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In re K.P.M.

Court of Appeals of Texas, First District

November 10, 2017

IN THE INTEREST OF K.P.M., A CHILD; IN THE INTEREST OF M.K.F. & S.M.F., CHILDREN; AND IN THE INTEREST OF S.L.F., A.D.T. & A.A.T., CHILDREN

         On Appeal from the 310th District Court Harris County, Texas Trial Court Case Nos. 2016-16344, 2010-26768, 2015-43569.

          Panel consists of Justices Keyes, Brown, and Lloyd.

          MEMORANDUM OPINION

          Harvey Brown Justice.

         S.M.F. is the mother of six children. In 2016, while pregnant with the youngest child, S.M.F. ("Mother") tested positive for ingestion of marijuana and exposure to marijuana, methamphetamine, and cocaine. The Department of Family and Protective Services was named temporary managing conservator of Mother's children, the children were placed in foster homes, and Mother began receiving Department services under court order. When Mother's sixth child was born, he was placed under the Department's managing conservatorship and in a foster home as well. Mother submitted to drug testing before and after the youngest child was born. She tested positive repeatedly. The Department sought termination of Mother's parental rights as to all six children.

         The trial court terminated Mother's parental rights under multiple statutory bases and found that termination was in the six children's best interest. Mother challenges the sufficiency of the evidence to support each predicate finding and the best-interest determinations.

         We affirm.

         Background

         In July 2015, the Department received two referrals and began investigating Mother's care of her children. The first alleged that Mother was not providing needed medical care for her five-year-old daughter, S.L.F. ("Selena"). The referral also alleged that Mother would leave Selena at "someone else's house for days at a time" and at school after she should have been picked up. It further alleged that Selena "smells like marijuana smoke all the time." The second referral alleged that Mother was homeless, had a physical altercation with a woman with whom she and Selena were staying, and, during that altercation, knocked Selena to the ground, causing slight injuries.

         The Department determined that Mother and Selena were living in hotels and with acquaintances. Mother stated that she was mentally unstable and needed assistance with Selena. Mother submitted to a drug test, which returned a positive result for methamphetamine, cocaine, and marijuana.

         The Department determined that Mother was pregnant at the time of the positive drug-test result. It also determined that Mother had four other children, whom she had placed with two different relatives in recent months. Nine months earlier, she sent twin seven-year-old girls, S.M.F. ("Sadie") and M.K.F. ("Macie"), to live with their father. The other children had different fathers and remained with Mother. She later sent her two boys, four-year-old A.D.T. ("Andrew") and one-year-old A.A.T. ("Adam"), to live with their grandmother. The Department requested that the twins' father and the boys' grandmother submit to drug testing. He tested positive for cocaine and marijuana. She refused drug testing.

         The Department filed petitions to be named temporary managing conservator of all five children: Sadie, Macie, Selena, Andrew, and Adam. Both petitions were supported by an affidavit from a Department caseworker, J. McNulty. She averred that the Department had received two other referrals for Mother in the preceding five years. In 2010, there was a referral that Mother was negligently supervising Sadie and Macie and was smoking marijuana and drinking cough syrup while pregnant with Selena. That referral had been ruled "unable to determine." There was another referral in 2012 that Mother was smoking marijuana and using cocaine and other drugs in front of her children, inadequately supervising her children, and reportedly working as a prostitute. That referral had been ruled "unable to complete" because Mother moved.

         The Department asserted that Mother's drug use presented an immediate danger to the children's physical health and safety. The trial court granted the petitions in August 2015 and named the Department as the temporary managing conservator of all the children.

         The Department established a Family Service Plan for Mother. The Plan listed as "concerns" that Mother has tested positive for drugs, "chooses to use drugs instead of adequately providing care for her children, " and "has mental health concerns." One of the stated Plan goals was for Mother to "demonstrate an ability to stay sober/drug free and in recovery." The Plan required Mother to successfully complete parenting classes, maintain a stable income, undergo a psychiatric and psychological evaluation, complete a substance abuse assessment, and follow any drug-treatment recommendations, including in-patient treatment. The trial court ordered Mother to comply with the Plan and admonished that failure to do so could result in termination of her parental rights. Mother signed the Plan with the admonishment.

         Mother submitted to three drug tests while pregnant with her sixth child, K.P.M. ("Kyler"). After he was born, she entered into an in-patient drug treatment facility and, one month after her release, was drug tested again. The drug-test results were admitted into evidence at trial. Bruce Jeffries, whose expertise in drug-test interpretation was stipulated to by all parties, explained the test results.

         Jeffries testified that Mother was drug tested multiple times using urinalysis tests. Mother's first urinalysis test was in July 2015, while she was pregnant with Kyler. She tested positive for marijuana ingestion. All subsequent urinalysis tests returned negative results.

         Jeffries testified that Mother was drug tested multiple times using hair-follicle tests as well. According to Jeffries, a hair-follicle drug test evaluates the interior and exterior of a person's hair strand. The interior of the hair is analyzed to determine whether the individual has ingested drugs in the last 90 days. The exterior of the hair is analyzed to determine whether the individual has had environmental exposure to drugs. Mother's first hair-follicle test was in July 2015. She tested positive for ingestion of marijuana and for exposure to methamphetamine, cocaine, and marijuana. More than 90 days later, while still pregnant with Kyler, she tested positive for ingestion of cocaine. More tests were conducted after another 90 days had passed. Mother tested positive for cocaine use again. That last positive test result was nine months after Kyler was born and one month after Mother completed in-patient drug treatment.

         These hair-follicle drug-test results are summarized below:

Date Positive Test Results
7-28-15 Ingestion: marijuana
Exposure: marijuana, methamphetamine, and cocaine
9-22-15 Ingestion: marijuana
Exposure: marijuana and cocaine
1-19-16 Ingestion: cocaine
[Kyler born]
3-14-16 All negative results
5-10-16 Exposure: marijuana
7-12-16 Exposure: marijuana
8-23-16 Exposure: ...

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