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In re J.S.-A

Court of Appeals of Texas, First District

December 5, 2017

IN THE INTEREST OF J.S.-A A/K/A J.S., AND J.B.S., JR., CHILDREN

         On Appeal from the 314th District Court Harris County, Texas Trial Court Case No. 2016-03173J

          Panel consists of Chief Justice Radack and Justices Higley and Bland.

          MEMORANDUM OPINION

          Jane Bland, Justice

         The mother and father of two young children appeal from the trial court's order terminating their parental rights. In her appeal, the mother challenges the legal and factual sufficiency of the evidence supporting the finding that termination of her parental rights is in the children's best interest. See Tex. Fam. Code § 161.001(b)(2). The father's appeal challenges the legal and factual sufficiency of the evidence supporting the predicate grounds that the trial court found to support termination as well as the appointment of the Department of Family and Protective Services as sole managing conservator of the children. See id. §§ 161.001(b)(1)(E), (O), 161.207, 161.208. We affirm.

         Background

         History leading to the Department's managing conservatorship

         The mother's history with the Department began when she was a child. Because of her father's his illegal drug use, the Department removed the mother and her brother from the father's custody and placed them in the foster care system. The mother has given birth to five children. One is deceased and the two eldest, who are not the subject of these proceedings, live with their father in San Antonio.

         In June 2010, when the mother's eldest child was about seven months old, the Department received a referral alleging that the mother and the child's father engaged in domestic violence, including an incident in which one parent threw a dresser drawer that landed on the child. The parents were living in the San Antonio area but did not have a stable home at the time. The Department took temporary managing conservatorship of the child and referred the mother to participate in Family-Based Safety Services (FBSS), but the mother did not cooperate and would not complete the services. Over the Department's objection, the San Antonio court presiding over the case ordered family reunification.

         The mother separated from the older children's father and began a relationship with J.B.S., Sr., the father in this case, sometime before the end of 2013. She gave birth to Joann in July 2014 and John in June 2015.[1]

         By early 2016, the mother was pregnant and had the four children living with her in her father's home. The children's maternal grandfather assisted the mother in caring for the children; it does not appear that the father was involved with the mother and children at that time. The mother's brother, who had aged out of foster care, also was living in the home. The mother left the children in his care while she and the grandfather were at work.

         In late January 2016, the Department received a referral alleging neglectful supervision, physical abuse, and physical neglect of the four children by the mother and the grandfather. According to the referral, the mother left the children in a vehicle unattended for five to ten minutes, then the grandfather left the children unattended in a dental office waiting room for about ten minutes. The mother and grandfather were observed striking the children on their heads and other body areas. The two eldest wore dirty clothing and smelled like urine. One of the children stated that his mother hits him in the head and pushes him to the floor.

         Another referral in March 2016 alleged that the mother's brother had sexually abused the children while the mother had left them in his care. It was reported that the brother also sexually assaulted Joann and John. The Department found the children's outcries to be credible. By the time the Department received the report, the mother's brother had left the home and could not be found.

         In mid-March 2016, while seven months' pregnant, the mother's vehicle was rear-ended in a collision. The mother did not seek immediate medical care. She prematurely went into labor the following day and gave birth to Paul.[2] Around this time, the father of the two eldest children learned of their sexual abuse by the mother's brother. One of the children also told him that their grandfather smoked crack cocaine in front of them. The father immediately picked his children up and brought them to live with him in his home.

         Paul remained in the hospital for approximately two months, until he weighed six pounds. Paul died the day after he was discharged from the hospital, in mid-May. That morning, the mother and father, who apparently had resumed their relationship, picked up the grandfather and brought him to their home to watch Paul, Joann, and John while they were at work. The grandfather drove with the children to the mother's workplace to pick her up when her shift ended at 1:00 P.M. The mother, however, was unable to leave work until two hours later. While the grandfather and the children waited in the car during that time, Joann soiled her diaper, so after the mother left work, they stopped at a discount store to purchase items to clean her and change her diaper. When the mother returned to the car, she bumped into Paul's carseat and noticed that he did not respond, his color was not right, and something was coming out of his mouth. EMS was contacted and responded immediately, but the efforts to revive Paul were unsuccessful.

