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In re C.S.

Court of Appeals of Texas, Seventh District, Amarillo

August 2, 2017

IN THE INTEREST OF C.S. III, A CHILD

         On Appeal from the 99th District Court Lubbock County, Texas Trial Court No. 2015-517, 776; Honorable Kara Darnell, Presiding

          Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.

          MEMORANDUM OPINION

          Patrick A. Pirtle Justice.

         Appellant appeals the trial court's order terminating his parental rights to his son, C.S.[1] By a single issue, he challenges the sufficiency of the evidence to support the trial court's best interest finding. Appellant does not appeal that portion of the trial court's order finding termination was supported by two statutory grounds. We affirm.

         Background

         C.S. was born in August of 2015. At the time of his birth, he had multiple health issues and both he and his mother, C.M., tested positive for drugs. He was premature (having been born at twenty-seven weeks), suffered from neonatal sepsis, respiratory distress, and poly-substance abuse.[2] His mother abandoned him at the hospital, and at the time of C.S.'s birth, Appellant was incarcerated due to a conviction for felon in possession of a firearm.[3]

         In November 2015, prior to Appellant's release from prison, the Department filed its first amended petition to terminate the parental rights of both C.M. and Appellant pursuant to section 161.001(b)(1)(D), (E), (N), and (O) of the Texas Family Code. See Tex. Fam. Code Ann. § 161.001(b)(1)(D), (E), (N), (O) (West Supp. 2016).[4] At that time, the trial court also entered an Order for Actions Necessary for Return of Child which set forth the conditions necessary for the return of C.S. which required Appellant to complete all tasks and services specified in a service plan, as well as tasks and services adopted or ordered by the trial court in any subsequent service plans signed by or delivered to Appellant.

         In July 2016, after Appellant's release, the trial court entered a subsequent family service plan that required, among other things, that he: (1) demonstrate the ability to provide adequate care for his son by following all medical advice for C.S., (2) participate in a psychological evaluation and follow any recommendations, (3) actively participate in visitation with C.S., (4) attend all medical appointments pertaining to his son to gain a better understanding of C.S.'s medical needs, (5) comply with his plan of service, (6) participate in individual counseling, (7) maintain safe and stable housing free of hazards and persons who pose a risk/safety concern or have a criminal or CPS history, (8) notify the Department of any change in employment or housing, (9) participate in random drug testing as requested by the Department understanding that a failure to appear for a drug test would be considered a positive result, (10) maintain stable, legal, and verifiable employment sufficient to meet the family's needs for shelter, food, transportation, and clothing, and (11) actively attend and participate in weekly NA/AA meetings, work the twelve steps of recovery, and obtain a sponsor to help in the recovery process.

         On October 13, 2016, the trial court initiated its final hearing. At that hearing, Appellant testified he was unaware of C.M.'s drug usage or that she was pregnant until after he was incarcerated. C.S.'s caseworker, Jennifer Garlett, testified during the final hearing that Appellant admitted in a telephone call that he had a history of drug abuse and Appellant himself testified that "[d]rugs [had] . . . ruined [his] life in the past, " but that he quit using drugs in January 2007 before he went to prison and has not used drugs since. Appellant further testified that while his son was in the hospital, he called to receive updates on his medical condition and contacted the Department requesting that it work with him after his upcoming release on federal probation. In the three months following his release, he visited with his son twice and missed a number of scheduled visitations due to work, car trouble, the weather, or for no excuse at all. Despite having received his service plan in June of 2015, by the time of the final hearing he had yet to (1) schedule a psychological evaluation, (2) provide evidence of safe and stable housing, (3) appear for all his drug tests, (4) attend his son's medical appointments, (5) supply proof of stable employment, or (6) attend any NA/AA meetings.

         In the months after his release, he indicated he had lived in four homes and had two different girlfriends-all while remaining married to C.M. At one point, Appellant requested that he be able to attend Saturday visitation because he was not working weekends; however, although the Department complied, he continued to miss his scheduled visitations.

