In the Interest of C.G.G. v. the State of Texas ( 2023 )

In The
Court of Appeals
Ninth District of Texas at Beaumont
________________
NO. 09-23-00108-CV
________________
IN THE INTEREST OF C.G.G.
________________________________________________________________________
On Appeal from the 1A District Court
Tyler County, Texas
Trial Cause No. 25,800
________________________________________________________________________
MEMORANDUM OPINION
Mother appeals the termination of her parental rights to Cade. 1,2 In three issues
on appeal, Mother argues the evidence is legally and factually insufficient to
1
The child’s father did not file an appeal.
2
We refer to the appellant as “Mother” and her child by a pseudonym to
protect their identities. See Tex. Fam. Code Ann. § 109.002(d); Tex. R. App. P.
9.8(b)(2).
1
terminate her parental rights under sections 161.001(b)(1)(D), (E), and (P) of the
Texas Family Code. Tex. Fam. Code Ann. § 161.00(b)(1)(D), (E), (P).3 We affirm.
I. Background
A. Pretrial Proceedings
In September 2021, the Department of Family and Protective Services (the
Department) filed an Original Petition for Protection of a Child, for Conservatorship,
and for Termination in Suit Affecting the Parent-Child Relationship. In its Affidavit
in Support of Removal the Department alleged that on August 29, 2021, Mother
gave birth to Cade, and that subsequently it received a report from the hospital,
which according to the affidavit of removal states:
Corbin tested positive for amphetamines and methamphetamine at birth
and is currently in NICU due to withdrawals and being unable to eat
properly. Mother, [ ], did not receive full prenatal care. Mother and
child both tested positive at birth for methamphetamine and
amphetamines in their urine. Mother also tested positive for
buprenorphine. 4
3
Mother does not challenge the trial court’s finding that termination of her
parental rights was in the child’s best interest. See Tex. Fam. Code. Ann. §
161.002(b)(2).
4
The trial court took judicial notice of its file, specifically all orders within
the file, “as to the parents’ respective service plans, excepting any and all hearsay in
both plans.” “The record does not reflect that the affidavit of removal was offered
into evidence at trial or judicially noticed by the trial court. Nevertheless, because it
was evidence that could have been considered by the trial court in support of its
finding that [the child] was removed based on abuse or neglect ... we include it for
the purpose of providing background and context for this opinion.” In re K.N.D., No.
01-12-00584-CV, 2014 WL 3970642, at *2 n.2 (Tex. App.—Houston [1st Dist.]
Aug. 14, 2014, no pet.) (mem. op. on reh’g) (citing In re E.C.R., 402 S.W.3d 239,
240–41 (Tex. 2013)).
2
The Department’s affidavit also states that Mother admitted injecting
methamphetamines while she was pregnant with Cade. The Department noted
that Mother was prescribed buprenorphine for past methamphetamine use.
Finally, the Department alleged that Mother told the caseworker that Cade “is
not withdrawing from Methamphetamine use because people do not withdraw
from methamphetamine use.” The NICU nurse stated that Cade was suffering
from methamphetamine withdrawals.
On September 15, 2021, the trial court signed an Order for Protection
of a Child in an Emergency and Notice of Hearing, granting the Department
temporary sole managing conservatorship of Cade.
B. Evidence at Trial
In March 2023, the trial court held a one-day bench trial. Mother appeared
with her attorney and announced ready for trial.
1. Caseworker Jasmine Lyons
Jasmine Lyons testified that she is the Department caseworker for this case.
According to Lyons, Mother admitted to heroin use at the beginning of the case. She
stated that, after Cade was removed from Mother’s custody, the Department created
a service plan for Mother that was signed and filed with the trial court. She testified
Mother understood the requirements under her service plan to have Cade returned to
her care. The service plan required Mother to obtain and maintain housing, obtain
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and maintain a source of income, have a transportation plan, take parenting classes,
undergo random drug testing, complete an ADAC assessment or substance abuse
assessment, address her physical health, and “follow all general rules and
guidelines[.]” Of the assigned tasks under the service plan, Mother did complete
some requirements including providing a home address, which the caseworker notes
was not verified before trial, and some proof of income. Before that time, Mother
had provided partial address information or stated that she was living in a motel. For
the proof of income, Mother provided an unemployment check from Massachusetts,
but Massachusetts could not verify the information provided, and the caseworker did
not verify that Mother ever worked in Massachusetts. Mother also completed her
psychosocial evaluation but was discharged from the recommended counseling due
to lack of participation.
