Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

In re K.M.

Court of Appeals of Texas, First District

August 22, 2019

IN THE INTEREST OF K.M., JR., A MINOR CHILD IN THE INTEREST OF K.M., A MINOR CHILD

          On Appeal from the 315th District Court Harris County, Texas Trial Court Case Nos. 2017-04805J, 2018-01409J

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

          MEMORANDUM OPINION

          LAURA CARTER HIGLEY JUSTICE.

         These are accelerated appeals from the trial court's decrees terminating the parental rights of K.M. ("Father") and D.M. ("Mother") to their two minor children, K.M. Jr. ("Kevin") and K.M. ("Karen").[1] The case arose when a narcotics investigation led police to a hotel, where they discovered Father, Mother, and Kevin living in a room covered in dog feces and trash. The police arrested Father and later returned to arrest Mother-who fled by jumping out of the second-story window, leaving Kevin and another child in the hotel room alone. The Texas Department of Family and Protective Services was appointed Kevin's temporary managing conservator, and, after Mother gave birth to Karen, the Department was appointed Karen's temporary managing conservator as well. Over the following year-and-a-half, Father and Mother consistently tested positive for cocaine and related substances, and their parental rights to both children were terminated after a bench trial.

         Father's counsel filed a brief raising four issues, three of which challenge the legal and factual sufficiency of the trial court's predicate findings under Section 161.001(b)(1), [2] and one of which challenges the legal and factual sufficiency of the trial court's best-interest finding under Section 161.001(b)(2).[3] Mother's counsel filed a motion to withdraw and corresponding Anders brief, [4] arguing Mother's appeal is without merit, and there are no grounds for reversal because there is legally and factually sufficient evidence to show that (1) Mother had her parental rights to an older child from a previous relationship terminated on endangerment grounds and (2) termination of Mother's parental rights to Kevin and Karen was in the children's best interest.

         We overrule Father's issues, deny Mother's counsel's motion to withdraw, and affirm the trial court's decrees of termination.

         Background

         The Department receives a referral accusing Mother and Father of physical neglect and neglectful supervision

         Father and Mother have two children together: Kevin, who was born in December 2016, and Karen, who was born in March 2018. This case began in August 2017, roughly eight months before Karen was born, when the Department received a referral accusing Mother and Father of physical neglect and neglectful supervision of Kevin.

         On August 2, 2017, Mother was pulled over by officers conducting a narcotics investigation. Mother did not have her identification, so the officers allowed her to retrieve it from the hotel room where she had been living with Kevin, Father, and Father's twelve-year-old daughter from a prior relationship. However, when the officers arrived at the hotel room, Mother was not there. Instead, they found Father, whom they arrested due to an outstanding felony warrant.

         The officers later verified Mother's identity, discovered that she also had an outstanding arrest warrant, and returned to the hotel room the next day to arrest her. But when they arrived, Mother fled by jumping out of the second story hotel room window-abandoning Kevin, then eight months old, and Father's daughter, both of whom remained in the hotel room, which was covered in dog feces and trash. Mother was found and arrested later that day. The officers filed a referral.

         As the Department investigated the referral, it discovered that Mother's parental rights to an older child from a previous relationship had been terminated in 2012 and that Mother was currently pregnant with her third child. The Department also discovered that Mother and Father had extensive criminal records. Mother had convictions for theft, prostitution, and possession of cocaine, while Father had convictions for criminal mischief, harassment, forgery, unauthorized use of a vehicle, and possession of cocaine. Both had also been arrested and jailed on charges that were eventually dropped or for which they received probation.

         The Department petitions to terminate Mother's and Father's parental rights to Kevin and Karen

         In October 2017, the Department filed a petition to terminate Mother's and Father's parental rights to Kevin, and the trial court appointed the Department Kevin's temporary managing conservator. Kevin was then placed with a foster-to-adopt father.

         The trial court then approved and required Mother and Father to follow family service plans prepared for them by the Department. As relevant here, the plans required Mother and Father to remain drug-free, submit to random drug testing, undergo substance abuse treatment, and attend Narcotics Anonymous meetings. The plans included the statutorily-required admonishment that failure to comply could result in the termination of their parental rights. See Tex. Fam. Code § 263.102(b).

