In re Interest of R.R.A.

• Citation: 654 S.W.3d 535
• Decision Date: 20 September 2022
• Docket Number: 14-22-00217-CV
• Parties: In the INTEREST OF R.R.A., H.G.A., H.B.A., Children
• Court: Court of Appeals of Texas

654 S.W.3d 535

In the INTEREST OF R.R.A., H.G.A., H.B.A., Children

NO. 14-22-00217-CV

Court of Appeals of Texas, Houston (14th Dist.).

Opinions filed September 20, 2022

Laura Neilsberg, Cypress, for Appellant.

Robert J. Hazeltine-Shedd, Houston, for Appellee.

Panel consists of Justices Zimmerer, Spain, and Poissant.

Margaret "Meg" Poissant, Justice

Appellant H.B.A., Jr. ("Father") appeals the trial court's final order terminating his parental rights to his three children, R.R.A., H.G.A., and H.B.A. In four issues, Father argues that (1) the evidence is legally and factually insufficient to support termination under Family Code § 161.001(b)(1)(D), (E), (P) ; (2) the evidence is legally and factually insufficient to support that termination was in the children's best interest; (3) the trial court erred in appointing the Department of Family and Protective Services ("the Department") as the children's primary managing conservator; and (4) the trial court erred in denying Father's motion for new trial. See Tex. Fam. Code Ann. § 161.001(b)(1)(D), (E), (P), (b)(2). Because we conclude that the evidence is legally insufficient to support termination under any of the three predicate grounds found by the trial court and legally insufficient for the appointment of the Department as the children's managing conservator, we reverse the trial court's final order as to the termination of Father's parental rights and the appointment of the Department as the children's managing conservator, and we render judgment, denying the relief requested in the Department's petition.¹

I. BACKGROUND

In January of 2020, the three children subject to this suit were placed in the care of the Department after an investigation into allegations that Father was living out of his car with the children and using drugs. At that time, R.R.A. was two years old and twins H.B.A. and H.G.A. were one year old. During the investigation, Father tested positive for methamphetamine.

On March 3, 2020, the Department filed its petition seeking termination of the parental rights of Father and Mother and requesting that the Department be appointed the managing conservator of the children if the children could not be reunified with either parent or permanently placed with a relative or other suitable person. The Department alleged that Father's parental rights should be terminated because Father: (1) knowingly placed or allowed the children to remain in conditions that endangered their physical or emotional well-being; (2) engaged in conduct or knowingly placed the children with persons who engaged in conduct which endangered the children's physical or emotional well-being; (3) executed an unrevoked or irrevocable affidavit of relinquishment of parental rights as provided by the Family Code; (4) constructively abandoned the children who had been in the permanent or temporary conservatorship of the Department for at least six months, during which the Department made reasonable attempts to return the children, but Father did not regularly visit or maintain significant contact with the children, and Father demonstrated an inability to provide the children with a safe environment; (5) failed to comply with the provisions of a court order that specifically established the actions necessary for the return of the children after they had been in the permanent or temporary managing conservatorship of the Department for at least nine months following the children's removal for abuse or neglect; and (6) used a controlled substance, as defined by Chapter 481 of the Texas Health and Safety Code, in a manner that endangered the health or safety of the children, and failed to complete a court-ordered substance abuse treatment program or continued to abuse a controlled substance. See id. § 161.001(b)(1)(D), (E), (K), (N), (O), (P).

The Department's family plan created after the children's removal noted that the children were in good health and developmentally on target.² The plan further provided that the Department:

is worried that [Father] is not able to provide a safe and stable home environment for the children and himself. The [Department] is worried about [Father's] substance abuse history and testing positive for methamphetamines which lead to the removal of the children and [Father] and the children being homeless and living in the car.

The plan required Father, in relevant part, to: provide proof of employment and stable housing; attend all meetings, conferences, parent/child visits, and court hearings in regard to the children; refrain from criminal activity; complete a substance abuse assessment, follow the recommendations, and take monthly drug tests; complete a psycho-social assessment and follow recommendations; and communicate and meet with the Department's caseworker, Britney Jones ("Jones"), on a monthly basis at her office.

