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In re C.V.L.

Court of Appeals of Texas, Fifth District, Dallas

December 13, 2019

IN THE INTEREST OF C.V.L., A CHILD

          On Appeal from the 304th Judicial District Court Dallas County, Texas Trial Court Cause No. JC-17-01086-W

          Before Justices Whitehill, Partida-Kipness, and Pedersen, III

          OPINION

          ROBBIE PARTIDA-KIPNESS, JUSTICE

         Father appeals the trial court's decree terminating his parental rights to his daughter, C.V.L. In two issues, Father argues the evidence was legally and factually insufficient (1) to support termination of his parental rights under sections 161.001(b)(1)(D) and 161.001(b)(1)(E) of the Texas Family Code and (2) to support the trial court's finding that termination was in the child's best interest. For the reasons that follow, we reverse the portion of the decree that terminated Father's parental rights to C.V.L., reverse the portion of the decree appointing the Department as the permanent managing conservator of C.V.L., and remand the case to the trial court for a new trial.

         Background

         C.V.L. is a female child born August 15, 2016. D.N.H. is her mother, and C.L.L. is her father. The Texas Department of Child Protective Services ("the Department") received a referral when C.V.L. was born because Mother tested positive for cocaine twice prenatally and then her meconium was positive for cocaine at birth. But the Department did not remove C.V.L. at that time. Instead, the Department instituted a safety plan that required C.V.L. to be left with Father, required Mother to have only supervised visitation with C.V.L., and prohibited Mother from living with Father and C.V.L.

         I. The 2017 Referrals

         In August 2017, the Department received another referral due to concerns regarding the child's living environment. Specifically, the referral raised concerns that the living environment had mold, dirty dishes, and fleas, and that Mother was using drugs. Father denied that Mother was living in the house but admitted that Mother would sometimes spend the night. Father's drug test came back negative at that time, but Mother's was positive for methamphetamines and other drugs. The Department received a re-referral alleging that both parents were using methadone and Mother was stealing grandfather's diabetic needles to shoot up drugs. Father's October 2017 hair drug test was positive for methamphetamines. Father declined placement options, and the child was removed from Father's possession. Mother admitted she used methamphetamines, but Father did not admit using methamphetamines. The Department filed the underlying lawsuit in October 2017 seeking termination of the parental rights of both Mother and Father.

         Father submitted to a psychological evaluation on November 20, 2017. LifeSmart Therapy Institute conducted the evaluation of Father's current psychological functioning as requested by the Department. During that evaluation, Father reported that he failed a drug test in October 2017 and tested positive for methamphetamine, but denied ever using the drug. He claimed that Mother admitted to drugging him without his knowledge, and that is why he failed the drug test. He also admitted that he allowed Mother to live with him and C.V.L. when it seemed like Mother was not using drugs.

         In December 2017, the trial court issued temporary orders that included services for Father to complete. The services ordered included parenting classes, drug treatment, and counseling. Father completed the parenting classes. He completed the counseling through LifeSmart and received a successful discharge from that counselor. He participated in drug treatment through Restoring Lives and also received a successful discharge from that treatment. Following Father's negative drug tests in January 2018, March 2018, and May 2018, those providers recommended that C.V.L. be put back in the home with Father. At that time, however, the Department remained concerned about Mother because she was not cooperating, not submitting to drug tests, and not completing services.

         II. The 2018 Monitored Return

         On June 29, 2018, the parties mediated the underlying case and implemented a Mediated Settlement Agreement under which the parties agreed to a monitored return of C.V.L. to Father. During the monitoring period, Father agreed to continue to participate in random drug testing as requested for and paid for by the Department, to maintain his residence in a sanitary and safe manner, and to allow the Department, the guardian ad litem, and the Court Appointed Special Advocate (CASA) representative to have announced and unannounced visits with the child in the home. Father also agreed that Mother would have no visitation until she submitted to a hair strand drug test as arranged and paid for by the Department. C.V.L. was placed in the home with Father for a six-month monitored return on June 29, 2018.

         III. The 2018 and 2019 Drug Test Results

         Father submitted to urinalysis drug tests on July 19, 2018 and August 15, 2018, both of which returned negative results. A random drug test performed on Father's hair follicles on September 25, 2018, however, returned a positive result for amphetamines and methamphetamines. In response, the Department removed C.V.L. from Father's care on October 9, 2018 and placed her in a foster home.

