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In re J.J.W.

Court of Appeals of Texas, Fourteenth District

April 25, 2019

IN THE INTEREST OF J.J.W., C.T.Y., C.E.Y., C.W.Y., AND A.J.K., CHILDREN Offense Date Disposition

          On Appeal from the 314th District Court Harris County, Texas Trial Court Cause No. 2017-04136J

          Panel consists of Justices Wise, Zimmerer, and Spain.

          MEMORANDUM OPINION

          Charles A. Spain, Justice

         The issues in this case involve whether the trial court's findings to terminate a mother's parental rights are supported by legally- and factually-sufficient evidence. This accelerated appeal arises from a final order in which, after a bench trial, the trial court terminated the parental rights of S.A.K. (Mother) with respect to her children, J.J.W. (John), C.T.Y. (Chip), C.W.Y. (Colin), C.E.Y. (Carlos) and A.J.K. (Ana), [1] and appointed the Department of Family and Protective Services to be the children's sole managing conservator. See Tex. Fam. Code Ann. § 109.002(a-1).[2]

         In three issues, Mother challenges the legal and factual sufficiency of the evidence to support the trial court's findings on the predicate grounds of endangerment, and that termination is in the children's best interest. See Tex. Fam. Code Ann. § 161.001(b)(1)(D), (E), (2). We affirm.

         I. Background

         A. Pretrial Proceedings

         1. Pretrial Removal Affidavit

         In March 2017, the Department received a referral alleging neglectful supervision of John, Chip, Colin, and Carlos by Mother. The report stated that Mother left the children with their maternal grandmother two days earlier. When Mother returned she appeared to have been using either methamphetamine or cocaine. It was reported that Mother commonly left for a period of time and returned "all drugged up." Mother rarely bathed the children, which caused some of them to develop boils. About 10 days earlier, Colin had an ear infection that caused his ear to swell and bleed. When someone suggested Mother take Colin to the doctor, she rebuffed the individual with an expletive. Carlos was hospitalized for a staph infection, which allegedly was caused by a mosquito bite that was infected most likely with his own feces due to Mother's failure to regularly change his diaper.

         Four months later, the Department received a second referral alleging neglectful supervision of Ana by Mother. The reported stated that Mother tested positive for cocaine the day before when Ana was born. Mother admitted to some alcohol and cocaine use approximately one month before Ana's birth.

         2. The Investigation

         Two days after the initial referral, the Department caseworker met with Mother at the Walker County Jail. Mother was arrested due to outstanding warrants on speeding tickets and taken to jail. Mother admitted cocaine use eight years earlier but denied recent use. Mother agreed to work with Family Based Safety Services (FBSS) and take a drug test after she was released from jail. Two weeks later Mother refused to provide a specimen for a drug test.

         Mother reported that she and her children lived with the paternal grandmother. When a Department caseworker went to the address given by Mother the caseworker learned that the paternal grandmother (Grandmother) lived in the apartment, but Mother and the children did not live there. The apartment was part of a senior community and there were no children living there. The investigator looked for Mother and the children at the Star of Hope mission but was unable to locate them.

         Approximately one month later, a month before Ana was born, Mother called her sister, told her sister she was in active labor, and asked her sister to go to the Star of Hope mission and pick up the older children and bring them to Mother. When Mother's sister met Mother, she noted that Mother was pregnant but did not appear to be in labor. Mother was homeless and reported that she had not made enough money begging that day to get a motel room for the children and her. Mother gave the four older children to her sister, who reported that the children smelled of urine and feces.

         Mother's sister later reported that the children were living with Grandmother, but Grandmother told the caseworker she had no locating information for Mother or John's father. Grandmother reported that her son is the father of Chip, Colin, and Carlos. He was unable to care for the children, according to Grandmother, because he was "unstable and on drugs."

         Mother has another child, C.K. (Chris), who has lived with Cynthia Dixon since he was one year old. Mother's parental rights to Chris are not at issue in this case. Dixon reported that five years earlier Mother was arrested for prostitution and possession while John was with her at a motel.

         3. Department History

         One year earlier, the Department received a referral for physical abuse of the children by C.Y., the biological father of Chip, Colin, Carlos, and Ana. John had multiple minor injuries to vital body areas caused intentionally by C.Y. (Father).[3]Three days later John had older brown visible marks to his upper left and right thigh area. The marks appeared to be strap marks approximately four inches long. John had another mark on his left leg that appeared to be a hand print. John reported that the injuries were caused by Father when Father became angry because John would not pick up his toys. Disposition of this referral was listed as "unable to determine."

