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In re D.S.D.D.

Court of Appeals of Texas, Ninth District, Beaumont

July 11, 2019

IN THE INTEREST OF D.S.D.D.

          Submitted on June 4, 2019

          On Appeal from the 1st District Court Jasper County, Texas Trial Cause No. 36620

          Before Kreger, Horton and Johnson, JJ.

          MEMORANDUM OPINION

          CHARLES KREGER JUSTICE

         This is an appeal from an order terminating the parental rights of D.S. (Mother) to D.S.D.D. (Daniel).[1], [2] In two issues, Mother argues that the evidence was legally and factually insufficient for the trial court to find Mother committed a prohibited act under section 161.001(b)(1)(D) of the Texas Family Code and terminate the parent-child relationship or to show that the termination was in Daniel's best interest. See Tex. Fam. Code Ann. § 161.001(b)(1)(D), 161.001(b)(2) (West 2019). We affirm the judgment of the trial court.

         Background

         Testimony at trial established that Mother and Daniel moved to Texas from Mother's hometown of Omaha, Nebraska, when Daniel was three years old. The Department of Family and Protective Services (the Department) became involved after it received a call from Mother, who "appeared hysterical" and stated that she lived in a hotel room in Jasper, Texas, with her young child. Mother reported that she and Daniel were homeless, and they both had very little to eat for the past two days. According to Department Investigator Kecia Davis, a police officer performed a welfare check on Mother and Daniel the same day.

         The following day, a police officer contacted the Department with another report that Mother "fainted -- or had collapsed" while at a grocery store with Daniel. Davis went to the grocery store and discovered that Daniel was hungry, had on a soiled diaper, and "had no clothes . . . other than . . . a pair of shoes and shorts." Davis testified that no one outside the Department could take possession of Daniel at that time, so the Department removed Daniel and placed him in foster care. Davis testified that when she spoke to Mother later that day, Mother was very upset and became hysterical. Davis expressed concern over the lack of food for the child in the hotel room where Mother and Daniel stayed. Law enforcement gave Mother food vouchers the day before, but Davis was worried that Mother did not have anything to feed Daniel when he became hungry again later.

         Davis testified that the Department previously investigated Mother for neglectful supervision of Daniel. According to Davis, Mother appeared to have mental problems and exhibited other concerning behaviors while traveling around with her three-year-old child. The Department administratively closed its prior case, because Mother was living at a women's shelter and had the necessities to care for herself and her child.

         Tiffany Porter testified that she had been the caseworker on Mother's case for more than a year at the time of trial and stated that she spoke to Mother "at least three or four times a week." While Porter was of the opinion that Mother is "a nice person" and tries to be compliant with the Department, she was concerned that Mother was not employed or financially independent, could not provide a stable home environment for Daniel, and had difficulty prioritizing the safety and welfare of Daniel. Porter explained that during the pendency of the case, Mother moved nine times, was homeless at least twice, and had lived in a shelter and at a hotel. According to Porter, after the Department removed Daniel, Mother told Porter via text message that she had decided to move back to Omaha, Nebraska, because "her family was there," and "she could get more help…finding a job." This greatly troubled Porter because Daniel was in foster care in Texas, and Mother would be unable to have physical visits with him. The move to Nebraska demonstrated Mother's irrational decision-making in that Mother did not clearly consider the effects her choices had on Daniel. Mother failed to prioritize Daniel's needs over her own. Porter testified that while Mother substantially completed her service plan, including parenting classes, Mother did not effectively demonstrate her parenting skills because she resided in another state and could not exercise her physical visitations with Daniel anymore.

         Porter testified that Mother's service plan required her to submit to a psychological examination. The Department admitted a copy of the psychological examination report into evidence. The report showed that Mother had borderline intellectual functioning. Porter testified that although the report noted that Mother is nice and tried to comply with the Department, the psychologist had "significant concerns" about her reunification with Daniel. The report noted that

mother appears to have little capacity and almost no resources to address problem solving/decision making for herself and her child[.] . . . [Mother] takes little responsibility for her child's emotional and psychological state, and believes she is more of a victim in the situation. Her low cognition also limits her ability to appreciate all aspects of appropriate childrearing, sustaining critical communal relationships, and having a stable, functional lifestyle.

         The psychologist also found that Mother failed to adequately meet the medical, emotional, or welfare needs of her child. The report recommended that Daniel remain in foster care, because Mother is "unable to show that she is a socially competent, financially independent, mature adult who is able to prioritize the welfare and safety of her child in all areas long-term." Porter stated that the report caused her concern for the safety of Daniel because "after the interview with a licensed physician, [Mother] wasn't able to show to [the licensed physician] that she had the mental capacity or [was] financially able to care [for] a child unless she had another adult supervising her."

         Porter testified that although Mother cooperated with the Department, there were several unexplained inconsistencies in the statements or actions of Mother that worried the Department. Porter testified that Mother told her that she worked at Wal-Mart in Nebraska, but they cut her hours due to the government shutdown. When Porter questioned Mother about why her hours would be cut due to the government shutdown, ...


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