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In re A.M.

Court of Appeals of Texas, Ninth District, Beaumont

August 29, 2019

IN THE INTEREST OF A.M.

          Submitted on June 18, 2019

          On Appeal from the County Court at Law No. 3 Montgomery County, Texas Trial Cause No. 17-07-09229-CV

          Before Kreger, Horton and Johnson, JJ.

          MEMORANDUM OPINION

          LEANNE JOHNSON, JUSTICE

         Appellants Mother and Father appeal from an order terminating their parental rights to their minor daughter, Amy.[1] See Tex. Fam. Code Ann. § 161.001(b)(1)(D), (E), (M), (O), (2) (West Supp. 2018). Mother and Father each filed an appeal. We affirm the trial court's judgment terminating the parent-child relationships between Amy and her Mother and between Amy and her Father.

         Background and Evidence

         In July 2017, when Amy was almost two years old, [2] the Department of Family and Protective Services (the Department) began a proceeding to terminate the parental rights of Mother and Father. Family Service Plan was developed for each parent.

         Testimony of Investigator for CPS

         Mary, an investigator for Child Protective Services (CPS), testified that she investigated allegations of abuse or neglect involving Amy when Amy was about eighteen months old. According to Mary, CPS received a report that Mother left Amy with Daisy West, one of Amy's cousins, and Daisy did not know where Mother was or when she was coming back and had not heard from Mother. Mary agreed that she prepared the affidavit admitted as Petitioner's Exhibit 1. Mary testified that, after visiting Daisy's home, she left with Amy because Daisy did not want to care for Amy any longer. According to Mary, Daisy had previously taken care of Amy for one or two days at a time, but this time, Amy had been with Daisy for about a week. The appellate record reflects that Daisy was about twenty years old when she contacted CPS.

         Mary testified that she received a call from Mother the next day, and Mother said she was in Colorado with a man. Mary did not recall Mother saying when she planned to return. Mary had been advised that Father was incarcerated, and she sent him a certified letter. Daisy provided Mary the names of relatives who could be possible placements for Amy, but none worked out.

         Testimony of Mother

         Mother testified that she had had five children by five men, and Amy was her youngest child. Mother explained that her eldest child died, she put her second child up for adoption, she voluntarily relinquished her rights to her third child, and her rights to her fourth child, Benny, were involuntarily terminated. According to Mother, when she met Amy's Father, she was living with Jake and Mike Dowling, although she sometimes stayed with Amy's Father. Mother started living with the Dowlings when she was about eighteen years old after her firstborn child died. She described Mike Dowling as her transportation and drug provider, and she testified that she "got high" with Mike to alleviate pain. Mother testified that although she lived at the Dowlings' house off and on for about fourteen years, Jake Dowling held her against her will for an extensive period, and she was raped by men the Dowlings brought into the house. According to Mother, she was drugged for others to exploit her. Mother allowed Amy to live there with her because she had no support system. Mother testified that although she had tried to leave the Dowlings' house several times, ultimately she left the Dowlings' in February 2018, because the police forced her to leave and because Mike had tried to kill her. Mother testified that she contacted the police about the Dowlings, and at that time there were marks on her neck from Mike's hands. According to Mother, she never told anyone-including Father-what the Dowlings had done to her. Mother denied that Amy was ever exposed to danger at the Dowlings' house even though the Dowlings had drugged Mother and used her as a prostitute. Mother agreed that she would sometimes leave Amy with the Dowlings when she went to the store.

         Mother believed Amy may have been sexually abused after moving out of the Dowlings' house, and Mother did not take her to a doctor or hospital. Mother left Amy with Daisy when Mother left for Colorado to smoke marijuana and to start over. Mother testified that she gave Daisy money, food, and diapers but no car seat, and Mother said she only intended to be gone for three or four days, but she later informed Daisy she would return in three to four weeks. Mother returned to Texas when she learned that Amy was in CPS custody, and Mother asked CPS to relocate her to another state to work on her service plan because she did not feel safe in Texas. When Mother returned to Texas from Colorado, she lived with another man for five to six weeks and then she returned to the Dowlings' home.

