### TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03
- 21
- 00617
- CV

C. C. , Appellant

v. Texas Department of Family and Protective Services , Appellee

FROM THE 146TH DISTRICT COURT OF BELL COUNTY NO. 313,975
- B , THE HONORABLE JACK WELDON JONES , JUD G E PRESIDING

C O N C U R R I N G A N D D I S S E N T I N G O P I N I O N

I respectfully dis sent in part from the C ourt ’ s holding

. I concur that the evidence
before the associate jud ge in this case is legally sufficient to find that termination o f Mother ’ s parent

- child relationship is in the best interest of the child , but I dissent from the C ourt ’ s holding
that the evidence is factually in sufficient to find in the best interest of the child

. From the record
before th e C o urt , I believe t he asso c i ate judge could have reasonably formed a firm conviction
that it was in the child ’ s best interest that M o ther ’ s parent

- ch ild relationship be terminated. I

wo uld affirm the trial court ’ s final order of termination of Mot her ’ s parent

- child rel atio nship

.

All termin a t ion cases are trag ic, but t he present case is tragic above and beyond
many termination suits in that a severely disabled , special

- needs ch ild ’ s future hang s in the
balance. Th e child is non
- verbal and not able to protect herself

. The child a t age fifte e n at
conclusion of the proceedings below is close to aging out of the child

- welfare system and is2

in greater urgency than many children who pass through termination proceedings

. The b est
interests inquiry is child

- centered. The questi on at th e trial cou rt and now o n appeal is the point
at which reun i f

ication of parent a n d child pass es the poin t of no return

. In this case, it seemed
th at it was no t until after the tr ial began.

The Departmen t began Family Based Safety Services December 19, 201 9,
after r eceiving neg lectful

- supervision alleg ation s , in c lu ding that M other was absent from her
h om e and child , M other was u sing methamphetamine , M o ther ’ s former boyfriend ( and cur rent

roommate ) was watching the child while M other wa s absent, and M other had fallen asle ep while driving with the child as a pa ssen g er
. Mother was ordered to participate in individual therapy at
least two ti mes per month , comp lete parenting classes, and participate in drug testing. A few days after the services began , a Depar tment wo rke r attempted to contact Mother , but found only

t h e chi ld at home with the former boyfriend/roomma te

.

After Mother ’ s Januar y 16 , 202 0 pos itive methamphetamine drug t est and
Mo ther ’ s admission to smoking methamphetamine at 2:30 a.m. on or about Ja nuary 21, 2 020,
when sh e left the residenc e and child to s m oke at a friend ’ s h om e in Temple, Texas, t he Depar tment filed it s January 23 petition seeking to appoint the Department as m anaging

c ons ervator and find that appointmen t of either parent as managin g conservat or would sig nificantly impair t he child ’ s physi c al health an d em oti onal develop ment. The Departmen t sought appro ximately fourteen dif ferent temporary orders but did not requ est t ermination of the parent

- child relationship until it fi led its ame nded petiti on November 17 , 2020, seeking to
terminate M o th e r ’ s parent al rights and alleging six ground s
.

The trial court called this case for trial March 31, 2021 , after extending the court ’ s jurisdict ion 1 80 days for Mother to complete a rehabilitation program . T he court the n reset the3

case t hre e times for va r ious reasons, including to allo w Mother to complete a segmented hair drug test that she never took , and becaus e a De partment witness was unav ailab le at another setting

. The fi nal hearing occurred July 21.

The De partme nt called Jessica Jones, the case ’ s conservatorship worker

. Jones
testified that the initial rem oval had occurred after a F amil y Based Safety Services case r evealed that Mother was exhibiting continued substance abuse and testing po sitive for m ethamphetam ine

. Rega rding Della ’ s father, Jone s testified th at he was in carcerated at the time of removal an d had

a n estimated 2032 release date

. Jo nes testified that as of Jul y 5, M other was homeless , Jones di d
not know where M o ther was livin g or stayin g , Mother wa s not testing c onsistently but had a positive drug test for methamphetamine May 21 , and M other had not successfully completed her
individu al therapy and was discharged from two therapists for not taking it seriously and not
consisten tly attendi ng
. Mother had , how ever, completed paren ting c l asses and provided items
for Della. Jones testifie d that in

- person visits stopped after the May 21 po sitive drug test and had
not resumed because Mother had not tested since May 28, 2021 , when Mot her mistake nly
showed u p to t est after she missed her te st i ng day on May 24

. Jones stated that the Departm ent ’ s recommendatio n was termination of parental rights , which was in Del la ’ s b est interest ; that
Mo ther was denyi ng a potential drug relaps e as of M ay 2021 ; an d that Mo the r did not have safe, stable housing as of July 5, 2021. She testifie d that the Departm ent ’ s pl ans were to send

out referrals for potential adoptive homes for Della and “ from my unders tanding there have b een possible homes for her in the past , ” and sh e add ed, “ hopefully , we would be able to work with
th e facility where she ’ s currently placed and the child p lacement unit to hopefully find her a long

