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In re J.S.

Court of Appeals of Texas, First District

August 20, 2019

IN THE INTEREST OF J.S., A CHILD

          On Appeal from the 314th District Court Harris County, Texas Trial Court Case No. 2018-00409J

          Panel consists of Chief Justice Radack and Justices Keyes and Higley.

          OPINION

          Evelyn V. Keyes, Justice.

         In this case, the trial court terminated the parental rights of A.W.H. (Mother) and H.L.S. (Father) to their minor daughter, J.S. (Julie).[1] The trial court terminated Mother's parental rights under Family Code section 161.001(b)(1)(E), (O), and (P), and the court terminated Father's parental rights under section 161.001(b)(1)(E) and (O).

         Both Father and Mother filed notices of appeal. In two issues, Father contends that the Department of Family and Protective Services (DFPS or the Department) failed to present sufficient evidence to support the trial court's findings that he committed two statutory predicate grounds for termination of his parental rights under section 161.001(b)(1)(E) and (O). Mother's counsel filed an Anders brief, stating that there were no arguable grounds for reversal and that an appeal of the trial court's termination order was frivolous.

         We affirm.

         Background

         Julie was born in September 2017. She is Mother and Father's only child together. Mother also has a son, who is five years older than Julie, and another daughter, who is a year older than Julie. Neither of these children was involved in the underlying proceedings. Father has an adult daughter and three grandchildren.

         DFPS caseworker Scarlet Vargas testified that the Department became involved in Julie's life when she was an infant. Mother had relinquished her parental rights to Julie's half-sister in late 2017, and the Department learned that Mother had given birth to another child, Julie. The Department filed its original petition seeking termination of Mother's and Father's parental rights and temporary managing conservatorship over Julie in February 2018.[2] After an adversary hearing, the trial court ordered Father to submit to DNA testing to establish Julie's paternity. Father did so, and the DNA results revealed that Father could not be excluded as Julie's biological father. The trial court subsequently entered an order establishing the parent-child relationship between Father and Julie.

         The Department created family service plans for both Mother and Father. The trial court admitted both service plans into evidence at the final hearing. Both service plans stated the following under "Reason for Child Protective Services Involvement":

[Mother] has tested positive in a recent drug test for methamphetamine, cocaine, amphetamines, hydrocodone and Codeine. The mother admitted she fled with the infant [Julie] to hinder investigation. There is concern that the mother's ongoing drug [use] and willingness to flee with the child threatens the safety of the child. The alleged father [Father] and child's mother are uncertain of [Julie's] paternity. Therefore child's birth father is unknown and paternity needs to be established before the alleged father on birth record proceed with services through the Department. [Mother] relinquished her parental rights to the agency and the Texas Department of Family and Protective Services has been named permanent managing conservator of [Julie's older half-sister]. [Julie's older half-brother] is safely placed with his maternal grandparents and has been there for over one year. [Julie], currently age three months[, ] is currently in a Parental Child Placement, (PCSP) with a relative. It is the Department's opinion that there is an immediate and continuing danger to the three month old child. All reasonable efforts have been made to prevent the removal, and that it is contrary to the welfare of the child to remain with either parent.

         Under "Initial Concerns," dated March 15, 2018, the service plan listed, among other things: Julie's young age; positive drug tests for both Mother and Father; Mother's and Father's inability to provide a safe environment for Julie; Mother's "history of substance abuse and CPS history"; Father's history of substance abuse; Mother's failure to "change[] behaviors that exposed the children to risk of harm"; and Mother's lack of cooperation during the initial investigation and in taking drug tests. The service plans required both parents to submit to psychosocial evaluations, participate in substance abuse assessments, maintain stable employment and provide proof of employment, comply with all visitation guidelines, submit to random urinalysis and hair drug testing, complete parenting classes, and maintain safe and stable housing.

         The trial court held the final hearing on January 17, 2019. The trial court admitted evidence including the family service plans, a status hearing order dated April 5, 2018, drug test results for both Mother and Father, and certified copies of criminal judgments and sentences for both Mother and Father. The drug test results for Mother dated back to April 2015, more than two years before Julie was born in September 2017. From May 2015 through August 2017, prior to the pendency of the underlying termination proceedings, Mother had eight drug tests using hair samples that yielded positive results for various combinations of amphetamines, methamphetamine, cocaine, cocaine metabolites, and alcohol.[3] These drug test results included results from August 2017, one month before Julie was born, in which Mother tested positive for cocaine, cocaine metabolites, and PCP. The drug test results admitted into evidence also included the following results for Mother from drug tests during the pendency of the termination proceedings: in February 2018, she tested positive for alcohol, amphetamines, methamphetamine, cocaine, and cocaine metabolites; in June 2018, she tested positive for alcohol, amphetamines, methamphetamine, cocaine, and cocaine metabolites; in August 2018, she tested positive for alcohol, amphetamines, methamphetamine, cocaine, and cocaine metabolites; in October 2018, she tested positive for alcohol and cocaine; and in December 2018, she tested positive for cocaine and cocaine metabolites.

