In re Interest of D.L.W.W.

• Decision Date: 22 December 2020
• Docket Number: NO. 01-20-00507-CV,01-20-00507-CV
• Citation: 617 S.W.3d 64
• Parties: In the INTEREST OF D.L.W.W., J.A.W., and A.M.M., Children
• Court: Texas Court of Appeals

617 S.W.3d 64

In the INTEREST OF D.L.W.W., J.A.W., and A.M.M., Children

NO. 01-20-00507-CV

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

Opinion issued December 22, 2020

Juliane P. Crow, P.O. Box 101052, Houston, Texas 77206, Donald M. Crane, 810 South Mason Rd., Ste. 350, Katy, Texas 77450, for Appellant.

Vince Ryan, County Attorney, Sandra Hachem, 1019 Congress, 17^th Floor, Houston, Texas 77002, for Appellee.

Panel consists of Justices Keyes, Hightower, and Countiss.

Julie Countiss, Justice

In this accelerated appeal,¹ appellant, mother, challenges the trial court's order, entered after a bench trial, terminating her parental rights to her minor child, A.M.M., and awarding the Department of Family and Protective Services ("DFPS") sole managing conservatorship of mother's minor children, D.L.W.W., J.A.W., and A.M.M. (collectively, the "children").² Appellant, father, challenges the trial court's order, entered after a bench trial, terminating his parental rights to his minor child, A.M.M. In four issues, mother contends that the trial court erred in appointing DFPS as the sole managing conservator of the children³ and the evidence is legally and factually insufficient to support the trial court's findings that she engaged, or knowingly placed A.M.M. with persons who engaged, in conduct that endangered the child's physical and emotional well-being;⁴ she failed to comply with the provisions of a court order that specifically established the actions necessary for her to obtain the return of A.M.M.;⁵ and termination of her parental rights was in the best interest of A.M.M.⁶ In three issues, father contends that the evidence is legally and factually insufficient to support the trial court's findings that he engaged, or knowingly placed A.M.M. with persons who engaged, in conduct that endangered the child's physical and emotional well-being;⁷ he failed to comply with the provisions of a court order that specifically established the actions necessary for him to obtain the return of A.M.M.;⁸ and termination of his parental rights was in the best interest of A.M.M.⁹

We affirm in part and reverse and remand in part.

Background¹⁰

On August 2, 2018, DFPS filed a petition seeking termination of mother's parental rights to the children and termination of father's parental rights to A.M.M. DFPS also sought managing conservatorship of the children.

DFPS Caseworker Deese

At trial, DFPS caseworker Natasha Deese testified that DFPS filed its petition seeking termination of the parental rights of mother and father "due to substance abuse" and because mother and father were "not compliant" with DFPS's Family Based Safety Services ("FBSS").¹¹ Deese, without detail or timeframe, stated that mother and father "kept testing positive" for marijuana and cocaine use.

Deese further testified that mother and father participated in narcotics-use and alcohol-use testing during this case. Mother and father tested negative for narcotics use on November 20, 2019.¹² Mother and father also tested negative for narcotics use in September 2019. Father tested negative for narcotics use on July 10, 2019. And Deese stated that mother and father tested negative for narcotics use on May 1, 2019.¹³ When asked whether mother and father had tested negative for narcotics use for "multiple months," Deese responded, "That is correct." Deese stated that mother had not tested positive for narcotics use by urinalysis since August 23, 2018. Deese also confirmed that father had tested negative for alcohol use "over the last year and a half, almost two years" before trial.¹⁴ Father last tested positive for narcotics use in September 2018, right after the termination case began.¹⁵

At the time of trial, the children were placed in separate foster homes, which Deese described as "good." The children did not have any special needs.

Deese stated that DFPS was seeking termination of the parental rights of mother and father because they failed to comply with their Family Service Plans ("FSPs")¹⁶ and DFPS had not received a recommendation from a therapist stating that the children should be returned home.¹⁷ However, Deese explained that D.L.W.W. and J.A.W.'s therapist did not say that the children should not be returned to mother's care or father's care, DFPS had simply not received any recommendation or feedback from the therapist.¹⁸ Deese acknowledged that mother and father had engaged in the services required by their FSPs and mother and father had completed "everything" on their FSPs. Yet, Deese stated that termination of mother's parental rights to the children was in the children's best interest because they were young and DFPS had a lot of permanent-managing conservatorship cases which "get stagnant."

