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In re E. C. A.

Court of Appeals of Texas, First District

December 28, 2017


          On Appeal from the 314th District Court Harris County, Texas Trial Court Case No. 2016-01847J

          Panel consists of Chief Justice Radack and Justices Higley and Bland.


          Sherry Radack Chief Justice

         In this 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.


         Mother 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.

         The Removal Affidavit-

         Jamelle Gibbs, the CPS investigative worker prepared an affidavit seeking the children's removal from Mother's Care, which provided:

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 children."

         The Family Service Plan-approved as order of the court on May 17, 2017

         On May 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 date.
[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 later date.

Failed Drug Test-May 17, 2016

         At a 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.

         Trial-June 27, 2017

         The 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.

         Brittany Johnson's testimony

         Johnson 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.

         Johnson 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.[1] 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.

         Johnson 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.

         Johnson 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.

         Johnson 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.

         Johnson 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 histories.

         Regarding 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 Grandmother.

          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 with Mother.

         Sara Strom's testimony

         Sarah 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 children's needs.

         Mother's testimony

         Mother 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]"

          Mother testified that she had never used drugs and could not explain why she tested positive for drugs in May 2016.

         She was 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.

         Mother 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.

         Mother 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 new address.

          Mother testified that she had been working for five months, and that she provided tax services and sold insurance.

         Mother asked the court not to terminate her parental rights; she did not believe that termination would be in the best interest of her children.

         Brittany Johnson's Rebuttal Testimony

         Johnson 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 court:

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 ...

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