Rodriguez v. TDFPS (Tex.App.- Austin, May 8, 2008)

Mark Rodriguez and Carmen Rodriguez v. Texas Department of Family and Protective Services, No. (Tex.App.- Austin, May 8, 2008)() (TDFPS suits, SAPCR, supervised vistiation, limited access, pro se litigants) (Before Chief Justice Law, Justices Pemberton and Waldrop)
Mark Rodriguez and Carmen Rodriguez v. Texas Department of Family and Protective Services--Appeal from 421st District Court of Caldwell County

FROM THE DISTRICT COURT OF CALDWELL COUNTY, 421ST JUDICIAL DISTRICT
NO. 06-FL-018, HONORABLE TODD A. BLOMERTH, JUDGE PRESIDING

M E M O R A N D U M O P I N I O N

Mark Rodriguez and Carmen Rodriguez appeal from the final order in this suit affecting the parent-child relationship with their daughter, B. R. (1) The order appointed the Department of Family and Protective Services (FPS) as the permanent managing conservator and appointed both appellants as possessory conservators with limited visitation rights. Appellants complain that the trial court relied on hearsay, as well as fraudulent and unsubstantiated evidence. They also assert that the court made erroneous decisions and incorrectly required Mark Rodriguez to undergo sex offender therapy. We affirm.

The record on appeal consists only of the clerk's record. Appellants did not request the preparation of a reporter's record. They assert that no reporter was present during the final set of hearings, but that the judge presiding recorded proceedings on her laptop computer. Appellants assert that the clerk's record provides adequate evidence to support their complaints, rejecting FPS's argument that the absence of a reporter's record prevents this Court from reversing the order because we cannot review the evidence admitted at the trial.
Appellants also filed a Motion for Appellate Court to Provide Alternatives to Court Reporter's Record if Court Reporter Record is Required by Appellate Court, which this Court denied. In that motion, they asserted that, although they did not request a reporter, the absence of a reporter was a denial of their right to a fair hearing. They asserted that the clerk's office failed to include exhibits as requested. (2) The motion states that, despite the absence of these exhibits:
Appellants believe there is adequate evidence for the Appeals Court review of the case development, proceedings and conclusions. The undersigned requests that should the Appeals

Court mandate a transcript of the final hearing, then the Appellants request either:
• The Appeals Court to utilize the digital recording available from the Caldwell County court or
• Allow the Appellants' discretion on a partial transcription of the final hearing day of the six day trial.

Appellants asserted in the motion that preparation of the full reporter's record would be several thousand dollars and beyond their financial resources.

We overruled appellants' motion because their motion essentially asked this Court to decide for appellants how to pursue this appeal. This Court is a neutral arbiter and cannot direct a party's strategic decisions. (3) Under the rules, appellants have the burden of making many decisions, including what issues to present, what relief to request, what portions of the trial court record to request be included in the record on appeal, and how to craft a brief that best serves their interest. See Tex. R. App. P. 34.6(b), 38.1. The appellate court does not "mandate" a reporter's record absent the party's request and the reporter's failure to provide it. Appellants chose not to request the reporter's record, stating that they "believe there is adequate evidence for the Appeals Court review of the case development, proceedings and conclusions." Appellants have chosen to rely on materials in the clerk's record to support their issues presented, as is their prerogative. See Tex. R. App. P. 37.3(c).

In the absence of a reporter's record from a bench trial, a court must presume that the omitted proceedings are relevant to and support the trial court's judgment. Hebisen v. Clear Creek Indep. Sch. Dist., 217 S.W.3d 527, 538 (Tex. App.--Houston [14th Dist.] 2006, no pet.). Therefore, this Court must presume that (1) the trial court properly exercised its discretion to hear evidence regarding all of the issues, whether appealed or not, and (2) the trial court heard evidence that is legally sufficient to support its judgment. Id. This standard arguably would require that we affirm the final order without further deliberation. However, because of the importance of the rights at stake in this child custody case and because the clerk's record includes statements and affidavits, we will examine the issues presented in light of the documents in the clerk's record.

The clerk's record contains statements made to law enforcement by Carmen Rodriguez, appellants' children, and a neighbor about specific incidents and general conditions in the Rodriguez home. The taking of statements was apparently prompted by a report to a neighbor by appellants' 19-year-old daughter, J. R., of severe neglect, sexual and physical abuse, and long-term physical and emotional isolation. Authorities were contacted, and the family gave written statements.

In a statement dated January 8, 2006, Carmen recounted an incident in July 2003 in which "Mark was trying to hurt [her older daughters] and [an older son] was protecting [them]. . . . Mark is a violent person and frequently emotionally abusive. I did not know he was molesting my daughter [J. R.] until today."

According to their 25-year-old daughter, Monique, Mark "forces himself" on female family members, which she describes by saying "his presence makes [the girls in the family] and my mom uncomfortable and he will not leave them alone." The altercation Carmen recounted was, according to Monique's statement, prompted by Mark's increasingly heated inquiries into credit card balances. She also reported that "yesterday, January 7, 2005, I found out that [sisters J. R., C. R., and B. R.] were asked by Mark to take off their clothes so he can take pictures of them naked." (4)

Appellants' 28-year-old son, Lorran, corroborated the story about the credit card altercation. He added the detail that, before the altercation, Mark was angry because a friend of Carmen's--who Mark believed was advising her to divorce Mark--had called the house. Lorran also recounted an incident in which Mark asked Lorran and a sibling to get a gun and shoot him. Lorran said that J. R. told him that Mark tried to get the sisters to take nude photographs. Lorran said that his grandmother feared that Mark was going to hurt the remaining children if they stayed with him.

Appellants' 24-year-old daughter, Chantre, gave her account of the credit card altercation. She did not remember the details of the conversation, but she did recall Mark's anger and the tension as their brother attempted to block Mark's path to the daughters' room. She recalled getting between the men and preventing a physical struggle.

Appellants' 21-year-old son, Einnar, stated that Mark showed the three youngest sisters a pornographic magazine in 2000. He also wrote that Mark "reportedly molested them according to my 3 youngest sisters." Einnar stated that Mark tried to get the girls to join a strip club so that Mark could quit his job.

J. R. wrote that Mark physically abused her and her mother and "had been into child pornograp[hy] and molesting children as far back as I remember." She also stated that she and her siblings were victims. She wrote that she had been "forced to do sexual acts with" Mark "since I was 8-16 years old." She stated that he threatened her when she questioned their activities and became violent when she asked him to stop. She also recounted an incident in 2000 during which Mark drove her and her sisters to an isolated area, tied them down, and molested them individually. She wrote about more sexual assaults on her that occurred in 2001. She said that she eventually demanded that he stop, which he did, but that she stayed in the home to protect her sisters. Nevertheless, J. R. stated that Mark "started taking my two younger sisters alone in the van [he] currently has, I suspected he was abusing or molesting them because they would come back fearful & upset, soon later had suicidal thoughts & talk." Her account of the July 2003 incident included her memory that Mark threatened them with a shotgun. She stated, "This man has certainly the stalke[r] personality, that's why all fear him or reporting for help, it needs t[o] stop for my family's sake as well [as] others who are in danger, possibly other children."

