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In re M.F.

Court of Appeals of Texas, Fifth District, Dallas

August 2, 2019

IN THE INTEREST OF M.F. AND L.B., CHILDREN

          On Appeal from the 354th Judicial District Court Hunt County, Texas Trial Court Cause No. 85, 906

          Before Justices Myers, Osborne, and Nowell

          MEMORANDUM OPINION

          ERIN A. NOWELL JUSTICE

         This is an appeal from an order terminating the parental rights of Mother to her children, M.F. and L.B. Mother argues the evidence at trial was legally and factually insufficient to support a finding that termination of her parental rights was in the best interest of the children. We affirm the trial court's judgment.

         Background

         Mother is the mother of both children. Father is Mother's ex-husband and the biological father of M.F. The trial court terminated the parental rights of L.B.'s biological father, but he does not appeal that order. M.F. was eleven years old and L.B. was six years old at the time of trial.

         The Texas Department of Family and Protective Services (Department) filed the petition for protection of a child on March 26, 2018. Based on the affidavit filed in support of the petition, the Department alleged there was a continuing danger to the physical health or safety of the children if returned to the parents. The affidavit indicates the children were living with their maternal great grandmother because it was not safe at Mother's house. M.F. reported that people use drugs and steal things at Mother's house. M.F. claimed that Mother threw him across the room while she was on drugs. M.F. later denied ever saying anyone abused him. However, he stated in his forensic interview that he does not live with Mother because she is addicted to drugs, and he feels unsafe with his mother. After further investigation and contact with Mother, the Department removed the children on March 22, 2018.

         One of the documents admitted at trial is the family service plan. It indicates the Department and the maternal grandparents were concerned that Mother will continue using illegal drugs and alcohol and will be unable to look after the children properly, the children could have access to the illegal drugs and alcohol in the home, and Mother will "yell at or physically harm (or chase the children with a bat) the children or other family members resulting in the children becoming hurt or killed." The plan states the Department is concerned that Mother has unaddressed mental health issues and times of instability which could lead to the children's needs going unmet or to their injury or death. The plan also states that Mother told investigators she did nothing wrong and did not agree to work on services.

         The service plan for reunification of Mother and the children required her to refrain from using drugs and alcohol, submit to random drug testing, submit to and follow the recommendations of a drug assessment, attend NA/AA meetings at least three hours a week, complete outpatient drug treatment classes, and prepare a written relapse plan upon completion of all drug and alcohol services. Mother was also required to complete and follow the recommendations of psychological and psychosocial assessments. She was required to complete individual counseling sessions to address the specific issues that led to the removal of the children. Other services required of Mother were parenting classes, domestic violence counseling, and anger management classes. Mother was required to maintain steady employment and safe, stable, and appropriate housing. The plan required Mother to provide proof of successful completion of these services to the Department. It also required Mother to attend all scheduled visits with the children, but provided that visits would be suspended in the event of a positive drug test until the parent provided a negative hair follicle drug test more than thirty days after the failed test.

         The trial court's temporary orders added the requirement for Mother to complete a ninety-day inpatient drug treatment program and a Batterer's Intervention and Prevention Program and submit proof of completion of the programs to the Department. The temporary orders also prohibited Mother from communicating directly, in person, by phone, email, text, or social media with Father and his wife.

         The case proceeded to a bench trial on February 7, 2019. Cori Holden, a former caseworker for the Department, testified Mother failed to complete the services made available to her. Holden testified Mother told her she did not attend NA/AA meetings, did not complete a psychological evaluation, parenting classes, or anger management. Mother later said she had not completed any services. Mother never provided proof of successful completion of services as required by the service plan. Holden testified that Mother did not attend some court-ordered drug tests.

         Although Mother attempted to complete the inpatient drug treatment at Nexus and other facilities, she left after a few days due to extreme anxiety. Holden testified that treatment centers like Nexus are equipped to address issues like anxiety. Holden did not consider Mother's reason for leaving the facility a legitimate reason.

         Charlene Green, the current caseworker, testified that Mother told Green shortly before trial that she had completed all her services, but had not turned in any documents. Green told her to provide the documents to the Department as soon as possible before trial and to make certain her attorney knew about the documents and had copies. Green confirmed the Department never received any proof that Mother completed the services.

         Lisa Cuba, a CASA volunteer, observed three visits between Mother and the children. The third visit was terminated early by the Department caseworker. Cuba observed that visit and stated: "I did not observe any mature parenting during that visit. Specifically, she was inciting sullen, angry behavior from [M.F.] towards his dad. And, at the same time, ignoring [L.B.] who was getting more and more upset as the visit progressed." Mother "raised her voice and yelled towards the screen, at the investigative caseworker, after she had received one warning that the visit may have to be terminated." The visit was terminated after Mother violated the warning.

         Holden testified that visitation was stopped based on the court's policy of suspending visitation due to drug tests. Visits can be reinstated based on further drug testing. The Department sent Mother for additional drug tests, but her visitation was not reinstated. Green testified that Mother and her preacher dropped off photo albums for the children, but that was the only gift or card Mother provided for the children during her time on the case. ...


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