In re J. L.C.

582 S.W.3d 421

IN the INTEREST OF J.L.C., a Child

No. 07-18-00052-CV

Court of Appeals of Texas, Amarillo.

July 19, 2018

Patrick A. Pirtle, Justice

Appellants, C.C. (father) and B.G. (mother),¹ appeal the trial court’s order terminating their parental rights to J.L.C., their one-year old son. C.C. asserts that the evidence is legally and factually insufficient to support the trial court’s findings that (1) he committed any act proscribed by section 161.001 of the Texas Family Code or met the requirements of the Indian Child Welfare Act (ICWA) providing for termination of his parental rights² and (2) that termination was in J.L.C.’s best interest. In a single issue, B.G. asserts the evidence is factually insufficient to support the trial court’s finding under the Texas Family Code that it was in J.L.C.’s best interest to terminate her parental rights. We affirm the judgment of the trial court.

BACKGROUND

In February 2017, the Texas Department of Family and Protective Services (Department) sought J.L.C.’s removal from B.G.’s custody after receiving a report that she tested positive for methamphetamine at the time of his birth. During the Department’s investigation, B.G. admitted she had used methamphetamine during her pregnancy. She also indicated that J.L.C.’s father, C.C., was a current methamphetamine user who would be incarcerated within days. The Department’s original petition sought the termination of their parental rights under state law. See TEX. FAMILY CODE ANN. § 161.001(b)(1)(D), (E), (K), (N), (O), (P), (R) (West Supp. 2017).³

In its temporary order following an adversary hearing, the trial court required B.G. and C.C. to comply with a service plan including any amendments prior to the return of their child. The order required that C.C. and B.G. undergo a substance abuse assessment, substance abuse treatment including following all recommendations, drug and alcohol testing, a psychological evaluation, a psycho-social assessment, psychological or psychiatric examination including following all recommendations, individual counseling, and parenting classes. C.C. and B.G. were also required to maintain regular contact with the Department’s caseworker, submit proof of employment, secure suitable housing for J.L.C., and provide sufficient legal financial resources to care for J.L.C.

In March 2017, the Department’s petition was amended to include requirements for termination under the ICWA. Notice was served to the proper parties pursuant to 25 U.S.C. § 1912(a) (1978). The Department requested a hearing for the purpose of making necessary findings; id. at § 1912(e), and it requested that the trial court find by evidence beyond a reasonable doubt that (1) the Department made active efforts to provide remedial services and rehabilitation programs designed to prevent the breakup of an Indian family and those efforts proved unsuccessful; and (2) the evidence, including testimony of a qualified expert witness, demonstrated that continued custody of J.L.C. by C.C. and/or B.G. was likely to result in serious emotional or physical damage to J.L.C. Id. at § 1912(d), (f). Thereafter, in June 2017, the Choctaw Nation of Oklahoma filed its Notice of Intervention.

FINAL HEARING

In February 2018, a final hearing was held. The Department’s evidence established B.G. was currently on probation that could result in her imprisonment. When J.L.C. was born, she had been using methamphetamine for three years and had continued using throughout her pregnancy. She did not tell her prenatal physician or the hospital staff that she used drugs. She knew she should not use drugs while pregnant, but she was addicted. At the time of his birth, she, J.L.C., and C.C. all tested positive for methamphetamine. Under B.G.’s service plan, she was required to avoid criminal activity and illegal drug use.

Under the stress of losing her visitation privileges, B.G. testified she turned to drugs rather than her services. In March 2017, B.G. again tested positive for drug use and the court ordered that her visitations be suspended until she could pass her drug tests with two negative hair follicle screens. B.G. completed an outpatient drug treatment program in August but relapsed a month or so later. She lost her job in June 2017 and was evicted from her home in January 2018. At the time of the hearing in February 2018, she had only been drug-free since December 2017. She had, however, filed an application for public housing. According to her testimony, the housing application would take approximately one to two months before housing would be available. Although she had been unemployed since June 2017, she did not begin to look for steady employment until January 2018 and had been interviewed three times for possible employment. She testified that, at the time of the final hearing, she did not have a safe and stable home for J.L.C.

