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In re M.F.

Court of Appeals of Texas, First District

April 5, 2018

IN THE INTEREST OF M.F. AND K.A., CHILDREN

          On Appeal from the 313th District Court Harris County, Texas Trial Court Case No. 2016-05332J

          Panel consists of Justices Jennings, Keyes, and Higley.

          MEMORANDUM OPINION

          Evelyn V. Keyes Justice.

         In this parental-rights termination case, appellant S.J.-F. (Mother) appeals the trial court's decree terminating her parental rights to her daughters, M.F. and K.A. In one issue, Mother contends that the Department of Family and Protective Services (DFPS or Department) presented factually insufficient evidence that the termination of her parental rights was in the best interest of the children under Family Code section 161.001(b)(2).

         We affirm.

         Background

         Mother has two children who are the subject of this proceeding: M.F., a daughter born in 2009, and K.A., a daughter born in 2014. The children's fathers are not parties to this appeal.

         DFPS first became involved with the children in June 2016. In the supporting affidavit filed with DFPS's petition seeking to terminate Mother's parental rights, caseworker Cassandra Warren averred that DFPS first received a referral of neglectful supervision of the children on June 21, 2016. The referral stated that Mother, who engaged in prostitution, dropped M.F., who was six years old at the time, off at children's church. Mother was not wearing shoes, she smelled of marijuana and alcohol, and she could barely keep her eyes open. M.F. did not want to go to the bathroom by herself and was withdrawn, "especially from little boys." Warren averred that DFPS received a second referral of neglectful supervision on June 30, 2016. This report stated that Mother was abusing illegal substances, that there were concerns that the children were malnourished, and that M.F. was "intellectually challenged."

         Warren averred that DFPS received a third referral on July 28, 2016. This report alleged that Mother left M.F. "at a home" and did not know where M.F. was. The report further alleged that Mother was intoxicated while taking care of the children and that an "unknown male was violent around" K.A. Law enforcement had to be called on this occasion. Finally, Warren averred that DFPS received a fourth referral on September 28, 2016, after Mother, M.F., and K.A. were involved in a car accident in Walker County, north of Houston. Mother and the children were taken to the hospital. Mother, who was suspected of being intoxicated, had minor injuries. The children did not appear to be injured. Mother was arrested for suspicion of driving while intoxicated and was incarcerated at the time DFPS sought termination of her parental rights on the next day, September 29, 2016. Warren's affidavit also set out Mother's extensive criminal history and history of involvement with DFPS concerning her older children, which included the termination of her parental rights to other children. The trial court appointed DFPS as the children's temporary managing conservator and placed the children with foster parents.

         The trial court approved a family service plan for Mother. The family service plan required Mother to submit to random drug testing, maintain safe and stable housing for more than six months, maintain stable employment, participate in parenting classes, complete a substance abuse assessment, complete a psychosocial evaluation, and refrain from criminal activity.

         At the final hearing in September 2017, the trial court admitted evidence that, in 2008, Mother had had her parental rights to four older children terminated on the basis that she had knowingly placed the children in endangering conditions, engaged in endangering conduct, constructively abandoned the children, and failed to comply with the terms of a family service plan. The trial court also admitted evidence concerning Mother's past criminal history. This evidence reflected that Mother had the following prior convictions: the state jail felony offense of theft of property valued between $1, 500 and $20, 000 in 2013, the state jail felony offense of prostitution with three or more priors in 2013, the Class B misdemeanor offense of theft of property valued between $50 and $500 in 2011, the Class B misdemeanor offense of criminal mischief in 2010, the Class A misdemeanor offense of prostitution-second offense in 2008, the Class A misdemeanor offense of prostitution in December 2007, the Class B misdemeanor offense of criminal trespass in 2007, the Class B misdemeanor offense of prostitution in July 2007, the state jail felony offense of possession of less than one gram of PCP in 2000, and the second-degree felony offense of arson in 1999.

         The trial court also admitted Mother's medical records from the car accident on September 28, 2016. The medical records stated that Mother and her two children were involved in a motor vehicle accident in which Mother did a U-turn on the highway and her bumper was "clipped" from behind. M.F. was unrestrained in the backseat at the time of the accident. The medical records described Mother as "lethargic" and "unable to make complete sentences, " and the records reflected that Mother had minor injuries and was pregnant at the time of the accident.[1] The medical records also reflected that Mother tested positive for PCP usage and was discharged from the hospital into the custody of the Department of Public Safety.

         The trial court also admitted Mother's drug test results. On March 9, 2017, during the pendency of this case, Mother tested positive for cocaine, cocaine metabolites, marijuana, and PCP. Mother was ordered to submit to a drug test on June 21, 2017, but she walked out before a sample could be collected, which DFPS considers a positive result.

         At the final hearing, Mother agreed that M.F. and K.A. came into DFPS's care after the three of them were involved in a car accident that occurred on I-45. Mother denied that the accident occurred because she was driving the wrong way on I-45, but she identified a picture of her car at the accident scene that depicted her car facing the wrong way. Mother testified that she had a seizure while driving, which resulted in her car spinning around. She disagreed that M.F. was not restrained by her seat belt at the time of the accident, but Mother stated that she had told M.F. to lie down in the back seat. Mother agreed that she was taken to the Walker County Jail after she was discharged from the hospital and that her children went into DFPS's care at that time.

         Mother testified that she was in the Walker County Jail for 112 days during the pendency of this case, [2] that she participated in a 12-step program and completed some of her services while in jail, but that DFPS informed her this was insufficient to comply with her service plan. She also stated that she admitted herself to the Santa Maria drug treatment center, even though Mattlynn Washington, the DFPS caseworker, told her not to admit herself into a rehab program. She agreed that she did not complete the program at Santa Maria, but she testified that she left early because she was not able to see her children while in the program and because she could not work more than three days per week while in the program. Mother admitted that she had used PCP in the past, and she testified that the last time she had used PCP was August 2016, before she was aware that she was pregnant.[3] She stated that she intended to go to a rehab program once her driving-while-intoxicated case was resolved, but she also testified that she does not have a drug problem and that she does not need inpatient drug treatment. Mother denied testing positive for drugs in 2017.

         Mother also testified that she was aware that M.F. had participated in a forensic interview in February 2017 and that M.F. disclosed she had been sexually abused by an older brother.[4] Mother characterized this disclosure as "a lie." Mother also stated that she had been homeschooling M.F.

         Mother testified that she was not currently employed but that she intended to start her own company "helping women in recovery." She testified that she had an upcoming conference with Facebook concerning advertising for her company, and she intended to do a fundraiser for Hurricane Harvey victims. She stated that the business was not yet making money, but when it started making money, she would "be able to support a lot of people other than [herself]." Mother also stated that she was currently living with her aunt, but that she had her own property and was ...


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