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In re C.G.

Court of Appeals of Texas, Fourteenth District

April 18, 2019


          On Appeal from the 314th District Court Harris County, Texas Trial Court Cause No. 2017-05425J

          Panel consists of Justices Christopher, Hassan, and Poissant.



         This accelerated appeal arises from a final decree in a suit in which termination of the parent-child relationship was at issue. See Tex. Fam. Code Ann. § 109.002(a-1). The children are Chris, Bret, and Greg. The parents are L.M.M. (Mother) and E.J.G. (Father).[1] Father died after this case began but before the decree was signed. The trial court terminated Mother's parental rights and appointed the Texas Department of Family and Protective Services (the Department) to be the children's managing conservator.

         On appeal, Mother challenges the sufficiency of the evidence to support termination. We conclude legally and factually sufficient evidence supports the trial court's findings that Mother endangered her sons and that termination of her parental rights is in the boys' best interest. Therefore, we affirm the trial court's decree.


         A. Removal

         The Department received a referral in August 2017 alleging Mother and an unknown person were using and selling methamphetamine out of their home, creating an unsafe living situation for the three boys. At that time, Chris was almost 13, Bret was almost 12, and Greg was almost nine. (Mother's eldest son, who was 17 at that time, is not involved in this case.) The Department had investigated Mother three times in the past; each investigation involved her drug use.

         The Department tried to contact Mother for the next ten weeks. Caseworker Courtney Yoak was assigned to the case about halfway through that period. Yoak believed Mother was evading her. Though she could not contact Mother, Yoak located and met with the boys at their respective schools to ensure their well-being.

         In mid-November, Yoak learned Mother had recently been arrested for two felony drug offenses but was free on bond. Yoak was again unable to get in touch with Mother but learned she was staying with a man named Zeke. A background check revealed Zeke had extensive criminal history involving drugs and injury to a child. Yoak also learned Mother had gone to Greg's school to have lunch with him, at which time school personnel believed she was under the influence of drugs or alcohol. Yoak spoke to Father and told him she believed the children were not safe with Mother. Father expressed no interest in taking the children.

         Based on Mother's failure to cooperate with the Department, her history of drug abuse, and her living with Zeke, the Department removed the three boys. Ten minutes after Yoak left a message stating the boys were being removed, Mother called Yoak wanting information.

         The Department filed this suit the next day. The trial court conducted an emergency removal hearing and appointed the Department as the boys' temporary managing conservator.

         B. Family service plan

         Following a full adversary hearing, the trial court signed an order requiring Mother to comply with any family service plan by the Department. The service plan would identify the goals she needed to achieve and tasks and services she needed to complete before her sons could be returned to her care.

         Mother's service plan required her to, among other things: participate in random drug testing; undergo a psychological assessment and follow the assessor's recommendations; participate in therapy consistently if therapy is recommended; complete a substance abuse assessment and follow the assessor's recommendations; participate consistently in substance-abuse therapy; complete parenting classes; participate in all visits, court hearings, and permanency meetings; show proof of income demonstrating the ability to support her children financially; and show a safe and stable home environment with functioning utilities.

         C. Trial

         1. Evidence about Mother

         a. Drug use

         Mother tested positive for drugs when each of her three sons was born. When Chris was born in 2004, she was reportedly positive for marijuana, but the Department could not locate Mother to investigate the allegation. She was positive for marijuana just over a year later when she gave birth to Bret; Bret also had marijuana in his system. Finally, both Mother and Greg were positive for cocaine when Greg was born in 2008.

         Mother was ordered to submit to drug testing immediately after several hearings in this case. She complied with the order only twice: in November 2017, shortly after this case began; and in April 2018. The first test revealed she was positive for amphetamine, methamphetamine, and marijuana. The second yielded a positive result for amphetamine and methamphetamine, both at higher levels than those of the first test, as well as benzodiazepine. Mother refused to be tested in December 2017, twice in January 2018, and once in August 2018. Each of those refusals to submit to testing is deemed a positive result under Department policy.

         At a December 2017 hearing, the transcript of which was admitted into evidence at trial, Mother testified she had used methamphetamine "maybe a handful of times" in the previous five years. At trial in October 2018, when asked if she had used methamphetamine more than 20 times since Chris was born, she said "of course." When asked if she had used more than 50 times, she said "possibly." She testified she completed drug rehabilitation after Greg, her youngest child, was born and was sober for about two years. She said she relapsed in 2011 or 2012, then re-achieved sobriety in 2014 for "about a year." She could not say how many times she had used methamphetamine since her relapse. Mother testified she did not use methamphetamine during the 10-week period in which the Department was looking for her, but she admitted she used it after her children were removed. The written report of an April 2018 psychological evaluation of Mother reflects she reported similar information about her drug use. The report states: "Patient reports using meth since 2013, stated that she was clean since November but relapsed last month. Stated that she was stressed due to the cps cas[e] and not seeing her children."

         Mother acknowledged at trial that she has an addiction problem. She testified about her efforts to be admitted to an inpatient drug treatment program, first on her own and then with the Department's help:

I tried for two months prior to asking CPS for help. I tried to get into a inpatient on my own where I cannot, because I don't have health insurance. They were telling me I had - there was a long waiting list. When I came to court in June, actually is when I asked Ms. Walker [caseworker Keverlyn Walker] for help to get me in. I was willing to go that day. She said what if I could go to Dallas, I said that's fine. Anywhere, you know. And I never heard anything from that afterwards.

         When asked how methamphetamine impacts her, Mother answered, "I mean, I'm here."

         b. Criminal history

         Mother's criminal history as reflected in the record is entirely drug-related. She pleaded guilty in 2016 to possession of less than one gram of methamphetamine and was sentenced to serve 90 days in jail. The record suggests she was convicted of possession of a controlled substance a second time in 2016, but no judgment or other documentation regarding such a charge appears in the record. The arrest that led to the Department finding her in November 2017 was also drug-related. She was taken into custody on two felony charges of possession of a controlled substance, for which she testified she "signed for four years deferred."

         c. Relationship with Zeke

         Mother had known Zeke for five or six years when this case began. The record does not indicate how long she and Zeke had dated. Mother testified she and Zeke never used methamphetamine together. She knew he had criminal history but did not know the extent of it. The record reflects three criminal offenses committed by Zeke between the years of 2000-2009.

          Beginning in 2015, Zeke's criminal activity increased in frequency. In June of that year, he kicked a box of glass at two members of his family, including a child under the age of 15. He was charged with assault of a family member and injury to a child. He pleaded guilty to the assault charge and was placed on deferred adjudication community supervision for two years. As a result of that disposition, the State dismissed the companion case of injury to a child. Zeke violated the terms of his community supervision, so seven months later the trial court adjudicated him guilty of assault of a family member. He was sentenced to serve 90 days in jail. Shortly after this termination case began, Zeke was arrested for possession of between four and 200 grams of methamphetamine. He pleaded guilty in mid-2018 and was placed on deferred adjudication community supervision for three years.

         d. Willingness and ability to parent

         Mother testified she had been working for two years at a company that manufactures and installs waterfalls and fountains, answering phones and scheduling appointments. That company is owned by Zeke's mother, Jenny. Jenny testified Mother is a good employee. Mother said she works approximately 30 to 35 hours per week, and she believed she could support her children financially. However, the written report of Mother's psychological evaluation, conducted six months before trial, states Mother said she was "currently unemployed." In addition to working for ...

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