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In re J.T.J.M.

Court of Appeals of Texas, Second District, Fort Worth

December 19, 2013

IN THE INTEREST OF J.T.J.M. AND J.M.-N.T.

FROM THE 367TH DISTRICT COURT OF DENTON COUNTY.

PANEL: WALKER, MCCOY, and GABRIEL, JJ.

MEMORANDUM OPINION[1]

LEE GABRIEL, JUSTICE.

Appellant J.T. (Mother) appeals the trial court's order terminating her parental rights to her children, J.T.J.M. (J.M.) and J.M.-N.T. (J.T.).[2] We affirm. See Tex. R. App. P. 43.2(a).

I. BACKGROUND FACTS

Mother had two children: J.M., whose father was J.F.M. (Michael), and J.T., whose father was J.N. (Nelson). Mother, who earned a college degree in psychology, had a "long . . . history" with the Texas Department of Family and Protective Services (DFPS) regarding J.M. and J.T., which included "a pattern of inappropriate behavior and lack of cooperation" by Mother. Indeed, J.M. stated that it was "common" for them to move to avoid DFPS investigators: "[DFPS] comes to the house and we move. We moved five times."

Mother lived in a trailer home with her boyfriend (Bobby), J.M., and J.T. Bobby had an "extensive criminal history, " including convictions for possession of marijuana, burglary of a habitation, assault of a family member with bodily injury, and driving while intoxicated. On April 12, 2012, when J.M. was thirteen years old and J.T. was nine years old, DFPS received a report that "marijuana [was] being dealt out of [Mother's] home" and that "the condition of the trailer they were residing in . . . [had] dog feces all over the floor, holes in the walls, doors off the hinges, and just concerns about the utilities as well." The report also stated that Mother had been high on drugs in front of J.M. and J.T.

Shanna Hartley, a DFPS investigator, went to J.M.'s and J.T.'s schools to speak with them about the report. J.M. was resistant and uncooperative, and J.T. denied the reported allegations. J.M. told Hartley that he did not have to "deal with" Hartley because Mother had "beat" DFPS in the past. Hartley then met with Mother, who also was uncooperative and intermittently hostile. Mother told Hartley that she needed to speak with her father before she would answer Hartley's questions. Hartley left but returned a month later after Mother failed to contact Hartley about her willingness to cooperate as promised. Mother would not allow Hartley to enter the trailer, but Hartley noticed that the outside of the trailer, which was in an isolated area, was not well kept: "There were issues with the front door. It was broken at some point. There was . . . stuff in the front yard. . . . I know there was like a table, an outside table. There was a bucket and a water hose. . . . [Mother] was filling the bucket up with water from the water hose."[3] Mother denied the allegations raised in the report and explained that the inside of the trailer had been dirty because "the dog had been sick at one point and that he had had accidents on the floor." Hartley requested that Mother take a drug test, but Mother refused to do so. It appears this investigation was closed. On July 12, 2012, DFPS received a second report regarding the conditions J.M. and J.T. were living in. Specifically, the report alleged that (1) Mother had been seen with track marks on her arms from intravenous drug use, (2) Bobby had forced J.M. to drink beer, (3) Bobby had forced J.M. to put on hockey pads so Bobby could hit J.M. "until [Bobby] was no longer upset with whatever situation he was upset about, " (4) J.M. and J.T. were left alone with Bobby, and (5) "there were roaches, raw sewage, and feces" in the trailer. Hartley spoke with Nelson, who expressed concern for J.M., his stepson, and J.T., his daughter. Hartley located Mother at her father's house, but Mother refused to cooperate until she could speak with her attorney. At this point, Hartley believed the children could be in jeopardy and began to seek the removal of J.M. and J.T.

On July 27, 2012 shortly after J.M. turned fourteen, Nelson and J.M. went to a DFPS office to report problems with J.M. and J.T.'s living situation. Lishawa Jackson, a DFPS investigator supervisor, talked to J.M. and learned that Mother and Bobby were using drugs in front of J.M. and J.T., Bobby and Mother had verbal and physical fights in front of J.M. and J.T., and Bobby had been physically violent with J.M. J.M. also reported that the trailer was "filthy." J.M. did not feel safe in the home and did not want to return to live with Mother and Bobby. J.M. admitted that he previously had lied to Hartley because Mother told him DFPS would send him "across country or to another state."

