IN THE INTEREST OF E. C. A. AND A. A. G., MINOR CHILDREN
Appeal from the 314th District Court Harris County, Texas
Trial Court Case No. 2016-01847J
consists of Chief Justice Radack and Justices Higley and
Radack Chief Justice
accelerated appeal, appellant, J.I.A. ("Mother"),
challenges the trial court's decree terminating her
parental rights to her minor children, E.C.A. and A.A.G. In
six issues, Mother argues that the evidence was legally and
factually insufficient to support (1) the termination of her
rights under Texas Family Code section 161.001(b)(1)(D); (2)
the termination of her rights under Texas Family Code section
161.00(b)(1)(E); (3) the termination of her rights under
Texas Family Code section 161.001(b)(1)(N); (4) the
termination of her rights under Texas Family Code section
161.001(b)(1)(O); (5) the finding that termination of
Mother's parental rights was in the best interest of the
Child under Texas Family Code section 161.001(b)(2); and (6)
the appointment of the Department of Family and Protective
Services ("DFPS") as managing conservator.
See Tex. Fam. Code Ann. §§ 161.001(1)(D),
(E), (N), (O), 161.001(b)(2), 153.131(a) (West Supp. 2017).
We affirm in part and reverse and remand in part.
has three children, two boys and a girl. The boys, E.C.A and
A.A.C., were four and three years old at the time of trial,
and they are the subject of this termination proceeding. The
girl was born while this case was proceeding and is the
subject of a separate termination proceeding. The two
boys' fathers were also named in this termination
proceeding, and their parental rights were also terminated,
but they are not parties to this appeal.
Gibbs, the CPS investigative worker prepared an affidavit
seeking the children's removal from Mother's Care,
On 5/23/2015, the Department of Family and Protective
Services received a referral involving [Mother] and her two
sons, [A.G.] and [E.C.A.] The referral indicated a concern
that the children have been physically neglected by the
mother. It was reported that the children appeared "pale
and weak." The children had red, peeling rashes upon
their arms and legs. Both children had diaper rashes because
[Mother], the mother left them in the same diapers all day.
The rashes upon the arms and legs ·of the children
were suspected to have been caused by bed bugs. The children
were not believed to be showing visible signs of malnutrition
and or starvation, and have no apparent injuries. It is
reported that the mother only feeds the children milk and
fruit punch and sometimes the milk is old. The home was
unclean, it smells like urine, and the couch is allegedly
soaked in urine. The children walked around the home
barefoot, and had black feet. The mother left blunts rolled
from synthetic marijuana within reach of the children. The
mother was believed to be under the influence of synthetic
marijuana while caring for the children, but it is unknown if
she used in the presence of the children.
DFPS filed a suit for protection of the children on March 30,
2016, and on April 12, 2016, DFPS was named their temporary
managing conservator. The boys, along with their baby sister,
were eventually placed with their maternal grandmother
["Grandmother"]. Temporary orders signed on April
12, 2016, provided that Mother would have limited access to
and possession to the children "in accordance with the
policy established by Department of Family and Protective
Services and at all other times mutually agreeable to the
Temporary Managing Conservator and the parents of said
Family Service Plan-approved as order of the court on May 17,
6, 2016, a Family Service Plan was signed for mother, and on
May 13, 2016, it was filed in the trial court. The service
plan was approved by and made an order of the trial court on
May 17, 2017. The plan provided as follows for Mother.
[Mother] will participate in random drug screens (oral,
urine, or hair) and will have negative results for any
nonprescribed or illegal drugs. [Mother] will complete random
drug screens as requested by the case worker, from time of
notification to take and complete the test. Failure to
complete the drug testing within the timeframe will be
considered a positive result[.]
[Mother] will agree to attend and successfully complete a
substance abuse assessment and follow through with all
recommendations. [Mother] is responsible for scheduling
appointments and taking necessary notes to help demonstrate
what she has learned. For any instance [Mother] misses an
appointment, she is responsible for rescheduling for another
[Mother] will agree to make reasonable efforts in attending
all meetings, visits, conferences, and court hearings
relative to the case. [Mother] understands failure to comply
with all court orders may result in further legal action.
[Mother] will agree to maintain contact with caseworker,
LaKai Henderson, and will agree to notify the agency of any
lifestyle changes: change of address, phone numbers, and
employment within 48 hours of change.
[Mother] will agree to provide and obtain and maintain a
stable home environment and legal employment. She will also
inform the agency of her new address within 24 hours.
[Mother] understands anyone residing in the home must be
approved by CPS and be able to pass a criminal and CPS
background check. Proof of lease, rental agreement, and check
stubs should be available to CPS.
[Mother] will actively participate and complete a CPS
approved eight week parenting class. She will demonstrate
what she has learned from parenting classes in all
parent-child visits. The parenting class cannot be completed
online. She will be responsible for enrolling in classes and
for any fees associated with parenting classes. Upon
completion of the parenting classes, she will provide the
caseworker with her certification for completion.
[Mother] will agree to participate in a psycho-social
assessment. [Mother] is responsible for scheduling the
appointment and following all recommendations from the
evaluator. For any instance [Mother] is unable to make the
scheduled appointment, she will agree to reschedule for a
Failed Drug Test-May 17, 2016
May 17, 2016 status hearing in the case-the same date the
Family Service Plan became an order of the trial court-Mother
was ordered to submit to a drug test, which she did. Her hair
sample tested positive for cocaine metabolite. Mother did not
test positive again, and, at the time of trial, she had
tested clean for over a year.
case was tried to the bench a little over a year after the
Family Service Plan was entered. There were three witnesses:
Brittany Johnson, the CPS caseworker; Sara Strom, the CASA
Volunteer assigned by Child Advocates; and Mother.
testified that DFPS received an allegation that Mother was
under the influence while caring for the children and that
she would leave them unattended and not attend to their daily
needs. She also testified that the boys were initially
separated, with E.C.A. going to Grandmother and A.A.G going
to the paternal grandparents. Both children were eventually
moved to the maternal grandmother because the paternal
grandparents were letting Mother and their son live in the
same home with A.A.G.
testified that, on May 17, 2017, Mother was given a Family
Service Plan that required her to complete a substance-abuse
assessment, a psycho-social assessment, and random drug
testing. Johnson testified that Mother had failed
to complete the individual counseling, although she had
attended eight of the required ten counseling sessions.
