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In re N. G.

Court of Appeals of Texas, Fifth District, Dallas

August 30, 2019

IN THE INTEREST OF N. G., A CHILD

          On Appeal from the 469th Judicial District Court Collin County, Texas Trial Court Cause No. 469-54747-2012

          Before Justices Schenck, Partida-Kipness, [1] and Carlyle [2]

          MEMORANDUM OPINION ON REMAND

          DAVID J. SCHENCK, JUSTICE

         This appeal of a termination of parental rights is before us on remand from the Texas Supreme Court. Both Mother and Father separately appealed the termination of their parental rights to N.G. Mother challenged the sufficiency of the evidence to support the trial court's findings in support of termination of her rights to N.G. and the trial court's decision to grant a motion to quash a subpoena she issued to N.G.[3] Father challenged the sufficiency of the evidence to support the trial court's findings in support of termination of his rights to N.G.[4]

         On original submission, we determined the evidence was both legally and factually sufficient to support the trial court's findings that Mother and Father failed to comply with the provisions of a court order that specifically established the actions necessary for the parent to obtain the return of the child, N.G. See Tex. Fam. Code Ann. § 161.001(b)(1)(O); In re N.G., 575 S.W.3d 370, 377, 380 (Tex. App.-Dallas 2018), rev'd, -- S.W.3d --, 2019 WL 2147263 (Tex. May 17, 2019). In doing so, we declined to address Mother's and Father's issues challenging the sufficiency of the evidence to support the trial court's findings that they knowingly placed or knowingly allowed N.G. to remain in conditions or surroundings that endanger the physical or emotional well-being of N.G., or that they engaged in conduct or knowingly placed N.G. with persons who engaged in conduct that endangers the physical or emotional well-being of N.G., because only one finding alleged under section 161.001(b)(1) of the family code is necessary to support a judgment terminating parental rights. See Fam. § 161.001(b)(1)(D), (E); In re N.G., 575 S.W.3d at 377, 380. In addition, we determined the evidence was legally and factually sufficient to support the trial court's findings termination of Mother's and Father's rights is in the best interest of N.G. In re N.G., 575 S.W.3d at 378, 381. As to Mother's complaint concerning the quashing of the subpoena issued to N.G., we concluded Mother failed to preserve the issue for appeal, and we discerned no bases for reversal on that account in any event.

         Only Mother filed a petition for review of this Court's decision with the Texas Supreme Court. In her petition, Mother argued this Court failed to address whether the trial court's orders were specific enough to support termination under Section 161.001(b)(1)(O), and argued that because this Court did not address the legal and factual sufficiency of the trial court's findings under subsections D and E of section 161.001(b)(1), concerning endangering the physical or emotional well-being of N.G., Mother could face a future termination of her parental rights as to another child under Section 161.001(b)(1)(M) without a determination concerning the sufficiency of the evidence on the predicate issue, [5] an issue Mother did not raise in her briefing with this Court.

         The supreme court reversed our judgment affirming the trial court's termination of Mother's parental rights, concluding due process and due course of law requirements mandate that an appellate court detail its analysis for an appeal of termination of parental rights under Section 161.001(b)(1)(D) or (E) of the family code and this Court failed to address the specificity of the court order establishing the steps or actions necessary for the parent to obtain return of the child. The supreme court remanded the case to us for further proceedings consistent with its opinion.[6]

         We requested that Mother and the Dallas County Child Protective Services Unit of the Texas Department of Family and Protective Services ("Department") submit supplemental briefing responsive to the supreme court's opinion. Neither Mother nor the Department supplemented their briefing.

         Background

         Mother and Father met in 2008 and married before N.G. was born in 2011. Five months after N.G. was born, Father went to prison for two years for a drug offense. He was released in April 2014. In January 2015, Mother went to jail. She was released six months later. In September 2015, Father was arrested and jailed for a violation of probation he received in connection with a robbery charge. He was released from that confinement on December 13, 2015.

         On October 25, 2015, a referral was made to the Department as to Mother and N.G., who was approximately four years old at that time. The report included allegations that Mother and others living in the home they occupied were using drugs in front of, or around, the child and that there were signs of hoarding in the home. A Department investigator visited the home and, although there was some clutter and mess, she saw nothing dangerous. Mother told the Department investigator that she was employed; that the home she, N.G., and her adult son lived in was owned and occupied by a woman named T.B.; and that she was not presently using drugs though she had used methamphetamine and cocaine in the past. At that time, Mother refused to provide an oral swab for a drug test. The Department investigator saw N.G. sleeping and he appeared to be unharmed. After the visit, the Department investigator made several unsuccessful attempts to get Mother to submit to a drug test.

         Less than a month later, in November 2015, the Department investigator learned from Mother's probation officer that Mother had tested positive for illegal drug use. Mother admitted to using methamphetamine once in October 2015, but stated N.G. was not around at the time. On November 10, the Department investigator, Mother, and Mother's adult daughter met to determine where N.G. would be placed while Mother was in jail for failing her drug test while on probation. At that meeting, Mother agreed to submit to a drug test, and it was determined that N.G. would stay with his maternal grandmother ("Grandmother") who would supervise any visits with Mother. Mother also consented to having N.G. tested for drugs. His test returned positive for illegal drugs. Despite her agreement to be tested, Mother did not submit to testing.

         On November 17, 2015, the Department filed its original petition for protection of the child and for temporary managing conservatorship. The Department sought removal of N.G. because Mother had tested positive for methamphetamine, Father was currently incarcerated, Mother failed to take a drug test after numerous requests from the Department, and there was a long history of Department referrals. N.G. was removed from Grandmother's home in February 2016 after the Department discovered N.G. was not with Grandmother and could not be located for several days and because Grandmother was uncooperative and refused to allow N.G. to participate in therapy or be evaluated. N.G. was then placed with a paternal uncle until May. That placement ended because the paternal uncle no longer wished to care for N.G. N.G. was then placed in foster care and has remained with the same foster family since, although he was placed in respite for thirty-five days due to an injury N.G. sustained while roughhousing with another child.

         On May 12, 2016, the Department amended its petition to request the termination of Mother's and Father's parental rights to N.G. Although Mother and Father were married at the time the Department filed its original petition, the two divorced, and Father remarried before the case proceeded to trial. During the course of litigation, the trial court ordered both Mother and Father to participate in several education programs, drug and alcohol treatment, and counseling services.[7]

         The case proceeded to trial, which took place over several days during the summer of 2017.[8] At the close of Department's case, Mother requested directed verdicts on six of the grounds for termination set forth in the Department's first amended petition. In response, the Department abandoned those challenged grounds.[9] Father requested directed verdicts on several of the grounds asserted against him, and the trial court granted a directed verdict as to some of the grounds. At the end of trial, the trial court terminated Mother's and Father's parental rights and later signed an order terminating the parental rights of both based on findings under subsections D, E, and O of section 161.001(b)(1) of the family code. See Fam. § 161.001 (b)(1)(D), (E), and (O). The order also appointed the Department as the permanent managing conservator of N.G.

         Discussion

         A court may terminate a parental relationship if it finds by clear and convincing evidence (1) one or more statutory grounds for termination and (2) that termination is in the child's best interest. Fam. § 161.001(b)(1)-(2). Clear and convincing evidence is 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. Id. § 101.007. Here, the trial court found the Department had proven by clear and convincing evidence that Mother had:

knowingly placed or knowingly allowed the child [N.G.] to remain in conditions or surroundings that endanger the physical or emotional wellbeing of the child; [Tex. ...

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