         After the removal, Father submitted to random drug tests on October 23, 2018, November 27, 2018, December 13, 2018, January 3, 2019, and February 21, 2019. The October 23, 2018 test was a toenail analysis that was positive for amphetamines, methamphetamines, cannabinoids, and carboxy-THC. The November 2018, December 2018, and January 2019 tests were urine analyses that came back with negative results. The February 2019 hair test was also negative. Father obtained a toenail analysis on March 5, 2019, which was positive for methamphetamine.

         IV. Father's Counseling and Treatment

         After removing C.V.L. from Father's care in October 2018, the Department ordered Father to undergo drug treatment. Shetara Bonds, the caseworker assigned to C.V.L.'s case, referred Father to Metrocare Services ("Metrocare") for treatment. The Metrocare patient records show that Father presented to Metrocare for drug rehabilitation counseling as ordered by the court on November 16, 2018 as part of custody proceedings. Later medical records show that Father denied drug use and refused psychiatric medications to treat bipolar II disorder at a December 14, 2018 follow-up appointment but agreed to participate in counseling.

         Through Metrocare, Father participated in substance abuse counseling through an Intensive Outpatient Program (IOP) and a Supportive Outpatient Program (SOP). Metrocare discharged Father from both programs on April 1, 2019 because he completed the program and made sufficient growth. On discharge, Metrocare recommended that Father attend Alcoholics Anonymous meetings twice a week for six months, identify ten triggers that could lead to a relapse within forty-five days, and identify and list three positive people in his support system within forty-five days. The discharge notes show a diagnosis of "Amphetamine-type substance abuse disorder. Moderate" and "Alcohol use disorder. Moderate"

         V. The Trial

         After passing all four drug tests between November 2018 and February 2019, Father filed a motion for return of child to his possession. Father waived his right to a jury trial and, on April 9, 2019, the case proceeded to a bench trial on Father's motion and the Department's petition to terminate Father's and Mother's parental rights. Father and the following witnesses testified at trial: Katurah Boyce, the Department's investigation supervisor; Chris Turnage, Toxicologist and Managing Director of Forensic DNA and Drug Testing Services; Shetara Bonds, the Department caseworker assigned to C.V.L.'s case from December 2017 through March 2018; John Parker, a friend of Father and potential caregiver for C.V.L.; Lorrie Al-Bohi, C.V.L.'s babysitter; Ronald Aland, guardian ad litem; and the CASA representative.

         Boyce provided background information concerning the events leading to the filing of the lawsuit in October 2017. Her last involvement with Father was after the fourteen-day hearing held following the filing of the lawsuit.

         Father testified at length. He told the court that he and Mother were together for seven years before conceiving C.V.L. He thought Mother had stopped using drugs until he found out she tested positive while pregnant with C.V.L. Father admitted that Mother lived with Father and C.V.L. during C.V.L.'s first four months of life. Father maintained that he thought Mother was allowed to live there because she was always in Father's or his family's supervision. After C.V.L. was four months old, Mother "took off for eight months" until the summer of 2017 when he and Mother began an off and on relationship. They would meet in hotels while C.V.L. was being watched by someone else. Father would not allow Mother to be around C.V.L. at that time because she was "heavily doing methamphetamines." Father understood that the Department took C.V.L. away from him in October 2017 because he "popped positive for methamphetamine." His explanation for why he testified positive for methamphetamines was "I slipped up." Father maintained the October 2017 positive test result was from a one-time-only use when he got the drugs from Mother and smoked them with her outside of his house. He testified that was the first time he had used methamphetamines. In Father's opinion, "That means I'm a user not an abuser, not a - I'm not an addict, but I am an addict, I guess."

         During the summer of 2018, Father was in contact with Mother for about two months after C.V.L. was returned to Father during the monitored return. Father and Mother would meet at motels or other places away from home and have sex when C.V.L. was at day care. But Father testified Mother was never around C.V.L. during that time, maintained he no longer had contact with Mother at the time of trial, and denied still being in a relationship with Mother. He testified that he stayed in the relationship in the past because he "has a big heart and, you know, she's the mother of my child." But he loves his child and "didn't want this for my child" and that is why he has continued going to the classes and done what the court and the Department have ordered and asked him to do. Father never missed a supervised visit with the child and was only late one time due to traffic on the expressway.

