Appeal from the 314th District Court Harris County, Texas
Trial Court Cause No. 2016-04728J
consists of Justices Christopher, Hassan, and Poissant.
MARGARET "MEG" POISSANT JUSTICE
trial court terminated the parental rights of appellant,
J.I.A. (Mother), and A.G. (Father) to their daughter, A.R.G.
(Alice),  and appointed the Department of Family
Protective Services (the Department) as the child's
managing conservator. Mother challenges the legal and factual
sufficiency of the evidence to support the trial court's
findings on the two predicate grounds and its finding that
termination is in the best interest of the child. Father has
not appealed. We affirm.
and Procedural Background
The Department's Investigation
months before giving birth to Alice-the child at the center
of this parental-termination suit-Mother tested positive for
cocaine. Mother was required to submit to random drug testing
as a part of her family service plan due to the
Department's investigation into Mother's care of her
two sons, E.C.A. (Ethan) and A.A.G. (Alex). At the time of
Alice's birth, Ethan and Alex were in a kinship placement
with their maternal grandmother (Grandmother).
Ethan and Alex
gave birth to Ethan when she was sixteen years old and at the
time of trial Ethan was five years old. Mother gave birth to
Alex less than two years after giving birth to Ethan. The
affidavit supporting removal of Ethan and Alex was entered
into evidence in this case. That affidavit alleges the
Department received a referral of Mother's physical
neglect of Ethan and Alex, stating the boys appeared pale and
weak. The boys had diaper rashes because Mother allegedly
failed to change their diapers. The boys had body rashes
allegedly resulting from bed bugs. The report further alleged
Mother only fed the boys milk and fruit punch, and sometimes
the milk was stale. Additionally, the report stated that the
home was unclean, smelled like urine, and the couch was
soaked in urine. According to the affidavit, Mother left
"blunts" containing synthetic marijuana in reach of
the children and was believed to have cared for the children
while under the influence of synthetic marijuana. The
affidavit further states that on a subsequent visit, law
enforcement conducted a welfare check at Mother's home
and found both the home and the children to be filthy.
these conditions, the Department referred Mother to Family
Based Safety Services and Mother agreed to participate in
services and signed a family service plan. The boys were
initially placed in separate homes with relatives.
Eventually, the boys were both placed in the care of their
maternal Grandmother. During the course of the investigation,
Mother was evicted from her apartment, and did not have
adequate housing for the children. Mother admitted that she
previously smoked marijuana, specifically to smoking
"kush," or synthetic marijuana, and admitted using
synthetic marijuana while the children were in her care.
agreed to a Family Based Safety Services Plan, but did not
complete the requirements of her family service
plan-including failing to show up for five required random
drug tests. Mother failed to stay in touch with the
Department and failed to provide documented financial support
for her boys.
January 2016, after months of ignoring the Department and her
responsibilities, Mother reached out to the Department when
she found out she was pregnant with Alice. Mother told the
caseworker that she wanted to complete her services and have
the boys returned to her. Mother stayed in contact with the
caseworker for another month, before disappearing again,
without completing her service plan.
of 2016, the trial court ordered Mother to follow the service
plan, which included Mother's participation in random
drug testing. On the same date the family service plan became
an order of the trial court Mother was ordered to submit to a
random drug test. Her hair sample tested positive for
year later, the trial court terminated Mother's
parental-rights as to Ethan and Alex on grounds of
endangerment, abandonment, and failure to complete her
service plan, and granted temporary managing conservatorship
to the Department. Mother appealed, and the First Court of
Appeals issued an opinion reversing the trial court's
judgment terminating Mother's parental rights and
remanded for a new trial. See In re E.C.A., No.
01-17-00623-CV, 2017 WL 6759198, at *14 (Tex. App.-Houston
[1st Dist.] Dec. 28, 2017, no pet.) (mem. op.). The First
Court of Appeals held that Mother's admitted use of
synthetic marijuana in addition to her failed drug test
provided sufficient evidence that she endangered Ethan and
Alex under section 161.001(b)(1)(E) of the Texas Family Code.
Id. at *8. The court did not find, however, that it
was in the boys' best interest to have Mother's
parental rights terminated. The court held that while the
evidence was legally sufficient to support the trial
court's finding on the best-interest determination, the
evidence was not factually sufficient to support the
best-interest finding and reversed on those grounds.
Id. at *13.
best-interest analysis, the court held that unsanitary
conditions and violation of a court order prohibiting
unsupervised visitation by mother, were not factually
sufficient to support termination. Id. In addition,
the court explained that a significant consideration was the
absence of any plans for the children's future and that
the children were doing well in their current placement.
Id. The court reversed the judgment terminating
Mother's parental rights but affirmed the order regarding
the Department's conservatorship of the boys.
