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In re L.A.J.

Court of Appeals of Texas, Fourteenth District

May 30, 2019

IN THE INTEREST OF L.A.J., A CHILD

          On Appeal from the 314th District Court Harris County, Texas Trial Court Cause No. 2017-05553J

          Panel consists of Justices Christopher, Bourliot, and Zimmerer (Zimmerer, J. concurring as to result only) (Bourliot, J., dissenting opinion to follow).

          MAJORITY MEMORANDUM OPINION

          Tracy Christopher, Justice

         N.J. (Mother) appeals from a final order terminating her parental rights and appointing the Department of Family and Protective Services (the Department) as sole managing conservator of her son, L.A.J. (Levi).[1] On appeal, Mother challenges the legal and factual sufficiency of the evidence to support (1) the predicate grounds under which her parental rights were terminated and (2) the finding that termination was in Levi's best interest.

         FACTUAL AND PROCEDURAL BACKGROUND

         A. The Department of Family and Protective Services Investigation

         In early November 2017, Levi was born prematurely at thirty-four weeks' gestation and tested positive for marijuana. Because of his early arrival and positive drug test results, Levi was immediately placed in the neonatal intensive care unit. Mother also tested positive for marijuana when Levi was born. Mother denied using any illegal drugs while she was pregnant, including marijuana. Mother told the investigator that she only tried marijuana one time when she was seventeen years old.[2] However, Mother did admit that she ate two cookies at a Halloween party, which she subsequently found out were laced with marijuana.

         A social worker at the hospital informed the Department investigator that Levi was not suffering from any withdrawals or complications stemming from his marijuana exposure.[3] The social worker also explained that the levels of marijuana in Levi's meconium test were too high to be consistent with eating marijuana-laced cookies on a single occasion.

         Mother told the Department's investigator that she had four other children who lived with her husband, their father, (Father) in Dallas. The Department investigator tried to reach Father with the telephone number Mother provided, but the number was disconnected. Mother refused to give the Department the children's address or the name of the school they attend. Mother's other children were between one year old and ten years old. The Department gave Mother a family service plan, but she initially refused to sign it. At the time of the Department investigation, Mother was unemployed and receiving food stamps and Medicaid for her children. There were two other Department investigations concerning Mother's children, but both were unconfirmed because, according to the Department, Mother was actively hiding from the Department during those investigations. Mother acknowledged that there was one investigation open because she brought one of her sons to the hospital when he was struggling with feeding. According to Mother, the Department opened an investigation because the baby was underweight.

         The investigator spoke to Mother's adoptive mother (Grandmother) with whom Mother was living at the time. Grandmother adopted Mother from Child Protective Services when Mother was two years old. Grandmother said that Mother is a "great mom" to all her children. Grandmother confirmed that Father and the four other children were living in Dallas because their home was destroyed during Hurricane Harvey. Grandmother was unable to give the investigator an address or telephone number for Father.

         The Department concluded that Mother was a flight-risk due to the unknown whereabouts of her other children. The trial court named the Department emergency temporary managing conservator of Levi in order to prevent Mother from absconding with him.

         B. Trial

         Before testimony commenced the following evidence was entered into evidence: (1) the Department's pretrial removal affidavit, (2) Mother's family service plans, (3) Mother's drug test results, (4) Mother's criminal record, (5) Father's criminal record, (6) Mother's hospital records from August 2017 showing Mother tested positive for cannabinoids at 16 weeks pregnant with Levi, (7) Mother's hospital record from November 2017 showing Mother and Levi both tested positive for marijuana, (8) the court appointed special advocate's report, (9) a letter of praise from Mother's counselor, (10) attendance verification of parenting education classes, (11) an application approval letter for Mother's new home; (12) paystubs from Mother's employer; and (13) Mother's "employee of the quarter" award.

