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In re B.G.G.

Court of Appeals of Texas, Fourteenth District

June 20, 2019

IN THE INTEREST OF B.G.G., A/K/A A.G., AND J.J.G., A/K/A J.G., CHILDREN

          On Appeal from the 309th District Court Harris County, Texas Trial Court Cause No. 2017-60051

          Panel consists of Justices Christopher, Bourliot, and Zimmerer.

          MEMORANDUM OPINION

          JERRY ZIMMERER JUSTICE.

         This accelerated appeal arises from a final decree in a suit in which termination of the parent-child relationship was at issue. Tex. Fam. Code Ann. § 109.002(a-1). The children are Josh and Ana.[1] The appellant is their mother (B.N.G.). The trial court terminated Mother's parental rights to both children. The court appointed joint permanent managing conservators for Josh: his father, Michael; his paternal grandparents (Michael's Parents); and the Texas Department of Family and Protective Services (the Department). The court appointed the Department as Ana's sole permanent managing conservator. On appeal, Mother contends (1) the trial court abused its discretion in denying her oral motion for continuance, and (2) the evidence is legally and factually insufficient to support termination. She does not challenge the conservatorship appointments. We affirm.

         Background

         In early September 2017, Mother, 34 weeks pregnant, arrived at a hospital leaking fluids and experiencing contractions. She tested positive for amphetamine in her urine. Mother needed a C-section, and both she and the fetus risked death if she did not have one at that time. When told she needed a C-section, Mother said she "might as well" kill herself but claimed she was being sarcastic. Less than 10 hours after entering the hospital, Mother left against medical advice despite knowing the risks to both her and her unborn child. Mother's expressed suicidal ideation and the risk she took with her own life led to a referral to the Department alleging neglectful supervision of Josh, then 16 months old and in Mother's care. Mother returned to the hospital later that day without Josh.

         Ana was born the next day. Her meconium tested positive for both amphetamine and methamphetamine. Mother tried to leave with Ana shortly after birth, again against medical advice. The hospital prevented her from taking Ana, but Mother left. The hospital did not know the identity of Ana's father.

         With Mother gone and no known father, the Department filed this lawsuit for protection, conservatorship, and termination with respect to Ana. Following a full adversary hearing, the trial court appointed the Department as Ana's temporary managing conservator. The trial court later signed an order approving the family service plan the Department created for Mother and requiring her to comply with that plan.

         The Department could not locate Josh or Mother until February 2018, when the Department received a referral alleging neglectful supervision by Mother of Josh, then 22 months old. The reporter said Mother was "under the influence of something." Mother allegedly had no food for Josh but instead had given him a gallon of milk. She allegedly was acting erratically, could not say Josh's name, and had urinated on herself.

         The Department sought temporary managing conservatorship of Josh, which the trial court granted, and amended its petition to include a request for protection, conservatorship, and termination regarding Josh. The trial court signed another order approving and requiring Mother to comply with a family service plan regarding Josh.

         Trial

         Trial began on November 12, 2018, some 14 months after the Department was appointed as Ana's temporary managing conservator. The record indicates the trial date for Ana's case had been extended to align with that of Josh's case.

         A. Request for extension of dismissal date or continuance of trial

         Before the introduction of evidence, Mother's counsel made an oral motion to "extend this case," which appears to refer to extension of the 12-month dismissal deadline under section 263.401 of the Family Code. Counsel stated:

[M]y reasons for that would be my client just got a job. She just found a place to live. She's working her services again and she would like to get an opportunity to continue working her services, Judge. If this Court allows her, she would be able to finish her services before the extended dismissal date.

         Alternatively, counsel asked the trial court for a continuance of the trial:

And in the alternative, Judge, I would just ask then for a continuance of the trial date so that my client could have, at least, until January or February to show the Court her progress on her services.

         The Department opposed both requests. Counsel for the unknown father (later appointed as counsel for Michael) said he did not oppose either request. The trial court denied both requests.

         B. Evidence

         Mother, caseworker Tyheshia Gillum, and Michael testified at trial. The parties stipulated to admission of the following exhibits: decrees from previous Department lawsuits involving three of Mother's other children; the Department's investigation report in this case; Mother's family service plans for Josh and Ana; and two orders signed by the trial court. The final exhibit, the results of a DNA test confirming Michael is Josh's father, was admitted into evidence without objection.

