ADVERSARY HEARING

On April 17, 2018 a rescheduled Adversary Hearing was held. Traci “appeared through attorney.” A Temporary Order (C.R. 12) Following Adversary Hearing was signed and filed by Associate Judge Gary Banks. The Order alleges that “Father was duly and properly notified but did not appear.” Kevin denies being served with any notice of rescheduled hearing and there is no record of service.

There was no evidence to substantiate that placement with the noncustodial parent, pursuant to Tex. Fam. Code Ann. § 262.201(n) the father, would not be in L.M.B.s best interest. There was no evidence that “reasonable efforts were made” or evidence of “substantial risk of continuing danger.” The Temporary Orders Following Adversary Hearing also ordered Services. The Department did not file an Affidavit pursuant to CPS Policy 5162 The Proof Required to Support a Court Order for Services. These Temporary Orders ordered no contact between Traci and L.M.B. but approved contact between Kevin and L.M.B.. However, since Kevin was not served with the orders, he did not know what the status was, and Department did not facilitate visits.  The Court failed to cite a reason for no visitation between Traci and L.M.B. pursuant to Tex. Fam. Code § 263.109, only stating that contact must be approved by a Therapist. By the time of the Adversary Hearing, there was no evidence to substantiate that the mother was experiencing hallucinations.

L. APRIL 17, 2018 KINSHIP PLACEMENT WITHOUT COURT ORDER

On April 17, 2018, the same day as the Adversary Hearing, the Department alleged in its Investigation Report (Appendix Tab C) that the judge ordered placement with Jennifer and Amanda Garriga. The Temporary Orders did not grant Placement with Jennifer and Amanda Garriga. Traci objected to the placement due to the family’s religious beliefs and past behavior by Jennifer and Amanda Garriga with her daughter. Without a Court Order and on the same day as the Adversary Hearing, the Department sent L.M.B. to stay with Jennifer and Amanda Garriga, a half-sister and her partner, who did not have active involvement in L.M.B.’s life and lived 400 miles away. There was no home assessment conducted until July 2018 and L.M.B. was placed prior to a Family Group Conference. This Placement violated Policy. Federal law mandates that children are to remain within proximity to the parents when the goal is reunification. Through the Court, the Department bypassed Tex. Fam. Code §262.201(n) and CPS Policy 4114.11. According to statements by the Department in its Investigation Report, L.M.B. cried and begged not to go to Jennifer Garriga’s home. The section of this Investigation Report was also inserted into the mother’s filed Evidence (C.R. 89)

M. MAY 8, 2018 STATUS HEARING

On May 8, 2018, a Status Hearing was held. Mother “appeared through Attorney.”

The father was not served with notice of this hearing or served with a copy of the Status Hearing Order (C.R. 16) that alleged he was duly notified. There is no evidence of service to the father. The Visitation Order did not comply with Tex. Fam. Code. § 263.109(b) (1-2). The Court did not grant placement in this order but did grant Jennifer Garriga and Amanda Garriga the ability to consent to medical care. It was at this time that Jennifer and Amanda Garriga began utilizing the services of Pennye West, a friend of theirs and a therapist to conduct play therapy on Kevin and Traci’s daughter, for the benefit of Jennifer and Amanda Garriga and without the consent or involvement of the parents.

CASA submitted a Report to the Court (C.R. 15) for the May 8, 2018 Status Hearing. Without any first-hand knowledge or reports by licensed medical or mental health professionals, CASA alleged that Traci was still having “the same problems as alleged in the Affidavit” and recommended no contact until Traci had a psychological evaluation. CASA reported that L.M.B. had been waking up at night crying and asking for her mother. CASA did not attempt to contact Kevin or Traci to more fairly assess the situation.

N. MAY 2018 CPS CONTACT WITH FATHER AND FAMILY SERVICE PLAN

In mid-May 2018, CPS Caseworker, Trey Davis, stopped by Traci’s home while Kevin was at the home. Trey presented Kevin with paperwork, told him to sign and asked him to take a mouth swab drug test. Without being fully informed as to what he was signing or why he was asked to take another drug test, Kevin submitted to the mouth swab and signed in good faith. After signing this Family Service Plan, the Department did not refer Kevin to any services listed. The Family Service Plan did not contain any issues specific to the Father and consisted of misrepresentations regarding the Reason for CPS Involvement. The Department also added the Father jointly with the Mother on a Family Service Plan although the parents did not live together. Traci was not available when Trey was at the home at that time. However, Traci was in contact with the Trey Davis at least weekly at that time, but he did not present her with a Family Service Plan. Neither parent was invited to or even aware of a Family Group Conference that took place in May 2018.

O. JUNE 2018 CPS CONTACT WITH MOTHER AND FATHER

In late June 2018, a Department Courtesy Worker by the name of Alicia Boswell reached out to Traci and Kevin to refer services. She met with them once at Kevin’s home and once in the CPS office in Lubbock. It was the meeting at the CPS office that Traci signed the Family Service Plan. Traci mentioned to Alicia Boswell that the allegations under Reason for CPS Involvement on the Family Service Plan were inaccurate and she did not feel comfortable signing. Alicia did not inform Traci of her right to an administrative hearing. Traci signed in order cooperate to get her daughter returned in good faith that when a permanent caseworker was assigned, the errors would be corrected.

In June and July 2018, Traci and Kevin completed OSAR screenings, Psychological Evaluations, and MHMR evaluations in August. They completed parenting in August 2018 and hired their own therapists.