Lyons agreed that because drugs were a concern when Cade entered the
Department’s care, it was very important for Mother to address any drug usage.
Mother went to a residential treatment center based on the recommendation that she
receive drug treatment. The caseworker received no complaints about Mother’s
behavior at this treatment center until she left the center. Lyons described the
feedback from the treatment center as “positive[,]” testifying that Mother was
constantly improving. But Mother was allowed a home visit and informed Lyons
that she was discharged after the home visit for “[i]ssues with staff.” After leaving
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the residential treatment facility, Lyons discussed with Mother about going into
another ADAC assessment program, but Mother never did enter another program.
Lyons testified that Mother never told her that she was attending any Narcotics
Anonymous meetings or Alcoholic Anonymous meetings. Lyons testified that, as of
November 2021, she requested that Mother provide the Department with two drug
tests a month. She testified the requirement remained in place through the trial.
However, Mother didn’t comply with the requirements, appeared intermittently, and
completed just three months of drug testing with a positive drug-test result in
December 2022. When informed of the December 2022 test result, Mother asked
whether “the levels [were] lower?”
Lyons testified that visits between Mother and Cade were appropriate and that
it was clear she loves her child. Lyons testified that, in her opinion, it would be a
danger to Cade’s physical health or safety were he to be returned to Mother. Lyon
also testified, based on the concerns that existed about Mother's drug use and how it
would affect Cade, Mother’s parental rights should be terminated.
2. Dr. Anisha Amin
Dr. Anisha Amin testified that she is a licensed psychologist. Dr. Amin
performed a psychological evaluation on Mother which included a clinical
interview, IQ test, and achievement testing. Dr. Amin’s explained her evaluation
involved a complete survey of Mother’s personality and emotional functioning as it
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relates to Mother’s mental status. For instance, Dr. Amin testified that a true and
false survey that Mother completed showed that Mother, according to Dr. Amin, was
not “really forthcoming about her shortcomings or any problems that she had.”
Based on the tests Dr. Amin gave Mother, the records she reviewed, and
Mother’s clinical interview, Dr. Amin concluded that Mother has a “definite mood
disorder, depression, anxiety, PTSD based on her history, drug abuse, borderline
intellectual functioning, and an unspecified personality disorder.” Noting Mother’s
drug use in particular, Amin explained that Mother uses drugs to “heighten” her
mood disorders, which come in “valleys and mountains.” Amin stated that Mother
is using the drugs to elevate her senses, either creating a “euphoric feeling” or using
them to “bring it back down.” During the evaluation, when asked why Cade was
removed from her care, Mother told Amin that Cade was born with drugs in his
system and that Mother tested positive for drugs as well. Based on her evaluation,
Amin explained that Mother has not had any long-term psychiatric care, has not been
to a long-term sobriety residence, is not financially stable, and does not have
structure to have a regimen, which Dr. Amin explained is important, along with
sobriety, to “rear that child appropriately.”
Dr. Amin also testified Mother failed to recognize her need for sobriety and
failed to recognize she needed a change in her lifestyle. According to Dr. Amin,
Mother’s recognition of the problem as a problem is important, along with sobriety,
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in creating the structure required for a child. “In other words, you don’t recognize
that there’s a problem with your lifestyle[,] it continues[,] [a]nd unfortunately, in this
case a child had to be removed because of that lack of understanding.” Amin testified
that although no individual aspect of this evaluation could deter someone from being
a good parent, it is the “conglomeration of all these aspects that are concerning.”
3. Candice Webster
Candice Webster testified that she is a licensed chemical dependency
counselor and is employed as the lead counselor for Santa Maria Hostel. She
explained that Santa Maria is a state funded residential treatment center for women
with substance abuse or co-occurring disorders. Webster was one of Mother’s
primary counselors when she entered Santa Maria in August 2022. She stated that
most women enter the treatment program in an intensive level program, requiring
more group hours and sessions with their primary counselor. Once a patient achieves
stability, they move over to a supportive level care, which would require fewer group
sessions and individual sessions. Mother entered Santa Maria in an intensive level
of support. Webster stated that when Mother was at Santa Maria, “[s]he was doing
great[,] … making great progress.” She explained that Mother was acting as a mentor
in the program and she had been able to process her substance abuse history and
trauma within the program. Due to this progress, Mother was allowed to have a home
pass to visit her family. This pass allowed Mother to leave for the day with specified
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times to leave and return to Santa Maria. Mother reported to the facility after her
allotted time. According to Webster, Mother then chose to leave the facility. Webster
has had no contact with Mother since she left Santa Maria. If Mother wanted to
return to Santa Maria within twenty-four hours, and if her caseworker was
unavailable, she could have reached out to Webster or the program director at Santa
Maria. Webster confirmed that Mother did not reach out to them after her departure.
