In re Interest of M.P.

Decision Date20 August 2020
Docket NumberNO. 14-20-00169-CV,14-20-00169-CV
Parties In the INTEREST OF M.P., a Child
CourtTexas Court of Appeals

Charles A. Spain, Justice

The issues in this case involve whether the trial court's findings to terminate a father's parental rights are supported by legally- and factually-sufficient evidence. This accelerated appeal arises from a final order in which, after a final hearing tried to the bench,1 the trial court terminated the parental rights of appellant J.P. (Father) with respect to his daughter M.P. (Maria),2 who was one-year old at time of trial, and appointed appellee the Department of Family and Protective Services (the Department) to be Maria's permanent managing conservator. See Tex. Fam. Code Ann. § 109.002(a-1) ; Tex. R. App. P. 28.4 (accelerated appeals in parental-termination cases).3

In his first issue, Father challenges the legal and factual sufficiency4 of the evidence to support the trial court's findings in its final order (1) on the predicate grounds of endangerment, failure to comply with the court-ordered family-service plan, and use of a controlled substance in a manner that endangered the health or safety of Maria, and (2) that termination is in the best interest of Maria. See Tex. Fam. Code Ann. § 161.001(b)(1)(D), (E), (O), (P), (b)(2). In his second issue, Father challenges the trial court's appointment of the Department as permanent managing conservator of Maria. See Tex. Fam. Code Ann. § 153.131.

We determine the evidence is legally and factually sufficient to support the trial court's findings that the Department proved by clear and convincing evidence that (1) Father failed to comply with the court ordered family-service plan under the predicate ground of subsection O and (2) termination of Father's parental rights was in Maria's best interest. See Tex. Fam. Code Ann. § 161.001(b)(1)(O), (b)(2). As only one predicate finding under section 161.001(b)(1) is necessary to support a final order of termination when there also is a finding that termination is in the child's best interest, we affirm the trial court's termination of Father's parental rights regarding Maria. See Tex. Fam. Code Ann. § 161.001(b)(1). However, under the Texas Supreme Court's decision in In re N.G. , we must also address Father's legal- and factual-sufficiency challenges to predicate grounds D and E, as due process requires this inquiry due to the collateral consequences of an affirmative finding under those grounds. See 577 S.W.3d 230, 237 (Tex. 2019). Applying this court's decision in In re L.C.L. , we conclude that the evidence is legally sufficient, but factually insufficient to support the trial court's affirmative findings on predicate grounds D and E. See 599 S.W.3d 79, 84–86 (Tex. App.—Houston [14th Dist.] 2020, no pet. h.) (en banc). Accordingly, we sustain Father's factual-sufficiency challenges to the trial court's affirmative findings under predicate grounds D and E, reverse the final order as to those findings, and remand the case for a new trial limited to those grounds.

I. BACKGROUND
A. Pretrial proceedings
1. Pretrial removal affidavit

According to the pretrial removal affidavit, which was admitted into evidence at trial, the Department received a report alleging neglectful supervision of Maria, including allegations that the home where Father and Mother lived with Maria smelled and "was known to be covered in animal feces" and that Father was "on drugs." The following day, the Department received three additional referrals. The first alleged that Maria, then three weeks old, had a swollen neck and head, was lethargic and unresponsive, was mottled in color, and had a large hematoma

on the right side of her head. The second and third referrals suggested that swelling on the top of Maria's head was due to non-accidental trauma, and reported that Father and Mother "might both have a learning disability" and "lacked basic parenting skills needed to ensure the child's health and well-being."

Child Protective Services (CPS) investigator (and affiant) C. Archibald visited the family home. She noted in her removal affidavit that she "suspected that mother and father might have some intellectual delay." Father related that he had attended "special classes" in school and received Supplemental Security Income (SSI) "due to a learning disability." Archibald noted concerns about pillows and blankets in the play yard with Maria. She did not, however, express any other concerns with the home environment. Father and Mother each took an oral-swab test, and each showed negative results for all tested substances.

