In re Interest of A.A.H.
| Decision Date | 05 March 2020 |
| Docket Number | NO. 01-19-00612-CV,NO. 01-19-00748-CV,01-19-00612-CV,01-19-00748-CV |
| Parties | IN THE INTEREST OF A.A.H a/k/a A.H. IN THE INTEREST OF A.M.H-F., A.L.F., A.C.J.H.-M., A.P.J.H.-M. and A.C.H.-M. |
| Court | Texas Court of Appeals |
On Appeal from the 310th District Court Harris County, Texas
Trial Court Case No. 2018-59296 & 2017-65076
K.H. ("Mother") and A.J.M. ("Father") are appealing a final decree terminating their parental rights to their infant daughter, A.H. ("Alexa"). Mother also appeals a separate final decree terminating her parental rights to her five older children. In several issues, Mother and Father both argue on appeal that there is legally and factually insufficient evidence supporting the trial court's findings that: (1) they committed the requisite predicate acts under subsections 161.001(b)(1)(D), (E), and (O) and (2) termination of their parental rights is in the children's best interests. See TEX. FAM. CODE §§ 161.001(b)(1)(D), (E), (O) & 161.001(b)(2). In several additional issues, Mother contends that (1) there was legally and factually insufficient evidence to support the appointment of the Department of Family and Protective Services ("The Department") as sole managing conservator, (2) she was denied due process and equal protection, (3) the trial court lacked jurisdiction because it did not commence trial within the statutorily required time, (4) she received ineffective assistance of counsel, and (5) the trial court erred in denying an intervention by a potential relative seeking placement in violation of the Fostering Connections Act. In cause number 2018-59296, we affirm the termination decree as to Father but reverse and remand as to Mother. In cause number 2017-65076, we affirm the termination order.
Mother has six children. At the time of trial, the eldest was nine years old and the youngest was an infant. Adam Fields, deceased, is the father of the twoeldest children, Anna and Bryan.1 Father is the father of the second oldest daughter, Catherine. Johnathan Adams is the father of Deborah and Elijah. And, Father is also the father of the infant, Alexa.
In July 2017, the family came to the Department's attention when it received a referral for medical neglect; the middle daughter, Catherine, had suffered severe burns caused by boiling noodles, and Mother had not sought any medical treatment for her. Mother took a drug test on July 17, 2017, in which she tested positive for cocaine in an amount indicating that she was a chronic user. In October 2017, when Mother continued to test positive for drugs, the Department was appointed Temporary Managing Conservator of Anna, Bryan, Catherine, Deborah, and Elijah.2 However, there is evidence that Mother concealed the children, and the Department was unable to locate them and take custody of them until January 26, 2018.
The infant, Alexa, was born August 23, 2018. On August 29, 2018, the Department received a referral alleging neglectful supervision of Alexa by Mother. Father was in jail at the time of Alexa's birth.
On August 30, 2018, Department investigator, Sheryl Ross, went to the apartment where Mother was staying with her sister and fictive kin, whom she referred to as her grandfather, but Mother said that the baby was not there. The Department was not able to locate Alexa until September 11, 2018, when it was named temporary managing conservator. Mother again tested positive for cocaine on that date.
Both cases—2017-65076 involving the older children and 2018-59296 involving the infant—were called to trial. Father was represented by Michael Craig. The Department was represented by De'Anna Carlson. Mother's attorney in the 2018 case, Gary Smotherman, was not present and the record provides no explanation for his absence. Mother's attorney on the 2017 case, Jimmie Brown, Jr., appeared on her behalf.
Father's attorney called Father, who testified that he wished to execute a Voluntary Relinquishment of Parental Rights as to Mother's third child, Catherine. Father testified that he understood the consequences of his action, that it was irrevocable, and that it was in Catherine's best interest. The trial court admitted the document into evidence without objection. Father did not execute a relinquishment as to Alexa.
