In re E.B., 02-22-00205-CV

CourtCourt of Appeals of Texas
Writing for the CourtWade Birdwell Justice
PartiesIn the Interest of E.B., a Child
Docket Number02-22-00205-CV
Decision Date23 November 2022

In the Interest of E.B., a Child

No. 02-22-00205-CV

Court of Appeals of Texas, Second District, Fort Worth

November 23, 2022


On Appeal from the 89th District Court Wichita County, Texas Trial Court No. DC89-CP2021-0066

Before Birdwell, Wallach, and Walker, JJ.

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MEMORANDUM OPINION

Wade Birdwell Justice

Appellant T.C. (Mother) appeals the trial court's order terminating her parental rights to her child, E.B. In three issues, Mother argues that the evidence is legally and factually insufficient to support the termination of her parental rights under Texas Family Code Subsections 161.001(b)(1)(N) and (O) and that the evidence is legally and factually insufficient to support the trial court's finding that termination of Mother's parental rights is in E.B.'s best interest. We will affirm the trial court's order terminating Mother's parental rights to E.B.

I. Background

On December 29, 2020-two days after E.B. was born-the Texas Department of Family and Protective Services (TDFPS) received a report that Mother had given birth to a child and had reported using marijuana and methamphetamine during the pregnancy. TDFPS opened an investigation and ultimately filed a petition seeking removal of E.B. from Mother's care and termination of Mother's parental rights. E.B. was removed on January 11, 2021. K.B., who was later adjudicated as the father of E.B., was found deceased in his home the same day.

After a bench trial before an associate judge, Mother's parental rights were terminated based on findings that Mother had constructively abandoned E.B., that Mother had failed to comply with her service plan, and that termination of Mother's parental rights is in E.B.'s best interest. See Tex. Fam. Code Ann. § 161.001(b)(1)(N), (O), (b)(2).[1]

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Mother then requested a de novo hearing, and the findings of the associate judge were approved and adopted.[2] This appeal followed.

A. TDFPS's Investigation

During its investigation, TDFPS developed concerns related to Mother's illegal drug use, Mother's mental health, Mother's criminal history and imminent incarceration, K.B.'s passivity toward Mother's behavior, and Mother's overall inability to care for E.B.

1. Mother's Drug Use

Despite admitting to using illegal drugs while she was pregnant with E.B., Mother refused to submit to a drug test after delivering E.B. at the hospital. TDFPS later met with Mother at the hospital where E.B. was born, and Mother eventually agreed to submit to a drug test the following day, on December 30, 2020. Mother did not show up for her drug test that day.

Approximately one week after E.B. was born, Mother admitted to TDFPS that she did not submit to a drug test when E.B. was born because she knew the test results would be positive for methamphetamines. Mother then divulged that she had used methamphetamines just two days earlier-sometime around January 4, 2021.

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The very next day, Mother admitted that she had used methamphetamines the night before.

Around the same time, Mother called TDFPS and asked why she had not been informed that E.B. had died. But E.B. was fine. Mother exhibited "erratic" behavior, and according to a TDFPS investigator, Mother was not making any sense. Mother's probation officer later reported that, although Mother was supposed to check in with him weekly, he had not seen her in approximately three months. He also relayed that Mother's drug-test results from September 2020 were negative but that she had not submitted to drug testing since then.

When E.B. was approximately one week old, K.B. reported concerns to the TDFPS investigator that Mother was using methamphetamines and that he did not want to communicate with her while she was "like that." During TDFPS's investigation, K.B. and his mother agreed to care for E.B. and to keep Mother away from E.B. E.B. remained in K.B.'s possession until January 11, 2021, when K.B. was found deceased in his home and E.B. was removed by TDFPS. Local law enforcement made TDFPS aware of K.B.'s death, and a TDFPS investigator immediately responded to the residence. Despite K.B.'s assurance that he would not allow any contact between Mother and E.B., there was evidence that Mother had also been staying at the residence with E.B. When the TDFPS investigator arrived at the home, Mother was present and appeared to be under the influence of illegal drugs. Specifically, she could not spell her name, she repeatedly crawled back into bed while

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being questioned by law enforcement, and she was "very erratic." Mother admitted to using marijuana with K.B. the night before but did not respond when questioned about methamphetamine use. Further, Mother was unable to provide TDFPS with any appropriate caregivers for E.B. at that time.