Appellants' then-16-year-old daughter, C. R., confirmed that, six years earlier, Mark asked her and her sisters to pose nude for photographs so they could be rich. She testified that, in 2001, she and her siblings opened Mark's bag and found a magazine with pornographic images of 12-year-old girls. Mark was angry when he found the children and yelled at them. He yelled at J. R. and asked her "What did you see?" When she did not answer, he shook her and threw her down. She also recalled the July 2003 altercation, but did not recount a discussion preceding it. She did write that Mark yelled and was choking Lorran, then that Lorran began choking Mark. C. R. also recounted seeing Mark try to touch J. R.'s breast once while he was driving and J. R. was seated next to him in the front seat, and another time while they were watching a movie at home. C. R. stated that she did not see such behavior at other times but that J. R. "has told me it has happened more."

These allegations prompted authorities to arrest Mark for sexual assault and to ask further questions. Carmen stated that she did not believe J. R.'s accusations of sexual assault. Based on the initial allegations and Carmen's refusal to believe them, FPS removed the then-minor children--16-year-old C. R. and 13-year-old B. R.--from the parents' home.
Family members, including Mark and J. R., filed affidavits in February 2006 that explain, modify, or retract the statements they gave in January 2006.

Mark denied or explained why the allegations in the family's January statements did not support removal of the remaining minor children. He asserted that he did not fit the profile of a sexual abuser and that J. R. did not exhibit behaviors of a victim. He said that she demanded a lot of attention and persuaded the other girls to lie about him on January 7, 2006. He asserted that J. R.'s statement tracked the family code statutes as if a checklist had been used when neighbors assisted her in preparing her statement. Mark said that the July 2003 altercation was the result of financial and marital stress, that no gun was involved, that no choking or fistfight occurred, and that it was simply a wrestling match that was over in a few minutes. He said that the magazine that C. R. reported finding in his bag was not child pornography because that is illegal and not obtainable at the New Braunfels convenience store where the magazine was purchased, and that the photo was of a subject with a child-like face. Mark contended that the allegations were not supported by a preponderance of evidence and did not support removal of the children.

In Carmen's affidavit, she averred that she never saw J. R. show behaviors typical of abuse
victims. Carmen is a registered nurse. She asserted that J. R. is outgoing and has a good relationship with Mark. Carmen stated that she did not know what to say in her written statement, but that the detective who questioned her and her family for five hours insisted that they put something down. She said that her statement that "'[h]e is a violent person' refers to the incident when he damaged a dog kennel during a temper flare up when my daughter [J. R.] disrespectfully said Mark 'ate like a pig' on his birthday in April 2002." Otherwise, she had not seen him be violent. Her statement that Mark was "frequently emotionally abusive" referred only to his insistence on remaining married despite her "constantly asking for us to separate." Since their debts had been discharged in bankruptcy in January 2006, she said the stress had eased and she believed their marriage could work.

Lorran filed an affidavit in which he denied that Mark ever pointed a gun at anyone. He said he had never seen pornography in their house, their vehicle, or computers, nor had he seen Mark naked. He said he generally tends to disregard his grandmother's statements as outlandish. He corroborated Mark's version of the July 2003 altercation as being overreactions by him and his father, and said that no weapons, choking, punching, fist fighting or kicking was involved. Lorran said that, since J. R. told him about Mark's request that the girls be photographed nude, he had watched their interactions. He said he had noticed no unusual or inappropriate affection or conversation between Mark and J. R. Lorran said that J. R. demands attention and is prone to lying. He recounted several of J. R.'s outbursts, including one in which her father was repairing a shower, and J. R. began throwing his tools and screaming "get out," claiming that Mark had beat her cat with tools; Lorran found the cat uninjured. Lorran said that once, when J. R.'s bike got a flat tire, she refused his offer of a ride home, claiming that he had "summoned devils out to cause her tire to go flat."

Monique also elaborated on her statement. She said she mentioned the July 2003 altercation because the detective "insisted we put something down on paper or it would look suspicious." When she said her mother received most of the emotional abuse, she meant that Mark is very persistent about wanting to talk problems out, in contrast to Carmen, who does not like to talk when she is upset. Monique wrote that massive credit card debt was a source of tension. She wrote that her statement that Mark "forces himself on the girls" referred to his persistence in maintaining communication and his desire to spend time with them on his days off. She said she had never seen him with pornography and had never heard the accusations about his desire to take nude photographs of the younger girls before January 2006.

Chantre also averred that she wrote something down in her statement just to appease the detective. She added that Mark never threatened them with a gun. She denied ever seeing her sisters with unexplained injuries. She said that J. R. was always very vocal and would have complained had something been wrong. Chantre wrote that J. R. was very emotional and susceptible to uncontrolled emotional outbursts over trivial events. Chantre wrote that she had never seen or heard any sexual abuse and had not seen her father naked.

J. R. later filed an affidavit in which she recanted all of her accusations. She described in great detail how she used the opportunity provided by her neighbor's belief that abuse was occurring in the house as a way to get Mark to stop looking at pornography. She said that her neighbor was obsessed with her family and believed that God had sent her to protect the Rodriguez children--to the extent that she had moved from another town at the insistence of audible disembodied voices. J. R. stated that she embellished the facts by alleging that her father's pornography was of children, by inventing the allegation that he wanted to take nude photographs of her and her sisters, and by inventing the allegation that he sexually abused her. She averred that she made up these allegations hoping to shock her father into renouncing pornography. She stated that she had been manipulated by others and that, when she realized the true effect of her false allegations, she regretted and recanted them. She stated that her neighbor threatened that God would reject J. R. if she recanted her testimony.

Carmen later filed a complaint with the Texas Department of State Health Services regarding actions by licensed substance abuse counselor Carrie Roper. Carmen asserted that Roper conspired with her neighbor to persuade J. R. that she had repressed memories of sexual abuse. Carmen also asserted that Roper's giving J. R. a book on the theory of repressed memories as well as associated counseling, violated state licensure laws barring counseling personal friends.
Carmen filed a complaint with the Texas State Board of Medical Examiners that her father-in-law, Dr. J. A. Rodriguez, violated his professional responsibilities and duties prompted by his interaction with J. R. According to the complaint, Dr. Rodriguez is an 81-year-old retired physician who received e-mails from J. R. in which she claimed Mark had physically and sexually abused her. Carmen complained that, instead of reporting the allegations of abuse to authorities or to the family, Dr. Rodriguez corresponded with J. R., "diagnosing Mark (via what [J. R.] said in her e-mails) as being 'mentally ill', 'he will kill someone if he gets into a rage' and 'I am afraid for the safety of the family.'" Carmen then reported that Dr. Rodriguez disagreed with their choice to home-school their children and had not maintained regular communication with the family during her marriage to Mark. She asserted that Dr. Rodriguez changed his views of J. R. when he learned that J. R was making some sort of allegations against him, deeming J. R. "'bipolar', 'paranoid schizophrenic', and 'crazy' and 'if you let her back in your house watch your back because she will put a knife in your chest.'" Carmen complained that Dr. Rodriguez engaged in unprofessional conduct in his e-mail communications with J. R. and violated his duty to report J. R.'s allegations if he believed them.

