In re L.E.
| Decision Date | 20 September 2022 |
| Docket Number | 14-22-00220-CV |
| Parties | IN THE INTEREST OF L.E., A CHILD |
| Court | Court of Appeals of Texas |
On Appeal from the 315th District Court Harris County, Texas Trial Court Cause No. 2020-00219J
MEMORANDUM OPINION
Appellant E.D. (Mother) appeals the trial court's final order terminating her parental rights to her daughter L.E. (Lee) and appointing the Department of Family and Protective Services (the Department) as sole managing conservator of the child.[1] Mother complains the evidence is legally and factually insufficient to support any of the trial court's four predicate findings for termination or the best-interest finding. She also complains that the trial court abused its discretion by appointing the Department as the sole managing conservator of Lee. We affirm.
The removal affidavit[2], attached to the petition seeking to terminate Mother's parental rights, reports that on December 14, 2019, the Department received a referral for neglectful supervision of Lee[3] at the Baytown residence where she lived with Mother, Father, Maternal Grandmother ("Grandmother"), Maternal Grandfather ("Grandfather"), Maternal Uncle ("Uncle"), Maternal Uncle's girlfriend, and Cousin, also a minor.
According to the affidavit, Lee was heard crying from inside a room with her parents. The affidavit reports that Mother and Grandmother were engaged in an argument near Lee. Grandmother told investigators that after Grandmother advised Mother to assist in the upkeep of the home, verbal arguments followed including arguments on the topic of the ownership of a car on the property, that Mother pulled Grandmother's hair and hit her in the face, and eventually Mother "grabbed a loaded gun and pointed it at [Grandmother]." When law enforcement arrived, Mother and Grandmother reportedly continued to argue. Grandmother said the fight prompted Father to secure Lee to the living room. The affidavit reports that multiple residents of the home were arrested including: Mother, who was arrested for assault, Father, who was arrested for possession, and Uncle, who was arrested for traffic tickets. Reluctantly, Mother (under arrest) consented for Lee to remain with Grandmother.
The investigator reported that Grandmother advised that she originally called the police after mother pointed the gun at her face. Grandmother stated that Mother and Father had always been problematic, that they "use drugs and have issues with domestic violence." The Uncle's girlfriend reportedly confirmed the truth of Grandmother's account to the Department's investigator.
On December 17, a Family Team Meeting took place with Mother, Father, Grandmother, and "CPS Staff". The affidavit reports that at the meeting, "parents agreed to participate in a parental child safety placement" with Grandmother as the primary caregiver.
The affidavit states that as of December 21, Harris county jail confirmed both Mother and Father were incarcerated, and that on January 13, Mother was released from jail. At the time of the removal affidavit, January 24, 2020, the Department recommended that Lee be removed from Mother and Father's custody and remain with Grandmother.
A hearing was held on May 5, 2020; both mother and father appeared through their respective attorneys of record. On May 13, 2020, an order was signed appointing the Department as Lee's temporary managing conservator. The order included a warning in bold print that notified the parents that each action required in the order was necessary for return of the child and failure to comply could result in termination of parental rights. The order directed Mother and Father to comply with the Department's service plan, which among other specifics, required Mother to do the following tasks:
The Court held three permanency hearings prior to trial, (on November 12, 2020, June 3, 2021, and September 7, 2021), and at each hearing the court concluded that Mother had not demonstrated adequate and appropriate compliance with the service plan. Among other deficiencies, Mother's tests were positive April of 2021 for alcohol and January of 2021 for marijuana, and Mother failed to attend any substance abuse services.
The three-day bench trial spanned across a five-month period starting with day one on October 19, 2021, day two on December 13, 2021, and concluding day three on February 21, 2022. The Department's caseworker, Celena Amador testified each of the three days, and on day three the child advocate, Althea Lacewell, and Mother also testified.
On day one, Amador explained that Lee had been placed in a foster home where her younger sister had been permanently placed and that they were doing well together. Amador testified that the two girls were bonded.
Amador testified Mother had completed her services under the plan except for weekly random drug tests. Although she was required to provide drug tests, she had only provided one test in September and had not yet provided a drug test for the month of October.
Despite having testified that Mother had completed her services (other than with respect to the drug test), Amador also testified that Mother was still working on providing consistent pay stubs or proof of employment and Amador noted she did not have her current information on this.
Amador testified that she had been unable to visit Mother despite efforts to connect with her. Mother cited contracting COVID as preventing the meeting at some point. As of the date of the hearing, Mother had not provided proof of the positive COVID test results.
Finally, Amador was asked about Lee's progress. She reported that Lee was seeing a play therapist every week (pursuant to the court's order), and that Lee's therapist had recommended that Mother not engage in therapy sessions, but that determination would be reconsidered once after the therapist develops a rapport with Lee and "handles the family dynamics with the child." Considering the possible future goal of family reunification, she discussed Lee's behavior when she mentioned to Lee a return to home with Mother: "She looked -- she was happy and she was playful before we asked any question like that, so when we did ask a question like that, she immediately looked angry and she looked like she was in a trance."
Trial recessed on October 19.
On day two of trial, Amador's testimony continued, and she began by answering questions about how Lee came into the Department's care. Amador testified that Lee was exposed to domestic violence and came into the care of the Department based on allegations that Mother had put a loaded gun to her own mother's head.
Amador testified that Mother had not visited with Lee in a year and half, that it was court ordered in August 2020 for visits to be suspended, and suspended because of concerns she, the attorney ad litem and the judge had regarding the child's behaviors after visits with her mom.
Amador stated that Mother was about 80 percent complete on her service plan. She noted she had still had not completed her substance abuse services, because the service provider was pending on a random urine analysis which had not yet submitted. Amador confirmed that Mother was required to complete one more urine analysis test before she got discharged and her attorney had been advised of that. She noted that Mother had previously been compliant, but indicated there had been no progress in this regard since day one of trial, and that the last time the mother submitted to a drug test was on September 20, 2021.
Amador testified that Mother had been saying she had COVID since September 21, 2021 but her test result on November 5 was negative, and Mother reported that she had not gone to the hospital for COVID treatment.
Amador explained that under the Department's policy, Mother essentially tested positive for drugs because under policy if a person is ordered or referred for a drug test and fails to go that is what that means. Amador also admitted that Mother had failed to complete (or even enroll in) substance abuse services, in violation of the plan. Amador also admitted Mother had failed to follow up with recommendations regarding her psych assessment, and essentially avoided treatment of a possible mental illness.
Amador also reported that upon visiting Mother in November, Mother reported that Father had come to her home unannounced and attacked her. Amador noted...
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