         Mother testified that she moved to Florida in August 2018 to start over and "give [Amy] a life she deserved and foundation for her future[]" because she believed she could not get the help she needed in Texas. Before moving to Florida, Mother completed a parenting class, a drug test, and a psychological evaluation, and she signed up for family counseling. According to Mother, she had several visits with Amy, but the visits were stopped after Mother missed one because Mike Dowling had told her he would follow her from her visit with Amy and kill her. Mother testified that after she missed her visit she asked CPS for another visit with Amy, but she did not get a response. Mother acknowledged that at one visit with Amy after a hearing, Mother was "extremely upset[, ]" which scared Amy and was not a healthy situation. According to Mother, she also advised her caseworker that she was going out of state, telling her she was "going out of state for vacation" because at first she intended to return. Mother testified that she had contacted the FBI about Mike Dowling, who Mother believed had tried to kill her in February 2018. Mother agreed that she had also sought help from the Governor of Texas, the FBI, and the President.

         Petitioner's Exhibit 64 was admitted into evidence, which Mother read at trial, and it was her July 2016 report to the Montgomery County Sheriff's Office when she reported that Father had opened her bedroom window in the middle of the night, wielding a knife, grabbed her by the hair and bit her, and stayed for about twenty minutes. The statement also alleged that Father woke Amy up, and Amy started crying. Mother agreed that this incident occurred when she was living at the Dowlings' house.

         Mother testified that when her first child died, Mother was diagnosed with "massive depression[, ] [] PTSD[, ] and bipolar." Mother could not recall when she stopped taking medication for the bipolar disorder, but it was "[m]any years ago[, ]" and she currently takes no medications. Mother agreed she became a methamphetamine user when her first child died, sometimes using daily, but she testified she had not used methamphetamine since May 2018. She agreed she had used methamphetamine with Father and with Adam Wortman. Mother testified that she first used drugs at the age of twelve and she had used Xanax, crack cocaine, and marijuana. Mother did not dispute that she had a long substance abuse history, including intravenous drug use, and that the drug use had affected her memory. Mother testified that CPS told her she had tested positive for methamphetamine during this case, but Mother denied "willingly[]" using methamphetamine. The clerk's record includes a "Positive Drug Test" for Mother dated October 2017, showing a positive result for methamphetamine. Mother testified that she had ten months' sobriety at the time of trial.

         Mother denied using drugs when she was pregnant with Benny. Mother testified that she had been told she tried to deliver Benny by herself. According to Mother, she was living at Jake Dowling's house then and she involuntarily "underwent an exceptional amount of Special K[, ]" a horse tranquilizer that causes hallucinations, and therefore she had no recollection of the event. According to Mother, she had reported to a psychologist that she performed her own C-section because she could only state what others had told her and her memory came in flashbacks. Mother agreed that she went back to live with the Dowlings after Benny's birth.

         Mother had been living at her current residence in Florida for about five months at the time of trial. Mother testified that as soon as she moved to Florida, she put herself into ten days of inpatient mental health treatment. She was discharged into Adam Wortman's care without a diagnosis or medication, contacted her caseworker, and continued outpatient treatment for "life skills, mental health and drug and alcohol counseling treatment[, ]" including a mental health assessment. According to Mother, in Florida she had completed random drug tests and obtained certificates for mental health counseling and drug and alcohol treatment. She also continues to participate in a recovery aftercare group and a ten-week behavioral course. She testified that she had been diagnosed with ovarian cancer after she had her third child, she did not know whether the diagnosis was "resolved[, ]" she had not been to a doctor or received treatment, and she continues to have related "issues[.]"

         Mother testified that she did not graduate from high school, but she was working on her GED. Mother had not informed CPS that she had married Adam Wortman or that she was living with him. Mother currently works two jobs in Florida, and she testified that she provided proof of employment to her caseworker. Mother testified that she sent photos of her current residence to her caseworker and that the caseworker had called a police officer to visit Mother's home. Mother offered various exhibits into evidence, including copies of certificates for completing a parenting class, mental health counseling, and substance abuse counseling; a rental agreement for her current residence; the title to her vehicle; photographs of her home and of Mother with Amy; and certain records of Mother's therapy and counseling in Florida. Mother believed she had completed all required services. Mother testified that she had identified a daycare center for Amy, and in Mother's opinion, she was prepared for a life with Amy in Florida. Mother identified two friends who could serve as a support system besides her husband. Mother also identified a counseling center where she could take Amy to help Amy with the transition back to Mother's care.