A service plan was adopted that allowed the girls to live at home with their mother, provided they had no contact with the males in the family. The plan required that the parents attend various types of classes and counseling, which they did. After finding that appellants had violated the court's requirement that they not discuss the case with their children, the court removed the children from their mother's home and directed FPS to place them. The males in the family were then permitted to return to the family's home. A subsequent order prohibited Mark from having contact with the two girls. (5) Before the final hearing, C. R. turned eighteen and was no longer a subject of this proceeding. Each appellant had legal counsel who were later allowed to withdraw because appellants no longer wished to retain them.

The final order under appeal here establishes FPS as the permanent managing conservator for B. R., naming appellants possessory conservators. The order permits Carmen to have weekly supervised visits with B. R. as well as unsupervised visits "upon the recommendation of a therapist. Mrs. Rodriguez may choose the therapist." The order permits Mark to have supervised visits with B. R. "until the criminal case is resolved. Once his criminal case is resolved he may continue to have supervised visits only if he attends sex offender therapy." According to appellants, the criminal charges against Mark were dismissed two days after the final hearing in this case.

Appellants present several issues. They contend that the trial court erred by (1) relying heavily on hearsay, conjecture, and unsupported evidence, (2) using only fraudulent, selective evidence, (3) validating FPS's actions in removing the children without a court order or following proper procedures, (4) determining that Carmen failed to supervise and was not protective without establishing that abuse occurred, (5) requiring Mark to undergo sex offender therapy, and (6) relying heavily on the report by FPS's expert, Matthew Ferrara, which they allege was based solely on conclusions relying on the veracity of J. R.'s original accusations.

In their first issue, appellants complain that "hearsay was the major part of the evidence presented in the form of emails, perjured testimony, suppressed documents and unsupported accusations against the appellants." We do not know what documents were admitted as evidence during the trial. Nevertheless, we find no error if the evidence complained of was the documents in the clerk's record. The rules of evidence provide that error cannot be shown in a ruling admitting or excluding evidence unless "a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context" or, "[i]n case the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer, or was apparent from the context within which questions were asked." See Tex. R. Evid. 103(a). The rules of appellate procedure similarly require the following:

As a prerequisite to presenting a complaint for appellate review, the record must show that:
(1) the complaint was made to the trial court by a timely request, objection, or motion that:
(A) stated the grounds for the ruling that the complaining party sought from the trial court with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context; and
(B) complied with the requirements of the Texas Rules of Civil or Criminal Evidence or the Texas Rules of Civil or Appellate Procedure; and
(2) the trial court:
(A) ruled on the request, objection, or motion, either expressly or implicitly; or
(B) refused to rule on the request, objection, or motion, and the complaining party objected to the refusal.

Tex. R. App. P. 33.1(a). The record before us does not contain any objections to the evidence. We find no indication that evidence was suppressed, or that suppressed evidence was considered. Whether evidence is credible or supported generally affects the weight accorded the evidence. For the court to be required to entirely disregard evidence, an objection or other means of exclusion had to be made. No error is shown by the court's consideration of unobjected-to evidence.

In their second issue, appellants contend that "fraudulent evidence was used to fundamentally deny fair procedures before child removal, a right included in procedural due process." The substance of the argument in their brief pertains to FPS's use of evidence derived from J. R.'s original accusations that Mark sexually assaulted her, even though she later recanted those accusations. Appellants contend that suppression by the prosecution of material evidence that is favorable to an accused violates due process, as does a prosecutor's knowing presentation of false testimony or failure to correct testimony he knows is false. This is not a prosecution, however, and more to the point, the record before us does not demonstrate that J. R.'s statements recanting her January statements were suppressed, that FPS's attorney knew that J. R.'s original accusation was false, or that the original accusation is necessarily false. At least one of J. R.'s contrary statements, her affidavit dated June 8, 2006, is in the clerk's record. More may have been admitted at trial, but we do not have that record before us. Recantation of an earlier statement--however forceful or repeated--does not necessarily make the earlier statement false. The recantation itself may be false. (6) The resolution of the contradiction is a credibility issue for the factfinder. The Department did not commit fraud or violate anyone's rights merely by offering a recanted statement and, on this record, the court did not err by admitting or considering it.

In their third issue, appellants contend that "the Fourth Amendment was violated (among many others) since there was no probable cause established for child removal." Appellants complain that FPS did not conduct a sufficiently thorough investigation before removing C. R. and B. R. from their home. (7) Appellants assert that FPS lacked probable cause to seize the children on January 11, 2006, and that there was no evidence the children were in imminent danger. It is not entirely clear how the evidentiary basis for the initial removal relates to any alleged error in the final order rendered after a full hearing. Nevertheless, we will examine whether FPS had any sound basis for removing the children on January 11, 2006.

A qualified person can remove children without a court order under limited circumstances, including based "on information furnished by another that has been corroborated by personal knowledge of facts and all of which taken together would lead a person of ordinary prudence and caution to believe that" either "there is an immediate danger to the physical health or safety of the child" or "that the child has been the victim of sexual abuse." Tex. Fam. Code Ann. § 262.104(a) (West Supp. 2007). In statements to a Caldwell County Sheriff's Office investigator dated January 8, 2006, the family members recounted or reported hearing of incidents of Mark making threats, physically assaulting one child, encouraging then-minor girls to pose nude for pictures, and sexually abusing at least one girl. In her affidavit in support of FPS's original petition, filed January 13, 2006, FPS specialist Marijo Shearin recounted the statements the family had given, supplemented by additional reports of abuse and statements taken from the younger daughters in interviews at the children's advocacy center. Shearin also reported that, on January 11, 2006, Carmen reported that she had posted bond for Mark after his arrest for sexual assault and stated that she did not believe J. R.'s accusations of sexual abuse. Shearin concluded that there was an immediate danger to the children in the home because of the reported abuse by Mark and his probable imminent return to the home. The information Shearin described in her affidavit does not appear materially different from the information she had on January 11, 2006, when she made the decision to remove the children from the home. We conclude that appellants have not shown error in the initial removal requiring reversal of the trial court's final order.

