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In re J.M.T.

Court of Appeals of Texas, First District

April 6, 2017


         On Appeal from the 313th District Court Harris County, Texas Trial Court Case No. 2015-05142J

          Panel consists of Justices Jennings, Higley, and Massengale.


          Laura Carter Higley Justice.

         Following a bench trial, the trial court signed a judgment terminating the parent-child relationship between S.A.M. ("Father") and his one-year-old daughter, J.M.T. On appeal, Father identifies four issues, asserting that the evidence was not legally or factually sufficient to support the trial court's judgment. Because we hold that the evidence was legally and factually sufficient, we affirm.


         On September 3, 2015, the Department of Family and Protective Services ("the Department") filed suit, seeking to terminate Father's parental rights to J.M.T. and to obtain sole managing conservatorship if family reunification could not be achieved. In the petition, the Department also sought temporary managing conservatorship and requested emergency orders.

         To support the request for emergency orders, the Department offered the affidavit of its investigator, J. Cash. In her affidavit, Cash testified that on September 2, 2015, the Department had received a referral regarding 12-day-old J.M.T., who was in the neonatal unit of a local hospital. J.M.T. had been born prematurely on August 21, 2015 but was ready to be discharged from the hospital. The report had expressed concern that J.M.T.'s mother ("Mother") could not care for J.M.T. because Mother was homeless and had not addressed her mental illness.

         Cash's affidavit indicated that her investigation of the referral confirmed that Mother was homeless and had been unable to secure housing for J.M.T. upon the newborn's discharge from the hospital. She also learned that Mother suffered from bipolar disorder and depression for which she had not received mental health treatment. Cash discovered that Mother also struggled with daily tasks, such as grocery shopping, and may have an undiagnosed intellectual disability. In the affidavit, Cash also averred that Mother's parental rights had been previously terminated to another daughter based on allegations that Mother had physically abused and neglected that child. Mother's untreated mental illness and alcohol abuse had also been factors leading to the termination of her parental rights in that case.

         Investigator Cash also learned of Father's whereabouts from Mother. When contacted, Father told Cash that he was willing to care for J.M.T. However, Cash determined that Father was living in "a single room occupancy at New Hope Housing, " which was not a suitable living environment for J.M.T. In addition, Cash learned that Father had a "criminal history [dating] back to 1974, [which] included prison sentences for delivery of crack cocaine, unlawful carrying of a weapon, robbery, possession of marijuana and obstruction/retaliation."

         Based on her investigation, Cash stated, "Due to [Mother's] unknown mental health status and her inability to provide a safe and stable environment for her child, it is in the best interest of the child to be placed in protective custody at this time. Despite the agency asking [Mother] for possible placement alternatives, there are no available, suitable relatives for placement at this time."

         On September 3, 2015, the trial court signed an emergency order for the protection of J.M.T. Following a full adversary hearing, the trial court signed a temporary order on September 17, 2015, appointing the Department as J.M.T.'s temporary managing conservator.

         The trial court conducted a status hearing on October 29, 2015, attended by Father and his counsel. Following the hearing, the trial court signed a status hearing order, approving and incorporating by reference the Department's family service plan, making the service plan an order of the trial court.[1] In the order, the trial court found that Father had reviewed the service plan, understood it, and had signed it.

         The court-ordered service plan set out several tasks and services for Father to complete before unification with J.M.T. could occur. These tasks and services included the following: (1) participate in a psychosocial evaluation and follow all recommendations resulting from the evaluation; (2) refrain from engaging in any illegal and criminal activities; (3) complete an 8-week parenting class; (4) participate in a drug and alcohol assessment and follow all recommendations resulting from the assessment; (5) provide urine samples for random drug testing; (6) maintain safe and stable housing and provide the Department's caseworker with proof of housing; (7) obtain regular employment and provide proof in the form of paycheck stubs to the caseworker. The family service plan also informed Father that its purpose was to assist him in providing a safe environment for J.M.T. The plan warned Father that if he was "unwilling or unable to provide [J.M.T.] with a safe environment, [his] parental . . . rights may be restricted or terminated or [J.M.T.] may not be returned to you."

         The trial court held permanency hearings on February 11, 2016 and on June 8, 2016. The trial court signed orders following each hearing in which the court found that Father had "not demonstrated adequate and appropriate compliance with the service plan."

         The case was tried to the bench on November 1, 2016. At trial, the Department sought to terminate the parent-child relationship between Father and J.M.T.[2] The Department offered the testimony of its caseworker, M. Thomas, who had been assigned to J.M.T.'s case since its inception. Thomas testified that, at the beginning of the case, she made the necessary referrals to enable Father to complete the services required by the plan. At that time, Father had admitted to Thomas that he was using marijuana and cocaine. Thomas made a referral for Father to obtain a substance abuse assessment and to attend outpatient substance counseling. In addition, to learn to care for J.M.T., Thomas referred to Father to parenting classes and to individual counseling.

