In re Interest of E. O.

IN THE INTEREST OF E. O., A CHILD

NO. 01-20-00212-CV

Court of Appeals For The First District of Texas

August 4, 2020

On Appeal from the 300th District Court Brazoria County, Texas

Trial Court Case No. 93697-F

MEMORANDUM OPINION

The trial court terminated the parental rights of M.M. (Mother) to her minor child, E.O. In two issues on appeal, Mother contends that the trial court lacked jurisdiction to render its order of termination and that the evidence was legally and factually insufficient to support the trial court's finding that termination of her parental rights was in E.O.'s best interest.

We affirm.

Background

The Texas Department of Family and Protective Services (DFPS) removed E.O. from Mother's care in October 2016. Mother admitted to abusing drugs including methamphetamine, Xanax, and marijuana, and she acknowledged a pattern of family violence in her dating relationships. E.O., who was twelve at the time, was placed in several placements and eventually was able to live with her aunt and uncle. Mother was put on a court-ordered family service plan requiring, among other things, that she maintain stable employment and housing, complete drug and psychological evaluations, attend various counseling and classes, and remain drug free.

Mother failed to complete her service plan and also continued to abuse drugs, including methamphetamine. At her final termination hearing, held before the associate judge in February and March 2019, Mother acknowledged her drug abuse, stating she had abused methamphetamine and Xanax two or three times a week until the month before trial. She had completed some of the requirements in her family service plan by attending counseling sessions, obtaining a job before the final hearing, and maintaining stable housing in the same apartment for approximately a year. She was also able to have several visits with E.O. that went well. However, she testified that she was not able to take custody of E.O. at the time of the final hearing.She asked instead that the trial court leave her parental rights intact and leave E.O. in her placement with family members.

E.O.'s caseworker, T. Johnson, testified at the final hearing before the associate judge that she had referred Mother for drug testing on approximately 16 or 17 occasions, but Mother had only complied twice. Mother's urine test, completed in November 2018, was negative, as was her urine test in January 2019. Johnson further testified that Mother had not completed her family service plan, and Johnson did not believe that Mother had been diligent in attempting to complete the services. Specifically, Johnson testified that Mother never provided any confirmation of her employment or documentation that she attended the required 12-step programs.

Johnson acknowledged that Mother and E.O. had a "great relationship," and that Mother had visited with E.O. and bought her clothes, books, art supplies, food and other items. Johnson testified that, nevertheless, she believed termination of Mother's parental rights to E.O. was in E.O.'s best interest. She stated that E.O. had "been bounced around and around"—including a psychiatric hospitalization and a stay at an emergency shelter—and deserved permanency. Johnson observed that "the placement that she's at is willing to be [a] long-term placement for her," and Johnson believed that termination of Mother's parental rights was the best way to achieve permanency for E.O. E.O.'s attorney ad litem also believed that termination was in her best interest, noting that the case had been pending for over two years, but Mother had only recently attempted to complete her services. E.O.'s guardian ad litem testified that she believed E.O.'s best interest would be to remain in her current placement and for Mother's parental rights not to be terminated, "but her possession and access to E.O. to only be supervised by placement and at the agreement of placement." The guardian ad litem testified that she had discussed the potential placements with E.O., that E.O. "had multiple concerns about the placement" proposed by DFPS, and that E.O. "wants to see her mother" and was "very verbal about wanting to see her mother." The guardian ad litem was concerned that E.O. "would become possibly suicidal again or become even more unwilling to stay in her current placement and try to work" or "be blaming the placement for losing her mother, even though that wouldn't be a fair thing to do."

The associate judge made an oral report recommending termination of Mother's parental rights to E.O. Before a final order was entered, Mother filed a notice of appeal and a timely request for a de novo trial before the referring district court judge. Mother subsequently moved to abate the premature notice of appeal in this Court so that the district judge could hold the de novo hearing and render its final order. However, the district judge declined to proceed with the de novo hearing because this Court had not yet ruled on the motion to abate the pending appeal.Instead, the district judge signed a final order of termination without holding the de novo hearing.

