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In re C.J.B.

Court of Appeals of Texas, Fifth District, Dallas

August 21, 2019

IN THE INTEREST OF C.J.B., A CHILD

          On Appeal from the 296th Judicial District Court Collin County, Texas Trial Court Cause No. 296-30017-2018

          Before Justices Brown, Schenck, and Pedersen, III

          MEMORANDUM OPINION

          BILL PEDERSEN, III JUSTICE.

         E.S.M. (Mother) appeals the termination of her parental rights to her daughter, C.J.B.[1]Following a bench trial, the trial court found by clear and convincing evidence that Mother had committed five statutory predicate acts supporting termination, and that termination of Mother's parental rights was in C.J.B.'s best interest. Mother raises eight appellate issues, challenging the legal and factual sufficiency of the evidence to support the termination of her rights and the appointment of the Texas Department of Family and Protective Services as sole managing conservator of C.J.B. She also complains that the trial court abused its discretion in denying her motion for an extension of the dismissal date. We affirm the trial court's judgment.

         I. BACKGROUND

         On January 9, 2018, C.J.B. was born by an emergency C-section at Parkland Hospital. She was placed in the neonatal intensive care unit (NICU) because she was premature, in respiratory distress, and tested positive for opiates. The Texas Department of Family and Protective Services (the Department) received a priority referral that Mother had given birth to C.J.B., and that both Mother and child had tested positive for opiates.

         On January 26, 2018, the Department filed its original petition for protection of the child, for conservatorship, and for termination in a suit affecting the parent-child relationship pursuant to Chapter 262 of the Texas Family Code. See Tex. Fam. Code Ann. §§ 262.001-.352. The Department requested permission to take immediate possession of the child and to terminate Mother's parental rights. According to the supporting affidavit of Chelsea Pensata, an investigator with the Department, the referral indicated that when Mother arrived at Parkland Hospital, she was aggressive, belligerent, and yelling at anyone who tried to assist her. She had a bottle of Xanax in her purse and a syringe in her vagina. Mother tested positive for opiates and benzodiazepine; when her baby girl was born, the baby also tested positive for opiates.

         In her affidavit, Pensata stated that she spoke to the Parkland Hospital staff and went to the hospital to see C.J.B. She learned from Mother's attorney that immediately after giving birth to C.J.B., Mother had checked herself in to a drug treatment facility-New Directions for Women, located in Costa Mesa, California. Mother's attorney arranged for Pensata to interview Mother by telephone. During the telephone interview, Mother told Pensata that she had relapsed a couple weeks before the emergency C-section. Mother said she last used IV drugs the day before her C-section; she also stated that she had been using heroin and prescription pills four to five times a week. Mother told Pensata that she was unaware of the syringe in her vagina and did not remember anything about the bottle of Xanax.

         According to the supporting affidavit of Heidi Arum Kim, M.D., the attending resident at C.J.B.'s birth, the infant's meconium drug screen was positive for opiates. She also stated, "[t]he infant at this time is occasionally exhibiting signs/symptoms of drug withdrawal, including mild tremors, mottling, respiratory rate greater than 60 breaths/minute and loose stools and is being monitored closely. No treatment has been given as of this time."

         The trial court signed orders for emergency care and temporary custody of the child, and named the Department as the child's temporary managing conservator. The Department took possession of C.J.B. When C.J.B. was finally discharged from the hospital, the Department placed her with her paternal grandparents, with whom she continues to live. Mother filed a general denial.

         At a hearing on February 14, 2018, which Mother did not attend, the trial court ordered Mother to complete parenting classes, a psychological evaluation, individual counseling, a drug/alcohol assessment, to participate in and successfully complete an inpatient drug/alcohol treatment program, and to comply with any recommendations she received based on her participation in these services. Modinat Showemimo, a conservatorship worker for the Department, was assigned to the case. Showemimo prepared the Family Service Plan and personally delivered it to Mother. Showemimo also prepared the Family Service Plan Evaluation to document Mother's progress.

         Mother did not appear at the temporary order hearing because she was still in Costa Mesa, California at New Directions for Women. She told Showemimo that she was in inpatient rehabilitation, but she refused to sign a court-ordered release allowing the Department to verify that she had participated in, or completed, this rehabilitation program. According to her attorney, Mother remained at this rehabilitation facility until February 21, 2018. When the trial court asked her attorney why Mother defied a court order to sign the release, he informed the court that it was his understanding that Mother did not complete the program.