C.C. was incarcerated three days after J.L.C.’s birth for burglary of a building. Prior to his incarceration, C.C. used methamphetamines with B.G. throughout her pregnancy. He thought it was important to care for J.L.C., but he was "far off" in his addiction that began when he was twelve years old. He agreed that he did not provide for the protection and safety of J.L.C. while B.G. was pregnant. At the time of the final hearing, he had served one year of his twelve-year sentence and had recently seen the parole board.⁴

While incarcerated, C.C. participated in programs offered at the prison. He attended AA and NA meetings, participated in a parenting program, attended Voyagers (program teaching how to stay drug-free and crime-free when released), and Winner’s Circle (drug treatment program). He kept in communication with the Department through the mail and summarized parenting packages sent to him by the Department each month. He also corresponded with J.L.C.

He testified that if he receives parole and attends drug treatment, he intends to live at home with his mother until he can secure employment and obtain housing. His mother would initially provide financial support for J.L.C. He was aware that his mother’s husband had been in prison six years earlier but was unaware why he had been incarcerated. He agreed that, if he were released, it would be awhile before he would be able to do anything constructive for J.L.C. and candidly admitted that whether he could care for the safety and protection of his son "was something he [had] to prove."

C.C. was aware J.L.C. was living with J.L.C.’s maternal aunt. He conceded that she is providing a better life for J.L.C., loves the child, and is meeting all J.L.C.’s needs. C.C., on the other hand, has two other children, in addition to J.L.C., and does not have custody of either child.

J.L.C.’s caseworker testified that although B.G. did complete some services, she continued to use methamphetamines during the termination proceedings despite having completed outpatient drug therapy. After B.G. tested positive for methamphetamine in March 2017, the caseworker gave her names and numbers of outpatient and inpatient providers of drug treatment. The caseworker also arranged parenting and counseling classes to meet B.G.’s limited means of transportation. Also, in March, the court offered to reinstate visitation if B.G. would provide two negative hair follicle screens. Despite this incentive, she was unable to do so. After undergoing drug treatment, she relapsed again in the fall of 2017. J.L.C.’s caseworker further testified that in her opinion, B.G. was unable to provide J.L.C. with a safe environment due to her methamphetamine addiction and the fact that she had not obtained stable employment or housing to meet J.L.C.’s needs.

She asked that B.G.’s parental rights be terminated because B.G. used drugs before, during, and after J.L.C. was born. In addition, she opined that B.G. effectively abandoned J.L.C., in as much as he had been in conservatorship for six months, while she failed to fully comply with the court-ordered service plan by continuing to use methamphetamine during the termination proceedings.

J.L.C.’s caseworker also recommended that C.C.’s parental rights be terminated. Although he maintained monthly contact with her and she provided him with parenting packets, she testified little had changed. She testified C.C. was serving a twelve-year sentence with only the possibility of parole and had yet to show whether he had any parenting skills or was able to curb his addiction to methamphetamine outside of confinement. On the other hand, J.L.C. (a one-year old) was living with his maternal aunt. He was up-to-date on his medical and dental care, visited other family members, and was developmentally on target. Furthermore, J.L.C.’s maternal aunt wanted to adopt him and raise him with her two other children.

Penny Drennen, a tribal representative and qualified expert witness, was updated by J.L.C.’s caseworker throughout the proceedings on her efforts to obtain compliance with the service plan by C.C. and B.G. In Drennen’s opinion, continued custody of J.L.C. by B.G. and/or C.C. was likely to result in serious emotional or physical damage to J.L.C. She also opined that J.L.C.’s placement with his maternal aunt was the preferred placement and ICWA compliant, i.e., such placement was in J.L.C.’s best interest. She testified that the Department appropriately engaged B.G. and C.C. with services but its efforts had failed, and it was in J.L.C.’s best interest to proceed with termination.

FINAL ORDER

In its Final Order of Termination , the trial court found that the Department had proven by clear and convincing evidence that B.G. had violated section 161.001(b)(1)(D), (E), (N), (O), and (P) and C.C. had violated section 161.001(b)(1)(D) and (E). See § 161.001(b)(1)(D), (E), (N), (O), (P). The trial court also found by clear and convincing evidence that termination of B.G. and C.C.’s parental rights was in J.L.C.’s best interest. In conformance with the ICWA, the trial court found that the evidence...