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In re D.K.W.

Court of Appeals of Texas, First District

December 21, 2017


         On Appeal from the 313th District Court Harris County, Texas Trial Court Case No. 2016-01424J

          Panel consists of Justices Keyes, Brown, and Lloyd.



         Appellant, L.K.W. (Mother), is appealing the termination of her parental rights to her son, D.K.W., Jr. (David).[1] In two issues, Mother argues that (1) there is factually insufficient evidence to support the trial court's finding that termination of her parental rights was in David's best interest, and (2) there is legally and factually insufficient evidence supporting the trial court's finding that the appointment of the Department of Family and Protective Services (the Department) as David's sole managing conservator is in David's best interest. We affirm the trial court's judgment.


         On February 9, 2016, Child Protective Services (CPS) received a referral of neglectful supervision after Mother, who was driving while under the influence with David in the vehicle, had attempted to "run over" her boyfriend. Mother and David were living in a homeless shelter at the time of the referral. CPS removed David from Mother's care after Mother tested positive for illegal drugs, and Mother admitted to using marijuana and cocaine before David's seventh birthday party on February 20, 2016.

         The Department filed suit seeking conservatorship of David and termination of the parent-child relationship between David and both of his parents and, on March 17, 2016, the court appointed the Department as David's temporary managing conservator. The trial court also ordered Mother and David's father, D.K.W., Sr. aka D.K.W., Sr., to comply with the Department's service plan.

         Mother, who was previously diagnosed with bipolar disorder, and schizophrenia, continued to test positive for drugs after David was removed from her care. Specifically, hair and urine samples collected from Mother in March and April 2016 tested positive for amphetamine, methamphetamine, cocaine, and marijuana. On May 3, 2017, a hair panel specimen from Mother tested positive for cocaine. On June 14, 2017, a specimen collected from Mother was positive for marijuana. There also was a positive result for Ethyl Glucuronide.

         In addition to her mental illness and illegal drug use, Mother also has an extensive criminal history. Mother was convicted of the felony offenses of injury to a child in 2001 and possession of a controlled substance in 2011. She was also convicted of theft by check, assault-bodily injury, and possession of cocaine in 2010, and theft in 2015. While David was in CPS's custody, Mother was arrested and charged with unlawful possession of a firearm by a felon. She was convicted of the felon-in-possession charge on November 8, 2016, and sentenced to 180 days in jail.

         Mother also has a lengthy history with the Department and other child welfare agencies beginning in 1999 when her second child tested positive for cocaine at birth. Mother's parental rights to that child were terminated in 2001 after the trial court determined that Mother had committed the predicate acts set forth in Family Code subsections 161.001(b)(1)(D), (E), and (M). Mother's eldest child was also removed from her home on April 25, 2001, and placed in foster care after the agency found that there was reason to believe that Mother had physically assaulted the child on two occasions. Mother's parental rights to that child, however, were never terminated and the girl eventually placed out of care.

         This case went to trial in July 2017. During the bench trial, the court took judicial notice of the record, including the termination of Mother's parental rights with respect to her second child in 2001. The trial court also admitted evidence of Mother's drug use and criminal history, along with the 2001 judgment terminating her parental rights.

         Mother testified that the Department removed David from her care because she was living in a homeless shelter at the time and had no safe and stable place to live, and she had tested positive for illegal drugs in February 2016. She claimed that her positive drug tests in March 2016, April 2016, May 2017, and June 2017 were inaccurate and she testified that she had been sober since she was incarcerated on June 22, 2016.

         Mother testified that she had completed everything on her family plan of service and was currently living in a small condominium efficiency, with room for David. Mother explained that her condominium facility had a community center, a school close by that David could attend, and no drugs or alcohol are allowed on the premises. Mother's daughter and granddaughter were also living in the same facility. Mother testified that she received $737 per month in Supplemental Security Income for her bipolar, schizophrenic, and depression issues, and that this was enough to pay her rent and provide for David. Mother also stated when she visits David, he tells her that he is tired of being where he is at and is ready to come home.

         Father, who was incarcerated at the time for revocation of parole, also testified at trial. He acknowledged he was serving an eighteen-year sentence for unauthorized use of a motor vehicle offense and a twenty-five year sentence for possession with intent to deliver cocaine and that he would not be eligible for parole again until March 2018. Father's extensive criminal history also includes a 2015 conviction for child abandonment/endangerment child, stemming from an incident during which time he left David in the car while he ...

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