Id. at 14. The boys stayed in foster care.
days after Mother gave birth to Alice, the Department
received a report of physical abuse of Alice by Mother. The
report alleged that Mother tested positive for cocaine three
months before giving birth to Alice, as recounted above. The
report noted that Mother tested negative on all subsequent
drug tests. The report further alleged that Father is in jail
and that there is a history of domestic abuse between Father
and Mother. Alice did not test positive for illegal
substances when she was born.
being interviewed by a Department investigator, Mother denied
using cocaine and claimed to be perplexed regarding her
positive drug test results. Mother stated that Father used
cocaine and that she could have tested positive as a result
of their sexual intercourse. The Department investigator
noted in her report that Alice was wrapped in a blanket and
sleeping peacefully in her Mother's arms during their
conversation. The investigator also spoke with Grandmother
who stated she was happy to help Mother with Alice and hoped
Mother would do whatever it takes to get Ethan and Alex
returned to her custody. Mother voluntarily placed Alice into
the care of Grandmother. The trial court awarded the
Department temporary managing conservatorship of Alice a
month later. Alice and her brothers remained in the care of
Grandmother for one year, until the Department discovered
Grandmother allowed Mother unsupervised overnight visitation
with the children. The Department placed all three children
in a foster home after the unsupervised visits were
Department's caseworker, Alisha Matthews, testified that
the case regarding Alice began when Alice was born, because
Mother tested positive for cocaine while Mother was seven
months pregnant. Matthews testified that the Department gave
Mother a family service plan and, at the time of trial,
Mother had completed all her services. Matthews explained
that a component of Mother's service plan was counseling
on domestic violence, which Mother completed.
to Matthews, the Department's goal for Alice is unrelated
adoption. Matthews testified that Alice is bonded to her
current foster parents and all her needs are met. Ethan,
Alex, and Alice are all placed in the same foster home where
the foster parents have expressed an interest in permanent
adoption. At the time of trial, Alice had been in the foster
home for approximately one month and Ethan and Alex had been
placed there for approximately two months. Matthews further
testified that the current foster parents began visitation
with the children before the placements began.
explained that Grandmother is not a suitable option for Alice
because she previously allowed for unsupervised visitation
between Mother and the children.
testified that at the time of trial, Mother was living in her
own apartment, for which the Department had a copy of the
lease, and Mother had maintained employment as a tax preparer
during the pendency of the case. Matthews confirmed that
Mother has only tested positive for drugs on a single
to Matthews, Father has tested positive for numerous illegal
substances throughout the Department's investigation.
Father signed an irrevocable affidavit relinquishing his
rights to Alice before trial commenced. Father has a criminal
history dating back to 2012, which includes burglary of a
motor vehicle, evading arrest, and criminal trespass.
Matthews confirmed that the father of Ethan has a criminal
history dating back to 2009, which includes burglary of a
building, possession of a controlled substance, evading
arrest, burglary of a vehicle, and assault on a public
servant. Upon questioning, Matthews testified that by having
these men around as fathers, Mother endangered her children.
At the time of trial, Father was incarcerated.
Mother testified. According to Mother, she is in her second
year of employment as a tax preparer with the same employer.
The only explanation Mother could offer regarding her
positive drug test was that she was living with Father at the
time of the test and that she may have tested positive due to
their sexual intercourse. Mother adamantly denied using
drugs. Mother testified that she requested a new drug test
when she learned she tested positive. According to Mother,
she completed all her services, has been living in her own
apartment for close to a year, and has held a stable job for
close to two years. Mother testified she has worked hard to
make her life stable, so she could regain custody of her
children. Mother admitted to having unsupervised visitation
with the children when they were living with Grandmother and
acknowledged that was in violation of the terms of her family
said she never saw Father use drugs, but that she saw him
"high" on numerous occasions while they were living
together, including while Mother was pregnant with Alice.
Mother testified that Father hit her in April and May of
2016, just a few months before Alice was born. Mother
testified that she and Father ceased living together in May
of 2016. Mother further testified that she never lived with
the father of Ethan and that he disappeared from her life
when she informed him she was pregnant. Mother explained that
she does not want either father of her children in her life
because she now realizes they are "really bad
influences." Mother admitted she was previously aware of
Father's criminal record.
Bruce Jefferies, an employee at the National Screening
Center, testified. Jefferies testified that he has received
specialized training regarding analysis of drug test results
and has been employed by the National Screening Center for
twenty-six years. Jefferies explained that in May of 2016
Mother submitted to an "extended opiate hair test"
which showed positive results for cocaine usage. Mother took
a "zero tolerance hair test" the same day to
confirm the results, which also showed positive results for
cocaine use. Jefferies testified that Mother took the same
tests one month later and the results came back negative for
use of illegal substances or alcohol. Jefferies further
testified that based on the timing of the drug tests, and the
date of Alice's birth, there is no doubt in his mind that
Mother used cocaine twice during her pregnancy. Specifically,
Jefferies stated in regard to Mother's cocaine use,
"[m]y honest opinion it could have been just a bad
decision on a Friday and Saturday. And it was so small of
amount that if Mr. Ritter didn't run that second test,
the extended opiate-I mean the zero tolerance with exposure
it would have ran the same test, may have been 19870N, you
might have got a negative." According to Jefferies, it
is not possible for someone to pass on positive drug results
through sexual contact, as Mother theorized.
Department next called the Court Appointed Special Advocate
Sara Strom. Strom testified that she has been involved with
this family since the beginning of the case with Ethan and
Alex. Strom believes it is in the best interest of the
children for Mother's parental rights to be terminated
because Mother has shown consistent poor judgment. Strom
testified about one instance where Mother was in the restroom
at the courthouse for a hearing in the boys' case and got
into a fight with another woman who was pregnant with
Father's child. During cross examination, Mother's
counsel asked Strom whether she knew that this other woman
was not required to be in court that day and had actually
shown up at the court house to "address" Mother.
Both Mother and the other woman received citations for
"mutual combat" as a result of this incident.
further testified about evidence that was presented during
the termination hearing regarding Ethan and Alex. Strom
explained that there was evidence that while the boys were in
Grandmother's custody, Mother, without supervision, took
them to visit Father in jail. Storm testified that the trial
court ultimately terminated Mother's parental rights to
Alex and Ethan in ...