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In re I. T.

Court of Appeals of Texas, First District

May 7, 2019

IN THE INTEREST OF I. T., a child

          On Appeal from the 315th District Court Harris County, Texas Trial Court Case No. 2017-04577J.

          Panel consists of Justices Keyes, Higley, and Landau.

          MEMORANDUM OPINION

          Sarah Beth Landau, Justice.

         This is an appeal of a judgment terminating the parental rights of L.N.T. (Laura) to her son, I.T. (Ian).[1] In four issues, Laura contends that there was insufficient evidence to support termination under each of three statutory predicates or to support the best interest finding, in part based on an argument that factual assertions in the clerk's record are not evidence.[2]

         We affirm.

         Background

         In September 2017, Laura, her boyfriend, and three of her children were living in a hotel room in Houston after being displaced by Hurricane Harvey. The three children were I.T. (Ian, age eight), T.T. (Tracy, age four), and S.T. (Scott, age eight months). Laura had three older children who lived elsewhere with their father. Laura was pregnant with her seventh child.[3]

         Ian's younger brother is injured, and all three children are removed

         One afternoon, Scott was seriously injured in the hotel room, and Laura took him to the emergency room for evaluation. Laura told hospital staff that she had intended to lay Scott down for a nap next to Laura's sleeping boyfriend. Laura laid Scott on the hotel bed and turned to walk to the bathroom. She heard a noise, turned, and saw Scott on the floor. She thought he crawled to the edge of the hotel bed and fell to the floor, hitting his head.

         The hospital staff determined that Scott's injuries were not consistent with a single impact. He had injuries in more than one location on his head, including a skull fracture, bruising around one eye, and swelling in another area. This collection of injuries indicated that there had been two or three separate impacts. Scott was admitted to the hospital for treatment. The Department of Family and Protective Services was contacted.

         The Department interviewed Laura, her boyfriend, Ian, and Tracy. All four provided a consistent explanation of Scott's injuries: he crawled to the edge of the bed and fell. Suspecting child abuse, the Department petitioned to be named temporary managing conservator of Ian, Tracy, and Scott. The trial court granted the petition, noting that Laura had been notified of the conservatorship hearing but did not appear. The Department placed Ian and Tracy in foster care. After his release from the hospital, Scott was placed in a different foster home.

         The next month, the trial court ordered drug testing on Laura. Laura tested positive for marijuana, phencyclidine (PCP), and cocaine. Monthly drug testing began. The Department also requested that Laura be ordered to follow the Department's family services plan.

         Laura's family services plan

         Laura's November 2017 family services plan stated that she had tested positive for drugs and, due to that drug use, "is not a capable caregiver" and cannot provide "quality care to her children." It further stated that, due to "several reports of neglectful supervision and drug use[, ] there is an identifiable pattern of maltreatment." Further, due to "a history of drug use and domestic violence in the home[, ] there is concern for the home an[d] social environment." The plan identified goals for Laura, including demonstrating a willingness and ability to protect her three children from harm. The plan also listed tasks required of Laura, including:

• parenting classes for six to eight weeks with certification of completion, as well as demonstration of learned skills;
• psychosocial evaluation with honest and accurate provision of information and adherence to recommendations;
• substance-abuse assessment with honest and accurate provision of information and adherence to recommendations;
• attendance at all court hearings, permanency conferences, and family visits;
• random urine and hair sample drug testing;
• maintenance of safe and stable housing, along with proof of housing; and
• maintenance of legal and verifiable employment, with proof of employment.

         A few months later, in March 2018, a trial court order noted that Laura had been appearing at permanency hearings, and it found that she had "demonstrated adequate and appropriate compliance with the service plan."

