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In re L.C.L.

Court of Appeals of Texas, Fourteenth District

July 16, 2019

IN THE INTEREST OF L.C.L. AND M.E.M., CHILDREN

          On Appeal from the 315th District Court Harris County, Texas Trial Court Cause No. 2016-03785J

          Panel consists of Justices Wise, Jewell, and Hassan (Hassan, J., dissenting opinion to follow).

          MEMORANDUM OPINION

          Ken Wise Justice.

         Appellant F.L. ("Mother") appeals the trial court's final decree terminating her parental rights with respect to her children L.C.L. ("Lorenzo") and M.E.M. ("Melissa").[1] The trial court terminated Mother's parental rights on predicate grounds of endangerment and failure to comply with the service plan for reunification. See generally Tex. Fam. Code Ann. § 161.001(b)(1)(D), (E), and (O). The trial court further found that termination of Mother's rights was in the children's best interest. See Tex. Fam. Code Ann. § 161.001(b)(2). In six issues, Mother contends (1) the trial court erred in failing to file findings of fact and conclusions of law; (2) the trial court violated Mother's equal protection rights under the Texas and United States constitutions; (3) the trial court erred in admitting evidence in violation of the Texas and United States constitutions; and (4) the evidence is legally and factually insufficient to support the trial court's findings of endangerment, failure to follow a family service plan, and that termination is in the best interest of the children. We affirm.

         Background

         I. Pretrial Proceedings

         A. Pretrial Removal Affidavit

         On March 22, 2016, the Department received a referral alleging neglectful supervision of Lorenzo, Melissa, and their older sister A.M. ("Andrea"). The report stated that all three children were found home alone. Electricity to the home had been inoperable for three days. None of the children knew where Mother was. The referral noted that Mother "sleeps all day" and had been absent from the home overnight at least twice. The report further noted that "there is food all over the floor and by the front door." The children were described as "very skinny." At the time of the removal Andrea was fifteen years old, Lorenzo was five, and Melissa was four.

         Over the course of a three-month investigation Mother and the children moved. When the investigator located the family, Mother reported that she was from Honduras and had lived in the United States for five years. Mother had five children, the three who lived with her, and two others who lived in Honduras. Mother submitted to a drug screening at the Department's request. Urine analysis was negative for all substances. A hair follicle analysis was positive for cocaine.

         The investigator met Mother at her home and explained that due to the positive drug test Mother would need to place the children outside the home. The investigator provided Mother with a child caregiver resource form to be filled out with names of potential caregivers. Mother never completed the form for possible placement options.

         B. Department History

         One year earlier, on January 17, 2015, the Department received a referral that the three children had been left home unsupervised while Mother was at work. The family was living in a trailer with a front door that could not be secured. The trailer had no running water. The case was closed with a disposition of "ruled out."

         Four months after the first referral, on April 24, 2015, the Department received a referral in which Andrea stated that she did not want to return home to Mother. It was reported that Mother was abusive toward the children and had withdrawn Lorenzo from school because "they have threatened to take her to truancy court." It was also reported that Mother had threatened to take the younger children to Honduras to live with Melissa's father, who was described as a "known drug addict." It was also reported that Mother frequented clubs and may have been working as a prostitute. A concern was noted about domestic violence "with the mother's husband who lives in McAllen."

         C. Criminal History

         Five years before the referral in the current case, in 2011, Mother was convicted of misdemeanor driving while intoxicated and received nine months' probation.

         The Department requested emergency custody due to Mother's positive drug test and leaving the children alone.

