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In re A.S.

Court of Appeals of Texas, First District

April 23, 2019


          On Appeal from the 313th District Harris County, Texas Trial Court Case No. 2017-00333J

          Panel consists of Justices Lloyd, Kelly, and Hightower.



         L.G. appeals from the trial court's judgment terminating her parental rights to her daughter, A.S. In four issues, L.G. contends that the evidence is legally and factually insufficient to support the termination findings under subsections (D), (E), (N), and (O) of Texas Family Code section 161.001(b)(1), and the finding that termination of her parental rights is in the child's best interest. We affirm.


         On December 21, 2016, the Department of Family and Protective Services received a referral alleging neglectful supervision of one-year old A.S. following an incident of domestic violence. The report stated that J.S., A.S.'s father, threw L.G. against a door and repeatedly punched her in the stomach. At the time of the incident, A.S. was in the living room with L.G.'s friend who called the police. J.S. was arrested for domestic violence.[1]

         During the investigation of the referral, J.S. told the Department caseworker that he and L.G. had "used meth." On January 10, 2017, the Department asked L.G. to take a drug test. After taking the test, but before being notified of the results, L.G. gave power of attorney to her mother, S.P., because she feared the Department would remove A.S. L.G. tested positive for marijuana.

         S.P. told the caseworker that she offered to pay for L.G. to go to rehab but L.G. refused. S.P. also stated that she kicked L.G. and J.S. out of her house because of their drug use and the domestic violence. The Department subsequently learned that S.P. had prior CPS history and criminal history involving a DUI, felony endangerment of a child, and driving with a suspended license, and it removed A.S. from her care.

         On January 23, 2017, the Department filed an Original Petition for Protection of a Child for Conservatorship and for Termination in Suit Affecting the Parent-Child Relationship. The trial court signed an order granting the Department emergency temporary managing conservatorship of A.S. that same day.

         On February 1, 2017, the trial court granted J.S. community supervision in connection with his assault of L.G.

         On February 2, 2017, the trial court held an adversary hearing at which L.G. and J.S. appeared. The court found that (1) there was a danger to the physical health or safety of A.S. caused by an act or failure to act of the person entitled to possession; (2)an urgent need for A.S.'s protection requiring the immediate removal of A.S; and (3) notwithstanding reasonable efforts to eliminate the need for removal, a substantial risk of continuing danger if the child returned home. The court continued the Department's temporary managing conservatorship of A.S. and set a status hearing for March 21, 2017. The court also ordered L.G. and J.S. to submit to drug testing. Both parents tested positive for amphetamine, methamphetamine, and marijuana.

         The Department created family service plans for L.G. and J.S. L.G.'s service plan, which reflected that the parents had a prior open family-based safety services plan shortly after A.S. was born, noted that L.G. seemed to take the allegations underlying A.S.'s removal less seriously than the Department and that she exhibited a lack of attachment to A.S. The plan also noted that, as of February 21, 2017, neither parent had contacted the Department regarding A.S.'s well-being and or appeared at their scheduled permanency conference on February 16, 2017. The service plan's stated goals were that L.G. demonstrate (1) an ability to change the pattern of the behavior that resulted in the abuse/neglect; (2) an ability to provide basic necessities for A.S.; and (3) an acceptance of her responsibility as a parent. L.G.'s plan required her to (1) maintain monthly contact with her caseworker; (2) participate in all recommended services, permanency conferences, family visits, and court hearings; (3) submit to random urinalysis tests; (4) participate in a drug and alcohol assessment and follow related recommendations; (5) participate in parenting classes and domestic violence classes; (6) maintain stable employment and housing; and (7) participate in a psychosocial evaluation.

         On March 21, 2017, the trial court held a status hearing. Neither L.G. nor J.S. appeared at the hearing. At the conclusion of the hearing, the trial court signed an order finding the parents' service plans, with a stated goal of returning the child, to be reasonable and tailored to address the specific issues identified by the Department, and the trial court approved the services plans. The same day, the trial court ordered L.G. to submit to drug testing. L.G. tested positive for marijuana, amphetamine, and methamphetamine.

