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In re Z.H.

Court of Appeals of Texas, Fifth District, Dallas

February 16, 2018


          On Appeal from the 256th Judicial District Court Dallas County, Texas Trial Court Cause No. DF-16-03051.

          Before Justices Lang, Evans, and Schenck



         After a jury trial, Mother appeals the trial court's order terminating her parental rights to Z.H.[1] In three issues, Mother generally challenges the legal and factual sufficiency of the evidence to support the jury's findings in support of termination.[2] For the reasons set forth below, we affirm the trial court's order.


         In February 2016, the Dallas County Child Protective Services Unit of the Texas Department of Protective and Regulatory Services (the Department) received a referral for neglectful supervision from Parkland Hospital indicating that Mother had tested positive for marijuana when she gave birth to Z.H. A hospital social worker testified at trial that Mother was referred to her because of Mother's history of drug use. The social worker stated that Mother told her she used marijuana during her pregnancy to cope with nausea and vomiting.

         At the time of the February 2016 referral, Mother had three other children and a history of five previous referrals with the Department. In fact, the Department had an existing open case from March 2015 at the time of Z.H.'s birth.[3] Oral swab drug screens administered to Mother and Z.H.'s father on June 1, 2015 came back positive for cocaine. Father told the caseworker this could have resulted from smoking a cigarette from a friend who is known to lace them with cocaine. Mother told the caseworker she also smoked a cigarette from the same friend. A special investigator with the Department testified that he spoke to Mother on June 1 about some of her Facebook posts about using the drug Ecstasy. Mother told the special investigator she did not use the drug and her friends posted that message.

         On June 18, 2015, Mother informed the caseworker that she was pregnant but would not be using marijuana during her pregnancy. Nevertheless, a hair sample collected from Mother on June 23 tested positive for marijuana. The older children were placed in foster care a few days later as a result of substance abuse and supervision issues.[4]

         Mother admitted she tested positive for marijuana on a urine test the day Z.H. was born and acknowledged she used marijuana while pregnant with Z.H. At trial, she stated that she used marijuana while she was pregnant with all but her oldest child. She testified that during a previous pregnancy, her doctor had said it was okay for her to use marijuana "because my baby would gain weight. It would help me gain weight and it would stop the nausea and the abdominal pains that I was having at the time." At trial, CPS investigator Aaron Rider testified that in June 2014, Z.H.'s brother tested positive for marijuana at birth and before that, the Department had the exact same allegations for Mother's second child.

         Mother admitted that she did not have an obstetrician while she was pregnant with Z.H. and indicated the last time she used marijuana was "a little before I had Z.H." She also indicated she stopped using about four months into her pregnancy. She denied daily use.

         There was evidence that after Z.H. was born, Mother was incarcerated from June 9, 2016 through September 23, 2016 for assaulting a police officer. Mother testified that she took drug treatment, anger management, counseling, and parenting classes during her time in jail awaiting trial. Caseworker Lorraine Walker acknowledged that Mother completed anger management and parenting classes while incarcerated, but denied she completed any drug treatment or individual counseling as ordered. Mother stated she attempted two or three times to get treatment at Nexus, but they did not have a referral for her from the Department.

         After subtracting the visits she could not attend because of her incarceration, there were sixty weeks of visitation available to Mother since the children had been placed in foster care in June 2015. Mother attended just twelve visits in total and only three of those were after Z.H. was born. Mother blamed her failure to attend visitation with the children on lack of transportation, being pregnant and, in March 2016, the abusive relationship she was in with Z.H.'s father.

         Mother testified she currently lived in a furnished two bedroom apartment and that her mother helped her pay the rent. As of the date of trial, however, Mother had never given the Department the address for it to conduct a home visit.

         Walker testified that Z.H. and her three siblings were currently placed together in an adoptive foster home. The Department's plan for the children was for that home to adopt the children. Walker testified that she had concerns about ...

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