T. M. v. Tex. Dep't of Family & Protective Servs.
| Decision Date | 08 October 2021 |
| Docket Number | 03-21-00174-CV |
| Parties | T. M. and O. A., Appellants v. Texas Department of Family and Protective Services, Appellee |
| Court | Texas Court of Appeals |
FROM THE 207TH DISTRICT COURT OF HAYS COUNTY NO. 20-0618, THE HONORABLE WILLIAM R. HENRY, JUDGE PRESIDING
Before Chief Justice Byrne, Justices Triana and Kelly, J.
T.M (Mother) and O.A. (Father) appeal from the trial court's order terminating their parental rights to their children E.A. (Daughter), born September 23, 2013, and T.A. (Son) born December 19, 2014. The trial court found that termination was in the children's best interest and that both parents had: (1) engaged in conduct or knowingly placed the children with persons who engaged in conduct which endangers the physical or emotional well-being of the children, (2) constructively abandoned the children, and (3) failed to comply with the provisions of a court order that specifically established the actions necessary for the parent to obtain the return of the children. See Tex. Fam Code § 161.001(b)(1)(E), (N), (O), (2). Mother and Father appeal from the trial court's findings related to statutory grounds and best interest and challenge the court's appointment of the Texas Department of Family and Protective Services as the children's permanent managing conservator.
As explained below, we conclude that the evidence is factually insufficient to support the trial court's findings as to subsection (E), and we therefore delete the order's findings of statutory grounds under subsections (E). However, because we conclude that the evidence is legally and factually sufficient to support its findings as to (O) and as to best interest, we affirm the trial court's order terminating Mother and Father's parental rights. We further affirm the portion of the order appointing the Department as the children's managing conservator.
The Department sought conservatorship of the children March 10 2020. Mother appeared and an attorney was appointed to represent her at a March 20, 2020 status conference. In July, Father was served with citation through substitute service after an investigator with the Hays County District Attorney's Office provided an affidavit describing her attempts to serve Father starting May 11 and opining that she believed Father was avoiding service, was "aware of the service attempts[, ] and [had] not made any attempts to accept service." He was notified of but did not appear at a permanency hearing on September 2, and his attorney was appointed on December 4. The final hearing began on January 27, 2021, and after Department caseworker Judi Webster testified, the trial court continued the hearing to March 18.[1]
The Department introduced into evidence Mother's and Father's family-service plans, which were filed with the trial court on April 10, 2020; the results of Mother's March 6, 2020 drug test; a status hearing order signed by the trial court on May 8, 2020; an order for substituted service of Father signed July 8, 2020; proof of service showing Father was served on July 13, 2020; and the court's initial permanency hearing order signed September 2, 2020. Mother's drug test results show that she tested at a level of 1436 for methamphetamine, well beyond the levels necessary to indicate a positive result. In its May 8 Status Hearing Order, the trial court noted that Mother had appeared with her attorney and that Father had not been notified and ordered that the parents' visitation plans and Mother's family-service plan were made orders of the court. In its September 2 Initial Permanency Hearing Order, the trial court found that Mother had appeared with her attorney, that Father had been notified but did not appear, and that neither parent had demonstrated adequate and appropriate compliance with their service plan. It ordered that Father's family-service plan was made an order of the court, that the parents' visitation should be stopped, and that, "If no additional services are engaged in, the Department is to proceed with trial at the next setting." The parents' service plans have virtually identical requirements, requiring each parent to obtain and maintain housing appropriate for the parent and the children, avoid criminal activity and associating with known criminals, obtain and maintain employment, complete a "psycho-social" evaluation and follow all recommendations, maintain monthly contact with their caseworker, successfully complete individual therapy, complete a drug and alcohol assessment and follow all recommendations, submit to random drug tests at the Department's request, and complete a parenting class. Mother was also ordered to complete a psychological evaluation and follow all recommendations.
Caseworker Webster testified that the Department removed the children because Mother tested positive for methamphetamine. She also testified that at the time the children were removed, Mother was homeless, and they were staying with friends after having lived in a shelter. Webster testified about the parents' family-service plans and said that neither parent had complied with their respective plan.
Webster testified that she first contacted Mother in mid-March 2020 to arrange for drug testing, and Webster's records "show we had one result." Asked whether she was "aware of whether [Mother] tested after that point," and Webster answered, "After the first one, no, sir." She further testified that Mother was referred for a hair-follicle test but "did not show for the test." Mother was homeless when the case began, and Webster assumed at times during the proceeding that Mother was living in her car because Mother never had a physical address and attended some of her virtual visitations from a car. Mother told Webster at one point that it "wasn't safe to get her mail at the address she was at," so Webster asked Mother to provide an address where she could get mail. Mother never provided that information, so Webster instead sent Mother her visitation and family service plans via email. Webster said that Mother did not make her aware of any issues with Mother's phone or with finding an internet connection, although Webster recalled Mother saying once that "she got better reception outside" and another time that she was having car problems. Mother never told Webster that she was "having issues with any of her services," nor did she ever report that she had found a job or a place to live. Mother also failed to maintain regular contact with Webster, and Webster said that throughout the case, she had reached out to Mother once or twice a month and would remind Mother about drug testing and "that providers had been reaching out to her to set up services."
Webster testified that she first made contact with Father at the beginning of April 2020, when she sent him a link to access a hearing and a drug-test request-Father never took that drug test. Father told Webster that before the case began, he last had visitation with his children "sometime in 2019, but he wasn't specific of what-exactly when." On April 7, Webster sent Father his visitation plan, which he acknowledged receiving. In early May, Webster sent Father his family-service plan and an access link for another hearing and informed him that she was trying to serve him with citation. She testified that she had continued to reach out to Father, "[p]robably once or twice a month," "through text messages and calling his phone about-seeing about services and to see how-or to set up our monthly meetings with him." However, Webster had never been to Father's home or tried to visit it. Webster was asked whether Father had taken any drug tests, and she answered, "To my knowledge, no, sir." She also testified that she had "not been informed" that Father had ever said he uses drugs.
Mother and Father had been allowed virtual visits with the children every other week until the court ordered visitation stopped in September after finding that the parents had not made sufficient progress on their service plans. Webster characterized the parents' visitations as "sporadic." She said that "[i]n the beginning, Mom was doing visitation well" and "was reaching out to the children," and that the children acted happy to see Mother and were as affectionate as they could be in a virtual visit. However, Mother started to miss one or two visits, which amounted to "a whole month because they were only getting two visits a month, per [the] visitation plan." Although Webster did not have the "total number" of visits Mother had missed, she said it was "like, months in a row, she would miss visitations with the children." Similarly, Father also started out making at least one of his visitations every month but then started missing every other visit, and toward the end of the summer, Father had one visit in early August and "quit visits after that."
As for potential placements for the children, Mother had proposed her mother (Grandmother) as a potential placement, but Webster testified that Grandmother "did not want to be a placement for the children." Webster said that Father never returned a form listing potential placements for the children but that his sister (Aunt) contacted Webster in July or August seeking visitation with the children. However Webster testified that Aunt "did not mention placement at that time" and said only "that she wanted to be able to talk to them on the phone." Webster informed Aunt that because she "was not a legal party" to the case, she would have to talk to Father to obtain details about the case. Webster said she had not initiated a home study after speaking to Aunt on August 31 because she was waiting for Aunt to start the process. She...
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