          D. Family Service Plan

         The Department was named temporary managing conservator and a family service plan was put in place with the goal of returning the children to Mother. The trial court incorporated the plan into an order of the court and required Mother to:

• Complete a psychosocial assessment conducted by the Children's Crisis Care Center and follow all recommendations made by the evaluator;
• Provide her caseworker with a signed release of confidential information;
• Attend, actively participate in, and successfully complete six- to eight-week parenting classes with Parenting Partnership;
• Participate in domestic violence classes through Aid to Victims of Domestic Abuse and present certificate of completion to the caseworker no later than 30 days from the last class;
• Demonstrate an understanding of the adverse effects of substance abuse on herself and her children;
• After referral by the caseworker for substance abuse services, Mother is responsible for completing a substance-abuse assessment and completing all recommendations;
• Complete random urine drug tests throughout the duration of the case;
• Maintain suitable housing that is clean, stable, and free from safety hazards for a period of six consecutive months;
• Address and work on a realistic education and/or job skill plan, budget and future plans to care and protect her children;
• Actively participate in all permanency conferences, court hearings, family visits and activities that are centered for her children;
• Visit her children at the Department office twice per month; and
• Abstain from engaging in criminal conduct.

         E. Abandonment of Termination Petition for Andrea

         While the case was pending the trial court signed a partial nonsuit reflecting the Department's abandonment of its termination grounds as to Andrea. Testimony at trial reflected that Andrea was the respondent in a parental termination case for her own child. Trial proceeded on Mother's rights to Melissa and Lorenzo.

         II. Trial

         Victoria Palmer, the caseworker, testified that the children were placed in foster care that was meeting their physical and emotional needs. The foster family was willing to adopt the children.

         Palmer testified that of the services Mother was required to complete she completed a substance abuse assessment, a psychosocial evaluation, and parenting classes. Mother was "very infrequent" with drug testing and failed to submit to several tests. Mother did not maintain stable housing or stable employment. Mother did not attend domestic violence classes or complete the recommendations from her psychosocial evaluation. The recommendations from the psychosocial evaluation included individual therapy. The recommendations from the substance-abuse assessment included individual and group substance-abuse counseling. Despite the Department's efforts to arrange service providers, Mother did not attend individual therapy or substance-abuse counseling.

         Mother's drug screening results were admitted into evidence without objection. Those results showed positive results for cocaine in the hair follicle on May 26, 2016, October 21, 2016, November 4, 2016, November 2, 2017, November 8, 2017, and February 9, 2018. Due to Mother's continued positive drug test results Mother was unable to provide the children with a safe and stable environment. Therefore, the Department stopped permitting visits with the children in May 2018. Palmer testified that Mother's drug use and failure to provide a safe environment endangered the children's physical health and safety.

         In testifying to Mother's positive drug tests Palmer noted that the amounts registered in Mother's hair fluctuated. The tests did not show a decline in use over the two-year period the case was pending. To Palmer's knowledge, Mother had not attended substance-abuse treatment. Palmer spoke with Mother about the importance of completing the family service plan. Palmer attempted to visit Mother at the address Mother provided but Mother was never available when Palmer visited.

         At the time the children were removed Lorenzo was six years old but was not enrolled in school. As a result, Lorenzo had to repeat first grade twice. Palmer testified that at the time of trial both children were in a home that met all of their needs and both children had expressed desires to stay in the foster home and to be adopted by the foster parents.

         Mother expressed to her attorney that she did not want to testify. Mother rested after the Department's last witness. However, counsel for Melissa's alleged father called Mother to testify.

         On cross-examination Mother testified that she had not used cocaine for five to six months before trial. Despite claiming she had not used cocaine since May 2018, Mother admitted that she did not appear for requested drug tests in June, July, August, or September of 2018, the four months immediately before trial. Mother was aware that a refusal to appear for a drug test would be considered a positive result. Mother had tested positive for cocaine at the May 2018 test. Despite positive drug tests in March and April 2018 Mother denied using cocaine. Mother admitted using cocaine once per month, sometimes once every two months.

         As excuses for not completing the services in the family service plan Mother testified that she did not fully understand the services that were required. Mother said she sought clarification from the caseworker, but the caseworker did not respond to her messages. Mother further did not understand when she appeared at court hearings what services she was being asked to complete. Mother did not visit her children due to transportation and work issues.

         Mother testified that she had been living in the same apartment for approximately ten months. Mother was working for a shipping company making about $2, 000 per month. Mother was attending school to obtain her General Equivalency Diploma. Mother ...


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