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In re E.C.A.

Court of Appeals of Texas, First District

June 27, 2019


          On Appeal from the 314th District Court Harris County, Texas Trial Court Case No. 2016-01847J

          Panel consists of Chief Justice Radack and Justices Higley and Hightower.



         In this accelerated appeal, appellant, J.I.A. ("Mother"), challenges the trial court's decree terminating her parental rights to her minor children, E.C.A. and A.A.G. In one issue, Mother argues that the evidence is legally and factually insufficient to support the finding that termination of her parental rights was in the best interest of her children under Texas Family Code section 161.001(b)(2).

         We affirm.


         In 2017, the trial court terminated Mother's parental rights to her children, E.C.A. and A.A.G. Mother appealed to this Court, and, on December 28, 2017, we held that the evidence supported the predicate finding, but the evidence was factually insufficient to support the finding that termination of Mother's parental rights was in the best interests of her children. See In the Interest of E.C.A. and A.A.G., No. 01-17-00623-CV, 2017 WL 6759198, at *13 (Tex. App.-Houston [1st Dist.] Dec. 28, 2017, no pet.) (mem. op.). We reversed the portion of the judgment that terminated Mother's parental rights, affirmed the remainder of the judgment, and remanded the case for a new trial. See id. at *14.

         After remand, the Department of Family and Protective Services ("DFPS") sought again to terminate Mother's parental rights. At the second trial, the trial court admitted DFPS's removal affidavit which stated,

On 5/23/2015, [DFPS] received a referral involving [Mother] and her two sons, [A.G.] and [E.C.A.]. The referral indicated a concern that the children have been physically neglected by the mother. It was reported that the children appeared "pale and weak." The children had red, peeling rashes upon their arms and legs. Both children had diaper rashes because [Mother] left them in the same diapers all day. The rashes upon the arms and legs of the children were suspected to have been caused by bed bugs. The children were not believed to be showing visible signs of malnutrition and or starvation, and have no apparent injuries. It is reported that the mother only feeds the children milk and fruit punch and sometimes the milk is old. The home was unclean, it smells like urine, and the couch is allegedly soaked in urine. The children walked around the home barefoot, and had black feet. The mother left blunts rolled from synthetic marijuana within reach of the children. The mother was believed to be under the influence of synthetic marijuana while caring for the children, but it is unknown if she used [it] in the presence of the children.

         Second Trial-October 9, 2018

         At the retrial, four witnesses testified: Brittany Johnson, the CPS caseworker; Sara Strom, the CASA Volunteer assigned by Child Advocates; Bruce Jefferies, an employee of National Screening Center; and Mother.

         Brittany Johnson's Testimony

         Johnson testified that the case against Mother started after they received a call on May 23, 2015, alleging neglectful supervision, drug usage, and neglectful care of the children. Johnson agreed that the call indicated the home was dirty and smelled of urine, the children had diaper rash, the children were walking around barefoot with black feet, and Mother had blunts in her home. Johnson agreed that when DFPS interviewed Mother, she admitted to synthetic marijuana use. After the children were put in a parent-child safety placement, DFPS asked Mother to get drug tested but Mother would not go. Johnson recalled that one child was placed with the paternal grandparents, but after discovering that the paternal grandparents allowed Mother and Father[1] to live in the home when they were not supposed to and because they allowed some domestic violence between the two parents, DFPS removed the child and placed the child with the maternal grandparent. Johnson testified that because Mother was not making progress on family reunification, DFPS filed this case. Johnson agreed that Mother tested positive for drugs on May 17, 2016. Johnson also agreed that Mother did not complete her family service plan when the case was tried the first time because "[s]he had failed to complete individual counseling and to maintain visiting with the children per our family plan of service for her remaining contact."

         Johnson testified that the children have been in the current foster home since January 2018, the adoptive foster placement is meeting all of the children's physical and emotional needs, and the new foster home is willing to adopt all of the children.[2]Johnson testified that it is in the children's best interest to stay in the placement that they are in because it is "safe, it's stable and they are free of any harm of physical abuse."

         Johnson has become aware that Mother is having contact with one of the child's fathers whose parental rights were terminated after the first trial in 2017. She agreed that Father has a long criminal history and a retaliation charge against Mother due to hitting Mother several times on September 21, 2018. Johnson agreed that Mother bringing Father back into her life when he has no interest in the children is a "major concern." Johnson identified a picture from Facebook that depicted Mother and Father sharing a kiss in September 2018. Johnson testified that the picture occurred 10 days before Father picked up a "retaliation charge" for hitting Mother. Johnson agreed that Father appearing in social media with Mother in the last month shows that he is still hanging around and that he is a danger to the children and to the Mother. Johnson agreed that Mother has bad judgment and an inability to properly protect the children by letting Father back into her life after assaulting her again.