         Mother agreed she had been convicted twice in 2018 for evading arrest and in 2017 for criminal trespass. Certified copies of the judgments were entered into evidence. Mother agreed she missed one visitation with Amy because she was incarcerated. Mother agreed that she had reported in her psychological evaluation that every one of her relationships had ended in domestic violence, but she denied that Amy had ever been exposed to domestic violence and that Amy had been asleep when Father broke into Mother's window and held a blade to her neck.

         Testimony of Father

         Father testified that, in addition to Amy, he has a thirteen-year-old son and that he signed his rights over to the child's grandmother because the boy's mother was "not stable enough to care for [the child]." According to Father, he lived with his son's grandmother for a couple of years when he was about eighteen or twenty years old because he was "in and out of prison a lot then[.]" Father agreed that he was released from prison in August 2018, and at the time of trial he was living with his brother. Father met Mother about two years before Amy was born, and he lived with Mother at Jake Dowling's home when Amy was born. Father went back to prison for two years for unauthorized use of a motor vehicle when Amy was about six months old. When asked what arrangements he made for Amy when he went to prison, Father stated that Amy was fine with her Mother. Father identified Petitioner's Exhibit 3 as a statement he signed relating to an incident in which he was assaulted for something he claimed he did not do. Father read the statement at trial, which stated that his brother-in-law started hitting Father because Father "supposedly" molested Father's niece Daisy, the person with whom Mother had left Amy.

         According to Father, CPS visited him once a month while he was in prison. Father testified that his service plan was amended after he got out of prison and that he completed as much of the service plan as he could. Father stated that he gave the Department the names of two people as possible placements for Amy: his son's grandmother, who did not want to be a placement, and his brother Ramon. According to Father, he completed a substance abuse assessment and a psychological evaluation, participated in individual therapy, and submitted to random drug testing. Father agreed that he participated in visits with Amy until CPS suspended the visitations. Certificates for Father's completion of drug education classes were admitted into evidence. Certificates for Father's completion of training as a Network Cabling Specialist, in Telecommunications Technologies, and as a Smart Home Professional were admitted into evidence.

         Father obtained his GED in prison. Father was on probation and worked for a septic company at the time of trial. He did not have a driver's license because he owed surcharges, but he reported that he drove to work. Father explained that if CPS called him to do a drug test when he was working, he would not be able to go because he does not have a vehicle at work, but he would go the next day or as soon as he could. Father's lease for an address in Cleveland where he has lived since November 2018 was admitted into evidence.

         Father testified that he started using methamphetamine when he was about sixteen years old but that he had not used it for two years. He denied ever having had substance abuse treatment, and his aftercare plan is to surround himself with people who do not use drugs. When asked what work he did before he went to prison, Father stated he worked with his brother remodeling houses, he worked off and on as a lineman, and he did odd jobs.

         Father told the court he was not asking for Amy to come home with him but for unsupervised visitation with Amy, and he was open to supervised visitation if deemed appropriate. He acknowledged that Mother and her husband Adam Wortman live in Florida, and when asked how he would visit Amy, he responded "I know how to drive." Father also acknowledged that Mother and Adam had a child together, and their parental rights had been terminated to that child.

         Testimony of Adam Wortman

         Adam Wortman testified that he had married Mother in Florida a few months before trial. According to Adam, he had met Mother about twelve years ago and had been in a relationship with her at various times. Adam agreed that Mother was Benny's mother. According to Adam, CPS was involved "right from the beginning" because of the circumstances of Benny's birth. Adam and Mother were homeless and living in the woods when Mother went into labor, and he and Mother had not planned on anything going wrong during the delivery. Adam and Mother had done methamphetamines together, but not for about a year before Benny's birth. According to Adam, Mother had cut herself at her scar from a previous C-section because a long time had passed since her water broke and the baby could have been suffocating. Adam testified that Mother delivered Benny "in the back of a car on the way to go meet the ambulance."

         Adam testified that he has four children. He lived with the oldest child until the oldest child was about four years old, and Adam "kind of backed out" when some allegations by a family member led to a CPS case. He stopped living with his second child because he left the state as a result of a CPS case. His third child lives with the child's grandmother. Adam voluntarily terminated his rights to his fourth child, Benny. He explained that he and Mother broke up after his youngest child was born because he went to prison for six years. He was paroled to Florida in 2018, where his elderly mother lives.

