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In re J.K.L.

Court of Appeals of Texas, Fourth District, San Antonio

June 21, 2017

IN THE INTEREST OF J.K.L., a Child

         From the County Court at Law, Kendall County, Texas Trial Court No. 15-485 CCL Honorable Cathy Morris, Judge Presiding

          Sitting: Patricia O. Alvarez, Justice Luz Elena D. Chapa, Justice Irene Rios, Justice

          MEMORANDUM OPINION

          Patricia O. Alvarez, Justice

         Kasee K. appeals the trial court's order terminating her parental rights to her son J.K.L. Kasee challenges the sufficiency of the evidence to support the trial court's finding that termination of her parental rights was in J.K.L.'s best interest. We affirm the trial court's order.

         Background

         J.K.L. was born on September 30, 2015, and the Department was appointed temporary managing conservator on October 16, 2015. An order terminating the father's parental rights was signed on September 28, 2016. A trial on whether Kasee's parental rights should be terminated was held on November 29-30, 2016. The following summarizes the testimony of the witnesses.

         A. Kimberly Dodd

         Kimberly Dodd, a conservatorship worker employed by the Texas Department of Family and Protective Services, testified she was assigned to work with Kasee in November of 2013. At that time, another one of Kasee's children, R.C., who was two months old, was removed from Kasee's care, and a family service plan was developed for Kasee which included supervised visitation and drug testing. Kasee was never able to visit R.C. after the removal because Kasee never had two consecutive, negative drug tests. Kasee also was not otherwise compliant with the plan because she would engage in services for a month and then disappear for several months. While the case was pending, Kasee gave birth to another child, M.C., on March 17, 2014. Kasee was using drugs while pregnant with M.C., and the Department immediately removed M.C. from Kasee's care. Ultimately, Kasee's parental rights to both R.C. and M.C. were terminated on January 26, 2015.

         Dodd testified Kasee was not truthful during the period she worked with her. Dodd discovered Kasee had two other children who also were removed from her care because of her drug use. Dodd testified Kasee never demonstrated any willingness to protect her children from harm or to accept the responsibility of being a parent. Kasee never put her children's needs ahead of her own or demonstrated any change in her pattern of behavior. Dodd admitted she had not been in contact with Kasee since October of 2014.

         B. Dr. Brent Reyburn

         Dr. Brent Reyburn, a neonatologist, examined J.K.L. on October 4-5, 2015. Because J.K.L. did not exhibit withdrawal symptoms at birth, he was not initially screened for narcotics. On October 3, 2015, J.K.L. was admitted to the hospital's intensive care unit due to concerns about respiratory distress and oxygen desaturation. J.K.L. was diagnosed with Neonatal Abstinence Syndrome which is manifested by withdrawal symptoms due to maternal narcotic usage. The symptoms include tremors, extreme irritability, high-pitched crying, increased muscle tone, and hyperactivity.

         During the night of October 4, 2015, J.K.L.'s Neonatal Abstinence Scores averaged 8.3, with high scores of 12 and 14 which Dr. Reyburn described as "incredibly high." Dr. Reyburn explained any score over 8 requires treatment, and J.K.L. met all criteria for placing him on morphine due to his symptoms. After the morphine was administered, J.K.L.'s symptoms drastically improved. J.K.L. was slowly weaned off the morphine over a two-week period.

         Dr. Reyburn testified J.K.L. did not suffer from any other symptoms that would mimic something similar to a withdrawal. He also explained an infant generally shows evidence of withdrawal within 48 to 72 hours, but a delay in an infant's withdrawal is not uncommon. When the mother last used a narcotic and the type of narcotic she used can affect the timing of the infant's withdrawal. Dr. Reyburn further testified that an infant may suffer from withdrawal even if the mother tested negative for all drugs.

         C. Samuel Cholico

         Samuel Cholico, an investigative supervisor employed by the Department, testified the Department received a referral for J.K.L. on October 1, 2015. A nurse at the hospital where J.K.L. was born called in the referral based on Kasee's history with the Department and her extensive drug history. In the past, the Department had received five referrals with regard to Kasee, and three of the referrals were validated. All of the referrals involved drug use. The main concern with J.K.L. was his withdrawal symptoms.

         Upon receiving the referral for J.K.L., a safety plan was developed for Kasee. Because Kasee was uncooperative and confrontational, the plan required her visits with J.K.L. in the hospital to be supervised. After Kasee was discharged from the hospital, she visited J.K.L. in the hospital between midnight and 3:00 a.m. A nurse reported Kasee appeared to be under the influence of something. Although Kasee did not test positive for drugs in the hospital, Cholico testified the Department removed J.K.L. because of his withdrawal symptoms which indicated Kasee had used drugs during her pregnancy. Cholico also testified Kasee's probation officer informed him she tested positive in drug tests administered as a condition of probation in 2013.

         D. Shelli Nix

         Shelli Nix, another conservatorship worker employed by the Department, testified Kasee's case was transferred to her in August of 2016. Upon receiving the case, Nix reviewed the entire file. A copy of Kasee's family service plan was admitted into evidence. The plan required Kasee to complete individual therapy, a parenting class, and drug and alcohol assessment. Kasee was also required to submit to random drug testing, maintain a safe alcohol-and-drug-free home, maintain contact with her caseworker, obtain and maintain employment, and complete a psychological evaluation. When Nix was assigned the case, Kasee had completed a parenting class, participated in substance abuse assessment, started therapy, and completed a psychological evaluation. The psychological evaluation recommended ongoing drug treatment based on concerns that Kasee minimized her drug history. Kasee had not been discharged from therapy, and her therapist had not recommended family reunification. The plan required Kasee to attend therapy twice a month, but she had attended only about half of the required sessions. Kasee's therapist informed Nix that Kasee routinely called to cancel her appointments. The therapist continued to have concerns that Kasee was not addressing her alcohol issues. With the exception of one drug test in May of 2016 which was dilute, and a positive alcohol test in September of 2016, all of Kasee's drug tests were negative. Kasee had not provided evidence of employment or documentation that she was attending drug treatment.

         Nix testified she saw no evidence of Kasee's willingness or ability to protect J.K.L. from harm. Nix stated Kasee had not demonstrated an acceptance of the responsibility of being a parent. In therapy, Kasee continued to minimize and deny the problems that required J.K.L.'s removal. Nix testified Kasee had not met the plan's tasks or goals. Although the Department had provided Kasee with all the services, referrals, and resources necessary for her to be reunified with J.K.L., Kasee had not fully utilized them. The Department's permanency plan for J.K.L. was adoption by his current foster family in whose care J.K.L. was safe and meeting all of his developmental milestones. J.K.L. was placed with that foster ...


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