         On May 18, 2017, the National Screening Center issued a letter stating that L.G. had been ordered to provide samples for drug testing but she walked out before the sample could be collected, which is considered a "refusal/positive test."

         On May 22, 2017, A.S.'s foster parents filed a petition to intervene in the Department's suit, seeking to adopt A.S.

         On July 6, 2017, the trial court conducted a permanency hearing. Neither L.G. nor J.S. appeared in person. Following the hearing, the trial court signed an order finding that neither parent had demonstrated adequate and appropriate compliance with the service plan. The court's order further stated that the service plan and/or permanency progress report on file represented the actions the court required for the parents to regain custody. The trial court ordered that S.P. and A.W.P., the maternal grandparents, submit to a home study to be conducted within two weeks.

         On December 18, 2017, the trial court revoked J.S.'s community supervision after it found that he had violated the terms and conditions of his community supervision by failing to refrain from engaging in criminal activity and sentenced him to three years' confinement. On April 23, 2018, L.G. was arrested for prostitution and possession of a controlled substance.

         On May 4, 2018, the Department filed its permanency report with the trial court. The report stated that L.G. contacted the Department and said that she would like to work services. As of the date of the report, L.G. had not started any of the services on her family service plan and had attended only three of the six scheduled parent/child visits. The report noted that on April 24, 2017, L.G. "came into the agreement with the agency that the primary goal of unrelated adoption would be in the best interest of [A.S.]." The report further noted that L.G. "stated that she will relinquish her rights if she needs to for the best interest of [A.S.]" and that "if [A.S.] will be adopted she would like for the current caregivers to do so." The report stated that A.S. "is doing really well in her current placement" and "has developed a strong bond with her current foster family" with whom she was placed on January 20, 2017. The report also noted that the Wellness Counseling Center, which administers the required drug assessments listed in her family plan, had attempted to contact L.G. eight times.

         On June 6, 2018, the court held a permanency hearing at which L.G. did not appear. The trial court found that L.G. had not demonstrated adequate and appropriate compliance with her service plan.

         Trial began on July 9, 2018. Neither L.G. not J.S. appeared. The intervening parties-the foster parents and A.S.'s maternal grandparents-advised the court that they had reached an agreement involving visitation with A.S. in the event that L.G.'s and J.S.'s parental rights were terminated. The trial court informed the parents' attorneys that while they had received information that their clients might want to relinquish their parental rights to A.S., the trial court would give them only two weeks to procure those relinquishments; if they did not, the trial would proceed.

         On August 7, 2018, the trial resumed. Neither L.G. nor J.S. appeared. Prior to calling its first witness, the Department introduced numerous exhibits, which the trial court admitted, including L.G.'s family service plan, criminal history, and drug test results.

         Claudia Riggins, a Department conservatorship caseworker, testified that A.S. came into the Department's care because of L.G.'s drug use and domestic violence. Riggins testified that, once conservatorship began, L.G. and J.S. were scheduled for drug tests, their family service plans were created, and their visitation schedules set up. Despite the Department's multiple attempts to contact L.G. and mailing her family service plan to her, LG. stopped replying to all communications from the Department and no longer attended visitation with A.S. Riggins testified that, in February 2017, L.G. tested positive for methamphetamine, marijuana, marijuana metabolite, and amphetamine, and in, March 2017, she again tested positive for methamphetamine, marijuana, and marijuana metabolite.

         Riggins testified that the Department's file did not include any certificate of completion for any services by L.G. She testified that although L.G. was initially scheduled for weekly visits with A.S., the visits were changed to monthly visits because L.G. had cancelled a majority of them. Riggins testified that L.G. attended only two of her eight scheduled visits with A.S. Riggins stated that the Department was asking the court to terminate L.G.'s parental rights because she did not complete any of the items of her family service plan, and she was arrested during the pendency of the case. She further testified that L.G.' ...

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