- term resource who can meet her needs. ” In response to the ch ild ’ s attorney ad li tem ’ s4

quest ioning , Jones test ified that by termination the Depar t ment hoped “ to find permanency and an adoptive resource fo r Della ” and “ prior searches ” had indica ted “ possible returns for her. ”

M other testi fied that Jones ’ s testimony “ sounds really bad ” but t hat she d id not

a gree w ith the statement that she is a “ dr u g addict ” but , rather, has “ had some very unfortunate luck, really, an d i t just has crippled me right at the mo ment. ” She went on to say , “ I don ’ t have

a reliable ride and a re l iable place to stay right now, and w ork is difficult too , right now , ” and
tha t her car had been repossessed. The Department ’ s attorney asked Mot her when she last used methamphetamine , to which Mother replied , “ It has been 15 , 16 weeks. ” M other acknowledged
that he r May 21 drug test c ontradicted that state ment, saying, “ I don ’ t kn o w how it was a
pos itive, but I ’ ll take it as a positive

. ”

The gu ard ian ad litem acknow ledged that Mother ha d not carried out order s from
the c our t, that the court “ told [Mother] to go ha i r test a nd she didn ’ t , ” and tha t she “ totally get [s] why the Depar t ment is asking what they ’ re asking. ” She fu rther stated that , but for the f act that an adoption placement for D ella had not been found , she “ woul d jum p on t he termination train. ” The guardian ad l item contin ued , “ in t he year and a half that we ’ ve had th i s case [ M other ’ s ] really not made any progres s
. ” The attorney ad litem did not recommen d termination as being in
the child ’ s best interest , notwithstanding the father ’ s being in prison until 2032

. H e argued that

“ the ch ances of this child being able to be adopted are virtually zero ” and opined that termination

wou ld “ leave this child a ward of the state

. . . with no possibility of an adoption

. ”

An exhibit before the trial court showed that Mo ther had a negl ectful

- super vision
case in Marc h 2010 that re s ulted in termination o f he r parental rights to her two six

- mon th old
twins after two older siblings were playing in a dangerous area without a dult supervision and
M o ther tested pos itive for cocaine a nd marijuan a while Fath er broke a window an d caused5

brok e n glass to fall on a four

- y ear
- old child. Another exh ibit sh owed that in September 2019, Mother was po sitive for methamphetamine and amphetam ine , and she admitte d to using an

e cstasy pill th e day be fore she me t with a D ep artment investigator. Mother rep o rted she started using methamphetamin e in March 2019, and she took an ecstas y pill every day for forty

- five days in a row.
A fter being court

- ordered to submit t o rand om weekly drug testing , M other
had app rox imately twen ty

- eight missed dr ug scree ns which the Department deemed

“ missed positive s

— one positive t est for metha mphetamine, one positive test for amphetamine,
four positive tests for methamphet amine and amphetamine and one positive hair follic le
for amp hetamine. M o ther ’ s March 10, 202 0 psychologic a l evaluat ion dia gnosed her with Ampheta mine

- t ype Substance Use Disor der, Severe; Post

- Traumatic Stress Disorder; Adjustment
Disorder with Mixed Distu rb ance of Em otions and Conduct ; Cannabis Use Diso r der, Moder ate,
in sust ained remission; and Alcohol Use D i s order, Severe, in sustained remission

. Mother underwent a comprehe nsive psychiatric evaluation March 12, 2020 , which diagnosed her with ( 1) M ethamp hetamine use disorder , severe, reportedly in earl y remission and ( 2) Adj ustment
Disorder with depression a n d anxiety

. The psy chiatrist stated, “ Cert ainly the possibility of ongoing , covert amphetamine

- like substan ce use disorder remains in the differenti al di agnos is, as synthetic bath salts would not be revealed b y routine ur ine drug testing. ”

Shannen Wilso n , a Department c onservatorship worker , testified that Mother
admitt ed to her on January 1 5, 202 0, dur ing a scheduled h ome visit , that about two and one
- half weeks earlier she had used methamphetamin e
. Mother shared her r esidence with Joseph Roberts,
her f o rmer boyfriend and pre sent

- day roomma te, who told Wilson tha t he w as Della ’ s primary
caretaker. Mother told Wilson that she drove c ustomers as an Uber driver while under the6

influence of methamp he tamine

. In a n u nannoun ced home visit January 21, 2020, M o t her told
Wilson that she had left her resid ence to smoke methamphe tamine at a friend ’ s home

. Rober ts
had been unaware of Mother ’ s absen ce o r drug use. Mother also admitte d to using drugs the day
bef ore the visit.