P. JULY 2018 KINSHIP CAREGIVER HOME ASSESSMENT

In July 2018, a Kinship Caregiver Home Assessment (C.R. 18) was completed three months after the Department sent L.M.B. to Jennifer and Amanda Garriga’s home. In this Home Assessment, Jennifer Garriga and Amanda Garriga lied to the interviewer and alleged that they cared for L.M.B. during another CPS case and they also alleged that they were actively involved in her life and that they did not foresee the parents having any problem with them keeping L.M.B.. Jennifer and Amanda Garriga did not care for L.M.B. during a CPS case and the records discredit this statement. This arrangement did not involve CPS at all. Jennifer and Amanda Garriga called a false report in the day after Kevin and Traci picked their daughter up from Jennifer and Amanda Garriga and took her home. Jennifer and Amanda Garriga had ulterior motives despite the arrangement being temporary. Traci and Kevin had to seek assistance from the Sheriff’s Department to get their daughter released to them. CPS visited the parents the day Jennifer made the report and the allegations were immediately ruled out after CPS interviewed Traci and L.M.B.. 2015 was the only time Jennifer and Amanda spent any significant time with L.M.B.. Due to her own unresolved issues, Jennifer refused to meet L.M.B. until L.M.B. was 3 ½ years old. Between 2013 and 2015, Jennifer saw L.M.B. twice. After 2015, Jennifer spoke to L.M.B. only a few times over the phone when Kevin would call Jennifer. Jennifer and Amanda Garriga did not try to maintain active involvement.

Q. TRANSFER OF SUIT TO LUBBOCK COUNTY

On June 18, 2018, the Department initiated transfer to Lubbock County (Suppl.C.R.5) and (Suppl. C.R. 6).

On July 23, 2018, an Order Transferring Suit Affecting the Parent-Child Relationship (C.R. 5), Order Setting Initial Permanency Review Hearing (C.R. 19), and Order Appointing Attorney for Parents (C.R. 20) were filed.

The Department did not facilitate a visit between L.M.B. and her parents until August 10, 2018 at McDonalds in Sulphur Springs, Texas. There were many issues with the way the Department handled visitations throughout the case. Notices (C.R. 47 and C.R. 57) of misconduct by the Department were filed by Traci.

On August 30, 3018, the mother’s attorney served the Department with Request for Production, Written Interrogatories, and Rule 194 Request for Disclosure. The Department did not respond within the required 30 days. In late November 2018, Traci had to contact Kacee Harvey twice and she served Traci with late and incomplete Discovery and Interrogatory responses on or about December 7, 2018.

R. SEPTEMBER 19, 2018 PERMANENCY HEARING

In July and August, Traci and Kevin remodeled a larger home and arranged to live apart to get L.M.B. back home with at least the father to work towards reunification. The Department’s Caseworker, Karonda Slay, visited the remodeled home to see that there was appropriate housing for L.M.B. and the Department still refused to bring L.M.B. to her father despite no expressed concerns about the father.

On September 15, 2018, the father’s court appointed attorney Timothy Williams, filed a Petition to Modify Parent Child Relationship/Motion to Modify Temporary (C.R. 26) and a hearing was scheduled for October 9, 2018 (C.R. 27) to hear this Petition.

On September 19, 2018, a Permanency Hearing was held, father’s attorney withdrew and (C.R. 28) for Father’s attorney and Initial Permanency Hearing Order Before Final Order (C.R. 29) was signed by Associate Judge Kelley Tesch. The Department filed a Permanency Report to the Court (C.R. 22) for the September 19, 2018 hearing and asserted that Traci and Kevin were both engaged in Services.

S. SEPTEMBER 20, 2018 PERMANENCY PLANNING CONFERENCE AND REVISED FAMILY SERVICE PLAN

On September 20, 2018, a Permanency Planning Conference was held at the CPS building. Karonda Slay, Supervisor Vecelia Mann, CASA Advocacy Coordinator Arizela Briones, Traci, Traci’s Attorney Amanda Kraynok, and Kevin were present for the Permanency Planning Conference. Kevin and Traci were not invited to participate in development of a Family Service Plan at any time during the case. CPS presented Traci and Kevin with revised Family Service Plans (C.R. 31 and C.R. 32). Misrepresentations from the first Family Service Plan were not corrected and the revised Family Service Plan contained fabricated bases for the services and did not specify time frames or deadlines. Karonda and Vecelia refused to answer when Traci and Kevin asked them why they had false statements in the Family Service Plan. When Traci and Kevin asked specifically what they needed to do, Karonda did not provide an answer (R.R-Vol003, page 23-24). The revised Plan also contained terms that would force Kevin and Traci to “believe” abuse and neglect and waive their rights. After reading the Form 0628INS (Permanency Planning Form) and the revised Family Service Plans (C.R. 31 and 32), the mother and father refused to sign and filed a withdraw from contract and withdrawal of consent to participation in the form of a Notice (C.R. 37) for good cause. Objections (C.R. 67 and C.R. 68) that highlight the false statements and issues in the Family Service Plans and PPC Form 0628INS were filed by each parent on January 22, 2019. Additional Objections to CASA reports, Family Service Plans, and Child Service Plan were filed by the parents (C.R. 67, C.R. 68, C.R. 69, C.R. 70, C.R. 71, C.R. 72, C.R. 83, C.R. 85, C.R. 87)

On September 25, 2018, the Court invoked the parents right to a Jury trial on their behalf by filing an Order Setting Jury Trial and Pretrial Conference (C.R. 30) signed by Judge Hays. Appellants did not file a request or motion for a jury trial. Mother and Father each filed Objections (C.R. 45 and C.R. 46).

