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In re L.S.

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

April 4, 2019


          On appeal from the County Court at Law No. 5 of Nueces County, Texas.

          Before Chief Justice Contreras and Justices Benavides and Hinojosa.



         By two issues, appellant L.S. (Mother) challenges the legal and factual sufficiency of the evidence supporting the statutory grounds for termination of her parental rights to her child, L.S. (Child), as well as the trial court's best interest finding.[1] We affirm.

         I. Background

         The Department of Family and Protective Services (the Department) filed its petition for protection, conservatorship, and termination of Mother's parental rights in August 2017. In its petition, the Department alleged numerous violations of family code section 161.001(b)(1) and asked for the immediate removal of Child due to a Facebook post showing Child with bruises, lying near an unknown man and within reach of a semiautomatic rifle. See Tex. Fam. Code Ann. § 161.001(b)(1) (West, Westlaw through 2017 1st C.S.). The Department filed an amended petition after discovering the identity of L.Z., Father. Father signed a voluntary relinquishment of his parental rights prior to trial.

         A. Procedural History

         On August 22, 2017, the Department filed its petition to remove Child, age three, from Mother. Mother was incarcerated in Bandera, Bexar, and Nueces Counties from September 2017 to January 2018 on different unrelated charges. She was released from custody and went to a women's shelter in the Corpus Christi area, then subsequently began living with a paramour. On January 31, 2018, Mother tested negative for any illegal drugs on a hair follicle test and completed a psychological evaluation. However, the psychologist recommended Mother have a psychiatric evaluation, which Mother did not complete.

         In March 2018, documentation provided to the trial court showed that Mother refused to get treatment for her mental illness issues, was participating in criminal activity, had no stable home, and had provided no documentation showing she attended the classes required in her family service plan. Mother also tested positive for methamphetamine on March 22 and April 2, 2018 in hair follicle tests. Mother claims that "someone" was placing drugs in her shampoo; she made no efforts to receive drug treatment or counseling. Later, she ceased contact with the Department. Mother was arrested for aggravated assault with a deadly weapon in May 2018. The termination hearing was held in October 2018.

         B. Trial on the Merits

         1. Department Workers

         Danette Valdez, the Department investigator, testified to her extensive involvement in the case. Valdez stated she was there when Mother voluntarily gave Child to Mother's Great-Uncle (Great-Great-Uncle) in June 2017 after the Department received a report about Mother. Valdez explained that when Department workers contacted Mother, they took law enforcement with them due to past history with Mother and for everyone's safety. When Valdez and law enforcement arrived, Mother seemed to be under the influence or in a "manic" state, keeping her back to them and refusing to make direct eye contact. Valdez described the apartment as a "mess" with boxes strewn about, broken glass covering the floor under the windows, rat poison within reach of Child, and a smell of marijuana. Valdez also explained that the closet on the ground floor was barricaded and Mother stated that "people were coming in through the closet." Mother also stated that "things were moved around or missing" and that undercover "cops" and neighbors were always trying to steal from her. Mother also explained to Valdez that she had been "drugged for days," there were "ghosts" in the house, and that Child saw the ghosts too. Mother refused a drug test at that time.

         Valdez testified that she had history with Mother and that Mother had been diagnosed bipolar and schizophrenic but did not take her medications because she did not feel she needed them. Mother told Valdez that Mother and Child slept on bunk beds in the living room of the two-story, two-bedroom apartment for safety. Mother also stated she had the glass under all the windows to prevent people from breaking into the apartment. Valdez noticed that the back door of the apartment had a two-by-four nailed across it, preventing access into or out of the apartment. Mother told Valdez that she had not left the apartment in a month because she was afraid people would break into the apartment while she was gone and that Child had been with her that entire time. Mother did say that friends would bring them food as needed. Mother agreed to let Child go with family members and stay with Mother's Aunt (Aunt) so she could get the apartment cleaned up. Great-Great-Uncle took Child and transported him to Aunt, who resided out-of-state.

         Valdez testified about her interactions with Mother in July 2017. Mother agreed to a drug test, but never appeared. Mother also told Valdez to talk to members of the Corpus Christi Police Department about being targeted by undercover officers, but Valdez said she followed up with the police department and that was not the truth. Valdez visited Mother again, and the apartment was very clean. There was an unknown male at the apartment who refused to speak to Valdez, and Mother showed Valdez eviction notices at that time. Later that month, Aunt called Valdez because Mother was adamant about having Child back in her custody. Valdez agreed with Mother's attorney that there was no formal removal of Child when Aunt took custody.

         Valdez asked Mother to make contact when she returned to Corpus Christi with Child in early August, but Mother did not. Valdez then saw the photograph posted on Facebook of Child laying on a bed with an unknown male, bruises apparent on his back, and within reach of an AK-47 firearm. Valdez again went to the apartment, accompanied by law enforcement, with removal documentation from the trial court. Mother refused to answer the door, even though Valdez had seen her through an apartment window. When Valdez called Mother, Mother told her she was at the grocery store. A writ of attachment for Child was obtained and the Corpus Christi Fire Department had to use a device to force the door open. Valdez described Child as scared when he was brought to her and Child asked Valdez if "she was bad." Valdez explained that she immediately took Child to Great-Uncle so he would feel safe and was there when Child was turned over to Mother's father (Grandfather).

