In re Interest of N.F.

IN THE INTEREST OF N.F., J.G., AND O.M.

NO. 09-19-00435-CV

Court of Appeals Ninth District of Texas at Beaumont

Submitted on March 10, 2020

April 30, 2020

On Appeal from the County Court at Law No. 3 Montgomery County, Texas

Trial Cause No. 18-03-03176-CV

MEMORANDUM OPINION

After a bench trial, Appellants—N.F. and R.G. (collectively Fathers) and M.F. (Mother)—appeal from an order terminating their parental rights to their minor children. The order terminated N.F.'s ("Nolan") rights to his son N.F. ("Junior") (age 11), terminated R.G.'s ("Rick") rights to his son J.G. ("Jack") (age 4), and M.F.'s ("Mila") rights to her children Junior, Jack, and O.M. ("Olivia") (age 2).¹ SeeTex. Fam. Code Ann. § 161.001(b)(1)(D), (E), (H), (N), (O), (2). The order also terminated the parental rights of the alleged father J.L.M.O. ("John") as to Olivia.² Nolan, Rick, and Mila appealed the final order of termination. We affirm.

Background

On March 9, 2018, the Department of Family and Protective Services ("Department") filed an Original Petition for Protection of a Child, for Conservatorship, and for Termination in Suit Affecting the Parent-Child Relationship. Seven children were named as the subject of this suit, and the children were ages 10, 5, 4, 2, 1, and 3-week-old twins.³ The petition named Mila as the Mother of all seven children and named Nolan the father of Junior, Rick the father of Jack, and John the father of Olivia.

The petition was supported by an affidavit by a representative of the Department. According to the affidavit, on March 7, 2018, the Department received an intake stating that the Conroe Police Department had been called to a home where two men were arrested for possession of marijuana and drug paraphernalia. Theintake alleged that the drugs and paraphernalia were "in clear access to the children[]" and that the home was "filthy[,]" in need of repairs, and that there were roaches everywhere. According to the affidavit, Mila had seven children and lived in the home with her boyfriend, John. Mila told the Department representative that John "probably smokes marijuana every other day[]" but that she did not know there were drugs in her home. Mila reported that she had twins by C-section three weeks before the Department's visit, and she was unable to clean the house because she was still recovering from childbirth. The affidavit described the home as a two-bedroom mobile home that was "very unsanitary" and "very dirty[,]" with trash and laundry scattered about, holes in the walls, roaches "crawling over everything[,]" and visible mold in the kitchen and bathroom.

According to the affidavit, there had been a previous CPS case where neglectful supervision was alleged due to John's failed drug tests and because he was "under the influence" while caring for the children. The Department sought managing conservatorship of the children due to concerns about the health and safety of the children "due to the unsanitary living conditions" and John's drug use.

Evidence at Trial

Testimony of Officer Andrew Lupnitz

Officer Andrew Lupnitz, with the Conroe Police Department, testified that he was called to a trailer home on March 7, 2018, for a report of a loud noise and the odor of marijuana. Lupnitz observed two men on the front porch "cutting open a cigar to take out the tobacco and put marijuana in it[.]" Lupnitz testified that one of the men was John, and that he took both men into custody for possession of marijuana. Lupnitz learned that John lived at the home with his girlfriend Mila. Lupnitz testified that Mila consented to a search of the home, and that Junior, Olivia, and another male child were in the home that day.

According to Lupnitz, the children appeared well-cared-for, but the home was "extremely dirty[.]" Lupnitz testified that there were holes in the floor and walls, roaches "all over the house[,]" exposed electrical wiring, piles of clothes and household items lying about, dirty mattresses, and marijuana and drug paraphernalia within reach of the children. Lupnitz believed that the conditions in the home were dangerous to the children because the exposed wiring posed a risk of fire or electrocution, the holes posed a risk of falling and injury, and the insects posed a risk of sickness. Lupnitz also testified that the drugs and paraphernalia were "out in plain view[]" within the children's reach. According to Lupnitz, Mila told him that thelandlord had not taken care of issues with the home and that she was aware her boyfriend John was using drugs "every other day." Lupnitz also testified that Mila told him she knew there was marijuana in a baby formula container in the living room. Based on what he observed in the home, Lupnitz was concerned that the children were in danger, so he notified CPS. Lupnitz did not see any sign of physical abuse of the children.