T. OCTOBER 2018 PETITION FOR INTERVENTION

On October 8, 2018, the mother’s attorney withdrew from the case (C.R. 33) and October 17, 2018 the second appointed attorney for the mother withdrew from the case (C.R. 39).

On October 11, 2018, Jennifer and Amanda Garriga filed a Petition in Intervention in Suit Affecting the Parent-Child Relationship (C.R. 36). Mother and Father mailed back the Citation (C.R. 41 and C.R. 43) denying suit and refusing to contract with Intervenors and filed Notices of Objection (C.R. 40 and C.R. 42) to joinder.

U. DECEMBER 2018 ATTORNEY GENERAL NOTICE AND ASSOCIATE JUDGE ACTING AS ATTORNEY

On December 13, 2018, the Attorney General’s Office filed a Notice of Hearing (C.R. 48) that Traci received forwarded from an old address. This Notice of Hearing listed Kelley Tesch as an Attorney for the Attorney General with her State Bar Number. Mother and Father filed a Notice of Conditional Acceptance (C.R. 50 and C.R. 51) in response to the Notice of Hearing from the Attorney General.

V. JANUARY 2019 PERMANENCY HEARING

On January 10, 2019, Mother and Father filed Special Appearance and Objections (C.R. 52 and C.R. 53) to Associate Judge Kelley Tesch being able to hear the case due to conflict of interest in the matter. The associate judge did not recuse herself and a Permanency Hearing Order Before Final Order was signed and filed (C.R. 63). Traci filed another Objection (C.R. 61) on the conflict of interest. The mother and father each filed a timely Request for De Novo Hearing (C.R. 65 and C.R. 66) to the January 16, 2019 Permanency Order.

On January 16, 2019 Attorney General filed a Motion and Order to Vacate Setting (C.R. 62) but case remained a TITLE IV-D Post Judgment case with Mother’s name set as TRACI LEIGH DILLARD-BELL, thereby using undue influence to force her to act as surety for a name that was not her full legal name under color of law. The Court had on record the legal name change from the divorce.

W. FEBRUARY 2019 DE NOVO HEARING

On February 1, 2019 The Department filed a Motion for Preferential Setting and Request for Consideration of Previous Testimony (C.R. 76). Traci filed Response and Objection to Petitioner’s Motion for Preferential Setting and Request for Consideration of Previous Testimony (C.R. 81) requesting clarification.

On February 6, 2019, Kevin filed Motion for Frivolous Claim by State Agency, Motion to Strike Scandalous Pleadings, Motion for Sanctions of Groundless Claim Brought For Improper Purpose, Motion To Dismiss For Lack of Viable Claim, For Lack of Subject Matter Jurisdiction and For Improper Service (C.R. 77). Mother filed Motion to Vacate Order for Pre-Trial for Premature Entry After Request For De Novo Hearing (C.R. 78).

On February 8, 2019 Traci filed Motion for Discovery Sanctions (C.R. 82) for late response to discovery Request and for incomplete interrogatories.

On February 15, 2019, an ex parte style de novo hearing was held in the presence of the mother and father movants of the De Novo Hearing (R.R.-Vol003). The Court granted the Department’s “Preferential Setting Motion” without the Court announcing it and without notice to the parents to prepare questioning or witnesses. By not being fully informed of the nature of the proceedings in a timely manner, the mother and father were deprived of the ability to prepare questions and witnesses. The mother was denied the right to be heard at this De Novo hearing, was not allowed to enter in new evidence, and the parents were denied their right to a fair and meaningful hearing. The Court filed Permanency Order Before Final Order after De Novo Hearing (Suppl.C.R.12) and the parents had no option to appeal and they were unaware of the Writ of Mandamus at the time.

On February 27, 2019 Traci filed the new Evidence (C.R. 89) that she was not permitted to enter during the De Novo Hearing.

X. MARCH 2019 PRE-TRIAL AND UNTIMELY DISCOVERY

On March 4, 2019 the Court filed a Trial Prep and Scheduling Order with Trial Preparation Order (C.R. 90) signed by Judge Ann-Marie Carruth that noted the Pre-trial was scheduled for March 8, 2019 and Trial scheduled for April 1, 2019. This Trial Preparation Order was filed after the 30-day deadline, enabling the opposing attorneys to conduct discovery after the 30-day deadline Pursuant to Texas Rule of Civil Procedure 190.3(b)(1)(A).

On March 05, 2019, Traci filed a Motion for Recusal (C.R. 92) of Judge Ann-Marie Carruth. Kevin and Traci each filed a Motion for Continuance (C.R. 91 and C.R. 93) and Motion to Show Authority Pursuant to Rule 12 TRCP (C.R. 94 and C.R. 95).

On March 6, 2019 Petitioner filed Petitioner’s Potential Witness List (C.R. 97), Motion for Telephonic Appearance of Witnesses (C.R. 98), Petitioner’s Party/Attorney List and Trial Scheduling Information (C.R. 99).

On March 7, 2019 Intervenors filed Intervenors’ Party/Attorney List and Trial Scheduling Information (C.R. 100), Intervenors’ Witness List (C.R. 101), and Intervenors’ Trial Exhibit List (C.R. 102). Petitioner filed its Petitioner’s Potential Exhibit List (Suppl.2 C.R. 4).