In regard to family therapy, Deese stated that the requirement of participating in family therapy was added to mother's and father's FSPs later on in the case, and mother and father were still participating in family-therapy sessions with D.L.W.W. and J.A.W. at the time of trial.¹⁹ When family-therapy sessions began in January 2020, mother and father were participating in face-to-face visits with the family therapist. Mother and father then began participating in family-therapy sessions via Zoom, a videoconferencing platform, because of the COVID-19 pandemic.²⁰ Deese did not know the date of the last family-therapy session before trial. Although Deese stated that father had been absent from many Zoom-family-therapy sessions, she stated that he did not own a computer; he only had a cellular telephone.²¹

As to mother, Deese testified that mother had her own home, which was stable and suitable for the children. Mother did not have a job, but she received disability payments which DFPS considered to be mother's income. At the time of trial, mother was participating in a "12-Step Program" through Alcoholics Anonymous ("AA"). Mother was working with a sponsor, and she was on "Step 6" of the program. There was no requirement that mother complete her "12-Step Program" for the children to be returned to her care, but completion of the program was just something that DFPS "would like to see."

Deese also testified that mother had completed her required parenting classes and her psychosocial evaluation, she had followed the recommendations from her psychosocial evaluation, and she had finished individual therapy. According to Deese, mother had been "actively participating in th[e] case," had attended court hearings, and had visits with the children. Deese described mother's visits with the children as "good." Deese expressed concern that mother and father had two incidents during their visits in which they disagreed in front of the children, but Deese stated that there were no physical altercations between mother and father.²² Deese described the two incidents as "a verbal back and forth," and she stated that it was not unexpected that mother and father would bicker during a stressful situation.

Deese noted that DFPS had considered returning the children to mother's care, but she stated that DFPS wanted "a recommendation from a professional person stating that ... it[ ] [was] okay to return the[ ] kids."²³ Deese stated that she was concerned about mother's purported and unspecified "intellectual disabilities" because Deese thought it would impact mother's ability to parent the children.²⁴ Deese acknowledged that mother had never been diagnosed with any intellectual disabilities.

Deese testified that mother loved the children, and the children loved her. D.L.W.W. and J.A.W. had stated that they wanted to return to mother's care. When mother called D.L.W.W. for his birthday, she was "very sweet to him[ ] [and] kind," and mother was "part of" J.A.W.'s birthday celebration as well. A.M.M.'s foster parent had described mother's bond with A.M.M. as "healthy" and stated that mother was "positive around" A.M.M. during their Zoom visitations. A.M.M. could not verbalize with whom she would like to live. When Deese had observed mother's visits with the children, mother acted appropriately. Deese had not seen mother hurt the children or "say something negative."

As to father, Deese testified that father lived with his mother and he had been employed "off and on with his job." Deese did not know if father had a job at the time of trial, but she speculated that "he probably ha[d] obtained a new one." Deese believed that father's home with his mother was not stable because his name was not on the lease agreement and Deese thought that father's mother had a "criminal history." ²⁵

Deese opined that father "need[ed] his own place." However, Deese testified that it had been discussed that father could be awarded possessory conservatorship of A.M.M. regardless of whether A.M.M. was returned to mother's care or if she stayed in her current foster placement. According to Deese, DFPS did not "have a problem" with father being appointed as a possessory conservator of A.M.M.

Deese also testified that father was participating in a "12-Step Program" with a sponsor and he had previously show her "slips" indicating that he was participating in Narcotics Anonymous ("NA").

In regard to father's visits with A.M.M., Deese stated that father sometimes made unspecified "inappropriate comments," but this was not expanded upon. Deese could not testify as to whether father and A.M.M. were bonded, but she stated that when their visits were in-person, A.M.M. recognized father. During Zoom visitations, father talked to A.M.M. Father also had visits with D.L.W.W. and J.A.W. even though he was not their biological father. Father was "pretty good" with them, and they were bonded with father.

As to D.L.W.W. and J.A.W., Deese testified that they were not in an adoptive placement or a permanent home at the time of trial and their current caregiver did not want to be awarded conservatorship of them. Deese hoped that DFPS could find D.L.W.W. and J.A.W. an adoptive home.

As to A.M.M., Deese described her current foster placement as safe....