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In re D.K.J.J.

Court of Appeals of Texas, First District

June 13, 2019

IN THE INTEREST OF D.K.J.J., D.K.D.J., D.D.J., JR., D.Q.D.J., D.K.J.J., AKA B.B.B., Minor Children

          On Appeal from the 314th District Court Harris County, Texas Trial Court Case No. 2017-05317J

          Panel consists of Justices Keyes, Kelly, and Goodman.

          MEMORANDUM OPINION

          PETER KELLY JUSTICE.

         In this appeal, the mother and father of five minor children challenge the trial court's final decree terminating their parental rights based on findings that (a) they endangered the children, (b) they failed to comply with a provision of a court order specifying the actions necessary to obtain return of their children, and (c) termination of their parental rights was in the best interest of the children. § 161.001(b)(1)(D), (E), (o); id. § 161.001(b)(2). Both parents challenge the sufficiency of the evidence to support the predicate-act and best-interest findings. In addition, the mother asserts that the court erred by denying her request for a jury trial.

         We affirm.

         Background

         This case concerns five children whose ages at the time of trial were: Joseph and James, six years old (twins); Noah, almost five years old; Sarah, two-and-a-half years old; and Ben, one year old.[1] The father was 29 years old and the mother was 25 years old at the time of trial.

         Family history.

         In 2015, before Sarah and Ben were born, the Department of Family and Protective Services was informed that the parents were using illegal drugs when the twins required emergency medical care. The mother testified that the boys had seizures, but the removal affidavit admitted at trial provided details of this prior intervention that suggest another cause. According to the affidavit, EMS was called when Joseph had difficulty breathing and coughed up blood. When the responders arrived, they found that the house had a "very heavy condensation of smoke" and "smelled of marijuana." They saw drug paraphernalia such as scales, pipes, and residue in the home. The mother's 16-year-old brother was present and "was believed to have been smoking marijuana" because his eyes were "bloodshot and he appeared high." The father told the responders that he had put his finger in Joseph's throat to help him breathe, and he believed his son was coughing up blood due to a scratch. Joseph was taken by ambulance to a hospital. Shortly thereafter, James was also taken by ambulance to a hospital due to breathing difficulties.[2]

         The removal affidavit also stated that during the prior investigation, both the mother and father admitted to daily drug use. Upon random drug testing, the father tested positive for marijuana, hydrocodone, and opiates, and the mother tested positive for marijuana. The twins and Noah were placed with the mother's cousin, and the mother's brother moved out. The Department ruled that there was "reason to believe" the allegation of neglectful supervision, but after the parents participated in services required by the Department, the children were returned to them.

         The removal.

         In October 2017, while in the hospital for Ben's birth, the mother tested positive for opiates and benzodiazepines. Ben, however, tested negative when screened for drugs. Because he was premature, he was treated for respiratory distress in the Neonatal Intensive Care Unit. The Department asked the parents to submit to voluntary drug testing, and they refused. The father informed the caseworker that they would not submit to drug tests without a court order. He also told the caseworker that the mother tested positive for opiates and benzodiazepines due to medication administered by the hospital. The hospital told the caseworker that the mother's drug test was done before the hospital treated her.

         The caseworker continued to follow up with the family over the next 17 days. She wanted to see the older children, and while the father initially agreed to meet her, he later cancelled. The mother agreed to allow the caseworker to come to her apartment, but when the caseworker arrived, the mother was not there and the apartment complex leasing office told her that the mother had not lived there for more than a year. The mother later told the caseworker that her mother-in-law, who was caring for the children while she gave birth to Ben, lived in the apartment complex. The mother asked to meet in a grocery store parking lot. After waiting in the grocery store parking lot, the caseworker called the mother, who said she was at the apartment complex. The mother later brought the children to a gas station parking lot, where the caseworker saw them but was not permitted to speak to them.

         The day after the caseworker saw the older children, she learned that there was a warrant for the arrest of the father, who had failed to appear in court on a charge of possession of a controlled substance. All the children were removed from the parents' care: the twins were placed in one foster home, and the three younger children were placed together in a different foster home.

         Attempts at reunification.

