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In re A.A.B.

Court of Appeals of Texas, Fourteenth District

April 11, 2017


         On Appeal from the 309th District Court Harris County, Texas Trial Court Cause Nos. 2011-65268 and 2015-18630

          Panel consists of Chief Justice Frost and Justices Donovan and Wise.


          Kem Thompson Frost Chief Justice.

         Appellant A.G. ("Mother") appeals the trial court's final decree terminating her parental rights and appointing the Department of Family and Protective Services ("Department") as sole managing conservator of her children A.A.B. ("Andrew") and A.B. ("Ashley").[1] On appeal, Mother challenges the legal and factual sufficiency of the evidence to support (1) the predicate grounds under which the trial court terminated her parental rights, and (2) the trial court's finding that termination was in the children's best interests. We affirm.[2]

         I. Factual and Procedural Background

         In February 2015, the Department received a referral alleging physical neglect of Andrew, then age three, and Ashley, then age two, by J.D.B. ("Father"). Father and the children were living under a bridge in Houston while Mother allegedly was staying in Porter, Texas. According to the referral, Father was unemployed, and he and the children had been living under the bridge for approximately two weeks. On the day of the referral it was 38 degrees outside. The children were clad in sweaters and jeans, and wore no socks, shoes, or gloves. When prompted, Father put jackets on the children. The space under the bridge was filthy and covered in trash. The children were dirty and had bites all over their faces and extremities. Ashley's hand was red and painful to the touch. Father and the children had slept outside the previous night, when the temperature had dropped below freezing. Father did not want to go to a shelter.

         During the investigation that followed, the Department's investigator Kourtney Charles interviewed the children's paternal grandmother K.E. ("Grandmother") as a potential placement for the children. Grandmother, who had a history with the Department, believed Father was living in an apartment and denied knowing Father was homeless. Father would contact Grandmother using various numbers because he did not have his own contact information. Grandmother stated that Mother had been absent from their lives for a year, and had no contact information for Mother.

         Charles contacted Mother to inform her that the Department had opened a case involving Andrew and Ashley. Mother believed Father was living with his sister. Mother had no employment. She stayed at home with another child, Alex, who has a different biological father.[3] Mother agreed to be protective of Andrew and Ashley.

         Charles informed Mother that she needed to go to Memorial Hermann Hospital, where the children would be evaluated. Father met the Department at the hospital. Father denied having any criminal history, and denied that the children lacked socks and shoes, and denied living under the bridge. He stated that he had left his belongings under the bridge because they did not fit in his apartment. Father indicated he had been living in shelters (Beacon and Star of Hope) but recently began living with a woman he met at a street church.

         Eventually, Father admitted that he had been homeless for months following an apartment fire. When Mother left the children with Father, he was employed and had a home. Father admitted that Mother was unaware of his homeless status. The children had been with Father for eight months. Father expressed no concerns over the children being placed with Mother.

         The physician who evaluated the children at the hospital reported no concerns, noting that there were no signs of malnourishment and that the bumps on the children's faces could be attributed to poor hygiene. The Department referred the family to Family Based Safety Services. Shortly after the referral, Father contacted Charles and informed her that the children were living with paternal aunt M.B. ("Aunt") at Mother's request. Charles told Father that Mother was not supposed to place the children in another residence without informing the Department. Charles attempted to contact Mother but was unable to reach her. Charles also contacted Aunt to confirm whether the children were living with her and to arrange for a home visit. Initially, Aunt refused to provide any information. Once Charles explained that placing the children with Aunt without permission from the Department was improper, Aunt verified that she had the children.

         Charles conducted a home visit at Aunt's house, which had running water, electricity, and food. The children slept on a mattress in the bedroom with Aunt and her boyfriend. A background check revealed that Aunt's boyfriend had a criminal history for marijuana possession, theft, and assault. Aunt's boyfriend submitted to a drug test and tested positive for marijuana use.

         At a Family Team Meeting in March 2015, Mother admitted leaving the children with Aunt because Alex's father had been released from prison and wanted to see her. Mother further admitted that she was aware of the requirement to inform the Department of any changes or if she could no longer care for the children. Mother remained unemployed. Father stated he had been employed for one week and was living in motels with his domestic partner. Based on the positive drug-test results for Aunt's boyfriend, the Department opted to remove the children from Aunt's care and placed them in a Parent Child Safety Placement with Father's maternal aunt.