         Adam testified that he had completed two in-house drug treatment programs. He denied having any mental health diagnosis. At the time of trial, he had five years remaining on his probation. At the time of trial, Adam was working full-time for Goodwill Industries and he operated a side business reselling goods. Petitioner's Exhibit 59 was admitted into evidence, which Adam identified as a certified copy of his conviction for aggravated assault/bodily injury. Adam identified Exhibit 58 as his conviction for arson. Exhibit 60 was also entered into evidence, which was the 2013 final order of termination of Mother's and Adam's parental rights to Benny. Exhibit 61 was entered into evidence, which was the 2011 final order of termination of Adam's rights to a child older than Benny.

         Testimony of Allison Allen

         Captain Allison Allen, with the Montgomery County Sheriff's Department, testified that in March 2006, she worked on an investigation about a sexual assault by Father. Referring to her report, Allen testified that the alleged victim was Daisy West, who was nine years old at the time of the assault. Allen agreed that Daisy made allegations of sexual abuse by Father. Allen recalled that she filed the case with the D.A.'s office, but the D.A. refused to prosecute the charges.

         Testimony of Sylvie Acklin

         Detective Sylvie Acklin with the Conroe Police Department testified that she worked as a forensic interviewer at Children's Safe Harbor, where Daisy was referred in March 2006 following allegations of sexual abuse. According to Acklin, Daisy was eight years old at the time and alleged that her uncle sexually abused her by genital touching, genital exposure, and forced oral sex. A video-recording of a forensic interview of Daisy was admitted later in the trial as Petitioner's Exhibit 62.

         Testimony of Brandy Powell

         Brandy Powell, a licensed professional counselor and registered play therapist, testified that she provided therapy for Amy and was told by CPS to observe Amy and Father interacting during the counseling. Powell met with Amy and Father in three visits in October and November 2018. Powell stated that Father cried during the first meeting with Amy, and Powell generally described the visits between Amy and Father as follows: "The child did not recognize the father. She had no emotional connection with him. No foundation. No parental, no child foundation of a relationship." Powell testified that she recommended that the visits between Amy and Father be discontinued because the visits could be confusing, traumatic, or emotionally damaging for Amy because the child had no connection to Father as her father, and the clerk's record includes Powell's letter making such recommendation as an exhibit to the Department's December 2018 "Motion to Suspend [Father]'s Visitation and Motion for No Contact[.]" In Powell's opinion, Amy should have had more of a relationship with Father than what Powell observed, even considering that Father had been in prison for two of Amy's three years. Powell also testified about Petitioner's Exhibits 4 through 56-various posts from Father's Facebook page that had been admitted over Father's objection-which she regarded as "Extremely violent[, ] [d]emeaning[, ]" "alarming[, ]" and "hurtful towards women." Powell testified that, in her opinion, if Amy were returned to Father, there was a "high chance" that emotional, psychological, or physical damage to Amy would result and Powell had "very, very high concern, extremely high concern." Petitioner's Exhibits 65 through 67 were admitted, which were copies of Brandy Powell's notes of visits between Father and Amy. Powell stated in her session notes that she did not observe a parent-child bond, Amy played with Father "as if he is a stranger[, ]" and uprooting Amy into Father's care "would be traumatizing."

         Testimony of Brenda

         Brenda, a CPS conservatorship worker, testified that she was assigned to this case in August 2017 when Mother had just returned from Colorado. According to Brenda, Mother had not had stable housing during the case, and Brenda did not think Mother had "ever had a stable place[, ]" although she acknowledged that Mother had reported she now had a stable place. According to Brenda, Mother never told her she had married Adam and that she was living with him, and Brenda learned this in court.