         Carol Sanchez, a conservatorship worker with the Department, also testified to her interactions with Mother. Sanchez testified about the family service plan created by the Department. Sanchez explained that Mother made little progress on the plan and that Mother did not have visits with Child due to a protective order that was in place for Mother's family.[2] Sanchez also testified that Mother never attempted to find stable employment and had told Sanchez that she did not feel she needed a traditional job, even though Mother has a college business degree. Sanchez stated that Mother did not complete individual counseling or parenting classes, had irregular contact with the Department, and did not participate in drug assessments or treatment programs. Mother did allow a home visit during which the apartment was clean, and Mother showed Sanchez a tent she had set up for Child. However, Sanchez was concerned because there was no food; there was a knife present near the door; and Mother did not allow Sanchez access into the apartment on other occasions. Sanchez also explained that throughout the case, Mother posted concerning things on Facebook, made concerning statements regarding the safety of Child, and made "nonsense" statements about drugs. Although Sanchez felt Mother did care for Child, she stated Mother only asked Sanchez to tell Child once that Mother loved him and that Child does not ask about Mother when Sanchez has seen him. Sanchez felt it was not in Child's best interest to know Mother in her current state and that the goal of the Department was now relative adoption.

         2. Corpus Christi Police Officers

         Officers Jason Lee, Jennifer Collier, and Tracy Roberts of the Corpus Christi Police Department all testified to involvement with Mother.

         Officer Lee was present when Mother agreed to let Great-Uncle take Child in June 2017. Officer Lee stated he received a welfare call from Great-Uncle and they had been called out to Mother's apartment before. Officer Lee agreed the apartment was "filthy," with little food, rat poison visible, and broken glass on the floor. Officer Lee stated Child was dirty and not wearing shoes while around the glass. Mother agreed to allow Great-Uncle to take Child so she could clean. Officer Lee stated the previous calls to Mother's apartment had been regarding "people coming in through the closet" and Great-Uncle gave Officer Lee some "weird" written notes from Mother.

         Officer Collier responded to an incident report in February 2018 at an apartment in Corpus Christi leased by Muhamad Rashid. Rashid was Mother's paramour and had allowed Mother to stay with him after she was released from the women's shelter. The landlord, Michael Barnes, and Rashid requested police assist them in evicting Mother from Rashid's apartment. When they entered the apartment, there was drug paraphernalia with residue in plain view and items that did not belong to anyone in the apartment found inside. However, Officer Collier stated that because no one took responsibility for the drugs or stolen items, no arrests were made at that time.

         Officer Roberts testified that she works off-duty for the Corpus Christi Housing Authority (CCHA) and Mother resided in a CCHA apartment. Officer Roberts stated that, in July 2017, she received a call from Grandfather[3] asking her to check on Mother, as well as an anonymous tip regarding drug use and foot traffic in Mother's apartment. Officer Roberts found the apartment to be cluttered and filthy. Officer Roberts felt that Mother was "wired up" and stated that her partner found a scale with drug residue on it inside the apartment. Officer Roberts testified that she was also present on the day Child was forcibly removed from the apartment. Officer Roberts testified she was one of the officers who made entry into the apartment and found Mother, Child, and another woman in an upstairs bedroom. Officer Roberts had Mother walk into the hallway, so that Child would not see her being arrested. Once in the hallway, Mother resisted arrest, but was eventually apprehended for interference with child custody.

         3. Additional Witnesses

         Barnes testified to his interactions with Mother. Barnes was the landlord of an apartment rented by Rashid, a paramour of Mother's. Rashid had allowed Mother to stay at his apartment in February 2018 for a few days, but Rashid ended up leaving the apartment when Mother continued to invite strangers over and use drugs. Barnes and Rashid called police in February 2018 in order for Rashid to collect his belongings. Upon entry into the apartment, Barnes saw drug needles and stolen items everywhere. Barnes tried to evict Mother but was unsuccessful until May 2018 through a court order even though Mother never paid any rent. Barnes provided photographs of extreme damage to the apartment Mother caused upon leaving that he had to repair at his own cost.

         Angelina Garcia from the Catholic Charities of Corpus Christi testified that she met Mother through the Parents as Teachers program prior to the removal. Mother had been referred to the program from another parent-assistance program Mother participated in when Child was an infant. Parents as Teachers works with parents of children from age two to five years old. Garcia testified that Mother and her home changed when Mother's ex-boyfriend R.Y. appeared in the picture. Garcia explained that towards the end of Mother's participation, they had to take two volunteers for the required home visits due to safety concerns. Garcia saw on Facebook that Mother was renting out her bedrooms to random people, but Mother did not see any issue with it when Garcia addressed her. Garcia believed that Mother was "out of it" on the last home visit, the home was in disarray, and Mother and Child were sleeping on bunkbeds in the living room. Mother did not complete the program because the workers felt that they were unable to continue with the teaching modules required and at the end, the visits were to check on Child's well-being. Garcia also testified that she reported her concerns to the Department.

         Markell Rowe was the CASA volunteer assigned to this case. She testified that Child was secure in his current placement and they are a close family. Rowe stated that Child has said to her that "Mommy lives in jail." Rowe had spoken with Mother but felt that Mother continued to direct conversation to herself, instead of focusing on Child. Rowe agreed that she never saw Mother with Child due to the visitation restrictions, and Rowe would want to allow Mother back into Child's life if she could be a good parent. Rowe also agreed that the family members have expressed how difficult this situation is on them and that Mother will always be Child's mom.

         4. Expert Witnesses

         John Tarver, the lab manager for Quest Diagnostic, testified as an expert witness regarding the hair follicle samples. He explained that they test what is inside the hair sample, not any outside residue, so Mother's statement that "someone was drugging her shampoo" would not have resulted in a positive test for methamphetamine. Tarver ...

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