In re T.S., 01-22-00054-CV

CourtCourt of Appeals of Texas
Writing for the CourtJulie Countiss, Justice.
PartiesIN THE INTEREST OF T.S. AND E.S.S., CHILDREN
Docket Number01-22-00054-CV
Decision Date27 September 2022

IN THE INTEREST OF T.S. AND E.S.S., CHILDREN

No. 01-22-00054-CV

Court of Appeals of Texas, First District

September 27, 2022


On Appeal from the 313th District Court Harris County, Texas Trial Court Case No. 2020-02393J

Panel consists of Kelly, Countiss, and Rivas-Molloy, Justices.

MEMORANDUM OPINION ON REHEARING

Julie Countiss, Justice.

Appellee, the Department of Family and Protective Services ("DFPS"), has filed a motion for rehearing and en banc reconsideration of our July 21, 2022 opinion and judgment.[1] We deny the motion for rehearing, withdraw our opinion and

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judgment of July 21, 2022, and issue this opinion and new judgment in their stead. We dismiss DFPS's motion for en banc reconsideration as moot.[2]

In this accelerated appeal,[3] appellants, mother and father, challenge the trial court's order, entered after a bench trial, terminating their parental rights to their minor children, T.S. and E.S.S. (collectively, the "children"),[4] and awarding DFPS sole managing conservatorship of the children. In four issues, mother contends that the trial court erred in appointing DFPS as the sole managing conservator of the children and the evidence is legally and factually insufficient to support the trial court's findings that she constructively abandoned the children, who had been placed in the permanent or temporary managing conservatorship of DFPS for not less than six months;[5] she failed to comply with the provisions of a court order that specifically established the actions necessary for her to obtain the return of the children;[6] and termination of her parental rights was in the best interest of the

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children.[7] In three issues,[8] father contends that the evidence is legally and factually insufficient to support the trial court's findings that he engaged, or knowingly placed the children with persons who engaged, in conduct that endangered the children's physical and emotional well-being;[9] he constructively abandoned the children, who had been placed in the permanent or temporary managing conservatorship of DFPS for not less than six months;[10] and termination of his parental rights was in the best interest of the children.[11]

We affirm in part and reverse and remand in part.

Background[12]

On December 23, 2020, DFPS filed a petition seeking termination of mother's and father's parental rights to the children. DFPS also sought managing conservatorship of the children.

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DFPS Caseworker Jackson

DFPS caseworker Jessica Jackson testified that she became the DFPS caseworker assigned to the children in May 2021-about seven months before trial in December 2021. The children entered DFPS's care in December 2020. At the time of trial, T.S. was twelve years old and E.S.S. was nine years old. T.S. was in the sixth grade, and E.S.S. was in the third grade. The children had been living with their maternal grandparents since February 2021. The children's maternal grandfather was a professor, but Jackson did not know what the children's maternal grandmother did for a living. Jackson described the children's current placement with their grandparents as "an adoptive placement." The grandparents were "open to adopting the children."

According to Jackson, neither of the children had "special needs" and the children's "needs [were] being met in [their] placement" with their maternal grandparents. Jackson stated that the children were "bonded to their grandparents" and "want[ed] to be adopted." They enjoyed being in their current placement. When generically asked, "how are [the children] performing," Jackson stated, without providing context or a time frame, that they were "doing well." Jackson also stated

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that the children attended school while their grandparents worked, and the children were with their grandparents after school. The grandparents' home was "safe and stable."

As to why the children entered DFPS's care in December 2020, Jackson stated, "The children were locked outside of the home and . . . [f]ather refused to open the door and let them in." And father was charged with the offense of "child endangerment" related to that incident. Jackson noted that father's criminal case was "still pending" at the time of trial and he had not been convicted of the offense of "child endangerment." While his criminal case was pending, father had been released from custody on bond. As part of his bond conditions, he was required not to have contact with one of the children. According to Jackson, father had not violated the conditions of his release on bond and he had not "illegally attempted to contact the children or interfered with them in any way." Because of father's bond conditions, he had not had any visits with the children while they were in DFPS's care.

