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In re K.A.

Court of Appeals of Texas, Second District, Fort Worth

September 12, 2019

In the Interest of K.A., a Child

          On Appeal from the 360th District Court Tarrant County, Texas Trial Court No. 360-569007-15

          Before Sudderth, C.J.; Gabriel and Womack, JJ.


          Dana Womack, Justice.

         I. Introduction

         This is an accelerated appeal in which Mother[1] appeals the termination of her parental rights to K.A.[2] In four issues, Mother argues that the trial court entered "conflicting" best-interest findings in its termination order and in its findings of fact, that the findings of fact control, and thus the trial court failed to make a best-interest finding; that the foster parents in this case lacked standing to intervene; and that there is insufficient evidence to support the trial court's finding under Texas Family Code Sections 161.001(b)(1)(F) and 161.001(b)(1)(O). We will affirm.

         II. Background

         Because the Department of Family and Protective Services (Department) had received allegations that Mother had engaged in behavior that endangered K.A.'s well-being, the Department initiated an investigation that ultimately led the Department to seek termination of Mother's and Father's parental rights to K.A. The Department's involvement began on August 9, 2017, when K.A. was two years old. K.A. was placed at five different homes, sometimes more than once, with various relatives and one foster couple over a nineteen-month span before the trial court held a final termination hearing on March 11, 2019. In addition to attorneys for the Department, the hearing also involved Mother's attorney, Father's attorney, K.A.'s attorney ad litem, and attorneys for the foster parents who intervened in this case.

         At the hearing, Dominique Veal, a former investigator for the Department testified. Veal said that while she worked for the Department, on August 9, 2017, she investigated allegations that Mother was using methamphetamine on a daily basis, that K.A. was underweight, and that K.A. had ingested a methamphetamine byproduct while at home. After running a background on the family, Veal attempted to make contact with Mother that evening by going to the home but was unable to make contact. Veal said that she finally made contact with Mother the next day via telephone and then made a home visit on August 11, 2017, where she met Mother, Grandmother, and K.A. According to Veal, Mother denied the allegations.

         Veal stated that she conducted an oral swab on Mother and that the results came back positive for methamphetamine and amphetamines. Veal said that Mother denied having used methamphetamine but did offer the explanation that her boyfriend, whom Mother allegedly had an active emergency protective order against at the time, had given her a white powder contained in a capsule to help her with her bulimia. Veal testified that she discussed Mother's drug use history with Mother and she learned that Mother had previous addictions to Xanax, which resulted in an older daughter being placed with her father, and to Vicodin, which Mother told Veal she stopped using when K.A. turned six months old.

         Veal said that the Department enacted a safety plan that day and that K.A. was temporarily placed with the foster parents with whom he now lives. As part of the plan, Mother was not to have any unsupervised contact with K.A. Initially, the plan specified that K.A. would be supervised by either Grandmother or a neighbor, but later, Veal interviewed Great-Grandmother and made her an alternative placement for K.A. under the plan. That same day, August 18, 2017, Mother submitted to a follicle hair test and again tested positive for methamphetamine and amphetamines. Veal said that these results concerned her because it meant that Mother was actively using methamphetamine. By Veal's account, at some point during the investigation K.A. also tested positive for methamphetamine. Because of these results and because Veal had learned that Mother was still living with Grandmother and sometimes watching K.A. unsupervised, Veal said that the Department implemented a second parental child safety placement which involved ultimately placing K.A. at Great-Grandmother's house.

         Veal met Mother at her home as the second safety placement was being implemented and requested another oral swab from Mother, which Mother refused. Veal returned the next day and obtained an oral swab from Mother-she tested positive again for methamphetamine and amphetamines. Mother then acknowledged that she had used methamphetamine recently. Mother also became confrontational when Veal asked where Mother had been staying the last few days, to which Mother "sarcastically said that she was staying under a bridge." And because Mother had also made a comment about "blow[ing] her head off" during this interaction, Veal said that the Department got the police involved out of worry for Mother's safety.

         Veal testified that difficulty arose while K.A. was placed with Great-Grandmother. Specifically, Veal stated that Mother and Grandmother had threatened to take K.A. from Great-Grandmother and then later Mother and an ex-boyfriend- who was reportedly "a hit man" and the boyfriend that Mother had previously obtained an emergency protective order against-threatened to shoot Great-Grandmother. The experience caused Great-Grandmother to move in with a friend for a while because she was scared.

         According to Veal, because of an upcoming surgery that Great-Grandmother had scheduled prior to K.A. being placed with her, the Department was faced with an urgent need to place K.A. with someone else. Veal said that Mother was not an option because placing K.A. with Mother risked his physical health, safety, and well-being. Because the Department was unable to locate a suitable placement for K.A. after Great-Grandmother was no longer an option, the Department sought removal of K.A. In the second half of 2018, K.A. was placed back with his foster parents.

