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In re Z.J.

Court of Appeals of Texas, Second District, Fort Worth

November 21, 2019

In the Interest of Z.J. and D.J., Children

          On Appeal from the 367th District Court Denton County, Texas Trial Court No. 17-8176-367.

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


          Dabney Bassel Justice.

         I. Introduction

         This is an ultra-accelerated appeal[1] in which Appellant B.H. (Father) appeals the termination of his parental rights to his daughter Jane[2] and in which Appellant K.J. (Mother) appeals the termination of her parental rights to her daughter Jane and her son John following a two-day jury trial.[3] In two points, Father argues that it was unconscionable for the trial court to terminate his parental rights to Jane based on his failure to comply with his service plan because of his indigence, and he argues that the evidence is insufficient to support the trial court's endangering-environment and endangering-conduct findings. Mother's court-appointed attorney filed a motion to withdraw as counsel and an Anders brief in support of that motion. Because an unchallenged predicate ground supports the termination of Father's parental rights and because Mother's appeal is frivolous, we affirm the trial court's judgment terminating Father's parental rights to Jane and terminating Mother's parental rights to Jane and John.

         II. Factual Background[4]

         A. Overview

         At the time of the termination trial in March 2019, Mother had been in a relationship with John's father for nine years. Mother's relationship with Father coincided with her relationship with John's father, when they all lived in Michigan. Mother, Father, and John's father have all struggled with drug use, and Mother and the children lived with John's father in a drug house in Michigan.

         In December 2016, Mother moved Jane and John to Texas in search of a better environment for her kids, but she moved into another drug house. During a drug raid on the home in September 2017, police discovered unsanitary conditions in the home and found a gun sitting on a dresser and cocaine residue on a scale that was accessible to the children. The Texas Department of Family and Protective Services (the Department) was called to the scene and took possession of the children.

         Mother's parental rights to Jane and John were terminated based on the endangering environment and endangering conduct that Mother had exposed them to in addition to failing to complete her court-ordered services. Father, who lived in Michigan throughout the case and who tested positive for various illegal drugs, had his parental rights to Jane terminated based on exposing her to an endangering environment and endangering conduct, failing to complete his court-ordered services, and constructively abandoning her. Additionally, Mother's and Father's parental rights were terminated based on the jury's best-interest findings.

         B. Life in Michigan

         Mother, who grew up in Michigan, started smoking marijuana at sixteen and continued smoking marijuana as she got older. Mother testified that in Michigan, people consider marijuana use to be normal because it is legal to use it for both medicinal and recreational purposes. Even though Mother knew that marijuana was a drug, she "didn't think that it was a big problem" for her. Mother believed that marijuana helped reduce her rage issues. Mother said that marijuana kept her calm and kept her out of trouble and that without it, her anger was "just unmanageable."

         After giving birth to Jane in June 2014, Mother did not work outside the home. Mother said that Father never came to see Jane and that he did not do "anything pertaining to taking care of her." Mother testified that when she applied for food stamps in Michigan, Father was not providing any financial support for Jane.

         Mother testified that when she was pregnant with John, she smoked marijuana until she was six-and-a-half months pregnant but then stopped because she wanted John to test negative for drugs when he was born in June 2015.[5] Mother mentioned that she was involved with CPS in Michigan because John tested positive for marijuana, but she did not specify when this occurred.

         Mother testified that she had knowledge of John's father's criminal activity in Michigan: she knew that he smoked marijuana, hung around the wrong crowd, and dealt drugs. Mother admitted that she and her children lived with John's father in Michigan while he was dealing drugs. Mother testified that she decided to move to Texas on December 24, 2016, because "the living environment in Michigan wasn't fit for [her] to raise [her] kids there."

         C. Life after Moving to Texas

         When Mother came to Texas, she moved in with John's paternal aunt and her fiancé. When Mother moved in, she knew that they were selling drugs out of the home. Mother later testified that when she had moved in, she did not know that drugs were being sold out of the house, but "months afterwards[, ]. . . that is when [she] caught on that it was drugs being sold out [of] the house." Mother testified that she did not want to raise her children in a drug house but that she did not have anywhere else to go and was doing the best that she could at that time.

         Mother testified that John's father moved to Texas in February or March 2017 and that he did not immediately start selling drugs. But Mother knew that John's father was using drugs. Mother also knew that John's father was a felon and that he had a gun, but she testified that she did not know that the gun was located in the room where they slept. Mother testified that her children did not have access to the gun. Mother said that she had talked to John's father about getting rid of the gun and about abstaining from drugs but that he did not take her advice.

         Mother was also using drugs. Mother said that she spent $50 per day on marijuana, which equated to twenty or twenty-five "blunts."[6] She testified that it took her at least seven blunts to get high and that once she started sobering up, she then decided whether she wanted to get high again.

