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In re A.J.S.

Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg

August 1, 2019

IN THE INTEREST OF A.J.S., A CHILD

          On appeal from the County Court at Law No. 5 of Nueces County, Texas.

          Before Chief Justice Contreras and Justices Benavides and Longoria

          MEMORANDUM OPINION

          GINA M. BENAVIDES, JUSTICE

         By two issues, appellant C.S. challenges the termination of her parental rights to A.J.S.[1] See Tex. Fam. Code Ann. § 161.001(b)(1)(D), (E), (F), (M), (O), (P). Mother argues that the evidence is insufficient to support the trial court's findings on any of the enumerated grounds and is also insufficient to support a finding that termination was in the best interest of A.J.S. We affirm.

         I. Background

         In June 2017, the Department of Family and Protective Services (the Department) filed an original petition for temporary conservatorship of A.J.S., for removal on multiple grounds, and to terminate both parent's rights.[2] See id. § 161.001(b)(1) (A)-(G), (I)-(K), (M)-(S).

         A. Removal of A.J.S.

         The affidavit in support of the petition advised the court that on June 15, 2017, the Department located A.J.S. in the care of a man, later determined to be a registered sex offender, and a woman, both of whom appeared under the influence of drugs or alcohol. A.J.S. had been left in their care by Mother. They did not know Mother's whereabouts and the Department was not able to reach Mother by telephone. The affidavit also recited the details of the Department's investigation and Mother's history with the Department.

         The Department provided services to Mother and her boyfriend M.P. since before February 2017. During February and March 2017, the caseworker was not able to contact Mother despite multiple attempts. On April 1, 2017, the caseworker contacted Mother who explained that she stopped cooperating with the Department because she felt threatened by the Department's investigator. Mother and M.P. agreed to continue to follow the current plan until they could appear before the judge. There was a safety plan that precluded M.P. from having contact with A.J.S. Mother and M.P. were known to use drugs and were minimally cooperative with the Department.

         There was a hearing on April 6, 2017. Mother, who was not present due to illness, was ordered to participate in individual and family counseling, parenting classes, and random drug testing.

         On May 9, 2017, the caseworker contacted Mother who stated that she was back on some of her mental health medications but needed to follow up with her doctor before getting the remaining medications.

         On June 14, 2017, a caseworker assistant contacted R.S., Mother's cousin, at his home. Mother lived with R.S. until three weeks earlier when she moved out with A.J.S. and R.S. had not heard from her since. Before Mother moved, she took A.J.S. to visit M.P. regularly and tried to bring M.P. to R.S.'s house. However, R.S. enforced the safety plan that prevented M.P. from being around A.J.S., and Mother did not like that. According to R.S., when Mother left she was sweaty and did not look well, as if she was using drugs. The caseworker assistant telephoned Mother, but the call went straight to voicemail. The Department caseworkers checked with Mother's friends who denied that she was at their house, although they admitted that Mother and M.P. had been together around A.J.S.[3]

         On June 15, 2017, one of Mother's friends telephoned the case worker and reported that she had A.J.S. Before the caseworker could arrive, Mother and M.P. picked up A.J.S., and left on foot. A few hours later, when the caseworker and police came back, A.J.S. was there but Mother and M.P. were gone. A background check on the friends revealed that the couple had a history with the Department which had removed their children.

         Mother's history with the Department began in 2005 when a report was filed alleging that Mother was neglecting a different child, A.B. Mother was homeless, diagnosed with bipolar disorder and OCD, and was also using drugs. Because the Department could not find Mother, it was not able to act on the report. In May 2006, the Department received another referral alleging neglect of A.B. Mother was inconsistent with visitation and only minimally participated in services.

         In July 2008, the Department received another referral alleging physical abuse of A.B. and another child, S.M. Mother and her boyfriend were allegedly hitting the children and using drugs while caring for the children. Mother tested positive for cocaine and the boyfriend was arrested for possession of a controlled substance. Mother completed parenting classes but did not make any progress in counseling and did not attend out-patient drug treatment. In March 2009, S.M. and A.B. were transferred to the temporary custody of the Department. Mother's parental rights to S.M. and A.B. were terminated in March 2010. A.B. and S.M. were adopted by their maternal grandmother, S.S.