         Veal also averred that her research into Mother's criminal history revealed that Mother had multiple convictions for assault, a conviction for driving while intoxicated, and a conviction for possession of a controlled substance.

         Gracie Gurrola, a conservatorship specialist with the Department, testified that she received this case in February 2018. Gurrola said that after reviewing the case file, what concerned her the most were Mother's history of drug use and unaddressed mental health issues. According to Gurrola, she grew more concerned about Mother as the case remained pending because during that time Mother was arrested for domestic violence against Grandmother and then she was later arrested for possession of drug paraphernalia. Gurrola also said that Mother had tested positive for drugs during that same time and that she often acted erratic. In all, from initial investigation until trial, Mother tested positive at least six times for methamphetamine and refused to submit a sample on multiple occasions. By Gurrola's account, after refusing to submit a sample, Mother declared that "she was not going to comply with the Department anymore."

         Gurrola said that Mother attended most of her scheduled visits with K.A. while he was placed with others, but Gurrola also said that Mother would become irritable and uninterested if a visit lasted longer than an hour. Gurrola recalled how on one occasion Mother had shouted at K.A. that she "couldn't stand to be around him for long periods of time." By Gurrola's account, Mother's shouting and erratic behavior caused K.A. to run to his room and huddle "into a small ball in the corner." Gurrola said that it took a couple of minutes to calm him down. She also said that Mother had once threatened suicide in front of K.A. and that it was not uncommon for Mother and Grandmother to argue and yell in front of him.

         Regarding Mother's housing situation, Gurrola said that Mother was living with a friend named Moe, but Gurrola was never able to verify Mother's housing accommodations because Mother rescheduled visits to the home multiple times. Gurrola further said that she was concerned because Mother had conveyed to Gurrola that Mother had to exchange sexual favors with Moe in order to remain living with him. Gurrola averred that even though Mother claimed to be employed off and on, Mother never verified any employment with Gurrola, and Mother never demonstrated an ability to provide K.A. with a safe and stable living environment. Gurrola also stated that she did not believe that K.A. should be returned to Mother because she had endangered K.A.'s well-being and had also left him with people in an environment that endangered K.A.'s physical and emotional well-being.

         Gurrola averred that Mother had not completed the majority of her service plan. Under the service plan, Mother was to have a psychosocial assessment and engage in individual counseling. She also needed to demonstrate financial stability and stable housing. Mother was further required to complete a drug assessment and submit to random drug testing.

         Gurrola said that although Mother had initially gone to and been discharged from outpatient treatment for drug use, the program she was in did not consider her a successful discharge because although she attended the requisite number of sessions, "she had not engaged" in the sessions. Gurrola did say that Mother had begun attending another drug-use treatment program beginning in January 2019 and that she had also been seeing an individual therapist since January as well, but Gurrola said that Mother had not successfully completed individual counseling and drug treatment according to her service plan despite being given ample time. On February 15, 2019, Mother refused to submit to a drug test, which Gurrola said that the Department considered a failed drug test. Gurrola further said that despite being prescribed medication for depression, Mother stopped taking the medication alleging that she did not like the side effects.

         Gurrola discussed two possible placements for K.A. that the Department believed were better suited for K.A. than being returned to Mother's care. Gurrola explained that the Department's first choice of placement for K.A. would be with his maternal Uncle and Wife because Uncle and K.A. are related and the Department's policy is that family members are the preferred final placement for children. Gurrola averred that the Department already had an approved home study for Uncle and Wife's home but that Uncle and Wife would need to be named permanent managing conservators. Gurrola stated that under the scenario where Uncle and Wife were named permanent managing conservators of K.A. and he was placed with them, the Department preferred that Mother's rights to K.A. not be terminated, but she admitted that under this plan there was potential instability for K.A. because Mother, or someone else, might ultimately attempt to gain permanent managing conservatorship over K.A. in the future. Gurrola also testified that regardless of K.A.'s ultimate placement, termination of Mother's parental rights was in K.A.'s best interest.

         Gurrola also admitted that Uncle and Wife had given numerous inconsistent answers to Department investigators about past drug use, other family members with addiction issues, prior criminal histories, the ultimate results of Wife's prior involvement with the Department, and previous domestic violence in their home- Gurrola said she did not record these inconsistencies in her report. She further said that Uncle and Wife had still not made certain repairs or adjustments to their home four months after the Department asked them to do so. Gurrola agreed that it was also problematic that Uncle and Wife had reported a monthly gross income in excess of what they would have to report to receive food stamps but that Uncle and Wife had also listed receiving food stamps in their home study report. And even though Gurrola had told Uncle and Wife that they could visit K.A. while he was in foster care, Gurrola could only recall them having visited K.A. once. Neither Uncle nor Wife testified at the trial.

         Gurrola testified that the Department's second choice of placement was with the foster parents that were caring for K.A. at the time of trial. Gurrola stated that under this scenario, the Department was seeking termination of Mother's parental rights and requesting the Department be named permanent managing ...

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