As to mother and father, Jackson testified that they each received a Family Service Plan ("FSP"). As part of her FSP, mother was required to:

provide legal means of [caring] for the child[ren]; provide a safe and stable living environment; complete a psychological evaluation and follow all recommendations; maintain contact with [DFPS] to include monthly in-person visits; refrain from criminal activity and report any arrests[] [or] criminal charges to the [DFPS] caseworker within 24 hours of any offense; refrain from [narcotics] use; visit the children
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according to the visitation plan; submit [to] random . . . urinalysis, hair [follicle] [narcotics-use] test[ing]; [complete] a substance abuse assessment and follow [the] recommendations; sign a release of information as requested by [DFPS] or [DFPS] providers; attend court hearings, permanency hearings, [and] family group conferences; participate in parenting classes; financially support the children; provide an update to the [DFPS] caseworker on residency within 72 hours of changing [her] address; provide [the DFPS] caseworker with a working [tele]phone number[;] and cooperate with [DFPS] and the [DFPS] service providers.

According to Jackson, mother did not complete any of the requirements of her FSP. Jackson stated that mother had contacted her "[p]eriodically" while Jackson was the DFPS caseworker for the children. But mother had not had any visits with the children while Jackson was the DFPS caseworker. The "[l]ast time [that Jackson had] checked," mother was not employed. And Jackson did not know where mother lived. To Jackson's knowledge, mother had not provided "any level of support" to the children while they lived with their maternal grandparents.

As part of his FSP, father was required to:
Provide . . . legal mean[s] of caring for the child[ren]; provide a safe and stable home living environment; allow [DFPS] to enter his home for the purpose of evaluating the appropriateness for the children; [complete] a psychological evaluation and follow all recommendations; maintain contact with [DFPS] to include monthly in-person visits; refrain from criminal activity; refrain from [narcotics] use; submit [to] random urinalysis and hair follicle [narcotics-use] test[ing]; submit to [a] substance abuse assessment and follow [the] recommendations; sign a release of information as requested by [DFPS] or [DFPS's] providers; attend court hearings, permanency hearings, [and] family group conferences; participate in parenting classes; financially support the children; provide and update the [DFPS] caseworker on residency within 72 hours of changing [his] address; provide [the DFPS]
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caseworker with a working [tele]phone number; [and] cooperate with [DFPS] and the [DFPS] service providers.

Jackson stated that father had completed his psychological evaluation and substance abuse assessment and he submitted to narcotics-use testing. Father submitted to two narcotics-use tests, although he had been ordered to participate in about twelve narcotics-use tests during the pendency of the termination-of-parental-rights case. Father did not participate in substance abuse counseling, which was recommended after he completed his substance abuse assessment.

According to Jackson, father stopped completing his FSP's requirements in June 2021 after DFPS told him that it was "going to give" the children's maternal grandparents permanent managing conservatorship over the children no matter what father did. After that, father "felt like [there] was no point in completing his [FSP because] he didn't have a chance" to have the children returned to his care. When Jackson was asked whether "[f]ather [was] working services until [DFPS] informed him that the grandparents would get" permanent managing conservatorship of the children, she responded, "Correct." Jackson did not know whether father was employed or where father lived. And she did not know whether father had "provided anything" to support the children.

Jackson testified that DFPS sought to terminate the parental rights of mother and father because the children needed permanency. Jackson stated that it was in the children's best interest for mother's and father's parental rights to be terminated.

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Child Advocates Representative First

Child Advocates Inc. ("Child Advocates") representative Matthew First testified that he agreed with Jackson's testimony. As to the children, First stated that they were "happy where they[] [were] at" and they were "bonding with their grandparents." The maternal grandparents were "protective of the children." In First's opinion, the children's current placement with their grandparents was "the best place for them at th[e] time." And First believed that it was in the children's best interest for the parental rights of mother and father to be terminated.

Although First testified that he had "spoken with the children . . . about adoption," First did not provide details about what he discussed with the children or explain whether he had spoken to the children about the implications of being adopted. And...

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