in the Interest of G.H., a Child
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Opinion
COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH
NO. 02-14-00261-CV
IN THE INTEREST OF G.H., A CHILD
----------
FROM THE 323RD DISTRICT COURT OF TARRANT COUNTY TRIAL COURT NO. 323-98128J-13
CONCURRING AND DISSENTING MEMORANDUM OPINION1 ON GUARDIAN/ATTORNEY AD LITEM’S AND INTERVENORS’ MOTIONS FOR EN BANC RECONSIDERATION ----------
I. INTRODUCTION
I concur with the en banc majority opinion’s affirmance of the trial court’s
judgment terminating Father’s parental rights. I must respectfully dissent,
however, from the en banc majority’s affirmance of the trial court’s judgment
terminating Mother’s parental rights to her daughter, G.H.; the evidence is 1 See Tex. R. App. P. 47.4. factually insufficient to support the jury’s finding that terminating Mother’s
parental rights to G.H. is in G.H.’s best interest. See In re G.H., No. 02-14-
00261-CV, 2015 WL 602585, at *43 (Tex. App.––Fort Worth Feb. 12, 2015, no
pet. h.) (mem. op.) (holding the evidence in this case factually insufficient to
support the finding that termination of Mother’s parental rights to G.H. is in G.H.’s
best interest).2
II. INTERVENORS FAILED TO MEET THEIR BEST-INTEREST BURDEN
Parents’ rights to “the companionship, care, custody[,] and management”
of their children are constitutional interests “far more precious than any property
right.” Santosky v. Kramer, 455 U.S. 745, 758–59, 102 S. Ct. 1388, 1397
(1982). There is a strong presumption that keeping G.H. with Mother is in G.H.’s
best interest. See In re R.R., 209 S.W.3d 112, 116 (Tex. 2006). Mother’s
parental rights to G.H. cannot be terminated merely because Intervenors
(Mother’s sister and her husband) might be better and more prosperous parents.
See In re D.M., 58 S.W.3d 801, 814 (Tex. App.––Fort Worth 2001, no pet.).
Here, the Department of Family and Protective Services did not seek
termination of Mother’s parental rights to G.H.;3 consequently, Intervenors were
required to prove by clear and convincing evidence that termination of Mother’s
parental rights to G.H. was in G.H.’s best interest. See In re E.N.C., 384 S.W.3d
2 A copy of this opinion is attached as Appendix A. 3 The Department believed Mother was doing well with the monitored return of G.H. and asked the jury not to terminate Mother’s parental rights to G.H.
2 796, 807 (Tex. 2012) (holding evidence legally insufficient to support finding that
termination was in child’s best interest). They failed to meet this burden.
The record in this termination case is a rarity; it documents a success
story. In March 2013, when G.H. was approximately one month old, she was
removed from Mother’s care after Mother was arrested for a drug offense.
Mother pleaded guilty and was placed on probation for five years. The
Department gave Mother a service plan, and Intervenors agreed to keep G.H.
while Mother worked her service plan to regain conservatorship and possession
of G.H.
Mother completed each and every task on her service plan. In September
2013, she successfully completed a ninety-day inpatient rehab program at the
VOA Light Program; she completed parenting classes, cognitive classes, life
skills classes, stress reduction classes, and codependency classes. As part of
her probation, Mother attended aftercare treatment, one-on-one counseling, and
group counselling; she also provided urine samples twice a week whenever the
probation office called and requested a sample. Mother chose to enter the
Salvation Army’s S.T.A.R.T. program to prove to her family that she was serious
about maintaining her sobriety and because G.H. could live with her there. As
part of the S.T.A.R.T. program, Mother was required to look for a job, to submit to
random urinalyses, and to submit to random Breathalyzer tests. Mother obtained
a job selling shoes in a shoe store and worked forty hours a week. Mother
attended Narcotics Anonymous classes twice a week.
3 Because Mother completed all tasks required of her in her service plan, in
February 2014, the trial court ordered G.H. returned to Mother. Mother and G.H.
had their own room at the Salvation Army; Mother planned to utilize the Wrap-
Around program to obtain housing if G.H. remained with her. Mother properly
cared for G.H. and obtained food, clothing, and any needed medical care for
G.H.
In addition to completing her inpatient treatment program in September
2013, Mother attended church every Sunday to help her maintain her sobriety.
Mother’s mentor in the church helped Mother “keep strong”; she taught Mother
how to be responsible and paid for Mother to get her teeth redone because
Mother had lost some teeth due to her methamphetamine use. Mother had a
“relapse prevention plan” in place that included calling her mentor or her pastor
and his wife and “surrounding herself with them.”
Mother’s two probation officers testified that Mother had worked hard on
the conditions of her probation and had done everything that had been asked of
her. Both probation officers testified that they believed Mother would maintain
her sobriety and clean, healthy lifestyle because Mother had given them no
reason to believe otherwise. Likewise, Mother’s counselor at the probation
department testified that she worked with Mother from October to December
2013 and that Mother was motivated to maintain her sobriety and had done
everything she needed to do to meet her conditions of probation, including
submitting urine samples, all of which tested negative for all drugs.
4 Every single witness who possessed personal knowledge of and
experience with Mother and G.H. since Mother successfully completed inpatient
rehab in September 2013 testified that Mother had exhibited appropriate
behavior and proper parenting techniques and that it was not in G.H.’s best
interest for Mother’s parental rights to G.H. to be terminated. Denise Hamilton
was G.H.’s caseworker for fifteen months from March 2013 through trial in June
2014. Based on her personal knowledge of and experience with Mother and
G.H., Hamilton testified that it was not in G.H.’s best interest for Mother’s
parental rights to G.H. to be terminated. Terica Brager was Hamilton’s
supervisor on G.H.’s case. Based on her personal knowledge of and experience
with Mother and G.H., Brager testified that it was not in G.H.’s best interest for
Mother’s parental rights to G.H. to be terminated. Tabitha Githengu is a case
aide at the Salvation Army. Based on her personal knowledge of and experience
with Mother and G.H., Githengu testified that she did not think Mother’s parental
rights to G.H. should be terminated. Ms. Lori, Mother’s mentor from church, had
created a 501(c)(3) nonprofit organization to work with women who had gone
through rehab; she had been doing ministry with the VOA Light Program for
about a year and had worked with women in addiction for about four or five years
prior to that. Based on her personal knowledge of and experience with Mother
and G.H., Ms. Lori testified that it was not in G.H.’s best interest for Mother’s
parental rights to G.H. to be terminated. The factual underpinnings for each of
these witnesses’ conclusions that it was not in G.H.’s best interest for Mother’s
5 parental rights to G.H.
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COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH
NO. 02-14-00261-CV
IN THE INTEREST OF G.H., A CHILD
----------
FROM THE 323RD DISTRICT COURT OF TARRANT COUNTY TRIAL COURT NO. 323-98128J-13
CONCURRING AND DISSENTING MEMORANDUM OPINION1 ON GUARDIAN/ATTORNEY AD LITEM’S AND INTERVENORS’ MOTIONS FOR EN BANC RECONSIDERATION ----------
I. INTRODUCTION
I concur with the en banc majority opinion’s affirmance of the trial court’s
judgment terminating Father’s parental rights. I must respectfully dissent,
however, from the en banc majority’s affirmance of the trial court’s judgment
terminating Mother’s parental rights to her daughter, G.H.; the evidence is 1 See Tex. R. App. P. 47.4. factually insufficient to support the jury’s finding that terminating Mother’s
parental rights to G.H. is in G.H.’s best interest. See In re G.H., No. 02-14-
00261-CV, 2015 WL 602585, at *43 (Tex. App.––Fort Worth Feb. 12, 2015, no
pet. h.) (mem. op.) (holding the evidence in this case factually insufficient to
support the finding that termination of Mother’s parental rights to G.H. is in G.H.’s
best interest).2
II. INTERVENORS FAILED TO MEET THEIR BEST-INTEREST BURDEN
Parents’ rights to “the companionship, care, custody[,] and management”
of their children are constitutional interests “far more precious than any property
right.” Santosky v. Kramer, 455 U.S. 745, 758–59, 102 S. Ct. 1388, 1397
(1982). There is a strong presumption that keeping G.H. with Mother is in G.H.’s
best interest. See In re R.R., 209 S.W.3d 112, 116 (Tex. 2006). Mother’s
parental rights to G.H. cannot be terminated merely because Intervenors
(Mother’s sister and her husband) might be better and more prosperous parents.
See In re D.M., 58 S.W.3d 801, 814 (Tex. App.––Fort Worth 2001, no pet.).
Here, the Department of Family and Protective Services did not seek
termination of Mother’s parental rights to G.H.;3 consequently, Intervenors were
required to prove by clear and convincing evidence that termination of Mother’s
parental rights to G.H. was in G.H.’s best interest. See In re E.N.C., 384 S.W.3d
2 A copy of this opinion is attached as Appendix A. 3 The Department believed Mother was doing well with the monitored return of G.H. and asked the jury not to terminate Mother’s parental rights to G.H.
2 796, 807 (Tex. 2012) (holding evidence legally insufficient to support finding that
termination was in child’s best interest). They failed to meet this burden.
The record in this termination case is a rarity; it documents a success
story. In March 2013, when G.H. was approximately one month old, she was
removed from Mother’s care after Mother was arrested for a drug offense.
Mother pleaded guilty and was placed on probation for five years. The
Department gave Mother a service plan, and Intervenors agreed to keep G.H.
while Mother worked her service plan to regain conservatorship and possession
of G.H.
Mother completed each and every task on her service plan. In September
2013, she successfully completed a ninety-day inpatient rehab program at the
VOA Light Program; she completed parenting classes, cognitive classes, life
skills classes, stress reduction classes, and codependency classes. As part of
her probation, Mother attended aftercare treatment, one-on-one counseling, and
group counselling; she also provided urine samples twice a week whenever the
probation office called and requested a sample. Mother chose to enter the
Salvation Army’s S.T.A.R.T. program to prove to her family that she was serious
about maintaining her sobriety and because G.H. could live with her there. As
part of the S.T.A.R.T. program, Mother was required to look for a job, to submit to
random urinalyses, and to submit to random Breathalyzer tests. Mother obtained
a job selling shoes in a shoe store and worked forty hours a week. Mother
attended Narcotics Anonymous classes twice a week.
3 Because Mother completed all tasks required of her in her service plan, in
February 2014, the trial court ordered G.H. returned to Mother. Mother and G.H.
had their own room at the Salvation Army; Mother planned to utilize the Wrap-
Around program to obtain housing if G.H. remained with her. Mother properly
cared for G.H. and obtained food, clothing, and any needed medical care for
G.H.
In addition to completing her inpatient treatment program in September
2013, Mother attended church every Sunday to help her maintain her sobriety.
Mother’s mentor in the church helped Mother “keep strong”; she taught Mother
how to be responsible and paid for Mother to get her teeth redone because
Mother had lost some teeth due to her methamphetamine use. Mother had a
“relapse prevention plan” in place that included calling her mentor or her pastor
and his wife and “surrounding herself with them.”
Mother’s two probation officers testified that Mother had worked hard on
the conditions of her probation and had done everything that had been asked of
her. Both probation officers testified that they believed Mother would maintain
her sobriety and clean, healthy lifestyle because Mother had given them no
reason to believe otherwise. Likewise, Mother’s counselor at the probation
department testified that she worked with Mother from October to December
2013 and that Mother was motivated to maintain her sobriety and had done
everything she needed to do to meet her conditions of probation, including
submitting urine samples, all of which tested negative for all drugs.
4 Every single witness who possessed personal knowledge of and
experience with Mother and G.H. since Mother successfully completed inpatient
rehab in September 2013 testified that Mother had exhibited appropriate
behavior and proper parenting techniques and that it was not in G.H.’s best
interest for Mother’s parental rights to G.H. to be terminated. Denise Hamilton
was G.H.’s caseworker for fifteen months from March 2013 through trial in June
2014. Based on her personal knowledge of and experience with Mother and
G.H., Hamilton testified that it was not in G.H.’s best interest for Mother’s
parental rights to G.H. to be terminated. Terica Brager was Hamilton’s
supervisor on G.H.’s case. Based on her personal knowledge of and experience
with Mother and G.H., Brager testified that it was not in G.H.’s best interest for
Mother’s parental rights to G.H. to be terminated. Tabitha Githengu is a case
aide at the Salvation Army. Based on her personal knowledge of and experience
with Mother and G.H., Githengu testified that she did not think Mother’s parental
rights to G.H. should be terminated. Ms. Lori, Mother’s mentor from church, had
created a 501(c)(3) nonprofit organization to work with women who had gone
through rehab; she had been doing ministry with the VOA Light Program for
about a year and had worked with women in addiction for about four or five years
prior to that. Based on her personal knowledge of and experience with Mother
and G.H., Ms. Lori testified that it was not in G.H.’s best interest for Mother’s
parental rights to G.H. to be terminated. The factual underpinnings for each of
these witnesses’ conclusions that it was not in G.H.’s best interest for Mother’s
5 parental rights to G.H. to be terminated are set forth in detail in the prior opinion
issued in this case. See G.H., 2015 WL 602585, at *9–17.
Only Mother’s family members testified against her; they obviously sided
with Aunt Intervenor in this termination case, which was more in the nature of a
private family custody battle in light of the Department’s request that Mother’s
parental rights to G.H. not be terminated. Mother’s family members offered
extensive testimony in front of the jury about Mother’s horrific past, especially her
past drug use and prior total lack of parenting skills.4 Mother’s adult son Dustin
had been in jail for nine months prior to the termination trial and had seen Mother
only once during that time when Mother and G.H. visited him in jail and put
money in his inmate account. He said he had concerns about G.H. living with
Mother but would have no concerns about G.H. living with Intervenors. Mother’s
adult son Justin testified that he had cut all ties to Mother and had not seen her
since his release from prison in August 2013. He said he did not believe that
Mother could parent G.H. and that it would be in G.H.’s best interest to terminate
Mother’s parental rights to G.H.; he opined that G.H. would be a lot better off with
Aunt Intervenor because G.H. could attend good schools and have a good
4 Several of Mother’s family members also testified that they did not believe Mother would maintain her sobriety and speculated that she would not. But, because the maximum length of time a termination case can be open is one year and 180 days, a parent who becomes sober after a child is removed will never be able to demonstrate a lengthy period of sobriety. See Tex. Fam. Code Ann. § 263.401(b) (West 2014). As stated in closing by Mother’s trial counsel, “In a year’s time[,] you can only do a year.”
6 family. Mother’s son Trey offered similar testimony; he believed G.H. should live
with Aunt Intervenor because she was the mother he always wished he had.5
Uncle Intervenor expressed several concerns about Mother and her parenting of
G.H. during the monitored return of G.H., but he admitted that he was not
concerned enough to report them to CPS. Mother’s sister Rhonda testified that
despite all of Mother’s progress, she did not believe G.H. should be placed with
Mother because of what had occurred in the past. Rhonda’s husband Roger
testified that G.H. should be placed with Intervenors because he did not believe
Mother could raise a child. Mother’s daughter-in-law offered no termination or
best-interest testimony, but she testified that Mother had yelled at G.H. and that
Mother had taken out-of-town trips to visit with her former drug friends since
G.H.’s return. But this testimony was directly contradicted by Mother’s case
manager at the Salvation Army who testified that Mother had not asked for any
weekend passes since G.H. had been returned to her. And witnesses who
observed Mother with G.H. on a more routine basis uniformly testified that they
had never seen or heard Mother yell at G.H.
5 The totality of Trey’s testimony demonstrates his enormous animosity toward Mother based on her past conduct toward him. His vitriolically-phrased testimony—that one time Mother fed G.H. only a tomato before Mother’s daughter-in-law fed G.H. soup, that one time Mother just stuck a bottle in G.H.’s mouth, and that one time G.H. had a diaper rash—does not rise to the level of best-interest evidence, especially in light of Trey’s testimony that during the ten- month time period between Mother’s September 2013 completion of inpatient treatment and the June 25, 2014 termination trial, he had seen Mother only a handful of times.
7 Giving due deference to the factfinder’s weight and credibility
determinations, in light of the entire record,6 a factfinder could not reasonably
form a firm conviction or belief that the termination of Mother’s parental rights to
G.H. was in G.H.’s best interest. See Tex. Fam. Code Ann. § 161.001(2)
(requiring best-interest finding for termination). In light of the entire record, the
disputed evidence that a reasonable factfinder could not have credited in favor of
the finding that termination was in G.H.’s best interest (the testimony of all
objective witnesses––four of them, all experienced in evaluating whether
termination is in a child’s best interest—that based on their personal knowledge
of Mother and G.H., termination of Mother’s parental rights to G.H. was not in
G.H.’s best interest) is so significant that a reasonable factfinder could not have
resolved this disputed evidence in favor of its finding. See In re J.F.C., 96
S.W.3d 256, 266 (Tex. 2002) (setting forth standard of review); see also In re
S.R.L., 243 S.W.3d 232, 236 (Tex. App.—Houston [14th Dist.] 2007, no pet.)
(holding evidence factually insufficient to support best-interest finding when
incarcerated father with violent and unstable past presented substantial and
uncontradicted evidence that he had turned his life around); In re W.C., 98
S.W.3d 753, 766 (Tex. App.––Fort Worth 2003, no pet.) (holding evidence
6 I realize that the above evidence is recited in summary fashion. An exacting review of the entire record to determine whether the evidence is factually sufficient to support the jury’s finding that termination of Mother’s parental rights to G.H. was in G.H.’s best interest has already been performed, and the evidence was found factually insufficient. See G.H., 2015 WL 602585, at *38–43. I summarize the evidence here for brevity.
8 factually insufficient to support best-interest finding where mother, despite past
bad conduct, had “made significant progress, improvements, and changes in her
life”; had a good support system in place; and had done everything possible to
have her children returned); In re C.T.E., 95 S.W.3d 462, 467–69 (Tex. App.––
Houston [1st Dist.] 2002, pet. denied) (holding evidence factually insufficient to
support best-interest finding when incarcerated father had prepared to be
reunited with his family by taking parenting courses, anger management classes,
and job training); see also In re K.C.M., 4 S.W.3d 392, 399 (Tex. App.––Houston
[1st Dist.] 1999, pet. denied) (holding evidence factually insufficient to support
best-interest finding under even lesser great-weight-and-preponderance standard
when mother turned her life around while incarcerated), disapproved of by In re
C.H., 89 S.W.3d 17 (Tex. 2002) (disapproving K.C.M. for not applying higher
clear-and-convincing standard).
9 III. CONCLUSION
For these reasons, and based on the review of the record set forth in this
court’s prior opinion in G.H., 2015 WL 602585, at *38–43 (which the en banc
majority is reversing), I would hold that the evidence is factually insufficient to
support the finding that termination of Mother’s parental rights to G.H. is in G.H.’s
best interest. Because the en banc majority does not so hold, I respectfully
dissent.
