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In re S.M.G.

Court of Appeals of Texas, First District

June 29, 2017


         On Appeal from the 314th District Court Harris County, Texas Trial Court Case No. 2015-07311J

          Panel consists of Chief Justice Radack and Justices Keyes and Massengale.


          Evelyn V. Keyes Justice

         Appellant, J.Y. ("Mother"), challenges the trial court's order terminating her parental rights to her child, S.M.G., and appointing appellee, the Department of Family and Protective Services ("DFPS"), as S.M.G.'s managing conservator. In four issues, Mother argues that the evidence was legally and factually insufficient to support: (1) termination of her parental rights under Family Code section 161.001(b)(1)(D); (2) termination of her parental rights under Family Code section 161.001(b)(1)(E); (3) a finding that termination of her parental rights was in S.M.G.'s best interest; and (4) a finding that appointment of DFPS as managing conservator was in S.M.G.'s best interest.

         We affirm.


         S.M.G. was born in July 2013. At the time of her birth, S.M.G. lived with Mother. Mother testified that S.M.G.'s father, T.E.G. ("Father"), [1] who had "lifelong meth problems, " also lived with her and S.M.G. at the time S.M.G. was born. On February 6, 2015, Mother was arrested for possession of methamphetamine and, according to Mother, S.M.G. stayed with Father following Mother's arrest. On April 6, 2015, DFPS received a referral for neglectful supervision of S.M.G. Mother testified that she was living with her mother at that time "trying to avoid [Father]. Getting out of a bad relationship with him." Mother did not address the events involved in the April 2015 referral, but other evidence, including the testimony of the DFPS caseworker, indicated that S.M.G. was found wandering outside by passersby who became concerned when they could not find any adult supervising S.M.G. According to the caseworker, DFPS "could not proceed [with its investigation of these events] because [it] could not locate the mother or the father at the time."

         On September 22, 2015, Mother pleaded guilty to possession of methamphetamine and was placed on deferred adjudication. The terms of Mother's deferred adjudication community supervision required, among other things, that Mother not use or possess illegal drugs and that she report monthly to her community supervision officer. Mother's criminal records demonstrated that she did not report as required in October, November, or December of 2015. On December 18, 2015, Mother was arrested for public intoxication with S.M.G. in her presence.

         DFPS received another referral for negligent supervision as a result of Mother's December 2015 arrest. S.M.G.'s caseworker, Roosevelt Canfield, testified that, at the time of Mother's arrest, Mother "reported to police upon arrival that she had been using meth an hour before their arrival" and that Mother "had meth particles under her nose at that time." Furthermore, S.M.G., who was two years old in December 2015, "was described to be smelling of urine and was soiled[.]" DFPS filed its petition for protection of S.M.G., sought emergency removal of S.M.G. from Mother's care, obtained a protection order, and placed S.M.G. with a foster family.

         Mother tested positive for methamphetamine, amphetamine, and marijuana use on January 12, 2016, when she appeared for a show cause hearing. Mother was arrested again on January 28, 2016, for possession of methamphetamine, which led to the adjudication of her guilt for the previous possession charge. Mother was placed in jail for a period of time and then was subsequently released into a court-supervised drug treatment program.

         Meanwhile, Mother was placed on a family service plan. Canfield testified that Mother completed her psychosocial and psychological evaluations and counseling obligations. Mother also completed inpatient substance abuse services and parenting classes. Canfield further stated that Mother had found employment and had obtained suitable housing the month prior to trial, although she had not maintained stable housing for six months as required by the family service plan.

         At trial, DFPS presented evidence of Mother's criminal history, including her conviction for possession of methamphetamine. It also presented evidence of Mother's failed drug test from January 2016, in which Mother's urine sample and hair follicle sample tested positive for multiple drugs. However, since her release from jail and completion of substance abuse treatment, Mother had not had any further failed drug tests.

         Canfield also testified that Mother's visits with S.M.G. were appropriate and went "very well." He testified that S.M.G. "is bonded with [Mother]." Canfield testified, however, that DFPS was concerned about Mother's ability to provide a safe and stable environment. Mother was still on probation at the time of the trial in December 2016, and her term of probation had been extended into 2019. Between the time she was released from jail until November 2016, Mother lived in transitional housing, which Canfield described as "a structured environment." DFPS was concerned about how Mother would provide for S.M.G. once she was "out on her own without structure."

         At the time of trial, S.M.G. was placed with an adoptive foster family who had also intervened in the proceeding. Regarding the foster family, Canfield testified that S.M.G. had been living with them for almost a year and that she called her foster parents "Mom and Dad." Canfield testified that he believed it could be harmful to S.M.G. to have her relationship with Mother terminated because S.M.G. recognized that Mother was her parent. He also testified, however, that S.M.G. would face a similar risk if her relationship with her foster parents was disturbed because she was likewise bonded to them. The child advocate for S.M.G. testified similarly that S.M.G. was bonded to Mother and that the foster family was a safe and appropriate placement.

         S.M.G. had no special needs. Canfield testified that the foster family was meeting all of S.M.G.'s physical and emotional needs, that DFPS's goal for S.M.G. was unrelated adoption, and that the foster family wanted to adopt S.M.G. Canfield testified that DFPS believed this was in S.M.G.'s best interest because she would "be opened up to future risk of harm and neglect" if she were to be placed back with her mother, as Mother had failed to provide the child with a safe and stable environment. Canfield stated that his concerns were based primarily on Mother's history, and he briefly recounted the incident in which S.M.G. "was found outside by passersby and she was unsupervised. No one was around and they could not find the father or [Mother] at that time."

         Mother testified that she never used drugs while she was pregnant with S.M.G. or during the first year of S.M.G.'s life. Mother testified that her problems began when Father "went to prison and then he got out [in February 2014] and did a number of things to make my life a living hell." She further stated that Father had "put me and [S.M.G.] through some hell and I've done everything in my power to make it better for myself and her to live a safe and sober life." Mother also testified that Father had a "lifelong" struggle with drug use and a lengthy criminal history.[2]

         Regarding her present circumstances, Mother testified that she had earned an associate degree and was "originally going to nursing school." She testified that she had "lots of work history" and had "worked in the chemical plants several years, " had worked as a waitress, as an office manager, and as a construction worker. She was currently looking into learning the trade of welding and had maintained her current employment at a restaurant for several months. Mother testified that she had worked very hard to maintain her sobriety and get her life back on track to have S.M.G. returned to her care. A supervisor from the court-ordered drug treatment program and Mother's recovery coach from her in-patient drug treatment facility both testified on Mother's behalf. They indicated that Mother was doing well with her recovery.

         The trial court terminated Mother's parental rights to S.M.G. pursuant to findings under Family Code section 161.001(b)(1)(D) and (E) and a finding that termination of Mother's parental rights was in S.M.G.'s best interest. The trial court ...

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