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In re L.D.

Court of Appeals of Texas, First District

December 14, 2017

IN THE INTEREST OF L.D., A CHILD

         On Appeal from the 315th District Court Harris County, Texas Trial Court Case No. 2016-03613J

          Panel consists of Justices Jennings, Massengale, and Caughey.

          MEMORANDUM OPINION

          Michael Massengale Justice.

         These appeals arise from a decree terminating the parental rights of both a mother and a father to their biological child, L.D. Both parents contend that the evidence was insufficient to support the trial court's decree. The father additionally asserts that the evidence was insufficient to support the appointment of the Department of Family and Protective Services, rather than the child's paternal grandmother, as L.D.'s sole managing conservator.

         Because the evidence is sufficient to support termination of parental rights of both parents, as well as the court's appointment of the Department as L.D.'s managing conservator, we affirm.

         Background

         At the age of six months, L.D. was removed from the care of his mother after the Department of Family and Protective Services received two separate referrals alleging neglectful supervision. First, the Department received a call reporting that the mother was a "severe alcoholic, " she smoked what was presumed to be marijuana in the home, she used Xanax, and L.D.'s father had found a "meth pipe" in the mother's laundry. It was further alleged that the mother would get drunk and pass out, leaving L.D. in the care of his eight-year-old sister. In a second report, it was alleged that the mother had a history of driving while intoxicated, and L.D. was in the vehicle when she was arrested for driving while intoxicated. Upon L.D.'s removal from his mother's care, he was placed under the temporary conservatorship of the Department.

         The Department created separate family service plans for the father and the mother, both of which the trial court incorporated by reference in a status hearing order, making the service plans orders of the court. Caseworker Jefre Stubbs was listed as the Department's contact person on both plans.

         Both service plans laid out the details of the neglectful-supervision allegations as the reason for the Department's involvement, and each set out numerous individually-tailored tasks and services to be completed by the parents before unification with L.D. could occur. Each plan set out instructions for how and when the parent should report or provide proof of completion of or participation in each task or service. Each plan stated that its purpose was to help the parent provide a safe environment for the child within the specified time, and that if the parent was unwilling or unable to provide his or her child with a safe environment, his or her parental and custodial duties may be restricted or terminated, or the child may not be returned to the parent.

         The case was tried to the bench. Although attorneys appeared on each parent's behalf, neither the mother nor the father personally appeared at trial. L.D.'s attorney ad litem also appeared at trial.

         The Department called the assigned caseworker, Jefre Stubbs, to testify at the trial. She testified that that L.D. had been placed under the Department's care after the mother was charged with driving while intoxicated when he was in the vehicle. She stated that L.D. had been in a foster home for the past year.

         The caseworker testified that the mother had started her family service plan, but she failed to complete several tasks, including establishing stable housing and income, and refraining from illegal activity. The mother completed a drug-treatment program, but the family service plan also required the mother to "obtain a 12-step sponsor" and "attend at least three meetings per week." The caseworker testified, "Mom started at the beginning of the case with AA, " but "then she stopped" due to "her confusion between her substance abuse assessment recommendations" and other recommendations she received from the Department. After the Department clarified that "AA" would need to be completed throughout the case, the mother said she would restart the program, but she never did.

         Throughout the case, the mother submitted to random drug and alcohol testing. She initially tested positive for marijuana and alcohol. While a later test was negative, the mother again tested positive for alcohol five months after L.D.'s removal. The caseworker added that the mother's other drug tests were negative, although one test was missed nine months after L.D.'s removal due to a claimed transportation issue.

         The caseworker also explained that the mother visited L.D. consistently throughout the beginning of the suit, but later she missed three or four visits, and had last visited L.D. approximately three weeks before trial. The caseworker had observed the visits and noted that the mother's behavior was "appropriate." She stated that the mother had attended all court hearings except the final permanency hearing held a week before trial. She further testified that police had removed the mother from a home nine days before trial because she was drunk and passed out. The police could not incarcerate the mother because she was too intoxicated. As of the date of trial, the mother was homeless.

         The caseworker spoke with an investigator who informed her that criminal charges were being brought against the mother, and one of her other children was to be removed. The caseworker believed returning the children to their mother would endanger them due to her alcohol abuse. She did not believe the mother could provide minimum standards such as food, clothing, and a safe home for L.D. because she did not have stable housing and income.

         In the two weeks prior to trial, the mother named her stepfather, who lived in North Dakota, as someone who could support her. The caseworker said that an assessment would need to be completed before the Department could determine whether that placement would be viable.

         With respect to the father, the caseworker explained that the father had an "extensive criminal history including assault of family members and various drug offenses." He had completed much of his family service plan, including parenting classes, a psychosocial evaluation and therapy, and a DNA test. However, he did not complete domestic-violence classes, nor did he demonstrate stable housing or income. The father had failed to maintain communication with the caseworker for three months prior to trial. Although the father had tested positive for methamphetamine on one test, he otherwise remained sober throughout the case. The father also had visited L.D. extensively until three months before trial, but he did not visit after that, claiming he had legal issues that prevented him from doing so. He had attended all court hearings until three months before trial.

         The caseworker had seen the father the week before trial, and he was living with his mother. She stated that she had informed him of the next court date, but he told her he would not go to court to fight for his son. In addition to proclaiming that he had other legal issues to resolve, he would not be appearing at the next court date because the case was "not his fault, " but instead was a result of the mother and her sister "calling CPS on each other." He said his legal issues included past-due child support and a violation of probation which stemmed from charges of evading arrest and assault on a family member. The caseworker testified that he had to pay $1, 000 to resolve the child-support issue, but she was unsure if he had resolved the probation issue.

         The caseworker further testified that although the current foster family did not want to adopt L.D., the Department had identified an adoptive placement and the child's visits with the potential adoptive family had gone "great." She explained that L.D. had already bonded with another child at the adoptive placement, and his sibling, who is also ...


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