Johnson also testified that Mother had failed to stay in
contact with the caseworker.
testified that Mother had tested positive for cocaine in May
2016, when she was pregnant with her daughter. Johnson also
noted that, at the beginning of the case, Mother had
acknowledged to DFPS that she was a "vivid user" of
koosh, or synthetic marijuana. She clarified that, after her
initial May 2016 drug test, Mother was drug free for an
entire year. The baby girl that was born in June 2016, one
month after Mother's failed drug test, did not test
positive for any drugs.
testified that Mother maintained contact with the children
until about a month before trial, when she told Johnson that
she saw no need to visit the children if they were going to
terminate her parental rights anyway.
said that Mother was working, but she had provided only one
pay stub, and that DFPS had tried to contact Mother's
employer, a tax service provider, but did not get an answer.
Mother had not provided financial support to Grandmother
while she was caring for the children, although Johnson
acknowledged that Mother was under no support order to do so.
Mother had also not participated in the childrens'
birthdays or Christmas.
knew that Mother had moved in March 2017, but she did not
know her new address. Before moving, Mother had lived with a
friend's mother, but had moved because DFPS was concerned
that the people with whom she had been living had criminal
the children's placement with Grandmother, Johnson
testified that the boys were "doing exceptionally
well." She noted that A.A.G. had been attending speech
therapy and that his speech had really improved. Johnson
noted that Grandmother was in good physical health, except
for a limp that did not affect her ability to care for the
children. Johnson noted that Grandmother lived with her
companion of over 10 years and that they were financially
able to meet the children's needs. Grandmother would seek
help from DFPS when she needed something for the children
like beds or car seats. Johnson was of the opinion that there
was nothing that the children were not currently getting from
Grandmother. The boys were bonded with Grandmother, who also
had custody of their baby sister. Johnson felt it would be
detrimental to remove the children from their placement with
Johnson concluded that DFPS wished to terminate her rights
because Mother had not attended two of her counseling
sessions, had not kept in contact with DFPS, and had not
visited the children in a month, thereby
"essentially" abandoning the children. She
conceded, however, that the children appeared to be bonded
Strom, the CASA volunteer assigned to the case by Child
Advocates, agreed with DFPS's recommendation that
Mother's parental rights be terminated. She stated that,
initially, she was concerned about whether Grandmother was
capable of taking care of the children and seemed
overwhelmed, but, by the time of trial, she believed that
Grandmother had adapted and was able to meet the
testified that, before the children were removed from her
care, she was given family-based services, but she did not
work with DFPS at that time because she was "scared
[DFPS was] gonna take the kids away from [her]."
Instead, she hid from DFPS when they would try to check on
her and left the children with someone else. She was told by
DFPS that if she kept hiding and moving the children
"they were gonna be remov[ed]"
testified that she had never used drugs and could not explain
why she tested positive for drugs in May 2016.
aware when she signed the Family Services Plan that should
could lose parental rights to her children if she did not
comply with the Plan. Nevertheless, Mother admitted that she
had not completed the counseling services that she had been
ordered to complete. She explained that she went to all 10 of
the counseling sessions, but because she was late to two of
them, she had only completed eight.
also admitted that she had not attended scheduled visitation
for the month before trial. However, she denied abandoning
her children. Instead, she claimed that she had worked it out
with Grandmother that she would take the children on the
weekends and that she had spent every weekend with the
children for months. Mother admitted that she knew that she
was violating the visitation arrangement ordered by the Court
when she took the children for unsupervised visits. Mother
believed that the children enjoyed being with her.
testified that she told Johnson that she was moving because
DFPS would not approve the place where she had been living
based on the criminal record of the person with whom she had
been staying. At the time of trial, Mother had been living on
her own for three months. She conceded that, while she told
Johnson she was moving, she had not provided DFPS with her
testified that she had been working for five months, and that
she provided tax services and sold insurance.
asked the court not to terminate her parental rights; she did
not believe that termination would be in the best interest of
Johnson's Rebuttal Testimony
testified that she was aware that Mother was claiming that
she had been having unsupervised visits with the children.
Johnson testified that Mother told her, "[I]t
doesn't matter because I've been seeing my children
behind you guy's back anyway. And she said she had
proof." After Mother made this claim, Johnson asked
Grandmother whether she had allowed Mother to have
unsupervised visitation, and Grandmother denied it. The
following exchange took place between Johnson and the trial
Trial Court: Are you telling us that you don't believe
the mother, who just testified, when she said that she had
the children spend the night with her by herself; you
don't believe that?
Johnson: Honestly, sir, I do not.
Trial Court: Well I'm not telling you what to believe or
not. I'm just wanting to make sure that you either do or
do don't believe that. You know, in our world, we have
kind of a phrase or a concept, a doctrine that people who say
things that are against their own best interest are likely
telling the truth. You seem not to understand that concept.
I'm not holding you to that. But you seem that-like you
had your mind made up on how you want it to go and it
didn't really matter to you.
The most important thing to you, it seems to me, see I
don't know this case very well. It looks like [another
judge]'s heard every hearing except the first one, so I
don't know anything about this. But just from listening
to you, you've convinced me that the most important ...