M. P. v. Tex. Dep't of Family & Protective Servs.

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M. P. a/k/a M. D.; J. J. L.-B. and C. J. L., Appellants v. Texas Department of Family and Protective Services, Appellee

No. 03-22-00163-CV

Court of Appeals of Texas, Third District, Austin

September 16, 2022

From the 261st District Court of Travis County No D-1-FM-20-003397, the Honorable Amy Clark Meachum, Judge Presiding

Before Justices Goodwin, Baker, and Kelly

MEMORANDUM OPINION

MELISSA GOODWIN, JUSTICE

M.P a/k/a M.D. (Mother) and J.J.L.-B. and C.J.L. (Foster Parents) appeal from the trial court's final decree of termination and orders for conservatorship, possession, and access.^[1] Following a bench trial, the trial court terminated Mother's parental rights to M.A.P. (Child) and appointed the Texas Department of Family and Protective Services as the nonparent permanent managing conservator of Child; M.P., Sr. (Father) as parent possessory conservator and Foster Parents as nonparent possessory conservators. In her appellate issue, Mother argues that the trial court did not have jurisdiction to render a final order. In their two appellate issues, Foster Parents challenge the legal and factual sufficiency of the evidence to support the trial court's predicate-ground and best-interest findings as to Father. See Tex. Fam. Code § 161.001(b)(1)(O), (2).

For the following reasons, we affirm the final decree of termination and orders for conservatorship, possession, and access.

BACKGROUND

Mother and Father married in 2006, and Mother's six-year-old son from a previous relationship lived with them. Mother and Father separated in 2019 but began living together again in the spring of 2020 when Mother was pregnant with Child. During her pregnancy, Mother did not obtain prenatal care. In June 2020, Mother's water broke, and Mother and Father went to the hospital but left shortly afterward against medical advice. After Mother was unresponsive during an exam hospital staff searched her gown suspecting drug use. Mother and Father left after Mother was searched and a dark tar-like substance was found in her gown.^[2] Mother, her son, and Father then stayed in a hotel. While they were at the hotel, the police and the Department conducted welfare checks on Mother. After about one week, EMS transported Mother to a hospital where she gave birth to Child, who was born premature, tested positive for opiates, showed symptoms of drug withdrawal, and was admitted to the NICU for treatment of drug withdrawal, where he remained for two months. Mother also tested positive for amphetamine, opiates, "benzos," and THC and admitted that she used illegal drugs including heroin while she was pregnant with Child.

Shortly after Child was born, the Department filed an original petition concerning Child and sought emergency relief. The trial court appointed the Department as Child's temporary managing conservator and removed Child from the parents' care. The Department identified Foster Parents as a possible placement, and they began visiting and training to care for Child when he was in the NICU. Child was discharged from the hospital to Foster Parents, who continued to care for Child during the case. In a separate suit, Foster Parents filed a petition for termination of parental rights and adoption. The trial court consolidated their case with the Department's case prior to the bench trial.

The bench trial occurred in December 2021 when Child was around seventeen months old. Mother was represented by counsel, but she personally attended only portions of the trial. Father was present and acted pro se with the assistance of a court-appointed advisory attorney. The witnesses at trial included Father, Mother, police officers, nurses who provided medical care to Mother and Child, Department caseworkers and investigators, and Foster Parents. The Department's reasons for seeking to terminate parental rights included its continued concerns with Mother's drug addiction, her use of heroin when pregnant and during the case, Father's unwillingness to engage in services, and his perceived lack of protectiveness of Child when Mother was pregnant and in labor.

Father testified that he lacked experience with "severe drug addiction" and "sick, pregnant women" and that his "actions were [his] only options." He testified that he and Mother separated in 2019 because of Mother's drug addiction, explaining that his concern with Mother being "impaired" began a "few months" before they separated and that it was "a tough decision to make, to leave [his] wife of 15 years because she's sick." After he found out in the spring of 2020 that Mother was pregnant, they began living together again. He did not believe that Child "would be here had [Mother] not come back to [him] because she was not taking care of herself." He wanted to "ensure that [Child] came into the world so [he] did everything [he] could to make that happen" and "the only way [he] knew how" to do that was "through the body of [Mother]."