         Father maintained at trial that he only used methamphetamines once in his life, and that use occurred in 2017 outside of his home with Mother. He believes that the positive drug test results in 2018 and 2019 were the result of coming into contact with drugs. Specifically, Father told the court that he came in contact with several methamphetamine pipes and crack pipes in a van in which he was installing a GPS system at work. He believed that by spending several hours in the van, the drug residue from the pipes contaminated him, which resulted in the positive drug tests in September 2018 and October 2018. He also testified that he had engaged in sexual intercourse with Mother during the summer of 2018 during a time that Mother was using methamphetamines. Father argued that the positive test results were caused by contamination from those sexual encounters.

         The Department presented expert testimony to rebut Father's single-use explanation and contamination-by-contact theories. Chris Turnage, Toxicologist and Managing Director of Forensic DNA and Drug Testing Services, first explained what the different tests measured and then discussed Father's results. Urine tests are used to test for the presence of the evidence of drugs in the system for the prior two to four days. The test looks for "the evidence of the metabolite of any illegal substances or prescriptions in their system." A negative result is indicative of somebody that had not used the tested-for substance in the prior two to four days "assuming the sample was not diluted." Testing head hair detects drugs ingested in the past three months, while testing body hair detects drugs ingested in the past seven to twelve months. The window of detection for toenails is eight to twelve months. Turnage emphasized, however, that anything consumed in the two to three weeks before a nail or hair test will not show up in those tests because the drugs have not had enough time to make it into the sample at that point. Also, the detection windows depend on the growth rate of the individual's hair or nails.

         After reviewing the test results from Father's samples, Turnage concluded that the test results indicated at least two separate incidents of drug usage by Father. First, Turnage opined that the October 2017 positive hair test shows use in the three months prior to October 2017. That test was positive for methamphetamines at a level of 6119, which according to Turnage is indicative of somebody that used the drug recreationally. He stated that the subject "may not be daily users, but they have it when they have it readily available at a party or hanging out with friends on the weekends or just when they're able to get their hands on it." Second, Turnage believed the September 25, 2018 positive hair test indicated a new use that would go back ninety days, with a window of detection from June 2018 through September 11, 2018.

         The two toenail tests (October 23, 2018 and March 5, 2019) showed methamphetamine consumption during timeframes that overlapped at least the window of detection for the September 25, 2018 positive hair test and possibly for the October 2017 hair test. Turnage agreed that the October 23, 2018 positive nail test result, which was positive for two different classes of drugs, amphetamines and cannabinoids, could potentially be detecting use from 2017 that was also detected in the October 2017 hair sample. Turnage concluded without question that the March 5, 2019 positive nail test showed that methamphetamines were consumed at some point in time within a maximum window of detection from March 5, 2018 (twelve months before the test) to approximately February 19, 2019 (two weeks before the test). That window of detection, therefore, overlapped the window covered by the September 25, 2018 positive hair test. Turnage, therefore, concluded that the results showed at least two separate incidents of drug usage by Father, once in the three months prior to October 2017 and once between early June 2018 and September 11, 2018.

         Turnage also testified that the 2018 and 2019 positive test results could not be caused by contact or environmental exposure. To the extent the exposure occurred in the two weeks prior to the date of collection, such exposure was not covered or tested in a hair or nail sample because it had not yet had enough time to go into the system to be tested. Moreover, Turnage testified that just being inside a vehicle that had methamphetamine pipes inside for a few hours would not be enough to show positive for environmental exposure:

Q. So a one-time, one-day intersection with an environment that had meth located in it, so like used pipes or other things around it, would you expect that to produce any type of a positive read on any test?
A. No.

         Turnage also confirmed that having sexual intercourse with an active user would not result in the non-user testing positive because it would take a scientifically impossible amount of exchange of bodily fluids to read positive results.

