Appeal from the 314th District Court Harris County, Texas
Trial Court Case No. 2016-05060J
consists of Justices Higley, Massengale, and Lloyd.
Russell Lloyd Justice.
appeals from the trial court's judgment terminating her
parental rights to her daughter, L.N.W. In one issue, K.S.
contends that the evidence is factually insufficient to
support a finding that termination of her parental rights is
in the child's best interest. We affirm.
August 8, 2016, the Department of Family and Protective
Services ("the Department") received a referral
alleging neglectful supervision of L.N.W., a two-month old
infant, by her mother, K.S., and her father,
The referral alleged that K.S. and A.W. have bipolar disorder
and a history of marijuana use. The referral also alleged
that A.W. does not take his bipolar medication and has been
violent toward K.S.
August 15, 2016, the Department received a second referral
alleging neglectful supervision of L.N.W. The referral stated
that L.N.W.'s paternal great-grandmother, Pamela Smith,
had been taking care of L.N.W. since she was born; A.W. and
K.S. saw L.N.W. on August 12, 2016, despite the fact that
A.W. was not supposed to be around the infant because of his
drug use and mental health issues; and K.S was going to be
hospitalized for mental health treatment.
September 15, 2016, the Department filed its original
petition for child protection, conservatorship, and
termination of parental rights, accompanied by the affidavit
of Cassandra Warren, a Department caseworker. In support of
the Department's request that it be named temporary
managing conservator of L.N.W., Warren stated that K.S. and
A.W. suffered from bipolar disorder and had stopped taking
their medication; K.S. and A.W. had a history of marijuana
use and the Department was concerned that K.S. was using
marijuana around L.N.W; A. W. had been violent toward K.S.;
K.S. had a pending criminal case for domestic violence
(family assault) for assaulting her sister with whom she
lived in violation of court orders; and K.S. and A.W. had
their parental rights to K.W., their one-year old daughter,
terminated in December 2015 on the grounds that they had
engaged in conduct endangering to the child and had failed to
comply with the provisions of a court order establishing the
tasks necessary for reunification.
affidavit, Warren attested as follows:
• At the beginning of her investigation, K.S. initially
refused to speak with her and Warren called the police for
assistance. Before the police arrived, Nicole Smith,
K.S.'s mother, and Sandra Manley, K.S.'s maternal
grandmother, arrived at the house and K.S. agreed to speak
with Warren. K.S., who lived with her mother and sister,
Sandra, told Warren that there was currently no domestic
abuse in the home but that A.W. had previously abused her by
hitting her when he became upset, and that much of the abuse
took place when she was pregnant with K.W., L.N.W.'s
older sibling. K.S. told Warren that she was no longer in a
relationship with A.W. but that they continued to communicate
every other day.
• K.S. told Warren that she was diagnosed with
depression but denied being bipolar. She told Warren that she
has not been on medication for two years because she
"can handle [her] depression, " and her
psychiatrist said that she no longer needed to take it. K.S.
told Warren that she sees Dr. Mark Lewis, a therapist at King
Haven Southwest, every two weeks. She denied using drugs and
the results of her urinalysis test conducted the next day
were negative. Warren noted that K.S. had everything
necessary to care for L.N.W. in the home, including a
bassinet, diapers, and formula, and that L.N.W. showed no
signs of physical abuse or neglect. Warren spoke with Nicole
who denied that K.S. had any mental health issues. Nicole
stated that K.S. had been a victim of A.W.'s domestic
violence in the past which was one of the reasons that K.S.
moved into Nicole's home. Warren also spoke with
K.S.'s sister, Sandra, a high school senior, who said
that K.S. did not have any mental health issues and that she
is an excellent mother who provides all the care for L.N.W.
• On August 15, 2016, Warren contacted the medical
records department of King Haven Southwest and learned that
K.S. was enrolled only in therapy, had not seen a
psychiatrist, and had not received services since May 2013.
• On August 16, 2016, K.S. called Warren and told her
that she was checking herself into West Oaks Hospital and
that L.N.W. was with a family member but would not disclose
the child's location. Warren spoke with Pamela
Kerr-Smith, A.W.'s grandmother, who told Warren that she
has had L.N.W. in her care every weekend since she was born
and that she was currently taking care of L.N.W. Kerr-Smith
told her that K.S. asked her to take care of L.N. W. until
she could get herself together and get back on her
medication. Kerr-Smith told Warren that K.S. and A.W. both
have mental concerns that need to be addressed.
• On August 17, 2016, Nicole contacted Warren and told
her that K.S. is not taking her medication and would not
leave A.W. alone. Nicole told Warren that K.S. was diagnosed
with Attention Deficit Hyperactivity Disorder and that she
recently left Nicole's house and said she wished Nicole
• On August 19, 2016, Warren spoke with K.S. in order to
schedule a family team meeting. Three days later, Warren
learned that K.S. had been arrested and charged with
aggravated assault of a family member. Nicole informed Warren
that K.S. had attempted to cut Sandra with a knife. Nicole
expressed concern that K.S would continue to refuse to take
her medication upon her release from jail, and Nicole wanted
to speak to a judge "to ensure that they put something
in place so [K.S.] can stay on her medication." On
September 9, 2016, K.S. received deferred adjudication and
three years' community supervision for assaulting Sandra.
