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D. T. v. Texas Department of Family and Protective Services

Court of Appeals of Texas, Third District, Austin

April 9, 2019

D. T., Appellant
v.
Texas Department of Family and Protective Services, Appellee

          FROM THE DISTRICT COURT OF BELL COUNTY, 146TH JUDICIAL DISTRICT NO. 297, 433-B, HONORABLE CHARLES H. VAN ORDEN, JUDGE PRESIDING

          Before Justices Goodwin, Baker, and Triana

          MEMORANDUM OPINION

          THOMAS J. BAKER, JUSTICE

         D.T., herein "Darlene," appeals the trial court's decree terminating her parental rights to her son "Casey," who was nine years old at the time of the bench trial.[1] Darlene contends that the evidence was legally and factually insufficient to support the trial court's findings that (1) she failed to comply with a court order that specifically established the actions necessary for her to obtain the return of Casey, who the Texas Department of Family and Protective Services had removed from her care for abuse or neglect; (2) she constructively abandoned Casey; and (3) termination was in Casey's best interest. See Tex. Fam. Code § 161.001(b)(1)(N), (O), (2). Darlene also contends that she received ineffective assistance of counsel. We will affirm the trial court's decree.

         BACKGROUND

         The Department removed Casey from Darlene's care December 27, 2017, and filed a petition for parental rights' termination and/or managing conservatorship of the child. The Department attached to its petition the affidavit of CPS investigator Bethany Brunson, who averred that Darlene "fails to provide a safe, non-chaotic and drug free environment for her child. [She] places her own needs of illegal drug use and a domestic violence relationship with her girlfriend [Samaros] . . . above that of her son's well-being [and] . . . chooses an unhealthy relationship with [] Samaros, allowing [her] back into the home even with a protective order, placing [Casey] at risk." Brunson's affidavit stated that during transportation to the CPS office, "[Casey] reported [that] in the past month [] Samaros has thrown noodles and broken a window because she was mad." The affidavit continued: "During a home assessment on December 27 . . . [Darlene] was provided an instant oral swab, testing positive for methamphetamine and amphetamine," and "[Darlene had been] using methamphetamines every day and is now down to twice a week smoking methamphetamines away from her home; typically leaving [Casey] at home then returning to the home still under the influence." Brunson's affidavit set forth the criminal history of Darlene- including numerous misdemeanor and felony arrests for drug use and violence-and of Samaros- two misdemeanor convictions including assault causing bodily injury on a family member.

         The next day, the trial court issued an "Order for Protection of a Child in an Emergency," appointing the Department as the temporary managing conservator of Casey. After a hearing on January 23, 2018-at which Darlene did not appear-the court signed a temporary order, finding that "there is a danger to the physical health or safety of the child caused by the acts or failure to act of [Darlene] and therefore parental possession of the child is not in the best interest of the child." The order also abated Darlene's visitation "until further order of the Court."

         In February the court signed temporary orders approving the Department's family service plans, permanency plans, and permanency progress reports filed with the court. Thereafter, Darlene executed and filed with the court a sworn waiver of citation stating, "I agree that the [Department's] petition may be amended and that the cause may be taken up and considered by the Court without further notice to me." She also waived her rights to a jury trial and to 45-days' notice of the final hearing.

         In March, the Department filed with the court a status report and family service plan outlining various tasks and services for Darlene to complete. The report noted, "[t]he family needs assistance in developing relationships and/or communication. Family members are known, but currently none are able to provide emotional or concrete support. . . . [Darlene] relies on her paramour, [] Samaros, for support; however they have a violent relationship." The report noted that Darlene was aware of the requirement that she submit to random drug testing, but from January 25 to February 27 she did not show up for any of the six required drug tests that were accordingly documented as "positive."[2] The report noted that the Department had not been able to locate Darlene's father, whom she had identified as a potential placement for Casey, and that "[Casey] has stated that he does not want to live with [Darlene's father] as he 'snorts white stuff.'"

         The Department filed a permanency report with the court in May representing that the Department's permanency goal was "unrelated adoption" and its concurrent permanency goal was "relative/fictive kin adoption." The report noted that neither of the two possible relative placements identified by Darlene-Casey's maternal grandfather and maternal aunt-had made contact with the Department. The report noted that Casey enjoys living with his foster parents and "would like to be adopted by them, but still maintain a relationship with his mother."

         Darlene did not appear but was represented by court-appointed counsel at a June permanency hearing, after which the court signed a "Permanency Hearing Order" finding that Darlene is not "willing and able to provide the child with a safe environment and . . . return of the child to a parent or other person or entity is not in the child's best interest." The order approved the Department's permanency plans, recited that Darlene's visitation "continue to be abated until further order of the Court," and granted a temporary injunction enjoining Darlene from coming within 100 yards of Casey's residence or school.

         In September, the Department filed a final report with the court in which CPS investigator Elaine Mata represented that Darlene "has not been in contact with the Department" and is "unable to mitigate concerns by providing a safe, stable environment nor is she able to identify or acknowledge that domestic violence is a danger to her child." Mata's report also stated that "[Darlene] has admitted she was using methamphetamines daily, but [was] able to 'sober up' to pass prior drug screens with the Department." The report indicated that the Department's permanency goal was "unrelated adoption" with no concurrent goal.

         The bench trial occurred in October. Darlene did not attend, but her court-appointed counsel appeared. The Department called investigator Mata to testify and admitted four documents into evidence without objection: the Brunson removal affidavit, two family service plans, and the Department's final report. The court took judicial notice of its file. Casey's attorney ad litem and guardian ad litem each represented to the court that they believed termination was in Casey's best interest. The trial court found by clear and convincing evidence that (1) Darlene had constructively abandoned Casey, (2) Darlene had failed to comply with the provisions of a court order specifically establishing the ...


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