In their fourth issue, appellants contend that, "without established abuse, there can be no failure to supervise and protect." This appears to be a challenge to the sufficiency of the evidence to support the trial court's decision not to name Carmen as a managing conservator and specifically references the failure to establish sexual abuse by Mark. They also argue that Caldwell County unlawfully suppressed J. R.'s affidavit of nonprosecution and petition to rescind a fraudulently obtained protective order.

The primary consideration in conservatorship cases is the best interest of the child. Tex. Fam. Code Ann. § 153.002 (West 2002). A parent (or both parents) will be appointed sole (or joint) managing conservator "unless the court finds that the appointment of the parent or parents would not be in the best interest of the child because the appointment would significantly impair the child's physical health or emotional development." Id. § 153.131(a). FPS's burden of proof is preponderance of the evidence. Id. § 105.005; see also In re W.M., 172 S.W.3d 718, 724 (Tex. App.--Fort Worth 2005, no pet.). The standard of review for determinations of a child's best interest and conservatorship is abuse of discretion. Id. An abuse of discretion occurs only when the court acts arbitrarily, unreasonably, or without regard to guiding rules and principles. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990).

The record before us does not demonstrate that the trial court abused its discretion by refusing to make Carmen a managing conservator. The trial court was required to assess the best interest of the child, not merely whether Mark sexually abused one of the daughters and Carmen ignored it. We do not know what evidence was admitted at trial. The clerk's record contains the original statements from the family and others discussing various incidents of emotional, physical, and sexual abuse. It also contains reports that Carmen rejected J. R.'s accusations. The record also contains affidavits from family members explaining, contradicting, or withdrawing their original statements. Where conflicting evidence is in the record, the trial court as factfinder must resolve the conflict. Great Am. Ins. Co. v. Murray, 437 S.W.2d 264, 266 (Tex. 1969); Intec Sys., Inc. v. Lowrey, 230 S.W.3d 913, 920 (Tex. App.--Dallas 2007, no pet.). We must defer to the factfinder's credibility determinations, particularly when custody is at issue. See Sotelo v. Gonzales, 170 S.W.3d 783, 789 (Tex. App.--El Paso 2005, no pet.); see also City of Keller v. Wilson, 168 S.W.3d 802, 819 (Tex. 2005). On the record presented to us, we cannot say that the trial court abused its discretion when determining from the evidence before it that the best interest of the child was better served by not having her parents as managing conservators.

In their sixth issue, appellants contend that "Dr. Matthew Ferrara's findings, conclusions and recommendations are not valid since they were based on outcry victim's false allegations of sexual abuse which are unsupported by medical evidence." This issue apparently relates to the sufficiency of the evidence underlying the trial court's order because the trial court ordered that B. R. "NOT be placed with her parents unless recommended by Dr. Matthew Ferrara." Appellants do not cite this Court to a report by Dr. Ferrara in the record. Appellants assert that, in late 2006, Dr. Ferrara strongly recommended sex offender treatment for Mark as an assurance that he is safe with children. Appellants assert that this report did not refer to the later affidavits or motions by J. R. and others contradicting the initial claims of sexual and other abuse. Appellants also assert that Dr. Ferrara strongly encouraged Mark to take a polygraph examination, after which the administrator opined that Mark's performance indicated deception--though about what precisely the record is not clear. In addition to attacking the reliability of polygraphs, appellants contend that Mark suffered an anxiety or panic attack from the administration of the test. He also contends that FPS workers used psycho-sexual evaluation tools on him that are not appropriate for persons who have not admitted guilt. We cannot evaluate the validity of Dr. Ferrara's findings on the record before us. As we have concluded above, without reference to Dr. Ferrara's findings, the record before us does not show an abuse of discretion in the court's conservatorship decision. Even if Dr. Ferrara's findings are flawed, reliance on them would not necessarily show reversible error.

In their fifth issue, appellants assert that, "since the father did not abuse the child as established by lack of objective findings, requiring the father to make an admission by court ordered sex offender therapy would be asking the father to lie and commit perjury." Appellants argue that Mark is being placed in the untenable position of remaining silent in court-ordered therapy, resulting in the loss of his child, or falsely confessing to abuse, resulting in a loss of liberty. He equates this to court-ordered confession. We do not agree that attending therapy is equivalent to an admission that he has committed abuse. Mark is not being prosecuted for sexual assault and the conservatorship decision has been made without any express finding regarding sexual abuse. There is no showing that the court-ordered therapy requires that Mark confess to sexual abuse. The therapist may instead conclude that Mark did not commit any sexual abuse and, with Mark's permission, inform the trial court of that conclusion. In any event, Mark could not commit perjury in his therapy sessions because he would not be under oath or an inmate making an unsworn declaration. See Tex. Penal Code Ann. § 37.02 (West 2003) (defining perjury). Appellants' fifth issue does not present reversible error.

We affirm the trial court's order.

G. Alan Waldrop, Justice
Before Chief Justice Law, Justices Pemberton and Waldrop
Affirmed
Filed: May 8, 2008

1. Appellants proceeded pro se in the trial court and appear pro se on appeal.
2. Exhibits offered or admitted at trial properly accompany the reporter's record and must be requested from the reporter. See Tex. R. App. P. 34.6(b)(1).
3. Appellants' pro se status does not affect this Court's role. "Litigants who represent themselves must comply with the applicable procedural rules, or else they would be given an unfair advantage over litigants represented by counsel." Mansfield State Bank v. Cohn, 573 S.W.2d 181, 185 (Tex. 1978).
4. The 2005 date noted in the statement appears to be an error. The statement was dated January 8, 2006.
5. Appellants asserted in their status report that this change was the result of Mark taking a polygraph examination at which the examiner determined there was deception indicated. Appellants contended that the result was due to Mark's anxiety when placed in unfamiliar processes or situations akin to being in a dentist's chair, which he finds difficult.
6. While the premise that a recantation, rather than the original statement, may be false is self-evident, it has been noted that child victims of familial sexual assault may feel unique pressure to make a false recantation. See Gonzales v. State, 4 S.W.3d 406, 418 (Tex. App.--Waco 1999, no pet.).
7. Appellants also assert that the removal deprived the children of due process under the Fifth and Fourteenth Amendments. The children are not named parties to this appeal and their rights cannot be asserted by the parents as individuals, which is the only way that appellants have appealed.

TDFP v. Barlow (Tex.App.- Austin, Jun. 28, 2007)

TDFP [fka CPS] v. Barlow (Tex.App.- Austin, Jun. 28, 2007)(Majority Opinion by Pemberton)

AFFIRMED: Opinion by Justice Pemberton
See ---> Dissenting Opinion by Patterson
Before Justices Patterson, Pemberton and Waldrop

Texas Department of Family and Protective Services v. Jennifer Barlow
Appeal from 98th District Court of Travis County

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 98TH JUDICIAL DISTRICT
NO. GN401059, HONORABLE LORA J. LIVINGSTON, JUDGE PRESIDING

MEMORANDUM OPINION BY PEMBERTON

The Department of Family and Protective Services (1) appeals from a final judgment of the district court reversing its order that Jennifer Barlow was a person responsible for the "neglect" of children whose name should be placed on the Department's central registry of "designated perpetrators" of child neglect. The district court held that the Department's order was not supported by substantial evidence. We affirm the district court's judgment.