On March 8, 2019, Mother filed Objections to Discovery and Motion to Strike Petitioner’s Witnesses, Testimony, and Evidence (C.R. 105) and Objection To Joinder By Intervenor And To All Exhibits and Witnesses By Intervenor (C.R. 106). Attorney Ad Litem filed Attorney Ad Litem’s Trial Schedule (C.R. 107), Attorney Ad Litem’s Party and Attorney List (C.R. 108), Attorney Ad Litem’s Potential Exhibit List (C.R. 109). Court filed an Order of Referral on Motion to Recuse (C.R. 111) signed by Judge Ann-Marie Carruth

On March 14, 2019 Mother filed Objection to Potential Witnesses and Exhibits by Melissa Simpson, Motion to Strike All Motions by Attorney Melissa Simpson, and Motion to Schedule Hearing for Motion to Show Authority (C.R. 115). Father filed Motion to Schedule a Hearing on Motion to Show Authority Pursuant to Rule 12 TRCP (C.R. 112).

On March 18, 2019 a Hearing was held and the Motion to Recuse was Denied (C.R. 116). The Department filed Motion for Pre-trial Hearing Setting (C.R. 117) on Mother and Father’s Motions and Objections, including Motion to Show Authority.

On March 25, 2019, the Court filed an Order Setting Hearing (C.R. 118) signed by Judge Ann-Marie Carruth that scheduled pre-trial for April 9, 2019, after the Dismissal date.

On March 27, 2019, an Order Setting Motion Hearings and Trial (C.R. 121) was filed and signed by Judge Ann-Marie Carruth, scheduling Pre-trial and Motion Hearings for April 2, 2019 and Trial for April 5, 2019. Mother filed an Objection to Order Denying Respondent’s Motion to Recuse (C.R. 119), Notice of Fraudulent Joinder of Causes and Parties (C.R. 120), and a Notice of Non-suit Without Prejudice (C.R. 122).

On March 28, 2019, in response to the Mother’s Objection to Order Denying Respondent’s Motion to Recuse, Judge Kelly Moore filed an Order of Assignment (C.R. 123).

Y. APRIL 2019 PRE-TRIAL AND TRIAL

On April 1, 2019, Mother discovered and filed new Evidence (C.R. 124) that found that the Therapist, Pennye West, whose examination of their child the parents did not consent to, was not being paid by the child’s Medicaid, a violation of CPS Policy. This therapist had a friendship with Jennifer and Amanda Garriga (Intervenors) prior to CPS involvement and this therapist submitted unsigned, one-sided and ambiguous reports to CASA and CPS, who both referenced to the therapist notes in their own reports on to the Court. Father filed Objection to Motion to For Pretrial by Petitioner, Objection To Court Order Granting Petitioner’s Motion, and Demand For Dismissal (C.R. 125).

On April 2, 2019, Attorney Ad Litem filed First Amended Attorney Ad Litem’s Potential Exhibit List (C.R. 127), Trial Schedule (C.R. 128), Party and Attorney List (C.R. 129), and Potential Witness List (C.R. 130). Kevin filed an Objection (C.R. 126) to the Assigned Judge, Second Motion to Schedule A Hearing on Motion To Show Authority Pursuant To Rule 12 TRCP (C.R. 132), and Objection To Attorney Ad Litem Original and Amended Potential Witnesses, Exhibits and Trial Schedule (C.R. 134). An Order of Assignment by The Presiding Judge (C.R. 133) assigned Judge John A. Didway to the case. An Order on Pretrial Motions (C.R. 135) was filed.

The parents did not attend the Department’s Pre-trial because the Court denied their Motion for Continuance and did not move on their motions but rather moved on the Department’s motion for the parents’ motions, a deprivation of the right to be heard and first in time, first in right.

On April 4, 2019 Father filed Notice of Petition and Petition to Vacate Default Judgment and Petition to Stay Proceedings for Fraud Upon the Court (C.R. 137).

Traci and Kevin did not attend the Trial because they had not been afforded the right to know the nature and cause of the allegations against them and they were deprived of the ability to prepare for trial as a result of not being fully informed of a specific claim to defend. Kevin and Traci were also deprived of procedural due process, due to Abuse of Discovery and untimely conducting of discovery.

Z. APRIL AND MAY 2019 POST-TRIAL MOTIONS

On April 11, 2019 Kevin filed Notice of Dismissal and Demand for Return of Daughter (C.R. 139), Traci filed Writ of Habeas Corpus and Emergency Motion for Return of Child (C.R. 140) and Summons (C.R. 141).

On April 12, 2019, Court filed an Order of Termination (C.R. 142) that was signed April 9, 2019, a day after the deadline. Department alleged that the ruling was made in open court, however, the Department served an unsigned Proposed Order that awarded custody to Jennifer and Amanda Garriga. Therefore, it is unclear what was ordered in open court.

On April 16, 2019 Traci filed a Request for Findings of Fact and Conclusions of Law for Order (C.R. 146). Department filed General Denial and Response to Petition for Writ of Habeas Corpus and Emergency Motion for Return of Child (C.R. 145).

On April 17, 2019 Father filed Motion for New Trial and Affidavit (C.R. 148).

On April 29, 2019 Mother and Father filed a joint Notice of Appeal (C.R. 149).

On May 3, 2019, Traci filed Answer and Objections to Petitioner’s Proposed Findings of Fact and Conclusions of Law (C.R. 150). Court filed Findings of Fact and Conclusions of Law (C.R. 151).

On May 8, 2019, each parent filed a Request for Specified Additional or Amended Findings of Fact and Conclusions of Law (C.R. 156 and C.R. 157) requesting facts specific to the case to substantiate the findings. The Court did not file an Additional or Amended Findings of Fact.