         Father had the following positive drug test results using a hair sample: in February 2018, April 2018, June 2018, and August 2018, he tested positive for cocaine and cocaine metabolites; and in October 2018, he tested positive for cocaine, cocaine metabolites, and marijuana.

         With respect to the parents' criminal histories, Mother was convicted of the Class B misdemeanor offense of Driving While Intoxicated (DWI) in June 2014, the Class A misdemeanor offense of assault in August 2015, and the Class A misdemeanor offense of DWI-second offender in March 2017. Father was convicted of the felony offense of robbery in August 1981, the Class A misdemeanor offense of assault in June 1984, the second-degree felony offense of possession of a controlled substance-cocaine in March 1990, the second-degree felony offense of possession of a controlled substance-cocaine in January 1992, and the state jail felony offense of manufacturing and delivering a controlled substance-cocaine in July 2014. Father pleaded guilty to the 1984 assault offense and the 2014 manufacturing and delivery offense, and he pleaded no contest to the 1990 possession offense.

         Vargas testified that while Mother had completed several of the requirements of her service plan, she had not completed a psychiatric evaluation, and she continued to test positive for drugs throughout the pendency of the case. Vargas stated that the Department made payments on two different occasions for Mother to attend the psychiatric evaluation, but Mother "continued to cancel or was a no-show" for the evaluation. Mother participated in some of the drug tests that the Department required, but she did not attend on at least six occasions. Although Mother provided paycheck stubs to Vargas during the beginning of the proceedings, she had not done so "lately," and Vargas did not know if Mother was employed at the time of the final hearing. Vargas stated that she believed Mother was a danger to Julie because Mother "continues to test positive for drugs and we believe she does not have a stable housing for her children and we believe she's also not financially stable." DFPS was also concerned about Mother's criminal history, which included two DWI offenses.

         Vargas testified that Mother and Father had supervised visitation with Julie while the case was pending. However, those visits stopped in September 2018 due to the parents' continuing positive drug test results. Vargas stated that Julie was "always crying" during these visitations, that Julie did not want to be in the room with her parents, and that, during two visits, Vargas smelled alcohol on Mother's breath.

         With respect to Father, Vargas testified that he had completed most of the requirements set out in his service plan, but he had not had negative drug test results. Father had not provided Vargas with paycheck stubs, but he had provided documentation that he received monthly disability checks. Vargas testified that, due to Father's drug testing results, she was concerned for Julie's safety, and she did not believe that Father could provide a safe and stable environment for Julie. She stated:

He continues to test positive for his drug result, and it is more concerning that he keeps denying that he's using drugs. And he tells me that he tests negative for his parole officers and he tests positive for our test and that our tests must not be correct.

         Vargas was aware that Father had a past criminal history, but she did not know the specifics of his past convictions.

         Vargas also testified that Julie was currently placed in a foster home and that she was doing "wonderful" in that home. Julie was "very healthy" with no medical needs, and she was "very bonded" to her foster mother. Vargas stated that Julie has "thrived" in this particular placement, that she is "very attached" to her foster mother, and that she "looks at Foster Mom before responding to another adult." Julie's foster mother had expressed to the Department that she wished to adopt Julie. Vargas believed that it would be detrimental to Julie to remove her from the foster home and return her to her parents. She did not believe that Mother and Father could "provide a long-term care for [Julie] due to their current and past behaviors."

         Vargas agreed with Mother's counsel that Mother had completed several requirements of her service plan, including completing substance abuse counseling, the psychosocial evaluation, individual therapy, and substance abuse therapy. Vargas did not know where Mother was currently working and did not have any documentation, but she acknowledged that she had spoken to Mother about her employment. She also agreed that Mother had attended all visitations with Julie up until those visitations were stopped by the court and that Mother had attended all court hearings. Vargas further agreed that Mother had kept in contact with her, had provided names of family members who could potentially be a placement for Julie, and had expressed her desire to finish her required services and regain custody of Julie.

         On cross-examination by Father's counsel, Vargas testified that, at the time Julie came into DFPS's care, there were no concerns about Father's conduct. Vargas acknowledged that Father has an adult child and had never had any involvement with the Department prior to this proceeding. She agreed that Father had named his adult daughter as a possible placement for Julie, but she testified that the Department never conducted a home study on Father's adult daughter because his daughter stated that she had children of her own and she was not sure if she could provide long-term care for Julie. Vargas also agreed with Father's counsel that, with the exception of his positive drug tests, he had completed the requirements of his service plan. She further agreed that Father had shown her paperwork from his parole officers indicating that his urine tests were negative for drugs. She also agreed that Father had been forthcoming with her about his prescription pain medications, and she was not concerned about his use of his prescribed medications, which included codeine. Vargas testified that she had not ...


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