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In re B.M.

Court of Appeals of Texas, Fourteenth District

December 10, 2013

IN THE INTEREST OF B.M., M.L., AND A.A.C., CHILDREN

On Appeal from the 314th District Court Harris County, Texas Trial Court Cause No. 2012-02208J

Panel consists of Justices Christopher, Donovan, and Brown.

MAJORITY MEMORANDUM OPINION

Marc W. Brown Justice

Appellant, Monica R., appeals from the trial court's judgment terminating her parental rights to three of her children, B.M., M.L., and A.A.C.[1] In three issues, appellant asserts that she received ineffective assistance of counsel, the trial court improperly relied on the Department's evidence of constructive abandonment, and termination was in error because there was a potential for reunification of the children with their mother. We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

On March 29, 2012, the Texas Department of Family and Protective Services (the Department) received a referral alleging neglectful supervision against appellant. Appellant tested positive for cocaine at the birth of A.A.C., her youngest child. At the time of the baby's birth, appellant lived with her boyfriend, the baby's father, and two other children, B.M. and M.L, who were ages three and two, respectively, when this proceeding began.[2] Appellant admitted using cocaine during her pregnancy while she had two young children at home. She stated that the last time she used cocaine was three weeks before the baby's birth. Toxicology tests performed at the hospital indicated more recent drug use, and the record reflected that appellant appeared to be under the influence of drugs when she arrived at the hospital to give birth. Appellant acknowledged that she had a history of mental illness and had not taken her prescribed medication during her pregnancy.

On April 2, 2012, the Department filed its original petition for protection of the children, seeking termination of parental rights and asking to be named managing conservator of the three children at issue. The Department obtained a temporary order for possession of the children. On April 12, 2013, the trial court held a full adversary hearing pursuant to Chapter 262 of the Texas Family Code. See Tex. Fam. Code § 262.201(a). The court found "sufficient evidence to satisfy a person of ordinary prudence and caution that there is a continuing danger to the physical health or safety" of the children and for the children to return home is contrary to their welfare, and signed further temporary orders on April 12, 2012. See Tex. Fam. Code § 262.201(c).

On June 21, 2012, the Department filed a family service plan for appellant, requiring that she perform several services to enable her to provide a safe environment for the children so that they could be returned to her custody. See Tex. Fam. Code § 263.101. Among the services named in the plan were requirements that appellant participate in individual therapy, parenting classes, undergo a psychosocial evaluation and follow all recommendations made in that evaluation, undergo a substance abuse assessment and follow all recommendations in the assessment, and undergo inpatient drug rehabilitation. The plan also stated that appellant was required to refrain from criminal activity, including use of illegal drugs, and that appellant was required to obtain and maintain employment and stable housing for six months. The plan contained the required statutory notice to the parent that the failure to provide a safe environment for the children may result in termination of parental rights. See Tex. Fam. Code § 263.102(b). The trial court approved the plan, incorporated it into its orders, and ordered appellant to comply with each requirement set out in the plan. See Tex. Fam. Code § 263.106.

Before the trial began, appellant's counsel made an oral motion for a continuance, claiming there was a potential for reunification and appellant should be granted additional time to complete her service plan. The motion was denied. The case proceeded to trial without a jury on June 18, 2013. At trial, the court admitted into evidence numerous documents from the court file, including the temporary orders, family service plans, drug test results, medical records for appellant and the baby, and the child advocate's report.

The Department's case worker testified at trial that appellant did not begin participating in the services set out in her plan until February of 2013, eight months after the plan was filed. The evidence at trial indicated that appellant participated in some of the services in the plan, including parenting classes and a substance abuse assessment. Appellant failed, however, to complete a psychosocial assessment and inpatient drug rehabilitation. Appellant continued to test positive for illegal drugs on multiple occasions during the pendency of the case.[3] The case worker acknowledged that two months before trial, appellant provided an address for the residence where appellant stated she lived. Appellant did not claim to have resided there for six months, as required by the plan, however. In addition, appellant had not provided a lease to demonstrate she lived there, as required by the plan. Appellant also did not provide proof of employment.

