In re Interest of C.V.L.

• Decision Date: 13 December 2019
• Docket Number: No. 05-19-00506-CV,05-19-00506-CV
• Citation: 591 S.W.3d 734
• Parties: In the INTEREST OF C.V.L., a Child
• Court: Texas Court of Appeals

591 S.W.3d 734

In the INTEREST OF C.V.L., a Child

No. 05-19-00506-CV

Court of Appeals of Texas, Dallas.

Opinion Filed December 13, 2019

Opinion by Justice Partida -Kipness

Father appeals the trial court's decree terminating his parental rights to his daughter, C.V.L. In two issues, Father argues the evidence was legally and factually insufficient (1) to support termination of his parental rights under sections 161.001(b)(1)(D) and 161.001(b)(1)(E) of the Texas Family Code and (2) to support the trial court's finding that termination was in the child's best interest. For the reasons that follow, we reverse the portion of the decree that terminated Father's parental rights to C.V.L., reverse the portion of the decree appointing the Department as the permanent managing conservator of C.V.L., and remand the case to the trial court for a new trial.

Background

C.V.L. is a female child born August 15, 2016. D.N.H. is her mother, and C.L.L. is her father. The Texas Department of Child Protective Services ("the Department") received a referral when C.V.L. was born because Mother tested positive for cocaine twice prenatally and then her meconium was positive for cocaine at birth. But the Department did not remove C.V.L. at that time. Instead, the Department instituted a safety plan that required C.V.L. to be left with Father, required Mother to have only supervised visitation with C.V.L., and prohibited Mother from living with Father and C.V.L.

I. The 2017 Referrals

In August 2017, the Department received another referral due to concerns regarding the child's living environment. Specifically, the referral raised concerns that the living environment had mold, dirty dishes, and fleas, and that Mother was using drugs. Father denied that Mother was living in the house but admitted that Mother would sometimes spend the night. Father's drug test came back negative at that time, but Mother's was positive for methamphetamines and other drugs. The Department received a re-referral alleging that both parents were using methadone and Mother was stealing grandfather's diabetic needles to shoot up drugs. Father's October 2017 hair drug test was positive for methamphetamines. Father declined placement options, and the child was removed from Father's possession. Mother admitted she used methamphetamines, but Father did not admit using methamphetamines. The Department filed the underlying lawsuit in October 2017 seeking termination of the parental rights of both Mother and Father.

Father submitted to a psychological evaluation on November 20, 2017. LifeSmart Therapy Institute conducted the evaluation of Father's current psychological functioning as requested by the Department. During that evaluation, Father reported that he failed a drug test in October 2017 and tested positive for methamphetamine, but denied ever using the drug. He claimed that Mother admitted to drugging him without his knowledge, and that is why he failed the drug test. He also admitted that he allowed Mother to live with him and C.V.L. when it seemed like Mother was not using drugs.

In December 2017, the trial court issued temporary orders that included services for Father to complete. The services ordered included parenting classes, drug treatment, and counseling. Father completed the parenting classes. He completed the counseling through LifeSmart and received a successful discharge from that counselor. He participated in drug treatment through Restoring Lives and also received a successful discharge from that treatment. Following Father's negative drug tests in January 2018, March 2018, and May 2018, those providers recommended that C.V.L. be put back in the home with Father. At that time, however, the Department remained concerned about Mother because she was not cooperating, not submitting to drug tests, and not completing services.

II. The 2018 Monitored Return

On June 29, 2018, the parties mediated the underlying case and implemented a Mediated Settlement Agreement under which the parties agreed to a monitored return of C.V.L. to Father. During the monitoring period, Father agreed to continue to participate in random drug testing as requested for and paid for by the Department, to maintain his residence in a sanitary and safe manner, and to allow the Department, the guardian ad litem, and the Court Appointed Special Advocate (CASA) representative to have announced and unannounced visits with the child in the home. Father also agreed that Mother would have no visitation until she submitted to a hair strand drug test as arranged and paid for by the Department. C.V.L. was placed in the home with Father for a six–month monitored return on June 29, 2018.

III. The 2018 and 2019 Drug Test Results

Father submitted to urinalysis drug tests on July 19, 2018 and August 15, 2018, both of which returned negative results. A random drug test performed on Father's hair follicles on September 25, 2018, however, returned a positive result for amphetamines and methamphetamines. In response, the Department removed C.V.L. from Father's care on October 9, 2018 and placed her in a foster home.