BACKGROUND

At relevant times, Barlow was a case manager for a private child-placing agency licensed by the Department, For Children's Sake. (2) For Children's Sake maintained relationships with certain foster homes, and would place foster children in those homes. Barlow oversaw the care and condition of foster children assigned to her during their placements in the agency's foster homes.

On August 3, 2003, one of the foster children assigned to her--an eight-year-old boy, K.M.--sexually "acted out" on another, J.L., a four-year-old boy, during their temporary respite placement in the foster home of Isabel and Don Barron. Ms. Barron discovered the pair in bed and found K.M., his pants down, with an erection, on top of J.L., who was clothed. A second four-year-old boy, A.A., was sitting in the room.

This incident was reported to the Department, which is charged with investigating reports of alleged child "abuse" or "neglect" by "person[s] responsible for a child's care, custody or welfare." Tex. Fam. Code Ann. § 261.301(a), (e) (West 2002). (3) Child "abuse" and "neglect," as well as "person[s] responsible for a child's care, custody or welfare" within the Department's jurisdiction, are defined in section 261.001 of the family code. Id. § 261.001(1), (4), (5) (West 2002). If the Department staff concludes, by a preponderance of the evidence, that an individual "is responsible for abuse or neglect of a child for whom that person has responsibility for care, custody or welfare as defined by [family code] § 261.001(5)," it makes a "summary finding" that the individual is a "designated perpetrator" of the abuse or neglect. 40 Tex. Admin. Code § 700.512(b)(2) (2003). (4) Such a finding, unless overturned, has consequences that include the placement of information regarding the "designated perpetrator" of the "abuse" or "neglect" in the Department's central registry. See Tex. Fam. Code Ann. § 261.002 (West 2002); 40 Tex. Admin. Code § 700.104 (2003). This information would be disclosed to third parties, for example, whenever a child-care provider ran a required background check on a prospective hire. See 40 Tex. Admin. Code §§ 745.611, .615 (2003).

Initially, the Department did not assign the incident report as a potential abuse or neglect investigation. It did so, however, after additional information came to light that, as the Department's representative put it, "this was not just . . . the average eight-year-old playing . . . doctor or whatever with a four-year-old," but "this eight-year-old had an extensive history of sexually acting out with other children and his siblings." The Department's staff began to investigate the incident as involving possible neglectful supervision of the children. (5) The Barrons, the foster parents, were initially identified as "alleged perpetrators," or suspected as being responsible for the alleged neglectful supervision. 40 Tex. Admin. Code § 700.521 (2003). The incident, the parties agree, occurred one morning after Isabel Barron had left K.M., J.L., and three other foster children unattended while they ate breakfast in the kitchen, and retired to her bedroom and master bathroom, closed her door, and prepared for the day. Five to ten minutes later, Ms. Barron later heard sounds coming from a bedroom and discovered K.M. "acting out" with J.L., as described earlier.

As the investigation proceeded, however, the Department's focus shifted to Barlow based on assertions by the Barrons that Barlow never fully disclosed the full nature of K.M.'s behaviors to them or explained how to supervise him. Also significant to the Department was the fact that Barlow had learned, on the day before the incident, that the Barrons were permitting K.M. to share a bedroom with the two four-year-old boys. The Department's staff ultimately ruled out the Barrons but found "reason-to-believe" that Barlow was a "designated perpetrator" of "neglect" of both J.L. and K.M. See id. §§ 700.511(1) & (2), .512(2) (2003).

Barlow requested an administrative review of this determination, see Tex. Fam. Code Ann. § 261.309(c) (West 2002), which sustained the original findings. She then requested a "release hearing," a proceeding governed by the Administrative Procedures Act (APA) in which the Department had the burden to establish its administrative findings by a preponderance of the evidence. 40 Tex. Admin. Code §§ 700.601-.605 (2003). The Department referred the case to the State Office of Administrative Hearings, where a contested case hearing was held before an administrative law judge.

Following the hearing, as noted, the Department rendered an order sustaining its administrative findings. The district court reversed this order, finding that it was not supported by substantial evidence. The Department appeals.

DISCUSSION

The Department's order rested upon two ultimate legal conclusions, both of which were required to support its placing Barlow's name in the central registry: (1) that Barlow "was a person responsible for the care, custody, or welfare of K.M. and J.L., as set out in Tex. Fam. Code Ann. § 261.001(5)," and thus within the class of persons subject to having their names placed on the Department's central registry; and (2) that "[b]ased on the above Findings of Fact, the Department proved by a preponderance of the evidence that [Barlow] neglected a child, as neglect is defined by Tex. Fam. Code. Ann. § 261.001(4)." On appeal, the Department contends that substantial evidence supports both of these legal conclusions.

Whether the Department's order was supported by substantial evidence is a question of law. Montgomery Indep. Sch. Dist. v. Davis, 34 S.W.3d 559, 562 (Tex. 2000). The district court's judgment is thus not entitled to deference on appeal. Texas Dep't of Pub. Safety v. Alford, 209 S.W.3d 101, 103 (Tex. 2006) (per curiam). On appeal of that judgment, we consider the same question presented to the district court: whether the Department's order was supported by substantial evidence. See Montgomery, 34 S.W.3d at 562.

The APA authorizes courts to "test the agency's findings, inferences, conclusions, and decisions to determine whether they are reasonably supported by substantial evidence considering the reliable and probative evidence in the record as a whole." Texas Dep't of Pub. Safety v. Latimer, 939 S.W.2d 240, 244 (Tex. App.--Austin 1997, no pet.) (citing Texas Health Facilities Comm'n v. Charter Med.-Dallas, Inc., 665 S.W.2d 446, 452 (Tex. 1984)). We are to presume that the agency decision is supported by substantial evidence, and Barlow has the burden of overcoming that presumption. Granek v. Texas State Bd. of Med. Exam'rs, 172 S.W.3d 761, 778 (Tex. App.--Austin 2005, no pet.) (citing Charter, 665 S.W.2d at 452). We may not substitute our judgment for that of the Department, and may consider only the record on which the agency based its decision. Id.

