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In re L.L.P. A Child

Court of Appeals of Texas, First District

March 2, 2017

IN THE INTEREST OF L.L.P., A Child IN THE INTEREST OF F.S. AND F.D.S., JR., Children IN THE INTEREST OF S.P. AND F.S., Children

         On Appeal from the 312th District Court Harris County, Texas Trial Court Case Nos. 2006-66208, 2013-68347, and 2014-50056

          Panel consists of Justices Keyes, Higley, and Lloyd.

          MEMORANDUM OPINION

          Evelyn V. Keyes Justice

         Following a single trial of three consolidated parental-rights termination cases, the trial court terminated the parental rights of S.P. ("Mother") to her five children, L.L.P, S.P., F.S., F.D.S., Jr., and F.S.[1] In two issues, Mother argues that the evidence was legally and factually insufficient to support the trial court's findings supporting termination of her parental rights pursuant to Texas Family Code subsections 161.001(b)(1)(E) and 161.001(b)(2). We affirm.

         Background

         Mother gave birth to L.L.P., a girl, on May 25, 2006. On October 27, 2006, the trial court signed an order adjudicating R.P. as L.L.P.'s father and ordering child support. Mother and R.P. subsequently had another girl, S.P., on May 6, 2010. Mother then gave birth to children with another man, F.S., Sr.-F.S., a girl born March 6, 2011, and F.D.S., Jr., a boy born September 21, 2012. The trial court signed an order on November 18, 2013, adjudicating F.S., Sr. as the father of these two children and ordering child support. Finally, Mother gave birth to her and F.S., Sr.'s youngest son, F.S., on August 9, 2014.

         Approximately two weeks after F.S.'s birth, in August 2014, the Texas Department of Family and Protective Services ("DFPS") received a referral regarding neglectful supervision of the children. Mother left her oldest son, T.W., who was fourteen years old at the time, to care for his five younger siblings who then ranged in age from two weeks old to eight years old. While Mother was gone, a television fell on top of F.D.S., Jr., who was one year old at the time, cutting his head. T.W. called for help, and when Mother arrived back home, the police were there. She told them that she had left for just a few minutes to buy milk, but the police observed that Mother did not have milk with her and that there were three gallons of milk in her refrigerator. Mother was arrested for child endangerment, and DFPS filed motions "To Modify for Conservatorship, and for Termination in a Suit Affecting the Parent-Child Relationship, " seeking to modify the trial court's October 27, 2006 order as to L.L.P and its November 18, 2013 order as to F.S. and F.D.S., Jr. DFPS also filed an original petition for conservatorship regarding S.P. and F.S. DFPS sought temporary managing conservatorship of the children and other appropriate relief.

         The criminal charges against Mother were dismissed on September 3, 2014, after authorities determined that the incident with the television was an accident. However, on September 16, 2014, Mother provided hair and nail samples for drug testing, and those samples tested positive for cocaine. On October 2, 2014, the trial court granted DFPS temporary managing conservatorship over all five children.

         All five children were placed with a relative-a cousin of F.S., Sr.-Sheryl James.[2] Mother was given a family service plan that required, in part, that she maintain stable employment and housing, that she complete parenting classes, drug assessment and treatment, and anger management therapy. Mother was also required to submit to regular drug testing.

         In the summer of 2015, following a visit between the children, Mother, and F.S., Sr. at a McDonalds, the father of James's children assaulted F.S., Sr. in the parking lot. The DFPS caseworker became aware of this assault, and DFPS considered removing the children from James's home. However, Mother and F.S., Sr. preferred to leave the children with James, rather than having the children placed in foster homes. DFPS required that the father of James's children move out of the home, but it allowed the children to remain with James.

         A short time later, however, two of the children-L.L.P. and S.P.-were removed from James's care and placed with fictive kin of their father's.[3] This placement also failed, and L.L.P. and S.P. were placed in a foster home. Meanwhile, Mother substantially completed her family service plan by obtaining suitable housing and completing parenting classes and drug treatment. However, except for one drug test in July 2015 taken a week after Mother completed her outpatient drug therapy, Mother's hair follicle tests continued to test positive for cocaine. When Mother again tested positive for cocaine in October 2015-after she had completed the drug treatment and therapy required in her family service plan-DFPS asked her to complete an additional thirty days of drug abuse prevention classes, but Mother refused.

         By early 2016, the placement of F.S., F.D.S., Jr., and F.S. with James had likewise broken down. James informed DFPS that the father of her children had been accused of physically and sexually abusing F.D.S., Jr. Those three children were subsequently placed in a foster home. The trial for terminating the parental rights of Mother and both fathers started in late February 2016, was continued, and then resumed in April 2016.

         At trial, DFPS caseworker Antoinette Washington-Clay ("Washington"), testified regarding the circumstances under which the children came into DFPS's care. She acknowledged that Mother did not have a criminal record and that she had not had any previous involvement with DFPS. She stated that DFPS had determined that the incident in which F.D.S., Jr. was hurt by the falling television was an accident and that DFPS's main concern was Mother's continued drug use.