         Shortly thereafter, the Department filed two original pleadings for termination of the parents' rights to the children, later amending its petition as to Ashley.[4] The Department alleged termination was warranted with regard to Mother because she:

• knowingly placed or knowingly allowed the children to remain in conditions or surroundings which endanger the physical or emotional well-being of the children, pursuant to §161.001(b)(1)(D), Texas Family Code;
• engaged in conduct or knowingly placed the children with persons who engaged in conduct which endangers the physical or emotional well-being of the children, pursuant to §161.001(b)(1)(E), Texas Family Code;
• constructively abandoned the children who have been in the permanent or temporary managing conservatorship of the Department of Family and Protective Services or an authorized agency for not less than six months and: (1) the Department or authorized agency has made reasonable efforts to return the children to the mother; (2) the mother has not regularly visited or maintained significant contact with the children; and (3) the mother has demonstrated an inability to provide the children with a safe environment, pursuant to §161.001(b)(1)(N), Texas Family Code; and
• failed to comply with the provisions of a court order that specifically established the actions necessary for the mother to obtain the return of the children who have been in the permanent or temporary managing conservatorship of the Department of Family and Protective Services for not less than nine months as a result of the child's removal from the parent under Chapter 262 for the abuse or neglect of the children, pursuant to §161.001(b)(1)(O), Texas Family Code.

         A. Center Caseworker's Testimony

         At trial, Mother's sole witness was Andrea Johnson, who was serving as Mother's case manager at the Star of Hope Transitional Living Center. The Center is a 12-to-18-month program designed for single women, single women with children, or single men with children. The program offers life skills classes to help individuals and families successfully move back into the community. Children are allowed to live at the facility with their parents.

         Mother initially entered the Center's New Hope Program. At the time of trial, Mother was participating in the Center's GED program as well as the aftercare program, which allowed her to take life-skills classes throughout the week. Johnson testified that Mother was making progress, noting Mother had completed the New Hope Program, and had passed one of the four test areas for her high school equivalency certificate. Mother also was working with a counselor at the Center to address, among other things, parenting issues.

         According to Johnson, Andrew and Ashley would be allowed to live with Mother at the Center because Mother had demonstrated continual progress. The Center offers continuing parenting classes as well as day care and afterschool programs. Transportation to and from the children's school also could be arranged. The Center also provides food and clothing. If a family needs additional assistance, the Center sometimes allows the family to stay longer than 18 months, a decision that is made on a case-by-case basis.

         Johnson testified that Mother had been placed on restriction an increased number of times in the two months before trial for tardiness to class and failing to complete chores. Johnson was aware of Mother's diagnosis of major depressive disorder. The Center monitors whether program members are taking their prescribed medications. At the time of trial, Mother was not taking her prescribed medication. Johnson stated that a resident would not be removed from the Center based on restrictions alone.

         On cross-examination, Johnson testified that when Mother arrived at the Center, Johnson was aware Mother had used marijuana and cocaine within the past year. Johnson did not know about Mother's methamphetamine use. Johnson acknowledged that Mother had not been compliant with certain requirements during the pendency of the Department's case. Although the Center was "comfortable" with Mother's current progress, Johnson could not guarantee that Mother would be allowed to stay at the Center.

         As Mother's caseworker, Johnson meets with Mother weekly for updates on Mother's progress. Johnson acknowledged that it was taking Mother "some time" to complete the GED program and if Mother does not pass the test, the Center might have to consider a new plan for Mother. Mother had completed an anger management program, a parenting course, and a substance abuse program as well as a life-skills workshop. Mother also participated in a youth conference program addressing mental health issues. According to Johnson, Mother had seen a psychiatrist about three months before trial. Johnson was unaware of any doctor telling Mother to stop taking medication for anxiety and depression.

         B. Mother's Testimony

         Mother testified that she was not caring for Andrew and Ashley currently. Both children had been living with Father for the nine-month period before the Department initiated suit. Mother left the children with Father after the couple ended their relationship. Mother later tried to care for Ashley but returned the child to Father because Mother was unable to get a job and look after Ashley at the same time.

         Initially, Father was living in a house with his sister. Then Mother heard that Father was moving from hotel to hotel. About four months before the children's removal, Mother saw the children at her parents' house for Christmas. At that time, Mother did not ask either Father or Andrew where they were living. Mother testified that she only learned Father and the children were living under a bridge when the Department became involved.

         During the Department's investigation, Mother denied any drug or alcohol use, though at trial Mother conceded that was a lie. After the Department placed the children in Mother's care, Mother told the Department she could not care for the children and entrusted their care to one of Father's family members without informing the Department. Mother then left Texas and lived with an aunt in Florida for a few months.

         Mother was aware that Father was using methamphetamines when they lived together. Mother's brothers, who were drug addicts, also were living with them and the children. When Father failed his first court-ordered drug test, Mother learned that Father also was using cocaine. Mother likewise tested positive for cocaine use. Mother testified that she had not used alcohol or drugs for approximately one year. Yet, Mother was using methamphetamines when the children came into the Department's care and Mother was using cocaine and marijuana after the children were removed. Although Mother took a parenting class while in Florida, she did not engage in any additional services ordered in her family plan of service for a period of five months.

         Mother stated that she was prescribed medication for anxiety and depression but decided on her own to stop taking it a month or two before trial. Mother admitted it was not in the children's ...

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