In re K.N.D.

IN THE INTEREST OF K.N.D., A CHILD

NO. 01-12-00584-CV

Court of Appeals For The First District of Texas

August 14, 2014

On Appeal from the 314th District Court Harris County, Texas

Trial Court Case No. 2011-03002 J

MEMORANDUM OPINION ON REHEARING

Appellant A.D. appealed the trial court's decree terminating her parental rights to her daughter, K.N.D. In three issues, A.D. argued that the evidence was insufficient to support the termination of her parental rights and the appointment of the Texas Department of Family and Protective Services as sole managing conservator.

Following prior precedents of this court, we previously held that the evidence was legally insufficient to establish that the child was removed from her mother "under Chapter 262 for the abuse or neglect of the child," as is required to support termination under the sole ground found by the trial court, section 161.001(1)(O). In re K.N.D., 403 S.W.3d 277, 286 (Tex. App.—Houston [1st Dist.] 2012), rev'd, No. 13-0257, 2014 WL 185037 (Tex. Jan. 17, 2014). In light of its subsequent decision in In re E.C.R., 402 S.W.3d 239 (Tex. 2013), the Supreme Court of Texas concluded that "K.N.D. was removed for abuse or neglect under chapter 262 of the Texas Family Code," In re K.N.D., 424 S.W.3d 8, 10 (Tex. 2014), and it remanded the case to this court for further proceedings.

On remand we conclude that the evidence was legally and factually sufficient to support termination of A.D.'s parental rights under section 161.001(O) and to support the trial court's conclusion that termination of A.D.'s parental rights was in the best interest of K.N.D. Accordingly, we affirm.¹

Background

A.D. is the mother of S.L.A.D. and K.N.D. Before K.N.D. was born, S.L.A.D. was removed from the mother's care for neglectful supervision and medical neglect. The caseworker who testified in this trial was familiar with bothS.L.A.D. and K.N.D. She testified that domestic violence was an issue in the removal of S.L.A.D., as was the mother's ability to provide and maintain stable living conditions and employment. In addition, the mother failed to maintain contact with the Department after S.L.A.D. was removed from her care. When the child required brain surgery in 2010, the mother could not be located to consent to the operation. Later it was determined that around the same time that S.L.A.D. required surgery, the mother had been arrested in Florida for the misdemeanor offense of prostitution, as punishment for which she paid a fine. Just before the trial regarding termination of her parental rights as to S.L.A.D., A.D. relinquished her rights, placing that child for adoption. S.L.A.D. was later adopted.

Less than two years later, A.D. became pregnant with K.N.D. When she was 37 weeks pregnant, she became involved in an altercation at her apartment complex. According to the caseworker, A.D. claimed that she had fought with a roommate and was injured when she fell down. But she denied involvement in a physical altercation, saying she "felt dizzy and fell down." She told a hospital social worker that she was being chased by the male roommate and he stepped on her house shoe which caused her to fall.

According to an employee of the apartment complex, A.D. came to the apartment office and asked how she could have someone removed from her apartment. When A.D. saw the man approaching the office, she left through theside door. The apartment manager also saw the man, who was not listed as a tenant on the lease, chase A.D. in the parking lot, "stomp" on her, and hit her.

The apartment complex employee called the police, who escorted the man off the premises. A.D. was taken to the hospital by ambulance, and she gave birth to K.N.D. that same day. According to the caseworker, "a lady claiming to be a prostitute" came to the hospital while A.D. was giving birth to K.N.D. and said that A.D. was a prostitute and that they had gotten into a fight with a pimp. A.D. denied this account, but she said that the man had brought the woman to the apartment a few weeks earlier and that the woman was supporting her.

The day after K.N.D. was born, a report of "Neglectful Supervision" was referred to Child Protective Services. An investigation ensued, and the Department filed an original petition seeking conservatorship of K.N.D. and termination of the rights of her biological parents. In support of that petition, a CPS investigator summarized by affidavit the circumstances that precipitated K.N.D.'s removal,² explaining the altercation, the information regarding A.D.'s involvement with prostitution, the Department's prior involvement with and A.D.'s relinquishmentof S.L.A.D., and its concerns regarding the home environment, domestic violence, and A.D.'s prior unwillingness to complete services.