He explained, "[T]he baby, of course, was very important. But if the mother doesn't live neither does the baby so [he] had to make sure [Mother] was healthy and strong, to the best of [his] ability." He testified that after they began living together again until Child was born, he "took [Mother] to [outpatient] rehab"^[3] and he "cooked for her every day, three meals a day, good nurturing food." As to their decision to leave the hospital when Mother was in labor, Father testified that he did not think that it was dangerous to Child because a nurse said that Child was "healthy and fine" and "medical people" told him that "there was no danger."

Concerning his living situation and plans, Father testified that he was employed on a full-time basis as a maintenance technician at a hotel, that he had a "big family" with "lots of places [he could] stay," and that his plan if Child was returned to him was for Mother to visit with Child if she was sober but not to live with them. Father testified that he did not participate in court ordered services because he thought that the orders were unconstitutional after he received a "vindication" letter from the Department that "officially cleared [him] of any wrongdoing."^[4] Father also testified that he did not visit with Child from January to June or July 2021 because he could not deal with the caseworker and "had to step back" from the Department's "bullying."^[5] When asked to explain why the court should feel comfortable returning Child to him, Father responded that he was the "non-offending parent," would be an "excellent father" to Child, and did a "good job" raising his stepson, who was "21 now."

Mother testified that she and Father met and began living together in 2004 and "didn't really bounce around" and that Father was "very good at keeping-maintaining a home for us" and provided a "stable place" to take care of her son. She also testified that she had separated from Father "off and on" because of differences that they had, including their age and kinds of friends. She explained that "[her] friends were still drinking and partying and stuff" and that "he didn't like to be around that kind of environment." Mother admitted to using heroin when pregnant and to using other illegal drugs and testified that she last used heroin about four months before trial but denied using drugs at their house when she and Father were living together, explaining that Father "kept an eye on [her] very well." She testified that Father liked to smoke marijuana but did not do it with her. Mother further testified that after they got back together when she was pregnant, Father took care of her, she went to rehab, and her son also was living with them. When asked about leaving the hospital when she was in labor, Mother testified that she "was told [that Child] was fine" and "that there was no urgency for him to be delivered that day."

Concerning her living situation and plans, Mother testified that she was employed and that if Child was returned to her, Child could live with her in a trailer. Mother, however, did not comply with court-ordered services, including drug testing. She did not drug test after September 2020, and she was arrested in December 2020 for burglary and possession of a controlled substance and in March 2021 for theft at a Walmart. The police officer who arrested Mother in December 2020 testified that they found drug paraphernalia, heroin, and methamphetamine in her backpack. The officer who arrested and searched Mother in March 2021 testified that he found the following items on Mother: stolen merchandise, a glass pipe, a black-tar substance that was confirmed to be heroin, and pills that were confirmed to be methamphetamine.

The Department's representative, the attorney ad litem, and Foster Parents testified that terminating parental rights was in Child's best interest so that Foster Parents could adopt Child. The evidence showed that Foster Parents loved, were bonded with, were taking good care of, and hoped to adopt Child and that they had ensured that Child was receiving the extensive medical care and therapies that he needed. Foster Parents, however, were willing to have a conservatorship relationship with Child in their home if parental rights were not terminated.

In its final decree and orders for conservatorship, possession, and access, the trial court terminated Mother's parental rights, finding that she knowingly placed or knowingly allowed Child to remain in conditions or surroundings which endangered Child's physical or emotional well-being engaged in conduct or knowingly placed Child with persons who engaged in conduct which endangered Child's physical or emotional well-being, and failed to comply with court-ordered services, and that it was in Child's best interest for Mother's rights to be terminated....