Testimony of Brandy Powell

Brandy Powell, a licensed professional counselor, testified that the Department referred Mila to her for counseling services, and she met with Mila in December 2018. Mila completed one session with Powell, which Powell described as an "intake session[,]" and Mila "basically did not attend counseling[]" as she never kept any further appointments and she never returned Powell's calls. In Powell's opinion, Mila needed further individual counseling to help with being a mother and the goal of reunification, and Powell would have addressed parenting skills in additional sessions.

According to Powell, Mila told her she had seven children and she had lived with her boyfriend for six years. Powell further testified that Mila told her the police arrested her boyfriend and then he was deported. Powell testified that she was concerned for the children's welfare based on what Mila told her about the conditionof the home. Powell also testified that Mila told her that her boyfriend used drugs but not around the children, and Powell thought Mila was "in denial" about whether her boyfriend used drugs in front of the children. Based on her session with Mila, Powell believed Mila needed further services because her children were living in "horrible conditions[]" and were around people using drugs. According to Powell, the police saw the condition of Mila's home, which was "dirty, had holes in the walls, broken [] water heater, broken windows." Mila reported to Powell that she had asked her landlord to take care of repairs to the home, but the landlord did nothing.

Testimony of CPS Investigator

An investigator for CPS ("Investigator") testified that she was assigned to the case involving Mila's children that originated in 2018. The Investigator believed that seven people lived in the two-bedroom home: Mila, Mila's boyfriend John, and five children. The Investigator testified that Mila had seven children, and the Investigator met Junior and Olivia on March 7, 2018. The Investigator became involved based on a report of poor living conditions and drugs—specifically marijuana—in the home within reach of the children. The Investigator described the home as "a mess."

The Investigator testified that the children were not malnourished, and the refrigerator was well-stocked, but there were roaches in the kitchen. According tothe Investigator, the kitchen cabinets had no doors and there were visible signs that water had leaked underneath and mold was growing. In addition, everything under the sink was accessible to the children, which the Investigator regarded as a danger to the children. The Investigator also observed mold in the bathroom and a hole in the bathroom wall. The Investigator testified that one of the children was sleeping on a "very dirty" mattress and another mattress was up against a window in a manner where it could have fallen on the child. She was also concerned that trash and dirty laundry were lying about the house and contributed to an endangering situation.

According to the Investigator, in the two and a half years she had worked for the Department, Mila's home was "one of the worst homes" she had seen because it was unsafe, dirty, and smelled of trash and garbage. The Investigator did not recall seeing any marks or bruises on the children, and the Investigator agreed that there were no allegations of drug use by Mila. According to the Investigator, Mila told her "no one was going to take her children without a fight [or] a court order[,]" and the Investigator testified that she filed for a court order to remove the children from the home.

The Investigator did not attribute the conditions of the home to poverty because she believed that the home could have been kept clean regardless of income. According to the Investigator, Mila told her that she had been working on cleaningthe home before the police arrived, but she had just had twins and a C-section. The Investigator testified that there had been another CPS case involving the home about a month before this incident, and the previous case was due to John's drug use. The Investigator further testified that this case included "the continuing issue" of John's drug use and Mila's inability to protect or care for the children but also included "new issues with the home[.]" At some point, the Investigator met John at the jail, and she testified she believed he had been deported. The Investigator was also concerned that the Department was called back to the home only a few weeks after a previous case for a similar situation. The Investigator explained:

The home was definitely a concern, but the fact that the Department was involved again because the mother was failing to keep [John] away from the children knowing that he was a drug user because in the previous case [], she had said that he wasn't in the home because he failed drug tests for the Department. And then as soon as the case closed, within three weeks, he's back in the home using drugs again.

The Investigator was concerned that Mila failed to protect the children because Mila knew about the drugs, John left drugs in the home, Mila...