4. Mother
Mother testified that her son was removed from her care because they both
tested positive for drugs at his birth. Mother first denied using drugs during her
pregnancy, but later admitted she used heroin until she found out she was pregnant.
Mother stated that when she found out she was pregnant, she contacted a doctor
through an online service and was prescribed Suboxone for her long-term heroin
addiction. Mother said she started using the Suboxone because she believed she
“could possibly die[]” if she stopped taking heroin suddenly. Mother did not
understand why Cade would have methamphetamines in his system at birth. She
denied using methamphetamines, contending that all she took was her Suboxone,
three times a day as prescribed. She explained that she “recreationally used meth”
before she was pregnant, but “heroin was my problem.” Mother testified she was
surprised a drug test she took after her son was removed was positive, stating, “I
haven’t done any meth. I don’t – I’m a heroin addict, not a meth addict.
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According to Mother, she entered Santa Maria due to her heroin addiction.
Mother denied arriving late to Santa Maria after her day pass or that she took a drug
test when she finally arrived back at Santa Maria. Mother stated she left because she
was not satisfied with the level of care she was receiving from Santa Maria. Mother
admitted she lied when she appeared before the trial court previously and stated that
she was doing well at Santa Maria and liked the program. Mother does not think she
needs inpatient therapy for her drug addiction, stating that she could have used
“outpatient and go to NA meetings and stuff like that[.]” After she left Santa Maria,
Mother said she contacted some outpatient resources, but did not follow through
with any treatment. She testified that she did attend NA meetings in Houston but
could not provide documentation of her attendance because it is “anonymous.”
Mother gave various reasons as to why she missed drug tests requested by the
Department, including lack of transportation, working out of town, psychological
and health issues. She confirmed that after she left Santa Maria, she took a drug test
in December 2022 and her “levels were high…[for] meth.” Mother again denied
using methamphetamines, stating “that isn’t what was the problem.” During cross-
examination, Mother maintained that she has not used drugs since she “had her son.”
When questioned as to why she posted a social media message after leaving Santa
Maria stating, “fresh out of rehab, 90 days sober[,]” Mother testified that she did not
9
tell the truth on Facebook, but later admitted that she relapsed on heroin the day
before she was admitted to Santa Maria.
Mother stated that currently she is living with her grandmother in Cleveland.
Her grandmother and her extended family will be a support system for her and Cade.
She said she is receiving $1,015 a week in unemployment benefits, explaining the
last time she was employed was before she entered treatment at Santa Maria. Mother
confirmed that she has fifteen weeks of unemployment left, but she is “actively”
seeking employment for when her benefits “run out.” Mother stated that she is now
seeing a psychiatrist and is getting prescribed medication to help with her moods,
blood pressure and anxiety. According to Mother, she started taking the medications
while at Santa Maria, and continued to see a psychiatrist and take the medications
after she left the facility. Mother stated that she has continued to work her service
plan, including taking a parenting class that she completed a month before the trial.
Mother confirmed that she attends her visitations with her child, stating she brings
him age-appropriate toys and rarely misses visitation.
5. Foster Mother
Foster Mother is a NICU nurse who “take[s] care of drug-exposed babies.”
She has had Cade in her care since he was two weeks old. She stated that Cade is
nineteen months old and has no medical issues. She described Cade’s demeanor as
an infant, testifying that he “cried a lot[,] [t]here [were] times where we had long –
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we had to comfort him quite frequently,” and that it was “pretty hard the first six
months.” She confirmed this behavior is a withdrawal symptom of infants exposed
to drugs in utero. She testified that if Mother’s parental rights were to be terminated,
she and her family would want to adopt Cade.
At the conclusion of testimony, the trial court terminated Mother’s parental
rights to Cade. Mother timely appealed.
II. Mother’s First, Second, and Third Issues
In Mother’s first, second and third issues she challenges the sufficiency of
evidence to support termination under section 161.001(b)(1)(D), (E), and (P). Texas
Family Code Ann. § 161.001(b)(1)(D), (E), (P).
