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In re S.L.L.

Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg

January 9, 2020

IN THE INTEREST OF S.L.L., A CHILD

          On appeal from the County Court at Law of Aransas County, Texas.

          Before Chief Justice Contreras and Justices Longoria and Perkes

          MEMORANDUM OPINION

          GREGORY T. PERKES, JUSTICE

         Appellant S.L. (Mother) challenges the termination of her parental rights to her only daughter, S.L.L.[1] See Tex. Fam. Code Ann. §§ 161.001(b)(1)(D), (E), (O), (b)(2). By what we construe as two issues, Mother argues the evidence is legally and factually insufficient[2] to support a finding that appellee, the Department of Family and Protective Services (the Department), met its burden to show that: (1) Mother committed one or more statutory predicate acts or omissions under family code § 161.001(b)(1); and (2) termination is in the child's best interest. See id. We affirm.

         I. Background

         According to Brandy Ritter, a family-based safety supervisor with the Department, S.L.L., Mother, and S.L. (Father)[3] were residing together in Aransas Pass, Texas when the Department first intervened in May 2018 after receiving an anonymous tip regarding methamphetamine use and domestic violence in the home.

         During a bench trial in August 2019, Ritter testified that the family was initially referred to individual counseling, family counseling, substance abuse assessments, substance abuse therapy, and random drug testing. Ritter stated that neither parent was cooperative at the outset. Mother denied drug use and domestic violence, and Father claimed that counseling was "against his religion." On May 21, 2018, the trial court issued an order for required participation in the Department's services.

         Three months later in August 2018, the Department was notified that there had been a domestic violence altercation[4] involving Mother and Father, and law enforcement had been called out to the home for a welfare check. Mother admitted to police, and later to the Department, that she feared for her and S.L.L.'s lives. Arrangements were made to transport Mother and S.L.L. to The Purple Door, a women's shelter in San Antonio, Texas. Mother thereafter remained in contact with Father.

         Ritter testified, "[Father] was threatening the family, and [saying] that he was going to shoot-that he was planning on shooting [Mother] if she wasn't cooperating with him to go back." Law enforcement intervened in San Antonio before Father could reach Mother's location, and Father was found in possession of a firearm. Within days of Father's arrest, he was bailed out of jail, and Mother, Father, and S.L.L. returned to Aransas Pass together. The family was subsequently evicted from their home for failure to pay past-due rent. In August, Mother tested positive for methamphetamine despite continuing to deny any drug use.

         On September 6, 2018, S.L.L. was removed from the home. Ritter testified that the Department removed S.L.L. because: (1) Mother had not been cooperating with services; (2) Mother had tested positive for methamphetamine use; and (3) the Department believed Mother had shown diminished protective abilities by exposing S.L.L. to an unsafe, unstable home environment. According to Ritter, Father suffers from an undisclosed mental illness, and S.L.L. has been exposed to his alarming behaviors. The child has seen Father "acting like people are chasing him, believing things that [sic] are following him, hiding from people, [and] physically harming her mother."

         On October 5, 2018, the Department held a family group conference, detailing Mother's goals and expectations for family reunification. Valerie Moretich, S.L.L.'s case worker, testified that Mother was tasked with, among other things: (1) ensuring a home free of domestic violence; (2) participating in child-parent visitations; (3) participating in random drug testing and substance abuse counseling; (4) attending individual counseling; and (5) maintaining stable housing and employment.

         Between September 2018 and August 2019, when the bench trial on the merits was held, Mother moved multiple times-residing in Corpus Christi, Houston, San Antonio, and Dallas.[5] Ritter said Mother remained in contact with the Department and notified the Department anytime she moved or traveled, which she often did to accompany Father to his criminal court proceedings in various counties. Moretich testified that Mother's inability to maintain residence in one city for a significant period resulted in a delay of service initiation and completion. Moretich said that every time Mother moved, Mother was aware that "we [had] to restart those services."