/s/ Sue Walker SUE WALKER JUSTICE
DELIVERED: June 18, 2015
10 EXHIBIT A
11 In Interest of G.H., Not Reported in S.W.3d (2015) 2015 WL 602585
(F), and (M) and 161.001(2); and that her trial counsel provided ineffective assistance of counsel. Seeid. § 2015 WL 602585 Only the Westlaw citation is currently available. 161.001(1)(D)–(F), (M), (2). We will affirm the trial court’s order terminating Father’s parental rights to G.H. SEE TX R RAP RULE 47.2 FOR DESIGNATION Because we hold that the evidence is factually insufficient AND SIGNING OF OPINIONS. to support the best-interest finding as to Mother, we will reverse the portion of the trial court’s order terminating MEMORANDUM OPINION Mother’s parental rights to G.H. and will remand the case Court of Appeals of Texas, to the trial court for a new trial. Fort Worth.
NO. 02–14–00261–CV | DELIVERED: February 12, II. FACTUAL AND PROCEDURAL 2015 BACKGROUND
FROM THE 323RD DISTRICT COURT OF TARRANT COUNTY, TRIAL COURT NO. 323–98128J–13. LUCY A. Overview JEAN H. BOYD, Judge. The record reveals that the Department of Family and Attorneys and Law Firms Protective Services (the Department) initiated the underlying suit due to Father’s and Mother’s Mike Berger, Fort Worth, TX, for Appellant, Mother. methamphetamine use. Throughout the pendency of the case, Father was incarcerated or was undergoing inpatient Felipe Calzada, Fort Worth, TX, for Appellant, Father. drug rehabilitation and had little contact with G.H. Mother, on the other hand, utilized the services provided Sharen Wilson, Criminal District Attorney, Debra by the Department and appeared to have turned her life Windsor, Chief of Post Conviction, Asst. Crim. Dist. around, and the trial court granted the Department’s Atty., Fort Worth, TX, for Appellee. motion for a monitored return of G.H. to Mother. PANEL: DAUPHINOT, WALKER, and MEIER, JJ. Following the trial court’s return of G.H. to Mother, the former temporary possessory conservators—Mother’s sister and husband (the Intervenors) who had cared for MEMORANDUM OPINION1 G.H. while Mother utilized her Department-provided services—filed a petition in intervention, seeking to terminate Mother’s and Father’s parental rights to G.H. SUE WALKER, JUSTICE Mother responded by filing a motion to strike the Intervenors’ plea in intervention, which the trial court denied.
I. INTRODUCTION During the monitored return of G.H., Mother did very well with G.H., and the Department had “no concerns *1 This is an ultra-accelerated appeal2 from an order about [G.H.]” The Department waived its termination terminating the parental rights of Appellant H.H. (Father) grounds as to both Mother and Father, deciding instead to and Appellant L.S. (Mother) to their daughter G.H. In one proceed only on its motion to modify conservatorship. issue, Father argues that the evidence is legally and factually insufficient to support the trial court’s best- During the termination trial, numerous non-family interest finding under Texas Family Code section witnesses who were familiar with Mother’s past testified 161.001(2). SeeTex. Fam.Code Ann. § 161.001(2) (West about Mother’s sobriety and the changes that she had 2014). In four issues, Mother argues that the trial court made in her life, while Mother’s adult children and other improperly denied her motion to strike the Intervenors’ family members testified against her, emphasizing her petition in intervention; that the evidence is legally and past and expressing skepticism concerning the changes factually insufficient to support the trial court’s findings that she had made. At the conclusion of the trial, the under Texas Family Code sections 161.001(1)(D), (E), Department asked the jury not to terminate Mother’s
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 12 In Interest of G.H., Not Reported in S.W.3d (2015) 2015 WL 602585
parental rights, to appoint the Department as permanent managing conservator of G.H., and to appoint Mother as possessory conservator of G.H.3 The Department made no recommendation as to terminating Father’s parental b. Addiction, Abusive Relationships, and Convictions rights. Mother admitted that she was a recovering *2 After hearing the above testimony and reviewing the methamphetamine addict and that she had gotten involved exhibits that were admitted into evidence, the jury found with drugs due to abusive relationships. Mother testified by clear and convincing evidence that Father and Mother that she had started using drugs after Trey was molested had each committed at least one act under section by his grandfather at the age of three. Mother said that she 161.001(1) and that termination of the parent-child did not know how to deal with that because she could not relationship between Father and G.H. and between change the facts and could not help her son. Mother and G.H. was in G.H.’s best interest. Based on the statutory grounds found by the jury, the trial court ordered Mother testified that Justin and Dustin’s father was an the parent-child relationship terminated between Father alcoholic and an abuser. Mother said that Justin and and G.H. and between Mother and G.H. Dustin saw fighting and saw her receive injuries that required hospitalization. Mother testified that some of her Because both Father and Mother challenge the best- assault convictions involved fighting with Justin and interest finding and because we are reversing the trial Dustin’s father because she had learned to fight back. court’s judgment as to Mother, we set forth below a Mother divorced Justin and Dustin’s father in 1994, and detailed summary of the record. the court made her the permanent managing conservator of Justin and Dustin. Mother testified that Trey’s father was very emotionally abusive and was not a good provider and that C.C.’s father was not a good provider and was not a good partner for her. B. Trial Testimony Pertinent to Mother Mother testified that she had used methamphetamine for seven or eight years but that she had started using 1. Mother’s Life Before Rehab methamphetamine sixteen or seventeen years prior.5 Mother explained that she counted seven or eight years’ drug use based on the fact that she had not used while she a. Children was pregnant or while she was incarcerated from 2001 to 2003 and from 2007 to 2009. Mother said that she had Mother is the mother of Justin, Dustin, Trey, C.C., J.S., stayed clean for “a little while” after she got out of prison and G.H.4 At the time of the termination trial, Justin was in 2003 and that she had stayed clean for about a year twenty-five years old, was working in the construction after she was released from prison in 2009. Mother did business with his father, was living with Mother’s sister not go through any inpatient or outpatient drug treatment Aunt Rhonda, had used methamphetamine and other hard while she was in prison or while she was out.6 drugs, and had been in trouble with the criminal justice system. Dustin was twenty-three years old and was *3 Mother testified that she had a conviction for injury to incarcerated in the Tarrant County Jail for possession of a child resulting from an incident during which she bit her methamphetamine; Sara is the mother of Dustin’s two son Justin when he was thirteen years old and left bruises. children. Trey was nineteen years old and had just started She explained that she wanted him to go with her but that working at Starbucks at the time of the termination trial; he did not want to go with her. Mother said that Justin Trey had more than ten jobs the previous year and was held her down, and when he did that, she “lost not involved with drugs but had been in trouble with the everything.” She explained, “I didn’t know what I did to criminal justice system as a juvenile. Mother testified that him because [ ] his dad used to beat me all the time and her son J.S. was nine years old, that he went to live with hold me down. And I can’t tell you that I even remember her sister Aunt Intervenor in 2007, and that there was a what happened after that.” Mother testified that her pending case regarding outstanding child support Mother sentence for that offense was two years in prison. owed the Intervenors for J.S. Mother testified that her son C.C. was seven years old, that her parental rights to him Mother did not know how many felony convictions she had been terminated in 2010, and that he had been had. Mother admitted that she had previously committed adopted by Aunt Rhonda. fraud; she dug in the trash and obtained credit card numbers, which she used. © 2015 Thomson Reuters. No claim to original U.S. Government Works. 13 In Interest of G.H., Not Reported in S.W.3d (2015) 2015 WL 602585
years. As part of her plea agreement, she agreed to testify against Dustin and Father.
c. Child Rearing While Addicted
Mother said that she raised Justin, Dustin, and Trey to e. G.H.’s Birth and Removal adulthood when she was not in prison. Mother testified that she had always tried to be a good mother to them— Mother testified that when G.H. was born a month early making sure that they had a home and were fed—but that on February 24, 2013, she weighed a little over four she had fallen short because of her addiction.7 pounds and spent about a month in the neonatal intensive care unit (NICU). Mother said that G.H. was not born Mother admitted that she had bought alcohol for Justin, with methamphetamine in her system. Mother said that Dustin, and Trey when they were minors. She said that she relapsed while G.H. was in the NICU because she did she did that because she had a different “mind think” not know how to handle it.9 when she had an addiction. She explained, “Your mind ain’t right. It’s distorted. It’s not truth, and it will tear you *4 In mid-March, the Department removed G.H. from apart.” Mother and Father’s10 care due to their use of methamphetamine; G.H. was placed in foster care. Mother testified that Justin and Dustin were twenty and Mother testified that there were some domestic violence nineteen, respectively, when she used methamphetamine incidents and emotional abuse after CPS removed G.H. with them. Mother said that Justin blamed her for getting him hooked on methamphetamine. Mother said that was In April 2013, Mother agreed to have G.H. placed in the not something she was proud of but that she thought “it Intervenors’ home. Mother testified that she initially did was a way of protecting them in our addiction.” She not want G.H. to live with the Intervenors but that she explained that she thought they would not go out on the ultimately decided to put her selfishness aside and to do streets and get things that might kill them, more so than what was best for G.H. Mother explained that her initial what they were doing. Mother agreed that her hesitation was based on her previous experience with methamphetamine use was not something that a good Aunt Intervenor; Aunt Intervenor had been appointed parent would have done, and she disagreed with her own permanent managing conservator of Mother’s son J.S., thinking back then. and Mother had not seen him since he was three years old. Mother did not want that to happen with G.H. Mother Mother admitted that before she knew that she was wanted a chance to fix her life and to parent G.H. pregnant with G.H., she had used drugs, including methamphetamine. Mother testified that she was four months along when she learned that she was pregnant with G.H. and that she did not seek prenatal care after she realized that she was pregnant. Mother said that she did 2. Mother’s Life After Rehab not continue to use methamphetamine after she realized that she was pregnant because she did not want her baby a. VOA Light Program to ingest it. Other people in her house smoked methamphetamine while Mother was pregnant; Mother To get sober so that the Department would return G.H. to testified that she did not know where her head was when her, Mother went to the VOA Light Program, an inpatient she thought that she was going to bring G.H. into a “dope rehab facility program. She attended parenting classes, house.” cognitive classes, life skills classes, stress reduction classes, and codependency classes. Mother addressed her relationships with her family members and her substance abuse problems; learned how to set healthier boundaries d. Mother’s Arrest for herself and to take personal responsibility for what she had done, for where she had been, and for who she was; On January 31, 2013, Father, Mother, and Dustin were and learned skills for how to talk to her relatives in order arrested for possession of methamphetamine. As a result to rebuild her relationships with them. Mother was of Mother’s arrest for possession of methamphetamine, successfully discharged after completing the ninety-day she pleaded guilty and was placed on probation8 for five program.
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b. Aftercare Treatment e. Parenting G.H. As part of her probation, Mother was required to attend aftercare treatment. During the program, Mother attended Mother testified that she and G.H. had developed a bond one-on-one counseling, participated in group counseling, since she had been back in Mother’s care. Mother said and learned how to deal with issues in a productive that G.H. adored her and said, “Mommy, mommy, manner instead of using her old ways of thinking. mommy, mommy, mommy, ... [e]verything is ‘mommy.’ ” Mother offered and the trial court admitted pictures into When Mother first started the aftercare treatment, she was evidence showing that G.H. was a happy child with her. required to call in to the probation office seven days a week and to provide urine samples twice a week Mother said that G.H. is very smart, that she was walking, whenever they called and requested that she give a that she played with everything, and that she was not sample. Mother testified that she had been assigned a new receiving services through Early Childhood Intervention. probation officer, and Mother’s understanding was that Mother noticed that G.H. watched her and said “that has they would call her to give a sample “whenever they so really been an eye opener to me[ ] because I have to please[d].” Mother said that she was still required to continue to watch what I do because she’s going to be the report to the probation office once a month at the time of product of [my behaviors]. And, unfortunately, I fell short the trial. with my other children that way.”
Mother testified that she disciplined G.H. by telling her “no” and said that G.H. knew what “no” meant. Mother said that she does not use physical discipline on G.H.; c. S.T.A.R.T. Program at the Salvation Army Mother believed that she could discipline G.H. without resorting to family violence because she had completed After Mother completed the VOA Light Program, she parenting classes and had learned to take a breather—to chose to go into the Salvation Army’s S.T.A.R.T. walk away for a minute and then come back and handle program11 because she wanted to prove to her family that the situation. Mother said that as G.H. gets older, she will she was going to continue her sobriety and because it was discipline her by telling her that she might be making the a place where G.H. could live with her. As part of the wrong decision and that she needed to think about what S.T.A.R.T. program, Mother was required to look for a she is doing. Mother said that she would be able to keep job, to continue giving urine specimens for random drug herself collected even if G.H. struck her because she was tests, to submit to random Breathalyzer tests, and to a different person and no longer had anger built up inside attend classes when she was not working. of her. Mother testified that she would do everything she possibly could to protect G.H. from current and future danger.
d. G.H. Returned to Mother Mother said that G.H. was taking breathing treatments when she was returned to her but that she no longer had to *5 As a result of Mother’s compliance with her CPS take breathing treatments and that her allergies had service plan and her sobriety, the Department filed a stopped bothering her. Mother testified that she had taken motion for a monitored return of G.H. to Mother, and the G.H. to the doctor for pink eye and for a cold with a fever. trial court granted the motion. G.H. joined Mother at the Mother testified that she had taken G.H. to all of her Salvation Army’s facility in February 2014. doctor appointments and that she was up to date on her immunizations. Mother said that G.H. was due for a well- Mother explained that as part of their daily routine, they baby check the month following the trial. When G.H. had woke up at 5:45 a.m., they got dressed, she fed G.H., she a dental exam, Mother lined up someone to take G.H. to packed G.H.’s bag, they got on the bus, she took G.H. to the dentist. day care, and she came back to the Salvation Army, which took about an hour. Mother then got ready for work Mother testified that she could meet G.H.’s current and and took the bus to work. She explained that it was not future emotional and physical needs. When asked why easy getting on the bus and riding back and forth but that she believed that, especially in light of her history, it was providing a way “right now.”12 Mother explained, © 2015 Thomson Reuters. No claim to original U.S. Government Works. 15 In Interest of G.H., Not Reported in S.W.3d (2015) 2015 WL 602585
The past is very ugly, and I’ve lived a lot of my life doing the wrong thing, but I’ve worked hard Mother testified that in addition to attending church and to get to where I am, to change my life and to having a mentor, she also stayed sober by getting a job; change my ways and change who I am. But if it she obtained a full-time job the day after G.H. was wasn’t through the difficulties that I faced in returned, and she had kept the job for a little over four life, I wouldn’t be who I am today. So you have months.13 Mother worked forty hours per week on to go through the fire for God to be able to commission at a shoe store. Mother testified that she refine you into who he wants you to be. loved her job and that it was “fulfilling at the end of the day because I know I’ve put some shoes on a little old lady that needed those shoes and helped her, and on a daily basis, I get to walk home knowing that I’ve helped people.” f. Stable Housing Mother also stayed off drugs by attending Narcotics *6 Mother testified that the Salvation Army had been a Anonymous classes twice a week. Mother initially had a safe and stable place for her and G.H. to live for the four sponsor but no longer had one; she believed that Ms. Lori months preceding the termination trial. Mother testified served that purpose because she talked about everything that that they had their own room in the women and with Ms. Lori. Mother testified that she was still attending children’s program, that there was a lot of security, and NA twice a week and that the Salvation Army was still that they watched her as she was coming and going. drug testing her randomly twice a week at the time of the termination trial. Mother said that if G.H. stayed in her care, she had a new housing opportunity at the Wrap–Around Program that Mother also had a relapse prevention plan, which would assist her for nine months with housing, with included turning around and walking away, not managing her money, and with giving her a fresh start. associating with the people she used to be around, and not Mother testified that she was accepted into the Wrap– doing the things that she used to do. If Mother got the Around Program approximately one week before the urge to use methamphetamine, she testified that she termination trial and that she and G.H. would move into would call Ms. Lori or her pastor’s wife and get an apartment “almost immediately” if Mother were surrounded by them. Mother testified that she had learned allowed to keep G.H. Mother understood that the Wrap– how to handle stress without going back to drugs. Mother Around Program would initially pay for Mother’s said that she had “never even had a trigger” within the apartment and then would gradually phase her into paying year preceding the termination trial because she had for the apartment; she said that she had some furniture learned to hang around the right people, to do the right lined up to furnish an apartment. Mother testified that things, and to live her life right. Mother said that if she when the Wrap–Around Program ended on G.H.’s second were to relapse, she would give G.H. to one of her sisters birthday, the program would help her get into other and would not keep her in her care. Mother said that Ms. programs. Lori and Aunt Rhonda would protect G.H. “to the fullest.”
g. Maintaining Sobriety h. Other Programs In addition to completing the VOA Light inpatient *7 In addition to assistance from the Salvation Army,14 program in September 2013, Mother had gone to church CPS,15 Tarrant County probation, and the Wrap–Around every Sunday to help her remain clean from Program, Mother said that one other program that she was methamphetamine. Mother testified that she had a very participating in to help her parent G.H. was a study at her good church home with very good people who lifted her church that was teaching about family. Mother said that if up, helped to keep her strong, and had taught her how to she were allowed to keep G.H., she would not discontinue be a responsible woman. Mother said that she had a her participation in those programs even though she mentor at the church named Ms. Lori. Ms. Lori had would no longer be under the microscope of the helped Mother with any issues that had come up and had Department or the court. Mother explained that she would invited Mother and G.H. into her home. Ms. Lori had also continue to participate in those programs because she paid for Mother to get her teeth redone because she had wanted to keep the changes that she had made and wanted lost some of her teeth due to her methamphetamine use. to do everything that she could to continue. When asked © 2015 Thomson Reuters. No claim to original U.S. Government Works. 16 In Interest of G.H., Not Reported in S.W.3d (2015) 2015 WL 602585
what she could do to show that she was different to the had used methamphetamine together in the past. Mother people who were worried that she had been clean from said that it was hard for her to determine whether Father methamphetamine for only a year, she explained that she would be a trigger for her now because he was trying to was walking the walk, reading her Bible, and going to get clean. church and that it was not fake. She said, “[W]hen you’re living the life and you have God in your life and [God] Mother was not sure whether she and Father would be has changed your life and the way you are and you get together in the future; her focus was on working, clean from the inside out, it’s a difference.” continuing to do the right thing, and providing for G.H. She said that Father would have to be drug free and demonstrate that he had changed before he was allowed to be involved in G.H.’s life.
i. Finances On cross-examination, Mother clarified that she no longer hung around the friends that she had previously used Mother testified that she brought home approximately drugs with but that she had some contact with them. $400 to $500 every two weeks. Mother testified that Ms. Mother admitted that she had contact with her friend Edie, Lori acted as her bank for the money she made at her job. a drug user, when they attended the funeral of a mutual Mother said that she paid her child support every two friend. Mother testified that she went to Edie’s house after weeks16 and that she had saved up over $1,000 to provide the funeral and that Edie had driven her to see her G.H. with what she needed. Mother said that she also daughter-in-law Sara. Mother said that she did not hang financially helped her children and her grandchildren as out with Edie on a regular basis. much as she could; she had paid for shoes for her grandchildren and had put money on Dustin’s books at Mother admitted that she had made a bad choice about the the jail so that he would have credit to buy things in jail. people in her life since the monitored return because she was friends on Facebook with Joe, whom she had later Mother said that she did not ask people for money but that learned was an alcoholic. Mother testified that she had if she needed help, she could call Aunt Rhonda, her gone to Razzoo’s with Joe and that she had taken G.H. mother, Ms. Lori, or the ladies from church. Mother said with her. When shown a picture of a red frozen beverage that if she were allowed to keep G.H., her family would in a Razzoo’s glass, Mother testified that she did not order not abandon them. Mother said that her classes had taught the drink and invoked her Fifth Amendment right against her how to reach out to get community services, and she self-incrimination when asked whether she had been planned to take advantage of them if she needed them. drinking while on probation. Mother said that when she learned that Joe was an alcoholic, she stopped talking to him.
j. Contacts with Old Friends and Family *8 Mother testified that she had not had the urge to use methamphetamine since G.H. had been returned to her. Mother testified that she was no longer hanging out with When she was asked whether she had made any her old acquaintances with whom she had previously used statements about getting as high as a dragon, Mother drugs. She said that she had made a few bad choices about testified that she was trying to tell Sara that life can people that she had started to hang out with, that she had change for people and people can change. Mother realized what they were doing, and that she had stopped explained that she had told Sara and Trey that if they spending time with them. Mother said that she was still wanted to get high, hanging out with some of her family members, but, as far as she knew, they were clean. I can show y’all how to get high. And it was a statement to say y’all know how I used to get Mother took G.H. to see Father after he was released from high, and I don’t have to be that person jail, and he visited them at the Salvation Army. Mother anymore, and I don’t have to do those things did not know until her caseworker told her that Father was anymore. And I’ve changed my ways and not allowed to have visitation with G.H. unless it was changed my life, and you can do the same. supervised by CPS. When asked whether she should be making statements Mother agreed that one of her triggers was being around like that if she was truly on the road to recovery, Mother people who use methamphetamine and that she and Father said that maybe she should not have said it in that manner.
