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In re C.M.-L.G.

Court of Appeals of Texas, Fourteenth District

May 2, 2017


         On Appeal from the 313th District Court Harris County, Texas Trial Court Cause No. 2015-05863J

          Panel consists of Justices Boyce, Jamison, and Brown.


          Martha Hill Jamison Justice.

         Appellant Mother appeals the trial court's final decree terminating her parental rights and appointing the Department of Family and Protective Services as sole managing conservator of her children, Caleb, Kevin, and Keith.[1] Appellant Father also appeals as to his child, Keith.[2] On appeal, both Mother and Father challenge the legal and factual sufficiency of the evidence to support (1) the predicate grounds under which their parental rights were terminated, and (2) the finding that termination was in the children's best interest. We affirm.[3]

         Factual and Procedural Background

         I. Pretrial Removal Affidavit

         In May 2015, the Department received a referral alleging the neglectful supervision of Caleb, Kevin, and Keith by Mother. According to the referral, Mother was smoking marijuana and using ecstasy pills on a daily basis, while caring for the children. Mother also would leave the children at an aunt's house. At the time of the referral, Mother was living in a hotel room. There was a protective order in place against Father due to a recent domestic disturbance.

         Following the referral, Department investigator George Steed attempted to meet with Mother and the children. When he arrived for a visit, he was met by a family friend, Donna, who was watching the children while Mother was at work. Steed observed Kevin and Keith, who did not appear to have any marks or bruises. Steed further noted the home had utilities and beds for the children. According to Donna, the children stay with her "most of the time." After Mother ended her relationship with Father, Mother did not have a place to stay. The children were staying with Donna while Mother stayed in a hotel room near her place of employment because Mother did not have transportation. Donna stated that Mother would visit the children on her days off from work. Donna further noted that Mother was a good mother who cared about her children.

         Donna had no history with the Department and had not served any time in jail. Although Donna suffered from high blood pressure, she maintained it with medication. Donna told Steed that she had raised Mother and was willing to raise Mother's children. Donna did not know when Mother would retrieve the children.

         Subsequently, Steed spoke to Mother on the telephone. Mother reported that she had a new job at a call center and that she was working a double shift in order to save money for a place to live. Mother was shocked that the Department had received a referral and promised to call back after her shift ended.

         Approximately a week later, Mother contacted Steed and agreed to meet with him at Donna's home. Mother also informed Steed of a third child, Caleb, who was not present during his initial visit. Subsequently, Steed met Caleb and arranged for Mother to take a drug test. Mother's hair follicle test was positive for both cocaine and marijuana.

         Steed attempted to contact Mother multiple times following the drug test. After several weeks without contact, Steed visited Donna. Donna informed Steed that Mother had collected the children several months prior. Although Donna had not seen the children since then, she had spoken with Mother. Steed called in a police welfare check for Donna's residence. The responding officer reported that the children were not at the residence, and there was no contact information for Mother.

         Steed then contacted Father's mother, who had not seen Father in a month. Grandmother said she had a good relationship with Mother and would inform Steed if she had any contact with either Mother or Father. Steed eventually reached Mother on the telephone. Mother had the children, and they were living with a friend. Mother agreed to meet with Steed to discuss the results of her drug test.

         In late August 2015, Steed received a phone call from Father. Father stated that he was the father of Kevin and Keith.

         In September 2015, Steed called Mother and learned that she had fallen at work and was on her way to the hospital. Steed met with Mother at the hospital. Mother agreed to work her services. Mother stated that she had tried to work services in the past, but they had conflicted with her work schedule. Mother named Donna as a possible placement for the children. Steed then met with Donna and completed a parental child safety placement.

         Subsequently, Father called Steed and expressed his desire to be involved with the children. According to Father, Mother had brought the children to live with him. Father had gotten a new job and was staying with Grandmother, who could help him care for the children. Father agreed to participate in services and to take a drug test.

         In October 2015, a new Department investigator, Uriah Barnaby, was assigned to the case. Barnaby learned that Father's hair follicle test was positive for cocaine and marijuana. Barnaby attempted to visit Donna in order to confirm the parental child safety placement was still in place. However, Donna was in the emergency room and had left the children with Father.

         Father called Barnaby and confirmed that he had the children. Barnaby expressed his concerns over Father having the children in light of his drug test results. Father admitted he had informed Steed he would test positive for marijuana use, but Father did not know how cocaine got into his system.

         Barnaby scheduled an appointment to meet Father and the children at Barnaby's office. After Father failed to arrive at the scheduled time, Barnaby met Father at a different location. The children were not present. Father reiterated that he was the biological father of Kevin and Keith; however, he was not named as the father on their birth certificates and did not pay child support. Father did not know the identity of Caleb's biological father but considered Caleb his child as well. Father had no information as to Mother's whereabouts and was no longer in a relationship with her.

         During the meeting, Father again expressed confusion over his positive test result for cocaine. Father denied using marijuana laced with cocaine, but conceded there might be cocaine in "tabs, " which he used as a type of muscle relaxant. Father stated he had been shot in the arm during a drive-by shooting over the summer. Father denied any gang affiliation or criminal history. Father had been employed in his new job for approximately 30 days.

         Father was aware of Mother's occasional marijuana use but had not seen her "pop pills." Father denied that the children were always at Donna's house. Father admitted to being involved in a domestic disturbance but declined to share any details. Father confirmed that he had all three children, and his sister was watching them at Grandmother's house. Father stated that he never worked services in the previous cases with the Department, but further noted he could never reach anyone at the Department in regard to services.