         Shetara Bonds, the Department caseworker assigned to C.V.L.'s case from December 2017 through March 2018, also testified at length. Bonds confirmed that Father completed the IOP and SOP programs through Metrocare. But she expressed concern that completing those programs would not prevent a relapse because Father had completed drug treatment programs in the past but then tested positive for the same substances - methamphetamines - again. Even though Father completed the Metrocare services, Bonds told the court that the Department was still seeking to terminate his parental rights because "he doesn't acknowledge the drug use or the main concern of the Department which is the drug use. So, we're kind of like how is he completing the services successfully if he doesn't acknowledge that the problem exist[s]." She noted that, even if the Department believed that Father has stopped using, that did not change its opinion regarding termination because Father has never admitted to actively using. Bonds conceded on cross-examination, however, that Father admitted prior drug use during his trial testimony.

         Bonds confirmed that the Department's position is that Father's parental rights should be terminated based on drug usage and the potential of future drug usage. Bonds acknowledged that there is a tremendous bond between Father and child, and she did not see Father intentionally putting the child in danger. However, Bonds believed there was the possibility that the child will be put in danger if Father continued to use drugs. Bonds described the danger to C.V.L. as Father's "history with drug use, him not acknowledging his drug use, the possibility of there being another return and the same pattern continues. That's pretty much the gist of it." She stated that she fears for the safety of the child "based on what the experience has been since this case has been open."

         John Parker, Lorrie Al-Bohi, and Ronald Aland each testified favorably for Father. Parker has known Father since 2006 and considers Father a good friend. He and Father currently talk every day and spend a lot of time at Father's house. After C.V.L. was born, however, he did not spend much time with Father and, until August 2018, Parker just saw Father in passing. They reconnected at a family birthday party in August 2018. Parker testified that he has never known Father to use drugs, and he does not think Father is using drugs now because Father seems the same now as he has always seemed. Although Parker drinks socially, he does not do drugs and he does not drink when he is out with Father. He thinks Father is up to the task of raising C.V.L. Father and C.V.L. love each other, and Father wants C.V.L. back more than anything. Parker also knows Mother. He knows Mother is a drug user because she admitted her drug use before C.V.L. was born. Parker believes Mother is bad for Father, and it was his understanding that as of August 2018, Mother and Father were no longer together.

         Al-Bohi is a family friend who has known Father for more than twenty years. Al-Bohi was C.V.L.'s babysitter two to three times a week since C.V.L.'s birth. She testified that she is available to take care of C.V.L. on a regular basis or in emergencies if the child is returned to Father. Al-Bohi testified that she misses C.V.L., loves her, and believes she is capable to take care of C.V.L. Al-Bohi also stated that she does not believe that Father tested positive for drugs. Al-Bohi agreed that Father needed to go through family counseling because he had a bad relationship with Mother and Mother has a drug problem. She further acknowledged that she did not know that Father had continued a sexual relationship with Mother into the summer of 2018. She agrees that if Father is hanging around Mother and having sex with her repeatedly when she is using, it shows questionable judgment on his part. It was Al-Bohi's understanding that Father cut off all contact with Mother five or six months before trial after Mother retrieved her belongings from Father's house.

         Aland is the child's guardian ad litem. In addition to questioning witnesses at trial, he also told the trial court that he recommended C.V.L. be returned to Father. Aland told the trial court that Father "is a really good person" who "deserves this chance to get his child back" even though this is Father's second or third chance. Aland's view was that Father plays with C.V.L. during visits, cares about her appearance and cleanliness, has admitted his mistakes, and "is facing his demons." Based on those factors, Aland recommended the trial court return C.V.L. to Father.

         The CASA representative did not provide a clear recommendation. The representative told the court that the representative was "torn on this one" because although the representative thinks Father is a great father, the CASA representative still had "an issue with the drug use."

         VI. The Decree of Termination

         After hearing the evidence, the trial court granted the Department's petition. The final decree terminated both Mother's and Father's parental rights and appointed the Director of the Dallas County Child Protective Services Unit of the Texas Department of Family and Protective Services as C.V.L.'s permanent managing conservator. The trial court terminated Father's parental rights to C.V.L. under sections 161.001(b)(1)(D) and (E) of the family code. The trial court further found that the terminations of Mother's and Father's parental rights were in C.V.L.'s best interest. See Tex. Fam. Code Ann. § 161.001(b)(2). Father timely appealed. The Court granted each party one extension of time to file their opening briefs and submitted the case for decision without oral argument on October 3, 2019.

