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In re B.F.

Court of Appeals of Texas, Fourteenth District

November 16, 2017

IN THE INTEREST OF B.F., P.M.F. a/k/a P.F., CHILDREN

         On Appeal from the 313th District Court, Harris County, Texas, Trial Court Cause No. 2016-02643J

          Panel consists of Justices Jamison, Busby, and Donovan.

          MEMORANDUM OPINION

          J. BRETT BUSBY JUSTICE

         The trial court terminated the parental rights of D.G.F. (Mother) with respect to her children, Ben and Pia, [1] and appointed the Texas Department of Family and Protective Services (the Department) to be the children's managing conservator. On appeal, Mother challenges the sufficiency of the evidence to support termination. We conclude legally and factually sufficient evidence supports the trial court's findings that Mother endangered her children and that termination of the parent-child relationship between Mother and her children is in each child's best interest. Therefore, we affirm the trial court's judgment.

         Background

         A. Removal

         The following facts come from the affidavit of Department investigative caseworker Roxanna De La Garza.

         Pia and Mother both tested positive for cocaine in their urine when Pia was born. Pia showed no signs of withdrawal at birth, however. She weighed more than eight pounds and scored 9 and 10 on her Apgar tests. She had a broken arm due to a complication during delivery, but the injury was not drug-related.

         De La Garza visited Mother at the hospital the next day. An interpreter facilitated their conversation because Mother did not speak English proficiently. Mother denied drinking alcohol or using drugs while she was pregnant. She said a man, whom she did not name, may have drugged her three weeks or so before she went into labor. De La Garza explained cocaine ingested that long ago would not be detectable in Mother's urine. Mother then mentioned another man, also unnamed, as the cause of her positive cocaine result. She said the man asked her to go out for beers three days before she gave birth to Pia. Mother was not interested in him, she told De La Garza, but eventually she acquiesced because she needed money and a ride. She refused to have sex with him, at which point he allegedly threatened her and forced her to use cocaine and drink alcohol. De La Garza noted in her affidavit that Mother "appeared to be searching for an answer" when probed about her positive test result.

         The nurse caring for Mother and Pia reported Mother was loving, attentive, and appropriate with Pia. Mother was careful with Pia's broken arm and handled it as instructed. Other than the positive drug results, the nurse had no worries about Mother or Pia.

         Ben was a year and a half old when Pia was born. He had lived with and been cared for by M.R., a friend of Mother's, since he was an infant. M.R. said she considered Ben to be her son and Mother to be his babysitter. Another friend of Mother's, M.C., told De La Garza she shared M.R.'s opinion.

         M.R. wanted the Department to place Ben with her officially if he was removed from Mother's care. She said she would think about taking Pia as well. Mother could not identify a safe placement for Pia other than with M.R.

         The Department removed both children and filed suit two days later, attaching De La Garza's affidavit to the original petition. The trial court signed an emergency order allowing the removal and naming the Department as the children's temporary managing conservator.

         B. Family service plan

         Following a full adversary hearing, the trial court signed an order requiring Mother to comply with a Department family service plan. The service plan would identify the tasks and services she needed to complete before the children could be returned to her care.

         The Department's service plan for Mother required her to, among other things: (1) complete parenting classes; (2) complete a substance abuse assessment and follow the assessor's recommendations; (3) attend Alcoholics Anonymous/Narcotics Anonymous (AA/NA) meetings, select a sponsor, and provide the caseworker with the sponsor's name; (4) submit to random drug testing and test negative at all times; (5) complete a psychosocial evaluation and follow the evaluator's recommendations; (6) obtain and maintain suitable employment and stable housing; (7) refrain from criminal activity; and (8) maintain regular contact with the caseworker.

         C. Trial

         Trial was held a few days before Pia's first birthday. The Department presented testimony from Mother, caseworker Renee Hamilton, M.R., and Pia's foster father. The Department's documentary evidence included Mother's service plan and drug test results. All its evidence was admitted without objection. Neither Mother nor the children's attorney ad litem called witnesses or offered evidence.

         1. Ben's birth and first twenty months

         Mother testified she was raped in Honduras and became pregnant with Ben as a result. She lived in the Houston area for at least part of her pregnancy. Ben was born in August 2014. Mother did not have a stable place to live at that time, so she stayed with various friends.

         M.R., who had helped Mother during her pregnancy, testified she began "watching" Ben when he was two months old because Mother needed to work. The record is not clear what M.R. meant by "watching." Either then or at another point during Ben's infancy, he went to live with M.R. and her family. Mother testified Ben was about six or seven months old at the time. She explained she would "take [Ben] and bring him back, and take him and bring him back and [M.R.] was taking care of him for me." M.R. loved Ben, Mother knew, and "basically raised" him.

         M.R. testified she did not know Mother was using drugs.

         2. Pia's birth

         Pia was born in April 2016. Mother confirmed that, at the time Pia was born, she and Pia had cocaine in their systems, but the record does not contain the results of any drug test performed at that time on either Mother or Pia.

         At trial, Mother admitted her statement to De La Garza about being drugged with cocaine at a concert was not true:

Q. . . . . And you explained that you believed you were drugged at a concert three weeks prior; is that right?
A. Yes.
Q. Okay. That's not true, though, is it?
A. No. A young man put something in my drink. He - three days before I gave birth to the child, I told him that I have some pain here in my hand. And he asked me to have some beers with him.
. . .
A. Well, it was three days before I gave birth. I had a lot of pain in my arm. They were cramping - my arms were cramping. I asked him to give me some money and because he was in love with me, he told me, Well, if you have some beers with me, then I'll give you the money.
And I said, Please don't be like that. I'm about to give birth, and I cannot drink anything.
And he said, Well, I won't give you any money if you don't drink the beers with me.
. . .
Q. So, while you were pregnant with [Pia], you drank the ...

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