         Laura's participation suddenly diminishes around May 2018

         In advance of a June 2018 permanency hearing, the appointed ad litem reported to the trial court that Laura had missed her most recent visit with her children. Then, in August, the Department reported to the trial court that Laura "is not in contact with the agency." It further stated that Laura's "whereabouts are currently unknown," she "has not been compliant with random drug testing," she "has yet to complete a substance abuse assessment," and she has not provided a "certificate of completion for parenting classes." Thereafter, citing Laura's lack of participation, her failed drug tests in late 2017, and another failed drug test in March 2018, the Department sought termination of Laura's parental rights to all three children.[4]

         Termination proceeding begins as to Ian only

         The hearing on the Department's petition to terminate parental rights as to Ian, Tracy, and Scott was scheduled for September 5, 2018, approximately one year after Scott's injuries. Instead of adjudicating conservatorship as to all three children that day, the trial court adjudicated the parental rights as to Ian only.

         The record indicates that a father of one of the two other children only recently had made contact with the Department and that an attorney for an unknown father was not available for trial that day. The Court noted its ability to proceed "on the parties who are before the court since the court has the authority to sever cases out." The Department's attorney informed the court that trial on its petition to terminate the parental rights of Laura and L.J. as to Ian only would take no more than "20 or 30 minutes." The trial court proceeded with trial as to Laura's and L.J.'s parental rights to Ian.

         Both Laura and L.J. were represented by counsel, but neither parent was present in the courtroom or testified. Laura's counsel noted on the record that Laura was absent but confirmed that Laura had been "well aware of the trial setting." She did not object to proceeding with trial without Laura present. No explanation was given for either parent's absence.

         Trial lasted just under one and one-half hours with only three witnesses: Department caseworker N. Adams, Child Advocates volunteer S. Frelier, and Ian's foster mother.

         Evidence presented at termination proceeding

         Adams testified without objection that Scott suffered a skull fracture under circumstances that were "unsure." The Department did not seek to admit Scott's medical records to establish the severity of his injuries or to place in evidence the doctors' evaluations or diagnoses. The Department, instead, relied on Adams's testimony and internal Department documents admitted into evidence. According to Adams, based at least in part on the emergency room's evaluation of Scott's injuries as compared to Laura's explanation of them, the Department suspected neglectful supervision and physical abuse. The Department's disposition for both concerns was "reason to believe." Adams did not explain how the Department reached this resolution.

         Adams testified that, before their removal by the Department, Ian and his siblings were living with Laura and Laura's boyfriend in a hotel room. Laura indicated that her boyfriend "was abusive to her."

         Adams testified that Laura "had a drug issue" and that Ian's father, L.J., who lived elsewhere, had suggested to Adams that Laura has "always struggled" with drugs. Adams testified that Laura tested positive for "marijuana, PCP, cocaine, and meth" when the children were removed. Since then, the Department referred Laura for substance-abuse treatment "four or five" times. Adams testified that Laura started three substance-abuse programs but never completed any. Laura tested positive for drugs several times, even after starting the substance abuse programs. According to Adams, Laura's most recent failed drug test was on March 29, 2018-about six months after removal of the children. Since that failed test, Laura has failed to show up for her monthly drug tests. She missed tests in April, May, June, July, and August 2018, according to Adams. Laura's family services plan provides that the Department considers a "no show as a positive test result."

         The drug test results were admitted into evidence. They indicate an October 9, 2017 urinalysis drug test that was positive for marijuana metabolites and phencyclidine but negative for other tested substances, and an October 9 hair-analysis drug test that was positive for cocaine; a second positive urinalysis drug test on October 23 for marijuana metabolites that was negative for other tested substances; a third positive urinalysis test on November 6 for marijuana metabolites that was negative for other tested substances; and a positive hair-analysis drug test on March 9, 2018 for methamphetamine and cocaine. There is evidence in the record that, in addition to the drug tests Adams discussed, Laura had negative urinalysis drug tests between December 2017 and March 2018.

         Adams testified that Laura completed the psychosocial evaluation required by her family services plan. The evaluator recommended various parenting classes, therapy sessions, and counseling, as well as "a long-term psychiatrist to help her work on her life skills." According to Adams, Laura's family service plan also ...


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