The crux of a substantial evidence analysis is whether the agency's factual findings are reasonable "in light of the evidence from which they were purportedly inferred." Id. (citing John E. Powers, Agency Adjudications 163 (1990)). Substantial evidence does not mean a large or considerable amount of evidence, but rather such relevant evidence as a reasonable mind might accept as adequate to support a conclusion of fact. Hinkley v. Texas State Bd. of Med. Exam'rs, 140 S.W.3d 737, 743 (Tex. App.--Austin 2004, pet. denied). The evidence in the record may actually preponderate against the agency's decision and nevertheless amount to substantial evidence. Latimer, 939 S.W.3d at 244. The agency determines the meaning, weight, and credibility to assign conflicting evidence, Texas State Bd. of Med. Exam'rs v. Scheffey, 949 S.W.2d 431, 437 (Tex. App.--Austin 1997, pet. denied), and we may not set aside an agency decision because testimony was conflicting or disputed or because it did not compel the agency's decision. Firemen's & Policemen's Civil Serv. Comm'n v. Brinkmeyer, 662 S.W.2d 953, 956 (Tex. 1996). We are ultimately concerned with the reasonableness of the agency's order, not its correctness. See id.

A court reviewing an agency action "shall reverse and remand the cause to the agency when substantial rights of the appellant have been prejudiced by an agency's findings that are not reasonably supported by substantial evidence considering the reliable evidence in the record as a whole." Hinkley, 140 S.W.3d at 743; see Tex. Gov't Code Ann. § 2001.174(2)(E) (West 2004).
We turn first to the Department's conclusion that "[b]ased on the above Findings of Fact, the Department proved by a preponderance of the evidence that [Barlow] neglected a child, as neglect is defined by Tex. Fam. Code. Ann. § 261.001(4)." Family code section 261.001(4) defines "neglect," in relevant part, as "failing to remove a child from a situation that a reasonable person would realize requires judgment or actions beyond the child's level of maturity, physical condition, or mental abilities and that results in bodily injury or a substantial risk of immediate harm to the child." Tex. Fam. Code Ann. § 261.001(4)(B)(i). Consequently, the Department's finding of neglect requires substantial evidence of four elements: (1) a "situation"; (2) the "situation" is one "that a reasonable person would realize requires judgment or actions beyond the child's level of maturity, physical condition, or mental abilities"; (3) the "situation" results in bodily injury or "a substantial risk of immediate harm" to the child; and (4) the person failed to "remove" the child from the "situation." Regarding these elements, the Department made the following findings of ultimate fact:

18. [Barlow's] failure to remove K.M. and J.L. from a situation in which they shared a bedroom and her failure to immediately insist upon appropriate supervision of K.M exposed these children to substantial risk of immediate harm.
19. A person acting reasonably would have realized that failure to immediately remove K.M. and J.L. from the situation described in Finding 18 placed these children in a situation requiring judgment or actions beyond their level of maturity, physical condition, and mental abilities.
See id. Thus, as reflected in Finding 18, the relevant "situation" found by the Department was (1) J.L. and K.M.'s sharing of a bedroom; and (2) Barlow's "failure to immediately insist upon appropriate supervision of K.M." This situation, in turn, resulted in "substantial risk of immediate harm" to J.L. and K.M., according to the Department. A "substantial" risk denotes one that is "actually existing; real; not seeming or imaginary; not illusive; solid; true; veritable." Black's Law Dictionary 1428 (6th ed. 1990). "Immediate harm" denotes harm resulting "[n]ext in line or relation; directly connected; not secondary or remote" from the "situation." See id. at 749. The term also has temporal connotations, "either instantly or without a considerable loss of time." Id. We have previously equated the statutory term "immediate" with "impending" and "imminent." See Millslagle v. State, 81 S.W.3d 895, 898 (Tex. App.--Austin 2002, no pet.). And "imminent danger," we have observed, means that which is "'ready to take place, near at hand, impending, hanging threateningly over one's head, menacingly near.'" Id. (quoting Elder v. State, 993 S.W.2d 229, 230 (Tex. App.--San Antonio 1999, no pet.) (quoting Devine v. State, 786 S.W.2d 263, 270 (Tex. Crim. App. 1989))). We also noted that "imminent" danger requires more than "a situation that is potentially dangerous." Id. In sum, the Department relies on findings that (1) J.L. and K.M.'s sharing of a bedroom and (2) Barlow's "failure to immediately insist upon appropriate supervision" of K.M. gave rise to an actual, real risk of harm as a direct, temporally proximate result of (1) or (2). As the acts of sharing a bedroom and failure to "insist upon appropriate supervision" do not inherently give rise to a risk of immediate harm, the relevant "harm" underlying Finding 18 must logically be K.M.'s sexualized behaviors. The Department's underlying findings concerning those behaviors are:

12. In July and August 2001, K.M. was eight years old. He was sexually abused as a small child and had observed adults engaging in sexual behavior.
13. By the time he was four years old, K.M. was emulating the sexual behavior to which he had been exposed. Since then he has had an extensive history of sexually acting out.
14. At the time of the incident, K.M.'s sexual acting out had begun to improve; he had been caught sexually acting out only three or four times in the previous year.
While these findings suggest that K.M. could potentially perpetrate sexual acts on other children if he shared a bedroom with J.L. or if Barlow "fail[ed] to immediately insist upon appropriate supervision of K.M." at the time she learned of the sleeping arrangements, they alone fall short of identifying a substantial risk that K.M. would sexually perpetrate as an immediate, direct result of that situation. To the contrary, the Department found that "[a]t the time of the incident, K.M.'s sexual acting out had begun to improve," and that he "had been caught sexually acting out only three or four times in the previous year."

Barlow, other For Children's Sake personnel, and Department representative Penny Massengill did testify to the general understanding among caseworkers that K.M. continued to require continuous line-of-sight supervision when around younger children, and there was some evidence that he did pose a risk of "acting out" that is not fully reflected in the Department's findings. (6) Based on the record as a whole, whatever risk K.M. might have presented existed whenever he was around younger children unsupervised, wherever that might be. The Department's representative, Penny Massengill, admitted that K.M. presented a risk in any room in the house, or even outside, if he was left unsupervised with younger children. Further, Massengill expressed strong doubts that K.M. could be entirely supervised, as a practical matter. Massengill observed that "[i]t is an impossibility to supervise a child 24 hours in a foster home" and said, "I think it was unreasonable for a professional to place foster parents in a situation where they had to allegedly supervise an eight-year-old child 24 hours." Given the risk she believed K.M. presented, Massengill opined, "I don't think the children should've been placed together, first of all." In fact, there is evidence that, following the incident, K.M. was placed in a home with older children, where he would not have any access to younger children.
Massengill and other witnesses also expressed concern with the children's placement in the Barron home in particular. For approximately four years preceding the incident, K.M., his brother J.M., and a sister had been placed in a foster home (the Davis foster home) that had been equipped with monitors or alarms that helped the Davises ensure that K.M. did not enter the rooms of other children while the Davises were asleep at night. The Barron home was not equipped with such devices. Other evidence indicated that For Children's Sake personnel had concerns about the Barrons' capabilities as foster parents, including the quality of their supervision of children. The ALJ appeared to credit this testimony, and further noted evidence that For Children's Sake had "counseled the Barrons and placed certain restrictions on their home." Stephanie Rogers, a For Children's Sake caseworker at the time of the incident, recounted, "My first concern was thinking that the children didn't need to be placed there at all, that it was a mistake to place high risk children with foster parents that we already had concerns about."

