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C. G. v. Texas Department of Family and Protective Services

Court of Appeals of Texas, Third District, Austin

July 26, 2019

C. G. and B. E., Appellants
v.
Texas Department of Family and Protective Services, Appellee

          Before Justices Goodwin, Baker, and Triana

          FROM THE 274TH DISTRICT COURT OF COMAL COUNTY NO. C2015-0540C, THE HONORABLE DIB WALDRIP, JUDGE PRESIDING

          MEMORANDUM OPINION

          Thomas J. Baker, Justice

         B.E. ("Beth")[1] appeals the trial court's decree terminating her parental rights to her four children who, at time of trial, were ages eight ("Jason"), seven ("Edwin"), five ("Alan"), and four ("Zoe"). C.G. ("Chad") appeals the trial court's decree terminating his parental rights to Alan and Zoe.[2] Beth contends that the evidence is legally and factually insufficient to support the trial court's finding that termination of her parental rights was in the best interest of her four children. Chad contends that the evidence is legally and factually insufficient to support the trial court's finding that he committed a statutory ground for termination of his parental rights to his two children. We will affirm the termination decree.

         BACKGROUND

         The Department of Family and Protective Services ("the Department") filed a "Petition to Modify Parent-Child Relationship in Suit Affecting the Parent-Child Relationship" November 13, 2017, seeking to terminate the rights of Beth to her four children and Chad to his two children after denial of a prior petition to terminate.

         This case followed a suit filed April 8, 2015, which ended without termination November 28, 2016. The Department was appointed sole managing conservator. Beth was appointed possessory conservator of her four children, and Chad was also appointed possessory conservator of his two children (Alan and Zoe). The prior final possession orders provided as to the two younger children (Alan and Zoe) that each parent would have visitation and access "upon mutual agreement" and "failing mutual agreement . . . once per month, for up to two hours each visit, at a location in the county of the placement's residence." Beth's visitation regarding her two older children (Jason and Edwin) was to be as mutually agreed and failing such agreement once per month for up to two hours each visit in a therapeutic setting at the office of the children's therapist.

         This case was called for bench trial December 17, 2018, at which the Department called eight witnesses and introduced several exhibits in support of its termination case. Beth appeared with her attorney; Chad did not appear and defaulted. In its opening statement, the Department asked for termination of the parents' rights under subsection 161.001(b)(1)(N) of the Texas Family Code, which requires the Department to prove its permanent or temporary conservatorship of the children for more than six months and to prove that the parents have constructively abandoned the children. See Tex. Fam. Code § 161.001(b)(1)(N).

         Madeline Crain-Hewett, a licensed professional counselor, testified as therapist for Beth's two older children whom she treated for trauma and abuse every other week for approximately two years, having last seen them in August 2017 and discharged them successfully from therapy. Crain-Hewett remained in the case past the children's discharge to "supervise visitation or hold therapeutic visitation" for Beth.

         Crain-Hewett testified that Beth had two visits January 30, 2017, and April 10, 2018, but for over 24 months, nine "appointments" had been scheduled by texting or emailing, out of which Beth attended two and cancelled seven. Beth made no contact with Crain-Hewett for 12 of those months. Of the two visits that occurred, Crain-Hewitt stated that the children were "slow to warm" as one would anticipate with an "unfamiliar relative." Crain-Hewett testified that "their relationship seemed neutral," and "you could tell the attachment had been greatly diminished." For the other visit, Beth arrived 38 minutes late to a 60-minute visit, Crain-Hewitt recalled. Crain-Hewitt did not believe the children would benefit from continued contact with Beth, and they were more bonded in their placement whom they recognized as their maternal figure.

         The Department called Molly Hobbs, the Department's caseworker for this case after October 2017. Hobbs testified that the Department's concerns were "substance abuse, neglectful supervision, not showing up for visits, continuous drug use." Hobbs stated that Beth has shown her no proof of a safe, stable home, a driver's license, a high school diploma or GED, creating a bank account where she is depositing funds in lieu of paying court-ordered support, or working any services on her own. She stated Beth had submitted to only three drug tests despite being asked to take sixteen tests. The last drug test was taken in May 2018. Hobbs testified that Beth had made eight out of 23 visits for her two children not in therapeutic setting and out of the eight visits, Beth appeared 1 to 1 ½ hours late for five. Hobbs observed Beth "is very quiet with the children. . . . She's very standoffish. . . . The children are quiet with her. There's definitely a lack in the bond."

         Hobbs stated that Chad attended eight of 23 two-hour scheduled visits, and many times he would leave the visits for an hour to get the children food, and upon returning sometimes he would fall asleep. Hobbs testified that she had attempted drug testing of Chad monthly, but he drug-tested only one time. Regarding attempts to do home visits with Chad, Hobbs stated that he would not let her into his home. She testified that communications with Chad were "sporadic," and he used obscenities to her and threatened to kill her twice. Hobbs said that background checks showed Chad had marijuana possession arrests November 17, December 2 (2017), and July 3 (2018), and in the last arrest he was arrested with a scale and large amounts of cash, indicating "selling drugs."

         The trial court admitted into evidence the following three official records regarding Chad: a 2009 judgment of conviction for a third-degree felony for possessing fifteen pounds of marijuana in a drug-free zone; a 2018 judgment of conviction for a misdemeanor offense for possession of marijuana; and a 2018 information for a misdemeanor offense for possession of marijuana.

         Hobbs testified that the children refer to their foster parents as "mom" and "dad" and "they're very bonded," "well taken care of," and "they're happy." Asked if she had any concerns about the children's foster care placement, Hobbs answered that she had no concerns with the foster parents' ability to meet the children's emotional and physical needs. Hobbs, noting that the children had been in the "system" for three and one-half years, stated they need to be adopted and out of the system. Hobbs testified the parents had shown no change for the better since her time in the case.

         The Department called Chad's community supervision officer who testified that Chad had tested positive for marijuana and hydrocodone while on supervision. Asked whether Chad had treatment or any supervision appointments that would have prevented his appearing at the trial, the officer said no.

         In her testimony, Beth testified to the following:

• she believed she had seen her two older children twice since January 2017 but could not remember how many times she had seen her two younger children,
• she could not say whether she had visited her children at all from February 2017 through September 2017,
• she lived with Chad for about five ...

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