On May 22, 2019, a hearing was held and the Motion for New Trial Denied (Suppl.C.R. 13). Kevin and Traci each filed Objections (Suppl.C.R. 14 and Suppl.C.R. 15) to the denial.

SUMMARY OF THE ARGUMENT

This case has been riddled with questionable actions by the Department with the participation of the lower Courts. The conduct by the lower Courts enabled the Department and opposing attorneys to violate Rules and the Appellants’ rights throughout the case, as is expressed in the issues and arguments. The Department employees in this case have acted with disregard for the law in seizing the Appellants’ daughter, concealing the child, its placement of the child, and the failure to make reasonable efforts towards reunification or return of the Appellants’ daughter. Their actions with the participation of the Court, CASA, and Attorney Ad Litem have represented acts toward forced termination and adoption, at any cost. The Appellants seek meaningful review for error, abuse of discretion, factual and legal sufficiency of the grounds for termination in the judgment by the lower Court, the Best Interest, and the granting of Conservatorship to a non-parent.

ARGUMENT

INTRODUCTION

The United States Supreme Court has held that parents have a "fundamental liberty interest... in the care, custody, and management of their child" Santosky v. Kramer, 455 U.S. 745, 753 (1982). The Fifth Circuit also recognizes that the right to family integrity is a form of liberty protected by the due process clause, and that the right belongs to the child as well as the parents. See Morris v. Dearborne, 181 F.3d 657, 666 (5th Cir. 1999); Wooley v. City of Baton Rouge, 211 F.3d 913, 923 (5th Cir. 2000) (noting that "a child's right to family integrity is concomitant to that of a parent"); see also Doe v. Heck, 327 F.3d 492, 518 (7th Cir. 2003) ("Equally fundamental is the right of a child to be raised and nurtured by his parents."). It has also long been established that the "most essential basic aspect of familial privacy is the right of the family to remain together without the coercive interference of the awesome power of the state." Wooley v. City of Baton Rouge, 211 F.3d 913, 922 (5th Cir. 2000) (noting that it had recognized the right in Hodorowski in 1988). Courts have recognized that termination of a parent’s rights to his child is “traumatic, permanent, and irrevocable.” In re M.S., 115 S.W.3d 534, 549 (Tex. 2003).

  • The parents seek review of the Court’s order on April 5, 2018 appointing the Department as conservator and the Order of Termination because the original underlying order is void for procurement by way of fraud due to false allegations by a government employee. The Department violated established laws, the parents’ rights under the 4th Amendment of the Constitution of the United States of America, and it misled the Court in justifying its illegal and unlawful removal of the appellants’ daughter. The Court then violated established laws with respect to the father’s constitutionally protected right to the care and custody to his daughter while the mother was in the hospital. The Department committed more fraud by reporting that a court order existed to send the appellants’ daughter 400 miles away in violation of federal laws, state laws, and policy. Therefore, a review is needed in this matter.

Pursuant to Tex. Fam Code § 262.104(a) (1-5), specific criteria must be met before a representative of DFPS may take possession of a child without a court order. These criteria require that there is no time to obtain a temporary order or that the representative have personal knowledge that there is imminent danger to the physical health or safety to the child. The Department removed the appellants’ daughter without a court order when the circumstances did not meet the criteria for an emergency removal without a court order. The Affidavit contained no observations and no facts to substantiate that there was an “immediate danger to the physical health or safety of the child.” The Department did not show that there was no time to obtain a court order. In fact, the actions of the investigator showed that she left L.M.B. with the neighbor, had time to go to the hospital and speak to Traci against the advisement of staff and that the removal took place early on a weekday, during normal business hours. The first and last sentence within “Facts Necessitating Removal” of the Affidavit were conflicting. The first sentence states, “The Investigator made contact at the neighbor’s home on April 4, 2018, where L.M.B. was staying.” The last sentence concludes with “leaving L.M.B. without a caregiver.” Per the Police Report and Department’s Investigation Report, the neighbor had already agreed to care for L.M.B.. The Department reported no safety concerns with the neighbors caring for L.M.B.. The government may not seize a child from his or her parents absent a court order, parental consent, or exigent circumstances. Gates, 537 F.3d at 429. According to Gates, "[e]xigent circumstances" means that, "based on the totality of the circumstances, there is reasonable cause to believe that the child is in imminent danger of physical or sexual abuse if [s]he remains in his home." Gates, 537 F.3d at 429. The Third Circuit has required that "the state actors making the search... have reason to believe that life or limb is in immediate jeopardy and that the intrusion is reasonably necessary to alleviate the threat." Good v. Dauphin County Soc. Servs. for Children & Youth, 891 F.2d 1087, 1094 (3d Cir.1989).

Most troubling is that the evidence (C.R. 89) filed by the mother proved that the Court order was procured using misrepresentations: a) there were falsified allegations of abuse by the Department’s Statewide Intake employee, Javier Banda, used to escalate the call to a Priority One, allegations that were required for any intervention by the Department because the actual circumstances did not meet criteria for intervention; and b) misrepresentations by Department CPS Investigator Kandi Pendleton with regard to significant points about the child having care and the father’s ability to travel to where his daughter was. Because of this, the Court partially erred in their decision to grant the Department temporary conservatorship in the first order due to being misled by the Department. The final orders granting the Department, a non-parent as the conservator of the child is also an abuse of discretion if the original orders were void for fraud and misrepresentation. A court’s order as to conservatorship is subject to an abuse of discretion review on appeal. See e.g. Woodford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990).

