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In re A.T.-W.

Court of Appeals of Texas, Seventh District, Amarillo

August 29, 2019

IN THE INTEREST OF A.T.-W. AND A.T.-W., CHILDREN

          On Appeal from the County Court at Law Number 1 Randall County, Texas Trial Court No. 72, 600-L1; Honorable James Anderson, Presiding

          Before QUINN, CJ., and CAMPBELL and PIRTLE, JJ.

          MEMORANDUM OPINION

          Patrick A. Pirtle Justice

         Appellant, S.T.-B., [1] the natural mother of two children, A.T.-W. and A.T.-W., appeals the trial court's order terminating her parental rights to those children.[2] In a single issue, she asserts that the trial court erred in finding there was clear and convincing evidence that it was in the best interest of the children to terminate her parental rights. We affirm the trial court's order.

         Applicable Law

         The Texas Family Code permits a court to voluntarily terminate the relationship between a parent and a child if the Department of Family and Protective Services establishes that a parent has engaged in one or more of the twenty-one predicate acts or omissions enumerated under section 161.001(b)(1) of the Code and it finds that the termination of that relationship is in the best interest of the child. See Tex. Fam. Code Ann. § 161.001(b)(1)(A)-(U), (b)(2) (West Supp. 2018).[3] See also In re N.G., No. 18-0508, 2019 Tex.App. LEXIS 465, at *1 (Tex. 2019) (per curiam) (holding that while only one predicate finding under section 161.001(b)(1) is necessary, an appellate court may be required to review additional predicates where, as here, the trial court has based its ruling, in whole or in part, upon section 161.001(b)(1)(D) or (E)). In parental termination cases, due process mandates that the Department establish its case by a clear and convincing standard of proof. In re N.G., 2019 Tex.App. LEXIS 465, at *7; § 161.206(a) (West 2014). "'Clear and convincing evidence' means the measure or degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established." § 101.007 (West 2014).

         Background

         In August 2017, A.T.-W. and A.T.-W., females ages five and six respectively, were in the custody of their mother, S.T.-B., and father, G.W. The Department received information that S.T.-B. and G.W. were using drugs in the presence of the children and that S.T.-B. was leaving the children with a grandmother who was living in a drug house. When the family was tested for illegal substances, S.T.-B. tested positive for cocaine as did the children, and G.W. tested positive for marijuana. The Department initiated a safety plan whereby the parents agreed that the children and G.W. would reside with the children's aunt in a drug-free environment apart from S.T.-B.

         Upon learning that G.W. was not staying at the aunt's house and the children were in a drug house where they were exposed to crack cocaine, the Department filed its Original Petition for Protection of a Child, for Conservatorship, and for Termination in Suit Affecting the Parent-Child Relationship in September 2017. The Petition asserted S.T.-B. had violated multiple provisions of the Family Code that justified termination of her parental rights. § 161.001(b)(1)(A)-(F), (K), (M)-(Q). The children were removed and placed in foster care.

         S.T.-B. entered into a family service plan that was adopted as part of a Status Hearing Order entered by the trial court.[4] Pursuant to the plan, S.T.-B. agreed to participate in and complete rational behavior therapy, notify the Department of any changes in address, maintain regular contact with her caseworker, maintain a drug-free lifestyle and abstain from the use of illegal drugs, submit to random drug tests, locate and maintain stable housing with functioning utilities, and participate in supervised visitation with the children one hour per week. She also agreed to complete individual counseling, parenting classes, a psychological evaluation, and a substance abuse evaluation.

         At the final hearing, the State's evidence established that although S.T.-B. tested negative for drugs several times during the proceedings, from September 2017 through February 2019, she tested positive for cocaine eight times. When she and her newborn infant, Z.A., tested positive for cocaine in July 2018, Z.A. was removed and is the subject of another termination proceeding.[5] In May 2018, S.T.-B. was arrested for driving while intoxicated after striking a police car at 5:50 a.m. She was driving with a suspended license and had five outstanding warrants.

         Although she did work on her service plan, she did not complete her rational behavior therapy, notify the Department of address changes, maintain a drug-free lifestyle and abstain from illegal drug use, or complete substance abuse counseling. Because S.T.-B. continued to test positive for drugs, her caseworker believed that she had not mitigated the reasons for the removal of the children. As a result, the caseworker believed that, if the children were returned to S.T.-B., they would be at risk of being exposed to further drug use by their mother or others who were a part of the household or visited the residence.[6] Further, despite the fact that S.T.-B. continued to test positive for cocaine after the initial removal and approximately a year later she and her newborn Z.A. tested positive as well, S.T.-B. continued to maintain that she did not do drugs and was uncertain why her children tested positive for cocaine.[7]

         The Department's caseworker testified that S.T.-B. posed a danger to her children's emotional and physical well-being because she continued to test positive for cocaine and was unaware or unable to identify the source that contaminated her children in the residence. As a result, having failed to mitigate the reasons for the children's removal, the caseworker opined that it was in the children's best interests that they remain in foster care where the children were in a stable, drug-free environment, doing well medically, and receiving consistent care.

         When the final hearing was held, S.T.-B. was continuing to work nights as a cocktail waitress at a nightclub in Amarillo, Texas. She lived in a rent house with D.A., the father of Z.A. S.T.-B. testified that she would be leaving the nightclub and had a job waiting for her doing housework in a hotel. She also testified that she wanted to move to Lubbock to be with her father who said he was willing to take her and the ...


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