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In re L.N.W.

Court of Appeals of Texas, First District

December 14, 2017


         On Appeal from the 314th District Court Harris County, Texas Trial Court Case No. 2016-05060J

          Panel consists of Justices Higley, Massengale, and Lloyd.


          Russell Lloyd Justice.

         K.S. 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.


         On 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, A.W.[1] 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.

         On 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.

         On 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.

         In her 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 was dead.
• 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.

         On 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 managing conservator.

         On 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.

         The 4 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.

         On 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.[2] 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.

         The 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, ...

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