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In re D.D.W.

Court of Appeals of Texas, First District

July 11, 2017

IN THE INTEREST OF D.D.W., A CHILD

         On Appeal from the 314th District Court Harris County, Texas Trial Court Case No. 2016-00673J

          Panel consists of Justices Jennings, Brown, and Lloyd.

          MEMORANDUM OPINION

          RUSSELL LLOYD, JUSTICE

         D.W. appeals from the trial court's judgment terminating his parental rights to his daughter, D.D.W. In three issues, D.W. contends that the evidence is (1) legally and factually insufficient to support the termination finding under Texas Family Code section 161.001(b)(1)(D) and factually insufficient to support the termination finding under section 161.001(b)(1)(E); (2) legally and factually insufficient to support the termination finding under section 161.001(b)(1)(N); and (3) factually insufficient to support the termination finding under section 161.001(b)(1)(O). We affirm.

         Background

         D.D.W. was born on January 28, 2016. Her birth certificate lists D.W. as her father, and a DNA test subsequently confirmed his paternity.

         On January 28, 2016, the Department of Family and Protective Services received a referral of neglectful supervision of D.D.W. by her mother, D.E.S., who tested positive for cocaine and marijuana at D.D.W.'s birth.[1] When a hospital social worker met with D.E.S. to discuss her positive drug screen, D.E.S. admitted that she had been smoking marijuana during the pregnancy and used cocaine in the two weeks prior to D.D.W.'s birth.

         On January 29, 2016, the Department received a second referral alleging physical abuse of D.D.W. by D.E.S. after D.D.W.'s urine tested positive for cocaine.[2] Following an investigation, the Department filed its original petition for conservatorship and termination of parental rights, and took emergency custody of D.D.W. on February 4, 2016.

         On February 18, 2016, the trial court held a full adversary hearing at which D.E.S. and D.W. appeared in person and through their attorneys. D.W. testified that he was still in a relationship with D.E.S. and that he would work the services necessary to be awarded custody of D.D.W. At the conclusion of the hearing, the court ordered a drug test for D.W. The court continued the Department's temporary managing conservatorship of D.D.W. and set a status hearing for April 5, 2016. D.W.'s court-ordered drug screen tested positive for cocaine and marijuana.

         The Department subsequently created a family service plan for D.W. which required him to complete several tasks and services, including submitting to random drug testing; providing his caseworker with an updated means of contact and forty-eight hours' notice of a change of contact; participating in a psychosocial evaluation; attending all visits with D.D.W., court dates, and conference meetings and maintain contact with the Department; acquiring and maintaining stable employment for more than six months and providing payroll stubs and/or income verification documents to his caseworker; and refraining from engaging in any drug-related and illegal criminal activities. The plan also stated that failure to show up for a drug test would be considered a positive test. D.W. signed his family service plan on March 31, 2016.

         On April 5, 2016, the Department filed a status report advising the court that D.D.W. was currently placed in a foster home and that the primary goal was relative adoption with a concurrent goal of relative conservatorship. Following a status hearing, the trial court signed an order approving D.W.'s family service plan and making it an order of the court.

         On July 12, 2016, following a permanency hearing, D.W. submitted a fingernail sample which tested positive for cocaine and marijuana. A substance abuse panel taken from D.W. the same day tested positive for marijuana, and his hair sample also tested positive for cocaine and marijuana.

         On October 4, 2016, D.W. pleaded guilty to possession of marijuana, and was sentenced to three days in county jail.

         A second permanency hearing was held on October 20, 2016. The caseworker testified that in addition to the positive drug tests on February 18, 2016 and July 12, 2016, D.W. also had a "positive refusal" on February 22, 2016. In light of these positive tests, the trial court suspended visitation with D.D.W. and ordered that D.W. test clean before visitation could resume. The Department caseworker advised the court that ...


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