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In re Q.M.

Court of Appeals of Texas, Fourteenth District

May 11, 2017

IN THE INTEREST OF Q.M., Q.M., Q.J.K., Q.D.K., Q.N.K. AND Q.R.K., CHILDREN

         On Appeal from the 310th District Court Harris County, Texas Trial Court Cause Nos. 2015-47516 & 2015-47503

          Panel consists of Justices Christopher, Brown, and Wise.

          MEMORANDUM OPINION

          MARC W. BROWN, JUSTICE

         Appellants T.N.O. ("Mother") and C.R.M. ("Father") appeal the trial court's final decree terminating their parental rights and appointing the Department of Family and Protective Services ("the Department") as sole managing conservator of Q.M., Q.M., Q.J.K., Q.D.K., Q.N.K. and Q.R.K.. All six children have the same mother, T.N.O. C.R.M. is the father of Q.M. and Q.M. ("the twins"). The father of Q.J.K., ("Jose") Q.D.K., ("Don") Q.N.K. ("Nadine"), and Q.R.K. ("Rene")[1] did not appeal the termination of his parental rights. Both Father's and Mother's parental rights were terminated on the predicate grounds of endangerment and failure to comply with a family service plan. See Tex. Fam. Code Ann. § 161.001(b)(1)(D), (E), and (O) (West Supp. 2016). The trial court further found that termination of the parents' rights was in the best interest of the children.

         In two issues Mother challenges the legal and factual sufficiency of the evidence to support the trial court's findings that she failed to complete her service plan, and that termination is in the best interest of the children. In four issues Father challenges the legal and factual sufficiency of the evidence to support the predicate termination grounds and the finding that termination is in the best interest of the twins. We affirm because the evidence is legally and factually sufficient to support the trial court's findings that (1) both parents endangered the children; and (2) termination is in the children's best interest.

         I. Factual and Procedural Background

         A. Pretrial Removal Affidavit

         The Department received a referral alleging neglectful supervision of the twins on the day they were born. Mother's drug screen at the time of the twins' birth was positive for benzodiazepines, opiates, cocaine, and PCP. The twins' urine drug screens were negative. Mother admitted taking opiates and benzodiazepines sporadically to relieve pain from a car accident, but denied using cocaine and PCP. The day before the twins were born Mother reported she was in pain and asked a neighbor for aspirin. The neighbor gave Mother two turquoise pills with the letters "LV" printed on them. Mother did not know what the pills were, but took them anyway. Mother reported that she became "violently ill" and went to the hospital where it was determined she was in labor. The twins were born prematurely at 29 weeks, weighing just over three pounds each.

         Due to neglectful supervision, Mother's prior history with the Department, an earlier conviction for child endangerment, and Mother testing positive for multiple illegal drugs at the birth of the twins, Jose, Don, Nadine, Rene, and the twins were removed from Mother. At the time of the removal, Father, the alleged father of the twins, was incarcerated.

         After the children were removed, Mother told an investigator that the blue pills could have been Ecstasy. Mother denied having a criminal history, and initially denied having a history with Child Protective Services, but changed her story and admitted she had a CPS case nine months earlier, but the case was closed. Mother reported that the twins' father was in jail because he killed two people. Mother declined her first drug test because she had an appointment to get a tubal ligation.

         The investigator interviewed the three older children. Jose, eleven years old at the time, appeared to be developmentally on target for his age. He reported that his brother, two sisters, aunt, grandpa, and grandma live in the same home. He reported that Mother does not really live in the home and he does not know where his father lives. Jose stated that no one in the home fights or argues and that the police had never been to the home. Jose had no marks or bruises and denied any inappropriate touching. Don and Nadine were observed to be of appropriate height and weight with no visible marks or bruises. Both children reported that no one in the home fights or argues, but they did not know whether police have been to the home. At the time of the investigation Rene was three years old. The investigator observed Rene rather than interview her. Rene appeared to be of appropriate height and weight and was appropriately dressed with no visible marks or bruises.

         Mother's history with the Department began in 2011. At that time, the Adult Protective Services Department received a referral alleging Mother suffered from mental illness. It was reported that Mother was not stable on her medication. The case was closed because the Department was unable to locate Mother. In September 2014, the Department received a referral alleging physical abuse and neglectful supervision of Jose, Don, Nadine, Rene, and one of Mother's older children who is not the subject of this suit. It was reported that Mother, C.K., the father of Jose, Don, Nadine, and Rene, and her boyfriend at the time had a pattern of substance abuse, domestic violence, and participation in illegal activities. In November 2014, the Department received another referral alleging neglectful supervision of the children. It was reported that Mother and C.K., the older children's father, engaged in a physical altercation with each other while the youngest child was present. The case was "ruled out with risk factors controlled."