         Trial commenced almost one year after Levi was born. The Department's caseworker, Sylvanna Johnson, testified that Levi is in an adoptive foster home where he is provided with a safe, loving, and structured environment. According to Johnson, his foster parents want to adopt him. Johnson explained that this case began when Levi was born prematurely with marijuana in his meconium. According to Johnson, Mother did not cooperate with the Department at the outset of this case. She refused to provide the agency with the names or addresses of family members, refused to sign a service plan, and would not provide the addresses of her four other children. Johnson testified that Mother had a history with the Department beginning in 2013, which included allegations of neglectful supervision, physical abuse, and medical neglect. However, Johnson explained, all of the referrals resulted in a disposition of "unable to complete," because Mother "ran" from the Department. The Department was unable to locate any of these children after receiving initial reports in those cases.

         Johnson further testified that Mother tested positive for marijuana in both her urine and her hair at "very high levels" when Levi was born. According to Johnson, Mother denied using marijuana, but said that she ate a marijuana-laced brownie at a party. After the initial drug test, Mother continued to test positive for marijuana for another six months; however, the levels of marijuana steadily decreased in both her urine and hair tests. As of six months before trial, all of Mother's drug tests returned negative.

         Johnson testified that Mother eventually agreed to a service plan but did not successfully complete it. Mother failed to complete a substance abuse assessment, and still had counseling and group sessions to finish. Mother also failed to provide proof of stable housing or employment. Johnson explained that Mother reported three to four different jobs during the course of the investigation but failed to provide verification for any of them. According to Johnson, Mother was not cooperative at the outset of the case but became increasingly cooperative towards the end. Johnson confirmed that Mother has been visiting with Levi and that the visits are appropriate.

         According to Johnson, Father has a criminal history dating back to a 2009 conviction of assault with bodily injury. Father also has a 2012 conviction of assault on a public servant and a 2016 conviction for interference with a public duty. Mother told Johnson that she has daily contact with Father and her four other children but was unable to provide the Department with a working telephone number for Father or the address of her other children.

         Next, Terri Wilson, the court appointed special advocate, testified that she believes that it is in Levi's best interest to terminate Mother's parental rights. Wilson also testified that the telephone numbers Mother has given her for Father just ring without answer. Wilson confirmed that according to Mother's testimony during hearings leading up the final trial, Mother claims she has not seen her four other children since Levi was born. Wilson prepared a report that was entered into evidence. Wilson's report indicated that Mother was inconsistent in her supervised visitation with Levi-she frequently arrived late and cancelled three visits.

         Wilson testified that she spoke with Grandmother and other family members who state they have not seen the other children in two years and are concerned for their safety. Additionally, Wilson explained that she learned there is a restraining order against Father prohibiting him from going to Grandmother's home.

         Next, Mother testified that she has been working at a gas station for the past six months. Mother confirmed that she was using marijuana when the case began and explained that she ate "a couple" marijuana-laced brownies, but other than that she had not used marijuana since she was eighteen years old. When confronted with the fact that her drug test results indicated chronic marijuana usage, she testified that she was unsure of how that could have happened.

         Mother further testified that Father and her four other children are living with Father's sister in Dallas. Mother explained that she talks to her children every day, but not to Father. According to Mother, she and Father separated two years earlier. She explained that Father and the children moved to Dallas because Mother's adoptive-sister threatened to call the Department because she was angry at Mother. At that time, Mother's and Father's relationship was strained so she decided to remain in Houston with Grandmother.

         Mother testified that she hasn't been able to visit her children in Dallas because she cannot afford it. According to Mother, she has been approved for housing for four children, but she did not include Levi on her housing application because she did not have custody of him. She explained that she did not have a copy of his birth certificate at the time she submitted the housing application. Mother's plan is for Father to bring the children back from Dallas and for them to live with her in her new home and for Father to find his own place in Houston. Mother further testified that she has been unable to provide proof of employment to the caseworker because she does not have time to get to the caseworker's office during office hours.

         Upon questioning, Mother explained that she never took out a restraining order on Father and that there has never been any domestic violence. Mother said she suffers from post-traumatic stress syndrome because of the lack of acceptance from her adoptive family. Mother testified that she thought the other Department investigations were complete and she did not learn that they were designated as incomplete until she was in the courtroom at trial. Mother denied moving often or hiding from the Department. With regard to her service plan, Mother explained that her counselor had surgery and so they had to reschedule their last ...


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