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E. W. v. Texas Department of Family and Protective Services

Court of Appeals of Texas, Third District, Austin

December 1, 2017

E. W. and A. M. R., Appellants
v.
Texas Department of Family and Protective Services, Appellee

         FROM THE DISTRICT COURT OF BELL COUNTY, 146TH JUDICIAL DISTRICT NO. 280, 033-B, HONORABLE JACK WELDON JONES, JUDGE PRESIDING

          Before Justices Puryear, Field, and Bourland

          MEMORANDUM OPINION

          Cindy Olson Bourland, Justice

         Appellants E.W. ("Eli") and A.M.R. ("Amber") appeal from the trial court's order terminating their parental rights regarding the children A.W. ("Alice") and B.W. ("Brittany").[1] Each appellant challenges the legal and factual sufficiency of the evidence supporting the termination of his or her parental rights. See Tex. Fam. Code § 161.001(b)(1)(D), (E), (O), (2). For the reasons that follow, we will affirm the trial court's order.

         BACKGROUND

         Eli is the father of both children, Amber is Brittany's mother, and Alice's mother is T.M. ("Tanya"). The Department of Family and Protective Services (Department) filed its Original Petition in a Suit Affecting the Parent-Child Relationship seeking termination of appellants' parental rights on September 10, 2015. The petition concerned all parental rights for both children, but Tanya was later nonsuited because her parental rights had been terminated when Alice was six weeks old. On the same day the petition was filed, the trial court entered an emergency order for the protection of Alice and Brittany, then ages 13 and 4, respectively, naming the Department as temporary managing conservator of both children. Petitions in intervention were subsequently filed by Alice's maternal grandmother P.F. ("Patty") and Brittany's maternal grandparents R.A. ("Rachel") and J.A. ("John").

         According to an affidavit filed with the petition, the Department's involvement began in December 2014, upon receipt of a report of neglectful supervision of Brittany by both parents. At that time, Alice was living with her paternal aunt due to conflict with Amber. Amber tested positive for marihuana in January of 2015 and for methamphetamine and marihuana in February of 2015. On February 10, 2015, Brittany was voluntarily placed out of the home with her maternal grandparents. One month later, Eli and Amber participated in a family team meeting with the Department, in which Amber disclosed that she had a diagnosis of bipolar disorder that she was self-medicating with illicit drugs. Both parents admitted that there was ongoing violence in the home and that Amber was the aggressor. Alice returned to the home that spring and in an interview with the Department, she confirmed that Amber and Eli "fought with their hands" and that she had seen Amber push Eli on occasion. On May 1, 2015, the Department received a second report of neglectful supervision, this time of Alice by Eli. Throughout May and June, a Department investigator reported that she attempted to communicate with Eli but found him uncooperative and evasive. On June 30, 2015, Eli tested positive for amphetamines and methamphetamine. The court subsequently ordered him to perform certain services with the Department, which he did not do.

         At the initial show-cause hearing on October 6, 2015, the associate judge found that parental possession was not in the best interest of the children and ordered that Alice be placed with her maternal grandmother and that Brittany be placed with her maternal grandparents. He also ordered Eli and Amber to undergo weekly drug tests. A joint family service plan was prepared for Amber and Eli, which included recommendations that both parents: participate in individual and family counseling; complete a psychological evaluation; participate in supervised visits with the children; submit to drug and alcohol evaluations and weekly random drug testing; not use any illegal drugs; not participate in any criminal activities; pay child support; maintain a safe, clean and appropriate home; maintain employment; provide the Department with the children's birth certificates and social security cards; attend all court hearings for the case; complete a mental health assessment; and release medical records with a drug treatment facility. These recommendations were later adopted by the court and incorporated into a court order, with the modification that visitation with the children was prohibited until each parent completed in-patient drug rehabilitation.

         The Department filed a status report with the court stating that Eli had tested positive for methamphetamine and marihuana on October 9 and 28, 2015. It also reported that Amber had tested positive for methamphetamine on October 6, 2015. Neither Eli nor Amber appeared at a November 17, 2015 status-review hearing.

         The court held a permanency hearing on March 1, 2016. The permanency report indicated that Amber had completed a psychological evaluation, participated in individual counseling, submitted to an alcohol and drug evaluation, and maintained employment, but she had not completed any of the other court-ordered services, including weekly drug testing. It further indicated that Eli had completed a psychological evaluation, reported taking an Outreach, Screening, Assessment, and Referral assessment, and was employed, but he had not completed any of the other court-ordered services, including weekly drug testing. The associate judge ordered that the parents would be permitted visitation with Brittany upon the recommendation of the child's therapist.

         On the same day as the permanency hearing, Amber tested negative for illegal substances. On March 8, 2016, Amber and Eli each tested positive for marihuana. On March 11, 2016, Amber tested positive for methamphetamine and marihuana. A temporary hearing was held on March 15, 2016, and the visitation terms were modified to require that visits take place in a supervised therapeutic setting. Temporary orders were entered that enjoined Eli from contacting any of the other parties of the suit except Amber and from interfering with any of the other parties' possession of the children.

         The Department submitted a final report and counseling summaries for both parents in preparation for the final hearing before the associate judge. The report recommended termination of both parents' parental rights as to Brittany, and termination of Eli's parental rights as to Alice. The final hearing concluded on September 6, 2016, when the associate judge terminated both Amber's and Eli's parental rights on the same grounds, finding that termination was in the best interest of the children and that the parents:

• knowingly placed or knowingly allowed the children to remain in conditions or surroundings which endanger the physical or emotional well-being of the children;
• engaged in conduct or knowingly placed the children with persons who engaged in conduct which endangers the physical or emotional well-being of the children; and
• failed to comply with the provisions of a court order that specifically established the actions necessary for the parent to obtain the return of the children who had been in the permanent or temporary managing conservatorship of the Department of Family and Protective Services for not less than nine months as a result of the children's removal from the parent under Chapter 262 for the abuse or neglect of the children;

See Tex. Fam. Code § 161.001(b)(1)(D), (E), (O), (2). Each parent filed a timely request for a de novo trial. See id. § 201.015.

         The de novo trial was held in four settings over the course of nine months, from September 27, 2016 through July 17, 2017. All parties testified. Evidence in the record will be discussed as pertinent below. The trial court ultimately found the associate judge's orders to be in the best interest of the children. It terminated Eli's parent-child relationship with Alice and appointed Tanya as permanent managing conservator. It also terminated the parental rights of both Eli and Amber with respect to Brittany and ...


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