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In re A.D.M.

Court of Appeals of Texas, Fourteenth District

May 14, 2019

IN THE INTEREST OF A.D.M., A CHILD

          On Appeal from the 314th District Court Harris County, Texas Trial Court Cause No. 2017-04361J

          Panel consists of Justices Christopher, Bourliot, and Zimmerer.

          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 child is Anna. The parents are B.C.J.-M. (Mother) and J.D.M. (Father).[1] The trial court terminated both parents' rights and appointed the Texas Department of Family and Protective Services (the Department) to be Anna's managing conservator. Only Mother appeals.

         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 (1) Mother had a parent-child relationship terminated with respect to another child based on a finding that Mother's conduct endangered that child; and (2) termination of Mother's parental rights is in Anna's best interest. Therefore, we affirm the trial court's decree.

         Background

         A. Removal

         Both Mother and Anna tested positive for cocaine when Anna was born in September 2017 at 34 weeks' gestation. This case arises out of the referral the Department received regarding those drug test results.

         Mother has two older children: Maya, who was a teenager when Anna was born, and Andrew, who was four years old and already under Department care. Due to the pending case about Andrew, the Department knew Mother and Father both abused drugs and had a history of domestic violence, with Mother as the aggressor. The Department believed neither Mother, Father, nor any family member could protect Anna. Mother and Father did not identify possible placements when asked.

         The Department formally removed Anna from her parents' care when she was five days old and filed this suit the same day. Following a full adversary hearing, the trial court signed an order requiring Mother to comply with any family service plan created for her by the Department. The service plan would identify the goals she needed to achieve and tasks and services she needed to complete before Anna could be placed in her care.

         B. Trial

         Trial was held at the end of October 2018. The testifying witnesses relevant to this appeal were Department caseworker Sabrina Blaylock, Court Appointed Special Advocate (CASA) Barbara Brennen, Mother, and Anna's paternal grandmother.

         1. Evidence about Mother

         a. Drug abuse

         The record contains drug test results for Mother dating back to September 2013, just over five years before trial. From that time through February 2014, Mother tested negative.

         The next results in the record are from December 2016, at which time she tested positive for cocaine, cocaine metabolite, and marijuana metabolite. No evidence was offered to interpret her test results, though testimony from Blaylock suggests her levels were high.[2] Two months later, she again tested positive for cocaine, cocaine metabolite, and marijuana metabolite, as well as marijuana and methamphetamines.[3] She failed to appear for her tests in April 2017 and July 2017; her failures to appear are considered positive results under Department policy.

         Mother was not tested again until she gave birth to Anna in September 2017. Medical records state both she and Anna tested positive on a cocaine screen but further testing would be necessary. Mother reportedly admitted to a Department caseworker that she would be positive for marijuana if tested.

         Mother missed another scheduled drug test when Anna was nearly a month old. Three weeks later, Mother tested positive for cocaine, cocaine metabolite, marijuana metabolite, and methamphetamine.[4]

         Mother admitted at trial that she previously had a drug problem but insisted she was sober and committed to remaining sober.

         b. Criminal history

         The record contains 12 judgments of conviction, though Mother admitted to being arrested "18 [or] 19" times. Her criminal history in the record began in 2006. Early that year, she pleaded guilty to possession of less than one gram of cocaine. The criminal court deferred adjudication and placed her on community supervision for two years. Just six months later, the court adjudicated her guilty because she violated the terms of her community supervision by engaging in illegal activity- specifically, prostitution and failing to identify herself to a police officer. She was sentenced to nine months' confinement in jail for the possession charge and 10 days' confinement each for prostitution and failure to identify herself. About a year later, she pleaded guilty to criminal trespass. She was sentenced to serve 15 days in jail.

         No further criminal activity is noted until the spring of 2009, when she followed the same pattern she had in 2006. She pleaded guilty to possession of less than one gram of cocaine, was placed on deferred adjudication community supervision for two years, violated her community supervision a year later, and was adjudicated guilty and sentenced to eight months' incarceration. Between May 2010 and December 2011, she pleaded guilty four times to prostitution; her sentences ranged from 30 days to one year in jail. A criminal court sentenced her to 30 days' confinement for possession of zero to two ounces of marijuana in May 2011.

         Mother appeared to refrain from criminal activity until the summer of 2017, at which time she allegedly assaulted Father. She pleaded guilty and was sentenced to serve 30 days in jail. In August 2018, just 10 weeks before trial in this case, she was arrested for delivery of between one and four grams of cocaine. Mother again pleaded guilty and was sentenced to 90 days' confinement.

         c. Department history

         Mother's history with the Department reportedly began in 2013. We presume that investigation involved Maya, because Andrew was not born until 2014. Mother completed the services the Department requested in connection with that case.

         The Department received another referral about Mother when Andrew was born in April 2014. She and Andrew both tested positive for marijuana at his birth. From the time Andrew was 18 months to two and a half years old, Mother was reported three times to the Department. The first referral alleged neglectful supervision due to Mother's physical assault of Father while Father was holding Andrew. The Department could not contact the parents; relatives allegedly told the investigator that Mother and Father were actively avoiding the Department. The second referral, made shortly after Andrew turned two, alleged physical abuse and was ruled out. The third referral again alleged neglectful supervision of Andrew due to Mother's ongoing drug use and her irresponsible behavior of prostitution and assault. The Department found reason to believe the allegations in the third referral.

         The Department filed suit for termination, protection, and conservatorship regarding Andrew in January 2017. Following a bench trial in January 2018, the trial court terminated the parent-child relationship between Mother and Andrew on several bases. The bases relevant to this appeal were subsections E (endangerment) and N (constructive abandonment) of section 161.001(b)(1) of the Family Code. The decree for termination, a certified copy of which was admitted into evidence and is included in the appellate record, states in relevant part:

[T]he Court findings by clear and convincing evidence that [Mother] has:
engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangers the physical or emotional well-being of the child, pursuant to ...

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