         4. Criminal History

         Mother's criminal history dated back to 2002 and is listed on the removal affidavit as follows:

Offense
Date
Disposition

Robbery

05/20/2002

Held

Possession of Controlled Substance (<lg)

06/12/2002

9-months confinement

Burglary of Habitation

12/08/2003

Dismissed on state's motion

Prostitution

09/07/2004

10-days confinement

Prostitution

10/05/2004

30-days confinement

Manufacturing and Delivery of Controlled Substance (<lg)

12/02/2004

7-months confinement

Possession of Controlled Substance (<lg)

12/02/2004

7-months confinement

Theft of Property $50 < $500

01/24/2005

8-days confinement

Criminal Trespass, Misdemeanor

11/15/2005

15-days confinement

Criminal Trespass, Misdemeanor

12/29/2005

30-days confinement

Robbery

02/08/2006

Dismissed due to missing witness

Prostitution

06/07/2006

90-days confinement

Prostitution

07/20/2006

180-days confinement

Manufacturing and Delivery of Controlled Substance (<1g)

10/25/2006

Dismissed due to conviction of co-defendant

Possession of Controlled Substance (<1g)

05/01/2007

3-days confinement

Possession of Controlled Substance (<lg)

11/28/2007

180-days confinement

Manufacturing and Delivery of Controlled Substance (<1g)

09/09/2008

Dismissed due to conviction of co-defendant

Unauthorized Use of a Motor Vehicle

10/02/2008

7-months confinement

Prostitution

05/19/2009

180-days confinement

Prostitution

05/04/2010

8-months confinement

Theft of Property $50 < $500

05/11/2011

20-days confinement

Prostitution

09/28/2011

180-days confinement

          B. Final Hearing

         The hospital records of Mother and Ana were admitted into evidence without objection. Ana's records reflect that she was a "newborn affected by maternal use of cocaine." The records reflect that Ana's urine was positive for cocaine. The records further note that the newborn displayed "normal sleep/wake states including quiet sleep and active sleep and awake states including drowsy, quiet alert, active alert and crying."

         Elizabeth Bolling, the supervising caseworker, testified that the children first became involved with the Department in March 2017 when Mother "disappeared." The Department was unable to locate Mother until she gave birth to Ana. At the time of Ana's birth, both Mother and baby tested positive for cocaine. At that time Mother did not have a place to live. Ana required additional medical care due to being born with cocaine in her system.

         Four months later John was interviewed at the Children's Assessment Center. John told the interviewer that while he was in a hotel with Mother, he saw on television "different genitals of people that were touching each other." John also revealed that he saw Mother and Father fighting with each other. John reported that Father would hold a blanket over his head and "make us not breathe for a lot of minutes." John reported that Chip, his four-year-old brother, found Father's gun, pointed it at him and pulled the trigger. John was not hurt because the gun was not loaded.

          After the first hearing in the trial court, Mother tested positive for cocaine, benzoylecgonine, and Norco, an opioid. Mother's urine tests were negative in October, November, and December 2017. Her hair follicle level in November 2017 had decreased, but she continued to test positive for benzoylecgonine and cocaine. Mother submitted to drug tests in January, February, May, June, and August 2018, and each test was negative. During those months Mother reported that she was living in a hotel with Father and the maternal grandmother after a recent hurricane. Mother was working part-time, providing home health care for the maternal grandmother. Bolling also testified to mother's extensive criminal history.

         Father submitted to drug testing with mixed results. Father had positive results for cocaine and benzoylecgonine. Mother was told by the Department that the children would not be returned to her if she continued to live with Father, because he was using illegal drugs. Bolling further testified to Father's extensive criminal history. It was not in the children's best interest to place them with Mother while she continued to live with Father.

         At the time of the final hearing, Mother had moved out of the hotel but continued to live with Father. Mother was given a family service plan and ordered to comply with the tasks in the plan. Mother completed her psychosocial assessment and followed all recommendations. Mother completed parenting classes, participated in permanency conferences, provided verifiable proof of income, and submitted to random drug testing. Bolling testified, however, that Mother did not demonstrate that she understood the role her actions played in the Department's need to remove the children. Bolling clarified that Mother was confrontational when told Father should not continue to live in the home. The children's maternal grandmother, who was also living in the home, had a previous conviction for possession of a dangerous drug as well as reports of domestic violence.

          At the time of the final hearing, the children were living with their aunt who expressed that she could keep the four younger children but was "having some issues" with John. John was causing problems with the younger children and was causing problems at school by displaying aggression toward females. The Department identified a paternal relative as a potential placement for John.

         Bolling testified that termination was in the children's best interest due to the parents' criminal history and domestic violence in the home. To her knowledge, the children did not have special physical needs.

         The Child Advocate testified that their organization recommended termination of the parents' rights. The Advocate's primary concern was that Father continued to use illegal drugs and continued to live in the home. After the Department mandated that Father move out of the home Mother reported that Father would continue to support her financially, but he was not living in the home. Mother reported that she was dependent on financial support from Father. After Father moved out, the maternal grandmother moved in purportedly to help Mother ...


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