         Before the birth of the twins in December 2014, the Department received a referral for neglectful supervision of Nadine when she was six years old. Mother left Nadine home alone "in the middle of the night." Mother was eventually convicted of child endangerment as a result of this incident. The pretrial removal affidavit listed prior criminal convictions for Mother including assault causing bodily injury to a family member, criminal mischief, theft, and abandoning or endangering a child.

         The only information about Father in the pretrial removal affidavit is Mother's report that he is in jail awaiting trial on capital murder charges.

         The trial court signed an order removing the children from the home and naming the Department temporary managing conservator. The trial court ordered both parents to comply with family service plans to obtain the return of their children. The service plans required the parents to:

• provide financial support for the children;
• maintain stable and sanitary housing and secure employment;
• attend and participate in all meetings, hearings, and visits related to the children and the agency's case;
• participate in a drug and alcohol assessment and complete any services that may result from the assessment;
• participate in a six to eight week parenting course;
• participate in a psychosocial assessment and complete any services that may result from the assessment; and
• report for random drug testing with the understanding that a refusal to test or a no-show will be viewed as an indication of drug use and counted as a positive result.

         B. Trial Testimony

         The Department called Mother as its first witness. Mother admitted a conviction for burglary, which she committed with C.K., the father of Jose, Don, Nadine, and Rene. Mother further admitted convictions for assault of a family member, criminal mischief, theft, and a deferred adjudication for theft.

         On the child endangerment charge, Mother pleaded guilty and received deferred adjudication community supervision. The State subsequently filed a motion to adjudicate guilt on the endangerment charge. In the motion the State alleged that Mother violated the conditions of her community supervision by failing to (1) report to her community supervision officer; (2) participate in community service; (3) pay fees and court costs; (4) submit to an educational skill level evaluation; and (5) provide proof of a high school diploma or General Educational Development certificate. Mother pleaded true to the State's motion and entered into a plea bargain agreement for a sentence of 180 days in State Jail. Mother served her time in jail during the pendency of this termination proceeding.

         Mother testified that in addition to the six children in this case, she has a sixteen-year-old daughter who lives with her paternal grandparents and a three-year-old son who lives with his paternal grandmother. Drug tests in August 2015, after the removal of the children, were positive for amphetamine, methamphetamine, hydromorphone, hydrocodone, PCP, cocaine, and marijuana. Mother admitted she had been using "numerous drugs" while pregnant with the twins. Mother is currently working for Meals for You, and receives Social Security disability because she has been diagnosed with bipolar disorder. Mother admitted filing charges against Father for aggravated assault with a deadly weapon, but denied that Father assaulted her.

         Mother testified that she completed her service plan except for the requirement that she attend individual counseling. Mother testified she had not used drugs since getting out of jail approximately six months before trial. Mother used alcohol, but did not understand that alcohol use was prohibited. Mother is living in an apartment, paying $250 monthly rent to a family member. Mother took a parenting class while she was incarcerated. Mother testified she had sufficient beds, clothing, and food for the children at her apartment. Mother attended twelve-step meetings, and saved money to support her children.

         Sha'Dawnna Handy, the caseworker assigned to all six children, testified that Jose and Don were placed in a foster home where they were adjusting well. The foster home is an adoptive placement where both boys' emotional and physical needs are being met. They receive counseling and attend school. Both boys were behind in school when they came into care, but the foster mother is meeting with school counselors to help the boys improve through extra homework and extra credit.

         Nadine and Rene are also placed in a foster home, which is not an adoptive placement. The girls also receive regular counseling. Nadine has negative behaviors at home and school, but is being counseled to redirect those behaviors in a positive manner. The foster mother is willing to keep the girls until an adoptive home can be found.

         The twins are in a third foster home, which is an adoptive placement. They were born with health issues, but those issues have been addressed by their foster parents. The twins are seen regularly by a pediatrician and are current on their immunizations. The twins' emotional and physical needs are being met by their foster parents.

         Handy reviewed the family service plan with Father. Father was incarcerated, but Handy instructed him to engage in the services that the jail offered. Father did not provide any information for any service completed while in jail. Father contacted Handy several times to inquire about the welfare of his children and ask for pictures. He did not have any relatives for potential placement of the twins.

         Handy also reviewed the family service plan with Mother. Mother signed the plan before she was incarcerated. Between August 2015, when the children came into the Department's care, and June 2016 the only service completed by Mother was the parenting class taken in jail. Before going to jail Mother did not participate in any services. After getting out of jail a few months before trial Mother completed the majority of her services. Despite completing most of her services, the Department does not believe Mother sufficiently completed the services to obtain the return of her children. Handy testified that there has not been enough time since Mother got out of jail for Mother to demonstrate stability. She has not visited the children since getting out of jail and did not start any services before going to jail. Mother has not been permitted to visit the children by order of the trial court. Mother completed all of her services except individual counseling. Mother completed ten of the ...


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