The Department falsified reports in its Investigation Reports on April 17, 2018 (APPENDIX TAB C) that the Judge Ordered placement with Jennifer Garriga when no such order existed in the Temporary Orders from April 17, 2018. The Status Hearing Order on May 8, 2018 did not order such Placement. The mother and father discovered this as new evidence after the Termination Order was signed. It is only fraud which gives a court colorable jurisdiction that renders a decree void." Schwarz v. Schwarz, 27 Ill.2d 140, 188 N.E.2d 673, 676 (1963); see also Dawson v. Duncan, 144 Ill.App.3d 532, 98 Ill. Dec. 778, 494 N.E.2d 900, 905 (1986). Fraud that gives the court colorable jurisdiction has been referred to as "extrinsic fraud." See Pinnacle Arabians, Inc. v. Schmidt, 274 Ill.App.3d 504, 210 Ill.Dec. 963, 654 N.E.2d 262, 266 (1995) ("’extrinsic fraud' . . . is that which prevents the court from acquiring jurisdiction or gives it merely colorable jurisdiction."). Misrepresentation of the facts, omission of facts, and false allegations by a state employee to escalate a call giving the Department grounds for is evidence of extrinsic fraud. A void judgment which includes judgment entered by a court which lacks jurisdiction over the parties or the subject matter, or lacks inherent power to enter the particular judgment, or an order procured by fraud, can be attacked at any time, in any court, either directly or collaterally, provided that the party is properly before the court.  See Long v. Shorebank Development Corp., 182 F.3d 548 (C.A. 7 Ill. 1999).

The Department committed fraud by falsifying its reports to include that a Court order existed in placement of the Appellants’ daughter 400 miles away when no such order existed and violating Title IV-E 475(5)(A) of the Social Security Act.

The Department continued fraudulent misrepresentation in the case by reporting fabricated and non-existing problems as a basis for its Family Service Plan.

Texas Family Code § 263.103 requires that the Department develop Family Service Plans with parents to ensure a meeting of the minds and to properly assess the family’s needs. CPS Policy 5162 requires an affidavit with sufficient reason for the plan with legitimate bases for services. Tex. Fam. Code §161.001(b)(1)(O) requires court orders “specifically establish actions” that parents need to do. When Family Service Plans are not developed or enforced in accordance with procedure and when the Family Service Plans consist of fraudulent misrepresentations as bases for services, such contracts are unconscionable, and therefore, unenforceable.

The Department did not comply with Texas Family Code § 263.103 in its development of a Family Service Plan and the Court ordered the Family Service Plan absent an Affidavit CPS Policy 5162. These procedures are set in place to ensure that Department employees properly assess the needs of a family, with the family’s input and consent, and show that there is a need as a result of valid assessment. Procuring court orders without following procedure and reporting non-existing problems as bases is not only unethical but a violation of the parents’ due process rights. This is not a case whereby the Department had no contact with the parents to excuse their failure to follow comply with the law. Instead Department employees doctored reports for their malign agenda throughout the entire case.

The orders and underlying family service plans did not meet the specificity requirement of subsection (O) because no time frames were specified in the Family Service Plan and the Orders only referred to actions in “attached” Family Service Plan. Caseworker Karonda Slay acted with indifference and refused many times to answer questions about specifics. With an understanding that the requirement for specificity is an element of Subsection (O), and that appellate review of the same is required, the question now turns to what “specificity” means in the context of Subsection (O). “Specific,” in the ordinary sense of the word, means “explicit” or about a “particular named thing.” See Black’s Law Dictionary 1167 (8th ed. 2004); see also KTRK TV, Inc. v. Robinson, 409 S.W.3d 682, 689 (Tex. App.—Houston [1st Dist.] 2013, pet. denied) (approving this definition). Within those settings, “it is an accepted rule of law that for a person to be held in contempt for disobeying a court decree, the decree must spell out the details of compliance in clear, specific and unambiguous terms” so that individuals “will readily know exactly what duties or obligations are imposed upon him.” Ex parte Slavin, 412 S.W.2d 43, 44 (Tex. 1967) (citations removed) (emphasis added).

When the Department presented the parents with the revised the Family Service Plans (C.R. 31 and C.R. 32) at a Permanency Planning Conference on September 20, 2018, errors were not corrected in “Reasons for CPS Involvement” and fabricated bases for the services were added to the Plan. The Family Service Plan consisted of terms that the father “must stay in recovery,” “live a less chaotic lifestyle,” and manage his “mental health.” The Department had no evidence to substantiate that the father had substance abuse issues, mental health problems, or any basis for reporting that the father led a “chaotic” lifestyle. The Family Service Plan required AA/NA meetings, a term that Traci clearly expressed several times was a violation of her religious beliefs. The Department continued to allege that Traci had frequent hallucinations due to mental health and that she was not taking her medicine. Traci was not prescribed medicine for such non-existent issues. The Family Service Plan consisted of terms that would require the mother and father to waive their rights and even required that the mother and father “believe” and “understand” that abuse and neglect occurred. A contract with such terms, along with consenting under false pretense is unconscionable. A matter is scandalous when it “unnecessarily reflects on ‘the moral character of an individual or states anything in repulsive language that detracts from the dignity of the court…’ [and] includes ‘allegations that cast a cruelly derogatory light on a party or other person.’”). Quatela v. Stryker Corp., 820 F.Supp.2d 1045, 1050 (N.D. Cal. 2010) (internal citations omitted); Nault’s Auto. Sales, Inc. v. American Honda Motor Co., Inc., Acura Auto. Div., 148 F.R.D. 25, 30 (D.N.H. 1993).

