In re Interest of A.B.

• Decision Date: 08 April 2022
• Docket Number: 06-21-00114-CV
• Parties: In the INTEREST OF A.B., G.B., A.B., and C.B., Children
• Court: Texas Court of Appeals

646 S.W.3d 83

In the INTEREST OF A.B., G.B., A.B., and C.B., Children

No. 06-21-00114-CV

Court of Appeals of Texas, Texarkana.

Date Submitted: March 28, 2022

Date Decided: April 8, 2022

Alex Tyra, Law Office of Alex Tyra, PC, Longview, for Appellant B., H.

Jonathan Hyatt, Hyatt & Hyatt, PLLC, Longview, for Appellant B., M.

Rebecca L. Safavi, Office of General Counsel, TD FPS, Austin, for Appellee.

Christina G. Hollwarth, Longview, Civil - Ad Litem for A.B., G.B., A.B., C.B., Children.

Before Morriss, C.J., Stevens and Carter,^* JJ.

OPINION

Opinion by Justice Carter

Following a bench trial in a suit brought by the Texas Department of Family and Protective Services (the Department), Mother's parental rights to her four children were terminated on four grounds specified in the Texas Family Code—Section 161.001(b)(1), subsections (D), (E), (O), and (P). See TEX. FAM. CODE ANN. § 161.001(b)(1)(D), (E), (O), (P) (Supp.). The trial court further found that termination was in the children's best interests. See TEX. FAM. CODE ANN. § 161.001(b)(2) (Supp.). On appeal, Mother argues that the evidence was legally and factually insufficient to support termination, that the evidence was legally and factually insufficient to show that termination was in the children's best interests, and that the trial court abused its discretion when it denied her motion for a continuance—thereby necessitating her attendance at trial via Zoom.

We affirm the trial court's order because (1) the trial court did not abuse its discretion in denying Mother's motion for a continuance, (2) Mother did not adequately brief her legal and factual sufficiency issues as to the grounds of termination and, therefore, waived those complaints, and (3) the evidence is legally and factually sufficient to support the trial court's best-interest finding.

I. Factual and Procedural Background

Mother has four children—seven-year-old A.D.B., six-year-old G.B., four-year-old A.B., and two-year-old C.B. Christopher is the father of C.B., and Michael is the father of A.D.B., G.B., and A.B.¹ Mother appeals the termination of her parental rights to each of her four children.²

The Department's investigative supervisor, Ashley Burnette, testified that she was familiar with the circumstances relating to the Department's removal of Mother's four children from the home. The initial intake on February 1, 2021, was based on a report of neglectful supervision of C.B. by Mother. Mother had reported to law enforcement that Christopher had abducted C.B. Although that allegation proved untrue, law enforcement (1) observed that Mother was acting erratic and (2) was concerned that she may have been under the influence and unable to care for C.B. The Department investigator met with Mother at her home on February 4, 2020. Mother explained that she left C.B. with Christopher so that she could go out with friends. When Mother returned the following morning, Christopher had left C.B. with his mother. Mother stated that she had not used drugs in months and denied using drugs at the time of the intake.

Mother also indicated, at the time of the intake, that she was trying to get away from Christopher and that she wanted to go to a shelter but did not have transportation and did not want her children living in a shelter. The Department investigator requested that Mother and each of the children undergo drug screening. Mother's urinalysis drug screening on February 17, 2020, was negative for all substances. On February 19, the Department determined that Mother had refused to participate in a hair-follicle screening.

On March 5, the Department investigator determined that neither Mother nor the children had submitted to hair-follicle drug screening. The Department contacted Mother several more times in March regarding the allegations relating to drug use. Finally, on March 12, 2020, the Department requested an order to participate in services from the trial court. The order required Mother to undergo drug screening, which took place April 2, 2020.

On March 30, 2020, a Department investigator contacted Christopher, who stated that he had used marihuana and other drugs with Mother but would not specify what the other drugs were. Christopher was caring for C.B. after Mother had taken C.B. to his grandfather. According to the evidence, Mother began using methamphetamine after finishing high school.

