In re Interest of L.E.R.

650 S.W.3d 771

In the INTEREST OF L.E.R., a Child

NO. 14-21-00590-CV

Court of Appeals of Texas, Houston (14th Dist.).

Opinions filed April 12, 2022

Jennifer Alvarez Smith, Houston, for Appellant.

Michael R. Hull, Houston, for Appellee.

Panel consists of Justices Jewell, Zimmerer, and Hassan.

Meagan Hassan, Justice

Appellant J.M.C. ("Mother") appeals the trial court's final order of termination of her parental rights to her child L.E.R. ("Lori").¹ The trial court terminated Mother's parental rights on the predicate grounds of endangerment, constructive abandonment, and failure to comply with the service plan for reunification. See Tex. Fam. Code Ann. § 161.001(b)(1)(D), (N), and (O). The trial court also determined that termination of Mother's parental rights was in Lori's best interest. See id. § 161.001(b)(2). In four issues, Mother challenges the legal and factual sufficiency of the evidence to support the trial court's findings on the predicate grounds and the best interest finding. We reverse and render in part and affirm in part.

BACKGROUND

This case began because the Department of Family and Protective Services (the "Department") received a referral on June 15, 2018, alleging that during Lori's delivery Mother was aggressive and erratic and assaulted nurses. The referral alleged that Mother had "pressured speech," "demonstrated poor impulse control, and delayed responses."² It alleged that Mother neither held Lori nor bonded with her since birth; and Mother's primary care physician expressed concern about Mother "taking on the responsibility of caring for an infant child without first receiving a psychological evaluation as soon as she delivered the child."

Because Mother was uncooperative during the investigation, "refused to participate in ongoing CPS services," and there was concern for Lori's safety, the Department filed an Original Petition for Protection of a Child for Conservatorship, and for Termination in Suit Affecting the Parent-Child Relationship on June 21, 2018. The Department sought temporary managing conservatorship of Lori; it also sought conservatorship and/or parental termination if reunification with Lori's parents was not suitable. The trial court granted the Department managing conservatorship of Lori. On July 7, 2018, Lori was placed with a foster parent, Mary.

After a full adversary hearing on July 12, 2018, the trial court appointed the Department temporary managing conservator of Lori and found, among other things, that (1) removal was in Lori's best interest; (2) there is a "continuing danger to the physical health or safety of the child and for the child to remain in the home is contrary to the welfare of the child;" (3) "reasonable efforts consistent with the child's health and safety have been made by the Department to prevent or eliminate the need for removal of the child;" and (4) "appointment of the parent or parents as managing conservator of the child is not in the best interest of the child because the appointment would significantly impair the child's physical health or emotional development."

The Department filed a Family Service Plan on August 3, 2018, providing the following service plan goals: Mother will (1) "show the ability to parent and protect her daughter;" (2) "actively participate in therapy to understand how her health can impact her current parenting style;" and (3) "demonstrate ability to protect the child from harm." The plan also set forth a list of tasks and services Mother needed to complete:

• Participate in and complete individual therapy, and complete any recommended family or group therapy;

• Cooperate with all tasks required by the agency;

• Comply with all visitation guidelines as arranged by the caseworker;

• Attend all court hearings, permanency conferences, and scheduled family visits;

• Complete parenting classes;

• Maintain stable employment or income benefits for six months;

• Acquire and maintain stable housing for more than six months; housing must be safe, clean, free of hazards, and it must have operating utilities;

• Participate in and complete a psycho-social assessment and follow all recommendations which may include a psychiatric evaluation, individual therapy, family therapy, and/or group therapy; and

• Participate in a psychological evaluation and follow all recommendations from the service provider.

After a status hearing on August 7, 2018, the trial court signed an order finding, among other things, that (1) Mother had appeared in person and through her attorney at the hearing; (2) Mother's service plan is reasonable; (3) the goal of the service plan is to return Lori to Mother, and the plan adequately ensures that reasonable efforts are being made to enable Mother to provide a safe environment for Lori; (4) the plan is reasonably tailored to address any specific issues identified by the Department; (5) Mother reviewed and understood the service plan, Mother has been advised that unless she is willing and able to provide Lori with "a safe environment, even with the assistance of a service plan, within the reasonable period of time specified in the plan, her parental and custodial duties and rights may be subject to restriction or to termination or [Lori] may not be returned to her;" and (6) Mother signed the plan. The trial court approved the service plan and made it an order of the court.