2. Mother's Criminal History

When TDFPS first met with Mother at the hospital where E.B. was born, Mother told TDFPS that she had a history of domestic violence with her ex-boyfriend and that she had been arrested "a few times" for assault. Mother then admitted that she violated probation when she was arrested for possession of marijuana and had been ordered to go to an Intermediate Sanction Facility (ISF) for ninety days, beginning January 25, 2021.

TDFPS also discovered that Mother's criminal history consisted of several charges and convictions for assault- and drug-related offenses, including bodily-injury assaults, family-member assaults, aggravated assault, aggravated assault with a deadly weapon, and possession of marijuana.

B. Mother's Service Plan

With the goal of family reunification, a family plan of service was prepared for Mother on February 8, 2021, with a target completion date of February 7, 2022. Mother did not participate in her service plan meeting but was later provided a copy of the service plan to review with her case worker during an in-person meeting. Mother also signed receipt of her service plan while she was incarcerated on

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March 11, 2021, which was filed with the trial court. Mother's required services included parenting classes, individual counseling, a psychological evaluation, and the completion of a drug assessment. She was also ordered to complete substance abuse counseling, to attend NA/AA meetings, to participate in random drug screens, to attend weekly visitations with E.B. once she was no longer incarcerated, and to provide proof of income and proof of a safe and stable home environment. Mother did not complete any of these services. At the time of trial, Mother had not started any services.

Mother was incarcerated from approximately January 2021 until November 2021. During that time, Mother returned one parenting packet in September 2021 and maintained contact with her initial case worker via mail. She also reported to TDFPS that she had attended "daily group and therapy classes" while incarcerated. At trial, 2INgage case manager Stephanie Pickrell[3] testified on behalf of TDFPS. Pickrell acknowledged that when a parent is incarcerated, it is more difficult for that parent to complete their services. Specifically, the parent's ability to complete psychological services, to attend individual counseling or substance abuse counseling, to complete a drug assessment, to obtain stable income or housing, and to have visitations with the child is limited while the parent is incarcerated. However, Mother chose not to participate in any services when she was released from incarceration. After her release

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in November 2021, Mother's contact with 2INgage was inconsistent and sporadic. Pickrell testified that Mother maintained very little contact with her, despite her attempts to contact Mother at least nine times in November 2021 and at least seven times in December 2021. And when Mother would occasionally contact Pickrell, she asked only about visitations with E.B.

Mother's behavior also changed after she was released, and her interest in E.B. was inconsistent. On November 1, 2021, the trial court signed an Order for Mediation, which was scheduled to occur after Mother's release. Although she was no longer incarcerated on the date of the mediation and was required to attend, Mother did not attend the mediation. On November 17, 2021, Pickrell went to the address listed as Mother's residence to discuss Mother's service plan with her. Mother was late for the meeting. When Pickrell handed Mother a copy of the service plan, Mother handed it back and stated, "I don't want to be [E.B.'s] mother. I don't want my daughter; I don't need this." Confused, Pickrell asked Mother why she had changed her mind so quickly. Mother responded, "I can't be the mom she needs; I can barely keep myself alive. I have no home, no income, and I don't know how to be a mom. I love her, but . . . I'm a kid myself. I am not on my medication." Mother also told Pickrell that she had "superpowers" and "telekinesis" and that she could "move things with [her] mind." But moments later, Mother asked Pickrell for a visitation with E.B.; she did not follow up with Pickrell the next day regarding the visitation.

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A few weeks later, Mother reached out to Pickrell to ask why she had not been able to visit E.B. yet. Pickrell agreed to set up a visitation with E.B. if Mother would first submit to a drug test. Mother agreed to the drug test, and Pickrell arranged for Mother to go to the drug-testing site. Mother no-called, no-showed for that appointment. Pickrell then attempted to set up another appointment for Mother on December 6, 2021, but Mother again did not show up for the appointment or otherwise respond to Pickrell's phone calls or text messages.[4] Pickrell testified that she did not have further contact with Mother after December 6, 2021.

Mother never attended any visitations with E.B. Prior to Mother's incarceration, a visitation via Zoom between Mother and E.B. had been scheduled.[5]Mother went to the 2INgage office for the visitation but refused to join the Zoom call because...

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