After the removal, Father submitted to random drug tests on October 23, 2018, November 27, 2018, December 13, 2018, January 3, 2019, and February 21, 2019. The October 23, 2018 test was a toenail analysis that was positive for amphetamines, methamphetamines, cannabinoids, and carboxy-THC. The November 2018, December 2018, and January 2019 tests were urine analyses that came back with negative results. The February 2019 hair test was also negative. Father obtained a toenail analysis on March 5, 2019, which was positive for methamphetamine.

IV. Father's Counseling and Treatment

After removing C.V.L. from Father's care in October 2018, the Department ordered Father to undergo drug treatment. Shetara Bonds, the caseworker assigned to C.V.L.'s case, referred Father to Metrocare Services ("Metrocare") for treatment. The Metrocare patient records show that Father presented to Metrocare for drug rehabilitation counseling as ordered by the court on November 16, 2018 as part of custody proceedings. Later medical records show that Father denied drug use and refused psychiatric medications to treat bipolar II disorder at a December 14, 2018 follow-up appointment but agreed to participate in counseling.

Through Metrocare, Father participated in substance abuse counseling through an Intensive Outpatient Program (IOP) and a Supportive Outpatient Program (SOP). Metrocare discharged Father from both programs on April 1, 2019 because he completed the program and made sufficient growth. On discharge, Metrocare recommended that Father attend Alcoholics Anonymous meetings twice a week for six months, identify ten triggers that could lead to a relapse within forty-five days, and identify and list three positive people in his support system within forty-five days. The discharge notes show a diagnosis of "Amphetamine-type substance abuse disorder. Moderate" and "Alcohol use disorder. Moderate"

V. The Trial

After passing all four drug tests between November 2018 and February 2019, Father filed a motion for return of child to his possession. Father waived his right to a jury trial and, on April 9, 2019, the case proceeded to a bench trial on Father's motion and the Department's petition to terminate Father's and Mother's parental rights. Father and the following witnesses testified at trial: Katurah Boyce, the Department's investigation supervisor; Chris Turnage, Toxicologist and Managing Director of Forensic DNA and Drug Testing Services; Shetara Bonds, the Department caseworker assigned to C.V.L.'s case from December 2017 through March 2018; John Parker, a friend of Father and potential caregiver for C.V.L.; Lorrie Al-Bohi, C.V.L.'s babysitter; Ronald Aland, guardian ad litem; and the CASA representative.

Boyce provided background information concerning the events leading to the filing of the lawsuit in October 2017. Her last involvement with Father was after the fourteen-day hearing held following the filing of the lawsuit.

Father testified at length. He told the court that he and Mother were together for seven years before conceiving C.V.L. He thought Mother had stopped using drugs until he found out she tested positive while pregnant with C.V.L. Father admitted that Mother lived with Father and C.V.L. during C.V.L.'s first four months of life. Father maintained that he thought Mother was allowed to live there because she was always in Father's or his family's supervision. After C.V.L. was four months old, Mother "took off for eight months" until the summer of 2017 when he and Mother began an off and on relationship. They would meet in hotels while C.V.L. was being watched by someone else. Father would not allow Mother to be around C.V.L. at that time because she was "heavily doing methamphetamines." Father understood that the Department took C.V.L. away from him in October 2017 because he "popped positive for methamphetamine." His explanation for why he testified positive for methamphetamines was "I slipped up." Father maintained the October 2017 positive test result was from a one-time-only use when he got the drugs from Mother and smoked them with her outside of his house. He testified that was the first time he had used methamphetamines. In Father's opinion, "That means I'm a user not an abuser, not a – I'm not an addict, but I am an addict, I guess."

During the summer of 2018, Father was in contact with Mother for about two months after C.V.L. was returned to Father during the monitored return. Father and Mother would meet at motels or other places away from home and have sex when C.V.L. was at day care. But Father testified Mother was never around C.V.L. during that time, maintained he no longer had contact with Mother at the time of trial, and denied still being in a relationship with Mother. He testified that he stayed in the relationship in the past because he "has a big heart and, you know, she's the mother of my...