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G.H.’s best interest for Mother to be named permanent managing conservator because she had worked really hard to get to where she was and had done things that she had k. Mother’s Plans for G.H. never done before in her life, including obtaining employment, being stable, staying clean, and attending Mother testified that her future plans for G.H. included programs. If the jury did not terminate Mother’s parental raising her in a home that she deserved to be in; giving rights but did not feel comfortable at that point making her the love, care, and support that she needed; trying to her permanent managing conservator for G.H., she said teach her the right ways to grow up; and bringing her to that it would be in G.H.’s best interest for the Department church every Sunday. Mother said that she hoped that to be named G.H.’s permanent managing conservator. G.H. would not find out about the bad things Mother had done, but if she did find out about them, Mother said that she would tell her that “those are things that are true, but momma has overc[a]me them[,] and it wasn’t easy. It wasn’t a[n] easy road to go down, but with God’s help, he 3. Testimony from Those Who Acknowledged that can change anybody and change their lives and change Mother Had Changed their ways.”
a. G.H.’s Conservatorship Worker
*9 Denise Hamilton testified that she had served as the I. Mother Took Responsibility for her Actions caseworker for G.H. from late March 2013 to the time of the termination trial at the end of June 2014. Hamilton Mother said that if her family was called to testify, they testified that she had visited G.H. three times when she would “tell the ugly truth as it was” and that she could not was living with the Intervenors, that she had no concerns ask them to do anything different. Mother did not dispute about G.H. while she was in their care, and that G.H. that she had wronged her family, including her other appeared happy with the Intervenors. children, in many ways for many years. Mother recognized that her addiction had torn her family apart Hamilton testified that Mother’s service plan required her and said that she was still trying to repair some of that to complete a drug assessment; provide safe and stable damage at the time of the trial. Mother testified that there housing; refrain from criminal activities and drug use; and were no excuses, not even being under the influence, for participate in counseling, random drug testing, and the poor decisions she had made in her life; she took parenting classes. Hamilton testified that Mother had personal responsibility for the choices she had made and successfully completed all of her services. Hamilton said their consequences. that Mother had asked what she needed to do next, that she had provided updates, and that she had been very compliant. Hamilton believed that Mother had made positive changes in her life during the year preceding the termination trial because she had improved her m. Mother’s Recommendation appearance,17 had chosen to go to inpatient rehab to get clean, had maintained a drug-free lifestyle, had sought out Mother testified that she was forty-two years old at the positive friends and mentors, and had obtained a job and time of the termination trial and that after she lost safe and stable housing. everything that she had loved, she had changed her heart, her ways, and her mind. Mother testified that G.H. is her When Hamilton returned G.H. to Mother in February everything and that she had a job and was trying to 2014, Mother had all the items that she needed in order to provide for her and do the right thing by her. Mother care for G.H. G.H. appeared to be bonded with Mother testified that she believed that she could be a better parent and did not attempt to leave with Hamilton. to G.H. than she had been to her other children. After the return, Hamilton made two unannounced visits Mother testified that it was not in G.H.’s best interest for to see Mother and G.H. at the Salvation Army. Hamilton Mother’s parental rights to be terminated because G.H. said that when she visited Mother and G.H. in April, G.H. knows who her mommy is. Mother added, “Despite my was attempting to walk and was holding Mother’s fingers; failures and my past, I’m going to do everything that I can G.H. was smiling and making sounds. Hamilton noted to change things and keep them that way and give her a that G.H. appeared to be healthy and to have all her needs good life, if permitted.” Mother testified that it was in © 2015 Thomson Reuters. No claim to original U.S. Government Works. 18 In Interest of G.H., Not Reported in S.W.3d (2015) 2015 WL 602585
met. Hamilton testified that she had seen G.H. the week Mother could possibly use with that person again, that it before the termination trial and that G.H. was doing well; would concern her if Mother did not answer the question she was walking, was interacting with other children, was on whether she had consumed alcohol within the last trying to talk a little bit, and was eating well. three months, and that it would concern her if Mother had started to hang around friends with whom she had Hamilton said that Mother properly cared for G.H. previously used methamphetamine. She did not, however, because she provided her with food, clothing, and shelter. change her recommendation. When G.H. was sick in May 2014, Mother stayed home from work and took care of G.H. Hamilton testified that Mother was very concerned about G.H.’s development and had talked to the day care about different activities that she could do at home with G.H. to promote healthy b. Hamilton’s Supervisor development. Mother also encouraged G.H. in her walking and was very protective of G.H. When G.H. had Terica Brager testified that she had served as Hamilton’s scratches on her in June 2014, Mother reported them to supervisor on G.H.’s case. Brager testified that CPS’s Hamilton, who followed up with the day care and policy is that if parents are able to change their situation required them to prepare an incident report explaining that and provide safety and the basic needs of their children, G.H. had fallen on some wood chips. Hamilton testified then reunification is a possibility. Brager said that she that Mother showed affection to G.H. with kisses and tells parents that when they acknowledge why they are hugs and that G.H. hugged Mother back. Hamilton not doing a good job, complete the tasks that CPS asks testified that she had not seen Mother physically them to do, and demonstrate what they have learned, then discipline G.H.; Hamilton said that Mother disciplined CPS can look at returning their children. Brager testified G.H. by telling her “no.” Hamilton testified that she had that the Department’s goal is safety and permanency and never seen G.H. fearful of Mother. Hamilton testified that that the hierarchy of their goals does not include keeping Mother properly supervised G.H. and that Mother siblings together—that is merely a “best practice.” understood G.H.’s needs and capabilities because she knew exactly what G.H. wanted by the way that she Brager testified that Mother had made the decision to do moved or cried. intensive rehab instead of outpatient rehab and that was a sign that she really wanted to get clean. Brager testified *10 Hamilton testified that Mother’s life had improved that she had not allowed Mother to have G.H. with her at since the monitored return in February 2014 because she the VOA Light Program but then allowed her to have had obtained full-time employment, had lined up G.H. with her at the Salvation Army due to the length of affordable housing if she was allowed to keep G.H., had time that Mother had been drug free. Brager testified that saved up money, and had established a good support CPS had advocated for the return of G.H. to Mother in system of family and friends to help her. February 2014 because Mother had been compliant “in everything that we’ve asked,” she had been clean and Hamilton testified that it was not in G.H.’s best interest sober, she had a safe place to bring G.H. to, and she was for Mother’s parental rights to be terminated because she able to meet her needs. Brager admitted that she was had shown that she could take care of G.H. and because it cautious about asking the court in February 2014 to return would cause confusion to G.H., who was “very bonded” G.H. to Mother because she had a long history of drug to Mother. Hamilton testified that she was aware of use, “[b]ut she ha[d] done what she needed to do” to Mother’s long addiction to methamphetamine, her eliminate the safety risk to herself and to G.H. Brager criminal convictions, and her domestic violence issues testified that it gave her further peace of mind that and that her recommendation remained the same: she Mother’s case aide at the Salvation Army was watching would not recommend terminating Mother’s parental out for G.H. while she was in Mother’s care. rights to G.H. Hamilton testified that it was in G.H.’s best interest for Mother to be appointed permanent managing *11 Brager said that she had sat through the trial and had conservator because Mother had shown that she could seen the exhibit with the red frozen beverage at Razzoo’s; maintain stable housing, could feed G.H., could keep a had heard the testimony that Mother went to the races and job, and could remain drug free. to Razzoo’s with Joe and had taken G.H.; and had heard the testimony that on a couple of occasions, Mother had On cross-examination, Hamilton testified that it would been around her former meth-using mother-figure Edie. concern her if Mother was spending any amount of time Brager testified that these things concerned her because with someone she had used drugs with in the past because (1) if someone had concerns that Mother was drinking, he or she did not make CPS aware so that they could address © 2015 Thomson Reuters. 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it, and (2) Mother was around old people, places, and or interacting with people from her past for “four whole things so early in her sobriety. Brager testified that this months” but that instead the evidence showed that there information was not enough for her to change her had been “instances of things that she’s done.” recommendation of reunification because a relapse did not mean that CPS was going to go and pick up G.H. Brager testified that if the Intervenors knew about the red Brager testified, frozen beverage and about Mother’s interactions with Edie and Joe and did not call CPS, that would be There’s a lot of different factors that we have to concerning. Brager testified that it would have been in look at, but, more importantly, it’s do we need G.H.’s best interest for the Intervenors to have called to go back and get something that she may have CPS. Brager testified that it was ultimately the client’s missed in treatment before? Does she need to go responsibility to report behavior to her and clarified that back and do 30 more days inpatient and take the she was not blaming the Interveners for not contacting her baby with her? There’s a lot of different options to report Mother’s behaviors. for one. But there’s definitely room to grow from the mistake and not just yank and start completely over.
Brager said that if she had been made aware of any c. Mother’s Initial Probation Officer alcohol use, she would have instructed the caseworker to make an unannounced visit every week and to test Mother *12 Laure Dulany, who served as Mother’s probation for alcohol. Brager said that she would have also officer from July 2013 to March 2014, testified that she instructed the Salvation Army to give Mother a had monitored Mother while she was in the VOA Light Breathalyzer test every time she returned. Program and then in aftercare. Mother was required to report to Dulany twice a month, and Dulany performed Brager testified that she did not think it was in G.H.’s best one home visit each month. interest for Mother’s parental rights to be terminated because this was the first time Mother had really tried to Mother’s hair follicle drug test was submitted on January get clean the right way and that it had worked so far for 15, 2014, which tested her for the previous ninety days, her. Brager believed that there were other options besides and it came back negative for all substances. The terminating Mother’s parental rights to G.H. Brager’s following month, Dulany and her supervisor decided that preference was for Mother to be named G.H.’s permanent Mother could be moved to a regular probation caseload managing conservator. Brager found comfort in the fact and would not have to report as often because she had that if Mother was appointed G.H.’s permanent managing done very well in aftercare; Mother had successfully conservator, she would have housing for nine months completed all of her aftercare requirements, including from the Wrap–Around Program. Brager said that if attending an aftercare treatment group once a week, Mother stayed at the Salvation Army, she would have attending AA or NA twice a week, providing a urine support there. Brager testified that because Mother was on sample twice a week, reporting to Dulany as she was probation for five years, the probation department would scheduled to, and being at the Salvation Army when call CPS if there was a concern. Brager believed that the Dulany had scheduled home visits with her. Dulany church, the day care,18 the family, and others would testified that Mother had worked hard on the terms and continue watching out for G.H. Brager testified that if the conditions of her probation during the time that Dulany jury did not feel comfortable with CPS being out of had handled her case because Mother did everything that Mother’s and G.H.’s lives, her alternative was required of her; she finished all of her aftercare recommendation would be for the jury to appoint the requirements with no problems, found a stable place to Department as G.H.’s permanent managing conservator, live, rode the bus everywhere she needed to go, and which would allow the Department more time to monitor obtained a part-time job at Dollar Tree. the situation and put additional resources in place to make sure that G.H. continued to be safe. Based on the way that Mother had progressed, Dulany believed that Mother had a good chance at maintaining a On cross-examination, Brager admitted that with all of the clean, healthy lifestyle because Mother had not given protection currently in place—the probation department Dulany any reason to fear that she would not maintain her and the Salvation Army—she did not know about sobriety. Mother’s contact with Edie or Joe or about the trip to Razzoo’s. Brager testified that she did not think that the evidence showed that Mother had been going to Razzoo’s © 2015 Thomson Reuters. No claim to original U.S. Government Works. 20 In Interest of G.H., Not Reported in S.W.3d (2015) 2015 WL 602585
d. Mother’s Probation Officer at the Time of the Termination Trial
Rhonda Perine, Mother’s probation officer at the time of the termination trial, testified that one of Mother’s f. Mother’s Counselor from October to December probation conditions required her to pay fees and fines 2013 and that Mother was making an effort to pay the delinquent supervision fees, which included $630 in Angela Ceglar, Mother’s counselor at the probation probation fees; $645 in lab fees; and $1,744 in court fees. department, testified that she had worked with Mother Perine testified that another condition of Mother’s from October to December 2013. During the counseling probation required her not to use, possess, or consume sessions with Mother, Ceglar identified two problems and any alcoholic beverage. Perine said that if Mother was two goals. Ceglar testified that problem number one was caught consuming alcohol, she would be given a that Mother’s substance use had interfered with her ability violation, and the court would be contacted; it would be to achieve a healthy lifestyle; the goal with that was to up to the judge whether to revoke Mother’s probation and develop a substance-free lifestyle. Ceglar testified that the send her to prison. Perine, however, testified that Mother second problem was that Mother’s criminal conduct had was in compliance with the conditions of her probation.19 interfered with her ability to achieve a healthy lifestyle, and so the goal was to develop a crime-free lifestyle. Ceglar testified that in addition to the two goals they were working toward, Mother was required to attend NA or AA at least twice a week and to provide her verification, to e. Mother’s Counselor at the VOA Light Program obtain a sponsor through the program, to attend group, to obtain employment, to meet with her supervision officer, Jessica Applegate testified that she was Mother’s to meet with an individual counselor, and to follow the counselor beginning in July 2013 while she was at the conditions of her probation. VOA Light Program. Mother told Applegate during the initial session that she was in extreme need of treatment Ceglar testified that she worked with Mother individually and that treatment was extremely important to her. and discussed situations that would come up in her life Mother’s treatment program was broken down into legal that were high-risk situations or would trigger her desire problems, family and social problems, substance abuse or to use. When Ceglar discussed triggers specific to Mother, substance use, employment, and discharge and aftercare. Mother identified old places where she used to use drugs Applegate testified that Mother had attended all the and old friends with whom she used to hang around and groups, had completed her work, and had established with whom she had previously used drugs. Ceglar also some boundaries. discussed with Mother that a meth pipe or the smell could be a trigger. They talked through those triggers and used When Applegate switched jobs to work for the probation some of the skills that Ceglar had taught, as well as the department, she worked with Mother from October 2013 skills that Mother had learned at the VOA Light Program, to January 2014; Applegate was the facilitator for the to help her identify how to get through that. Ceglar weekly aftercare classes that Mother was required to testified that Mother had already put all her old friends attend. During the sessions, Mother participated and out of her life. demonstrated her understanding of the concepts being taught. Ceglar met with Mother on December 5, 2013, and made the assessment that Mother appeared to be dealing well *13 Applegate testified that it would be a problem if with reintegrating herself back into her family and was Mother had consumed alcohol during the last few months able to process the time that was needed for some people because her conditions of probation stated that she was to forgive without being impatient about it. When Ceglar not allowed to drink alcohol and because “depending on a stopped working with Mother at the end of December specific person, a drink could lower you[r] inhibitions[,] 2013, Ceglar believed that Mother was motivated to and all of a sudden[,] you are on to different things, like maintain sobriety and a crime-free lifestyle because drugs.” Applegate testified that if Mother had established Mother’s actions demonstrated that she was doing healthy boundaries and could control the location of everything she needed to meet her conditions of where they met, it would be okay for Mother to associate probation, including submitting urine samples that came with people from her past but that it was a possibility that back negative for all drugs. Ceglar testified that Mother meeting up with people from her past could trigger a had demonstrated that she could successfully use mental relapse. self-control skills and that Mother had showed insight into © 2015 Thomson Reuters. 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her past substance abuse behaviors by recognizing that the care of G.H., and had asked for help when she needed it. substance had played a part in what she had done to the Githengu testified that she believed that Mother had people in her life, including her family and her children, changed and that Mother deserved a second chance. and by changing her lifestyle to make sure that it would Githengu believed that Mother should be allowed to keep not happen again. G.H. because Githengu had not had any problems with Mother and had seen her taking care of G.H. Githengu Ceglar believed that the skills Mother had learned at the believed that Mother could provide “all the protection and VOA Light Program and through her therapy sessions, everything the child need[s] from a mother.” along with a supportive environment and continuing with NA/AA, would provide Mother with the foundation for a On cross-examination, Githengu testified that Mother was drug-free lifestyle going forward. Ceglar did not believe part of the S.T.A.R.T. Program at the Salvation Army; that stress would cause Mother to relapse because she had that Mother had undergone random alcohol tests; that already dealt with some stressful situations while Mother would be breaking the rules if she drank alcohol; reintegrating back into life after her treatment and had not and that as far as she knew, Mother had not broken any relapsed. rules at the Salvation Army.
*14 On cross-examination, Ceglar testified that she would be concerned if Mother had used any alcohol or illegal drug within the three months preceding the trial and that she would be concerned if during that time, Mother had h. Case Manager at the Salvation Army started to make contact with some of her old friends with whom she used to use methamphetamine. Ceglar testified Tanya Porter–Hodges testified that she served as the case that those are some small steps that could lead to a manager of the women’s S.T.A.R.T. program at the relapse. Salvation Army. Porter–Hodges testified that she assists mothers by helping them set goals, create a budget, find employment, and find childcare. She also assists mothers with finding long-term childcare and housing and with budgeting money to transition successfully out of the g. Mother’s Case Aide at the Salvation Army program.
Tabitha Githengu testified that as a case aide at the Porter–Hodges testified that Mother had been very Salvation Army, she enforced the Salvation Army’s rules, cooperative during the nine months that Porter–Hodges gave drug tests, and transported residents. Githengu had worked with her. Porter–Hodges believed that Mother testified that since December 2013, Mother’s urinalyses had made positive changes in her life because she had met and Breathalyzer results had never posed a concern and the goals that they had set and because she had done that she had never reported Mother to those in everything that she was supposed to do as far as raising management at the Salvation Army for drug or alcohol G.H. while she was at the Salvation Army. Porter–Hodges use. Githengu testified that Mother was very cooperative testified that some of the goals Mother had met included with her and that she always provided a urine sample right finding employment, finding day care for G.H., and away. budgeting and saving money to pay for her probation fees.