The Department filed a second service plan on September 10, 2018, expressing concerns that Mother had not started any of the requested services in the first plan. The second plan is identical to the first service plan except that it added to the list of tasks and services that Mother was required to complete a psychiatric evaluation and to "follow all recommendations which may include a medicine regiment, individual therapy, family therapy, and/or group therapy."

On June 13, 2019, Father executed an affidavit voluntarily relinquishing his parental rights to Lori. On October 14, 2019, Mary (the foster parent) filed a Petition in Intervention in Suit Affecting the Parent-Child Relationship, requesting that the court (1) name her as Lori's sole or joint managing conservator; (2) grant her an order of adoption of Lori; and (3) terminate Mother's and Father's parental rights to Lori. Based on Father's relinquishment of parental rights, the trial court signed an order terminating Father's parental rights to Lori on January 26, 2021. In its August 25, 2021 permanency report to the court, the Department recommended to the court that it be dismissed as temporary managing conservator of Lori and that the foster parent adopt Lori. On September 10, 2021, a bench trial was held to terminate Mother's parental rights.

Five witnesses testified at trial: the Department's investigation caseworker Inger Smith (nee Barnaby), the Department's conservatorship caseworker Lana Ford, Child Advocates, Inc. representative Brittany Swain, Lori's foster mother Mary, and Lori's adult half-sister Alexis. Even Father came to trial and was ready to testify. Mother did not appear at trial, even though she was given the option to appear in person or via Zoom. Before any testimony, the trial court admitted into evidence, among other things, copies of the second family service plan, Mother's drug screening results, Smith's affidavit, the Child Advocates report, permanency reports, Mother's psychological evaluation, and Mother's psychiatric evaluation. We begin with a recitation of the testimony and evidence.

Caseworker Smith

Smith testified that she "received an intake" on June 15, 2018, for neglectful supervision of Lori, who was still in the hospital at the time. The referral included allegations that Mother was "aggressive during delivery," Father "denied that the child was his and also the mother's behavior was described as being just erratic and that she was ... possibly using illicit drugs." Smith testified that during her investigation the "nursing staff said that [Mother] actually was kicking and assaulted the nurses during delivery." The nurses were concerned about how Mother "treated the baby" after she was born because Mother "actually said she wanted — once the baby was placed on her stomach during delivery, which is a normal practice, she stated to get the baby off her immediately." And after Lori's birth, Mother did not bond with her.

Further, Smith's investigation (which she also memorialized in an affidavit) confirmed that Mother was very aggressive. "There was a situation where during delivery she was kicking so much that her IV came apart; and when the IV came apart, blood was gushing everywhere." The hospital staff told Smith that "it was abnormal behavior for a person. They had never seen something like that." However, Mother denied "behaving erratically during the delivery of [Lori] by physically assaulting the nurses." Mother told Smith that the nursing staff did not administer pain medication promptly and that the medication was not administered until after the baby's head was exposed during delivery. Mother claimed "she was only reacting to the pain." Mother told Smith that when the nurse placed Lori on Mother's chest, Mother was afraid of dropping Lori because "she felt numb, so she demanded the child be removed immediately."

Smith testified that she observed interactions between Mother and Father in the hospital room. Smith described it as "kind of an abusive situation. [Mother] was speaking to [Father] verbally in a way that, you know, you shouldn't speak to a person. They weren't getting along very well." Smith's investigation revealed that because of Mother's behavior, an "MAT" evaluation was ordered after she delivered Lori.³ According to the evaluation, Mother "demonstrated delays in responses, poor focus, poor impulse control, delay in processing information, and poor attention." Smith testified that she spoke to Mother's nurse practitioner, who "stated that before the child would ever be taken home, [she] recommended that a psychiatric evaluation be done on" Mo...