A. B. v. Tex. Dep't of Family & Protective Servs.

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A. B., Appellant v. Texas Department of Family and Protective Services, Appellee

No. 03-22-00759-CV

Court of Appeals of Texas, Third District, Austin

May 4, 2023

FROM THE 250TH DISTRICT COURT OF TRAVIS COUNTY NO D-1-FM-21-002232, THE HONORABLE LORA J. LIVINGSTON, JUDGE PRESIDING

Before Chief Justice Byrne, Justices Baker and Triana

MEMORANDUM OPINION

DARLENE BYRNE, CHIEF JUSTICE

A.B (Father) appeals from the trial court's decree terminating his parental rights to L.H. (Daughter), who was almost two years old at the time of trial.^[1] See Tex Fam. Code § 161.001(b). Father challenges the legal and factual sufficiency of the evidence supporting the predicate statutory grounds for termination and the best interest finding.^[2] We affirm the trial court's termination decree.

BACKGROUND

Daughter was born in November 2020, and at first Mother solely cared for Daughter. After the Texas Department of Family and Protective Services (Department) received a referral in December 2020, a family-based safety services (FBSS) case was opened for the family, and Mother reached out to Father about assistance with Daughter (although Father continued to live separately). FBSS was offered to both parents over the subsequent months. However, Mother's mental health and drug use were ongoing concerns, culminating with Mother being admitted into the hospital at least once in March or April 2021 for a drug overdose. The Department noted that the "drug use seemed to continue and increase as time went on," and that the maternal grandmother contacted the Department that she was no longer willing to help Mother care for Daughter. After another intake concerning Mother's drug use, Mother leaving Daughter in another person's care, and Mother's refusal to discuss the matter with the Department, the Department filed its original petition seeking termination and requested removal of Daughter on April 20, 2021. At five months old, Daughter was removed and placed with Foster Mother, with whom she continued to reside through trial approximately eighteen months later.

The final jury trial commenced on October 18, 2022. At the hearing, the jury heard testimony, including, as relevant to the present appeal, from Mother; Jennifer Parker, a Department substance use program specialist; Jessica Bonaguro, the former Department conservatorship caseworker Melissa Siebert, a licensed clinical psychologist assigned to Father; Kayleena Benevides, the current Department conservatorship caseworker; Foster Mother; and Father.^[3]

Mother testified that she wanted to give up her parental rights and allow Foster Mother to adopt Daughter and that she believed terminating her and Father's parental rights was in the best interest of Daughter. Mother doubted whether Father is "capable of taking care of a two-year-old by himself." She explained that Father was not around when Daughter was born but was living separately in an apartment, and she only contacted Father in mid-December 2020 after the Department contacted her. When questioned why Father was not helping care for Daughter, Mother stated that she "believed it was safer that way because we would get into arguments too much."

Mother testified that she and Father met in December 2018, but initially she stopped seeing him because he was using psychedelic drugs. The pair began seeing each other, and using drugs together, a year later. Mother explained that in April 2021 (around the time of Daughter's removal), Father was not living with Mother and the two only saw each other on "a few occasions." Father and Mother did drugs together at the time ("mostly psychedelics"), and Mother explained that Father "has never really been into anything more than mostly just marijuana and a few different psychedelic drugs."

Mother also described several other drug-related interactions with Father during the pending termination proceeding. She described having to call the Department caseworker to stop a visit by Father with Daughter because she believed Father was on drugs at the time after Father "sent me a picture of something, and I know he was using it." She also described contacting the Department caseworker in January 2022 because Father was "running outside [her] home naked" after having "allegedly taken some [prescription drugs]," although Mother believed "it was actually ibuprofen or something." Mother also explained that Father had used ketamine "on and off through the whole relationship," and in May 2022, she contacted Bonaguro, the then-conservatorship caseworker, texting that she had observed Father using ketamine, kratom, nitrous, mushrooms, and LSD, and that she believed Father would never stop using drugs. She also sent pictures of drug paraphernalia that she identified as Father's, and she clarified that the pictures were taken during the time Father resided with Mother from March to May 2022. Mother testified that Father had not provided her any illegal substances-and she did not know whether Father was still struggling with illegal substance use-since the parents split in May 2022.

