A.W. v. Tex. Dep't of Family & Protective Servs.
| Decision Date | 15 December 2021 |
| Docket Number | 03-21-00324-CV |
| Parties | A. W., Appellant v. Texas Department of Family and Protective Services, Appellee |
| Court | Texas Court of Appeals |
FROM THE 146TH DISTRICT COURT OF BELL COUNTY NO. 318, 020-B, THE HONORABLE CHRISTOPHER L. CORNISH, JUDGE PRESIDING
Before Justices Goodwin, Baker, and Smith Concurring and Dissenting Opinion by Justice Smith
A.W (Mother) appeals from the trial court's decree of termination.[1] Following a bench trial, the trial court terminated Mother's parental rights to her children, C.E (Son) and A.E. (Daughter), finding that statutory grounds existed for termination of the parent-child relationship see Tex. Fam. Code § 161.001(b)(1)(D), (E), (O), (P), and that termination of Mother's parental rights was in her children's best interest, id. § 161.001(b)(2). Mother does not contest the trial court's statutory-grounds findings. Her sole issue challenges the legal and factual sufficiency of the evidence to support the trial court's best-interest finding. For the following reasons, we affirm the trial court's decree of termination.
Three days after Daughter was born in June 2020, the Department of Family and Protective Services filed an original petition in a suit affecting the parent-child relationship and sought emergency orders concerning infant Daughter and three-year-old Son. According to the supporting affidavit Mother's urine screening tested positive for marijuana, Mother and Father admitted to marijuana use while Mother was pregnant with Daughter, and in 2014, Mother's three oldest children were removed after the youngest of the three was born testing positive for methamphetamine, cocaine, and marijuana. The Department also filed lab-test results that showed Daughter's meconium was positive for cocaine and marijuana. The record reflects that due to the presence of cocaine and marijuana in her system at birth, Daughter began to have "seizures and shakes."
The Department removed Son and Daughter from Mother and Father and placed them with their maternal grandparents, who had adopted Mother's three oldest children through the Department after Mother's parental rights to those children were terminated. The Department removed Son from the placement with his grandparents and placed him with a foster family after the grandparents reported that they were not able to care for him. In September 2020, the Department placed Son and Daughter together with a maternal aunt but in January 2021, that placement was disrupted after the police cited the aunt for leaving the children in a vehicle unattended while she went into a store. The Department placed the children in a non-relative foster home but on March 5, moved them to a different non-relative foster home at the prior foster mother's request because of Son's behavior.
Mother's court-ordered family service plan required that she not use any illegal or illicit drugs, not participate in criminal activities or associate with others who were involved in illegal activities, submit to drug testing on a weekly basis, submit to a drug and alcohol assessment and follow all recommendations, participate in individual counseling, and complete a psychological evaluation and follow all recommendations. During the pendency of the case, Mother participated in services, submitted to drug testing, completed outpatient treatment in October 2020, submitted to a psychological evaluation in December 2020, and visited with her children. At the beginning of February 2021, the Department authorized unsupervised visits and planned to return the children to Mother and Father on a monitored return. Mother and Father had one unsupervised visit with the children, but the Department's plans for the children changed after Mother and Father both tested positive for cocaine on February 8 and March 30. The Department discontinued unsupervised visits, and after a negative diluted test result on April 8- under Mother's family service plan, diluted test results were considered positive-Mother started inpatient treatment on April 12.
The bench trial occurred on May 18 and 25. On the first day, Mother participated in trial from the inpatient treatment facility, but she was out of the facility and with Father on the second day. [2] The witnesses were the conservatorship caseworker, Mother, Father, and the guardian ad litem. The evidence showed that during the pendency of the case, Mother and Father remained in a relationship, lived together, were employed, had appropriate housing, visited with their children, and continued to participate in court-ordered services, including mostly testing negative on their weekly drug tests. In addition to the two positive tests for cocaine in February and March 2021 and the diluted test result in April 2021, Mother tested positive for marijuana three times in June and July 2020, and Father tested positive for marijuana seven times in June and July 2020.
The caseworker testified about Mother's relinquishment of her parental rights to her three oldest children after the Department became involved in 2014 because of Mother's drug use, the Department's involvement with the family in this case because of Mother's and Father's drug use when Mother was pregnant with Daughter, and the parents' actions during the pendency of the case. The caseworker testified that, when she viewed interactions among Mother and Son and Daughter, they seemed attached and bonded and that the Department's plan was for a monitored return, which changed when Mother and Father tested positive for cocaine on February 8 and March 30. Concerning the children's placements during the case, the caseworker testified that after the placement with the aunt was disrupted, they were placed together in a foster home but moved to the current foster home because the prior foster mother "could not handle [Son's] behavior and the Department did not want to split [the children] up." The caseworker testified that the children were "thriving" and doing "well overall" in their current placement, that Son had "come a long way" although they were still "having problems with his behavior," and that the foster parents were "definitely trying to work with him in regards to, you know, his behaviors," "giving him that structure, home environment that he needs," and taking him to therapy. The caseworker testified that Father also "had mentioned that he felt like the kids were thriving in the current home that they're in." The evidence showed that the foster parents were not a legal risk foster home but that they had not ruled out becoming one and adopting the children. [3] Mother testified that she relinquished her rights to her three oldest children after one of the children tested positive for methamphetamine, cocaine, and marijuana when the child was born in 2014 but that she continues to have daily contact with those children, including helping them with their school work and "never miss[ing] a birthday or a holiday." Mother stated that she completed a 60-day treatment program in that case but losing her three oldest children did not get her attention because of her mental illness and her realizing that she had other mental illnesses "that nobody told [her]" about as well. Mother testified that she recently went to My Health My Resources (MHMR), where she was diagnosed with Bipolar 1 and that she had an upcoming appointment concerning "medicine" with "a licensed therapist to help [her] understand everything about Bipolar 1." She further testified that no one told her that she "had to go to rehab" but she nevertheless chose to do so. Although she completed outpatient treatment in October 2020, she testified that she "actually got help" and "realistic tools" in the most recent inpatient treatment. She testified that she just finished that treatment and now understood that she would always be an addict but that she had a "better support system" and "can get better." She explained that this case is different from the last one because she is older and understands that she needs to accept responsibility for her actions. She asked the trial court for more time so that she could continue to show sobriety.
Mother's psychological evaluation was admitted as an exhibit. The psychologist diagnosed Mother with major depressive disorder, generalized anxiety disorder, borderline personality disorder, cocaine use disorder, hallucinogen use disorder, and cannabis use disorder and stated that Mother reported having been previously diagnosed with major depression, anxiety disorder, and borderline personality disorder. From the testing results, the psychologist concluded that Mother did not recognize the seriousness of her issues, that she was unlikely to consistently take account of the needs and feelings of others, and that she appeared to be "a questionable parental resource." Mother testified that the psychological evaluation was not explained to her and that she did not timely receive it:
And then the psych evaluation I got in this case was never given to me until right before the case, so I had no chance to work on it. And they had it before I relapsed. It's a chemical imbalance that messes with you. It's a disease that I have to fight, along with other mental illnesses that I just realized that I had because nobody told me or gave me the paper so I could figure out myself how to get help.
She later admitted that her counselor had a copy of the evaluation but testified that the counselor only told her about the psychologist's concerns, not "anything on the diagnosis part." The caseworker testified that she provided a copy of the evaluation to Mother's counselor on the day that the caseworker received it in January 2021,...
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