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Smith v. Texas Department of Protective and Regulatory Services9/11/2003
moted to first grade. During her first grade year, S.R.H. was absent 48 days of the 180-day school year. At the end of her first grade year, S.R.H. was not recommended for promotion to the second grade, due in part to the excessive number of absences and the amount of instruction that she had missed. She was nevertheless promoted to the second grade and enrolled in the fall of 2000; she was officially withdrawn on March 4, 2001. (S.R.H. was removed from her home on February 22, 2001.) Of the 90-day period during which she was enrolled, S.R.H. was absent 33 days. Although she had begun the school year performing well, by the time she was withdrawn, S.R.H. was failing in all of her subjects. C.C.S. enrolled in kindergarten in the fall of 2000 and was withdrawn March 5, 2001. She had 41 absences during that time period. She was performing satisfactorily in all her academic areas. Province testified that neither child exhibited discipline problems and both were "great" and loveable kids.
Province testified that he did not know the reason for the girls' excessive absences. He acknowledged, however, that at least some of them were due to the girls' problems with lice. According to Province, once lice is discovered on a child, the child's parents are contacted and the child is sent home. Before the child can return to the school, he or she must be examined by the nurse, who checks for live and moving lice.
Province also testified about his interaction with Bobbie. He characterized her as cooperative and always willing to talk with him. He "never felt like she was not trying;" he just felt that "she couldn't do whatever it was we were asking her to do."
Bobbie testified that some of S.R.H.'s absences were due to appointments with the eye doctor. In addition, Bobbie kept S.R.H. home for about a week because her glasses were broken, she could not see, and her eyes hurt. Bobbie also stated that S.R.H. was often sent home because of lice or nits in her hair. So, Bobbie took S.R.H. out of Llano County elementary school and enrolled her in Burnet County elementary school; she did not specify when she did this, however. She also stated that on occasion, she had to go out of town, and took the children with her. And sometimes the absences were because she was trying to care for five children, two of whom were babies, while her husband was incarcerated.
The Department contends that the Smiths' drug use and incarcerations endangered the children. Michael Okolo, Bobbie's probation officer, testified that Bobbie was placed on probation in May 2001 for possession of cocaine; she will complete probation in May 2004. One of her conditions of probation is drug treatment, although Okolo was still trying to find a drug treatment program for her. In addition, Bobbie is required to submit to random urinalysis tests. The first one that Okolo scheduled was on October 17, 2001. When Bobbie arrived for the test, Okolo instructed her to wait for him in the lobby. When he returned to the lobby to retrieve her, Bobbie was gone and did not submit to the test that day. Okolo tested Bobbie in June 2002, and she tested positive for cocaine. The next time he tried to conduct a urinalysis test was on July 9, 2002; he tested Bobbie for cocaine, marihuana, methamphetamine, PCP, and amphetamine. Bobbie tested clean.
Sometime after October 2001, Okolo filed a motion to revoke Bobbie's probation based on the offenses of hindering apprehension and making a false report to a peace officer. The outcome of that motion to revoke and the underlying offenses is unclear from the record. Okolo testified that Bobbie's probation was continued, and she was not revoked. She was ordered, however, to spend 75 days in
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