The record reflects that K.M., his two siblings, and the four-year-olds, J.L. and A.A., all came to be placed in the Barron home on an emergency, temporary respite basis beginning on July 18, 2001. All five children had been living in the Davis foster home. After K.M.'s sister made abuse allegations (later determined to be unfounded) against one of the Davises, the children were required to be removed pending investigation of the allegations. The five children were placed in the Barron home because it was the only home with room available to accommodate all of the children. The children were kept together, rather than being placed in different homes, to preserve some stability amid the upheaval of being removed from their normal foster home.
It is undisputed that the decision to place K.M. and the other children in the Barron home was controlled by persons other than Ms. Barlow. Perhaps for this reason or others, the Department does not seek action against Barlow for the placement of the children together under the conditions present in the Barron home. We further observe that the Department made no findings, nor did the Department present evidence, concerning whether or how Barlow could have removed K.M. or other children from the Barron home and placed them elsewhere. Although Barlow had a "Level One" child-placing classification with legal authority to place children, see 40 Tex. Admin. Code § 720.36 (2003), the Department never elicited evidence that any relocation options were in fact available or that Barlow's For Children's Sake superiors would allow such a move. Again, it was Barlow's superiors--not her--that approved the placement of the children in the Barron home, and this decision was driven largely by the availability of space to house the children. The record, in short, is silent concerning the choices that Barlow had on August 2, and it was the Department's burden to prove that, in fact, Barlow had choices. (7)

Instead, the Department relies on findings that Barlow failed to "remove" J.L. and K.M. from the "situation" of sharing a bedroom or to "immediately insist upon appropriate supervision of K.M.," and that it was these acts or omissions that "exposed" the children to the "substantial risk of immediate harm" presented by K.M.'s behaviors. Based on the record considered as a whole, there is not substantial evidence to support those findings.

Whatever risk K.M.'s unsupervised behavior presented was not unique to his location when around younger children, and it would have remained even if Barlow had compelled the Barrons to change the sleeping arrangements. As Massengill acknowledged, the risk presented by K.M.'s behaviors would have been present anywhere in the Barron home--or even outside it--if K.M. was left unattended with younger children. In fact, K.M. perpetrated on J.L. after Ms. Barron left K.M. and the other children unattended in the kitchen, during daytime. The Department made no findings explaining the singular significance that it accords to the fact that the children shared a bedroom. (8) In its PFD, the ALJ observed that the incident ultimately occurred in the shared bedroom and offers the brief, oblique comments that "the shared bedroom was also where the children's clothes and personal items were kept. It was where they dressed for the day, and it was presumably a place to which they would naturally gravitate and feel at home. This appears to be what occurred the morning of August 3, 2001." This would seemingly be true of any room in the house where the children enjoyed spending time. Absent further findings regarding exactly how the children came to be in the bedroom at the time of the incident, there is not substantial evidence that the sleeping arrangements exposed the children to any risk not already present in K.M.'s placement in the Barron home.

As for Barlow's "failure to immediately insist upon appropriate supervision of K.M.," the ALJ credited testimony that the Barrons were aware of K.M.'s behaviors and that Barlow and other For Children's Sake personnel had warned them to supervise K.M. constantly when around younger children. Barlow testified that on the evening of July 18, 2001, when she moved the children to the Barron home for respite care, she admonished Ms. Barron that "she could not leave [K.M.] alone with the two four-year-olds." Stephanie Rogers testified that she had delivered clothes for the children later that evening and reiterated to Mr. Barron that due to K.M.'s history, he required constant supervision, could not be left alone with the four-year-olds, and would sexually act out with them if given the opportunity. Rogers recounted that Mr. Barron responded that he had kept K.M. many times for respite care and that he knew about K.M.'s behaviors. The Barrons' prior relationship and knowledge of K.M.'s behaviors was corroborated by evidence of correspondence from Ms. Davis, the regular foster mother, in which she stated that the Barrons had provided respite care for K.M. six or seven times over the last few years and that "they were aware of his behavior." Ms. Barron testified; her husband did not. She professed never to have been given any particular warnings or instruction about K.M.'s behaviors and acknowledged only a vague statement by Mr. Davis, K.M.'s regular foster father, to the effect that K.M. had unspecified "sexual issues." The ALJ, however, dismissed Ms. Barron's testimony as "confused and unpersuasive." Deferring to the fact-finder's assessment of the credibility and weight of the competing testimony regarding supervision, the record establishes that the Barrons were aware of and had experience with K.M.'s behaviors, and had been instructed by Barlow and others not to leave K.M. alone with the four-year-olds.
Massengill, who investigated the incident for the Department, explained that she had found Barlow to be a "designated perpetrator" of "neglect" based on her understanding that the Barrons had never been admonished about K.M.'s tendencies and to never leave him unsupervised with other children. She admitted that if anyone had told her "in a credible way" that the Barrons had been so admonished, they, and not Barlow, would have been found to be the designated perpetrators in the case. Thus, the Department's original basis for justifying its conclusion that Barlow was a "designated perpetrator" is not consistent with the evidence or facts as determined by the ALJ. At this juncture in the proceedings, the Department instead relies entirely on circumstances related to Barlow's August 2 visit to the Barron home to check on the status of the children. Barlow was accompanied by Shelley Church, a new caseworker with For Children's Sake. Barlow testified that this was the first time she had learned of the sleeping arrangements. The Department, as discussed, attributes great significance to the fact that the children were sharing a bedroom but also suggests that this revelation should have signaled to Barlow "an obvious lack of constant supervision."

Substantial evidence does not support a finding that Barlow failed "to immediately insist upon appropriate supervision of K.M." or that it was such a failure that directly and immediately resulted in a substantial risk that K.M. would sexually perpetrate on other children. Having previously admonished the Barrons regarding the need to supervise K.M. around other children, Barlow testified that she questioned Ms. Barron about the sleeping arrangements and obtained assurances that the four-year-olds went to sleep before K.M. went into the room, that K.M. went to sleep before Ms. Barron did, and that Ms. Barron would check on the children several times each night. (9) Consistent with her other "confused and unpersuasive" testimony, Ms. Barron claimed that Barlow said nothing about the sleeping arrangements. If, following this exchange, there remained a substantial risk that K.M. would perpetrate, it was one inherent in the placement itself, in the Barrons' supervisory abilities (as borne out by the events the following morning), in the physical limitation of the home, or in the sheer "impossibility" of constantly supervising K.M. in that environment. There is not substantial evidence that such a risk was an immediate, direct result of any act or omission by Ms. Barlow with respect to her being informed that the children were sharing a bedroom or reiterating to Ms. Barron that K.M. needed supervision.