         Washington testified about the requirements of Mother's family service plan and stated that Mother had substantially complied with that plan, including completing out-patient substance abuse therapy in July 2015. Washington stated that Mother's drug test in July 2015 was negative. However, in October 2015, Mother again tested positive for cocaine ingestion. Washington testified that she spoke with Mother's therapist, who recommended another thirty days of class to address Mother's "continuing to test positive for drugs."

         Washington informed Mother that she was still testing positive for drug use, and Mother denied to Washington that she used drugs. Washington testified that throughout the case Mother denied using drugs. Rather, Mother explained the presence of drugs in her system by telling Washington that "she was trying to make a hustle and she was handling it, " i.e, that she was selling drugs but not ingesting them. At various times Mother also asserted that "when she went to jail someone broke into her house and might have put it in her food." She also stated that she could have been exposed through sexual relations or using Herbal Essence shampoo or "when she was walking through the neighborhood going to the store somebody out there smoking could have gotten it in her hair."

         According to Washington, when she requested that Mother complete an additional thirty days of services for her drug issues, Mother responded that "[s]he wasn't taking the classes" and that "[s]he [had done] everything and she wasn't doing anything else." Washington also requested that Mother submit to additional drug tests in December 2015 and January 2016. Following the December 2015 request, Mother told Washington that "she wasn't doing anything else [DFPS] asked her to do." Washington stated that she received no response to her January 2016 request that Mother submit to a drug test. Mother did not provide any additional test samples, and she did not complete the additional thirty days of services.

         Washington testified regarding the history of the children's placements and their placements at the time of trial. Washington discussed the children's previous placement with James and the problems involved with that placement, including the assault on F.S., Sr. and the harm to F.D.S., Jr. DFPS was seeking an adoptive placement for L.L.P. and S.P. as well. Washington stated that DFPS's goal was to have all five children adopted, preferably by a single placement, and by stable homes that would allow the children to visit one another in the event that a single home for all five children was not available. The children had been able to visit each other after they were moved to different foster homes.

         She stated that the foster home where F.S., F.D.S., Jr., and F.S. were placed was a potential adoptive placement. Washington testified that the girl F.S. was in daycare in the morning and then went to school in the afternoon. F.D.S., Jr. and the boy F.S. went to daycare and had not had any health issues since being placed in their current foster home. The girl F.S. had previously been hitting others, but that had no longer been a problem in her current placement.

         Washington testified that L.L.P. and S.P. were doing "pretty good" in their placement where they had been for the previous two months at the time of trial. L.L.P. was "adjusting well, " her grades had improved, and she was passing her classes. She had had perfect attendance and no behavior issues, which was a departure from the problems she had had while she lived in her previous placements with James and then with her father's fictive kin. S.P. had done fine in all of her placements, although Washington testified that "she's more outgoing now versus in the past."

         Washington stated that Mother and the family of one of the fathers had provided some names of potential relative placements, but the people suggested by Mother had criminal histories that made them unsuitable as caregivers for the children. Regarding the desires of the children, Washington testified that the three youngest children-F.S., F.D.S., Jr., and F.S.-were too young to be able to decide whether they wanted Mother's rights terminated. None of the children had expressed to her a desire to have Mother's parental rights terminated.

         Washington stated that Mother had told her that she was working, including as a dog sitter or doing childcare. However, Washington also testified that Mother had not provided any proof of employment. Mother had provided some items for the children while they were in DFPS care, including providing a birthday party, some gifts, and clothing.

         Washington also stated that Mother had not visited with her children since October 2015. She testified that prior to October 2015, Mother would contact her and schedule visitation. Since October 2015, Washington had attempted to contact Mother to schedule visitation, including by going to Mother's residence as recently as the month before trial. Washington had been unsuccessful in her attempts.

         Washington testified that DFPS had concerns about returning any of the children to Mother because of her "inconsistency to comply with random drug tests and her continuing to test positive for drugs." She acknowledged that Mother had no known criminal history or prior history with DFPS and that DFPS had no evidence of any abuse or neglect of the children by Mother. Washington stated that Mother's interactions with the children during visits was appropriate, that she appeared to love her children, and that the children were bonded to her.

         Latarsha Basey, Mother's sister, testified at trial. Mother provided Basey's name to DFPS in February 2016, between the first day of trial and the second day, which occurred in April 2016. Basey stated that she would take custody of L.L.P. and S.P. She stated that she lives in Louisiana and, at the time of trial, DFPS was in the process of completing the home study with the State of Louisiana. However, Washington testified that Basey had a history of CPS allegations filed in Texas. Regarding her criminal history, Basey herself testified that she had "something in 1995, " a misdemeanor for disorderly conduct. She denied having any other criminal history or having any history with CPS. Basey testified that she worked full time, so it would be difficult for her to care for children that were not yet in school, which is why she stated that she was willing to take L.L.P. and S.P. Basey also testified that she did not want to adopt the children because "[Mother] is their mom." Basey also testified that she believed Mother had been a good parent, and ...


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