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In re P.S.

Court of Appeals of Texas, Second District, Fort Worth

March 30, 2017






         I. Introduction

         In this accelerated appeal, Appellant Mother[2] challenges the trial court's order, entered after a new trial to the bench, terminating her parental rights to her minor children, Roy and Guy. On appeal, Mother argues that the evidence was legally and factually insufficient to support termination of her parental rights under Family Code §§ 161.001(b)(1)(D), (E), (K), and (O). See Tex. Fam. Code Ann. §§ 161.001(b)(1)(D), (E), (K), (O) (West Supp. 2016). Mother also argues that the evidence was legally and factually insufficient to support the trial court's findings that termination of her parental rights was in the children's best interests. See Tex. Fam. Code Ann. § 161.001(b)(2). We will affirm.

         II. Background

         A. The Department's Involvement and Original Trial

         The Department received a referral on September 9, 2014, alleging neglectful supervision of three-year-old Roy and one-month-old Guy by Mother because she had left them on their paternal grandmother's porch at 1:00 a.m. Allegedly, Mother and Father were arguing and physically fighting. The record contains allegations that Mother might have been suffering from postpartum depression, and there were concerns that she might harm the children. On September 16, 2014, the Department received another referral alleging neglectful supervision of Roy and Guy by Mother. A Department caseworker averred that Mother's drug use was affecting her ability to protect the two boys. The caseworker also said that Mother was exhibiting paranoid behavior that created an unsafe environment for the boys.

         On September 29, 2014, the Department administered oral swab drug screenings to Mother and Father-both came back positive for amphetamine, methamphetamine, and opiates. Later, Roy tested positive for methamphetamine and amphetamine and Guy tested positive for opiates, oxycodone, and hydrocodone.

         The Department filed its suit affecting the parent-child relationship on September 30, 2014, the goal being reunification. To this end, the Department provided Mother with a family service plan, and the trial court ordered that reunification could only occur if Mother complied with the service plan's conditions. Mother's participation in the plan was spotty and inconsistent. Specifically, the record indicates that although Mother went in for individual counseling and completed the intake, she became upset with the counselor and left. Mother did complete her assessment at CATS and was referred to outpatient classes, and she went to two group substance-abuse counseling sessions and two parenting classes through CATS but was asked not to return because she had an outburst of anger at Father's session, requiring the police to be called. Throughout the Department's involvement, Mother did not submit to numerous random drug tests; at one point, she was dropped from parenting classes due to her lack of attendance; and she failed to demonstrate steady employment and attend regular visitation with the boys. Much of the time, Mother lived in a shelter.

         On January 27, 2016, Mother and Father both entered a mediated agreement with the Department wherein both parents agreed to execute voluntary relinquishment affidavits. In consideration for the execution of the affidavits, the Department agreed that if Mother and Father failed to complete their services by August 15, 2016, the Department would pursue termination on the basis of voluntary relinquishment grounds only. In the agreements, both parents agreed that should termination occur, termination of parental rights was in the children's best interests. The trial court incorporated the conditions of the agreement into an order on February 2, 2016.

         On August 22, 2016, the Department pursued termination. Neither Mother nor Father attended trial. Although the original petition contained four separate grounds for termination, the Department informed the trial court that it was proceeding only on the ground of the parents' affidavits. At trial, and specifically regarding Mother, the Department presented evidence that Mother failed to complete her agreed-upon services. The Department presented evidence that Mother failed to timely report for drug testing as required by the agreement, that she did not provide documentation evidencing safe and stable housing as required by the agreement, that she did not provide documentation of employment as required by the agreement, and that she did not complete substance-abuse classes as required. After the State asked the court to terminate solely on the basis of both parents' affidavits, the trial court terminated both Father's and Mother's parental rights on that basis alone.

         B. Evidence and Testimony at the New Trial

         On September 8, 2016, Mother filed a motion for new trial alleging that the evidence was legally and factually insufficient to show: 1) that she voluntarily executed her affidavit and 2) that termination was in the children's best interests. The Department agreed to a new trial. The Department proceeded on all four grounds of the original petition.

         Stephanie Roesch, who served in her capacity as a conservatorship worker for the Department throughout this case, testified at the new trial. According to Roesch, the Department first became involved with Roy and Guy in 2013 when the Department investigated Mother and Father for domestic violence and drug abuse. Roesch averred that during the early part of her investigation, both Mother and Father could not be located and thus did not participate in the Department's services. Roesch said that the Department received new domestic violence allegations again in September 2014.