The trial court then recessed the trial because Mother had alleged that her children might be of Native American descent and that more time was needed to comply with the protections provided by the Indian Child Welfare Act of 1978. See 25 U.S.C. §§ 1901—1963 (2001).
The Department proceeded by offering numerous exhibits, including the children's birth certificates, the parents' family service plans, the parents' drugs tests, and the parents' criminal records.
The first witness was Bruce Jefferies, the owner of the National Screening Centers, who testified about Mother's and Father's drug tests. The evidence showed that Mother first tested positive for cocaine on July 17, 2017, at which time her cocaine levels indicated daily "chronic" use. On February 6, 2018, Mother tested positive for a low amount of ingested marihuana, a chronic "daily" exposure to marihuana, methamphetamine, and cocaine at a chronic usage level. This test was after the Department had removed Mother's older children and Mother was pregnant with Alexa at the time.
On February 27, 2018, Mother tested positive for cocaine, PCP, marihuana, and codeine. Her cocaine level had dropped, her marihuana levels were low, but she had new positive results for PCP and codeine. Jeffries explained that the codeine could be explained by a prescription drug. Mother never produced or claimed to have a prescription.
On July 17, 2018, Jefferies could not take a sample of hair from Mother's head because it had been shaved and she was wearing a weave.
On July 19, 2018, a little over a month before Alexa's birth, mother tested positive for cocaine.
On September 11, 2018, a few weeks after Alexa was born, Mother tested positive for cocaine again.
On October 23, 2018, Mother tested positive for alcohol, methamphetamine, cocaine, and PCP. Jefferies noted that Mother was still testifying positive, even while she was participating in a substance-abuse program.
On November 27, 2018, Mother again tested positive for cocaine.
On February 20, 2019, just a few weeks before trial, mother tested positive for a low amount of cocaine, daily exposure to marihuana, and a low amount of marihuana ingestion.
Jeffries also testified about Mother's drug tests by Texas Drug and Alcohol Services, which showed that (1) Mother's earliest drug test—July 17, 2017—which was before any of her children were removed, showed chronic or daily use of cocaine, (2) on August 31, 2018, just a few days after Alexa's birth, mother tested positive for cocaine, and (3) on October 10, 2018, Mother again tested positive for cocaine.
Jefferies also testified about Father's drug tests as follows:
On March 1, 2018, Father tested positive for PCP and marihuana, both by exposure and ingestion.
On February 19, 2019, just a few weeks before trial, Father tested positive for marihuana ingestion at a chronic usage level, codeine and morphine, PCP at a chronic usage level, low levels of alcohol, and methamphetamine at a level indicating usage more than once.
The next witness was John Fuegar, the Department's case worker in both the 2017 and 2018 cases. Fuegar testified that all six children were currently in foster care. The three eldest children—Anna, Bryan, and Catherine—were in the same foster care placement. All three were in therapy and were "doing well." The placement was not a potential adoptive placement.
The next two children—Deborah and Elijah—were placed in a foster home together and they too were doing well and were attending daycare regularly. The placement was not a potential adoptive placement.
Finally, the infant, Alexa, was placed in a foster home and was the only sibling placed alone. Her foster mother arranged for her to visit her siblings. Despite being exposed to illegal drugs in utero, Alexa had experienced no developmental delays. Alexa's foster mother was willing to adopt both her and Catherine.
Fuegar testified about other potential placements for the children. He testified that Adam Field's family was willing to take Anna and Bryan, who were their deceased relative's children. Fuegar also testified that the Department had identified one family who was willing to adopt all six children if the parents' rights were terminated. So, Fuegar concluded that the Department would be able to locate permanent placements for all six of the children. Fuegar testified that the olderchildren currently had some hesitation about being reunited with their younger siblings because they feared they might once again be "in charge" of the younger children.
Regarding Catherine's burns, which led to the initial Department referral, Fuegar testified that the Mother explained that noodles had spilled on the...
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