In re Interest of C.M.D.

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

NUMBER 13-20-00402-CV

COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG

February 11, 2021

On appeal from the 24th District Court of Victoria County, Texas.

MEMORANDUM OPINION

Before Chief Justice Contreras and Justices Hinojosa and Silva

Memorandum Opinion by Justice Silva

The trial court terminated the parental rights of appellant S.G. (Mother) and R.D.¹ (Father) to their daughter C.M.D.² By two issues, Mother argues (1) the evidence was not legally or factually sufficient to support the trial court's emergency removal order; and(2) a full adversary hearing was not held within the statutorily required period. See TEX. FAM. CODE ANN. §§ 262.102, 262.201. We affirm.

I. BACKGROUND

C.M.D. was born on July 2, 2019. C.M.D. is Father's first child and Mother's fourth.³ The Texas Department of Family and Protective Services (the Department) intervened after it was notified that C.M.D.'s meconium test returned positive for methamphetamines, amphetamines, and marijuana.⁴

At the termination hearing on July 27, 2020, Nicole Carver, an investigator with the Department, testified that Mother and Father were placed on a family safety plan prior to C.M.D.'s discharge from the hospital on July 11, 2019, which required, in part, that the parents submit to a drug test and that C.M.D.'s paternal grandparents supervise all contact between the parents and C.M.D. for thirty days. However, when Carver attempted to establish contact with Mother and Father at their listed address on July 17, 2019, she learned that the residence had been vacated. Following multiple attempts to contact Mother and Father, Carver placed the family on the "child safety alert list," and on August 19, 2019, the Texas Department of Public Safety notified the Department that it had made contact with the family following a routine traffic stop.

The Department thereafter initiated emergency removal proceedings, filing its original petition for protection of the child, for conservatorship, and for termination in a suit affecting the parent-child relationship. On August 20, 2019, the trial court signed an emergency order of removal, naming the Department as temporary sole managing conservator of C.M.D., and C.M.D. was placed in foster care. The trial court entered its emergency removal order and set an adversarial hearing for September 2, 2019, pursuant to § 262.201 of the Texas Family Code. See TEX. FAM. CODE ANN. § 262.201(a) (providing that "a full adversary hearing shall be held not later than the 14th day after the date the child was taken into possession by the governmental entity"). The order, however, included language extending the hearing to September 10, 2019.⁵ On September 10, the trial court issued an order extending its original removal order and scheduled an adversary hearing for September 24, 2019. Father then filed a pro se complaint, removing the case to federal court on September 23, 2019, alleging his due process rights were being violated by the State in the underlying trial court cause. On September 24, 2019, the state trial court determined it was without jurisdiction to proceed with the previously scheduled adversary hearing. On October 15, 2019, the federal court signed an order remanding the case back to the state trial court, finding it lacked subject matter jurisdiction to preside. The trial court held an adversary hearing on October 28, 2019, and following the hearing, the trial court issued temporary orders continuing the Department as C.M.D.'s temporary managing conservator. C.M.D. remained in foster care throughout the pendency of this case.

As part of their family service plan, Mother and Father were required to attend parenting classes and individual counseling and undergo psychological evaluations, random drug testing, and a drug and alcohol assessment. Due to allegations of domestic violence, Father was also ordered to attend a batterer's intervention program. By the time of the termination hearing, however, Mother and Father had not attended a single program or evaluation appointment. Mother had also refused the Department's twenty-eight requests for drug testing, and Father had refused twenty-three requests—two of which were separately ordered by the trial court.

On the day of the termination hearing, when asked whether she would submit to a urinalysis test if she was ordered to, Mother responded, "I'm not—I don't have an answer for that." Mother testified that while the Department has been involved in her life since her first child was an infant, she could "not remember" if it was because she and the child's father tested positive for cocaine. Mother stated that she only smoked marijuana and "maybe" used cocaine "when [she] was younger," and she then provided conflicting testimony regarding her methamphetamine use. Mother first testified she admitted to using methamphetamine and marijuana during her pregnancy with C.M.D. because the Department "threatened to take [her] daughter from [her] . . . and it made [her] say things [she] didn't mean." Mother then testified, "I used that [sic] methamphetamines at that time that [sic] before I got pregnant." However, Mother also stated she had been using a "vape pen" to smoke, and she had "no knowledge" the pen contained methamphetamine.