         The court entered orders establishing the actions necessary for the parents to obtain the return of their children. Both parents were ordered to "remain drug free," and "maintain negative drug tests throughout the life of the case." They were ordered to submit to random drug testing, and they were informed that refusal to submit to a drug test would be considered a positive result. They were ordered to attend all hearings and family visitations; to participate in psychological assessment and counseling; to participate in substance abuse assessment and counseling; and to attend parenting classes. The parents were ordered to "secure legal and appropriate employment" no less than six months before the conclusion of the case and to provide the Department with "proof of employment in the form of check stubs, bank statements, direct deposit statements, etc."

         The parents attended and participated in assessments, counseling, parenting classes, and hearings, but both parents failed to appear at a hearing in August 2018, approximately three weeks after they tested positive for drug use. Both parents testified at trial that they were working, but the father did not provide the Department with proof of employment before trial. The parents also initially participated in visitation, but the father's repeated and emotionally charged outbursts during visitation caused the Department to conclude that it could no longer "appropriately supervise" visits, even with a monitor and security guards present. In early May 2018, family visits were suspended until the parents could address issues of substance abuse and behavior.

         Drug test results.

         Both parents submitted to some, but not all, of the court-ordered drug tests, and both had results that indicated that they continued to use controlled substances. Based on hair samples, the mother tested positive for cocaine metabolites, marijuana metabolites, and marijuana in November 2017, and she tested positive for cocaine metabolites and marijuana metabolites in April 2018 and August 2018. The mother twice-January 2018 and May 2018-failed to provide samples for court-ordered tests for a zero-tolerance hair analysis, a urine drug screen, an alcohol screen, and screenings for synthetic marijuana and cocaine.

         Bruce Jefferies, who works for the National Screening Center, National Assessment Center, testified at trial as an expert in drug testing as stipulated by the parties. He interpreted the parents' drug test results. The mother's test results included a positive urine test result from April 2015, which, Jefferies explained, was at a level that indicated the mother had used marijuana "for the last 30 days on a consistent basis," i.e., daily. The children were reunited with the parents after that removal, and the mother's next chronological drug test result was in November 2017, when she tested positive for ingestion of both marijuana and cocaine at low levels. Jefferies said that the levels found indicated occasional ingestion of those drugs over the prior 90 days.

         In January 2018, the mother's urine drug test was negative for everything tested, but the hair analysis indicated that she was often around others who were "constantly" smoking marijuana. In April, the drug tests indicated that the mother had ingested cocaine and marijuana, probably two days in a row, and the result could not have been caused by the same instances of drug use that were detected in the mother's November 2017 test results. In May, the mother failed to appear for testing, and in August 2018, the mother again tested positive for ingestion of cocaine. The level detected indicated that this was a use of cocaine that occurred after April 2018. There was also evidence that the mother had been exposed to marijuana, though it was not clear whether she had also ingested it.

         The father also had some positive test results and failed to appear for two court-ordered tests. Based on a hair sample, the father tested positive for marijuana and cocaine metabolites in April 2018. In August, he tested positive for marijuana and marijuana metabolites, cocaine metabolites, opiates, and benzodiazepine (specifically, clonazepam metabolites). In December 2017 and May 2018, the father failed to provide samples for a zero-tolerance hair analysis, urine drug screen, alcohol screen, and screenings for synthetic marijuana and cocaine.

         At trial the father testified that he had been taking amoxicillin, oxycodone, Soma (a prescription muscle relaxant), ibuprofen, and a laxative. He said that these medications were prescribed to him, and he introduced into evidence prescriptions from December 2017 for oxycodone (which was dispensed as 120 30-milligram pills), carisoprodol (Soma), stool softener, and biofreeze menthol gel. He introduced pharmacy records that showed he refilled his oxycodone and carisoprodol in January, February, and early April 2018. He also introduced records showing that he filled prescriptions for alprazolam (a benzodiazepine) six times between September 2015 and September 2016; each prescription was for 90 two-milligram pills. Similarly, he filled prescriptions for carisoprodol three times between April and June 2016; each prescription was for 120 350-milligram pills. The father denied that the medication he took affected his parenting or driving ability. And he asserted that the positive test results for cocaine were false positives caused by the prescribed medications he was taking.