The Department then contacted Michael, who stated that he had seen his daughters three weeks prior when he picked them up from Mother's residence in Big Sandy. Michael did not know where his three children were at the time of the Department's contact. On March 31, the Department located the three girls at the residence of their maternal grandmother. Mother stated that she left the Big Sandy residence because she and Christopher had a verbal altercation.

On April 7, the Department received Mother's hair-follicle test results, which revealed positive results for amphetamine

and methamphetamine. On the same day, the Department learned that A.D.B.’s hair-follicle test results revealed the presence of methamphetamine. Michael tested positive for amphetamine and methamphetamine, and Christopher tested positive for amphetamine, methamphetamine, cannabinoids, and cocaine metabolites. Based on those test results, among other things, the Department sought and obtained emergency removal of the children on April 7, 2020.

Mother's family service plan required her to participate in random drug testing, participate in visitations, maintain a job and a home, participate in the Beginnings program, and complete a drug assessment through the East Texas Council on Alcohol and Drug Abuse (ETCADA). When Mother substantially completed her service plan, the Department returned the children to her care on a monitored return in January 2021. Later, in March 2021, the Department removed the children from the monitored return due to Mother's drug use. Mother denied continued drug use but failed to comply with requests for drug tests in June and July 2021. In the face of such refusals, the Department presumes the test results will be positive. Mother's last in-person visit with the children was May 29, 2021. After the children's removal from monitored return, Mother did not regularly maintain visits and did not demonstrate sobriety.

Jennifer James, a Department conservatorship worker, testified that Mother was arrested on July 25, 2021, and was incarcerated in the Rockwall County Jail, where she remained until the time of trial.³ Before she was arrested, Mother was living with her mother. Mother had previously lived with Christopher and had lived with a different boyfriend before that. James did not believe that the children could be safely reunified with Mother because Mother did not have the ability to provide a safe and stable environment for the children. James believed that naming Mother as managing conservator of the children would impair their physical health and emotional development. She testified that, when children grow up in a home where there is drug use, there is a loss of structure that can lead to mental health issues and affect schoolwork. Further, a parent's incarceration can cause stress, anxiety, and depression in children.

A.D.B. and C.B. were placed in the Hurley foster home in Sulphur Springs and were doing well at the time of trial. G.B. and A.B. were placed in the Offutt foster home in Pickton. Before the monitored return, all four children had been living in the Hurleys’ home. After the second removal, the children had to be split among two foster homes.

The Department was exploring the possibility of placing all four of the children with Michael's stepmother and Michael's father in Maine. At the time of trial, the Department had completed its requirements and was waiting on an assessment from Maine. That said, the Department had concerns about placing the children in Maine because the grandfather had "some DWIs on his records." This family had also moved approximately twenty times in the past ten years, so there was a question of stability.

James testified that the Department's ultimate goal for the children was to keep them together, and she believed that would be possible. The Hurleys indicated that they would be willing to be a permanent placement for all four children, and they wished to adopt all four of the children. The children were safe, stable, and secure in their placements.

James stated that Mother had been in and out of jail and could not provide stability for the children. She was positive for illegal substances at the beginning of the case and was presumed to continue to test positive. James believed it was in the children's best interests to terminate Mother's parental rights.

Foster Mother Denise Hurley testified that she and her husband were the placement for all four of the children in April 2020. Then the children went on monitored return to Mother in January 2021. After the monitored return failed, A.D.B. and C.B. were returned to the Hurleys in March 2021. The Hurleys only had room for two of the children because they had taken in three foster children after the children in this case went back to Mother in January 2021. During their time with the Hurleys, all of the children became more settled and stable.

CASA volunteer Freda Goerner testified that she believed that termination of Mother's parental rights was in the children's best interests. Mother was incarcerated at the time of trial and did not have the means to provide for the children. Mother also did not make a good effort to reunify with her children after they were removed from monitored return. Goerner believed that adoption of all four children by the Hurleys was in the children's best interests.

The children's maternal grandmother (Grandmother) testified that she was like a third parent to the children and had a very close relationship with them. She explained that health and financial issues prevented her and her husband from taking the...