         By May 2019, Mother had settled in Dallas with Father and his relatives, obtained fulltime employment at a veterinary clinic, and consistently visited her daughter once every other week. Mother was only permitted two-hour visitations every other Thursday. Moretich stated that there were no reported incidents during any visitations, and for the exception of a two-month period shortly after Mother moved to Dallas when Mother "was going back and forth to Aransas Pass with [Father]," Mother attended her visitations. One month before trial, Mother initiated individual counseling services. One week before trial, Mother began attending substance abuse counseling.

         Moretich said that Mother was compliant with random drug testing requests since September 2018, submitting to fifteen urinary analysis requests, all of which returned negative results. However, Moretich then informed the court that the window for drug detection is seven days for a urinary analysis and that several of Mother's thirteen hair follicle tests, although presenting largely declining levels, were positive for methamphetamine. Moretich stated Mother's results indicated an "increase" in methamphetamine levels between January and February 2019-eight months after the Department first intervened. The Department did not receive a "clean" hair follicle test from Mother until May 2019.

         In late June 2019, in support of Mother's progress to regain custody of S.L.L., Father approached the Department requesting inclusion in the family service plan. Father was asked to complete "an MH-MR screening, substance abuse assessment and counseling, individual counseling for perpetrators of domestic violence, random drug testing, and to maintain a safe and stable home environment." Father, who was on felony probation in two different counties, then tested positive for amphetamines and methamphetamines one month before termination proceedings.

         Moretich testified that the Department's concerns regarding Mother's parental fitness stemmed largely from Mother's prioritization of her tumultuous relationship with Father over her daughter. According to Moretich, Father most recently displayed erratic behavior in April 2019 in a purposeful effort to frustrate a mother-daughter reunification. "[Father] had threatened to kill himself and he had threatened to make sure that [Mother] never got [S.L.L.] back. And then she had left him again and several weeks later they were back in a relationship," said Moretich. To date, Mother relies on Father for transportation to and from her employment, her classes, and any time she wishes to leave their home. Mother told Moretich that she plans to marry Father.

         Moretich testified that Mother continues to struggle to find a suitable residence, currently relying on the goodwill of Father's relative, M.R. M.R. confirmed that Mother and Father currently reside with her and her husband in Dallas. Although neither Mother nor Father contribute financially to the household, M.R. said "they cook, they clean, they vacuum," and find other ways to help around the home. M.R. maintained that she has seen a change in Mother and Father since they first began living with her. When questioned regarding Father's most recent positive drug test, M.R. stated, "I was told it was a one-time situation that was kind of a mistake, thought maybe he was taking something different. I really don't believe that he went out actively looking for any drugs, I really don't." M.R. stated that "if it ever happens again[, ] he has to go," but reiterated that she did not believe Father would relapse.

         At trial, Mother was reluctant to discuss her history of domestic violence. Although Mother conceded the existence of several domestic violence "altercations," two of which resulted in protective orders in two different counties that she later withdrew, Mother stated that the incidents were "just arguments" and that she did not "feel comfortable talking about it." Mother could not remember whether Father ever threatened to kill her, and she denied that he ever pointed a gun at her-contrary to her prior protective order affidavit. When asked whether her daughter was ever privy to these unspecified altercations, Mother wavered, first testifying that S.L.L. "was not" in the home at the time. Mother then stated, "She may or may not have been." When pressed, Mother explained, "No, it is a little blurry, that's when we were using." Mother later clarified that the altercations occurred "behind closed doors." While Mother admitted to prior methamphetamine use, she denied using drugs in the home. Mother also denied being aware of any incidents of domestic violence resulting in criminal charges between Father and his ex-wife.

         Mother was questioned extensively on her decision to remain in a relationship with Father and stated that she only "intend[s] to continue [being with him] if he's going down the right path." Mother testified she ultimately decided to move back to Dallas to live with Father because he was "drug free, getting himself back together, and stab[le]." She also attributed any of Father's past violent behavior to his drug use. However, when confronted with Father's recent positive drug test, Mother reaffirmed her decision to keep Father in S.L.L.'s life.

Q. Would you agree that [a] home where someone is using is not a safe home for a child?
A. I do.
Q. So as we said today you don't have a safe and stable home for your ...

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