         Jefferies also discussed the father's drug tests. The father failed to appear for court-ordered testing in December 2017, but in April 2018, his test results indicated ingestion of cocaine and exposure to marijuana. The level of cocaine was low, but it indicated more than one use of the drug. The father again failed to comply with court-ordered testing in May, but tests in August indicated that the father had used drugs since the April test was conducted. The father's August test results were positive for cocaine, morphine, codeine, and marijuana. Jefferies testified that the level of cocaine found indicated more than one use. The level of marijuana indicated "heavy use," or "smoking every day." Jefferies testified that the prescription medications that the father used "would never show positive for cocaine." He also testified that he saw results indicating the presence of a benzodiazepine for which there was not a prescription provided.

         The Department sought termination of the parents' rights, and the court set the case for final trial on October 30, 2018. On October 1, 2018, both parents, individually, filed jury demands, and each paid the jury fee. The trial court denied the request for a jury.

         Testimony and evidence adduced at termination trial.

         At trial, the mother testified that she previously had a problem with marijuana, but she denied having used marijuana since 2015. She testified that she had been living with her mother, who smoked marijuana, when her test results showed that she had been around people using marijuana. The mother denied ever having used cocaine. She asserted that she tested positive for drugs when Ben was born because she had taken a prescription medication, however no such prescription was admitted at trial.

         The mother declared that she did everything the Department required of her, and she denied having ever put her children in jeopardy. She testified that she was employed as a caregiver at a home for special needs adults. Before trial, she provided the Department with pay stubs from that job. She said she had obtained housing by first living with her mother and then living with the father, with whom she had an eight-year relationship. She testified that she reconnected with the father because she believed it was "better for us to fight for our children together." The mother denied the accuracy of the father's drug test results.

         The father testified that he was employed six days a week doing air conditioning and electrical work for Geneva Air. He maintained that he was paid in cash, and he introduced a letter from his employer, which stated that he was employed as an independent contractor and held a position as a service technician. The letter stated that the father was paid $25 per hour. The father testified that he helped the mother with the children by providing them a home and "everything that they needed," such as food and clothes.

         The father introduced his lease into evidence along with copies of cashier's checks made to the landlord identified on the lease. The lease listed only the father as a tenant, and it listed the "only persons" he could "permit to reside on the Property during the term of this lease" as Joseph and James. The mother was mentioned in the lease as a person who could access the property in the event the father died. The term of the lease was September 15, 2017 to September 30, 2019.

         The father testified that the house he was living in was safe and set up for his children, but the Department never came to see it. He praised the mother and said that, before their removal, the twins were in school, and he had been working with the school to arrange speech therapy. He attributed their speech delay to the fact that he was teaching them Spanish, although he conceded he was not fluent in Spanish.

         The father said that his work often exacerbated pain that was caused by prior injuries and for which he used prescription medicine as needed, specifically oxycodone. He admitted that he had several prior convictions for possession of marijuana, but he asserted that he stopped using marijuana after the first time the children were removed in 2015, and he began smoking marijuana again, in Texas, when he learned that marijuana had been "decriminalized."[3] The father denied having ever used cocaine. He maintained that his prescribed medications caused a false positive test result for cocaine.

         The parents' arrests.

         Both parents were arrested during the pendency of the litigation. The mother was arrested for theft in Brazoria County. She was also arrested in Harris County for possession of a controlled substance, oxycodone, and for failing to stop and give information after a car accident. The mother testified that she had been driving the father's car and that the pills found in the car belonged to him. She also said that she believed the charges would be dismissed. No evidence corroborating this testimony is in the record, but at one point during the mother's testimony, her attorney advised her not to answer any more questions because criminal charges were pending. The father was also arrested in Brazoria County in July 2018, for possession of a controlled substance and theft. The father told the Department caseworker, P. Boatner, that the charges were rejected or dismissed and there was no longer a case pending against him.

         Issues and concerns about the children.

         The permanency report, which was filed in October 2018 and admitted into evidence at trial, provides additional information about the children's well-being.

         Joseph and James.