         By Roesch's account, the second referral pertained to an event when Mother drove the two children to the paternal grandmother's house at 1:00 a.m. and dropped both of the children off on the porch. Roesch said that the children were wearing only their diapers. Roesch averred that about this time, the Department also received information that Mother began to act very paranoid, calling the police several times in a week and making dubious claims. Because of her behavior, Mother was taken to the hospital for examination. According to Roesch, initially Mother and Father asked that Roy and Guy be placed with their paternal grandmother, which they temporarily were, but eventually the Grandmother reported that because of Mother's behavior, she would no longer be able to provide a home for the children. From there, the Department took temporary managing conservatorship of the two children-they were eventually placed in a foster home.

         Roesch said that the reason the children could not live with Mother and Father was because of Mother's "erratic behaviors, paranoid behaviors, drug use, [and] domestic violence" and because of Father's "domestic violence and drug use." Roesch testified, and the Department introduced medical documentation to support her testimony that Guy had once tested positive for opiates, oxycodone, and hydrocodone and that Roy had tested positive for amphetamine and methamphetamine. Roesch averred that Father told her that Guy tested positive because he was breastfeeding and that Roy had been exposed to an environment containing methamphetamine.

         Roesch also averred that both Mother and Father had a criminal history. The Department introduced criminal records indicating that Mother had previous convictions for theft and criminal mischief and that she had received deferred adjudication for harassment. The Department also introduced similar documents demonstrating that Father had been found guilty of two separate counts of assault causing bodily injury to a family member.

         Roesch said that she met with both Mother and Father during her investigation, that she developed service plans for both parents, and that both had signed their plans. Roesch testified that part of Mother's plans included that she attend and complete counseling, parenting classes, and anger management and that she submit to drug assessment and random drug testing. Roesch averred that Mother took a "psychological" and that she completed anger management and parenting classes.

         Roesch said that Mother's psychological evaluation revealed that Mother experienced depressive disorder, unspecified anxiety disorder, and unspecified personality disorder and that she was prescribed medicines for these conditions. By Roesch's account, Mother initially took her medications but later stopped "giving medication forms."

         Roesch testified that the Department was also concerned with Mother's ability to provide a stable living environment for the boys. Roesch said that Mother would either live from "hotel to hotel, " at a shelter, or in her car and that her relationship with Father was "on again, off again." Roesch further stated that Mother had failed to provide evidence that she had stable employment in that she produced only two paycheck stubs during the Department's involvement. Regarding Mother's drug use and required testing, Roesch averred that Mother either refused or missed multiple drug tests.

         Speaking to Mother's behavior, Roesch said that once when Roesch asked for Mother to submit to a urine test, Mother called Roesch a "child molesting bitch." And, by Roesch's account, on another occasion Mother was expelled from some of her services because she "caused a big scene" in attempts to get Father to speak to her. Roesch also said that one counselor was unable to get an assessment of Mother because she had become so irate.

         Regarding Father, Roesch said that Father also failed to complete his services, failed numerous drug tests, failed to submit to other drug tests, and lived a transient life. Roesch also said that Father had informed her that Mother had used drugs throughout the time the Department was involved in this case and that he desired for the children to stay in foster care. According to Roesch, Father also told her that he did not believe Mother was financially or mentally able to take care of the children.

         Roesch said that in January of 2016, through a mediated agreement, both Mother and Father signed a voluntary relinquishment wherein they agreed that if they failed to participate in certain service plans and remain drug free for six months, they would voluntarily relinquish their parental rights to Roy and Guy and that termination of their parental rights was in the children's best interests. The Department introduced a copy of this agreement at trial. Roesch said that after that time, neither Mother nor Father attended all of their ordered services.

         Specifically regarding Mother, Roesch said that in addition to not completing all her ordered courses, Mother also failed to provide proof of employment, complete attendance at Narcotics Anonymous, and submit to drug tests. Roesch said that during the six-month period, Mother also tested positive for amphetamine and methamphetamine. The Department introduced a lab report consistent with Roesch's testimony. Roesch said that although Mother completed some counseling, she did not complete her counseling ...

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