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In re S.G.F.

Court of Appeals of Texas, Fourteenth District

March 7, 2017

IN THE INTEREST OF S.G.F., CHILD

         On Appeal from the 315th District Court Harris County, Texas Trial Court Cause No. 2015-04655J

          Panel consists of Justices Christopher, Jamison, and Donovan.

          MEMORANDUM OPINION

          TRACY CHRISTOPHER JUSTICE.

         The trial court terminated the parental rights of L.F. ("Mother") and S.F. ("Father") with respect to their son, Sean, [1] and appointed the Texas Department of Family and Protective Services ("the Department") to be Sean's managing conservator. Mother appeals, challenging the sufficiency of the evidence to support the termination. She does not challenge the Department's appointment as managing conservator. Father does not appeal. We affirm the judgment.

         Background

         The Department received a report that Father and his girlfriend, D.M., were neglecting three-year-old Sean. The report alleged Sean had sores and bruises from being left in his highchair for too long, the house was hazardous and unclean, and Father and D.M. abused drugs. Mother was not mentioned in the referral, and she did not reside in Father's house at the time. A few days after the report was made, Father tested positive for marijuana and benzodiazepine and D.M. tested positive for marijuana. Father and D.M. were unable to arrange safe care for Sean, so about a month after the referral, the Department removed Sean and filed a petition for termination of Mother's and Father's parental rights.

         Following removal, the trial court signed an order requiring both parents to comply with any family service plan by the Department. After that order was signed but before she was given a service plan, Mother tested positive for "very high levels" of marijuana, amphetamine, and methamphetamine.

         Mother received her family service plan ten days after her drug test. The plan identified the tasks and services she needed to complete before Sean could be placed in her care. The plan required Mother to submit to random drug testing; refrain from participating in criminal activity or interacting with people who have a history of drug use; submit to a substance abuse assessment and follow the assessor's recommendations; participate in individual therapy and follow the therapist's recommendations; undergo a psychosocial assessment and follow the assessor's recommendations; complete a parenting class; obtain and maintain stable housing; provide the Department proof of employment or income; and attend and participate in all hearings, permanency conferences, scheduled visitations, and meetings requested by the court or the Department. Mother signed the service plan, acknowledging she understood her obligations.

         The case went to trial nearly a year after the referral. Two witnesses testified for the Department: caseworker Shandra Davis and Sean's maternal aunt, R.W. Neither Mother nor Father called witnesses, offered evidence, or personally appeared at trial.

         Davis testified Mother did not complete the requirements of her service plan. Specifically, though Mother underwent substance abuse and psychosocial assessments, she did not follow the assessors' recommendations for treatment. Mother did not complete her individual therapy. She failed to appear for drug testing. Failures to appear are considered positive results under Department policy. She was supposed to visit Sean twice a month but had not visited him for four months before trial. She stopped checking in with the Department three months before trial. Mother failed to attend a scheduled mediation two weeks before trial or appear at trial.

         Sean had been living with R.W. and her husband for about ten months at the time of trial. He wore a patch to correct a lazy eye. Sean was referred to and participated in play and occupational therapy. He had recently been removed from daycare due to his aggression toward other children and had undergone a psychological evaluation as a result. Sean suffered from focal seizures, which R.W. first noticed a few months after he was placed in her home. She said he "just kind of blanks out and doesn't respond." When R.W. asked Mother about it, Mother said she noticed Sean did the same thing when he was a young baby. The record suggests Mother did not seek treatment for the seizures or inform the Department about them.

         By all accounts, Sean thrived with his aunt and uncle. Since he moved in to their house, R.W. testified, Sean had blossomed from a "little wild child [who] couldn't even sit at a table and eat, did not know social skills at all" into "a very bright, smart, happy child." She said Sean had bonded with her, her husband, and their 16-year-old son. Sean's aunt and uncle planned to adopt Sean if Mother's and Father's parental rights were terminated.

         Mother called Sean at R.W.'s house on his birthday, almost three months before trial. She called again on the Fourth of July, but R.W. did not let her speak with Sean. R.W. testified:

She did not speak to [Sean] because I had just had a conversation with him about him staying with us, possibly and probably, because we had the mediation and it was changed to adoption. I didn't want to confuse him further, so I didn't allow her to speak to him.

         Mother called again the next morning, but R.W. did not answer the phone.

         At the conclusion of testimony, the trial court orally found termination of Mother's and Father's parental rights was in Sean's best interest and justified under Family Code section 161.001(b)(1), subsections D and E (both concerning endangerment of the child) and subsection O (failure to comply with a service plan). The court signed a final decree memorializing those findings and appointing the Department to be Sean's managing conservator.

         Analysis

         I. Burden of proof and standards of review

         Involuntary termination of parental rights is a serious matter implicating fundamental constitutional rights. See In re G.M., 596 S.W.2d 846, 846 (Tex. 1980); In re S.R., 452 S.W.3d 351, 357 (Tex. App.-Houston [14th Dist.] 2014, pet. denied). Although parental rights are of constitutional magnitude, they are not absolute. The child's emotional and physical interests must ...


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