         Both Joseph and James were described as a "happy" six-year olds who love "watching cartoons and playing with [their] siblings." Their mental health assessments noted concerns about their academic progress and readiness, possible need for additional instruction in early literacy and math, possible need for evaluation for dyslexia, and need for intervention with a speech-language pathologist. The licensed psychologist who evaluated them recommended that they have "as much daily routine and predictability as practicable at home," along with "positive reinforcement" for completing homework, doing chores, and being cooperative. He also recommended that that both Joseph and James work with the school's guidance counselor to "increase the safety net of social-emotional support."

         Noah.

         Noah was evaluated by a psychologist who has certification as a licensed specialist in school psychology. He described Noah as a "happy" four-year-old "who loves building things with his toys and playing with his siblings." Noah participates in gymnastics and piano lessons, and he is engaged in biweekly therapy. Noah was diagnosed with global developmental delay, severe attention deficit hyperactivity disorder ("ADHD"), and disruptive mood dysregulation disorder. He was also diagnosed with neglect based on history. The recommendations for Noah included "an educational environment which could provide a low teacher to student ratio and possible access to outside educational resources." The psychologist recommended other interventions such as incentives for effort and success, psychiatric support, close monitoring in "high stimulus and loosely structured settings," and possibly a preschool program for children with disabilities.

         The psychologist noted other concerns about Noah, saying: "His needs appear outside of normal limits and do not appear primarily related exclusively to his learning issues." The psychologist indicated that Noah may need modified support, continued psychiatric consultation, and medication due to issues with mood regulation and aggression, "which may amplify with time." While the permanency report noted that Noah was being treated with guanfacine and methylin for his ADHD, and the psychologist stressed Noah's need for "continuity and predictability in his environment," stating that he will be "a challenge to parent on a regular basis." Finally, the psychologist recommended consideration of occupational and speech therapy and another evaluation in a year.

         Sarah.

         Sarah was described as a "happy two-year-old who enjoys being held, playing with her siblings and playing with toys." She participated in gymnastics. Her only diagnosis was "neglect of a child, confirmed." The counselor who evaluated her recommended that she "reside in a family home environment that is nurturing, safe and predictable," and she stated that Sarah was "functioning very well in her current placement with foster parents." It was also recommended that she "maintain placement with siblings." No specific educational or developmental needs were identified, and the foster parents were encouraged to continue engaging Sarah and encouraging age-appropriate development.

         Ben.

         Ben was described as a "happy" eleven-month-old who enjoys being held, talked to, roll[ing] around and play[ing] with toys." Ben had previously failed a hearing and vision screening, and follow-up care with a physician was recommended. Ben used albuterol to reduce wheezing. No concerns or special needs were noted about him.

         The children's progress in foster care.

         Boatner testified that the children were well adjusted in their placements. Noah was diagnosed with ADHD, and he had been engaged in therapy sessions with a behavioral therapist and extracurricular activities. He also took medication because the behavioral modifications were insufficient to correct problematic behavior like hitting other children in the home and having tantrums. Noah was comfortable and safe in his placement and well bonded to his siblings. Moore expressed a concern that the twins may have some educational or developmental delay relating to speech and penmanship, however, Boatner testified that the foster placements were meeting the physical and emotional needs of the children.

         The Department and Child Advocates recommendations.

         Boatner testified on behalf of the Department, and she said that neither parent fully completed the family service plan. Specifically, they failed to complete the substance abuse programs by attending either Alcoholics Anonymous or Narcotics Anonymous meetings. In addition, the father did not provide documentation of employment or a copy of his lease to the Department as required in the family service plan. The mother provided one pay stub to the Department, but she did not provide such information to Boatner. She also did not provide any proof of having secured safe and stable housing.

         The Department recommended termination based on the parents' continued drug use, as evidenced by the drug tests and their recent arrests. When questioned by the attorney ad litem, Boatner agreed that the parents failed to meet the goals established by the family service plan including: (1) providing a safe and stable environment for the children to mitigate the circumstances that brought them into custody; (2) demonstrating an ability to provide basic necessities such as food, clothing, shelter, medical care, and supervision; (3) learning to provide for the needs of the children; (4) demonstrating an ability to protect them from future neglect; (5) demonstrating an acceptance of the responsibility of parenting; and (6) demonstrating a willingness and ability to protect her children from people who may inflict serious harm or neglect.

