In re D.D.D.

1

IN THE INTEREST OF D.D.D., A CHILD

No. 01-23-00078-CV

Court of Appeals of Texas, First District

August 1, 2023

On Appeal from the 315th District Court Harris County, Texas Trial Court Case No. 2019-04085-J

Panel consists of Chief Justice Adams and Justices Guerra and Farris.

MEMORANDUM OPINION

APRIL L. FARRIS JUSTICE

The Texas Department of Family and Protective Services ("DFPS" or "the Department") sought termination of the parental rights of appellant R.L.H.J ("Mother") to her minor son, D.D.D ("David").^[1] After a bench trial, the trial court found that there was clear and convincing evidence to support four statutory predicate grounds for termination. See Tex. Fam. Code § 161.001(b)(1)(D), (E) (O), (P). The court also found that there was clear and convincing evidence that terminating Mother's parental rights was in David's best interest. The court signed a judgment terminating Mother's parental rights to David.

In six issues on appeal, Mother argues that (1) legally and factually insufficient evidence exists to support termination under subsection (D); (2) factually insufficient evidence exists to support termination under subsection (E); (3)-(4) legally and factually insufficient evidence exists to support termination under subsections (O) and (P); (5) factually insufficient evidence exists to support the finding that termination was in David's best interest; and (6) the trial court abused its discretion by failing to name Mother as David's possessory conservator. We affirm.

Background

David was born in 2016. In November 2019, when he was three years old, Mother and David both ingested PCP. David became unresponsive and was taken to the hospital. While at the hospital, Mother began displaying similar symptoms, and she was also admitted. Both Mother and David were in critical condition. At one point, David went into cardiac arrest and had to be resuscitated. Both Mother and David tested positive for PCP at the hospital. Mother's and David's medical records from this incident were admitted into evidence at trial.

While Mother and David were still in the hospital, the Department initiated the underlying proceeding. The Department requested David's removal from Mother's care, and it sought temporary managing conservatorship. In the alternative, the Department sought termination of Mother's and Father's parental rights. This petition was accompanied by an affidavit from a Department caseworker that detailed how Mother and David arrived at the hospital and the testing and treatments that occurred at the hospital. This affidavit was not admitted into evidence at any of the trial settings in this case. Following an adversary hearing, the trial court granted the Department temporary managing conservatorship over David.

The Department prepared service plans for both Mother and Father. Mother's service plan required her to maintain stable housing and employment and to provide proof of housing and employment through lease agreements and check stubs. The plan required Mother to complete parenting classes, a psychological evaluation, a psychiatric evaluation, individual therapy, and domestic violence awareness classes. The plan ordered Mother to follow all recommendations made by treatment providers and specifically required her to "take medication as prescribed." With respect to substance use, the service plan required Mother to complete a drug and alcohol assessment and "contribute accurate, honest information for the assessment." Mother was also required to submit to random drug testing, including urinalysis and hair follicle testing, upon request of the Department. The plan informed Mother that failure to submit to requested testing "will be considered a positive drug test." The trial court approved the service plan and made it an order of the court.

The trial court heard testimony in this case over four days in May 2021, October 2021, April 2022, and September 2022. When trial began in May 2021, the only service Mother had fully completed was parenting classes. Mother completed a substance abuse assessment and was required to do both individual and group substance abuse counseling. However, she "was not compliant for a period of over two to three months," and she was "subsequently discharged." By the time trial started, Mother had not successfully completed a substance abuse program, although she had completed "substance abuse individual counseling therapy" by October 2021.

Mother also had not completed domestic violence classes by the time trial had started. This concerned Department caseworkers because Father had reportedly been violent towards Mother in the past. Mother reported that in 2018, she had given birth to a premature baby that passed away "because of the domestic violence from [Father]." In April 2019, Father was charged with assaulting Mother. Mother had reported that she and Father were no longer in a relationship, but when Department caseworker Gabrielle Bernal made an unannounced visit to Mother's home in February 2021, Father was present.^[2] At the time trial began, Mother was pregnant, and she reported that Father was the father of this child as well. Mother gave birth to this child, L.D. ("Logan"), in June 2021.^[3] Bernal was concerned that the continuing nature of Mother's relationship with Father could create an unsafe environment for children.

Around the October 2021 trial setting, Mother asked Bernal whether she needed to complete anything on her service plan. Bernal told Mother that the Department was waiting for a recommendation from Mother's psychological assessment; there was an issue with Mother's compliance with psychiatric treatment and medication; and Mother had not provided Bernal with a doctor's note concerning whether she did not need to take medication while breastfeeding Logan. Mother had not seen her psychiatrist since March 2021, and she had not started taking her prescribed medications. Additionally, although Mother completed a psychiatric evaluation, she did not accurately report information concerning her drug usage. Mother reported only that she had used marijuana three years before the evaluation, but the Department initiated these proceedings following Mother's usage of PCP and she tested positive for cocaine and PCP multiple times throughout the proceedings.

By the April 2022 trial setting, Mother had one outstanding service to complete: substance abuse counseling. Although Mother had previously completed substance abuse counseling, she received a new referral for additional counseling following positive drug tests in October and November 2021. Mother missed appointments and was "unsuccessfully discharged" from counseling with the new provider "due to lack of commitment or engagement." Mother testified that she had difficulty communicating with this service provider and she unsuccessfully tried to find substance abuse classes on her own.

The Department required Mother to report for weekly urinalysis testing, and she was required to submit a hair sample each month. The Department obtained temporary managing conservatorship of David in November 2019, and Mother "continued to test positive in her hair" for PCP, cocaine, and marijuana throughout 2020.In February 2021, Mother's hair sample tested positive for marijuana. In April 2021,Mother's last urinalysis prior to the beginning of trial was negative, but she did not submit a hair sample. This concerned the Department because Mother was pregnant and her most recent hair follicle at the time, submitted in March 2021, tested positive for cocaine. Mother's hair sample submitted in October 2021 tested positive for cocaine and PCP. Her hair sample submitted in November 2021 tested positive for cocaine, cocaine metabolites, marijuana, and marijuana metabolites. Her urinalysis sample submitted in February 2022 tested positive for benzodiazepines. This was the last drug test that Mother completed.

Mother was not consistent in reporting for drug testing throughout the case. At the October 2021 trial setting, Bernal agreed that Mother had "missed a majority" of her requested drug tests, but "[s]he began testing more frequently in July [2021]." Mother also did not appear for drug testing in December 2021, January 2022, or March 2022. At the September 2022 trial setting, Mother testified that she had not received any requests for drug testing in several months. She disagreed that she had skipped any required drug testing in 2022.

Mother had multiple urinalysis and hair follicle tests that were negative. She tested negative for all substances when she gave birth to Logan in June 2021, and Logan also tested negative for all substances. In July 2021 and August 2021, both her urinalysis and hair sample were negative for all substances. Mother also tested negative on a urinalysis performed in November 2021.

The Department had concerns about the safety and stability of Mother's housing. She obtained housing in early 2021, and prior to that she "was between multiple people." Mother's lease was set to expire in November 2021, and she reported to Bernal that she wanted to find a different apartment. Mother never provided a lease agreement to Bernal. As of May 2021, Mother had not been employed, and SSI disability was her source of income. By October 2021, Mother reported to Bernal that she had recently started working, although she had provided no check stubs or other documentation.

Mother had supervised visitation with David during the pendency of the case. Mother did well in the visits, and although she was occasionally "occupied by the phone," she was "never inappropriate" with David. Bernal also witnessed Mother interact with Logan, and Mother "appear[ed] appropriate" around Logan. Mother brought David...