S.W. v. Tex. Dep't of Family & Protective Servs.
| Decision Date | 05 October 2022 |
| Docket Number | 03-22-00239-CV |
| Parties | S.W. and M.S., Appellants v. Texas Department of Family and Protective Services, Appellee |
| Court | Texas Court of Appeals |
FROM THE 146TH DISTRICT COURT OF BELL COUNTY NO. 319,539-B, THE HONORABLE CHRISTOPHER L. CORNISH, JUDGE PRESIDING
Before Chief Justice Byrne, Justices Triana and Smith
M.S (Mother) and S.W. (Father) appeal from the trial court's decree terminating their parental rights to their daughter "Lily," who was born August 25, 2020, and was about eighteen months old at the time of trial.[1] See Tex Fam. Code. § 161.001(b). Both parents challenge the finding that termination is in Lily's best interest, and Father also challenges the finding of statutory grounds. We affirm the trial court's termination decree.
In late August 2020, the Department sought and was awarded conservatorship of Lily, alleging that Mother could not provide a safe home for the newborn. At the time, the Department had an open case related to Mother's older children "Xander," born in September 2018, and "Jules," born in December 2017. Lily was placed with Father but was removed and placed in a foster home when Father tested positive for cocaine in a hair-follicle test in February 2021.
In July 2021, the Department changed its goal from reunification with Father to unrelated adoption "due to the lack of progress in this case by her mother and father." The Department explained that Father had "not accepted any responsibility" for the positive test for cocaine "claiming he must have been drugged." Despite changing its goals, the Department and the parents entered into a Mediated Settlement Agreement (MSA) in August 2021, under which Father agreed to complete a drug and alcohol assessment (OSAR) by the end of August, participate in counseling, install a Soberlink device on his vehicle at his own expense, and complete a psychological evaluation. He completed the psychological evaluation in September 2021 but did not complete the OSAR or engage in counseling until December, although he made an earlier attempt at counseling but was discharged for lack of attendance. The case proceeded to a final hearing that took place over several days in January and March 2022.
The Department introduced into evidence the November 2018 removal affidavit filed in the case related to Mother's older children, the December 2020 decree of termination signed in that case, its removal affidavit filed in Lily's case, a January 8, 2021 safety plan, and the Affidavit of Disruption filed when Lily was removed from Father's care in February 2021. In the removal affidavit related to Xander and Jules, Department investigator Kendra Estep averred that the Department had received a referral alleging neglectful supervision because Xander, who had been in the NICU since his birth about three weeks earlier, was ready for discharge but "cannot be discharged due to not having a safe home to go to and his mother failing to learn how to adequately feed and care for him." Mother had informed the hospital that she was homeless and was staying with her mother, with whom she had a "domestic violence relationship." In addition, Mother had "repeatedly failed to stay for feedings" at the NICU to learn how to feed Xander, and during an overnight visit shortly before the report was made, hospital staff had observed that she "cannot properly feed" the infant. Further, Mother had told hospital staff that she could not visit or stay at the NICU because she had to care for Jules, but Mother's mother ("Mary") had since informed the staff that Jules had been in her care and that Mary had been under the impression that Mother had been staying at the hospital with Xander. The affidavit also stated that Mother had told NICU staff that she had been denied access to the hospital's overnight room when she in fact had been given access but had attempted to bring a man who was not Xander's father and then got upset and left when staff "told her that was inappropriate." During her interview with Estep, Mother described her arguments with Mary, saying that although they had never physically hit each other, "things do get thrown around." Mother also said that Mary's boyfriend used cocaine and is violent and abusive to Mary and occasionally to Mother. Mother told Estep that "she has tried to stab her mother . . . three times because she either wants to kill her mother or kill herself at this point due to the stress her mother causes." Mother also said that she had suffered from postpartum depression since giving birth to Jules in December 2017, that the medication she had been prescribed was not helping, and that she had stopped taking it. She described a suicide attempt in December 2017 in which she took about forty ibuprofen tablets "in an attempt to kill herself, but it only made her sleep for a while." She made the attempt while Jules and Mary were present and never told anyone about it.
