In re Interest of M.A.J.

• Decision Date: 25 June 2020
• Docket Number: NO. 01-19-00685-CV,01-19-00685-CV
• Citation: 612 S.W.3d 398
• Parties: In The INTEREST OF M.A.J. Jr., H.A.J., and B.D.J., Children
• Court: Texas Court of Appeals

612 S.W.3d 398

In The INTEREST OF M.A.J. Jr., H.A.J., and B.D.J., Children

NO. 01-19-00685-CV

Court of Appeals of Texas, Houston (1st Dist.).

Opinion issued June 25, 2020

Rehearing Denied June 25, 2020

Rehearing En Banc Denied December 10, 2020

OPINION ON REHEARING

Julie Countiss, Justice

Appellee, the Department of Family and Protective Services ("DFPS"), has filed a motion for rehearing of our March 5, 2020 memorandum opinion and judgment.¹ We deny the motion for rehearing, withdraw our opinion and judgment of March 5, 2020, and issue the following opinion and judgment in their stead.

In this accelerated appeal,² appellant, mother, challenges the trial court's order, entered after a bench trial, terminating her parental rights to her minor children, M.A.J. Jr. ("M.A.J."), H.A.J., and B.D.J. (collectively, "the children").³ In four issues, mother contends that the evidence is legally and factually insufficient to support the trial court's findings that she engaged, or knowingly placed the children with persons who engaged, in conduct that endangered their physical and emotional well-being;⁴ she constructively abandoned the children, who had been placed in the permanent or temporary managing conservatorship of DFPS for not less than six months;⁵ she failed to comply with the provisions of a court order that specifically established the actions necessary for her to obtain the return of the children;⁶ and termination of her parental rights was in the best interest of the children.⁷

We affirm in part and reverse in part.

Background

On August 22, 2018, DFPS filed a petition seeking termination of mother's parental rights to the children and managing conservatorship of the children.

DFPS Caseworker Cano

At trial, DFPS caseworker Gabriela Cano testified that M.A.J. was four years old and both H.A.J. and B.D.J. were one year old. H.A.J. and B.D.J. are twins. Cano stated that the children entered the care of DFPS based on an allegation of negligent supervision occurring on June 24, 2018, but she did not provide any additional information regarding that allegation.⁸ DFPS records also indicated that there was an incident involving injury to M.A.J. on July 23, 2018, but Cano did not know anything about the incident. Cano did not ever see any injuries on M.A.J. and did not see any photographs of injuries on M.A.J. When asked whether mother was "the alleged perpetrator of the physical abuse against [M.A.J.]," Cano acknowledged that she did not know. Instead, Cano stated that she "believe[d]," but did not know, that it was "a failure to protect on [mother's] part." When questioned regarding "the condition[ ] of the children ... when they first came into [DFPS's] care," Cano admitted that the children were "well."

The children had been in their current placement, an "adoptive" home, for three months.⁹ According to Cano, the home was stable. When asked whether "[t]he current placement [was] doing well," Cano responded, "[y]es." Cano also stated that the children's needs were being met, including "[t]herapeutically." The children did not have any "special needs." H.A.J. and B.D.J. participated in occupational therapy and speech therapy. M.A.J. participated in individual therapy at school. DFPS's goal for the children was an unrelated adoption. M.A.J. attended daycare.

In regard to mother, Cano explained that mother was given a Family Service Plan ("FSP") and Cano discussed the FSP with mother. Mother had completed some of the requirements of her FSP, including completing her psychological evaluation and her substance abuse assessment. Without any specificity, Cano stated that mother had used narcotics in the past and continued to do so.¹⁰ Although mother had been referred to outpatient treatment for her substance-abuse issues, mother had not completed the treatment. According to Cano, mother had not regularly visited the children during the pendency of the case, but this was because the trial court had suspended her visits at the beginning of the case. Cano faulted mother for having her visits with the children suspended. Cano noted that mother was not present at trial.

Finally, Cano summarily testified that mother had engaged in a continuous course of conduct that had endangered the physical and emotional well-being of the children; the children's "circumstances ha[d] substantially improved from the time they came into [DFPS's] care"; and it would be in the best interest for mother's parental rights to the children to be terminated.

Child Advocates Volunteer Clark

Child Advocates Inc. ("Child Advocates") volunteer Kristy Clark testified that the children were doing well in their current home and DFPS's goal was to have the children adopted. Clark opined that M.A.J. needed "a little bit more therapy" and "had some trouble adjusting" to being in DFPS's care. Clark also explained that while the children had been in DFPS's care, they were neglected in a previous foster home.