Unconscionable contracts are unenforceable and enforcement of the Family Service Plan in this matter was not only enforcement of unconscionable contract that was created through fraudulent misrepresentation but the order violated the mother and father’s rights under the 1st, 4th, 5th, 6th, and 8th Amendments to the Constitution of the United States of America. Mutual care, company, love and affection of his children, and this cannot be taken away from him without due process of law. There is a family right to privacy which the state cannot invade, or it becomes actionable for civil rights damages. Griswold v. Connecticut, 381 US 479, (1965).

Court Orders used in CPS proceedings are not designed to enforce unconscionable contracts, but rather to bind parents to a mutual agreement after the parents take part in developing a plan to participate in voluntary services that the parents agree are valid. A judgment may not be rendered in violation of constitutional protections.

The parents made a good-faith effort to perform services until they read the revised Family Service Plan and the Permanency Planning Conference Form on September 20, 2018. Therefore, it was not the fault of the mother and father, but the unethical and dishonest practices the Department used in developing the service plan. The Caseworker and her supervisor chose not to conduct themselves in an honest, ethical, and reasonable manner with the parents. Based on their own actions, they developed the revised Family Service Plan to put the parents in a catch-22 that would presumably either: a. deter the parents from signing, giving the Department advantage and motive to say the parents aren’t complying, or b. coerce agreement and compliance to false and damaging allegations, whereby the mother and father admit and believe in abuse and neglect, giving the Department bases for termination through admission of guilt to false allegations. The caseworker committed fraudulent misrepresentation in the Family Service Plan. The Court had a duty to cure the error when the parents filed several objections to the Plans.

The fact that the fraud and misrepresentation were committed excessively by representatives of a state agency does not change the nature of the wrong. Immunity does not protect against criminal behavior. The trial court abused its discretion in appointing the Department as a conservator throughout the case and the Order of Termination is void.

The case originated in Runnels County and was transferred to Lubbock County, assigned to an Associate Judge who had acted as an attorney for the Attorney General on the same cause number, 2012-501,599 in 2017 and was found to be acting as an attorney for the Attorney General while associate judge on the case in December 2018 as was filed in as evidence. This is grounds for disqualification under Article V, Section 11, Texas Constitution and Texas Rule of Civil Procedure 18b, rendering her orders void if they were not already void due to the underlying orders being void for fraud.

The Order of Termination and award of conservatorship to the Department should be reversed and rendered.

  • The Appellants seek review of actions of the lower courts for abuse of discretion that violated the parents’ due process rights. The actions by the Court in corroboration with the Department and opposing attorneys deprived the father and the mother of the right to be fully informed of the nature and cause of the proceedings and accusations, of fair and meaningful hearings, of the right to be heard, and of the ability to prepare any kind of defense for trial. Such actions by the Court included repeated showing of favoritism, denying parents access to the Court, violating procedure in order to railroad the parents in pre-trial matters, and change in procedures without notice to the parents.

The trial court abuses its discretion if it acts without reference to any guiding principles or acts arbitrarily or unreasonably. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985). When we determine whether the trial court abused its discretion, we may not substitute our judgment for that of the trial court unless its decision was so arbitrary that it exceeded the bounds of reasonableness. Clarendon Nat'l Ins. Co. v. Thompson, 199 S.W.3d 482, 494 (Tex.App.-Houston [1 Dist.] 2006, no pet.).

The Court abused its discretion when it failed to return the Appellants’ daughter to her father pursuant to Tex. Fam. Code § 262.201(n), when it alleged that the father had been notified of rescheduled Adversary Hearing and Status Hearing when there is no record of such notice. The father had every right to be notified of the hearings and to be served with any judgments that pertained to him and the custody of his daughter. The Department violated procedure by not placing L.M.B. with her father after denying him reasonable time to get to Ballinger and by not ensuring her return after taking her. The Department failed to articulate a reason to believe that placement with the father was not in L.M.B.’s best interest while the mother was in the hospital. The U.S. Supreme Court implied that “a (once) married father who is separated or divorced from a mother and is no longer living with his child” could not constitutionally be treated differently from a currently married father living with his child. Quilloin v. Walcott, 98 S Ct 549; 434 US 246, 255^Q56, (1978).

The Court denied visitation in the Status Hearing Order for both parents on May 8, 2018 but the orders failed to comply with Tex. Fam Code § 263.109(b)(1-2). Where a court failed to observe safeguards, it amounts to denial of due process of law, court is deprived of juris. Merritt v. Hunter, C.A. Kansas 170 F2d 739.

The Court abused its discretion by administering the mother and father’s rights on their behalf without reference to any guiding rules or principles. One example of this is when the Court invoked the parents’ rights and filed an Order For a Jury Trial (C.R. 30) without motion when the parents had not filed a written request Pursuant to TEX. R. CIV. P. 216(a).The Court later abused its discretion by waiving the parents’ rights in granting the Department’s Motion for Preferential Setting for the parents’ requested De Novo Hearing on February 15, 2019 and did so in a manner that was deceptive and denied the parents the ability to prepare questions or witnesses. The De Novo Hearing (R.R. Vol003), was held as a trial proceeding, whereby the Civil District Attorney, representing the Department, called CASA Coordinator, CASA employee, and CPS Caseworker to the stand to answer questions under oath. After the CPS Caseworker and CASA Coordinator took the stand, the parents were deprived of the right to be heard. The Court did not allow Traci to enter new evidence. Such actions deprived parents of the right to a fair and meaningful hearing.