         Thomas also testified that the trial court ordered that Father could not have visitation with J.M.T. until he had a negative drug test. The State offered Father's urinalysis test results into evidence. The results showed that Father's urinalysis results were positive for cocaine in September 2015 and were positive for cocaine and marijuana in October 2015. Father admitted at a court hearing in June 2016 that he had smoked marijuana laced with cocaine. His urinalysis test results that month were positive for alcohol, cocaine, and marijuana. Father tested positive for alcohol use in September 2016.

         Father's urinalysis test results were negative in February 2016 and in July 2016. Following these negative results, Father was requested to provide hair or fingernail samples for "zero tolerance" drug testing. Thomas testified that Father refused to provide the hair and nail samples. Thomas testified that Father never was permitted to visit J.M.T. during the entire pendency of the case due to his positive drug tests and his refusal to provide hair or fingernail samples.

         Thomas further testified that Father failed to maintain contact with her during periods of time while the case was pending. Thomas stated that she reviewed the service plan with Father on October 29, 2015, but then, she and Father had no contact until February 2016 when she made contact with Father at a court hearing. Thomas testified that, at that time, she had again discussed with Father what he needed to do under the family service plan. Thomas testified that, after the February 2016 hearing, Father again "failed to maintain contact or try to facilitate any arrangements to get [the] assessments completed."

         Thomas stated that she had no contact with Father until June 2016 when she saw him at another hearing. It was at this hearing that Father admitted that he had the previous week smoked marijuana laced with cocaine. Also at the hearing, Father claimed that the Department had not sent the required authorizations for him to complete services. Thomas testified that the Department then "re-sent all service authorizations, " including referrals for a substance abuse assessment, substance abuse counseling, and individual therapy. Thomas acknowledged that Father completed a substance abuse assessment and a psychosocial assessment as required by the service plan. The service plan also required Father to complete any recommendations made as a result of the assessments.

         The substance-abuse assessment recommended that Father engage in substance-abuse counseling, and both assessments recommended individual counseling for Father. Thomas testified that Father did not successfully complete substance-abuse counseling because "they cannot discharge him because we do not have a drug test to support his level of sobriety at this time." She also testified that Father was not discharged from his individual counseling.

         In addition, Thomas testified that Father had not provided her with proof that he had suitable housing. Father had told Thomas that he was living in "a single room occupancy." Thomas testified, "[Father's] informed me, as well as the Court, that [the room is] about 200 square feet and that that is not suitable for him and a child, an infant child." Thomas stated that Father told her that he was looking for a larger place so that he could be united with J.M.T. Thomas stated that she was aware that Father had set up an assessment in September 2016 with a housing services agency, but she did not know the results of the assessment. Thomas confirmed that, at the time of trial, Father "has not provided any proof of stable housing to show that he can provide a safe and stable home for this child."

         Thomas further testified that Father never provided her with proof of employment or of income. Thomas acknowledged that Father told her that he was disabled. She testified that she asked Father, as early as October 2015, for documentation to confirm his disability and to show that he received some type of income. Thomas also stated that Father never provided any documentation to her to show that he was disabled, that he had an income, or that he was seeking employment.

         Thomas also testified that one-year-old J.M.T. is currently placed in a home with a foster mother. Thomas confirmed that the foster mother wishes to adopt J.M.T. Thomas stated that she had visited the foster home and had observed that it is a clean, safe, and stable home for J.M.T. Thomas also confirmed that, from her observations, the foster mother has good parenting abilities and provides for all of J.M.T.'s physical and emotional needs. Thomas confirmed that, in her foster home, J.M.T. has her own room and will be able to attend a good school. Thomas also testified that the foster mother had also indicated that she will ensure that J.M.T. receives an education, including college.

         Lastly, Thomas testified that J.M.T. has special needs. Specifically, J.M.T. has growth and fine motor skill delays for which she receives services. Thomas confirmed that the foster mother was seeking out the services required for J.M.T.'s special needs.

         The State also called the foster mother to testify at trial. She stated that 14-month-old J.M.T. is "doing very well" and "thriving" in her home. She also confirmed that she and J.M.T. had bonded.

         With respect to J.M.T.'s special needs, the foster mother testified that J.M.T. has a speech delay and also delays relating to her fine and gross motor skills. For example, J.M.T. did not roll over for the first time until she was nine-months old and did not crawl until she was 12-months old.

         The foster mother testified that J.M.T. receives treatment for her delays. The foster mother also described the nature and the frequency of the therapy that J.M.T. receives. She stated, "Every day [J.M.T.] has to have exercises for her abs and her legs. So, it's about, at least 30 minutes in the evening, and then the day care also has specific instructions that they have to give her exercises throughout the day." The foster mother further said that J.M.T. sees "a development specialist twice a month and then she has a physical therapist twice a month." She stated that J.M.T. will be reevaluated in six to nine months to ...

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