         Mother and Father did not comply with their plans. Over the following year-and-a-half, they consistently failed (or failed to appear for) random drug testing, testing positive for cocaine and related substances throughout the entire case.[5]Although Mother and Father periodically provided negative urine samples, Father never provided a negative hair follicle sample and Mother provided a negative sample only once.[6] Moreover, the levels of cocaine in their hair follicle samples did not decrease steadily (indicating sobriety) but rather fluctuated up and down, (indicating periodic drug use).

         Mother and Father continued to test positive after completing substance abuse treatment, and, as a result, their plans were amended to require them to undergo additional treatment. Although both of them claimed to have attended NA meetings, they failed to provide proof to the caseworker.

         In March 2018, during the pendency of Kevin's termination proceeding, Mother gave birth to Karen. Before Mother and Karen were discharged from the hospital, the Department received a referral accusing Mother and Father of neglectful supervision of Karen. The referral was based on their continued drug use-including drug use during Mother's pregnancy-and evidence that Karen had exhibited signs of drug withdrawals after birth.

         Later that month, the Department filed a petition to terminate Mother's and Father's parental rights to Karen, and the trial court appointed the Department Karen's temporary managing conservator. Karen was placed with the same foster father as Kevin. Kevin and Karen were then temporarily removed from the foster placement and placed with fictive kin, the children's godparents. However, the placement was ultimately unsuccessful because of an adverse development in the godparents' financial situation, and the children were placed back with the foster father, where they remained for the rest of the case.

         The case is tried to the bench

         The two cases were tried jointly in March 2019. At the bench trial, the Department presented a number of exhibits, including Mother's and Father's drug test results and criminal records. Four witnesses testified: Mother, Father, the caseworker, and a court-appointed child advocate.

         Mother's testimony.

         Mother testified that Kevin had come to the Department's attention because she had "jumped out a window" when police arrived at the hotel room they were living in August 2017. Mother admitted that she had been trying to flee from the police because she knew she had an outstanding warrant and did not want to go to jail. Mother admitted that, when she fled from the police, she left Kevin and Father's daughter alone in the hotel room. But she insisted that she had called someone to watch the children and that the person was en route when she jumped out the window. Mother did not identify specifically who she had called or explain that person's relationship to her or the children.

         Mother testified that Father was not in the hotel room at that time because he had been arrested the day before. She explained the incident where she was in a vehicle that was pulled over by the police and thereafter ran away. She further explained that Father was subsequently arrested on warrants when the police came to the hotel room where they were staying. Mother testified that the family had been living in the hotel for about six months and that, at the time of the arrests, she was not working, but Father was working as a security guard at the same hotel.

         Mother admitted that she had her parental rights to her oldest son terminated in 2012. During the pendency of that proceeding, she met and began dating Father. And once the termination was finalized, she began to use hard drugs, including crack cocaine.

         Mother admitted to extensive past drug use, and she admitted to past drug dealing, including drug dealing as late as 2017 after Kevin was born. She denied any drug use after her release from jail in August 2017 and claimed that any subsequent positive tests were attributable to drug use that had occurred before that date. She was unable to explain why the levels of cocaine in her urine and hair follicle samples periodically spiked.

         Father's testimony.

         Father admitted that, when he was arrested at the hotel in August 2017, there were drugs in the hotel room. He insisted, however, that the drugs belonged to an unidentified third party and not to Mother or to him.

         Like Mother, Father admitted to extensive past drug use. He admitted that he began using crack cocaine before meeting Mother in 2012 and that he used the drug regularly over many years. He admitted to regular use of the drug in 2016 after Kevin was born. And he admitted to using the drug in 2017 with Mother when she was pregnant with Karen.

         Father further admitted to using the drug during the pendency of the termination proceedings. Father admitted that he had relapsed during the pendency of the case, but he claimed that he stopped using the drug in April 2018. However, like Mother, Father was unable to explain why the level of cocaine in his samples spiked after that date.

         Father testified that he provided financially for both himself and Mother. Father testified that they lived apart because of the possibility of Mother's prior termination affecting the outcome of these cases. However, Father admitted that Mother would look after the children while he was at work if the court would return the children to him. Father testified that it was his request and desire for the court to return the children to both of them.

         The ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.