         D. Mother's Parenting Skills in the Texas Drug House

         Mother testified that she worked at a group home doing laundry and housekeeping for five or six months and that her children were watched by the people she was living with who were dealing cocaine and marijuana. When asked what steps she had taken to protect her children from the drugs, Mother admitted that she did not do anything to keep her children away from the cocaine and the marijuana that was in the house where they were living.

         Mother testified that John's behavior and anger was worse than other two-year-olds and was different than anything she had ever seen. Mother said that when John did not get his way, he tended to throw things, hit people (without regard to their size or their age), "mess up" televisions, throw dirt in kids' hair, take stuff from kids, or bite them. When asked if she had ever tried to teach John not to hit people or how to calm down, Mother said that she had talked to him about not hitting people but that a two-year-old boy "ain't just going to take that and run with that." Mother said that she did not ever seek any professional help for John. Mother said that she had tried to handle John by giving him juice or popsicles, by letting him watch Spiderman, or by taking him to the park until he fell asleep.

         Mother admitted that John was a handful for her and that she had left a thirteen- or fourteen-year-old girl in charge of him when he played outside. Mother did not think that the teenager could more effectively handle John than she could.

         E. The Drug Raid

         Detective Adam Deweber with the Denton Police Department testified that he was familiar with Mother and John's father based on numerous tips in the summer of 2017 regarding drug activity at their residence. Based on the tips, Detective Deweber used a confidential informant who made multiple purchases of crack cocaine at Mother and John's father's residence. The last controlled purchase was made in September 2017, and the person who sold the drugs to the confidential informant was "Little Man," who is John's father. Detective Deweber then obtained a search warrant for the residence, and Denton Police Department's tactical team executed the search warrant around 9 a.m. on September 22, 2017.

         After the tactical team secured the home, Detective Deweber was present for the search of the home. Detective Deweber testified that John's father had voluntarily told him that he had a nine-millimeter handgun in his possession and that it was located on the dresser next to his bed. John's father was arrested on a warrant for manufacture and delivery of under one gram of cocaine, and Mother was arrested for endangering a child. Detective Deweber explained that the endangerment charge was due to Mother's "keeping her kids in a known drug house where drugs were being used and sold that ultimately ended in a tact[ical] raid[, ] which put those kids in danger." Detective Deweber testified that the children were in danger because it is "not a safe environment to have kids in a house where drugs are being used and sold."

         F. The Department Takes Possession of the Children

         Shani Darthard, an investigator with the Department, testified that she was assigned to respond to the drug raid in which Mother and John's father were arrested. When Darthard arrived on the scene, six adults were handcuffed in the backyard, and four or five children were running around. The police told Darthard that they had conducted controlled purchases of drugs from the home, that the children were present during the purchases, that cocaine was accessible to the children, and that there were guns in the home.

         Darthard spoke with Mother, who was crying and upset. Darthard's understanding was that Mother lived in the drug house because she did not have anywhere else to stay after she and her children had moved to Texas. Mother told Darthard that she knew drugs were being sold out of the home but that she did not want to report it because she did not want to be a snitch. Mother denied knowing that there were guns in the home.

         Mother told Darthard that she was using marijuana "[a]ll the time. Every day." Mother indicated to Darthard that she had an anger-management problem and said that was one of the reasons that she used marijuana daily. Mother explained that she used marijuana because it helped her with her attitude and with staying calm when her children screamed, which they did "a lot of." Mother agreed to take a drug test and stated that she would test positive for marijuana. Mother said that she did not use any other drugs. Mother signed an acknowledgement of substance abuse and admitted that she had abused substances in the children's presence.

         Darthard spoke with John's father who said that he had moved to Texas in March or April 2017. He took responsibility for the situation and admitted to selling and using drugs. John's father said that his and Mother's most recent marijuana use was the day before they were arrested.

         When Darthard entered the home, she encountered piles of trash, piles of clothes, holes in the wall, dirty dishes in the kitchen, flies everywhere, and "food and stuff everywhere." The police pointed out to Darthard a scale and cocaine that were on the table. Darthard also noted that the children did not have beds to sleep in. Darthard testified that the children's living conditions were deplorable, posing a safety hazard, and agreed that the home was not a place to raise children. Darthard believed that the children were endangered by living in a home where drugs were being sold.

         Darthard testified that a coworker took possession of the children on September 22, 2017. The children were taken for drug testing, and based on the results of the drug tests, the Department had further concerns.[7] The children were placed in foster care.

         G. Mother's Release from Jail

         After her arrest on the day of the drug raid for two counts of child endangerment-one count based on Jane and one count based on John-Mother spent two or three days in jail. Her mother came from Michigan to bail her out. Mother also received financial help for meeting her $25, 000 bond from the people she was living with.

         H. The Department Learns that John's father Is Not ...

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