Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

In re A.R.G.

Court of Appeals of Texas, Fourteenth District

April 18, 2019

IN THE INTEREST OF A.R.G., A CHILD, Appellant

          On Appeal from the 314th District Court Harris County, Texas Trial Court Cause No. 2016-04728J

          Panel consists of Justices Christopher, Hassan, and Poissant.

          MEMORANDUM OPINION

          MARGARET "MEG" POISSANT JUSTICE

         The trial court terminated the parental rights of appellant, J.I.A. (Mother), and A.G. (Father) to their daughter, A.R.G. (Alice), [1] 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.

         Factual and Procedural Background

         A. The Department's Investigation

         Three 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).

         1. Ethan and Alex

         Mother 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.

         Due to 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.

         Mother 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.

         In 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.

         In May 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 cocaine.

         One 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.

         In its 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.

         2. Alice

         Three 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.

         Upon 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 discovered.

         B. Trial

         The 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.

         According 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.

         Matthews explained that Grandmother is not a suitable option for Alice because she previously allowed for unsupervised visitation between Mother and the children.

         Matthews 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 occasion.

         According 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.

         Next, 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 service plan.

         Mother 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.

         Next, 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.

         The 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.

         Strom 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.