IN THE INTEREST OF C.M.-L.G. AKA K.M.G, K.D.D. AND K.D.D., CHILDREN
Appeal from the 313th District Court Harris County, Texas
Trial Court Cause No. 2015-05863J
consists of Justices Boyce, Jamison, and Brown.
Hill Jamison Justice.
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. Appellant Father also
appeals as to his child, Keith. 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
and Procedural Background
Pretrial Removal Affidavit
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.
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
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.
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.
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.
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
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.
August 2015, Steed received a phone call from Father. Father
stated that he was the father of Kevin and Keith.
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
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.
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
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.
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.
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.
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.
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
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.
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.
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.
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. 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
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.
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.
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.
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.
October 2015, the Department filed its original petition for
termination of Mother's and Father's parental rights
to Caleb, Kevin, and Keith.
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.
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.
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.
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
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 ...