A. EVIDENCE AT TRIAL

The final hearing before the bench began on September 1, 2021.³ The trial court heard testimony from: Terri Holstead ("Holstead") and Stephanie Cole ("Cole"), custodians of records for Texas Alcohol and Drug Testing Service; Jones, the Department's caseworker; Father; and Tammy Lamb ("Lamb"), the paternal grandmother.

1. Holstead & Cole

Holstead and Cole testified regarding the Texas Alcohol and Drug Testing Service records of the drug tests taken by Father during the pendency of the case, which were admitted into evidence by the trial court. The records show that Father tested positive for methamphetamine in April and June 2020 and for marijuana on 10/06/21, but tested negative for drugs on 4/27/20, 5/22/20, 7/10/20, 8/5/20, 8/14/20, 8/20/20, 8/25/20, 9/4/20, 10/20/20, and 2/27/21.

2. Jones

Jones testified that the children came into the Department's care because of a referral that Father was homeless and was possibly using drugs. In January 2020, after Father's positive drug test for methamphetamine, the children were removed from Father's care and placed into two separate foster homes. In September 2020, the children were placed with Lamb until they were removed from her care on February 23, 2021, after Lamb was hospitalized. At the time of the removal of the children from Lamb's home, Father was present despite being prohibited from having unsupervised visits with the children. Jones also testified that while the children were being removed, Father made a comment that he might as well kill himself if the children go back into foster care. A female friend of Father's was also at the grandmother's house during the removal and was arrested for possession of drug paraphernalia and methamphetamine.

As a result of Father's self-harm comment, Jones testified that Father was admitted into a psychiatric hospital. The discharge order provides that Father was diagnosed with anxiety and depression. Father's medical records from the psychiatric hospital indicate that Father was instructed to follow up with a psychiatrist and a therapist upon discharge. Jones was unaware of whether Father had complied with the recommendations.

Regarding the family service plan, Jones explained that Father performed well initially by participating in the services and completing parenting classes, individual counselling, and substance abuse treatment. After completing his substance abuse treatment, Father no longer wanted to participate in services, and also tested positive for marijuana in October 2020. The Department then asked Father to complete another substance abuse assessment, which he did, and another supporting out-patient treatment, which he refused. Father also subsequently stopped participating in drug tests.

Regarding Father's visitation with the children during the six months preceding trial in September 2021, Jones testified that Father was not allowed to visit the children in June of 2021 and that Father had not reached out to her to visit the children since the end of May 2021 or possibly June. According to Jones, the Department scheduled one visit in June of 2021, which the Department cancelled after R.R.A.’s therapist advised that the visitation would not be in R.R.A.’s best interest.

Jones testified there was no evidence that Father ever physically harmed the children, that he had ever used drugs around the children, or that he threatened the children when he made the comment of self-harm. Father had continued contact with the children until February 2021; the children had a good relationship with Father; Father had a loving relationship with his children "prior to his absence"; the children loved, hugged, and were physically interactive with Father; Jones never witnessed any sign during visitations that Father was inappropriate or endangered the children; and Jones never witnessed any evidence that Father physically harmed the children or placed them with someone who would physically harm them.

Regarding Lamb, Jones stated that the Department determined Lamb had a safe and stable household and that the Department did not have any concerns with Lamb's household until Lamb became ill in February 2021, leading to the children's second removal. Lamb did not tell Jones that Lamb's health would prevent her from being able to care for the children. However, prior to the beginning of the final hearing, Lamb told Jones that Lamb did not want to keep the children long term. During trial, Lamb sent Jones an email inquiring about having the children placed back with her. Jones stated that Lamb is not a viable placement because Lamb "already expressed previously she did not want long-term care of the children" and the Department's concern of "instability, as far as saying she will and she will not."

Finally, Jones testified that Father was arrested and convicted in 2013 for assault of a family member. According to Jones, termination was in the best interest of the children because Father had not eliminated or alleviated the Department's concerns regarding the children and because Father: had not tried to visit or contact the children, had not checked in on...