         Boatner also agreed that the parents' refusal to accept responsibility for their failure to protect their children was itself endangering. The Child Advocate, G. Moore, testified that he was concerned about the parents' continuing drug problems, specifically their inability to remain drug free and to acknowledge that their drug use is problematic. Both Boatner and Moore testified that termination of the parents' rights was in the best interest of the children.

         The foster parents' desire to adopt all five children.

         The foster parents of the three younger children wanted to adopt all five of them together, and both Boatner and Moore were confident in their ability to raise all five children together with their three biological children. The foster parents of the younger siblings lived in a home with six bedrooms and four bathrooms on a one-half acre lot. Both Boatner and Moore testified that the foster parents had space for all the children. Child Advocate Moore said that his focus was on keeping the siblings together. Based on his regular visits with the children, Moore testified that the younger siblings wanted the twins to live with them. Moore said: "We believe they have not only the financial capacity and the house capacity but the hearts and the love to adopt this entire family."

         The foster mother, who is a former teacher and now a stay-at-home mother, testified that she wants to adopt all five children "with all my heart." By the time of trial, Ben had been with them almost a year, and Noah and Sarah had been with them for seven months. The foster mother testified that she had come to know the twins "very well" by spending time with them when they visited their siblings at the foster parents' home.

         The foster parents have been working to obtain approval to take in all five children. In addition to the five children they wish to adopt, they also have three biological children, aged seven, eight, and nine. One has cerebral palsy due to a birth injury. The family has "full time nursing six days out of the week to assist with him." The mother said they planned to ensure at least two adults are in the home when all eight children are there. She also said that they had hired someone to stay awake in the home at night to help with the children.

         Final judgment.

         The trial court entered a final judgment terminating the parents' rights based on endangerment, see Tex. Fam. Code § 161.001(b)(1)(D), (E), and based on failure to "comply with the provisions of a court order that specifically established the actions necessary . . . to obtain return of the children." See id. § 161.001(b)(1)(O). The trial court found that neither parent proved by a preponderance of the evidence that he or she was unable to comply with specific provisions of the court order or that he or she made a good faith effort to comply with the order and the failure to comply was not due to any fault of the parent. See id. § 161.001(d). The court also found that termination of each parent's rights was in the children's best interest. See id. § 161.001(b)(2).

         Analysis

         On appeal, both parents challenge the sufficiency of the evidence to support the trial court's predicate-act and best-interest findings. The mother also challenges the trial court's denial of her request for a jury trial.

         I. Sufficiency of the evidence

         A. Standards of review

         The interest of parents in the care, custody, and control of their children is a fundamental liberty interest protected by the Constitution. See, e.g., Troxel v. Granville, 530 U.S. 57, 65 (2000); Santosky v. Kramer, 455 U.S. 745, 758-59 (1982). But the rights of natural parents are not absolute. In re A.V., 113 S.W.3d 355, 361 (Tex. 2003). Protection of the child is paramount, and when the State institutes proceedings to terminate parental rights, the courts focus on protecting the best interests of the child. See id.

         "A strong presumption exists that a child's best interests are served by maintaining the parent-child relationship." Walker v. Tex. Dep't of Family & Protective Servs., 312 S.W.3d 608, 618 (Tex. App.-Houston [1st Dist.] 2009, pet. denied). We strictly scrutinize termination proceedings on appeal because "the evidence in support of termination must be clear and convincing before a court may involuntarily terminate a parent's rights." Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985) (citing Santosky, 455 U.S. at 747-48); see In re J.F.C., 96 S.W.3d 256, 263-64 (Tex. 2002). "'Clear and convincing evidence' means the measure or degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established." Tex. Fam. Code § 101.007.

         In conducting a legal sufficiency review, we view "the evidence in the light most favorable to the judgment," which means that we "must assume that the factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could do so." J.F.C., 96 S.W.3d at 266. A reviewing court may not disregard undisputed facts that do not support the finding, but it "should disregard all evidence that a reasonable factfinder could have disbelieved or found to have been incredible." Id. Evidence is legally sufficient when it enables a factfinder to "reasonably form a firm belief or ...


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