         Johnson further agreed that after the first trial, she required Mother to take a psychosocial evaluation, but that Mother had not done it yet because Mother

[R]everted back to her original ways, by saying she wasn't getting the phone calls or the messages that were left for her to schedule the appointments. So I took it upon myself to contact them and make-and give her the number as well to contact them and tell them both to follow up with me. While I did that, she was able to schedule an appointment, which was September the 20th, and that's when the issue with the psychosocial and the substance abuse assessment happens where it was ended.

         Johnson agreed that Mother was required to complete a drug and alcohol evaluation too but that it ended because Mother "was not truthful about her past or current drug abuse."

         On cross-examination, Johnson admitted that since the last trial, Mother completed the family service plan. Johnson also testified that DFPS put Mother on another parenting plan that started in August 2018. When asked if Mother had been cooperating and doing what was requested, Johnson answered, "Somewhat, yes." Johnson stated that Mother had not completed her psychosocial evaluation and that her drug assessment was started but it ended in the middle of the session because Mother was being untruthful. Johnson agreed that Mother asked for visits with her children and that Mother has had visits with her children, twice a month. Mother had arrived to all of the visits except one and all of the visits had gone well except for one visit where Mother was not able to control the children and Mother "wanted assistance with parenting. She wanted someone to step in and say-and tell the boys to, you know, calm down or redirect the children instead of her doing so." Johnson agreed that the children were acting typical of young boys when they were wrestling, running around, and jumping and that Mother was trying to "recuperate the children" by asking for visitation and to be placed back on a parenting plan. Johnson recalled that Mother was supposed to have supervised visitation but that she had unsupervised visitation from January to May 2017. During these times of unsupervised visitation, Johnson agreed that the children were not abused.

         Johnson also recalled a previous incident that occurred before the termination. Johnson testified that Mother got into a physical altercation with a 15-year-old pregnant teenager, who was apparently Father's girlfriend. Johnson testified that Mother was charged but that she only received a citation for the altercation. Johnson agreed that Mother was pregnant when she tested positive for cocaine in May 2016, but after her daughter was born and Mother was tested again, she did not test positive.

         Johnson stated that she has seen Mother's home on two occasions and she described it as clean. Johnson agreed that Mother followed the recommendation of DFPS when she got an apartment by herself and that she has kept gainful employment at a tax preparation business. Johnson agreed that Mother's work and home situation is stable.

         Johnson agreed that Father has not caused any danger to the children, but he has caused danger to Mother. Johnson explained that she did not think it was in the best interest of the children to have Mother in their lives because "she has not shown the ability to parent." Johnson disagreed that Mother was working and doing everything that has been requested by DFPS because Mother did not separate from Father even though she agreed to do so.

         Sara Strom's Testimony

         Sara Strom testified that she is familiar with Mother and the children because she has been on the case since the beginning. Strom believes the current placement is "stable, good for the children and could bring [an] excellent future for them." Strom described Mother's current home as a "one room apartment with full bedroom." She did not observe Father at the apartment but she said CPS did. Strom testified that Child Advocates believes that Mother's parental rights should be terminated because "the mother has shown not good-to keep ahead of her own interest. And she had be[en] in touch with the father. She's talking about the father as the man that she loves. And that the father wants to be the father of her children." Strom agreed that Mother has allowed Father back into her life.

         On cross-examination, Strom agreed that Mother's home was decent. When asked how Father harmed the children, Strom replied that he has harmed the children by being in jail and he is not a part of the children's life, he has never paid child support, and he is abusing the children's Mother.

         Bruce Jefferies's Testimony

         Jefferies testified that Mother tested positive for cocaine in May 2016 and tested positive a second time on July 31, 2018 for cocaine and exposure to marijuana. Jefferies explained that Mother's testing revealed that she was "getting closer to a level that might indicate weekend usage." Jefferies also explained that her marijuana testing indicated "that she was around someone quite often, cause it's a very high level of exposure. Her hair was saturated with marijuana smoke."

         On cross-examination, Jefferies confirmed that Mother did not consume marijuana but she was exposed to it. He also clarified that weekend usage means a once-a-week user. Jefferies also admitted that they had a test taken on January 11 and the result was negative. Jefferies agreed that Mother did not test positive [for cocaine] for about two years and one month before the positive result on July 31, 2018. Jefferies admitted that Mother had 41 negative test results.

         Mother's ...

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