On
Appeal from the 314th District Court Harris County, Texas
Trial Court Cause No. 2017-05425J
Panel
consists of Justices Christopher, Hassan, and Poissant.
MEMORANDUM OPINION
TRACY
CHRISTOPHER JUSTICE
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.
Background
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 ...