Githengu testified that when she went to Mother’s room Porter–Hodges had never seen G.H. unattended; Mother in the evenings, Mother was feeding G.H. in her high had abided by the Salvation Army’s rule that children chair. Githengu said that Mother gave G.H. all the have to be with their mothers at all times. Porter–Hodges nourishment she needed and that she had never seen G.H. had witnessed Mother caring for G.H., feeding her, looking uncared for. Githengu said that she had never reading to her, playing games with her, and putting seen G.H. act fearful of Mother. Githengu testified that together puzzles with her. Porter–Hodges testified that based on what she had observed, Mother possessed an Mother had provided G.H. with adequate health and understanding of G.H.’s needs and capabilities because nutritional care.20 Porter–Hodges saw Mother nurturing Mother met “all her physical needs, everything the child G.H. when she had a fever; Mother picked her up and needs from a mother.” rocked her and abided by the rule to not have medication in the room. Porter–Hodges testified that she had never Githengu testified that Mother had made positive changes seen G.H. fearful of Mother. Porter–Hodges had not seen in her life during the half year that she had been at the Mother attempt to physically discipline G.H.; she said that Salvation Army; Mother had followed the rules, had taken mothers know coming into the program that no physical © 2015 Thomson Reuters. No claim to original U.S. Government Works. 22 In Interest of G.H., Not Reported in S.W.3d (2015) 2015 WL 602585
discipline is allowed. Porter–Hodges testified that Mother parental rights terminated to another child based on had no violations during the nine months that she had endangerment grounds. been at the Salvation Army. Ms. Lori believed that Mother had made positive changes *15 Porter–Hodges testified that the Salvation Army is a in her life in the year preceding the trial because she had safe and stable living environment for Mother and G.H. watched the transformation every single day for the last because there is twenty-four-hour security. Porter–Hodges year; Ms. Lori had spent time running errands with testified that there are programs available to help Mother Mother, Mother had eaten with Ms. Lori’s family on parent and provide for G.H., including the Wrap–Around Sundays after church, and they had spent time together in Program,21 which would provide ongoing case prayer. Ms. Lori said that she had worked with other management for nine months. Porter–Hodges testified women from her church who had gone through drug that Mother had been accepted into the program but that it rehab and that she had come to know what was genuine was on hold because Mother did not have custody of G.H. based on their willingness to start totally over. Ms. Lori testified that Mother had been “in absolute compliance On cross-examination, Porter–Hodges testified that the with everything that I have been led to work with her on, only time she knew of when Mother had asked for teach her, whether it’s emotionally, spiritually.” Ms. Lori weekend leave was prior to G.H. being returned to her. testified that Mother was an exceptional case based on her Porter–Hodges was not aware of any time when Mother level of involvement with the church and that it had had asked for permission to go to the races with Joe, nor definitely helped her success rate. was Porter–Hodges aware of Mother having any visitors other than her mentor, Ms. Lori. Ms. Lori testified that Mother loves G.H., plays with her, adores her, and cherishes her and that they interact very well together. Ms. Lori believed that Mother understood G.H.’s needs and capabilities because she nurtured and cared for her. Ms. Lori testified that when G.H. was with i. Mother’s Mentor Mother in Ms. Lori’s home, Mother never left G.H.’s side. Ms. Lori said that she had seen Mother be patient Ms. Lori, who had created a 501(c)(3) nonprofit with G.H. Ms. Lori testified that Mother had disciplined organization to work with women who had gone through G.H. with words in a stern voice to get her attention if rehab, said that she had been doing ministry with the something was going to harm her. Ms. Lori had not seen VOA Light Program for approximately a year and a half G.H. fearful of Mother. and that she had worked with women in addiction intermittently for four or five years prior to that. 22 Ms. *16 Ms. Lori testified that the “dailyness” of being a mom Lori explained that her church has a ministry where they can become very challenging but that Mother “has not bring the ladies in the VOA Light Program to church broken step. She just keeps continually striving to do every Sunday and every Wednesday night and invest everything that she needs to do to be a really good mom, God’s Word in them during the ninety days that they are and she’s doing a great job.” Ms. Lori said that Mother in the program. If the ladies chose to go to another was always willing to take any parenting advice or tips program for further help, like the Salvation Army, Ms. that Ms. Lori offered. Lori and other ladies from the church walked alongside them. Ms. Lori testified that Mother provided G.H. with safe and stable housing at the Salvation Army because the Ms. Lori testified that she knew Mother from her church’s rules there protect the women and the children. Ms. Lori ministry, that she was Mother’s mentor, and that they had testified that she believed Mother could meet the physical spent time together two to three times per week for the and emotional needs of G.H. now and in the future past year. Ms. Lori testified that she was aware of because she had seen Mother do it time and time again. Mother’s past—that Mother had been a long-time methamphetamine user; that Mother had stopped using Ms. Lori testified that Mother had an adequate support methamphetamine a year before the trial; that Mother was system made up of “a growing realm of friends and on felony probation for methamphetamine possession; people” from church who were willing to meet her that Mother had been convicted for causing bodily injury physical, emotional, or spiritual needs. to a child and for assault bodily injury to a family member; that up until a year prior to the trial, Mother had Ms. Lori testified regarding other programs that Mother been both a perpetrator and a victim of domestic violence could participate in that would help her parent and with several men for many years; and that Mother had her © 2015 Thomson Reuters. No claim to original U.S. Government Works. 23 In Interest of G.H., Not Reported in S.W.3d (2015) 2015 WL 602585
provide for G.H. Ms. Lori said that Mother had completed *17 Ms. Lori testified that Mother had five rehearsals training at Cornerstone23 that helped people find and with her previous children but that was during her interview for jobs and build a resume; immediately upon addiction, “[w]hich is totally different.” Ms. Lori agreed completion, Mother obtained a very good job selling that in order for it to be different, Mother has to remain shoes. Ms. Lori said that at the time of the termination drug free. trial, Mother was going through a twelve-week study on parenting at their church.
Ms. Lori testified that it was not in G.H.’s best interest for Mother’s parental rights to be terminated because Mother j. Mother’s Boss had done “everything that she’s been asked to do to be [G.H.’s] mother.” Ms. Lori believed that Mother should Rick Baggett, the owner of the shoe store where Mother be appointed G.H.’s permanent managing conservator worked, testified that she had been working with him as a because “a person can change from the inside out. And salesperson for approximately three months. Baggett she has.” Ms. Lori testified that she would continue her testified that Mother made $400 to $500 per week and relationship with Mother and G.H. after the case and that that her pay varied because her job was based on she would protect G.H. “[a]t all costs.” Ms. Lori said that commissions. Baggett testified that Mother does a “really if G.H. was at risk, she and her husband would be the first good job.” Baggett had never seen Mother get upset or to intervene for the protection of G.H. frustrated at customers. He had not received any complaints about Mother from any of his employees, and On cross-examination, Ms. Lori testified that Mother was he had not encountered any problems with Mother. not perfect and was going to continue to make mistakes, Baggett testified that Mother arrived at work on time and such as in parenting, but that Mother would not make that he did not have any concerns that Mother might be mistakes that put G.H. at risk because that part of using any type of substances while she had been working Mother’s life was over. Mother had changed her attitudes, for him. her thought processes, and her default reactions. Baggett, who was involved with an organization that Ms. Lori testified that Mother knew that being around ministered to the families of inmates and helped guide the people with whom she had previously used drugs was not inmates back into society upon their release from going to help her succeed. Ms. Lori knew that Mother had incarceration, testified that he was aware of Mother’s described Edie as “like a mother” and that Mother had legal issues and drug problems and that she seemed to be previously used methamphetamine with Edie. Ms. Lori doing well as compared to other people he had worked knew that Mother had seen Edie a couple of times at with in his ministry. Baggett considered Mother an asset funerals when their mutual friends died but testified that, to the store and testified that he expected Mother’s as far as she knew, Mother had not had any social or employment to continue but that if she left and applied continued contact with Edie. Ms. Lori said that Mother again, he would hire her. had seen Joe once when they went to the races, but Ms. Lori did not know if they had eaten at Razzoo’s.
Ms. Lori testified that it would not be in Mother’s best k. Father interest to consume alcohol; it was prohibited by her probation and was against her succeeding because alcohol Father testified that he had known Mother for eleven is a drug. Ms. Lori testified that Mother had not admitted years and that she was no longer the same person; he said to her that she had possibly consumed an alcoholic drink that she is now a leader and that she inspires him. Father within the three months prior to the termination trial. Ms. said that Mother is a loving, wonderful person who loves Lori testified that if she were at a restaurant and saw G.H. and all of her children, despite what she has been Mother drinking alcohol with G.H. present, Ms. Lori through with them. would confront Mother, call her probation officer if she had consumed alcohol, and call CPS if G.H. were at risk. Ms. Lori said that Mother’s parental rights should not be terminated if she had taken several sips of an alcoholic beverage because that would not keep her from taking 4. Testimony from Son Who Recognized Mother’s care of her child. Change But Was Torn Over the Issue of Terminating Mother’s Parental Rights
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Dustin testified that he had lived with Mother until he was Dustin testified that he had been incarcerated on the ten years old, and then he went to live with his father possession charge for eleven months at the time of the because he and Mother never really got along. He termination trial, that Mother and G.H. had come to see explained that he was stubborn as a child and did what he him, and that Mother had put money in his jail account. wanted, so he could not blame it all on Mother. Dustin He said that Mother and G.H. came with Sara, who is the said that whenever he fought with his father, he would run mother of his children and with whom he had previously to wherever Mother was staying. Dustin said that Mother seen Mother use methamphetamine. Mother had visited always tried to make sure that he had a place to stay if he him twice a month for eight months, and Dustin had needed one. Dustin said that he had also lived with observed changes in Mother; she seemed to be doing Mother off and on at his grandmother’s house after better with her life because she had a job and was not Mother was released from prison. using drugs. He said that due to his incarceration, he could not see her daily behavior, but he believed that Dustin did not feel that Mother was in the greatest hands Mother was being monitored enough “to where she can’t with the men she had dated because her ex-boyfriend mess up.” Rowdy was “real mean to her.” Dustin saw Rowdy beat Mother on three or four occasions—hitting Mother on the When asked for his opinion on whom G.H. should live face, fighting with her, and throwing objects at her. This with, Dustin responded, “I mean, a kid should always be occurred while Mother was pregnant with G.H. Mother with [her] parents, but, then again, I don’t want to see talked about leaving Rowdy but did not leave him after [G.H.] end up in the same position that I ended up in. So I the first time that she talked to Dustin about it. Dustin don’t exactly know what to say to that.” Dustin testified eventually helped Mother move out of the house. Dustin that he thought everyone deserved a chance to care for had also seen Mother and Father argue, fight, and throw their children but that he would be very leery about giving objects at each other. Mother a chance to parent G.H. Dustin said that he had never really seen Mother clean while he was growing up, 24 Dustin first used marijuana with a friend when he was so he was not sure if she could parent G.H. Dustin thirteen or fourteen years old. When he was fifteen or testified that the Intervenors could provide G.H. with a sixteen years old, Dustin started using cocaine with stable and safe environment and that he had no concerns friends but used for only a couple of months. At age if G.H. were to live with them. sixteen, Dustin used methamphetamine for the first time when Mother gave it to him. After Dustin used methamphetamine with Mother, he did not use it again until a couple of months later when he used it with friends and then started using it on a regular basis. Dustin quit 5. Testimony from Those Who Expressed Skepticism using for a couple of months and then started using again Concerning Mother’s Changes with Mother and used “pretty much continual[ly],” though not always with Mother. a. Justin *18 Dustin testified that he saw Mother use Mother’s son Justin testified that he had lived with methamphetamine when she was six or seven months’ Mother until he was eleven years old, that he had moved pregnant with G.H. Dustin said that he told Mother that in with his father when Mother went to prison, 25 that later she should not be using methamphetamine while she was he had moved back in with Mother, and that he had pregnant; he said that she did not respond but did what ultimately moved back in with his father and stayed there she wanted. Dustin thought that Mother had probably until he was fifteen or sixteen. Justin said that he had also used methamphetamine during the holidays in 2012 while lived with Mother’s parents at one time and that he had she was pregnant with G.H. but that she was not using been living with Aunt Rhonda for eleven months at the right before they—Dustin, Mother, and Father—were time of the termination trial. arrested on January 31, 2013. Justin testified about his home life with Mother and said Dustin testified that Mother received five years’ probation that a lot of Mother’s boyfriends were abusive. Justin had for her possession charge and that Mother told him when never known Mother to have a job outside the home; he she came back from court that she had to testify against said that she used to babysit children and probably sold him if he went to trial on his charge. He pleaded guilty to dope. When asked whether Mother had tried, in her own possession of methamphetamine. way, to be a parent, Justin said that she “sort of” tried but that she did not show anyone attention because her mind
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was “just out there with the drugs.” Justin testified that his criminal history included *19 Justin testified that in 2000, when he was eleven or possession of a prohibited firearm under eighteen inches, twelve years old, Mother bit him during an argument. He a couple of theft charges, and burglary of a building. explained that Mother became physical first by trying to Justin said that the crimes he had committed were related hit him with her hand. Justin said that in response, he had to methamphetamine because he was stealing to pay for grabbed her hands and had pinned her against the wall, his drugs, and thus he blamed his criminal past on starting that Mother had gotten free and had hit him once, that he to use methamphetamine with Mother. had grabbed her, that they had gone to the ground, that she had tried to hit him again, that he had grabbed her Justin said that he became sober because he was in prison hands, and that she had bitten his cheek. The bite broke for four years and had gone without using the skin and caused bruising, but Justin did not go to the methamphetamine long enough to where he no longer felt hospital. Mother was arrested for the incident. the need for it. Since his release from prison at the end of August 2013, Justin had maintained a drug-free lifestyle Justin testified that Mother used to “smack us” in the back and had not had any contact with Mother apart from of the head and that it knocked him down once or twice. seeing her in court and seeing her once at his Justin said that there was a piece of trim with duct tape grandmother’s house. Mother had texted him a couple of around it that had his name and his brothers’ names times, but he said that he did not want anything to do with written on it; Mother used that as a paddle to spank them her because she was a negative influence on him. Justin on the bottom and sometimes the legs if they moved while believed that he had beaten his meth addiction but that she was spanking them. Justin felt that Mother was Mother could not beat hers because he had used for only excessive in spanking him. four years, not for fifteen years like Mother, and because he had remained clean for the four years he spent in When Justin was seventeen or eighteen years old, Mother prison. Justin also attributed his success to cutting all of threw a glass candleholder at him during an argument; it his old ties, including those with Mother, and to making hit him in the back of the head as he was leaving. The the decision not use drugs. injury did not require stitches. *20 Justin said that his purpose in testifying against Justin started using marijuana at age seventeen and started Mother was that he did not want to see her ruin another drinking alcohol at age eighteen. Justin said that he had child’s life. Justin felt that Mother would ruin G.H.’s life also used cocaine and that it had put him to sleep. Justin because every time Mother was released from prison she testified that he did “weed” and “coke” in the same room had said that she was going to stop using drugs but never with Mother and that she had told him to leave the “coke” did. Justin believed that this time would be no different alone and to be safe out there on the streets with these “[b]ecause you can only tell somebody something so products. Justin started using methamphetamine at age many times[,] and they’re just not going to believe you no eighteen and first used with Mother, who provided the more.” Justin did not believe there was a chance of drug. Justin testified that when Mother told him that if he redemption for Mother.26 was going to use methamphetamine, it ought to be with her so that she could keep him safe, he understood that to Justin said that people had told him that Mother was mean that Mother had access to a purer form of the drug, doing well, that she had a job, that she was attending unlike the stuff that was on the street that was mixed with church, and that she was completing all of her drug tests. “bad stuff” and would kill people. After the first use of Justin opined that Mother was being good only because methamphetamine with Mother, it became an almost daily she was on probation but that once that was over, she occurrence for him to use methamphetamine with Mother would return to her old habits. Justin said that Mother was and continued until he went to prison around age twenty- still hanging out with the same people, so he opined that two. Justin, Dustin, and Mother first used together when she was going to get in the same crowd and do the same Justin was age twenty and Dustin was age eighteen. Justin things. But Justin admitted that he had no personal said that he continued to use methamphetamine with knowledge that Mother was continuing to hang out with Dustin after Mother went to prison. Justin said that he had all of her old friends. used methamphetamine with Mother’s friends, that they used to hang out at Edie’s house, that he had more than Justin had never seen Mother with G.H., but he did not likely bought methamphetamine from Edie, and that he believe that Mother could adequately parent G.H. When had seen Mother purchase methamphetamine from Edie at asked what his specific concerns were about G.H. living least ten times. with Mother, he said, “I mean, she’s never going to—I
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mean, the money she makes, she can’t raise no kid. I because she had beat him and because she had offered mean, even with the benefits and all of that. And, you him drugs and told him to come to her if he ever wanted know, she’s going to scream and holler, probably go back to do drugs so that she could make sure that he did not get down to using drugs again. She’s got a temper.” Justin the “wrong stuff.” Trey said that Mother had offered him said that tempers run in their family and that once they get “meth, ... weed and other pills and all kinds of other mad, they “don’t even think no more. You just kind of stuff.” Trey said that the first time that Mother offered blackout and stuff happens.” Justin said that he was him marijuana was when he was about fifteen years old, concerned that Mother would lose her temper with G.H. but he did not take it. Trey said that Mother had bought and that she might be slightly abusive. Justin explained drugs from Father and had given them to him. that babies scream and cry and that Mother would probably yell because she did not have the patience for Trey said that he was not like his brothers because he that. Justin said that Mother would probably have had a made sure that he stayed away from the lifestyle that better chance of paying attention to others if she was not Mother had lived. Conversely, Trey said that Mother had on drugs but that being off drugs would not help her anger given him Xanax pills, he had tried them, and he had problems or her ability to provide for a child. liked them; Xanax became his drug of choice, and he became addicted to it. Trey said that Mother gave him Justin thought that it would be in G.H.’s best interest for about three or four Xanax pills when he was a user. He Mother’s parental rights to G.H. to be terminated. Justin said that he had straightened up and was no longer taking thought that G.H. would be a lot better off with Aunt drugs because he had seen Mother’s life and his brothers’ Intervenor because she had a stable home and because lives and did not want that to be his life. Trey testified G.H. would attend good schools, have a good family, and that Mother’s drug use had a detrimental effect on him be raised differently that he was. and her other children.