Mother further testified to two altercations involving Father while she was pregnant with C.M.D. in March 2019, but she denied that he had physically assaulted her in eitherincident.⁶ Though Mother said Father's behavior in 2019 prompted her to change her number, she denied that he harassed her, her family, or her friends, or that he was otherwise abusive. Mother defended Father's actions against the Department⁷ and stated he is "not the person that everybody is putting him out to be." Mother also testified that she depended on Father's "financial abilities to keep [herself] fed, clothed[,] and housed," although they had struggled to retain housing and moved five times in the preceding year.

On August 25, 2020, the trial court signed a final termination order and found, in part, Mother had engaged in conduct or placed the child with others who engaged in conduct that endangered the child's well-being, Mother had failed to comply with provisions of the court's order, and termination was in the child's best interest. See id. § 161.001(b)(1)(E), (O), (2). This appeal followed.

II. DISCUSSION

"Termination of parental rights, the total and irrevocable dissolution of the parent-child relationship, constitutes the 'death penalty' of civil cases." In re K.M.L., 443 S.W.3d 101, 121 (Tex. 2014) (Lehrmann, J., concurring). Accordingly, "termination proceedings must be strictly scrutinized." Id.; see In re A.C., 560 S.W.3d 624, 630 (Tex. 2018); but see In re A.V., 113 S.W.3d 355, 361 (Tex. 2003) ("[T]he rights of natural parents are not absolute; protection of the child is paramount. . . . The rights of parenthood are accordedonly to those fit to accept the accompanying responsibilities." (quoting In re J.W.T., 872 S.W.2d 189, 195 (Tex. 1994))). To terminate parental rights, the movant must prove by clear and convincing evidence that (1) the parent committed one or more statutory predicate acts or omissions, and (2) termination is in the child's best interest. See TEX. FAM. CODE ANN. §§ 101.007, 161.001(b); see also In re N.G., 577 S.W.3d 230, 234 (Tex. 2019) (per curiam). "'Clear and convincing evidence' means the measure or degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established." TEX. FAM. CODE ANN. § 101.007. "This heightened proof standard carries the weight and gravity due process requires to protect the fundamental rights at stake." In re A.C., 560 S.W.3d at 630.

Mother concedes on appeal that the evidence was both legally and factually sufficient to warrant termination under both subsections of family code § 161.001(a)(1), and to support a finding that termination was in the best interest of the child. See TEX. FAM. CODE ANN. § 161.001(b)(1)(E), (O), (2). She instead argues (1) there was not legally or factually sufficient evidence to support the trial court's emergency removal order, and (2) a full adversary hearing was not held within the statutorily required period. See id. §§ 262.102, 262.201.

A. Temporary Emergency Removal Order

Chapter 262 of the family code sets forth the procedures and substantive requirements for the Department to take possession of a child when necessary to protect that child's health and safety. In re J.M., 549 S.W.3d 330, 332-33 (Tex. App.—Texarkana 2018, no pet.). Under this chapter, the Department is granted authority in urgent circumstances to remove a child from his or her home without prior notice to the parents.See TEX. FAM. CODE ANN. §§ 262.101, 262.104. This emergency authority is subject to judicial oversight. See id. §§ 262.102, 262.106-.107. Pursuant to § 262.102, "a court may, without prior notice and a hearing, issue a temporary order for the conservatorship of a child under [§] 105.001(a)(1) or a temporary restraining order or attachment of a child authorizing a governmental entity to take possession of a child in a suit brought by a governmental entity," provided that the trial court finds:

(1) there is an immediate danger to the physical health or safety of the child or the child has been a victim of neglect or sexual abuse;

(2) continuation in the home would be contrary to the child's welfare;

(3) there is no time, consistent with the physical health or safety of the child and the nature of the emergency, for a full adversary hearing under Subchapter C; and

(4) reasonable efforts, consistent with the circumstances and providing for the safety of the child, were made to prevent or eliminate the need for removal of the child.

Id. § 262.102. Following the issuance of an emergency removal order without prior notice or hearing, a full adversarial hearing must be held ...