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In re J.E.

Court of Appeals of Texas, Fourteenth District

April 4, 2017


         On Appeal from the 313th District Court Harris County, Texas Trial Court Cause No. 2015-06056J

          Panel consists of Justices Boyce, Busby, and Wise.


          Ken Wise, Justice

         The trial court terminated the parental rights of M.C. ("Mother") and J.E. ("Father") with respect to their children, John and Mark, [1] and appointed the Texas Department of Family and Protective Services ("the Department") to be the children's managing conservator. Mother appeals, challenging the sufficiency of the evidence to support the finding that termination was in the children's best interest. She concedes the sufficiency of the evidence to support the findings on the predicate statutory bases for termination, and she does not challenge the Department's appointment as managing conservator. Father does not appeal. We affirm.


          A. Removal

         In October 2015, Mother left five-year-old John and four-year-old Mark with a neighbor and said she would be back in two hours. When she had not returned after five days, the neighbor called the police, who in turn notified the Department. The neighbor reported that the boys were outside alone regularly and would ask neighbors for food. The neighbor also said Mother is known to work as a prostitute in the area.

         Department investigator Shemika Peoples met with John and Mark at a Department office. Both boys reportedly could say only "five" and "mama." The boys were unkempt but showed no signs of physical abuse. They played well together.

         Mother was found at a motel. Peoples said Mother had severe bruising on her eye, a swollen lip, and a swollen face. According to Peoples, Mother said she was beaten up by a man who tried to rob her while she was prostituting herself. Neighbors, however, suspected Mother's boyfriend assaulted her. Mother explained that she left the children so she could earn money to pay for a place to stay. She believed it was better for the children to be with the neighbor than to have to move from motel to motel with her.

         Mother was administered an instant oral swab drug test that day. The test was positive for cocaine. Mother admitted she used "a little" cocaine three days earlier. Peoples asked Mother to take another drug test the following day, but Mother failed to appear at the testing facility.

          B. Department and criminal history

         Both Mother and Father had history with the Department. The record reflects the following two referrals.

         First, when John was born in September 2010, the Department received a referral alleging Mother admitted using cocaine for several months throughout her pregnancy. She was negative for drugs at the time of John's birth. The Department referred the case to its Family Based Safety Services ("FBSS") division. Mother completed parenting classes through FBSS. When she became pregnant again in early 2011, she took prenatal vitamins and received prenatal medical care.

         Second, Father was reported to the Department in February 2012 for allegedly sexually assaulting a five-year-old girl. According to the girl's mother, Mother and Father fled to Mexico to avoid the investigation. The Department ruled the case "unable to determine."

         Mother, Mother's boyfriend, and Father also had a history of criminal activity. Mother's crimes were typically related to prostitution or possession of small quantities of illegal drugs. The boyfriend's criminal record included convictions for theft, burglary, and assault of a family member. Father was in prison due to his December 2014 conviction for indecency with a child. He was scheduled for release in June 2018.

         C. Pretrial proceedings

         Unable to locate Mother for several days, the Department filed this lawsuit. The boys were placed with their maternal great-uncle ("Uncle") in early November 2015. They remained with Uncle for the duration of the case.

         Following removal, the trial court signed an order requiring both parents to comply with any family service plan by the Department. Mother's service plan identified the tasks and services she needed to complete before the children could be returned to 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; obtain and maintain suitable employment, or enroll in a training program to make herself more employable; obtain and maintain stable housing for at least six months; undergo substance-abuse and psychosocial assessments and follow the assessors' recommendations; participate in individual therapy and follow the therapist's recommendations; complete a parenting class; maintain regular contact with the Department; pay any child support ordered by the court; attend and participate in all hearings, permanency conferences, scheduled visitations, and requested meetings; and maintain contact with her caseworker.

         D. Trial

         Department caseworker Dessa Parker and Uncle testified at trial. Among the documents admitted into evidence without objection were Mother's family service plan, judgments of criminal convictions for Mother and Father, and medical records regarding Mother's pregnancy with John. The trial court took judicial notice of all its orders in this case. See In re K.F., 402 S.W.3d 497, 504-05 (Tex. App.-Houston [14th Dist.] 2013, pet. denied) (trial court is permitted to take judicial notice in a termination case). Neither Mother nor Father appeared personally at trial, called witnesses, or offered evidence.

         Parker testified that Mother failed to complete any of her service plan's requirements. Though she had a calling schedule, Mother had not called the children for six or seven months. She never visited them or provided any support for them. Parker believed termination of Mother's parental rights was in the boys' best interest because Mother had not shown any interest in caring for her children, nor had she demonstrated she could provide them a safe and stable home.

          By contrast, Parker testified, Uncle was meeting John's and Mark's physical and emotional needs. The boys were strongly bonded with Uncle and were doing very well in his home. In addition to the speech delays noted at the time of removal, the boys had learning disabilities and difficulty socializing. They were both receiving speech therapy at home and in school, were enrolled in special education classes, and had received counseling throughout the year.

         Though he lived several hours away, Uncle attended every court hearing. He wanted to adopt the children, which the Department believed would be in John's and Mark's best interest. Uncle said he would protect the boys in part by keeping them safe from ...

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