In the Department's removal affidavit in Lily's case, Carla Gersna averred that the Department received a report in late August 2020 that Lily had been born prematurely that morning and had required oxygen and an IV "to assist in breathing due to fluid being removed from her lungs at birth." Lily was transported to another medical facility's neonatal intensive care unit (NICU) "due to labored breathing and the facility's ability to meet her needs," and two days later, the Department was informed that Lily would be able to be discharged in two days. However, Gersna did not believe Mother could properly supervise or care for a newborn and recommended that Lily be placed with Father, who had tested negative for illegal substances and had an appropriate home for a newborn. Father denied knowing that Mother had an open CPS case and said he was "willing to supervise [Mother's] visits and submit to random alcohol testing." He also told Gersna that he was in a relationship with Mother but said he would not sign Lily's birth certificate without a paternity test.
Gersna summarized the circumstances surrounding Xander and Jules's removal and averred that Mother was initially allowed overnight visitations with those children. However, in the summer of 2019, Mother informed the Department that eighteen-month-old Jules "was talking back" and had "yanked away," falling onto the floor, and that Jules "could not move her arm above her head" that night, although she was fine the next morning. Mother "asked the caregivers to come pick up the children and [said] that 'she could not do it anymore,'" so her visitation reverted to being Department-supervised. In addition, Mother had "tested positive for Cocaine and Alcohol during her open CPS case"; had missed fourteen tests between February and May 2020; and tested positive for alcohol in July 2020, while pregnant with Lily. Gersna explained that the Department had concerns about Mother continuing "to test positive or miss testing for illegal or harmful substance[s] during her open CPS case" and about her ability to care for an infant. She also noted that a psychiatric evaluation from early 2019 stated that Mother "is not competent to care for a newborn, and this examiner certainly disagrees with any notion of [Mother] living independently and car[ing] for two small children," and that other mental-health professionals expressed concerns about Mother's parenting abilities "due to her destructive behaviors and lack of emotional maturity." Mother's psychological evaluation from late 2019 stated that her intellectual functioning was "within the low average range" and that she showed signs of depression and recommended that Mother engage in individual therapy. The Department was seeking termination of Mother's rights, and a final hearing was set for September 2020.
The Department's January 2021 safety plan stated that Father had "knowingly left [Lily] unsupervised in the care of" Mother, which would place the child at risk of harm or neglect if it happened again. The Department expressed concerns about Mother's "continued positive alcohol drug testing results and her inability to address the behaviors leading to the removal of her children" and instructed Father not to leave Lily in Mother's unsupervised care.
Gersna's February 22, 2021 Affidavit of Disruption states that the Department received a report in January alleging that while Father was intoxicated, Lily fell off a couch and landed on her face. The report also alleged that Father "has been physically violent towards" Mother and that there was a gun in the home. When Gersna visited, she did not see any marks or bruising on Lily, and Mother and Father denied the allegations about domestic violence and a weapon. Gersna asked the parents to "refrain from alcohol consumption as it appeared to be a heightened concern," and Father agreed. On February 1, Mother tested positive for cocaine, and on February 11, Father tested positive for cocaine in a hair-follicle test, at which point Gersna removed Lily from his care. Father denied all drug use and showed Gersna his prescriptions, but Gersna informed him "that these prescriptions would not cause a positive for Cocaine." Gersna averred that Father was "visibly emotional" but cooperative, providing clothing, diapers, formula, and other essential items for the child and giving Gersna "pertinent information" about Lily. Gersna noted that Lily was asleep in her crib covered with a blanket and reminded Father about "Safe Sleep" and that it was safer to use "warmer clothing such as footed pajamas" to keep the child warm, but he insisted that the baby would be fine, "shout[ing] that 'she was not going to suffocate'" and telling Gersna that he and...
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