In re T.N.R.

IN THE INTEREST OF T.N.R., A CHILD

No. 14-21-00473-CV

Court of Appeals of Texas, Fourteenth District

February 8, 2022

On Appeal from the 314th District Court Harris County, Texas Trial Court Cause No. 2018-03359J

Panel consists of Justices Wise, Spain, and Hassan.

MEMORANDUM MAJORITY OPINION

Ken Wise, Justice

Appellant S.R. (Mother) appeals the trial court's final order terminating her parental rights to T.N.R. (the Child) and appointing the Department of Family and Protective Services as sole managing conservator of the Child. Mother contends that the evidence is legally and factually insufficient to support the trial court's predicate findings for termination, the evidence is factually insufficient to support the best-interest finding, and the trial court abused its discretion by not appointing Mother as a managing or possessory conservator of the Child. We affirm.

I. Background

A. History with the Department and Removal

Mother has seven children. The oldest was born in 2005. The Child is the youngest and was born in April 2017. The Department has been involved with Mother's children since 2008 when there were allegations of neglectful supervision by the parents. One of Mother's children was hit by a car.

In late 2009, Mother's then-living children were taken into the Department's custody due to physical abuse and neglect. The children and their clothing were dirty and smelled as if they were not bathed regularly. One child had dried feces on both his legs down to his ankles and on his shoes. Another child's hair was matted to her head. After Mother completed services, the children were returned to her care in 2010.

In 2016, the Department again removed the children from the parents' care following a report of domestic violence against Mother by Father. The Department sought and obtained sole managing conservatorship of the children. The parents were named possessory conservators and were allowed only supervised visitation with the children or by agreement with the Department.

In early June 2018, Mother's two oldest children were returned to her home based on progress she had made in the case. But later that month, a therapist and a caseworker each visited the home and found Father with the children. The Department removed the Child and her siblings from the home. The Child was removed on June 14, 2018, and she has been in the same foster placement since then.

The Department sought termination of Mother's and Father's parental rights to the Child. The final hearing commenced on May 23, 2019, and was continued on December 14 2020, January 21, 2021, and August 9, 2021.

B. Drugs

Mother testified that she has never had a drug addition, but her "drug of choice was marijuana." She testified, "I never used cocaine a day in my life." Nonetheless, Mother testified that she attended alcoholic anonymous, cocaine anonymous, and narcotic anonymous every day, Monday through Friday, "Because that's something that I like to do, and it's kind of fun to realize what's going on with you." She denied admitting to a caseworker that she had used cocaine.

The Department adduced evidence that Mother admitted to a caseworker that she used cocaine with Father since the age of twenty-two, or 2008. The court admitted evidence that Mother took monthly drug tests, and she tested positive for cocaine in December 2016, July 2018, October 2018, March 2019, July 2020, and May 2021. Mother denied testing positive for cocaine. She testified that she had her own drug tests performed: "Every time they drug test me, I go pay for my owns at the same place y'all take me to." She attributed her positive drug tests to eating poppy seeds: "I love Burger King and you can be tested positive eating them poppy seeds."

A caseworker testified that Mother has had periods of testing negative for drugs, but Mother had tested positive for cocaine at least five times between June 2018 and January 2021. The caseworker acknowledged that on at least one occasion Mother tested positive for cocaine and then negative a few weeks later.

In June 2018, during the home visit that prompted the Child's removal, a caseworker observed marijuana on a kitchen counter not far from where the children were sitting.

C. Violence

The Department had made "reason to believe" findings regarding Father's physical abuse of the children in 2009 when it was reported that Father beat the children with his fist regularly and one child had been injured after Father dragged her. The Department had made multiple "reason to believe" findings regarding Father's sexual abuse of children who were not Mother's children. One of those children disclosed that Father "touched her inappropriately." Another child disclosed that Father "asked him for oral sex" and "touched him inappropriately." Several of Mother's children were in therapy for "sexual acting-out behavior."

Mother testified that she was not aware that Father sexually abused any children "because he never sexually abused [her] children; and he never been charged for it." She explained, "I don't know nothing about that. That's another child. That wasn't none of my children." She testified later, however, that she was aware since 2016 that there had been allegations of sexual abuse against Father. A caseworker testified that Mother told the caseworker that Father was a "sexual offender."

Mother testified that the first and last time Father assaulted her physically was in 2011. She later testified that Father also assaulted her in 2015. The Department adduced evidence that Father had been charged with assaulting Mother and interfering with an emergency call in 2011, but the charges were dismissed. He was convicted of a 2015 assault against Mother.

In 2016, Mother signed a safety plan stating that Father would move out of the home and not have contact with the children. Mother testified that in 2016 "they told me he had to leave in order for the kids to stay" due to "abuse and domestic violence." Mother testified that she told the Department throughout the 2016 case that she did not have any relationship with Father. Yet, Mother and Father conceived the Child, who was born in April 2017.

A caseworker testified by affidavit that she spoke with Mother on numerous occasions, including on June 9, 2018, about Father's whereabouts, and Mother "continually reported that she had no contact with him and had no idea where he was." Mother denied telling a caseworker that she did not have contact with Father in 2018.

On June 11, 2018, when a therapist for several of the children and a caseworker visited Mother's home, they found Father in the home.^[1] It appeared to the therapist as if Father had spent the night at the house. Father told the caseworker that he knew he should not have been there, but he "wanted to help [Mother] out." When the therapist visited the home, Mother and Father were there together. When the caseworker visited the home, Father was alone with the children. A caseworker testified by affidavit that Mother initially denied knowing that Father was at the home but then "changed her story," stating that he was there to supervise the children. Mother testified that Father was found "in my house with the children." She testified that Father was taking the children to a babysitter who did not have a vehicle. Mother testified that she did not become aware until after the children were removed from her care in 2018 that Father was not supposed to be around her children.

Mother denied that Father threatened or assaulted her in June 2018. But the trial court admitted into evidence Mother's affidavit in support of a protective order that she signed on June 27, 2018, after the Child's removal on June 14, 2018. In the affidavit, Mother described an incident on June 9 when Father entered her home and said he "wanted to see our children even though there's a pending CPS case due to [Father's] violent behavior towards me." She described an incident on June 13 when Father entered her home through a window, pushed her, grabbed her, and jerked her repeatedly. She described an incident on June 22 when Father threw a can of beer at Mother's ankle and cut her. She testified further:

He has assaulted me numerous times during our relationship. He has pushed me, pulled my hair, scratched me, hit me with his hand, threatened me with a knife, stalked me, choked me, thrown objects at me, threatened to hurt and to kill me, threatened to take our children from me, and being [sic] violent with me in front of my children.

D. Service Plan

A caseworker testified that Mother had completed all of her services in this case and in the two prior cases with the Department. But the caseworker was concerned because Mother continued to test positive for cocaine after completing substance abuse treatment.

E. Visits, Placement, and Plans

The caseworker testified that Mother had weekly visits with the Child for at least a year. The caseworker and child advocate each testified that Mother's visits with the Child have been appropriate. The advocate testified that Mother and the Child seemed bonded to each other. The caseworker testified that the Child refers to Mother as "mama."

Since the Child was removed from Mother in June 2018, the Child has lived with a foster family in an adoptive placement. The caseworker testified that the Child has no specialized needs and is developmentally on target. The caseworker and child advocate testified similarly that the Child has a good relationship with the foster parents, and she is well-adjusted to that environment and taken care of. The foster parents read to the Child, and she participates in educational activities and travel. She is bonded with them and a foster brother. The Child calls her foster parents "moth...