         In November 2016, the Department received a referral alleging physical abuse and neglectful supervision of A.J.S. The referral alleged that Mother allowed M.P. to be the primary caretaker for A.J.S. while Mother was working. M.P. tested positive for methamphetamine and had a history of mental health issues. Initially Mother was cooperative but disappeared when the Department requested hair follicle testing.

         Mother has a low-level criminal history that includes two felony convictions on January 9, 2009, for drug related offenses.

         A.J.S. was placed in foster care after her removal on June 6, 2017. An adversary hearing was held on June 29, 2017. The trial court ordered Mother to comply with the service plan, to participate in two weekly visitations with A.J.S., and also ordered hair and urinalysis testing for both Mother and M.P.

         B. Interim Court Proceedings

         A progress report to the trial court dated July 31, 2017 stated that A.J.S. was eleven months old and the service plan was directed to family reunification. Under the service plan, Mother was to maintain contact with the Department, complete a psychosocial assessment, complete parenting classes, successfully complete alcohol and drug assessment, have two weekly supervised visits with A.J.S., and comply with random drug testing. M.P. had similar requirements. At the time of the status report, Mother had not maintained consistent contact with the Department, although she had completed her psychosocial assessment and was attending individual and family counseling with M.P. Mother attended parenting classes and the Department was expecting to receive a certificate of completion. Mother's attendance at visitation was inconsistent and she often did not confirm that she would attend. Random drug testing was pending because Mother did not have a telephone.

         The trial court prepared a status hearing order after the August 14, 2017 hearing that maintained the status quo. Family reunification was still the Department's goal.

         According to a status report filed by the Department on October 13, 2017, Mother had completed six out of the required thirty-six hours of substance abuse group classes and four of the sixteen recommended individual counseling hours. M.P. had attended only two of the thirty-six group hours and five of the recommended sixteen individual counseling hours. Mother was not employed and needed one more hour to complete her general mental health counseling. Neither Mother nor M.P. had complied with the order for hair and urine drug testing. Mother was not consistent with visitation with A.J.S. The Department recommended that visitation be cancelled until after Mother complied with the hair and urine drug testing.

         On October 12, 2017, the trial court held a status hearing. In its order filed February 5, 2018, the trial court found that Mother is not "willing and able to provide [A.J.S.] with a safe environment, and therefore return of the child to a parent . . . is not in the child's best interest. The child continues to need substitute care and the child's current placement is appropriate for the child's needs." The trial court ordered hair follicle and urinalysis drug testing on October 12, 2017 before visitation resumed.

         The Department filed a permanency report with the trial court on December 13, 2017, six months after A.J.S. was removed. A.J.S. was one year old and in foster care. Mother did not have stable housing but had completed her individual and family counseling and attended parenting classes. Mother still did not consistently confirm visits with the Department. The permanency goal had changed to unrelated adoption with reunification ruled out "as [Mother] has not been compliant with the Department and has not shown a life style change; [Mother] has not maintained a stable home, is not consistent with her visitations and substance abuse counseling." According to the permanency report, A.J.S was healthy and happy in her placement with no medical concerns and no medication prescribed. Although Mother had made progress, she had not completed her substance abuse counseling six months after A.J.S. was removed. She last attended individual counseling on November 6, 2017, and last attended group counseling on November 4, 2017. Mother was hospitalized in late November for at least four days. Mother also missed three out of seven scheduled visitations between October 12, 2017, and November 27, 2017.

         Mother tested positive for methamphetamine on the hair follicle test on June 16, 2017, but her urinalysis was negative. On October 13, 2017, her hair follicle test was positive for amphetamines, but the levels were much lower.

         M.P.'s June 16, 2017 hair follicle test was positive for amphetamine. His hair follicle test for October 13, 2017 was also positive for amphetamine and methamphetamine.

         The trial court held an initial permanency hearing on December 13, 2017. The trial court found that Mother "has not demonstrated adequate and appropriate compliance with the service plan." The trial court further found that the "Department has made reasonable efforts, as identified in its service plans and or Permanency Progress Reports, to finalize the permanency plan that is in effect for each child."

         On February 15, 2018, the trial court held a conservatorship hearing at which it modified Mother's visitation to permit unsupervised visitation for two hours, ...


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