After Mother was released from prison, she came to live with Trey and his father for six months; Trey said that he was sixteen years old and that he took her in because no b. Trey27 one else in the family wanted to take care of her. Trey said that he wanted Mother to stay with him because she Trey said that he wanted to testify because based on his was still his mom and because he thought that she would experience and what he saw growing up, Mother was not straighten up. When Mother moved in, she brought a box mother enough to take care of G.H. Trey testified that he with birth certificates and social security cards and said had pretty much raised himself and that he was a good kid that it was from when she used to steal people’s identities; because he had stayed away from drugs. she said that she wanted to get rid of it, and Trey’s father disposed of it in a dumpster. Trey said that he had only lived with Mother before he was one year old; his father took him away from Mother Trey said that Mother was physically abusive to him when she tested positive for methamphetamine.28 Trey when he was living with his father after she got out of said that he had lived with his father off and on and that prison. Trey said that Mother had hit, pushed, and kicked he had also lived with his cousins. At the time of the him and that she had threatened to knock his head off termination trial, nineteen-year-old Trey was living with with a broomstick handle. On one occasion, Mother had his grandparents, who were Mother’s mother and her grabbed a liquor bottle and had hit him on the ankle with stepfather. it. On another occasion, when Trey attempted to leave the house to go to his grandparents’ house to call CPS, *21 Trey said that when he was little, around ages three, Mother and Dustin held him down; when Trey broke free four, or five, Mother slept all day due to her and made it to the door, Mother and Dustin slammed the methamphetamine use29 and that she beat him—slapping door on Trey’s leg and made him fall. Trey said that him wherever she could—with wire hangers and a Dustin and Mother dragged him by the hair and started telephone if he tried to leave the house because she beating him—hitting him and kicking him. wanted to make him stay in the bed. Trey said that this occurred a lot in his life—every time he was at his Trey said that while Mother was living with him and his grandparents’ house. His father eventually kept him from father, she sent him to juvenile detention. Trey said that going to his grandparents’ house because Mother was he had a friend come over who was black and gay and there. that Mother and Trey’s father had called the friend names. Trey told Mother and his father not to call his friend Trey testified that Mother was a bad influence in his life © 2015 Thomson Reuters. No claim to original U.S. Government Works. 27 In Interest of G.H., Not Reported in S.W.3d (2015) 2015 WL 602585
names. Trey’s father pushed Trey into the dresser, and Trey testified that during the previous year, he had seen Trey pushed his father back into the dresser, grabbed a Mother with Edie and that Mother had promised when she screwdriver, and threw it at the wall. Mother called the got out of prison that she would not go around Edie police and said that Trey had intentionally tried to stab his because that is where her addiction started. Trey said that father in the neck with a screwdriver, resulting in Trey Mother “still goes around [Edie] today.” Trey said “it’s going to juvenile detention. been probably close to about a year” since he had been with Mother and Edie. Mother wanted him to get a *22 Trey testified that while Mother lived with him, she haircut, and he went to get his haircut at Edie’s next-door used his probation30 against him and told his probation neighbor’s house. Trey said that Mother told him that she officer that she wanted Trey home by 8:00 p.m. She also and Edie had paid for his haircut with methamphetamine. tried to manipulate him to get him in trouble and told him that she would get him locked up. Trey said that he Trey said that he did not testify at the hearing in February decided that he had endured enough of Mother’s antics 2014 because he had to work that day. If he had testified, and moved in with his cousins so that he could finish his he would have said that G.H. should not be placed with probation. At the end of Trey’s probation, his probation Mother because of his concerns about using drugs, getting officer told him that Mother had admitted that Trey did beaten, and living in a shelter. He felt that the Intervenors not intentionally try to stab his father in the neck with a had a lot more to offer G.H. than Mother and that Mother screwdriver but that it was too late. Trey asked Mother was not fit to be a mother. why she had lied to the police, and she said that she did not want him to turn out like his brothers. Trey said that he had been around Mother and G.H. approximately ten times since G.H. was returned to Trey testified that the house where Mother and Father Mother. Trey testified that on one occasion when he was lived was a crazy house. Trey said that he had helped to with Mother and G.H. at Sara’s house, Mother wanted to move Mother out of Father’s house because he beat her. make some margaritas. Trey told Mother that he had to go Trey said that he felt that this was no way for her live to work. Trey said that he did not see Mother drink a when she was pregnant because there was “nothing but margarita because she got mad and ended up leaving. meth users that were all around that house.” Trey testified that he had not heard Mother talk about wanting a drink after that incident. Trey said that after G.H. was removed from Mother, he had talked Mother into allowing the Intervenors to care *23 Trey testified that he had seen Mother lose her for G.H. He said that he told Mother that she was not fit patience with G.H. “all the time”31 and said that “[s]he just to be a mom because she did not have a job and did not goes crazy.” He then explained that Mother did not want have anything to take care of a baby but that the to hold G.H. much and that Mother asked Trey or Sara to Intervenors did because they were already caring for J.S. hold G.H. He said that when G.H. was hungry, Mother stuck a bottle in her mouth, shut her up, threw her in bed, After Mother finished inpatient rehabilitation, she texted and shut the door. Trey testified that he was concerned Trey occasionally, but he tried to avoid talking to her as that things like that would continue to happen. much as possible because he did not want to be around “that lifestyle.” Trey explained that he had actually spent Trey testified that one time when he kept G.H., he time with Mother during the previous year because changed G.H.’s diaper and saw that she had a rash on her Mother was sometimes at Sara’s house when he went to bottom. He told Mother, and she responded that he see his nephews, but he said that he tried to stay away needed to give her a bath because she had just picked her from her as much as he could. On cross-examination, up from day care. Trey asked if G.H. had eaten, and Trey said that he did not intentionally try to see Mother; Mother said that G.H. had not eaten all day. Trey fed she was at Sara’s when he was there. G.H., and she “ate the whole entire can.” Trey said that he was concerned that the diaper had not been changed Trey testified that Mother had offered him drugs during because G.H. was soaking wet when he picked her up the past year when she was hanging out with Sara. Trey from Mother. Trey texted the Intervenors because he did then explained that for his eighteenth birthday on April not have much experience with babies. Trey also talked to 20, 2013, Mother had tried to give him a bottle of his grandparents, and his grandmother took care of G.H. whiskey, not drugs. He said that Mother told him that she because he did not have any ointment. Trey said that the had tried it and did not like it, so she was giving the bottle following day, he took G.H. to Sara’s house because to him. Mother did not want her that day. When asked about his testimony that Mother did not want G.H. the day after
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Trey kept her, he said that he did not know whether *24 When asked about his testimony that Mother had Mother was working that day. He said that he knew only offered him drugs since she had been out of rehab, Trey that Sara had kept G.H. the next day and that other said that it was around the time when she moved in with relatives had kept G.H. the day after that. Trey testified him and his father after she paroled out of prison. He then that he knew that there was a CPS case pending but that added that Mother had offered him drugs at Father’s he had contacted only the Intervenors and his house. After additional questioning about when Mother grandparents about his concerns regarding Mother’s care had offered him drugs during the past year, Trey said it of G.H. was at Father’s house;34 he was sure that it had occurred after Mother was released from rehab. When confronted Trey said that during the monitored return, Mother told with the fact that Father had been in jail at the time that him that if he ever wanted to get high, that they could get Mother got out of rehab, Trey said, “Well, she offered me high like dragons. He said Mother made this statement drugs when she lived with [Father]. I don’t know exactly when he, Mother, G.H., and Sara were in the car and were when that was.” talking about Mother’s past use and when she gave his brothers drugs. Trey said that he did not dislike Mother but that he did not agree with the things that she did. He said that Mother had Trey said that Mother had beaten him in the past year and said many times that she was going to stop using drugs that there were pictures. Trey believed that there was a but that every time, she had gone back to using and CPS case involving him as the victim since June 26, 2013, always had an excuse. because he had called CPS before, but he did not know for sure. Upon further questioning, Trey said that he had Trey testified that he wanted G.H. to go where she needed been beaten by Mother within the last year or two and that to go and to have a good life and not the life that he and there were pictures. Trey said that there were multiple his brothers had when they were little. He said that there cases from a year to two years all the way up until he was were other people who could take care of G.H. “way sixteen years old. When asked to identify when Mother more” than Mother. Trey testified that G.H. should be beat him and a CPS case was opened with him as the placed with Aunt Intervenor because she was the mother victim between June 26, 2013 and April 20, 2014,32 Trey he wished that he had. He said that Aunt Intervenor was said it was after he graduated in June 2013. He could not always there for her children and that there was nothing remember the month and said that he had been beaten that her children would ever do without. Trey testified more than one time. Trey reiterated that the pictures were that because of what he had seen, his opinion would not in the cases. When asked the name of the investigator change based on other witnesses’ testimonies that Mother who took the pictures, Trey said that he had his cousin had stayed clean for the year preceding the termination take the pictures but that he did not remember her name. trial. He said that he had a bad memory but later said that he remembered a lot from his childhood. When asked where the CPS investigator came to talk to him, he said it was at his house on Northwest 25th Street. He said that the investigator asked him about how Mother was treating c. Uncle Intervenor him, and then she took pictures. He said that the investigator was a woman with short hair. He did not Uncle Intervenor testified that he had been married to know when the investigator came to talk to him. When Aunt Intervenor for two years35 and that he had a son from asked to describe what happened in June 2013, Trey said a previous marriage who lived with his ex-wife. Uncle that Mother hit him at his house on Northwest 25th Street. Intervenor testified that he had dealt with family members When asked what he was doing when he got hit, Trey who had struggled with addiction, including his brother said. “I mean, it was just an incident. She got mad.” That who had died from methamphetamine use. Uncle was all the detail that he would provide; he kept telling Intervenor testified that he had not had any problems with the prosecutor that he could look at the CPS case. 33 When drugs. asked who was present when Mother had beaten him within the past year, Trey said that Mother and Dustin Uncle Intervenor testified that G.H. came to live with him were present. When confronted with his prior testimony and Aunt Intervenor in May 2013 and stayed with them that Sara was always present when he saw Mother, he approximately eight or nine months. Uncle Intervenor said that Mother had beaten him when she had lived with said that his intention was to provide a safe and secure him at his father’s house. home for G.H. and to adopt her, if needed. Uncle Intervenor said that he intervened in the underlying suit because G.H. needed a secure, stable home. Uncle © 2015 Thomson Reuters. No claim to original U.S. Government Works. 29 In Interest of G.H., Not Reported in S.W.3d (2015) 2015 WL 602585
Intervenor testified that he had worked since he was staying away from the stuff the parent used to do, then he sixteen years old, working two jobs during most of that could see returning a child to the parent, but he also time, and that he did not think that a baby should be believed that a lot of people work the system. Uncle placed in a situation with a forty-two-year-old woman Intervenor asked the jury to terminate Mother’s parental who did not have a car, a house, or furniture and who rights. needed government assistance to provide insurance, food, and a home when there was “a perfectly good home that she doesn’t have to worry about being fed, she doesn’t have to worry about electricity, she doesn’t have to worry about running water.”36 d. Aunt Intervenor
Uncle Intervenor had heard the testimony about how Aunt Intervenor testified that she had a nineteen-year-old Mother had worked her services, had completed rehab, son, a thirteen-year-old son, and Mother’s son J.S., who and was approaching her one-year anniversary of sobriety was eight years old; she said that Uncle Intervenor had an (which occurred the day after Uncle Intervenor testified). eight-year-old son. Aunt Intervenor testified that she and Uncle Intervenor was happy to hear that Mother had gone Uncle Intervenor made approximately $90,000 per year through rehab, but he testified that it did not sound like it and that they had lived in their house for two years. was working. Uncle Intervenor did not believe that Mother could stay clean and still have dealings with her Aunt Intervenor testified that when she was “a confused past friends, which he considered to be “little gateways” 16–year–old little girl,” she had overdosed on aspirin and to alcohol and drugs. Uncle Intervenor said with other Tylenol, that she had seen a therapist but was not relatives and other friends of Mother’s “coming out of the institutionalized, and that she was not diagnosed with woodworks about her escapades since she’s had the baby anything. She said that she had never had any other issues back,” that did not show him that Mother had changed at or problems since then. Aunt Intervenor testified that she all. Uncle Intervenor explained that the “escapades” he drank alcohol on occasion. was referring to were Mother’s hanging around Edie. Uncle Intervenor admitted that he did not tell CPS his Aunt Intervenor testified that she thought Mother had concerns about Mother hanging around Edie, and he used drugs with friends as a teenager. Aunt Intervenor agreed that it would have been in G.H.’s best interest to recalled that when she was sixteen and Mother was tell CPS those concerns. twenty, Mother lit a joint in the backseat of Aunt Intervenor’s car, and Aunt Intervenor pulled into a *25 Uncle Intervenor said that he was concerned about parking lot and told Mother, “If that’s what you’re going Mother’s ability to maintain G.H.’s health care because to do, you’re going to have to get out of my car.” Mother had asked Sara to take G.H. to the dentist. Uncle Intervenor believed that it was Mother’s job to take G.H. Aunt Intervenor learned of Mother’s adult drug addiction to the doctor. Uncle Intervenor did not believe that single when Trey’s father removed him from Mother’s care. mothers had to get creative when meeting the obligations Aunt Intervenor and Aunt Rhonda tried to talk to Mother of their child and their employment; he believed that but did not get anywhere. Aunt Intervenor found a bed in Mother should make time to be at G.H.’s appointments. a rehab facility, but Mother was not interested. Aunt Uncle Intervenor did not believe that G.H. had been to the Intervenor said that when Mother continued to have doctor since they had taken her on February 18, 2014. positive drug tests and would not get help, Aunt Uncle Intervenor agreed that it would have been in G.H.’s Intervenor ceased having a relationship with Mother. best interest to tell CPS his concerns that G.H.’s medical needs were not being met. Aunt Intervenor testified that it was very emotional at times to watch Mother in her addiction: they watched Uncle Intervenor said that he had received the picture of Mother’s children go through a lot of things, including the red frozen beverage approximately three months being bounced around to live with other family members; before the termination trial and that he did not tell CPS there was self-destruction; and there was family that he had concerns about Mother drinking alcohol or destruction. Aunt Intervenor said that Mother had anger having G.H. around alcohol. He agreed that it would have outbursts and that her attitude and the way she acted were been in G.H.’s best interest to tell CPS his concerns. “completely night and day from what we were used to.” Aunt Intervenor testified that Mother was a yeller and a Uncle Intervenor testified that if a parent who was at or screamer; Aunt Intervenor was not sure whether Mother just below the poverty line was working her services and knew how to speak in a normal manner once she became upset because her anger took over and caused her not to © 2015 Thomson Reuters. No claim to original U.S. Government Works. 30 In Interest of G.H., Not Reported in S.W.3d (2015) 2015 WL 602585
be able to calm down. past. Aunt Intervenor later testified that she had not contacted CPS since February 2014 when G.H. was Aunt Intervenor had seen Mother hit her sons. Aunt removed from her care, so she had not told CPS of her Intervenor said that Mother had hit her sons whenever or concerns while G.H. was in Mother’s care. Aunt wherever she felt like it. Aunt Intervenor said that Mother Intervenor agreed that it would have been good for did not give her sons a normal spanking; she slapped them everyone involved in this case if she had given the on the back of the head, popped them, or hit them with Department the opportunity to address her concerns with something. On one occasion at Aunt Intervenor’s Mother. apartment when she told Mother that she did not agree with Mother’s spanking her sons, Mother took her sons Aunt Intervenor had heard about how well Mother had and left. done on her probation, but it had not changed Aunt Intervenor’s mind. She said, *26 Aunt Intervenor testified that Mother has had a number of men in and out of her life and that most of I think the work that she has done is wonderful. them had been abusive and had some kind of drug I think if she is completely and totally serious, addiction or criminal past, which Aunt Intervenor did not that is a great thing. But I don’t believe after her feel was a good situation to take a child into. history that one year is enough. I don’t believe that. I also believe that she will continue to be With regard to J.S., Aunt Intervenor testified that Mother angry. You know, you can take the drugs out of owed approximately $18,500 in back child support. At the her life, but how about the anger? How about, most recent child support hearing that Aunt Intervenor you know, the way she has raised her other and Mother attended, Mother asked to have her child children? How is she going to maintain? How is support reduced. Aunt Intervenor testified that Mother she going to get by all of those things? yelled at her that she did not know why or what Aunt Intervenor was doing and that she was not going to get Aunt Intervenor said that based on Mother’s past history G.H. back and was not going to see her. of drug use, she would need to see Mother stay clean for more than two years. Aunt Intervenor was also concerned Aunt Intervenor testified that Mother texted her before that Mother would continue to hang out with the same Christmas 2013 and wanted her to allow G.H. and J.S. to people and that she would continue to take G.H. into go to their grandmother’s house and spend the night so inappropriate places and situations. Twice during the trial that Mother could have them overnight. Aunt Intervenor when asked what proof she had that G.H. was in said that Denise Hamilton, the caseworker, had sent her immediate danger in Mother’s care, Aunt Intervenor an email that Mother was maintaining and doing well and testified, “I don’t have any proof that she is in immediate that she could be present at family gatherings. Aunt danger.” Intervenor responded that she did not think it would be appropriate. *27 Aunt Intervenor did not believe that Mother could parent a child and that, along with her desire to keep J.S. Aunt Intervenor met with Hamilton in September after a and G.H. together, was why she had testified. Aunt court hearing and shared her concerns about Mother’s Intervenor testified that she wanted to adopt G.H. because anger. Aunt Intervenor testified that the Department did she was concerned about her and felt like she and Uncle not seem to be concerned about the issues she raised; they Intervenor could give her a steady and stable lifestyle. focused on the fact that Mother was doing well and was Aunt Intervenor asked the jury to terminate Mother’s maintaining her sobriety. parental rights to G.H.
Aunt Intervenor said that she told her attorney and the ad litem her concerns about Mother’s failure to get G.H.’s shots37 and about her concerns and allegations that Mother had been drinking and associating with people that she e. Aunt Rhonda had used drugs with in the past. Aunt Intervenor agreed Aunt Rhonda testified that she was not sure when Mother that she did not tell Hamilton or Brager about her had started using drugs and that she had an “on and off” concerns that Mother was hanging around Edie or Joe38 or relationship with her because she did not condone her about being around the red frozen beverage at Razzoo’s. Aunt Intervenor said that she did not contact CPS behavior but wanted to make sure that she was still alive. regarding these concerns because she had done so in the Aunt Rhonda testified that many times she literally got on her knees and begged and cried for hours for Mother to
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get help, but Mother said that it was a waste of her time. Rhonda was concerned about how Mother would handle After that, Mother shunned her and would not speak to stressful situations in life once her probation ended. Even her unless she needed help. Aunt Rhonda testified that she knowing that Mother was going to be on probation for had heard from Mother whenever she was down and out four more years, Aunt Rhonda still had concerns because or was on somebody’s couch and would not wake up; she of Mother’s history. Aunt Rhonda said that Mother’s and Uncle Roger would pick her up and take her to the environment was not one that she wanted G.H. to know. hospital. Aunt Rhonda testified that over the years, she Aunt Rhonda testified that she wanted G.H. to know that had received lots of calls concerning Mother being in jail, she was going to have water and electricity, a home, a needing help, and needing money and other basic place to lay her head, her own room, a chance to obtain an necessities. Aunt Rhonda testified that it was very education, and a normal life like C.C. and J.S. have, not stressful and very emotional for their entire family and like Dustin and Justin had. Even knowing that Mother had that Mother had not apologized for the pain that she had a place for G.H. to stay at the Salvation Army and caused. afterwards with the Wrap–Around Program, Aunt Rhonda still had concerns for G.H. based on what had occurred in Aunt Rhonda said that she had testified at the hearing in the past. February 2014 that she was not supportive of the Department’s returning G.H. to Mother because Aunt *28 Aunt Rhonda testified that she believed in the ability Rhonda thought that G.H. would thrive better with the of a person to make herself better and to make herself Intervenors. Aunt Rhonda testified that the things that more acceptable in society. But Aunt Rhonda was not would cause G.H. not to thrive with Mother were convinced that Mother had changed her life for good and “[e]motional disturbance[s]” and anger, which were said that she would need to cross specific milestones to things that she had seen in Dustin and Justin who had make her a believer, such as having her own home, been in Mother’s care. Aunt Rhonda explained that she having her own vehicle, maintaining the same meant that G.H. would not be happy, would not have a employment for five years, and having decent people normal childhood, would not have an education, and around her. would not have the means to support herself. Aunt Rhonda was not convinced that Mother’s cycle of Aunt Rhonda testified that during the monitored return, addiction could be broken because it had not been broken she had kept G.H. on Saturdays while Mother worked. previously. Aunt Rhonda testified that if Mother did not Aunt Rhonda had not seen any signs of abuse or neglect break the cycle, G.H. would be the one who had to pay of G.H. Aunt Rhonda said that she had some interaction the most. When asked if she believed that Mother had with Mother when she transported her to work and then been clean for a year from methamphetamine, Aunt came back to pick her up and take her and G.H. home on Rhonda admitted that she did not have any evidence that Saturdays, as well as one hour that Mother spent at her Mother had used drugs in the last year. When asked house. When asked if she had any concerns during the whether there was a chance that Mother would stay clean, times when she saw Mother with G.H., Aunt Rhonda Aunt Rhonda responded, “I wish. I truly wish.” testified that her time spent with them was very limited and that Mother talked to G.H. during the transports; Aunt Aunt Rhonda asked the jury to terminate Mother’s Rhonda did not mention any yelling, hollering, or parental rights to G.H. Aunt Rhonda believed that it was threatening. With regard to bonding, Aunt Rhonda in G.H.’s best interest to be back with the Intervenors. testified that Mother seemed to care for G.H., and G.H. seemed to care for Mother.