After the district judge signed the final order, but before this Court received notice of the final order, we abated the appeal for thirty days so that the district judge could sign a final order. Mother attempted to obtain a setting for her do novo hearing, and she filed a petition for writ of mandamus, asking that we vacate the final order of termination and order the trial court to hold de novo hearing. This Court consolidated Mother's 2019 appeal and mandamus proceeding, reversed the termination order, and remanded the case, ordering the trial court to hold the de novo hearing. In re E.O., Nos. 01-19-00207-CV & 01-19-00371-CV, 2019 WL 4019713, at *2 (Tex. App.—Houston [1st Dist.] Aug. 27, 2019, no pet.) (mem. op.) (observing that referring court errs if it fails to hold properly requested de novo hearing before signing final order of termination). This Court issued its opinion and judgment on August 27, 2019. After the time for filing motions for rehearing or a petition for review had passed, the mandate issued on November 8, 2019.

On February 24, 2020—180 days from the date of this Court's opinion and judgment reversing the termination of Mother's parental rights and remanding the case for a de novo hearing—Mother filed a "Notice of Automatic Dismissal"pursuant to Family Code section 263.401,¹ requesting return of E.O. to Mother's care.

The trial court held a hearing on February 27, 2020. The trial court determined that it retained jurisdiction over the case and denied mother's request for return of the child. Also on February 27, 2020, the trial court conducted the ordered de novo hearing. At this hearing, DFPS asked the trial court to consider the transcript of the trial before the associate judge. DFPS also presented Johnson's testimony regarding events that had occurred while the case was pending on appeal. Johnson testified that DFPS continued to offer Mother services in the form of substance abuse classes and random drug testing. Johnson testified that, out of the five or six drug tests that DFPS requested Mother take, she only appeared for one of them. This gave Johnson cause for concern. She also testified that, although DFPS continued to provide counseling to Mother for substance abuse, Mother failed to comply with her counselor's recommendation that Mother seek further substance abuse treatment. Johnson also continued to express concern over Mother's living arrangements due to the presence of "other men" at the residence.

Johnson testified at the de novo hearing that she still believed termination of Mother's parental rights was in E.O.'s best interest. She stated that Mother "had years" to address her drug problem and become a stable parent, but she had failed to do so. Johnson testified that E.O., who was fourteen years old by the time of the de novo hearing, "deserves permanency" and cannot "keep waiting for her mom to decide to get it together."

Johnson also testified that E.O. had demonstrated some difficult behaviors, prompting several more changes to her placements. She was no longer in the relative placement that DFPS identified in the final hearing in 2019. She had instead been moved to an emergency shelter, and from the emergency shelter to a foster home and then to two different residential treatment centers. Johnson testified that E.O. also had been hospitalized approximately ten times in the year between February 2019 and February 2020. Mother continued visitations with E.O., and Johnson testified that her visits were appropriate and that E.O. was bonded with her Mother. Johnson agreed that Mother had been "the person that's been consistent for [E.O.] due to all of the different placements and hospitalizations."

Johnson testified that DFPS's goal was to find a long-term placement for E.O. They were working toward that goal while E.O. was in the residential treatment center, stating, "[S]he's in a psychiatric treatment program to get her level of care down, so that a foster home can be found." Johnson did not have a time frame forthis process because it depended on how successful E.O. was in the psychiatric treatment program. Mother's attorney questioned Johnson about the likelihood of finding an adoptive placement for E.O., and Johnson testified that previous efforts had been hampered because E.O. "still knew her mother's rights were intact."

DFPS presented additional evidence that Mother had been undermining DFPS efforts to care for E.O. DFPS introduced a transcript of a conversation between Mother and E.O. that occurred over Facebook Messenger, after E.O. had somehow obtained a "secret phone." Mother told E.O., "Listen to me, baby. You CANNOT trust these people, not even your lawyer. They act like they're your friend so you'll talk to them and they take what [you] say and use it against us." She also told E.O., "[W]hen they talk to [you], just say [you]...