Mother also expressed concerns about Father's mental health. She said that Father had depression, had expressed suicidal thoughts to her, and "the anger too has worried me a little bit." Mother explained that she and Father struggled with "mutual" domestic violence towards one another. When asked whether Father had an anger issue, Mother responded that "I think most people do to some degree." She confirmed that Father had broken several doors, and she conceded that breaking a door was an example of an anger issue. She later clarified that Father had not hit her but would "get in my face sometimes and like threaten me, and he wouldn't leave sometimes when I asked him to," and that Father would sometimes hold her down and they would mutually push one another. She also mentioned an experience when she called law enforcement because she "didn't feel safe" when Father refused to leave after they fought.

On cross-examination, Mother confirmed her own issues with substance abuse.^[4]She also conceded she had recanted a past statement in March 2021 that she believed Father had drugged her and certain statements from January 2022 that she "didn't want anything to do with [Father]." She said that Father is "doing a lot better than when I met him," has "really stepped up" since becoming a father, and that "[a]s far as I can tell" he is more stable at the time of trial. Mother believed Father was a good dad to Daughter and had a good bond with Daughter but expressed concerns that "he's maybe not responsible enough to take care of her by himself." She emphasized that Daughter cannot call the police, ask for help, or feed and change herself at two years old, and that she needs a sober parent to care for her. Mother also mentioned that she believed Foster Mother is "a very kind person," "very understanding," and "loves [Daughter] like her own."

Jennifer Parker, a Department substance use program specialist, then testified regarding drug test results. Father's drug tests from July 26, 2022 (i.e., approximately fifteen months after Daughter's removal and three months before the final trial) were positive for ketamine, which Parker described as a "dissociative anesthetic" that is a "common drug of abuse." A hair follicle test also indicated a positive result for mitragynine, a metabolite for kratom, and "would constitute in the testing world a positive for kratom."^[5] The July 2022 test was also positive for cocaine and its primary metabolite, which Parker explained is a "stimulant-type drug" that is "a very common drug of abuse." Parker explained that hair-strand testing has "about a 90-day window, but that window doesn't begin for about 7 to 10 days." Additional drug test results were also admitted into evidence, showing Father regularly tested positive for marijuana from May 2021 through April 2022. The results from a May 8, 2021 drug test (the month after removal) were also positive for amphetamines (MDMA), cocaine, marijuana, and opiates (morphine). Parker explained that these drug tests are "[v]ery" accurate for detecting use, although the test results do not show how many times the subject had used the drug "because each person's metabolism differs" and there are "many factors," such as potency and dosage.

Jessica Bonaguro, the Department conservatorship caseworker initially assigned to the case, testified that Daughter was placed in a foster home in April 2021. She explained that the Department's main concern at the time was substance abuse; Mother had overdosed and gone to an inpatient drug treatment program, while Father had begun an intensive outpatient program. Bonaguro was assigned to the case from April 2021 through July 2022 and explained that "[s]ome of the ongoing concerns were continued substance use despite working services" and relationship "volatility" between the parents involving "fights, altercations, sometimes law enforcement callouts." Father completed the intensive outpatient program in August 2021, and the September 2021 permanency hearing orders required both parents to refrain from taking any mind-altering substances and engage in anger management therapy.

Bonaguro described several fights between the parents, including a phone call from the parents in the middle of a fight during which they were "screaming at each other" about "each parent's substance use," and Bonaguro contacted the police because she was "very concerned that they were fighting in a moving vehicle." Mother also called Bonaguro in January 2022, informed her that she and Father were in a fight, and told her that Father had "swallowed a whole bottle of [prescription drugs]," was "running around naked in the street," had "crashed his...