A. Standard of Review
Under legal sufficiency review, we review “all the evidence in the light most
favorable to the finding to determine whether a reasonable trier of fact could have
formed a firm belief or conviction that its finding was true.” In re J.F.C., 96 S.W.3d
256, 266 (Tex. 2002). We assume that the factfinder resolved disputed facts in favor
of its finding if a reasonable factfinder could, and we disregard all evidence that a
reasonable factfinder could have disbelieved or found to have been incredible. Id. If
no reasonable factfinder could form a firm belief or conviction that the matter that
must be proven is true, the evidence is legally insufficient. Id.11
Under factual sufficiency review, we must determine whether the evidence is
such that a factfinder could reasonably form a firm belief or conviction about the
truth of the Department’s allegations. Id. We give due consideration to evidence that
the factfinder could reasonably have found to be clear and convincing. Id. We
consider whether disputed evidence is such that a reasonable factfinder could not
have resolved that disputed evidence in favor of its ruling. Id. If, in light of the entire
record, the disputed evidence that a reasonable factfinder could not have credited in
favor of the finding is so significant that a factfinder could not reasonably have
formed a firm belief or conviction, the evidence is factually insufficient. Id.The decision to terminate parental rights must be supported by clear and
convincing evidence, i.e., “the measure or degree of proof that will produce in the
mind of 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; In re J.L., 163 S.W.3d
79, 84 (Tex. 2005). The movant must show that the parent committed one or more
predicate acts or omissions and that termination is in the child’s best interest. See
Tex. Fam. Code Ann. § 161.001(b)(1), (2); see also In re J.L., 163 S.W.3d at 84. We
will affirm a judgment if any one of the grounds is supported by legally and factually
sufficient evidence and the best interest finding is also supported by legally and
factually sufficient evidence. In re C.A.C., Jr., 2011 WL 1744139, at *1. However,
when, as here, a parent challenges a trial court’s findings under section
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161.001(b)(1)(D) or (E), we must review the sufficiency of those grounds as a matter
of due process and due course of law. See In re N.G., 577 S.W.3d 230, 235 (Tex.
2019).
Section 161.001(b)(1)(D) of the Family Code allows for termination of a
parent’s rights if the trier of fact finds by clear and convincing evidence that the
parent has “knowingly placed or knowingly allowed the child to remain in conditions
or surroundings which endanger the physical or emotional well-being of the child[.]”
Tex. Fam. Code Ann. § 161.001(b)(1)(D). Section 161.001(b)(1)(E) allows for
termination if the trier of fact finds by clear and convincing evidence that the parent
has “engaged in conduct or knowingly placed the child with persons who engaged
in conduct which endangers the physical or emotional well-being of the child[.]” Id.§ 161.001(b)(1)(E). “[A] parent’s use of narcotics and its effect on his or her ability
to parent may qualify as an endangering course of conduct.” In re J.O.A., 283 S.W.3d
336, 345 (Tex. 2009) (citations omitted). The factfinder may infer from past conduct
endangering the child’s well-being that similar conduct will recur if the child is
returned to the parent. In re M.S., 662 S.W.3d 620, 629 (Tex. App.—Beaumont
2023, pet. denied) (quoting In re M.R.J.M., 280 S.W.3d 494, 502 (Tex. App.—Fort
Worth 2009, no pet.)) (other citations omitted).
Termination under subsection (E) must be based on more than a single act or
omission and requires a voluntary, deliberate, and conscious course of conduct by
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the parent. In re M.S., 662 S.W.3d at 629; In re M.L.L., 573 S.W.3d 353, 363-64
(Tex. App.—El Paso 2019, no pet.). A parent’s conduct that subjects a child’s life
to instability and uncertainty endangers the emotional or physical well-being of a
child. In re M.L.L., 573 S.W.3d 353 at 363. Endangerment is not limited to actions
directed toward the child and includes the parent’s actions before the child’s birth
and while the parent had custody of older children, including evidence of drug usage.
In re J.O.A., 283 S.W.3d at 345. Courts may consider whether a parent’s drug use
continues after the child is removed from the parent’s care, as such conduct shows a
voluntary, deliberate, and conscious course of conduct that endangers a child’s well-
being. In re H.S., No. 09-23-00002-CV, 2023 Tex. App. LEXIS 4191, at *21 (Tex.
App.—Beaumont, June 15, 2023, no pet.) (mem. op.).