Mother's FSP

The trial court admitted into evidence mother's FSP, which stated that DFPS received a referral for negligent supervision of M.A.J. on July 3, 2018. The referral also alleged that mother had engaged in narcotics use. According to the FSP, on July 24, 2018, mother tested positive for methamphetamine, amphetamine, and marijuana use. The FSP noted that mother had the support of the family of the children's father, and DFPS's permanency goal, when the FSP was issued, was family reunification for the children and mother.¹¹ The FSP states that mother "hopes that the children grow[ ] up to be healthy, happy, and resilient."

Narcotics-Testing Results

The trial court admitted into evidence the results from mother's narcotics-use testing before and during the pendency of this case. Mother tested negative for narcotics use in April 2016 (hair follicle test), on November 8, 2018 (urinalysis), on November 28, 2018 (urinalysis and hair follicle test), and on December 11, 2018 (urinalysis).¹²

Mother tested positive for amphetamine

, methamphetamine, and marijuana use on July 24, 2018 (urinalysis), positive for marijuana use on September 6, 2018 (hair follicle test), positive for marijuana use on November 8, 2018 (hair follicle test), positive for marijuana use on December 11, 2018 (hair follicle test), positive for marijuana use on January 16, 2019 (urinalysis and hair follicle test), positive for marijuana use on February 13, 2019 (urinalysis), positive for marijuana use on March 14, 2019 (urinalysis), and positive for marijuana use on May 14, 2019 (hair follicle test).

Mother did not submit to narcotics-use testing on October 15, 2018 or on February 8, 2019.

Incident/Investigation Report

The trial court admitted into evidence a Harris County Sheriff's Office ("HCSO") incident/investigation report dated July 23, 2018 related to an incident of injury to a child. The report classifies mother as the "[r]eportee" of an incident during which M.A.J. was injured. When a law enforcement officer arrived at mother's home, he saw M.A.J., who was three years old at the time, wearing a shirt, shorts, and no shoes. M.A.J. had redness and swelling around both of his eyes, minor scrapes on the right side of his chin and along his forehead, and swollen wrists. Mother reported that M.A.J. had been playing with a neighbor, a five-year-old child, D.G., in the yard when the two children began fist-fighting. D.G. hit M.A.J., and M.A.J. fell to the ground. M.A.J. got back up, and the children continued fighting. M.A.J. eventually knocked D.G. to the ground. D.G.'s mother then approached the two children and struck M.A.J. with the back of her hand. This caused M.A.J. to fall to the ground and "scream in pain." Mother stated that she did not intervene in the fight because D.G. had been the aggressor and he was "losing." The law enforcement officer noted that M.A.J.'s injuries were consistent with "being in a fight with a larger child" and were not consistent with being struck by an adult.

In regard to mother's home at the time, the law enforcement officer stated in the report that the property "contained various scrap metal piles and junked vehicles." "Rusted scrap metal and broken glass were found on the ground throughout the property," and there were "numerous safety hazards." However, the officer also noted that "[v]isibility was poor due to nighttime hours."

A follow-up supplemental report states that there was "no further investigation [into the incident] by the Special Victims/Child Abuse Unit." "The allegations of injury to a child were due to[ ] 3 year old [M.A.J.] and 5 year old [D.G.] engag[ing] in a physical altercation outside their residence." Both parents were present and observed the altercation. D.G.'s mother "broke up the fight," but M.A.J. was struck in his back with her hand. The law enforcement officer reviewing the incident concluded that it involved "mutual combat between 2 children." And the case was closed.

Standard of Review

A parent's right to "the companionship, care, custody, and management" of her children is a constitutional interest "far more precious than any property right." Santosky v. Kramer , 455 U.S. 745, 758–59, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982) (internal quotations omitted). The United States Supreme Court has emphasized that "the interest of [a] parent[ ] in the care, custody, and control of [her] children ... is perhaps the oldest of the fundamental liberty interests recognized by th[e] Court." Troxel v. Granville , 530 U.S. 57, 65, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000). Likewise, the Texas Supreme Court has concluded that "[t]his natural parental right" is "essential," "a basic civil right of man," and "far more precious than property rights." Holick v. Smith , 685 S.W.2d 18, 20 (Tex. 1985) (internal quotations omitted). Consequently, "[w]e strictly construe involuntary termination statutes in favor of the parent." In re E.N.C. , 384 S.W.3d 796, 802 (Tex. 2012).

Because termination of parental rights is "complete, final, irrevocable and divests for all...