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In re D.R.P

Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg

April 4, 2019

IN THE INTEREST OF D.R.P and H.I.P., CHILDREN

          On appeal from the 267th District Court of De Witt County, Texas.

          Before Justices Benavides, Longoria, and Hinojosa.

          MEMORANDUM OPINION

          NORA L. LONGORIA JUSTICE.

         This appeal concerns an order terminating appellant J.R.'s (Mother) parental rights to D.R.P. and H.I.P., her children.[1] By one issue, Mother challenges the trial court's finding that termination is in the children's best interest. We affirm in part and reverse and render in part.

         I. Background

         The Texas Department of Family and Protective Services (the Department) first became involved with Mother in August 2016, when Mother attempted suicide by overdose with her children asleep in the same room as her. In August 2017, the Department filed its original petition to terminate Mother's and D.P.'s (Father)[2] rights to D.R.P. and H.I.P., who were eight and five years old respectively.

         The affidavit in support of emergency removal alleged that Mother attempted suicide by overdose in front of her children, used a prescription drug not prescribed to the children to make them sleep, tested positive for cocaine, and admitted that she took her son's prescribed medications and smoked crack cocaine. The affidavit further recounted additional failed drug tests between August 2016 and August 2017, wherein Mother tested positive for cocaine and methamphetamines. During the same timeframe, the Department offered Mother Family Based Safety Services to help avoid the children's removal from her care. Mother, according to her caseworker, avoided the Department and had to be located by law enforcement.

         On the same day as the petition was filed, D.R.P. and H.I.P. were removed from Mother's care by court order. The Department alleged that Mother: (1) voluntarily left the children alone or in the possession of another without providing adequate support of the children and remained away for a period of at least six months; (2) knowingly placed or knowingly allowed the children to remain in conditions or surroundings which endanger the physical or emotional well-being of the children; (3) engaged in conduct or knowingly placed the children with persons who engaged in conduct which endangers the physical or emotional well-being of the children; (4) executed before or after the suit is filed an unrevoked or irrevocable affidavit of relinquishment of parental rights as provided by chapter 161 of the Texas Family Code; (5) constructively abandoned the children who have been in the permanent or temporary managing conservatorship of the Department for not less than six months and: (a) the Department has made reasonable efforts to return the children to Mother; (b) Mother has not regularly visited or maintained significant contact with the children; and (c) Mother has demonstrated an inability to provide the children with a safe environment; (6) failed to comply with the provisions of a court order that specifically established the actions necessary for Mother to obtain the return of the children who have been in the permanent or temporary managing conservatorship of the Department for not less than nine months as a result of the children's removal from Mother under chapter 262 of the Texas Family Code for the abuse or neglect of the children; and (7) used a controlled substance, as defined by chapter 481 of the Texas Health and Safety Code, in a manner that endangered the health or safety of the children, and (a) failed to complete a court-ordered substance abuse treatment program; or (b) after completion of a court-ordered substance abuse treatment program continued to abuse a controlled substance. See Tex. Fam. Code Ann. §§ 161.001(b)(1)(C), (D), (E), (K), (N), (O), (P) (West, Westlaw through 2017 1st C.S.).

         In September 2017, the Department prepared a family service plan for Mother, which she acknowledged and signed. The trial court adopted the service plan and ordered that Mother comply with its provisions. At that point, the Department's permanency goal was "family reunification." The service plan required Mother to, among other things, attend substance abuse treatment, have negative drug tests, seek treatment for her depression, complete a psychological evaluation, attend supervised visitation with the children, meet with her caseworker monthly, attend life skills courses, and attend substance abuse group classes.

         A termination hearing was held on November 29, 2018. The Department offered testimony from Jessica Morales, Mother's caseworker from August 2017 until May 2018, that Mother had minimally completed some of the tasks required in the service plan and that Mother was inconsistent in her participation. Morales further testified that Mother's mental health was the most important task that needed to be addressed in the service plan, but that as of her last visit with Mother, Mother had made no progress in regard to the mental health tasks set forth in the service plan.

         Kendra Leazer, Mother's caseworker from June 2018 until the time of the termination hearing, testified that a year after the service plan was put into place, the trial court found that Mother had been in minimal compliance with her service plan. Leazer explained that Mother was "not fully engaged in everything" and did not have certificates of completion for a substantial amount of the tasks in the service plan. Leazer further stated that Mother was still not in full compliance as of the date of the termination hearing. Leazer's opinion was that it "didn't appear that [Mother was] taking anything serious." Mother's employment and living arrangements were not stable and she did not complete most of the services required for reunification. Leazer testified that her opinion was that it was in the best interest of the children to terminate Mother's parental rights.

         Hannah Hayward, a counselor at the Reclamation Counseling Center, testified that she began seeing Mother for counseling in April 2018. Prior to Mother's attendance at the counseling center, Mother had tested positive for methamphetamines and cocaine. As part of her counseling, Hayward developed a treatment plan for Mother, which included goals to maintain sobriety and prevent relapse. Mother also has a goal to obtain her GED but had not done so at the time of the termination hearing. Hayward testified that as of the date of the termination hearing, she believed Mother had a reduced concern for substance abuse and she was beginning to show signs of stability. Hayward explained that Mother seemed to be doing well with the drug counseling and that Mother understands that she needs to become stable long-term. Hayward stated that she found that Mother was being compliant with the counseling treatment plan, but that she had missed some classes. Hayward also explained that Mother needed additional time and skills before she would be able to provide the proper care for her children, but that as of that day, she would not be able to provide the proper care. Hayward maintained that she believed Mother was on the right path and would reach stability. Hayward explained that Mother is on the right track to stable employment and housing but understands that she needs to continue her progress in order to become a fit parent. In working with Mother, Hayward explained that they've discussed Mother's potential option of moving into the Perpetual Help Home shelter to aid her as she continues her progress toward stability but noted that Mother was currently stable in her residence at the time of the hearing.

         Hayward indicated that Mother follows the recommendations of the program and does the work required of her, though at times she has some issues reading and understanding the materials. Part of the process is to discuss the prior bad choices made by Mother and how she got into the situation she is in. Hayward explained that Mother has taken responsibility for her actions and understands how her actions have affected her children. During their sessions, Mother became more aware of her failings. According to Hayward, Mother would benefit from additional time to develop better parenting skills and that with those skills, she would be able to care for her children again.

         On cross-examination, Hayward agreed that Mother had not completed her program, nor had she complied with the court-ordered services. Hayward, however, explained that since Mother had become sober, she had been focused on her responsibilities. Hayward agreed that as of the time of the hearing, Mother was not ...


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