         The Department was notified of Paul's death through a referral alleging neglectful supervision. Its investigation into these circumstances did not reach a definitive conclusion as to the cause of Paul's death. Concerned with the welfare of the two surviving children in light of the mother's lack of stable housing and her failure to cooperate with the Department's previous efforts to provide services, however, it continued investigating the family's living conditions.

         A Bexar County investigator for the Department spent two days trying to locate the mother. When the investigator found the mother, she set up an appointment for the family to visit her in the Department's San Antonio office.

         The mother was staying at her cousin's house and refused to allow the investigator to visit the home. The mother resisted efforts to establish a safety plan for the children and hung up on the investigator. She took the children to Dallas after being warned not to leave town.

         Eventually, the mother orally agreed to bring the children to a maternal aunt's home in Dallas and allow the aunt, who had fostered children in the past, to supervise the children. The Department approved the aunt as a monitor. The day after they moved in with the aunt, however, the father and mother took the children from the home, over the aunt's protest. In speaking with the investigator about that development, the aunt told her that the mother and father "did not want to have any rules."

         Next, the mother's cousin contacted the Department. She told the worker that the mother had asked her if she could care for her children for a while, but the mother and children never arrived. After repeated efforts to contact the family, the investigator finally reached the father by phone. The father said that the family was staying with one of his cousins in Houston. The worker again explained the safety plan. The mother told the investigator that she did not see the need for a safety plan and did not agree to it. She and the father nevertheless agreed to let the caseworker see the room in the cousin's house where they were staying.

         The parents had no beds for the children, and further inquiry revealed that the father's cousin had a criminal record, making the placement unsuitable. The caseworker found another relative placement, but shortly after the children were placed there, that relative told CPS that the parents were not helping to support the children with beds, food, diapers, clothing, and money as they had promised, and they did not seem to take their responsibilities to their children seriously. As a result, the relative told the caseworker that she could not care for the children.

         The investigator told the mother that a monitor was no longer an option because they had violated the earlier agreement allowing the Dallas aunt to serve as monitor. The Department took the children into custody and brought this suit. The trial court appointed the Department to serve as temporary managing conservator of the children.

         Temporary managing conservatorship

         In June 2016, the Department prepared family plans of service for both the mother and the father, which the trial court incorporated into an order. Under the plans, the mother and father each were required to:

• Complete a drug and alcohol assessment and follow all recommendations;
• Participate in an approved parenting course;
• Undergo psychological evaluation and follow all recommendations;
• Begin treatment for domestic violence;
• Obtain and maintain stable housing for a period of at least six months, providing a copy of a leasing agreement;
• Provide paystubs showing stable income or employment for a period of at least six months;
• Attend all court hearings; and
• Submit to random drug testing twice monthly.

         In October 2016, an incident of domestic violence occurred between the mother and the father. During the altercation, the father beat the mother and hit her head on the floor, causing a subdural hemorrhage. As a result, the mother spent two days in the hospital and the father was arrested and taken to jail. The father, who had begun his battering intervention program before the fight, missed two classes while he was detained. Criminal charges were filed against the father but were later dismissed based on mutual combat. By the time of trial, the parents were no longer living together.

         Each parent tested positive for illegal drugs while the service plan was in effect. The mother tested positive twice, once in June 2016 for cocaine and again in October 2016 for codeine. The father tested positive on nine occasions for a variety of illegal drugs, including cocaine, amphetamine, methamphetamine, marijuana, and codeine. After a brief period of apparent sobriety, he relapsed, testing positive for illegal drugs at least once monthly in the six consecutive months before trial. Despite the numerous positive testing results and the father's prior admissions to drug use during the Department's investigation, the father testified at trial that he never used cocaine or methamphetamine. He blamed the positive results on testing errors and inadvertent contact with drugs present at the home where he was staying.

         The mother failed to submit to the required psychological evaluation and did not attend counseling. She was traveling back and forth between Houston and San Antonio. She claimed to live in San Antonio and had a "welcome" flyer from an apartment complex there, but she did ...


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