Aunt Rhonda testified that Mother had called her for help during the monitored return. Aunt Rhonda said that she f. Uncle Roger had purchased food for Mother five or six times when Mother said that she did not have milk or snacks for G.H. Uncle Roger testified that he had been married to Aunt Aunt Rhonda said that it had been about a month since Rhonda for twenty-eight years. Uncle Roger testified that Mother had said that she did not have milk and that it had on two occasions, he had gone and picked up Mother been two weeks since she had last asked for snacks for when she was coming down off of drugs and had to G.H. monitor her. He said that on one occasion more than five years prior to the trial, she was “just about dead,” and he Aunt Rhonda did not believe that G.H. should be placed took her to the hospital. He said that on the other with Mother, despite her year of sobriety, because Aunt occasion, Mother was coming down off drugs and was hallucinating. Uncle Roger testified that he and Aunt © 2015 Thomson Reuters. No claim to original U.S. Government Works. 32 In Interest of G.H., Not Reported in S.W.3d (2015) 2015 WL 602585
Rhonda had talked over the years about trying to get help for Mother, but Mother denied that she had a problem.
Uncle Roger testified that he had seen Mother hit the boys a few times, especially Trey. Uncle Roger told Mother g. Sara that she needed to quit hitting her sons. Sara testified that she had conceived two children with Uncle Roger said that Dustin and Justin were very angry Dustin. The first time that she used methamphetamine as a result of Mother’s years of drug use. Uncle Roger was when she was sixteen years old, and she used with said that the boys had gone from place to place and had Mother and Dustin; Mother gave her the not had someone to really take care of them. Uncle Roger methamphetamine. testified that he loved Dustin and Justin as if they were his sons and said that he had tried to help them as much as When asked whether Mother had changed her life since possible. completing rehab, Sara said that at first, she thought Mother had changed until Sara saw that Mother had Uncle Roger said that he had heard Mother “holler” at continued to hang around the same people and to act the G.H. He explained that G.H. was giving Mother a little bit same way. Sara said that when they went to church, of trouble while getting out of the car, and Mother told Mother acted differently; when they were around G.H., “Come on, [G.H.] ... I don’t need this tonight.... I’m Mother’s ex-boyfriend Rowdy, Mother had not changed. tired, and I don’t need all this tonight.” Sara testified that Mother had taken a couple of trips out Uncle Roger testified that if G.H. continued to live with of town to see her ex-boyfriend Rowdy, including over Mother, he did not think that she would have a good life Thanksgiving 2013 before G.H. was returned. Sara said because Mother had been at the Salvation Army for a that Mother had obtained a weekend pass from the while and he had not seen any effort to find another place Salvation Army and had stayed with Rowdy. Sara said to live. Uncle Roger understood that Mother had a job but that since Mother had gotten G.H. back, she had talked to said that they were still buying groceries for her and that Rowdy on the phone and had visited him in jail, but Sara he thought she should be saving her money to get out of did not think that Mother had taken G.H. with her when the situation. she went to see Rowdy in jail. Sara testified that she had used methamphetamine with Rowdy and Mother in the Uncle Roger testified that G.H. should be placed with the past. Intervenors because he did not believe that Mother could raise a child. Uncle Roger said that they had helped raise Sara was present when G.H. was returned to Mother in all of her children, except Trey, in one way or another, so February 2014 because they were planning to go out to he did not see how Mother was going to be able to raise eat. After they went to eat, they went to Resa’s house. G.H. Knowing that Mother had been clean for a year did Sara knew Resa through Mother and had used not change Uncle Roger’s opinion because she had been methamphetamine with Resa. Resa met G.H., and they using drugs for about sixteen years. He said that he did picked up some baby clothes from Resa. Sara testified not think that after a year’s worth of trying to be clean that she had not seen Mother and G.H. with Resa at any that she was clean and would be capable of raising a other time during the four months preceding the trial. child. Sara testified that she knew Edie through Mother and that *29 When asked if it would be a good idea for the she had used methamphetamine with Edie. Sara had Department to continue to work with Mother, Uncle driven Mother and G.H. to see Edie on two occasions. Roger reiterated that he did not think that Mother was The first time, Sara took Mother and G.H. to Edie’s house capable of raising a child. Uncle Roger testified that it because Mother said that Edie was mad that she had not was not worth it to take a chance to see if the cycle could seen G.H. since she had been returned to Mother. Sara be broken. Uncle Roger said that he thought G.H. was in said that Mother called Edie before they arrived and told danger ever since she was returned to Mother because she her to put the dope up because she was bringing the baby. was hanging around people that she should not be around. Sara did not testify about the second occasion when she But when he was informed that he had a duty to report to took Mother and G.H. to Edie’s but said that on both CPS if he thought a child was being abused or neglected, occasions, Mother did not smoke methamphetamine while he responded, “I didn’t think she was being abused or they were there, and Sara did not see Edie smoke neglected.” methamphetamine while they were there.
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Sara testified that Mother had sent her the picture of the for possession of a controlled substance. Sara said that red frozen beverage approximately two months before the Mother and Edie had come to visit her since she had been trial. Sara testified that Mother had told her that the guy incarcerated. she was with at Razzoo’s was Rowdy’s best friend Joe, that she drank with him, and that he had tried to get her drunk. Sara said that was the second time that Mother had taken a weekend trip and that G.H. was with her that time. Sara said that at the end of the Razzoo’s weekend, Joe 6. Rebuttal dropped off Mother and G.H. at Sara’s and that Mother told her that “the guy does methamphetamines.” Sara During rebuttal, the Department recalled Brager, who testified that she sent the picture of the red frozen testified that she had sat through the whole trial and that beverage to Aunt Intervenor because she cared about G.H. she had heard testimony about things that had occurred and felt that G.H. should be placed with the Intervenors. during the monitored return that concerned her. Brager Sara testified that Mother had asked her if she knew who had heard Sara’s testimony that after one court hearing, had called CPS about her drinking alcohol. Mother had asked her who had told CPS about her drinking; Brager responded that her previous testimony *30 Sara said that there was a point when Joe and Mother and Hamilton’s testimony was true: they had not been were texting back and forth, and he said that he did not given any notification that Mother had allegedly been want to talk to her anymore. Mother told Sara that was drinking alcohol. When asked what she thought about the okay because “he does meth anyways, that he was—that’s people involved with this case who had concerns and who all he was—that’s what he does, and that’s all he was did not bring them to CPS’s attention, Brager testified that talking about when she was there, and that he is a big if they had told her, she could have addressed them. alcoholic.” Sara said that Mother and Joe quit talking for Brager said that she could have implemented a safety plan a couple of weeks but that right before Sara’s arrest on that detailed who could be around and who could not be June 6, 2014, Mother had started talking to Joe again around when G.H. was with Mother and when G.H. was because she wanted him to buy her a car. not in Mother’s presence. Brager said that she could also have given Mother referrals for therapy. Brager testified Sara testified that sometimes she had transported Mother that there were many options and that she would have twice a week but had not transported her every week. Sara called in Mother to have a “heart-to-heart” conference said that Mother always told Sara or her friend to get G.H. about the allegations. out of the car seat. Sara said that while she dealt with getting G.H. in or out of the car, Mother sometimes put Brager testified that her recommendation had changed to the stroller in the trunk. Sara said that she felt like she the alternative that she had previously given—that the took care of G.H. more than Mother. When asked why Department be made permanent managing conservator she continued to hang around with Mother if she was such and that Mother be named possessory conservator. Brager a pain, Sara said that she wanted to see G.H. said that she was willing to stay in the case and that she was still willing to allow Mother to have possession while Sara said that she had heard Mother scream or yell at they put G.H. and that it concerned her because G.H. was a baby. all those other things in place, continue the support. There Sara said that Mother did not lay a hand on G.H. was a lot of testimony about the amount of time that she’s been sober, and I can’t say that we can work the case for Sara testified that there was an incident at the jail and one five years, but, hopefully, my—our job is intervention, time in the car when she thought that Mother had and that’s what we try to do. We work to break these interacted with G.H. in an inappropriate manner. During cycles. the incident when they were visiting Dustin in jail, Mother got frustrated with G.H. because she wanted a toy *31 She’s done more than some clients that—of mine that and yelled at her. During the incident in the car, Mother have only used maybe five years. It’s about where she is said that G.H. better quit pulling her hair before she right now, and as much as we can offer the opportunity in slapped her. Sara testified that these incidents concerned a safe manner, you know, for her to stay clean with [G.H.] her because Mother had threatened to slap G.H. and in her possession, then we can do that. because Sara was not sure what Mother did when Sara was not around. When asked whether she had any problem with the Intervenors being named permanent managing At the time of the termination trial, Sara was incarcerated conservators of G.H., Brager said she did not have a
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problem with that. hospital, and that Mother had used methamphetamine after G.H. came home from the hospital.
Father testified that in addition to J.S. and G.H., he had two other daughters who were living and a son who was C. Trial Testimony Pertinent to Father deceased. Father testified that his parental rights had not been terminated to any of his children. Father last held a job in 2002; he was a truck driver and lost his license for 1. Father back child support. Father testified that he had not paid Father testified that he was living at the Bonham VA any child support for G.H. or any of his children. Rehab Center39 and had been there since March 2014. Father said that in his current program, he was learning *32 Father admitted that during a good portion of the coping skills, was learning how to be a productive citizen case, he had been in state jail serving time for his 2013 in society, was attending six NA meetings per week, and possession conviction,40 and thus he had visited with G.H. was creating a relapse prevention plan. Father said that he only a couple of times.41 Father said that he wanted to be chose to participate in the program through the VA in G.H.’s life, to be a good father to G.H., and to have because he had seen a big improvement in Mother, that he G.H. know him and his other daughters. Father testified had realized what he needed to do, and that he was ready that he loves G.H., that she inspires him, and that he did to make a change. Father testified that his discharge date not want to lose her. from the “late phase” was set for July 26, 2014, and that he would then enter another VA program that would last a Father asked the jury to allow him to continue to be year. Father said that upon completion, he would get a involved in G.H.’s life. Father agreed that he should not chance to work for the VA hospital or “one of the have unsupervised visits and that he would have to earn government places.” them by demonstrating his sobriety in the future. Father said that he was going to be able to keep focused for the Father, who had been clean for ninety-one days at the rest of his life on trying to remain drug free. Father asked time of the trial, said that he had been addicted to the jury not to terminate his parental rights to G.H. methamphetamine for twenty-five years and had been in a because it was in his best interest and G.H.’s best interest. rehab program previously in 1993 or 1994. Father took responsibility for the bad decisions that he had made in his life and did not make any excuses for them. Father said that being addicted to methamphetamine had ruined 2. Mother his life and had taken everything he had ever loved. Father said that he had inherited a house from his parents, Mother said that in the past, she had allowed Father to that he had rented out rooms to people and had sold drugs visit G.H. while she was present and that she would not to support himself, but that he had lost the house due to allow Father to have unsupervised visits with G.H. back taxes. because he needed to prove that he could remain sober. Mother testified that Father had made changes in his life Father testified that his trigger for using after he saw the changes in her; she said that he had methamphetamine was women; he felt that women were checked himself into rehab and had started working the more receptive to his advances if he was under the services that CPS had wanted him to do a long time ago. influence. Father said that he would avoid that trigger by Father’s family had noticed the changes and had started to getting rid of his “stinking thinking” and focusing on come back around. other things. Father said that loneliness was also a trigger and that an easy way to get companionship was to associate with others who were using methamphetamine.
Father testified that he and Mother had previously used 3. Hamilton methamphetamine together a few times. Father testified that Mother stopped using methamphetamine when she Hamilton testified that Father had visited G.H. twice. learned that she was pregnant with G.H. Father said that Hamilton said that Father did not accomplish any of the he had continued to use methamphetamine while G.H. tasks on his service plan. Hamilton did not have a was in the hospital after she was born, that he and Mother recommendation for the jury as to the termination of had used together once or twice while G.H. was in the Father’s parental rights but said that Father could have
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supervised visits with G.H. improperly denied a motion to strike intervention is abuse of discretion. Guar. Fed. Sav. Bank v. Horseshoe Operating Co., 793 S.W.2d 652, 657 (Tex.1990); In re N.L.G., 238 S.W.3d 828, 829 (Tex.App.–Fort Worth 2007, no pet.). Generally, an intervenor must have 4. Brager standing to maintain an original suit in order to intervene. Spurck v. Tex. Dep’t of Family & Protective Servs., 396 Brager testified that given Father’s short length of S.W.3d 205, 217 (Tex.App.–Austin 2013, no pet.). sobriety, he would still be required to have supervised visits. Brager said that she wanted Father to get clean and An analysis of whether a party has standing begins with stay clean so that he could be part of G.H.’s life and the plaintiff’s live pleadings. SeeJasek v. Tex. Dep’t of possibly one day have unsupervised visits. Brager said Family & Protective Servs., 348 S.W.3d 523, 527 that she was not recommending that Father’s parental (Tex.App.–Austin 2011, no pet.). The plaintiff has the rights to G.H. be terminated. initial burden of alleging facts that affirmatively demonstrate the trial court’s jurisdiction to hear the cause. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225–26 (Tex.2004). We must also consider evidence D. Outcome the parties presented below that is relevant to the jurisdictional issues, Bland Indep. Sch. Dist. v. Blue, 34 After hearing the above testimony and reviewing the S.W.3d 547, 555 (Tex.2000), including any evidence that exhibits that were admitted into evidence, the jury found a party has presented to negate the existence of facts by clear and convincing evidence that Father and Mother alleged in the plaintiff’s pleading. SeeMiranda, 133 had each committed at least one act under section S.W.3d at 227. If the facts relevant to jurisdiction are 161.001(1) and that termination of the parent-child undisputed, the jurisdictional determination is a matter of relationship between Father and G.H. and between law. Seeid. Mother and G.H. was in G.H.’s best interest. Based on the statutory grounds found by the jury, the trial court ordered When standing has been conferred by statute, the statute the parent-child relationship terminated between Father itself serves as the proper framework for a standing and G.H. and between Mother and G.H., removed the analysis. SeeHunt v. Bass, 664 S.W.2d 323, 324 Department as temporary managing conservator, and (Tex.1984). The party seeking relief must allege and appointed the Intervenors as permanent managing establish standing within the parameters of the language conservators for G.H. Father and Mother thereafter used in the statute. In re H.G., 267 S.W.3d 120, 124 perfected appeals. (Tex.App.–San Antonio 2008, pet. denied).