The case worker testified that it was difficult to contact appellant. The phone number appellant gave her had been disconnected. When appellant called the Department, she used friends' phones. The case worker stated that she contacted appellant about participating in her psychosocial assessment shortly before trial. The worker testified she made arrangements for appellant's participation and informed appellant that the provider would contact her in two to three weeks. The case worker acknowledged that she did not follow up to see that appellant received information about the assessment.

Bruce Jefferies from National Screening Center, the agency that conducted the drug testing required pursuant to the service plan, testified at trial that on April 12, 2012, appellant tested positive for cocaine in a hair follicle test indicating appellant used cocaine during the previous 90 days. On May 31, 2012, appellant tested positive for cocaine and methamphetamines in a urinalysis that indicated she used the drugs within three days prior to the test. Appellant's hair test was positive for methamphetamine at "a very, very high level, " and for cocaine and alcohol. Seven months later on January 24, 2013, appellant again tested positive for cocaine and methamphetamine, and use was indicated during the three months before the test.

As a result of appellant's drug use, she was unable to maintain visits with her children and last saw them in September of 2012, approximately nine months before trial. The case worker acknowledged that appellant provided the children with some support for the first five months of the case, but the support stopped when appellant stopped seeing her children.

The case worker testified that the agency considered both of the maternal grandparents for alternative placement of the children, but neither grandparent was willing to take the children. The maternal grandfather also informed the Department's case worker that he was already taking care of four children and could not take any more. The children were in foster care at the time of trial.

Appellant testified at trial. She stated she had completed an outpatient treatment program on the Thursday before trial. Appellant testified that she went to two different hospitals in an attempt to do inpatient treatment but both informed her that all she needed was outpatient treatment. Appellant acknowledged that in November of 2012, she checked herself into an inpatient treatment facility, but left after three days. She said that she stopped visiting her children when the Department told her to stop as a result of her testing positive for drug use. She claimed that she last used drugs the previous December, and explained that she waited so long to participate in her services because she was, "stuck in the addiction." She testified that she had "dealt with that addiction now." She said she has a three bedroom mobile home and works selling tacos, though she was unable to provide proof that she was employed.

The child advocate volunteer testified that she was in agreement with the Department that appellant's parental rights should be terminated, and her report was admitted in evidence. Appellant reported to the child advocate that she was diagnosed with major depression and attempted suicide in 2005. The child advocate stated that she visited appellant's residence the week before trial and asked appellant to show her what medication she was taking. Appellant had only three empty prescription bottles dated the previous April that had not been refilled. Appellant admitted to the child advocate that she was not under a psychiatrist's care and stopped taking her medication because she was feeling better.

The child advocate's report reflected that appellant had the following criminal record: a 2009 conviction and sentence of six months in jail for possession of a controlled substance, and a 2010 conviction and sentence of 180 days in jail for theft and failure to provide information regarding a fugitive. These convictions occurred after the births of the two older children at issue here. The report further stated that appellant has five other children, all of whom lived with their respective fathers and whom she had not seen in two to three years. Appellant's stated reason for not seeing her other children was that she was using drugs. The report noted that appellant's visits in this case were discontinued because of her continued use of drugs, and as a result, appellant had not seen B.M., M.L. or A.A.C. for approximately eight months. The report stated the child advocate's position that appellant did not make the necessary changes to provide her children with a safe and stable home environment and concluded that it is in the best interests of the children for appellant's parental rights to be terminated because the children are young and unable to protect themselves, appellant failed to participate in the rehabilitative services offered by the Department, and appellant continued to use illegal drugs.

At the conclusion of the trial, the court found by clear and convincing evidence that termination of appellant's parental rights is in the best interest of the children. The court also found clear and convincing evidence that appellant engaged in the following conduct as grounds for termination:

(E) engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangers the physical or emotional well-being of the child;
(N) constructively abandoned the child who has been in the permanent or temporary managing conservatorship of the Department of Family and Protective Services or an authorized agency for not less than six months, and:
(i) the department or authorized agency has made reasonable efforts to return the child to the parent;
(ii) the parent has not regularly visited or maintained significant contact ...

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