In re Interest of L.G.R.

• Decision Date: 07 June 2016
• Docket Number: NO. 14–16–00047–CV,14–16–00047–CV
• Citation: 498 S.W.3d 195
• Parties: In the Interest of L.G.R., a Child
• Court: Texas Court of Appeals

498 S.W.3d 195

In the Interest of L.G.R., a Child

NO. 14–16–00047–CV

Court of Appeals of Texas, Houston (14th Dist.).

Opinion filed June 7, 2016.

Rehearing En Banc Overruled July 7, 2016

Julie A. Ketterman, Houston, TX, for Appellant.

Sandra D. Hachem, Houston, TX, for Appellee.

Panel consists of Justices Boyce, Christopher, and Jamison.

OPINION

Martha Hill Jamison, Justice

Appellant L.S. (“Mother”) appeals the trial court's final decree terminating her parental rights, and appointing the Department of Family and Protective Services (“Department”) as sole managing conservator of L.G.R. (“Child”). On appeal Mother challenges the legal and factual sufficiency of the evidence to support (1) the predicate grounds under which her parental rights were terminated, and (2) that termination was in the best interest of the Child. Mother further challenges the appointment of the Department as sole managing conservator and alleges she received ineffective assistance of counsel at trial and on appeal. We affirm.

I. BACKGROUND

On August 20, 2014, the Department received a report alleging Mother tested positive for marijuana at the time she gave birth. Mother and the Child's father admitted using marijuana in California where, she claimed, marijuana legally can be obtained and used under certain circumstances. At birth the child tested positive for marijuana and was diagnosed with hypoglycemia, jaundice, hypothyroidism, adrenal insufficiency, septo-optic dysplasia, an absent septum pellucidum, and metabolic acidosis. The Department sought removal of the child because the parents admitted using marijuana, the child was medically fragile, Mother's mental health was unstable, and neither parent was willing to allow the Department to view their home or to sign paperwork to voluntarily place the Child with a suitable alternate caregiver.

Shortly after birth, the Child was transferred to Texas Children's Hospital due to her declining health. On September 4, 2014, both parents visited the Child in the hospital. At the time of the visit, a social worker reported that Mother appeared to be under the influence of alcohol or drugs to the degree that the father “had to hold mom up to prevent her from falling.” At a meeting with doctors and Department employees Mother “appeared to be in a daze” and “stared into space during the entire meeting and would not say a word to anybody.” Both parents refused to sign Parental Child Safety Placement papers.

On September 23, 2014, the Department received a letter from the Child's paternal aunt indicating Mother had been hospitalized at Cypress Creek Hospital and diagnosed with bipolar disorder, paranoid schizophrenia, and substance abuse. The letter further indicated that Mother had a history of domestic violence. When the Department went to Cypress Creek Hospital on September 24, 2014, it learned Mother had been discharged.

On October 20, 2014, the Department filed a first amended petition for the termination of both parents' rights to the Child. The Department alleged that termination of Mother's rights was warranted because, as relevant here, Mother:

has been the cause of the child being born addicted to alcohol or a controlled substance, other than a controlled substance legally obtained by prescription, as defined by § 261.001(7), Texas Family Code pursuant to § 161.001(1)(R) Texas Family Code.¹

On November 20, 2014, Mother signed a family service plan in which she agreed to:

• pay child support as ordered by the court;

• submit to drug and alcohol assessments and follow all recommendations;

• submit to random drug tests through the Department;

• obtain and maintain employment and notify the Department within 48 hours of a change in employment;

• attend all court hearings, permanency conference meetings and family visits;

• notify her caseworker within 48 hours of any involvement with law enforcement;

• actively participate in the completion of parenting classes;

• cooperate with the Department in case-planning goals and sign all necessary releases of information at the request of the Department;

• truthfully participate in individual therapy with an approved service provider and follow all recommendations of her therapist; and

• participate fully in a psychological evaluation and follow up with all recommendations.

Prior to trial, the Child was placed with a maternal cousin.

II. TRIAL TESTIMONY

At trial, the Department introduced several exhibits, including a Children's Crisis Care Center report and Mother's drug test results, medical records and Family Service Plan. The report stated that Mother “was very guarded” when asked about her mental health history. Mother first saw a therapist at the age of eight when her parents were undergoing marital issues. Mother saw a psychiatrist at the age of 19; Mother did not know the diagnosis, but reported the psychiatrist prescribed Effexor, a medication used to treat depression.