         Upon her return to Texas, Mother resumed using heroin and reportedly appeared for child visitations while under the influence of drugs. She was arrested on March 12, 2018, on an outstanding warrant in a pending child abandonment/endangerment case.[2] A month later, she was arrested for theft and possession, and she remained in jail from April 16, 2018 through June 14, 2018. On June 14, 2018, the court signed an order of deferred adjudication in Mother's pending child abandonment/endangerment case, and as part of her community supervision, Mother was ordered to participate in and successfully complete the Cenikor inpatient substance abuse treatment program. The Cenikor program usually takes eighteen to twenty-four months to complete, depending on the individual participant's progress. Mother entered the Cenikor program on June 14, but she left after sixty-two days, on August 6, 2018.

         Following Mother's departure from the Cenikor program, the State filed a petition to enter a final adjudication of Mother's guilt in the child abandonment/endangerment case, alleging that Mother had violated the terms and conditions of her community supervision. On August 30, 2018, the court signed a judgment adjudicating Mother's guilt, and sentenced her to six months in jail. Mother was incarcerated from August 30, 2018, through December 30, 2018. When she was released from jail on December 30, 2018, she moved to Maryland.

         The trial pertaining to the termination of Mother's parental rights to C.J.B. was scheduled to begin two weeks later, on January 14, 2019. On January 9, 2019, Mother filed an original counterpetition seeking sole managing conservatorship of the child. She also filed a motion requesting (i) an extension of the dismissal date, (ii) a new dismissal date of July 26, 2019, (iii) a new trial date, and (iv) a jury trial.

         On January 14, 2019, the scheduled trial date, Mother appeared through her appointed counsel and requested that she be allowed to participate by telephone. Counsel also re-urged Mother's motions for an extension of the dismissal date, a continuance of the trial, and a jury trial. The court denied mother's requests and proceeded with the trial.

         II. TRIAL TESTIMONY

         At trial, Showemimo testified that Mother's parental rights should be terminated because Mother failed to complete the requirements of her Family Service Plan. She testified that Mother completed her psychological examination, and started, but did not complete the parenting class, individual counseling, and at least two substance abuse treatment programs. Although Showemimo sent Mother for monthly drug testing, she only appeared to be tested on three occasions. Although Mother claimed to be employed, she refused to provide the name of her employer or any paystubs as proof of employment.

         Showemimo testified that Mother's parental rights should be terminated for knowingly placing C.J.B. in an environment dangerous to the child's physical and emotional well-being by using drugs while she was pregnant, continuing to use drugs after C.J.B. was born, and failing to complete a substance abuse treatment program. Also, Showemimo stated that Mother's parental rights should be terminated because C.J.B. tested positive for drugs when she was born.

         Showemimo expressed concerns about Mother's parenting skills. In her opinion, Mother had not bonded with C.J.B. Showemimo stated that Mother was offered visitation but she did not take it. Mother had court-ordered visitation and could have seen C.J.B. every week; however, Mother only saw C.J.B. five times. When Mother was in the Cenikor program, Showemimo drove C.J.B. to visitation with Mother on two occasions. Showemimo stated that Mother wanted to show her baby to all the other Cenikor residents, but Showemimo observed that Mother had little interest, and appeared uncomfortable, in alone-time with the child. Mother was not allowed to see C.J.B. while she was incarcerated. However, since Mother has been released from jail, she has not asked to see C.J.B. Showemimo also testified that during her incarceration, Mother made no effort to continue parenting classes or work on other Service Plan requirements, even though classes were available to Mother while she was in jail.

         Finally, Showemimo testified that it was in C.J.B.'s best interest for Mother's parental rights to be terminated. She testified that C.J.B. deserves permanency and the Blackwoods, C.J.B.'s paternal grandparents, are the only parents the child knows. She believes that the child is in a safe, stable, long-term home, free of drugs, and it is in her best interest to stay there with people who will protect her. Showemimo testified that, in contrast, C.J.B. does not know Mother. Over the course of the year, Mother "did not demonstrate any progress or complete her services" and in Showemimo's opinion, Mother would continue to be a risk to C.J.B. Showemimo testified that she has not heard from Mother since she was released from jail. She learned that Mother had moved to Maryland but she does not know where Mother is living, she does not know if Mother has employment, and she does not know if Mother is continuing to take drugs. Because Mother lives in Maryland, Showemimo is unable to send her for drug testing.

         Kristen Belloni, Ph.D., LP., psychologist, conducted Mother's psychological evaluation on April 4, 2018. Mother admitted to Belloni that prior to January 2018, she was using a gram of heroin and six milligrams of Xanax on a daily basis. Belloni testified that Mother told her that she stopped using drugs on January 9, 2018; however, she later admitted that she had relapsed and had used drugs since January 9. In evaluating Mother, Belloni conducted a parenting inventory. Based on Mother's responses, Belloni concluded that Mother's expectations appear to be inconsistent with the developmental ability of children, she may tend to be demanding and controlling, she appears to have a low level of empathy, and ...


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