         He testified that for two weeks prior to the final hearing, he had been living in a four-bedroom, rent-to-own house belonging to the parents of his second girlfriend, Julia. If his son was placed with him, he would be living with Julia's three children, her disabled mother, and her father. Julia assisted her mother and took care of her children while her father worked two jobs. His plan was to put C.S. in daycare during the day and take care of him when he returned home from work in the evening. He was uncertain what daycare he would use. He also testified he was one class short of completing a parenting class at a church in Abilene and his weekly drug tests administered through federal probation were negative. He was unable, however, to supply proof of the federal drug testing results without filing a motion in federal court.

         There was also evidence on Facebook that he had been photographed flashing gang signs since his release. Appellant testified he first became a member of the West Texas Tango gang when he was imprisoned in 2007; but, since his most recent release, he had ceased to be a member. He testified the signs could be interpreted as gang signs in one sense, but in another, they could be interpreted merely as signs that he was in West Texas. Although there were also photographs showing he was in the presence of alcohol, he testified he was not drinking. Without a final ruling, the hearing was continued.

         A permanency hearing was held on November 8, 2016. Following that hearing, the court entered an order finding that neither Appellant nor C.M. was willing or able to provide C.S. with a safe environment at that time. Accordingly, the court ordered that returning C.S. to either parent at that time was not in the child's best interest.

         On January 5, 2017, the trial court convened a combination permanency/final hearing. Testimony established that Appellant had completed a psychological evaluation where he was classified as having an "adjustment disorder unspecified." The evaluation recommended that he go to weekly psychotherapy to focus on problem-solving, coping skills, and his capacity to make appropriate decisions. The evaluation also recommended that he cooperate fully with any recommendations based on his drug and alcohol assessment and there was a strong recommendation that he attend anger management classes because of his history of fighting while incarcerated. He also completed a parenting class. Under his federal release program, he testified that he completed an outpatient drug and alcohol counseling program and continued to participate in weekly drug tests. He had not attended NA/AA meetings or obtained a sponsor because he didn't believe he had a drug or alcohol problem. Neither had he paid any court-ordered child support, contacted C.S.'s doctors to determine medical needs, [5] or completed a drug and alcohol assessment.

         He testified he was working for a concrete contractor making $11.00 an hour and he continued to live with Julia and her family. Although he represented that he and Julia were still in a relationship, photographs from his Facebook page indicated that he and Julia were no longer "friends" and he had replaced her photograph with that of another woman. Although Julia's parents had criminal histories and served time in prison, he was not concerned because they had "paid their dues." He testified that if he were able to have his son, he would take two weeks off work and "figure it out as it comes."

         Garlett testified that prior to his release, Appellant had called her monthly asking about his son. She provided him information regarding his service plan but he indicated there were no services available in prison. Upon his release, she set up a visit for him with his son (which he did not attend), spoke with him about his service plan, and assigned a courtesy worker to assist him in Abilene.[6]

         Appellant was offered weekly visits with his son lasting two hours. He attended two visits between his release on June 26 and the October 13 hearing. From October to the present hearing, he was offered weekly visitations on Saturdays to accommodate his work schedule; however, he asked for visitation every other week because it was too difficult to make the weekly visits. From October 13 to the January 2017 hearing, he visited C.S. an additional three times for a total of five visits since he was released from prison in June 2016. His excuses for canceling or not showing up at scheduled meetings included bad weather, work conflicts, and lack of transportation.

         Garlett testified Appellant's living arrangements with Julia's family were uncertain, i.e., his courtesy worker had not seen Julia's house since November 2016. In November, Appellant met the courtesy worker at his grandmother's house rather than at Julia's house as requested. When she attempted to schedule a December visit, Appellant indicated that he was at his grandmother's house and he would no longer allow the Department to speak with Julia because the ...


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