The day after Archibald's visit, four-week old Maria was admitted to Texas Children's Hospital with bleeding in her brain

. Hospital staff did not know the cause of the injury, though they noted that Maria did not have a skull fracture and stated that her injury may have been caused by seizures. Maria's urinalysis on the day of her admission was positive for cocaine. Hospital staff stated that Mother and Father appeared "very concerned" about the positive test, and both denied drug use. Eleven days after Maria's admission, hospital staff informed Archibald that Maria had also tested positive for methamphetamine.

Other CPS investigators interviewed Mother and Father at the hospital on the day of Maria's admission. Mother told investigators that Maria was born with a soft spot on her head, neither she nor anyone else had hurt Maria, and neither she nor anyone else in the home used drugs. Father stated during his interview that he was unsure as to what had happened to Maria, but that 9-1-1 had been called after a neighbor panicked about Maria's condition. He said that no one in the home used drugs, but stated he would not take a drug test "because he does not lie and does not use drugs."

A CPS staff member transported Father and Mother for drug screens. During the transport, Mother admitted to using methamphetamine before Maria was born, and Father admitted to using methamphetamine and marijuana. Mother took both a urine-drug screen and a hair-follicle test, while Father took only a urine-drug screen. The urinalysis results for Father and Mother were negative for any tested substance.

Archibald spoke with Father's aunt M.A. (Aunt) concerning a potential placement for Maria. Aunt initially agreed to care for Maria, but then expressed reservations, saying Father had asked her to agree to the placement but secretly allow Maria to remain in his care. After additional consideration, Aunt refused the placement.

Archibald then spoke to Father and Mother to solicit recommendations for a placement for Maria. During the conversation, Father again stated he did not use drugs and said he did not understand why Maria could not go home with him. Later in the conversation, Archibald informed Mother that her hair-follicle test had returned positive for methamphetamine and amphetamine

. When Archibald asked Father why he had not taken a hair-follicle test, Father admitted he would have tested positive for marijuana and methamphetamine.

Based on the Department's petition supported by Archibald's affidavit, the trial court removed Maria to the Department's care.

2. Family-service plan

The Department prepared a family-service plan for Father. The plan required Father to complete a list of tasks and services, including:

• maintaining monthly contact with his CPS caseworker;
• notifying his CPS caseworker C. Franklin within five days of any change of address or telephone number; • participating in services designed to alleviate the risks leading to Maria's removal from his care;
• scheduling and completing a drug-and-alcohol assessment and following recommendations for treatment;
• submitting to random drug testing;
• scheduling and completing a psychological evaluation;
• scheduling and participating in individual counseling;
• completing parenting classes;
• maintaining gainful employment and providing employment information to his CPS caseworker;
• maintain safe and stable housing and provide proof of housing to his CPS caseworker; and
• attend visitations with Maria as scheduled in the Department's visitation plan.

In a status-hearing order signed September 6, 2018, the trial court found that Father "has reviewed and understands the service plan." There is no explanation as to how the trial court reached this conclusion; the order indicates that Father did not attend the hearing.

On January 10, 2019, the trial court signed an initial permanency hearing order that included the finding that Father "has/has not has not demonstrated adequate and appropriate compliance with the service plan., due to an intellectual disability. [Father] shall comply with 6.2 of this order for all services as needed. "5 Paragraph 6.2 of the order states, "It is ORDERED that [G.W.] ,6 or anyone [Father] designates, may accompany [Father] to any and all services (e.g., evaluations, classes, outpatient, etc.) that may require any sort of reading. "

In an order signed August 8, 2019, the trial court found that Father "has not demonstrated adequate and appropriate compliance with the service plan," without qualification.7

B. Trial

Father did not appear at trial. Aunt testified that Father told her that his lawyer had advised him not to attend because of an outstanding warrant for his arrest. A criminal complaint against Father for resisting arrest by using force against a peace officer was admitted into evidence, along with a capias citing Father's failure to appear filed in April 2019.

1. Investigator Archibald

Archibald testified that she conducted an investigatory visit after receiving multiple referrals. She was concerned that there were items in Maria's play yard that were not appropriate for a child her age and observed that Father did not hold Maria properly when attempting to feed her. Archibald noted that Father had an "intellectual disability" and...

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