Kerr-Smith continued to care for L.N.W. until K.S. was
released from jail.
• On September 11, 2016, Kerr-Smith called Warren and
told her that K.S. came to pick up L.N.W. Kerr-Smith also
reported that L.N.W. received a burn to her leg one week
earlier, and that when K.S. saw the burn on her leg she took
L.N.W. to the doctor.
• On September 14, 2016, L.N.W.'s family
participated in a family team meeting. At the meeting, Nicole
admitted that she had not been forthcoming about K.S.'s
mental health or the domestic violence involving her
daughter. K.S. disclosed that she was diagnosed with bipolar
disorder as well as depression. L.N.W. was at the meeting and
had a "burn the size of an apple . . . with red coloring
on her right lower extremity."
• Warren concluded that K.S. (1) was diagnosed with
bipolar disorder and had stopped taking her medication
without doctor approval; (2) was charged with assaulting her
sister with a knife; (3) was still residing with Sandra in
violation of the terms of her community supervision; (4) had
her parental rights to K.W. terminated approximately six
months before L.N.W. was born due to her mental instability
and failure to complete services with the Department. Warren
stated that K.S. was unable to provide a safe and stable
environment for L.N.W. at this time and that she had no other
viable relatives with whom to place L.N.W.
September 15, 2016, the trial court signed an order for
protection of a child in an emergency in which it found a
continuing danger to L.N.W. which warranted placing the child
in the Department's temporary managing conservatorship.
On September 29, 2016, following a full adversary hearing,
the trial court signed an order stating that there was
sufficient evidence of a danger to L.N.W.'s physical
health and safety, and that the need to protect the child
warranted her immediate removal from her parents' care.
The court named the Department as L.N.W.'s temporary
October 3, 2016, K.S. participated in a family evaluation at
the Children's Crisis Care Center ("4 Cs").
K.S. denied the substance of the Department's
allegations. In particular, she denied any substance use and
stated that she has always tried to address her mental health
needs, that she complied with and completed all of the
Department's services during her previous case, and that
her parental rights were wrongfully terminated. She
acknowledged that her continued relationship with A.W. was a
concern but said that she ended the relationship with him.
She reported some history of domestic violence but she
attributed A.W.'s unfaithfulness as the cause of their
relationship ending, and she did not consider the domestic
violence to be a traumatic event.
Cs report noted a concern with "[K.S.]'s extremely
low parenting scores, which suggests that she is not fully
able to conceptualize and [meet] the basic needs of her
daughter." The report also noted that K.S. appeared
"to have possible low cognitive functioning,
insufficient coping skills, and limited awareness of the
severity of the presenting issues in her life, and that her
decision-making has been a causal factor for the removal of
her children." It was also noted that K.S. participated
in a family assessment in March 2015 in her previous case,
and that "it appears that similar issues are presenting
and do not appear to have [been] addressed as recommended
from the previous assessment." The report concluded that
"[K.S.]'s cognitive functioning in the areas of
understanding risks of her domestic violence relationship,
appropriate skills for caring for a child with little
support, and the importance of stability in her life are
barriers to her being able to provide a young child with the
safety, stability and protection needed." The report
recommended that K.S. (1) participate in a psychological
evaluation to determine her current level of cognitive and
mental health functioning and to make recommendations for
mental health treatment; (2) continue psychiatric services to
monitor and maintain her mental health needs and treatment;
(3) attend individual counseling; (4) participate in domestic
violence treatment services; and (5) attend parenting classes
to increase her knowledge and ability to understand the needs
of a child in her care.
November 8, 2016, the trial court held a status hearing. In a
separate order, the trial court granted the Department's
request for a finding of "aggravated circumstances,
" thereby waiving the requirement that the Department
provide K.S. with a family service plan or that it make
reasonable efforts to return L.N.W. To K.S.'s
care. Nonetheless, the Department prepared a
family service plan for K.S. which set as goals that K.S. (1)
learn and use parenting practices that meet the emotional and
developmental needs of L.N.W.; (2) learn to exercise
self-control to provide L.N.W. with a sense of stability; and
(3) demonstrate an ability to provide basic necessities such
as food, clothing, shelter, medical care, and supervision for
the child. The service plan also recommended several services
to achieve these goals.
State filed a motion to adjudicate guilt in K.S.'s
aggravated assault case which the trial court granted on
January 19, 2017. The motion stated that K.S. violated the
terms and conditions of her community supervision by: (1)
possessing drug paraphernalia; (2) possessing duplicate
identification cards; (3) failing to participate in a
substance abuse program; (4) failing to participate in a
"Thinking for a Change" program; and (5) having
contact with her sister, Sandra, ...