IN THE INTEREST OF I. T., a child
Appeal from the 315th District Court Harris County, Texas
Trial Court Case No. 2017-04577J.
consists of Justices Keyes, Higley, and Landau.
Beth Landau, Justice.
an appeal of a judgment terminating the parental rights of
L.N.T. (Laura) to her son, I.T. (Ian). 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.
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
younger brother is injured, and all three children are
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.
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.
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
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.
family services plan
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,
• parenting classes for six to eight weeks with
certification of completion, as well as demonstration of
• 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.
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."
participation suddenly diminishes around May
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
proceeding begins as to Ian only
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.
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.
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
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.
presented at termination proceeding
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.
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."
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
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
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 ...