         1. Mother

         a. Department history

         Mother gave birth to seven children; Josh and Ana were the sixth and seventh, respectively. The names and ages at trial of her older five children are: (1) Nathan, 15; (2) Alison, 12; (3) Dana, 8; (4) Michelle, 6; and (5) Jennifer, 4. The Department received a referral regarding danger to each child at least once. Mother's parental rights have not been terminated, but she does not have custody of any of her children. Nathan lives with Mother's father; Alison lives with her paternal grandparents; Dana and Michelle live with their paternal grandmother; and Jennifer lives with Michael (who is father to both Jennifer and Josh) and Michael's Parents.

         Mother's history with the Department began when Nathan was one month old. Department records indicate Nathan was reportedly being exposed to a hostile and dangerous home environment due to altercations between Mother and her mother (Grandmother), Mother's drug use, and Mother's lack of parenting skills. The Department ruled out the allegations without explanation but referred the case to Family Based Safety Services (FBSS). FBSS closed the case 11 months later, noting the family was more stable and seemed to be protective of Nathan.

         Just four months later, though, the Department received another referral regarding Nathan. A psychiatrist had reportedly stated both Mother and Grandmother appeared to suffer from mental illness. Mother "displayed bi-polar affect and was hostile." She was said to be "a heavy drug user that is always intoxicated" and "actively uses narcotic pills, marijuana, alcohol, PCP, cocaine, and any drug she can ingest." Grandmother had allegedly relapsed and was using drugs again. Mother was rarely home, the reporter contended, so Grandmother was Nathan's primary caretaker. Nobody else took care of Nathan when Mother and Grandmother were intoxicated. Once again, the allegations were ruled out.

         The next referral came three and a half years later, in July 2008, alleging negligent supervision of Nathan and Alison by Mother, by then "deemed homeless." The reporter cited Mother's anger and worried the children "may be a pawn for [Mother's] anger." The referral stated Mother had bipolar disorder but was not taking her medication. The Department ruled out the allegations of physical abuse and neglect but found reason to believe the allegation of negligent supervision. The case was referred to FBSS. FBSS closed the case in October 2009 because Mother agreed to allow her children to be in her parents' (Grandparents) care.

         In August 2012, a referral to the Department again cited Mother's impaired judgment due to her continued drug abuse and untreated mental illness. The reporter alleged Mother was unable to care for Dana and Michelle. Mother did not communicate with the Department or take a drug test. The Department removed the two girls and was named their temporary managing conservator. Fourteen months later, the girls' paternal grandparents were named their permanent managing conservators. Mother and the girls' father were named possessory conservators entitled to supervised visitation with their daughters.

         The final referral before this case began came in January 2014, when Mother and Jennifer both tested positive for cocaine at Jennifer's birth. The Department removed Jennifer and remained her temporary managing conservator for more than a year. Department records indicate Mother was "uncooperative" with the Department. Joint managing conservatorship of Jennifer was awarded to Michael, Michael's Parents, and Grandparents in February 2015.

         b. Drug abuse

         Age 32 at the time of trial, Mother began using drugs when she was 14. She said she did not know what drugs she used in the beginning. Use quickly progressed to habit. In her words, addiction had been "an ongoing problem for a very long time."

         Mother used drugs during at least three of her pregnancies: Jennifer, Josh, and Ana. As stated above, Mother and Jennifer tested positive for cocaine when Jennifer was born. Mother said she believed she used methamphetamine, amphetamine, cocaine, and marijuana during the early part of her pregnancy with Josh. The record suggests she stopped using drugs once she learned she was pregnant. Mother resumed her drug use at some point. She said she was not sure what drugs she used during her pregnancy with Ana but thought it was only methamphetamine. She acknowledged she tested positive for amphetamine at Ana's birth. Ana was positive for both amphetamine and methamphetamine.

         Mother testified she began drug rehabilitation treatment "a few times"- "maybe three" in the 15 years since Nathan was born. She did not complete any of those rehabilitation programs. She admitted taking methamphetamine, amphetamine, cocaine, and possibly "pills" in 2018. She said she went to a ministry for drug treatment in early March 2018, shortly after Josh was removed, and had been sober since that time. Mother acknowledged she knew the trial court did not accept that ministry as a drug rehabilitation program because its personnel were not licensed to treat drug dependency. One person affiliated with the ministry had earlier testified they could "pray the addiction away." Gillum made clear to Mother the importance of seeking proper treatment for her addiction. Mother testified she left the ministry after five months and did not complete its one-year program.

         c. Service plan

         The Department created a service plan for Mother with many goals, including: accept the responsibility of being a parent, protect Josh and Ana from harm, and provide them with basic necessities. To help her achieve those goals, Mother's service ...


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