Del la ha d medical needs that “ must b e addressed and had not been by her
mother

. ” Della had a cyst on the back of her head that was fo und in 2012 and was last checked
in 2017 , but Mother had not had it checked since

. Della report edl y n eeded corre ctive eye gla sses, but M other does not believ e that s he needs them, and Dell a has a possible curvature of her spine forming that Mother had identified but for which she ha d not scheduled an appointment. Della has been reported ly left by Mo ther i n t he care of a non
- re l ated household member.

The Supr e m e Court of Texas has held that in factua l

- sufficien cy review of termination findings , the standard is “ whether t he evidence is such that a factfind er could reasonably form a firm belief or conv iction abou t the truth of the State ’ s allegations. ” In re C. H

. , 89 S.W.3d 17 , 25 ( Tex. 2002 )

. Howe ver, the Court also noted that “ [ a ] n appellate court ’ s review
must not be s o ri gorous that the only factfindings that could withstand review are those
estab lishe d beyond a r easonable do ubt , ” and tha t “ [w] hile parental r ights are o f constit utional magnitude , they are not absolut e. ” I d. at 26

. Children ’ s em otional and physical in terests are not to be sacrificed merely to preserve parental rights. Id.

The s uprem e c ourt stat ed in C.H. t hat despite “ the c ourt of appeal s ’ conclusion that the foster family ’ s failure to testify ‘ unnecessarily infer s that they were not con sidering or
i ntending t o adopt C.H , ’ ” the “ Family Code provides that a cou rt may a pp oint the Depart ment as

a c hild ’ s manag ing cons ervator upon termination

. ” Id. at 28 (citing Tex. Fam. Code § 161.207 ).
The supreme court continued ,7

Evidence abou t placement plans and adopti on a re, of course, relevant to best interest. However, the lack of eviden ce about definit ive plans for p ermanent placement and adoptio n ca nnot be the disposi tive factor; otherwise, determinations regardi ng best interest would regularly be subject t o reversal on the sole ground that an adoptive family ha s yet to be located . Ins tead , th e inquir y i s w hether , o n the entire record, a fac tfin d er could reasonably form a firm convic tion or belief that termination of th e par ent ’ s rights would be in the chil d ’ s be st interest

— eve n if the agency is unable to i dentify with precision the chi l d ’ s fut ure ho me en vironment.

I d. Amo ng the best

- interest fa c tor s, s ome considerations may be relevant to the child ’ s best
inter est , but not all must be prov ed , and the list is not exhaustive as a p redicate to termination of the parent

- ch ild re la tionship. Holley v. Ad ams , 544 S.W.2d 3 67 , 372 ( Tex. 1976)

. “ The abs e nce of evidence about some of the se co nsiderations would not pre c lude a factfinder f rom reasonably forming a stro ng conviction or belief that termination is in the child ’ s best interest , particu l arly if
the eviden ce were undi sputed that the parental relat i ons hip endangered the safety of the child. ”
C.H. , 89 S.W.3d at 27

.

Many c ourts have held that a parent ’ s decision to possess and use narcotics
condemns the parent ’ s child to a life of un certaint y and p oss ible lo ss
. See , e. g. , L.D.

- C. v.
Texas Dep ’ t of Fam. & P rotective Servs. , No s
. 03

- 18

- 00115

- CV & 03

- 18

- 0 0 116

- CV , 2018 WL 2976339, at * 2 (Tex. App.

— Austin Jun e 14, 2018, no pet. ) (mem. op.). Th e pare nt risks arrest,
incarceration , and cri minal prose cut ion for dru g possession and subje cts the child t o risk of neglect and endangerment. The fact that the child does not suffer ph ys ical harm does not negate
the ri sk and danger.

In the prese n t case, the guard ian ad litem and attorney a d litem seemed to ba s e their opi nions and re commendations on t he possible adop tability of the ch ild. The trial court had
evidence before it on adoptability that it could have chosen to accept a nd believe

. Ca s elaw also8

tells us that this sole factor is no t dispositive on best interest o r necessari l y overriding of o t he r best

- interes t factor s that the court considers

. The trial court had discretion and appear s to h ave given weight to Mother ’ s continued use of m ethamphetamine , even after the t e r mination trial began. The trial c ourt appear ed to have a ttempted to avoid termination of M o ther ’ s parent

- child
relat ionship until it becam e apparent to the trial court that M other ’ s methamphetamine problem
ran the cour se of this case and was not goi ng to end even after a rehabilitation pr ogram and t he beginning of trial.

I w ould , accordingly, affirm the trial court ’ s termi nation order. 1

__________________________ ________________ Thomas J. B aker , Jus tic e Before Justic e s Baker, Kelly, an d Smith
Filed: May 20, 2022

1 Because neither party raised the issue of the decree ’ s provisions allowing Mother continued visita tion , the i ssue is not before us.