On August 8, 2012, two DFPS investigators, Larry Reynolds and Andrea Pickard, went to Mother's trailer. Bobby answered the door but would not allow Reynolds or Pickard to enter the trailer. Likewise, Mother would not allow them to come inside the trailer or talk to J.M. and J.T., who Reynolds believed he heard inside the trailer. This increased Reynolds's concern for J.M.'s and J.T.'s welfare. While Bobby was talking to Reynolds and Pickard, Reynolds noticed a marijuana pipe lying on the edge of the porch.

The next day, DFPS filed a suit affecting the parent-child relationship (the SAPCR), requesting permission to take possession of J.M. and J.T. and the termination of Mother's, Nelson's, and Michael's parental rights. See Tex. Fam. Code Ann. § 262.101 (West 2008). The trial court entered an emergency order for J.M. and J.T. to be removed immediately from Mother's care. See id. § 262.102 (West Supp. 2013).

A full adversary hearing was held on September 5, 2012, at which the attorney representing DFPS, Mother, Nelson, Helene Parker (J.M. and J.T.'s attorney ad litem), and Mary Cartwright (J.M. and J.T.'s guardian ad litem) appeared. Michael was not present at the hearing because DFPS had difficulty locating him and had not yet served him with the SAPCR. After the hearing, the trial court entered the following findings:

(1) there was a danger to the physical health or safety of the children which was caused by an act or failure to act of the person entitled to possession and for the children to remain in the home is contrary to the welfare of the children; (2) the urgent need for protection required the immediate removal of the children and reasonable efforts consistent with the circumstances and providing for the safety of the children, were made to eliminate or prevent the children's removal; and (3) reasonable efforts have been made to enable the children to return home, but there is a substantial risk of a continuing danger if the children are returned home.

See Tex. Fam. Code Ann. § 262.201(b) (West Supp. 2013). The trial court also entered temporary orders that appointed DFPS as temporary managing conservator of J.M. and J.T., limited Mother's and Nelson's access to J.M. and J.T., and required Mother and Nelson to pay child support and submit to a home study. See id. § 105.001 (West 2008). DFPS placed J.M. and J.T. in foster care with Nelson's parents. See id. § 262.201(e).

The temporary orders required Mother to attend counseling sessions "to address the specific issues that led to the removal of the child[ren] from the home and any additional issues arising from the drug and alcohol evaluation or from the counseling sessions to include anger management." Mother further was required to attend parenting classes; participate in a drug and alcohol assessment; participate in a "Choosing Healthy Relationships" class; attend five "AA/NA meetings per week"; submit saliva, urine, and hair samples to DFPS on its demand for random drug testing; and "maintain suitable employment for a period of at least six months and continuing through the pendency of this suit."[4]Mother acknowledged that she understood the temporary orders and that she would be "responsible for adhering to the order."

At Mother's first hair-follicle test, which occurred shortly after the full adversary hearing, she tested positive for cocaine, codeine, and morphine. After the full adversary hearing, DFPS assigned "more permanent" caseworkers, Megan Hildewig and Jessica Davis, to facilitate reunification or termination. Davis prepared a family-service plan that listed several "tasks" Mother needed to complete to meet her goal of reunification with J.M and J.T. See id. §§ 263.101– .102 (West 2008). These tasks included the requirements of the trial court's temporary orders. Mother never signed the family-service plan because Davis could not locate her.[5] When Mother appeared for a supervised visit with J.M. and J.T., Davis attempted to review the plan with Mother; however, Mother left the office and did not return. Indeed, Mother admitted she failed to complete the service plan but did not believe her rights would be terminated if she did not follow the plan.

Although Mother had approximately thirty-seven opportunities to have supervised visits with J.M. and J.T. during the nine months between the full adversary hearing and the termination trial, she only visited them approximately five times. Indeed, Mother occasionally would confirm a supervised visit only to not show up. Mother's failure to visit her children angered J.M. and disappointed and saddened J.T.[6] Mother only attended six AA/NA meetings. Mother believed that it was "good" to violate this provision of the trial court's temporary orders because she did not want to be around "all that drug talk." Mother averred she had been seeing a counselor but she refused to give DFPS any information about her. Mother also did not take the parenting classes or secure steady employment as required by the temporary orders. Mother acknowledged, however, that "meetings and counseling and NA" would help her care ...


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