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In re K.K.N.

Court of Appeals of Texas, Fourteenth District

June 26, 2018

IN THE INTEREST OF K.K.N. A/K/A K.K.N., A CHILD

          On Appeal from the 312th District Court Harris County, Texas Trial Court Cause No. 2012-18347

          Panel consists of Justices Boyce, Christopher, and Busby.

          MEMORANDUM OPINION

          William J. Boyce Justice

         Appellant C.N. (Father) appeals the trial court's final decree terminating his parental rights and appointing the Department of Family and Protective Services as sole managing conservator of his child K.K.N. (Karen).[1] The trial court terminated Father's rights on the predicate grounds of abandonment, constructive abandonment, and failure to comply with a family service plan. See Tex. Fam. Code Ann. § 161.001(b)(1)(B), (N), & (O) (West Supp. 2017). The trial court further found that termination of Father's rights was in the child's best interest, and named the Department managing conservator of the child. The trial court terminated Mother's rights to four children including Karen. Mother executed an irrevocable affidavit of relinquishment of her parental rights, and has not appealed the termination of her parental rights.

         In three issues Father challenges the legal and factual sufficiency of the evidence to support the trial court's findings on the predicate grounds of abandonment and constructive abandonment, and that termination is in the best interest of the child. Father concedes the evidence is sufficient to support the trial court's finding that he failed to comply with the family service plan. Because we conclude the evidence is legally and factually sufficient to support the trial court's findings, we affirm.

         I. Factual and Procedural Background

         A. Pretrial Proceedings

         1. Child Support Review Order

         This case began in 2012 with a Child Support Review Order establishing the parent-child relationship between Father and child. The order established that Father is the biological father of Karen. Mother and Father were appointed joint managing conservators of the child. Mother was designated the conservator who could determine the child's primary residence. The order also contained a possession and access order regarding when each parent would have possession of the child. Father was ordered to pay monthly child support in addition to monthly medical support.

         2. Pretrial Removal Affidavit

         Four years later the Department filed a motion to modify for conservatorship and for termination of both parents' parental rights. The removal affidavit notes that the Department received a referral reporting neglectful supervision by Mother. At the time, Mother had three children; Karen was the middle child. The original neglectful supervision case was closed because Mother was making no progress and had agreed to placement of the children with her cousin. During Mother's fourth pregnancy she tested positive for marijuana on four separate occasions. When the fourth child was born Mother placed her with another family member.

         The Department sought to be named temporary managing conservator of all four children because there were no appropriate caregivers to provide for their needs. Mother was given sufficient time to complete her services, but failed to do so and continued to test positive for drugs.

         3. The Investigation

         The Department investigator received the case on August 29, 2016, and noted the following findings:

         On February 15, 2013, three years before the current removal, the Department received a referral alleging medical neglect of Karen, then two years old, by Mother. The referral noted that Karen had a black eye and that is was alleged that Mother hit her. Karen was wheezing due to untreated asthma and appeared to be malnourished. Father was identified as a potential stable environment for Karen, but was ruled out because he may have schizophrenia and bipolar disorder. In addition Father stated his concerns about Karen's medical needs, but admitted he did not seek medical attention because "he is a slow learner and does not understand." Father admitted being arrested because he was smoking marijuana. Father also admitted smoking Kush (synthetic marijuana). Mother expressed concerns about Father's mental health, but allowed the children to stay with him unsupervised.

         Mother has an extensive history with the Department including as a child. Her last Department case was due to one of her children's death as a result of Sudden Infant Death Syndrome. Mother's youngest child was born in April 2015. During the time from December 2015 through August 2016, the Department attempted to engage both parents in services. The parents started the parenting class, but did not complete it. The Department had difficulty contacting both parents because they moved frequently and the Department did not have valid contact information.

         The Department was able to contact the parents and engage in a family team meeting in March 2016. The parents were informed again of what services they needed to complete to obtain the return of their children. In April 2016 both parents missed appointments with the Wellness Group for substance abuse counseling. In May 2016 both parents failed to appear for ordered drug testing. In June 2016 neither parent could be located; there was also no contact noted for the month of July.

         On August 22, 2016, Mother called a Department supervisor and informed the supervisor that the three older children were living with her, "and she wanted the agency to know before she got into trouble." The next day drug tests on Mother were administered. Mother tested positive for marijuana in both her hair and urine.

         4. Family Service Plan

         The Department prepared family service plans for both parents. The trial court's status hearing order adopted the service plan as an order of the court. Father's plan required him to:

• Attend all court hearings, permanency conferences, and visits;
• Complete a parenting class;
• Demonstrate stability in housing and income;
• Participate in random drug testing;
• Participate in a substance abuse assessment;
• Participate in psychological and psychiatric ...

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