We conclude that there is not substantial evidence to support the Department's finding of ultimate fact that it was Barlow's "failure to remove K.L. and J.L. from a situation in which they shared a bedroom and her failure to immediately insist upon appropriate supervision of K.M [that] exposed these children to substantial risk of immediate harm." In turn, substantial evidence does not support its legal conclusion that "the Department proved by a preponderance of the evidence that [Barlow] neglected a child, as neglect is defined by Tex. Fam. Code Ann. § 261.001(4)," nor its ultimate order that Barlow's name should be placed on the central registry. As these issues are dispositive, we need not address whether Barlow acted reasonably (10) or whether she constituted a "person traditionally responsible for the care, custody, or welfare of a child" under section 261.001(5) of the family code. (11)

CONCLUSION

As the ALJ observed, "[v]iewed in retrospect, the errors committed by numerous individuals in discharging their duties towards the children involved in this proceeding are both obvious and tragic." While Barlow may be among the numerous individuals whose acts or omissions in connection with this incident, in hindsight, may have adversely impacted the welfare of these children, we cannot conclude that the Department has met its burden to show that there is substantial evidence, based on this record as a whole, that her conduct constituted child neglect under section 261.001(4) of the family code. We accordingly overrule the Department's issues and affirm the judgment of the district court.

_____________________________________________
Bob Pemberton, Justice
Before Justices Patterson, Pemberton and Waldrop;
Dissenting Opinion by Justice Patterson
Affirmed
Filed: June 28, 2007


1. During the pendency of the proceedings below, the agency's name was changed from the Department of Protective and Regulatory Services to the Department of Family and Protective Services. See Act of June 2, 2003, 78th Leg., R.S., ch. 198, §§ 1.27, .29, 2003 Tex. Gen. Laws 641, 642 (effective Feb. 1, 2004). We will use its current name or, simply, "the Department."
2. See Tex. Hum. Res. Code Ann. § 42.041(a) (West 2001) (requirement of license to operate "child-care facility or child-placing agency."). A "child-placing agency" is "a person, including an organization . . . who plans for the placement of or places a child in a child-care facility, agency foster home, agency foster group home, or adoptive home." Id. § 42.002(12) (West 2001).
3. Unless otherwise indicated, our citations to code provisions are to the versions in effect at the time of the events relevant to the Department's proceeding against Barlow.
4. The Department's staff assigns this "role" after making the "summary finding" of "reason-to-believe" that the abuse or neglect occurred. 40 Tex. Admin. Code §§ 700.511(b)(1), .512(b) (2003).
5. Because K.M. was only eight years old, the Department did not investigate the child as an "alleged perpetrator." See 40 Tex. Admin. Code § 700.512(a)(1) (2003).
6. The evidence is disputed concerning the risk K.M. actually presented at the time of the incident. In April 2003, a judge had ordered K.M. to see a sex offender therapist weekly, and there is evidence that his foster parents had failed to meet that obligation and that the Barrons had not taken him to therapy at all. Yet in June 2003, the Department had downgraded K.M.'s level-of-care assessment, as determined by a third-party evaluation, from "Level 4" to "Level 3." As the ALJ explained,
Level 4 requires fairly extensive annual training of foster parents who care for children at this level . . . [and] "written plans for the direct, continuous observation of children who present a moderate risk of suicide or of physical injury to themselves or others." Level 3 provides, rather generally, that it be used for children who require a "higher level of supervision than children need at Level 2" and that all care givers receive support and direction from qualified individuals. Level 2 sets basic requirements for rules designed to improve the child's functioning in a family environment, with extra guidance and discipline to meet the child's needs.
Complicating our examination of the evidence is the ALJ's apparent reliance on evidence regarding K.M.'s behaviors that is contained in the Department's investigative file. The ALJ admitted this file into evidence for the limited purpose of establishing "the contents of the . . . file and for witnesses to refer to as appropriate," but explicitly ruled that "the contents, in and of themselves, are not admitted for the truth of the matters asserted." The PFD reflects that the ALJ cited evidence contained in the investigative file to establish the truth of certain assertions contained in the file regarding K.M's propensities.
Some of this evidence--but not all of it--was admitted without restriction through testimony and Barlow's own exhibits. This includes evidence of the general understanding among For Children's Sake personnel, including Barlow, that K.M. was not to be left unsupervised around younger children due to the risk that he would perpetrate on them. However, these witnesses did not elaborate on the temporal aspect of K.M.'s behavior. Although For Children's Sake caseworker Stephanie Rogers had stated in her testimony that K.M. would perpetrate "quickly" if left unsupervised, she admitted that she had no information that K.M. would in fact "quickly" perpetrate if left unsupervised, that she was relying on information that Barlow or others had told her, that she couldn't confirm that "quickly" was ever used to describe K.M.'s behavior.
As discussed below, there was also evidence of an incident in which Ms. Barron had caught K.M. kissing one of the four-year-olds on the mouth and had discovered that K.M. had occasionally woken up at night and crawled into one of the four-year-old's beds.
7. The ALJ recognized the importance of that question at the conclusion of the hearing:
Some sort of legal questions that occurred to me during the testimony today is . . . what was the authority of Ms. Barlow with respect to taking immediate action when she found out the children . . . were in the same room on August 2 and then, factually, really, . . . what alternatives should she have done at that point, what should have happened.
The ALJ invited the parties to address that question in their written closing arguments. In that filing, the Department never responded to that invitation, other than to urge its arguments, addressed above, regarding the bedroom and whether Barlow instructed the Barrons to supervise K.M.
8. Its underlying findings regarding the role of the bedroom were merely that:
15. During their stay at the Barron home, K.M. shared a bedroom with the two four-year-olds.
16. By August 2, 2001, [Barlow] was aware that K.M. was sharing a bedroom with the two four-year-olds, and she failed to separate them and to insist on more effective supervision of K.M.
9. There was evidence that Barlow was told or had constructive knowledge of an incident four days earlier in which Ms. Barron had caught K.M. kissing one of the four-year-olds on the mouth. Ms. Barron also informed Barlow that she had discovered that K.M. had occasionally woken up at night and crawled into one of the four-year-old's beds, an act that Barlow interpreted as an innocent search for comfort amid the disruption of K.M.'s removal from the Davis home. While perhaps also going to the reasonableness of Barlow's actions, these facts are consistent with Ms. Barron in fact supervising the children and checking on them during the night.
10. The dissent focuses principally on this element. We do not, contrary to the dissent's statements, conclude that "Barlow acted diligently" or reasonably, see Texas Dep't of Family & Protective Servs. v. Barlow, No. 03-05-00469-CV, 2007 Tex. App. LEXIS ______, *3 (Tex. App.--Austin June 28, 2007, no pet. h.) (Patterson, J., dissenting), as we do not even reach that issue.
11. We are grateful for the parties' post-submission briefing on this issue, however.