         Brenda testified that Mother kept in contact with her "on and off[]" for the first year of the case, and for some time period, Mother did not have a working phone number. Brenda summarized the court-ordered service plan for Mother and testified that Mother had completed parenting classes, a psychological evaluation, and substance abuse assessment and treatment. Brenda explained that she had requested therapy notes from the Florida service providers, she had only received attendance notes and certificates of completion, and Mother's counselor in Florida was unlicensed and not approved by the Department. According to Brenda, CPS had asked Mother to do intensive substance abuse treatment after a positive drug test, but Mother refused. Brenda testified that many times when she met with Mother, Mother was "very paranoid. Very unstable[, ]" was not clean, and reported that someone was recording her. According to Brenda, Mother had reported she had been kidnapped by the Dowlings for fourteen years and the Dowlings prostituted her, and because the Dowlings wanted to kill Mother and Amy, Mother demanded that Brenda send Amy to another state with Mother.

         Brenda agreed that Mother attended a couple of visits with Amy but did not complete family counseling, the therapist recommended the visits be suspended, and the court suspended her visits. Brenda described Mother's first visit with Amy as "traumatic[]":

[Amy] looked terrified of her. She didn't want her to come close to her, not even two feet close to her. She was crying. As soon as she saw her walking in the door, she wanted nothing to do with her. And she just cried the entire visit. Mom was very inappropriate with her, and I had to stop the visit short. So we ended the visit early.
. . .
So [Amy] was sitting on the sofa, and, you know, she was just frightened. She looked really scared, and so she didn't want mom to come close to her, so mom kept telling her to get over it. She kept saying, get over it, get over it, and that was obviously inappropriate for a two-year-old that doesn't understand what she means by telling her to get over it. So mom just looked more -- mom looked mad at the fact that the child was acting that way. Towards her.

         Brenda testified that, at the time of trial, Mother had not completed her twelve-step program, Mother only had three or four months of "clean" drug tests, and the Department did not have any drug test results for Mother for about the last ten months. According to Brenda, the Department was only obligated to pay for drug testing in Texas. Brenda had received no proof that Mother was attending an outpatient substance abuse program and only learned in October or November 2018 that Mother was attending counseling. Brenda had received attendance notes and certificates from Mother's counselors but had not received progress or therapy notes. Brenda was concerned that she did not know how often Mother's service provider in Florida was sending her for drug testing. Mother's Exhibit 24 was admitted into evidence, which included records from her counseling service provider in Florida.

         Brenda testified that Mother had provided no proof of income or employment except for one time in September 2018, and Brenda recalled that Mother sent a picture of her check stub and a copy of her work schedule. According to Brenda, Mother needed to send a paycheck stub at least monthly to show that she can maintain her job. Brenda arranged for a police officer to visit Mother's home in Florida in January 2019 and take photos, and the only concern the officer reported was that there were "a lot of sex offenders in that area[]" and the officer knows many people who live in that area. Brenda had reviewed the photos the officer provided and saw nothing in the photos that caused her concern. Brenda also testified that, as to proof of residency, Mother had only provided an address, and when the Florida police officer visited Mother's home, it was a different address than the one Mother had provided to the Department.

         When asked what danger Amy would be in if returned to Mother, Brenda responded:

. . . She's going to be placed with two individuals that have extensive drug use and criminal history, that she doesn't know them. She has no relationship with []either [Mother] or her husband. We are worried that she won't have a stable home because [Mother] has not been able to show that to [Amy] or provide that to [Amy].

         Brenda also testified that, if Amy were placed with Mother in Florida, CPS would be unable to visit or do any monitoring, although she agreed that there was a procedure for requesting Florida CPS to monitor.

         Brenda testified that her first contact with Father was in August 2018 when he got out of jail but that the Department had stayed in contact with him while he was incarcerated. Brenda was unaware of any cards or letters that Father sent to Amy while he was incarcerated. According to Brenda, Father missed four drug tests, he had been unable to do a hair follicle test because he did not have enough hair, but he did submit to a nail test. Brenda testified that Father had not been discharged from counseling. She agreed that Father had visited with Amy three times, until the visits were stopped, and the Department would not "hold[] that against him[.]" Brenda further agreed that the Department sought to terminate the visits based on the therapist's recommendation.

         According to Brenda, Father had initially provided the name of his brother Ramon as a possible placement for Amy, but the home study determined that Ramon was not truthful, he was only borrowing a home to pass the home study, and he was really living in a small trailer that was not safe or appropriate for a child. Brenda testified that she had visited Father's home, where she observed a danger of "[b]ig pit bulls." Brenda agreed ...


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