Mother reported being admitted to a drug rehabilitation program in 2012 for tobacco use. After leaving the rehabilitation program, Mother was diagnosed with bipolar disorder and prescribed Lithium.

She stopped taking Lithium after gaining weight. Mother reported she did not take any prescribed medications during her pregnancy. After reporting trouble sleeping after the Child's birth, Mother was admitted to Cypress Creek Hospital and seen by a psychiatrist. She was prescribed psychotropic medication upon discharge from Cypress Creek. Mother continued to see the psychiatrist who treated her during that hospital visit.

Mother denied drug use other than the minor amount she admitted using during her pregnancy. Despite this denial, Mother admitted a 2011 conviction for driving while intoxicated.

Mother appeared unable to take responsibility for the Child's being in Department custody and resentful that she had been drug tested at the Child's birth without her consent. The Child was described as having “a serious medical condition” and being “extremely vulnerable” and totally dependent on the quality and consistency of her caregivers for her safety and well-being. The risk to the Child is high if Mother were unable to provide the necessary care.

Dr. Wafaa Farag, a psychiatrist, testified as an expert at trial. Farag conducted an assessment of Mother in May 2015, which also relied upon the report and her medical records. Due to Mother's evasive answers and minimization of her role as a parent, Farag was unable to fully assess and diagnose Mother. At the time of Farag's assessment, she recommended that Mother not be permitted to be alone with the Child, but she was unable to make that recommendation five months later at trial. Farag testified that Mother did not exhibit symptoms of depression or anxiety at the time of her assessment.

Mother testified that both she and the Child tested positive for marijuana at the time of the Child's birth. Mother admitted smoking marijuana while pregnant. Mother testified that she completed all of the services required by the family service plan, but admitted she was unemployed and lived with her parents. Mother receives Social Security assistance because she has a diagnosis of depression. Mother described it as “bipolar depression ” for which she takes daily medication. Mother has a prior conviction for driving while intoxicated. Mother has not worked since May 2013, but provides $223 in monthly support for the Child. Mother testified that the Child has hypoglycemia and is given a daily growth hormone shot.

Shantae Walker, the Department caseworker, testified that the Department was seeking to terminate Mother's parental rights because the Child was born addicted to marijuana and the Child has extensive medical needs that cannot be met by Mother. Walker testified that Mother does not fully comprehend the Child's medical needs or what is necessary to care for the Child. Walker prepared Mother's Family Service Plan and testified that Mother completed services, including individual therapy with Keith Barton. Barton recommended that Mother end therapy and the Child be placed with Mother. However, Mother was not forthcoming in her psychological assessment by Tracy Thompson, and Thompson recommended Mother have only supervised visitation with the Child.² The Child has been placed in the home of Mother's first cousin. The cousin and her husband were meeting all of the Child's needs. The Child receives regular physical therapy in addition to vision therapy and visits from a nutritionist on a weekly basis. The Department conducted a preliminary home study on the maternal grandmother. The maternal grandmother's home was denied as a placement for the Child because the grandmother did not provide all information to the Department. Mother lives in the grandmother's home.

Mother's cousin, the foster mother, testified at trial. The foster mother testified that the Child has been diagnosed with septo-optic dysplasia, hypoglycemia, and hypopituitarism. At one time, the Child was diagnosed with plagiocephaly, which caused her head to be malformed. The malformation was corrected by placing a helmet on the Child for a period of time. The Child receives physical and vision therapy and is visited by a therapist approximately every other day. The Child is developmentally delayed, but is improving. The Child is legally blind; she can see light and dark, but cannot distinguish shapes. The foster mother accompanies the Child to all of her doctor's appointments. Mother initially was permitted to attend doctor's appointments with the Child, but became disruptive and later was not permitted to attend medical visits. The foster mother testified that Mother does not have full comprehension of the Child's diagnoses or her medical needs. The foster mother is not sure that the Child would get the care she needs if placed with Mother. The foster mother testified that the Child has bonded with her, her husband, and her son. They plan to adopt the Child. The father made threats to the foster family at a time M...