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
Appeal from the 314th District Court Harris County, Texas
Trial Court Case No. 2017-05317J
consists of Justices Keyes, Kelly, and Goodman.
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.
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. The father was 29 years old and the
mother was 25 years old at the time of trial.
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
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
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
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.
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.
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
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.
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.
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.
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.
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.
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.
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.
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.
and evidence adduced at termination trial.
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.
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.
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.
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.
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.
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." The father
denied having ever used cocaine. He maintained that his
prescribed medications caused a false positive test result
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.
and concerns about the children.
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 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
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.
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.
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.
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.
children's progress in foster care.
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.
Department and Child Advocates recommendations.
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.
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.
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.
foster parents' desire to adopt all five children.
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."
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.
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
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. §
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.
Sufficiency of the evidence
Standards of review
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.
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.
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