In addition, the investigator included information from her discussion with the caseworker who had been involved with S.L.A.D. The caseworker had not been aware of A.D.'s pregnancy. She advised the investigator that A.D. was "a flight risk" with untreated "mental health issues" and that she "will say that she will comply with agency recommendations, but then will not make herself available once it is time to work the services." The affidavit included the Department's concern that A.D. was a "flight risk," saying, "[t]here is prior CPS history where she has moved before the investigation could be completed and subsequent CPS history has been validated warranting the removal of her other daughter [S.L.A.D.]."

On the day the original petition was filed, the trial court entered its order for protection of a child in an emergency and appointed a guardian ad litem for K.N.D. Fourteen days later the trial court held an adversary hearing and named the Department as temporary managing conservator of the child. A.D. attended this hearing in person. In its May 17, 2011 "Temporary Order Following Adversary Hearing," the trial court ordered A.D. to comply with "each requirement set out in the Department's original, or any amended, service plan during the pendency of this suit."

Approximately one month later, the Department filed its service plan. It required A.D. to complete certain tasks, including (1) submit to a mental health evaluation, (2) maintain and obtain suitable and legal employment, (3) obtain stable housing, (4) obtain a GED or high school diploma, (5) complete domestic violence counseling, (6) participate in individual counseling, and (7) complete a parenting class.

About a week later, the court held a status hearing and signed two orders. The first order was called "Additional Temporary Orders to Obtain Return of Children." It recited that a hearing was held on June 30, 2011 and that the parents were ordered to take certain actions. However, on the line beside the word "parents" appeared the word "father" and a box which was checked.³ The word "mother" did not appear on this document. Among other things, the actions required by the order included: (1) complete a psychological examination and follow all recommendations; (2) complete parenting classes; (3) maintain stable housing; (4) maintain stable employment; and (5) complete all services outlined in the Family Plan of Service.

The second order was a "Status Hearing Order." It also recites that a status hearing was held on June 30, 2011. The order advised A.D. that her failure todemonstrate that she could provide K.N.D. with a safe environment could result in the termination of her parental rights, and it incorporated the Department's service plan:

2.6. The Court finds that [A.D.] "has . . . reviewed and does . . . understand[] the service plan and has . . . been advised that unless she is willing and able to provide the child 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 the child may not be returned to her.

. . . .

3.1. IT IS ORDERED that, except as specifically modified by this order, the permanency plans and recommendations for the child, set out in the service plans filed with the Court, are approved and adopted by the Court as if set out verbatim in this order.

In addition, after a status hearing in 2012, the court ordered A.D. to remain in the courtroom and submit to drug testing. She did not comply; instead she left after the hearing. The Department ultimately filed its permanency plan and progress report which indicated that K.N.D.'s foster parents, who had adopted S.L.A.D., were willing to adopt her.

A.D. was represented by counsel at trial, but she did not attend the proceeding in person. The only live witness at the trial was the CPS caseworker who was familiar with the cases of both S.L.A.D. and K.N.D. The caseworker testified that A.D.'s parental rights with respect to S.L.A.D. were terminated when she relinquished her rights just before trial was scheduled to begin in that case.

She testified about the circumstances that formed the basis for removal of K.N.D. and A.D.'s performance of the actions the court had required her to complete in order to obtain return of K.N.D. The caseworker stated that A.D. never provided proof of stable living conditions or stable employment, which was a concern of the Department in both this case and the prior case involving S.L.A.D. Although A.D. provided the Department with "an intent to hire letter stating that she would be employed by [a] credit counseling service," she was never actually employed by that service. The caseworker testified that the only documentation regarding employment that A.D. had provided was a single pay stub reflecting a $40 payment from a home health care service. The caseworker opined that A.D. was unable to support K.N.D.

The family service plan also required A.D. to submit to a psychiatric evaluation and complete domestic violence counseling and parenting classes. A.D. did submit to a psychiatric evaluation, but MHMRA...