         Barnaby informed Father that the children would need a new placement in light of the domestic violence and both parents' drug use as well as Donna's admission into the hospital. Father appeared confused by this news and did not seem to understand why he was involved in the case. Barnaby explained that under these circumstances, the children were at risk. Father complained that he had only agreed to a urine test, not a hair follicle test. Father stated he wanted the children placed with Grandmother. However, when Father called her, Grandmother agreed to keep only Kevin and Keith. Barnaby warned Father that if placement was not found for all three children, they might be placed in foster care. Father stated, "[N]one of my kids are going into foster care and that is that."

         During his meeting with Father, Barnaby called Mother and informed her that Caleb needed a new placement. Mother believed Donna had been discharged from the hospital and would be able to care for the children. Attempts to reach Donna on the phone were unsuccessful. When Barnaby asked Mother about Caleb's father, Mother stated that Caleb did not have a father and became upset.

         Father refused to provide specific information as to the children's whereabouts. Father claimed he was not hiding the children, but they were staying with someone who did not want to be involved in the case. Father promised to bring the children to Grandmother's house the following morning.

         Barnaby met Mother at Donna's house a couple of days later, having explained to her that the Department could not locate the children. Mother stated that she used drugs when she was "down" and unemployed. According to Mother, she had stopped using drugs prior to initiation of this case. During their meeting, Father appeared with all three children. Father reiterated that he did not want the children in foster care and that he was willing to work services.

         Barnaby interviewed six-year-old Caleb, who said he lived at home with Kevin, Keith, and Donna. Donna slept in the living room, while he and his brothers slept in the bedroom. Caleb stated he also had a sister, Courtney, but she lived with her father.[4] Caleb denied any arguing or fighting in the home and stated that he had never been left at home by himself. Caleb denied knowing what smoking, drinking, or drugs are. Caleb denied the presence of any guns in the house as well as visits from the police. Caleb stated that he gets spanked on the bottom with a belt when he disobeys his parents. Caleb denied any inappropriate touching of his private parts.

         Caleb told Barnaby that Mother left him in a hotel room with the television on while she went to work. Caleb did not know how long Mother was gone, but he was not scared. Caleb stated that his home would be dirty but then it would be clean. Barnaby observed that Caleb did not have any marks or bruises, his hair was combed, and his clothes were clean.

         Barnaby reviewed the placement agreement with Mother, Father, and Donna, confirmed that both parents understood all contact with the children must be supervised, and explained that the family must work their services.

         Subsequently, Barnaby contacted Courtney's father, A.G., who confirmed that he had been caring for Courtney since she was two months old. A.G. did not allow Mother to have any contact with Courtney due to Mother "being unstable and never having herself together." A.G. also disapproved of Father. Although Mother had been ordered to pay child support for Courtney, she had not paid anything.

         A.G. denied being Caleb's biological father, but noted that his name was on Caleb's birth certificate and he had not taken a paternity test. According to A.G., during a rocky period in their previous relationship, Mother had called him to announce that she had given birth to Caleb. Believing Caleb was his, A.G. signed the birth certificate. However, Mother later told A.G. that he was not the father. A.G. agreed to take a paternity test as to Caleb if necessary.

         In October 2015, the Department filed its original petition for termination of Mother's and Father's parental rights to Caleb, Kevin, and Keith.

         II. Trial

         Trial to the court commenced on October 20, 2016. Before any witness testimony, the Department introduced the following into evidence without objection: each child's birth certificate; certificates of paternity registry search to establish that no notice of intent to claim paternity had been filed as to Caleb and Kevin; search results from the Court of Continuing Jurisdiction Registry, demonstrating that none of the children had been the subject of a suit affecting the parent-child relationship in which a judgment was entered on or after January 1, 1974; Mother's and Father's family service plans; a status hearing order; records from the Children's Crisis Center; drug tests results for both parents; and Father's criminal history.

         A. Bruce Jefferies

         The Department called Bruce Jefferies as its first witness. Jefferies owns National Screening Company, which provides drug and DNA testing services. In January 2016, Father passed his urine test but failed the hair test for drug use. Subsequently, in March 2016, Father tested negative for illegal drug use.

         In September 2016, Father's urine tested positive for Xanax, marijuana, and alcohol. A hair follicle test performed at the same time revealed Father was positive for cocaine, cocaethylene (cocaine mixed with alcohol), and marijuana. The test results further showed that the cocaine had metabolized in Father's system and, thus, was the result of ingesting cocaine and not due to mere exposure. Jefferies was unaware of any prescription drug that would cause an individual to test positive for cocaine. While it was possible that Father's drug use could have occurred six months prior to the September test, Jefferies testified there was only a "remote possibility" or "very small chance" that the drug use was not more recent.

         B. Mother

         Mother recalled that the allegation initiating the instant case was that Mother was using marijuana and ecstasy. At the time of the allegation, the children were living with Donna. Mother acknowledged that, subsequent to the referral, she "probably" tested positive for cocaine and marijuana.

         After the children came into the Department's care, the court told Mother she would need to do some services in order to have the children returned to her. Although she did not have proof of completion, Mother participated in her court-ordered anger management class. Mother also provided the Department with verification of her income. Mother testified she had consistently maintained ...

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