         Standard of Review

         Because the fundamental liberty interest of a parent in the care, custody, and control of his child is one of constitutional dimensions, involuntary parental termination must be strictly scrutinized. Troxel v. Granville, 530 U.S. 57, 65-66 (2000); In re K.M.L., 443 S.W.3d 101, 112 (Tex. 2014); Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985). In parental termination cases, due process requires the petitioner to justify termination by clear and convincing evidence. Tex. Fam. Code Ann. § 161.001(b); see In re E. N.C. , 384 S.W.3d 796, 802 (Tex. 2012) (citing Santosky v. Kramer, 455 U.S. 745, 753-54 (1982)). "Clear and convincing evidence" is that "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." In re N.G., 577 S.W.3d 230, 235 (Tex. 2019) (per curiam) (quoting Tex. Fam. Code Ann. § 101.007); In re N.T., 474 S.W.3d 465, 475 (Tex. App.-Dallas 2015, no pet.).

         On appeal, we apply a standard of review that reflects the elevated burden at trial. In re A.B., 437 S.W.3d 498, 502 (Tex. 2014); In re A.T., 406 S.W.3d 365, 370 (Tex. App.-Dallas 2013, pet. denied). "As a matter of logic, a finding that must be based on clear and convincing evidence cannot be viewed on appeal the same as one that may be sustained on a mere preponderance." In re A.C., 560 S.W.3d 624, 630 (Tex. 2018) (quoting In re C.H., 89 S.W.3d 17, 25 (Tex. 2002)). Under both legal and factual sufficiency standards, we (i) consider all the evidence, (ii) defer to the factfinder's credibility determinations, and (iii) determine whether the factfinder could reasonably form a firm belief or conviction that the grounds for termination were proven. In re N.T., 474 S.W.3d at 475; In re J.F.C., 96 S.W.3d 256, 265-66 (Tex. 2002). "The distinction between legal and factual sufficiency lies in the extent to which disputed evidence contrary to a finding may be considered." In re A.C., 560 S.W.3d at 630-31.

         In conducting a legal-sufficiency review of an order terminating parental rights, the reviewing court cannot ignore undisputed evidence contrary to the finding, but must otherwise assume the factfinder resolved disputed facts in favor of the finding. Id. at 630-31. We "consider all the evidence, not just that which favors the verdict," and we assume the fact-finder resolved disputed facts in favor of its finding if a reasonable fact-finder could do so. In re N.T., 474 S.W.3d at 475. We disregard all evidence that a reasonable fact-finder could have disbelieved or found to have been incredible. Id.

         When reviewing the factual sufficiency of the evidence supporting a termination finding, an appellate court asks whether, in light of the entire record, the evidence is such that a fact-finder could reasonably form a firm conviction about the truth of the State's allegations against the parent. In re N.T., 474 S.W.3d at 475; In re J.D.B., 435 S.W.3d 452, 463 (Tex. App.-Dallas 2014, no pet.). Further, the appellate court must consider whether the disputed evidence is such that a reasonable fact-finder could not have reconciled that disputed evidence in favor of its finding. Id. If the disputed evidence is so significant that a fact-finder could not reasonably have formed a firm belief or conviction, then the evidence is factually insufficient. Id. "And in making this determination, the reviewing court must undertake 'an exacting review of the entire record with a healthy regard for the constitutional interests at stake.'" In re A.B., 437 S.W.3d at 503 (quoting In re C.H., 89 S.W.3d at 26).

         Discussion

         "Texas Family Code section 161.001(b) allows for involuntary termination of parental rights if clear and convincing evidence supports that a parent engaged in one or more of the twenty-one enumerated grounds for termination and that termination is in the best interest of the child." In re N.G., 577 S.W.3d at 232. Here, the trial court terminated Father's rights under two grounds- sections 161.001(b)(1)(D) and (E)-in addition to finding that termination was in C.V.L.'s best interest. In two issues, Father challenges the legal and factual sufficiency of the evidence supporting the grounds for termination and the finding that termination was in C.V.L.'s best interest. We address each issue in turn.

         I. Termination Under Sections 161.001(b)(1)(D) and (E)

         In his first issue, Father argues that the evidence is legally and factually insufficient to support the trial court's finding that he endangered C.V.L. under subsections 161.001(b)(1)(D) and (E) of the family code.

         A.Applicable ...


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