Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg
appeal from the County Court at Law No. 5 of Nueces County,
Chief Justice Contreras and Justices Benavides and Longoria
M. BENAVIDES, JUSTICE
issues, appellant C.S. challenges the termination of her
parental rights to A.J.S. 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.
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. See id.
§ 161.001(b)(1) (A)-(G), (I)-(K), (M)-(S).
Removal of A.J.S.
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.
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.
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
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
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
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
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.
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
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
has a low-level criminal history that includes two felony
convictions on January 9, 2009, for drug related offenses.
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.
Interim Court Proceedings
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.
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.
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.
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
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.
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.
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.
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
February 15, 2018, the trial court held a conservatorship
hearing at which it modified Mother's visitation to
permit unsupervised visitation for two hours, ...