III. MOTION TO STRIKE PETITION IN B. Law Governing Standing in Suits Affecting the INTERVENTION Parent–Child Relationship (SAPCR)
In her first issue, Mother argues that the trial court abused A party’s standing to file an original SAPCR is governed its discretion by improperly denying her motion to strike by sections 102.003 and 102.004(a) of the family code. the Intervenors’ petition in intervention. Mother contends SeeTex. Fam.Code Ann. § 102.003 (West 2014) that the Interveners’ pleadings were legally and factually (providing general standing to file original suit), § insufficient to meet the minimum statutory requirements 102.004(a) (West 2014) (providing additional standing for showing that appointment of Mother as sole managing grandparent or close relative to file original suit for conservator would significantly impair G.H.’s physical managing conservatorship). Under section 102.003, health or emotional development. entitled “General Standing to File Suit,” an original suit may be filed at any time by “a person, other than a foster parent, who has had actual care, control, and possession of the child for at least six months ending not more than 90 days preceding the date of the filing of the petition.” A. Standard of Review and General Law on Standing Tex. Fam.Code Ann. § 102.003(a)(9). An individual claiming standing under this statute need only file her *33 The standard for determining whether the trial court petition and allege facts that meet the statutory © 2015 Thomson Reuters. No claim to original U.S. Government Works. 36 In Interest of G.H., Not Reported in S.W.3d (2015) 2015 WL 602585
requirement. Seeid.; Miranda, 133 S.W.3d at 226. In such conservators of G.H. on February 18, 2014—reflecting a case, pleading a proper basis for standing is sufficient to that they had physical possession of G.H. for more than show standing, unless a party challenges standing and six months; and the Interveners filed their petition in submits evidence showing the non-existence of a fact intervention on March 4, 2014, which was not more than necessary for standing. SeeMiranda, 133 S.W.3d at 227. ninety days after they lost actual care, control, and In that event, the petitioner must submit evidence raising possession of G.H. The Interveners thus established their a fact issue on the challenged elements to avoid a right to intervene as a matter of law.42 SeeJasek, 348 dismissal for lack of standing. Seeid. at 227–28. Section S.W.3d at 537 (holding that couple, with whom the 102.004(b) of the family code provides a “relaxed Department had placed children after removing them standing rule” by which parties who would not have from biological parents, demonstrated standing under standing to file an original suit for managing section 102.003(a)(9) to intervene in SAPCR initially conservatorship may nonetheless intervene in an ongoing filed by the Department); Jackson, 2011 WL 3890403, at suit if they are deemed by the court to have had *3 (holding that paternal step-grandmother established substantial past contact with the child and show standing as a matter of law under section 102.003(a)(9) to satisfactory proof to the trial court that appointment of a intervene in SAPCR); Smith v. Hawkins, No. 01–09– parent as sole managing conservator would significantly 00060–CV, 2010 WL 3718546, at *4 (Tex.App.–Houston impair the child’s physical health or emotional [1st Dist.] Sept. 23, 2010, pet. denied) (mem.op.) (holding development. SeeTex. Fam.Code Ann. § 102.004(b); that aunt established standing under section 102.003(a)(9) Spurck, 396 S.W.3d at 217. to intervene in SAPCR). We therefore hold that the trial court did not abuse its discretion by denying Mother’s motion to strike the Intervenors’ petition in intervention. SeeSmith, 2010 WL 3718546, at *2, *4 (holding that trial court did not abuse its discretion by denying father’s C. Analysis motion to dismiss aunt’s intervention). We overrule Mother’s first issue. *34 Here, the record demonstrates that the Intervenors’ live pleading at the time of the hearing on Mother’s motion to strike the plea in intervention was the Intervenors’ first amended petition in intervention, which pleaded that they had standing to intervene under sections IV. Section 161.001(2) Best–Interest Finding 102.003(a)(9) and 102.004(b). Specifically, the Interveners alleged that they had actual care, control, and In his sole issue, Father argues that the evidence is legally possession of the child for well over six months ending and factually insufficient to support the trial court’s not more than ninety days preceding the filing of the finding that termination of Father’s parental rights to G.H. intervention. The Intervenors’ first amended petition in is in her best interest. In her third issue, Mother argues intervention thus alleged facts sufficient to affirmatively that the evidence is legally and factually insufficient to demonstrate that they had standing to intervene in the support the trial court’s finding that termination of SAPCR filed by the Department. SeeJasek, 348 S.W.3d at Mother’s parental rights to G.H. is in her best interest. 531; Jackson v. Wright, No. 03–10–00391–CV, 2011 WL 3890403, at *3 (Tex.App.–Austin Aug. 31, 2011, no pet.)(mem.op.). It was then incumbent on Mother to contest the Intervenors’ intervention, which she did by filing a motion to strike. A. Burden of Proof and Standards of Review
Mother’s motion, however, did not challenge any of the *35 In this termination case, the Intervenors seek not just Interveners’ factual allegations regarding standing under to limit parental rights but to erase them permanently—to section 102.003(a)(9). Instead, Mother concedes that divest the parents and child of all legal rights, privileges, “[u]nder the broad guidelines of 102.003, the Interveners duties, and powers normally existing between them, would have had automatic standing.” And our review of except the child’s right to inherit. SeeTex. Fam.Code Ann. the record supports the Interveners’ factual allegations: § 161.206(b) (West 2014); Holick v. Smith, 685 S.W.2d the trial court appointed the Interveners as temporary 18, 20 (Tex.1985). Consequently, because the Intervenors possessory conservators of G.H. “with care, custody, and seek to sever permanently the relationship between a control of [G.H.],” as well as the right to have physical parent and a child, they must first observe fundamentally possession of G.H., on April 30, 2013; the trial court fair procedures. SeeIn re E.R., 385 S.W.3d 552, 554 removed the Interveners as temporary possessory (Tex.2012) (citing Santosky v. Kramer, 455 U.S. 745,
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747–48, 102 S.Ct. 1388, 1391–92 (1982)). We strictly disregard contrary evidence unless a reasonable factfinder scrutinize termination proceedings and strictly construe could not. Seeid. “A lack of evidence does not constitute involuntary termination statutes in favor of the parent. In clear and convincing evidence.” E.N.C., 384 S.W.3d at re E.N.C., 384 S.W.3d 796, 802 (Tex.2012); E.R., 385 808. S.W.3d at 554–55; Holick, 685 S.W.2d at 20–21. We cannot weigh witness credibility issues that depend on Termination decisions must be supported by clear and the appearance and demeanor of the witnesses because convincing evidence. Tex. Fam.Code Ann. §§ 161.001, that is the factfinder’s province. J.P.B., 180 S.W.3d at .206(a) (West 2014); E.N.C., 384 S.W.3d at 802. 573, 574. And even when credibility issues appear in the “[C]onjecture is not enough.” E.N.C., 384 S.W.3d at 810. appellate record, we defer to the factfinder’s Due process demands this heightened standard because determinations as long as they are not unreasonable. Id. at “[a] parental rights termination proceeding encumbers a 573. If we determine that no reasonable factfinder could value ‘far more precious than any property right.’ ”E.R., form a firm belief or conviction that the termination of the 385 S.W.3d at 555 (quoting Santosky, 455 U.S. at 758– parent-child relationship would be in the best interest of 59, 102 S. Ct. at 1397); In re J.F.C., 96 S.W.3d 256, 263 the child, then the evidence is legally insufficient, and we (Tex.2002); see alsoE.N.C., 384 S.W.3d at 802. Evidence must generally render judgment for the parents. J.F.C., 96 is clear and convincing if it “will produce in the mind of S.W.3d at 266; seeTex.R.App. P. 43.3. the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established.” Tex. Fam.Code Ann. § 101.007 (West 2014); E.N.C., 384 S.W.3d at 802. 2. Factual Sufficiency For a trial court to terminate a parent-child relationship, the party seeking termination must establish by clear and *36 We are required to perform “an exacting review of convincing evidence that the parent’s actions satisfy one the entire record” in determining whether the evidence is ground listed in family code section 161.001(1) and that factually sufficient to support the termination of a parent- termination is in the best interest of the child. Tex. child relationship. In re A.B., 437 S.W.3d 498, 500 Fam.Code Ann. § 161.001; E.N.C., 384 S.W.3d at 803; In (Tex.2014). In reviewing the evidence for factual re J.L., 163 S.W.3d 79, 84 (Tex.2005). Both elements sufficiency, we give due deference to the factfinder’s must be established; termination may not be based solely findings and do not supplant the verdict with our own. In on the best interest of the child as determined by the trier re H.R.M., 209 S.W.3d 105, 108 (Tex.2006). We of fact. Tex. Dep’t of Human Servs. v. Boyd, 727 S.W.2d determine whether, on the entire record, a factfinder could 531, 533 (Tex.1987); In re C.D.E., 391 S.W.3d 287, 295 reasonably form a firm conviction or belief that the (Tex.App.–Fort Worth 2012, no pet.). termination of the parent-child relationship would be in the best interest of the child. Tex. Fam.Code Ann. § 161.001(2); In re C.H., 89 S.W.3d 17, 28 (Tex.2002). If, in light of the entire record, the disputed evidence that a reasonable factfinder could not have credited in favor of 1. Legal Sufficiency the finding is so significant that a factfinder could not reasonably have formed a firm belief or conviction in the In evaluating the evidence for legal sufficiency in parental truth of its finding, then the evidence is factually termination cases, we determine whether the evidence is insufficient. H.R.M., 209 S.W.3d at 108. such that a factfinder could reasonably form a firm belief or conviction that the challenged ground for termination was proven. In re J.P.B., 180 S.W.3d 570, 573 (Tex.2005). B. Presumption and Holley Factors We review all the evidence in the light most favorable to the finding and judgment. Id. We resolve any disputed There is a strong presumption that keeping a child with a facts in favor of the finding if a reasonable factfinder parent is in the child’s best interest. In re R.R., 209 could have done so. Id. We disregard all evidence that a S.W.3d 112, 116 (Tex.2006). reasonable factfinder could have disbelieved. Id. We consider undisputed evidence even if it is contrary to the We review the entire record to determine the child’s best finding. Id. That is, we consider evidence favorable to interest. In re E.C.R., 402 S.W.3d 239, 250 (Tex.2013). termination if a reasonable factfinder could, and we Nonexclusive factors that the trier of fact in a termination
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case may also use in determining the best interest of the clear and convincing evidence supporting termination). child include: Father was not in a position to meet G.H.’s physical and (A) the desires of the child; emotional needs because he was in the process of completing drug rehabilitation and then planned to (B) the emotional and physical needs of the child now and participate in a year-long aftercare program. Because in the future; Father had been clean for only ninety-one days at the time of the termination trial, the emotional and physical (C) the emotional and physical danger to the child now dangers to G.H. now and in the future included the and in the future; following possibilities: housing instability or homelessness due to Father’s drug addiction, convictions, (D) the parental abilities of the individuals seeking and unemployment; exposure to domestic violence custody; because Father had physically abused Mother while she (E) the programs available to assist these individuals to was pregnant with G.H.; and exposure to drugs if Father promote the best interest of the child; was unable to maintain his sobriety and began using and selling again. These factors weigh in favor of termination (F) the plans for the child by these individuals or by the of Father’s parental rights to G.H. agency seeking custody; *37 With regard to Father’s parental abilities, the record (G) the stability of the home or proposed placement; revealed that Father had not completed any of the tasks on his service plan, that he had not provided child support for (H) the acts or omissions of the parent which may indicate any of his children, and that he had visited with G.H. only that the existing parent-child relationship is not a proper a few times. With regard to the stability of the proposed one; and home, Father had lost his home due to his failure to pay taxes and was unable to provide a stable home for G.H. (I) any excuse for the acts or omissions of the parent. due to his ongoing drug rehabilitation. These factors weigh in favor of termination of Father’s parental rights Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex.1976) to G.H. (citations omitted); seeE.C.R., 402 S.W.3d at 249 (stating that in reviewing a best-interest finding, “we consider, With regard to programs available to help Father to among other evidence, the Holley factors”); E.N.C., 384 promote the best interest of G.H., Father had not worked S.W.3d at 807. any of the tasks on his service plan. This factor weighs in favor of termination of Father’s parental rights to G.H. These factors are not exhaustive; some listed factors may be inapplicable to some cases. C.H., 89 S.W.3d at 27. The Intervenors’ plan was to adopt G.H. Father’s plans Furthermore, undisputed evidence of just one factor may for G.H. included wanting her to know him and to know be sufficient in a particular case to support a finding that his other children and desiring for her to have a good termination is in the best interest of the child. Id. On the father, but he recognized that he could not have other hand, the presence of scant evidence relevant to unsupervised visits until he demonstrated that he could each factor will not support such a finding. Id. That is, maintain his sobriety. This factor is neutral. “[a] lack of evidence does not constitute clear and convincing evidence.” E.N.C., 384 S.W.3d at 808. With regard to the acts or omissions of the parent which may indicate that the existing parent-child relationship is not a proper one, the evidence demonstrated that Father had been addicted to methamphetamine for twenty-five years, had multiple convictions, had been absent from C. Analysis of Evidence Pertaining to Father Under G.H.’s life while in jail and in drug rehabilitation, had not the Holley Factors43 held a job since 2002, and had never provided financially G.H. was approximately fifteen months old at the time of for G.H. This factor weighs in favor of termination of the termination trial, and thus her desires were not known. Father’s parental rights to G.H. There was no evidence that G.H. was bonded to Father. This factor weighs neither in favor of nor against Father did not make excuses for his past; he accepted the termination of Father’s parental rights to G.H. role that his drug addiction had played in losing Seeid.(stating that a lack of evidence does not constitute everything he had ever loved, and he was pursuing
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sobriety through the VA’s inpatient drug rehabilitation interest finding. programs. This factor weighs against termination of Father’s parental rights to G.H. The primary evidence and testimony relied upon by the Department as supporting the finding that termination of We hold that the jury was entitled to find that the majority Mother’s parental rights is in G.H.’s best interest includes of the Holley factors weighed in favor of termination of the following: that Mother had used methamphetamine Father’s parental rights to G.H. while she was pregnant with three of her children, including G.H.; that Mother had lost patience with G.H. Viewing all of the evidence in the light most favorable to and had yelled, hollered, or threatened to slap her;45 that the best-interest finding and considering the nonexclusive Mother could not properly parent G.H. because Mother Holley factors, we hold that the jury could have had an anger problem; that Mother asked Sara to care for reasonably formed a firm conviction or belief that G.H. when they were together by getting G.H. out of the termination of the parent-child relationship between car seat while Mother got the stroller ready; and that Father and G.H. was in G.H.’s best interest, and we according to Trey on one occasion when he picked up therefore hold the evidence legally sufficient to support G.H. from Mother immediately after Mother had picked the jury’s best-interest finding. SeeTex. Fam.Code Ann. § up G.H. from daycare, G.H. had not been fed, bathed, or 161.001(2); Jordan v. Dossey, 325 S.W.3d 700, 733 changed. The Department fails to tie Mother’s past (Tex.App.–Houston 2010, pet. denied) (holding evidence methamphetamine use to the second and third Holley legally sufficient to support finding that termination of factors’ time frame of “now and in the future”—instead mother’s parental rights was in child’s best interest when focusing on Mother’s past, and the Department discounts most of the best interest factors weighed in favor of Mother’s sobriety when analyzing the parenting abilities termination). Similarly, reviewing all the evidence with factor. The remainder of the evidence and testimony appropriate deference to the factfinder, we hold that the relied on by the Department as establishing by clear and jury could have reasonably formed a firm conviction or convincing evidence that termination of Mother’s parental belief that termination of the parent-child relationship rights to G.H. is in G.H.’s best interest was provided by between Father and G.H. was in G.H.’s best interest, and family members who admitted that they had avoided we therefore hold that the evidence is factually sufficient contact with Mother, had not spent much time with her to support the jury’s best-interest finding. SeeTex. during the year preceding the termination trial, and had Fam.Code Ann. § 161.001(2); Jordan, 325 S.W.3d at 733 been horribly hurt by Mother’s past drug addiction. Their (holding evidence factually sufficient to support finding testimony was contradicted by other, non-family that termination of mother’s parental rights was in child’s witnesses who saw Mother routinely during the monitored best interest when most of the best interest factors return and did not observe this behavior by Mother. weighed in favor of termination); In re S.B., 207 S.W.3d 877, 887–88 (Tex.App.–Fort Worth 2006, no pet.) (“A We will now set forth an analysis of each of the Holley parent’s drug use, inability to provide a stable home, and factors and will set forth the evidence—in addition to the failure to comply with [a] family service plan support a above evidence—relied on by the Department under the finding that termination is in the best interest of the specific factors. child.”). We overrule Father’s sole issue.
1. Desires of the Child D. Analysis of Evidence Pertaining to Mother Under the Holley Factors44 G.H. was approximately fifteen months old at the time of the termination trial, and thus her desires were not known. *38 At the outset of our analysis, we note that the Mother testified that G.H. called her “mommy.” Hamilton Intervenors’ response to Mother’s third issue does not testified that G.H. was very bonded to Mother and that it contain an analysis of each of the Holley factors but would cause confusion for G.H. if Mother’s parental instead argues only that the best-interest finding is rights were terminated. Aunt Rhonda testified that Mother supported by the evidence of Mother’s past criminal cared for G.H. and that G.H. cared for Mother. conduct and her arrest for possession of methamphetamine prior to G.H.’s birth. As demonstrated The Department sets forth a similar analysis of the first by our analysis below, when considered in the context of Holley factor in its brief and argues that this factor weighs all of the Holley factors, the evidence relied on by the neither for nor against termination. Because evidence that Intervenors is not factually sufficient to support the best- a child loves a parent is marginally relevant to a best- © 2015 Thomson Reuters. No claim to original U.S. Government Works. 40 In Interest of G.H., Not Reported in S.W.3d (2015) 2015 WL 602585
interest finding, we hold that the factor weighs slightly Mother completed all of her CPS services and complied against termination of Mother’s parental rights to G.H. with most if not all of her probation conditions to reduce SeeIn re M.H., 319 S.W.3d 137, 150 (Tex. App.–Waco the emotional and physical danger to G.H. now and in the 2010, no pet.). future. Mother testified that she was committed to maintaining her sobriety and to working and providing for G.H. Mother vowed to not allow Father unsupervised visits with G.H. unless he demonstrated his sobriety, thus mitigating the possibility that G.H. might be exposed to 2. Emotional and Physical Needs of G.H. Now and in the danger of domestic violence. the Future In its brief, the Department points to evidence that Mother *39 Although G.H. was born one month prematurely, she had not changed because after rehab, she had spent time did not have any special needs. The evidence with her old “meth friends” (Edie, Resa, Father, and demonstrated that Mother was providing a safe place for Sara), had taken G.H. with her when she spent the G.H. to live at the Salvation Army and that Mother had weekend with Joe, a drug user and alcoholic, and had lined up future housing for her and G.H. with the Wrap– possibly consumed an alcoholic beverage at Razzoo’s. Around Program. Mother’s case aide at the Salvation Army testified that Mother gave G.H. all the nourishment The evidence established that Mother did not spend she needed and that she had never seen G.H. look uncared significant time with her old “meth friends” or with Joe for. Mother had sought out medical care for G.H. when and that she did not use drugs with them the few times she was sick and knew that she was due for a well-baby that she was around them. Although pictured on one exam the month following the termination trial. Mother occasion with a red frozen beverage in front of her at had also made sure that G.H. had regular dental exams. Razzoo’s, Mother never failed a Breathalyzer test or a The evidence further revealed that Mother showed G.H. drug test, despite random testing two times a week for affection by kissing and hugging her. Mother nurtured approximately nine months. Even Aunt Intervenor G.H. by encouraging her as she learned to walk and by testified that she did not have any proof that G.H. was in seeking out developmental activities that she could do at immediate danger in Mother’s care. We hold that this home with G.H. Mother’s case aide testified that Mother factor weighs against termination of Mother’s parental had met all of G.H.’s physical needs and had met rights to G.H. “everything the child needs from a mother.”
The Department argues in its brief that Mother cannot meet G.H.’s needs on a long-term basis and focuses on Uncle Roger’s testimony that he did not believe Mother 4. Parental Abilities of the Individuals Seeking was capable of raising a child and on Justin’s testimony Custody that he did not want to see Mother ruin another child. The record revealed that the Intervenors had been caring The Department discounts the evidence that Mother for Mother’s son J.S. since he was eighteen months old actually was meeting G.H.’s physical and emotional and that they had cared for G.H. for approximately nine needs at the time of the termination trial and that Mother months before her monitored return to Mother. A question had made changes in her life to continue providing for was raised about the Intervenors’ parenting abilities G.H. in the future. The evidence demonstrates that because they admitted that they did not report the Mother has successfully been able to take care of G.H.’s concerns they testified to at trial about Mother’s care of physical and emotional needs and has plans to obtain G.H. during the monitored return to CPS. continued financial assistance to cover the cost of housing, day care, and food to provide for G.H.’s physical The evidence demonstrated that Mother was providing a and emotional needs in the future. We hold that this factor safe, stable home environment for G.H. at the Salvation weighs against termination of Mother’s parental rights to Army and that G.H. was receiving proper nourishment G.H. and was properly cared for. Mother had completed the parenting classes required by her CPS plan and had sought out additional parenting instruction through her church. Mother no longer disciplined by spanking. Ms. Lori saw Mother several times each week and testified 3. Emotional and Physical Danger to G.H. Now and in that Mother was patient with G.H. Hamilton and Ms. Lori the Future testified that they had never seen Mother physically © 2015 Thomson Reuters. No claim to original U.S. Government Works. 41 In Interest of G.H., Not Reported in S.W.3d (2015) 2015 WL 602585
discipline G.H. but that they had seen Mother correct The Department concedes in its brief that there was G.H. by telling her “no.” Porter–Hodges had observed evidence that Mother had benefitted from the programs Mother caring for G.H. while she was sick, feeding G.H., available to her but argues that there was evidence that reading to her, playing games with her, and putting Mother had not changed. together puzzles with her. Githengu had observed Mother taking care of G.H. and said that Mother provided all the The testimony that Mother had not changed came from protection and “everything the child needs from a family members who had observed Mother’s failed mother.” attempts at sobriety in the past. The evidence established that Mother had not used drugs during the year prior to *40 In its brief, the Department, in addition to its other the termination trial, indicating that Mother had not only evidence set forth above, relies on testimony from benefitted from the programs available to her but also that Mother’s family that they had purchased groceries for she had eliminated the problem that had resulted in G.H.’s Mother. A parent’s poverty alone is not a basis for removal. We hold that this factor weighs against termination; the fact that Mother’s family had purchased termination of Mother’s parental rights to G.H. groceries for her does not show that Mother cannot parent G.H. AccordIn re J.W., 152 S.W.3d 200, 207 (Tex.App.– Dallas 2004, pet. denied) (recognizing that termination should not be used to merely reallocate a child to “better” or more prosperous parents), cert. denied, 546 U.S. 1061 6. Plans for G.H. by Those Seeking Custody (2005). Overall, the evidence established that Mother was utilizing the parenting skills that she had learned in her The Intervenors planned to adopt G.H. and to reunite her classes and was able to properly parent G.H., resulting in with J.S. if Mother’s parental rights were terminated. the trial court’s granting a monitored return of G.H. to Mother. We hold that this factor weighs against Mother testified that her future plans for G.H. included termination of Mother’s parental rights to G.H. raising her in a home that she deserved to be in; giving her the love, care, and support that she needed; trying to teach her the right ways to grow up; and bringing her to church every Sunday.