B. Section 161.001(b)(1)(D), (E)
The trial court heard evidence about Mother’s drug use, that both she and Cade
tested positive for drugs after she gave birth, and, although Mother admitted she was
a long-time drug user, she denied using drugs after she found out she was pregnant
with Cade. The caseworker testified that even though Mother was ordered to go to
drug testing at least once a month, she completed only three drug tests throughout
the pendency of the case. Evidence also showed that about three months before trial,
one drug test was positive for methamphetamines, although Mother disputed those
results, saying methamphetamines is not her drug of choice. Mother maintained that
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she has continuously refrained from drug use since she found out she was pregnant
with Cade. But Mother did admit that she also relapsed on heroin before she entered
Santa Maria. There was also testimony about Mother’s psychological issues, her
inability to acknowledge her drug issues, and her failure to effectively treat her drug
addictions by either staying at her inpatient facility or providing the Department with
proof of attendance at outpatient facilities. Evidence showed that Mother provided
proof of unemployment income, but the Department could not confirm the
information Mother provided with the State of Massachusetts. Finally, while there
was testimony that Mother was working her service plan, and that she regularly
visited Cade and maintained a positive relationship with her child, the trial court, as
the factfinder, was entitled to weigh that evidence against the evidence of Mother’s
continued drug use and inability to acknowledge or seek adequate treatment for her
drug use. See In re J.O.A., 283 S.W.3d at 346 (“[E]vidence of improved conduct,
especially of short-duration, does not conclusively negate the probative value of a
long history of drug use and irresponsible choices.”); In re J.A.V., 632 S.W.3d 121,
131 (Tex. App.—El Paso 2021, no pet.) (“testimony regarding Mother’s continued
drug use, coupled with Child’s at-birth addiction to opiates as the result of Mother’s
use of illegal drugs during pregnancy, would further bolster an inference that
Mother’s drug use continued to endanger Child by affecting Mother’s ability to
parent.”). The trial court may infer from refusals to drug test that the parent is
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continuing to use drugs. See In re M.S., 662 S.W.3d 620 at 629; In re H.S., 2023
Tex. App. LEXUS 4191, at *21; In re J.H., No. 07-17-00307-CV, 2017 WL
6459537, at *4 (Tex. App.—Amarillo Dec. 11, 2017, pet. denied) (mem. op.) (noting
a parent’s failure to complete their service plan can be considered in an
endangerment finding, including failing to provide proof of employment and safe
and stable housing); In re R.M., No. 12-21-00099-CV, 2021 WL 4898460, at *4
(Tex. App.—Tyler Oct. 20, 2021, pet denied) (mem. op.) (“A parent’s drug use both
before and after a child’s birth is relevant to the issue of endangerment.”); In re C.R.,
263 S.W.3d 368, 374 (Tex. App.—Dallas 2008, no pet.) (“The trial court could
reasonably infer [Mother] avoided taking the drug tests because she was using
drugs.”).
Therefore, viewing the evidence in the light most favorable to the trial judge’s
findings, we conclude that the trial judge could reasonably have formed a firm belief
or conviction that Mother knowingly placed or knowingly allowed Cade to remain
in conditions or surroundings which endangered his physical or emotional well-
being and engaged in conduct or knowingly placed Cade with persons who engaged
in conduct that endangered his physical or emotional well-being. See Tex. Fam.
Code Ann. § 161.001(b)(1)(D), (E); See also In re J.S., 584 S.W.3d 622, 635 (Tex.
App.—Houston [1st Dist.] 2019, no pet.); In re M.L.L., 573 S.W.3d at 363; In re
J.O.A., 283 S.W.3d at 345; In re M.R.J.M., 280 S.W.3d at 502; In re J.T.G., 121
16
S.W.3d 117, 125 (Tex. App.—Fort Worth 2003, no pet.); In re J.F.C., 96 S.W.3d at
266.
Having concluded that the evidence was legally and factually sufficient to
support the trial court’s findings as to subsection 161.001(b)(1)(E), we need not
address Mother’s challenges regarding the trial court’s findings under sections
161.001(b)(1)(P). See In re N.G., 577 S.W.3d at 235; In re C.A.C., Jr., 2011 WL
1744139, at *5; see also Tex. R. App. P. 47.1 We overrule Mother’s first, second,
and third issues on appeal.
III. Conclusion
Having overruled all of Mother’s issues on appeal, we affirm the order of the
trial court terminating her parental rights and appointing the Department as sole
managing conservator of Cade.
AFFRIMED.
JAY WRIGHT
Justice
Submitted on July 5, 2023
Opinion Delivered September 21, 2023
Before Horton, Johnson and Wright, JJ.
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