In the Pre-trial hearing moved by the Department Court granted the Department’s motions on the parents’ motions, denying the parents’ first in time, first in right, and denying parents access to the court and the right to be heard. A factor in the right to be heard is the right of a party to have their motions heard when it moves the motions rather than based on the moving of motions by the opposing party. Fuentes v. Shevin, 407 U.S. 67, 80 (1972) ("It is... fundamental that the right to notice and an opportunity to be heard must be granted at a meaningful time and in a meaningful manner." (internal quotation marks omitted)).

The Court abused its discretion for failing to enforce sanctions for Abuse of Discovery after the mother filed a Motion for Discovery Abuse Sanctions (C.R.82). The Court ignored the issue. The Court enabled the Department and opposing attorneys to conduct discovery after the 30-day deadline pursuant to TEX. R. CIV. P. 190.3 (b)(1)(A) by filing the Trial Preparation Order (C.R. 90) on March 3, 2019 when the Trial was scheduled for April 1, 2019 at the time. Marshall v. Jerrico, Inc., 446 U.S. 238, 242 (1980) (explaining that the "two central concerns of procedural due process" include "the prevention of unjustified or mistaken deprivations and the promotion of participation and dialogue by affected individuals in the decision-making process").

 The Court abused its discretion when it allowed Intervenors to enter the case when they did not meet the criteria for the standing pursuant to Tex. Fam Code §102.004(b). “Substantial past contact” has been found to involve more than seeing a child regularly during his or her life. Substantial past contact has been shown by parties who have “frequently cared for the children, lived nearby, and spent a great deal of time with the family. Blackwell v. Humble, 241 S.W.3d 707 (Tex. App. – Austin 2007, no pet.). The Courts have applied the standard definition of “substantial” from the Random House Dictionary as “of ample or considerable amount, quantity, size, etc.” and have evaluated the amount of actual contact and not the difficulties of the intervening party maintaining contact. In re C.M.C., 192 S.W.3d 866 (Tex. App. – Texarkana 2006, no pet.). A person with substantial past contact with a child will be unable to show evidence that the appointment of a parent as the managing conservator when facts show only speculation of potential harm if the parent is appointed conservator. In re S.M.D., 329 S.W.3d 8 (Tex. App. – San Antonio, 2010, pet. dismissed). The Intervenors did not even have regular contact with L.M.B.. The Intervenors cannot so much as speculate potential harm due to lack of substantial contact and therefore could not possibly present speculative reasons to the Court that custody by the mother and/or father would significantly impair L.M.B.s physical health or emotional development when they had no active involvement in L.M.B.s life.

The actions by the Court in corroboration with opposing attorneys deprived the parents of the ability to defend themselves and to prepare for trial because the parents were not fully informed as to what they were specifically defending. The mother and father were not informed that termination would be sought on grounds of Subsections (D), (E), and (O) until the Order of Termination was filed. The findings of fact and conclusions of law filed by the Court did not consist of facts in the form of articulable offenses or acts to reach conclusions that the parents did anything that met the criteria for Subsections (D), (E), and (O). The Findings of Fact only consisted of what was in judgment. The mother and father filed a request for amended and additional findings (C.R. 156 and C.R. 157) seeking a basis for the finding of Subsections (D), (E), and (O) in the form of articulable acts by each parent and were afforded no response.

This Court should reverse and render for abuse of discretion and void orders.

In closing, the Father and Mother do not wish to argue any of the Court’s bases as subsections or its “best interests” for entering its order of termination for the fact that the entire case was based on fraudulent misrepresentation and the actions by Department employees, attorneys and the Court in this matter are shocking at best. Any notion that the Appellants’ daughter’s best interest has been the focal point by anyone besides the Appellants is inconceivable.  

Those employed by Texas Department of Family and Protective Services in this matter went to great lengths to maintain a case and were caught red-handed throughout the matter violating the law and exceeding their authority. Employees of such agencies are not granted unlimited power, are not above the law, and are not entitled to violate their law or the peoples’ rights in the name of upholding the law.  

PRAYER

For the reasons stated within this brief, the Appellants request this Court to carefully consider the issues and facts presented and that this Court reverse the orders from the lower court because they are void for fraud. The appellants request their daughter be returned to their care. The appellants also seek any additional relief to which they are entitled.

Respectfully submitted,

Kevin Robert Bell

Father and Appellant

C/O PO Box 3191

Lubbock, Texas 79452

(806) 466-7702

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Traci Leigh Dillard

Mother and Appellant

C/O PO Box 3191

Lubbock, Texas 79452

(806) 777-1048

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CERTIFICATE OF SERVICE

I certify that on the 31st day of July 2019, this Appellants’ Brief was served on the Appellee’s counsel listed under Texas Rule of Appellate Procedure 9.5(b), through electronic service:

Jerry L. Reyes, Appellate Attorney

Texas Department of Family and Protective Services

2401 Ridgepoint Drive, Bldg. H-2

MC: Y-956

Austin TX 78754

Tel.: (512) 929-6816

Fax: (512) 339-5876

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State Bar No. 24057620

Kevin Robert Bell

Father and Appellant

C/O PO Box 3191

Lubbock, Texas 79452

(806) 466-7702

This email address is being protected from spambots. You need JavaScript enabled to view it.

Traci Leigh Dillard

Mother and Appellant

C/O PO Box 3191

Lubbock, Texas 79452

(806) 777-1048

This email address is being protected from spambots. You need JavaScript enabled to view it.