5. Programs Available to Assist Mother to Promote The Department did not dispute these plans but the Best Interest of G.H. nonetheless argues that they weighed in favor of termination, which fails to take into account the strong Throughout the case, Mother participated in every presumption that keeping a child with a parent is in the program that she was offered. She had completed all of child’s best interest. SeeR.R., 209 S.W.3d at 116. In light the services offered by CPS and was working her of that presumption, we hold that this factor weighs probation requirements, including attending NA/AA twice against termination of Mother’s parental rights to G.H. a week and submitting breath and urine samples upon demand. She had successfully completed inpatient drug rehabilitation at the VOA Light Program and had voluntarily chosen to do further treatment at the Salvation Army. While at the Salvation Army, she took advantage 7. Stability of Proposed Placement of all of the programs they suggested, including those offered at Cornerstone. Mother had lined up future The evidence revealed that the Intervenors had lived in housing with the Wrap–Around Program and had utilized their home for two years at the time of the termination the day care subsidies provided by CPS, which would trial and that they could provide a stable home for G.H. continue for six months after the case was closed and could be extended indefinitely as long as she completed *41 The evidence revealed that Mother also could provide paperwork and continued working. At the time of the a safe and stable home for G.H. at the Salvation Army termination trial, Mother was attending her church’s and that she had lined up safe and stable future housing programs on parenting. At the conclusion of the trial, with the Wrap–Around Program. Brager testified that she was willing to continue working with Mother and to put additional programs and a safety The Department focused in its brief on Mother’s plan in place to ensure that Mother would maintain her probation, on her prior incarceration, and on the amount sobriety and be able to care for G.H. of back child support that Mother owed the Intervenors for J.S.
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evidence pointed to by the Department does not constitute Although Mother was on probation, her probation officer clear and convincing evidence that the parent-child testified that Mother was in compliance with the relationship between Mother and G.H. is improper. We conditions of her probation. Any testimony that Mother hold that this factor weighs against termination of would not be able to provide a stable home—due to her Mother’s parental rights to G.H. probation or her prior incarceration—was conjecture based on Mother’s past and did not take into account the stability that she had achieved as a result of her sobriety. Moreover, Mother testified that child support was deducted from her pay check, and based on her boss’s 9. Excuses for Mother’s Acts or Omissions testimony that he expected her employment to continue, there was no evidence that Mother’s child support *42 Mother admitted that there was nothing right about obligation for J.S. would prevent her from providing a the things that she did when she was using stable home for G.H. We hold that this factor weighs methamphetamine. She admitted that it was “not the right against termination of Mother’s parental rights to G.H. way of thinking” when she believed that she was protecting her children by having them use drugs with her rather than using on the streets or with other people. Mother said that continuing to use drugs was nobody’s fault but her own. Mother thus took responsibility for the 8. Mother’s Acts or Omissions that Indicate that the acts and omissions that had caused G.H.’s removal, and Parent–Child Relationship is Not Proper she changed her life. Although the Department asserts that because mother offered no excuses, this factor weighs Mother did not deny that she was not a good parent while in favor of termination, we hold that Mother’s refusal to she was a drug addict; she openly testified regarding the offer excuses for her past behavior and her focus on abuse that she had inflicted on Justin, Dustin, and Trey maintaining sobriety in the future weighs against when they were growing up; the domestic violence that termination of her parental rights to G.H. AccordIn re they had witnessed; her use of drugs with them; her use of R.W., No. 01–11–00023–CV, 2011 WL 2436541, at *10 drugs while pregnant; and her criminal convictions. The (Tex.App.–Houston [1st Dist.] June 16, 2011, no key difference at the time of the termination trial was that pet.)(mem.op.) (holding that because mother offered some Mother had utilized all of the programs available to her excuse for her failure and made some effort to improve through CPS and through the probation department to the living situation for her children, factor weighed become sober and to learn how to be a proper parent, that against termination). Mother had eliminated the root of the problem that led to G.H.’s removal, and that Mother had earned the monitored return as a result of her lifestyle changes.
In its brief, the Department focuses on the evidence set 10. Other Evidence forth previously and additionally argues that Mother had exposed G.H. to domestic violence while she was Because the Holley factors set forth above are not pregnant with G.H. Mother vowed to not allow Father exhaustive, other evidence may be considered. SeeE.C.R., unsupervised visits with G.H. unless he demonstrated his 402 S.W.3d at 249; C.H., 89 S.W.3d at 27. Here, the sobriety, thus mitigating the possibility that G.H. might be evidence demonstrated that Mother overcame obstacles exposed to the danger of domestic violence. Moreover, that had plagued her for most of her life, including drug the other evidence that the Department points to was addiction, unemployment, unsafe housing, domestic derived from family members who refused to violence, and utilizing improper discipline techniques. acknowledge the possibility that Mother’s lifestyle Her progress in these areas was measured by employees changes were permanent because the changes had not of CPS, the probation department, the VOA Light continued long enough to convince the family members of Program, and the Salvation Army’s S.T.A.R.T. a lasting change. Before they would believe that Mother Program—all of whom are experts trained in evaluating had changed and could parent G.H., the family members the likelihood of the parent’s continued success and the wanted Mother to demonstrate sobriety for longer than risk to a child posed by the parent. In this case, the experts two years, to hold the same job for five years, and to own determined that Mother had demonstrated a pattern of her own home and car—none of which are required under success in completing her CPS plan and in abiding by her the family code.46 When Mother’s sobriety and lifestyle probation conditions, that the likelihood she would changes are viewed in light of the statutory timeframe, the continue to succeed was high, and that the risk to G.H.
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upon return had been minimized. Moreover, the support of its finding that termination of Mother’s Department did not seek termination of Mother’s parental parental rights to G.H. was in G.H.’s best interest rights to G.H. at trial and was willing to continue to work included evidence that Mother had a past history of drug with Mother to put additional safeguards in place to use, criminal convictions, and child abuse; that while she ensure her future success. was pregnant with G.H., Mother had used methamphetamine and had endured domestic violence; and that during the monitored return, Mother had been in contact with and occasionally had taken G.H. around her old friends and Father, who were drug users. 11. Factually Insufficient Evidence to Support Best– Interest Finding We have given due consideration to the evidence that the jury could have credited in support of its finding that Viewing all of the evidence, no reasonable factfinder termination of Mother’s parental rights to G.H. was in could form a firm belief or conviction that termination of G.H.’s best interest. Nonetheless, we conclude that the Mother’s parental rights to G.H. was in G.H.’s best disputed evidence that a reasonable factfinder could not interest. The disputed evidence on whether termination of have credited in favor of the finding is so significant that Mother’s parental rights was in G.H.’s best interest is a factfinder could not reasonably have formed a firm such that a reasonable factfinder could not have resolved belief or conviction that termination of Mother’s parental that disputed evidence in favor of its finding. SeeJ.F.C., rights to G.H. was in G.H.’s best interest. Given the 96 S.W.3d at 266. The disputed evidence that a strong presumption that a child’s best interest is served by reasonable factfinder could not have credited in support of maintaining the parent-child relationship and given the its finding that termination of Mother’s parental rights to high evidentiary standard that the Intervenors must meet, G.H. was in G.H.’s best interest included evidence that we hold that the evidence is factually insufficient to G.H. was very bonded to Mother; that since G.H. was defeat the strong presumption that G.H.’s best interest is returned to Mother, Mother had provided safe, stable served by maintaining the parent-child relationship housing to G.H. and had lined up future housing; that between her and Mother. SeeR.R., 209 S.W.3d at 116; Mother had provided proper health and nutritional care to H.R.M., 209 S.W.3d at 108; In re J.P., No. 02–10–00448– G.H.; that Mother understood G.H.’s developmental CV, 2012 WL 579481, at *9 (Tex.App.–Fort Worth Feb. needs and had asked the day care for tasks she could do at 23, 2012, no pet.)(mem. op. on reh’g) (holding evidence home with G.H.; that Mother had worked all of her CPS factually insufficient to support best interest); In re N.A., services; that Mother had successfully completed No. 02–10–00022–CV, 2010 WL 3834640, at *11 inpatient drug rehabilitation; that Mother had successfully (Tex.App.–Fort Worth Sept. 30, 2010, no pet.)(mem.op.) completed aftercare treatment; that Mother had been (same). We therefore sustain the portion of Mother’s third drug-free for a year at the time of the termination trial; issue challenging the factual sufficiency of the evidence.47 that Mother had never had a positive drug or alcohol screening with the Salvation Army or the probation department; that Mother was in compliance with the conditions of her probation; that Mother had secured full- time employment and that her boss expected her V. CONCLUSION employment to continue; that Mother had a support system, including a mentor who was dedicated to helping Having overruled Father’s sole issue, we affirm the trial Mother succeed as a parent and who was dedicated to court’s judgment terminating his parental rights to G.H. protecting G.H.; that Mother would continue to be Having sustained the portion of Mother’s third issue monitored during the remaining four years of her five- challenging the factual sufficiency of the evidence to year probation; that Mother had taken responsibility for support the best-interest finding, we reverse the portion of her past conduct and was dedicated to maintaining her the trial court’s judgment terminating Mother’s parental sobriety; that there was no evidence that Mother had ever rights to G.H. and remand the case to the trial court for a physically disciplined G.H.; that there was no evidence of new trial. neglect or abuse seen by those who saw G.H. frequently; that during the monitored return, no one had filed an emergency motion to remove G.H.; and that according to Aunt Intervenor, G.H. was not in immediate danger in Mother’s care. DAUPHINOT, J., filed a concurring and dissenting opinion. *43 The evidence that the jury could have credited in © 2015 Thomson Reuters. No claim to original U.S. Government Works. 44 In Interest of G.H., Not Reported in S.W.3d (2015) 2015 WL 602585
MEIER, J., concurs without opinion. to support the jury verdict and the trial court’s termination of the parental rights of both parents, I respectfully dissent LEE ANN DAUPHINOT, JUSTICE, concurring and from the majority’s decision to reverse the trial court’s dissenting. judgment and to remand for a new trial as to Mother.
Because I believe that the evidence is factually sufficient
Footnotes 1 SeeTex.R.App. P. 47.4.
2 See Tex.R. Jud. Admin. 6.2(a) (requiring appellate court to dispose of appeal from a judgment terminating parental rights, so far as reasonably possible, within 180 days after notice of appeal is filed). 3 Although the Department supported Mother at trial and requested that she be named G.H.’s possessory conservator, on appeal, the Department has filed briefs supporting the trial court’s judgment terminating Mother’s and Father’s parental rights to G.H. Mother has filed a “Motion To Strike State’s Response Brief,” and the Department has filed a response. We decline to strike the Department’s brief and overrule the “Motion To Strike State’s Response Brief,” but throughout the opinion, we will set forth the various positions taken by the Department. G.H.’s guardian ad litem stated in a letter to this court that he agrees with and supports the briefs filed by the Department. 4 Pursuant to Texas Rule of Appellate Procedure 9.8(b), we refer to Mother’s minor children by aliases.
5 Mother said that she had a hard time remembering things and that it might be due to her past drug use.
6 Mother admitted that she had several prior CPS cases but had never been ordered to go to drug rehabilitation.
7 While Mother was on drugs, she never tried to find a job outside the home; she babysat her sisters’ children and other people’s children or was supported by her husband or her boyfriend at the time. 8 Although “probation” is now referred to as “community supervision,” see generallyTex.Code Crim. Proc. Ann. art. 42.12 (West Supp.2014), we use the term “probation” throughout the opinion because that is the term used in the record. 9 Mother said that she used daily until she went to inpatient rehab on June 27,2013.
10 Mother testified that she was not married to Father, that he was the father of her son J.S. and G.H., and that she had lived with Father off and on when J.S. was conceived and later before she went into inpatient rehab. 11 The S.T.A.R.T. Program is a six-month program for employable mothers who are either coming out of rehab or off the streets. 12 Mother testified that she did not have a car.
13 When Mother went to the Salvation Army, she was working ten to fifteen hours per week at the Dollar Tree, which was not enough to survive on. 14 Mother did not have to pay to live at the Salvation Army.
15 Mother said that she was utilizing the free day care provided by CPS, which would last for six months.
16 Mother said that $139 is taken out of each pay check for child support.
17 Hamilton explained that Mother previously had the appearance of a meth addict and would not have been able to work in customer service; in the past year, she had gotten her teeth fixed, had obtained appropriate clothing, and had kept © 2015 Thomson Reuters. No claim to original U.S. Government Works. 45 In Interest of G.H., Not Reported in S.W.3d (2015) 2015 WL 602585
her hair combed. 18 Brager said that if Mother completed paperwork after the protracted day care expired (six months after the case is closed), Mother would go to the top of the list to continue day care as long as she was working. 19 At the time of the termination trial, Mother had completed one year of her five-year probation term.
20 Porter–Hodges testified that a child’s shots must be up to date; otherwise, the child would not be allowed to stay at the Salvation Army. 21 This program was also referred to as Community Enrichment.
22 Ms. Lori testified that she had abused alcohol off and on for approximately twenty years and that she had used some “partying drugs” in her twenties but was never a drug addict. 23 Ms. Lori said that the Salvation Army offered the program at Cornerstone and that Mother had taken every opportunity that the Salvation Army had offered. 24 Dustin also said that when Mother was not high, she seemed like a good mother; she seemed like she cared and tried to do what she could for him. 25 Justin did not identify what Mother had gone to prison for, but he later testified that he knew that Mother had used someone else’s credit cards and that she had been convicted for that. 26 Justin said that he had not been redeemed; he said that he dealt with the pain inside of him by drinking at least three times a week, sometimes to the point of blacking out. 27 The following testimony contains numerous inconsistencies, reflecting the testimony given before the jury.
28 Trey did not believe Mother’s allegations that his paternal grandfather had sexually molested him because his grandfather had been there for him since he was little. Trey believed that Mother had made up that excuse to explain why she had started using drugs. Trey said that Mother also said that she had started using drugs when he was removed but that was not the truth because she was already using drugs when he was removed. 29 Trey testified that he had never seen Mother use methamphetamine because she had never used in front of him. He had only seen pipes when Mother and Dustin lived with him. 30 Trey said that his probation was related to the juvenile matter that happened with Mother.
31 When asked on cross-examination about his prior testimony that Mother loses patience all the time, he said that examples are Mother’s beating him; Mother’s getting angry and taking it out on other people; and Mother’s screaming, hollering, and cussing. 32 Trey turned nineteen years old on April 20, 2014.
33 The record does not contain any records to substantiate Trey’s testimony that a CPS case was filed with him as the victim of a beating by Mother in June 2013. The Department’s petition reflects that the last CPS case in which physical abuse of Trey was alleged to have been inflicted by Mother was filed in November 2011; the allegation was ruled out. 34 Trey said that he knew that Father was no longer in possession of the house.
35 Uncle Intervenor testified that he had known Aunt Intervenor since she was fourteen years old and that they had dated back then. 36 Uncle Intervenor said that he and Aunt Intervenor lived in a two-story brick house and that G.H. had her own bedroom when she lived with them.
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37 She thought that Aunt Rhonda had asked if G.H. had been to the doctor and to the dentist.
38 When asked whether she thought it was emotionally damaging for G.H. to be around Joe, Aunt Intervenor said that she had never met Joe. 39 Father testified that he was a veteran who had served in 1974.
40 Father admitted that he had several felony convictions, including for burglary, theft, fraud, and one drug offense.
41 Father testified that he had seen G.H. “quite a few times” since the hearing in February 2014 when G.H. was returned to Mother. He said that a few times he met her at the CPS office, and the rest of the times were at the Salvation Army. 42 To the extent that Mother argues that the Interveners were required—because they had also pleaded standing under section 102.004(b)—to show satisfactory proof to the court that there is a significant risk of impairment to the child and to obtain leave to intervene, Mother has not cited any case law, nor have we found any, demonstrating why the Intervenors would be required to meet both a general standing requirement and a more specific standing requirement like that found in section 102.004(b). CompareTex. Fam.Code Ann. § 102.003(a), with id.§ 102.004(b). Nor does section 102.004(b) contain mandatory language requiring the Interveners to meet more than one standing requirement. See id.§ 102.004(b).
43 The Department argues that Father did not preserve his legal and factual sufficiency complaints. However, Father timely filed a motion for new trial, challenging both the legal and factual sufficiency of the evidence to support the termination of his parental rights. 44 Because Mother did not raise a legal sufficiency complaint in the trial court, we overrule the portion of her third issue challenging the legal sufficiency of the best-interest finding and conduct only a factual sufficiency analysis. SeeIn re D.J.J., 178 S.W.3d 424, 426–27 (Tex.App.–Fort Worth 2006, no pet.)(citing T.O. Stanley Boot Co. v. Bank of El Paso, 847 S.W.2d 218, 220–21 (Tex.1992.); Cecil v. Smith, 804 S.W.2d 509, 510–11 (Tex.1991)). 45 With regard to the allegations that Mother had yelled, hollered, or threatened to slap G.H., we note that these are not grounds for termination. The few instances when this behavior occurred are detailed in the factual section above, and Sara testified that Mother did not actually slap G.H. Moreover, Aunt Rhonda, who transported Mother and G.H. on Saturdays, said that Mother talked to G.H. but did not testify regarding any yelling or hollering or threatening to slap G.H., nor did the other witnesses who had interacted with Mother and G.H. on a weekly basis. 46 The termination statutes do not require a parent to demonstrate that changes have been maintained for two years or longer. SeeTex. Fam.Code Ann. § 263.401(b) (West 2014) (providing that the maximum time a termination case can be open is one year and 180 days). As stated in closing, “In a year’s time[,] you can only do a year.” If the changes that Mother made during the time that she was allowed are ignored simply because they were not maintained for a longer period of time, then every parent who had a child removed by the Department could have her parental rights terminated upon removal, and there would be no need for a service plan. 47 Because our holding on Mother’s third issue is dispositive, we do not address her first or fourth issues. SeeTex.R.App. P. 47.1 (stating that appellate court need only address every issue necessary for final disposition of the appeal); In re C.T.E., 95 S.W.3d 462, 469 (Tex.App.–Houston [1st Dist.] 2002, pet. denied) (declining to address father’s other issues after holding evidence factually insufficient to support best-interest finding).
End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 47
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in the Interest of G.H., a Child, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-the-interest-of-gh-a-child-texapp-2015.