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In re K.S.

Court of Appeals of Texas, Sixth District, Texarkana

January 23, 2014

IN THE INTEREST OF K.S., A CHILD

Submitted January 21, 2014

On Appeal from the 307th District Court, Gregg County, Texas. Trial Court No. 2012-1065-DR.

Jerry Reyes, Office of General Counsel, Austin, TX.

Ebb B. Mobley, Attorney At Law, Longview, TX.

Before Morriss, C.J., Carter and Moseley, JJ.

OPINION

Bailey C. Moseley, Justice

Page 853

Doug S.,[1] the father of K.S., appeals from an order terminating his parental

Page 854

rights to the child, raising two issues: (1) Doug argues that the evidence was insufficient to support the necessary finding that it was in the best interest of K.S. to terminate his parental rights, and (2) Doug maintains that he received ineffective assistance of counsel in contesting the termination proceeding. We find the contentions to be without merit and affirm the judgment of termination.

The record shows that K.S. was born in May 2012 and that within a month of that time, her mother (whose parental rights were likewise terminated in the same proceeding though she has not appealed) was incarcerated on drug-related charges. At the time of the child's birth, Doug was also incarcerated on charges relating to illicit drugs but was anticipating that he would be released on community supervision about ten months later. As a result, K.S. was taken into the custody of the Texas Department of Family and Protective Services (DFPS) and placed in foster care. Over the ensuing months, several hearings were conducted, and it became clear that there were family members of K.S.'s who were interested in adopting the child, with the apparent strongest contenders being an aunt and uncle residing in Mississippi. A permanency hearing was conducted March 13, 2013. The mother had been released from jail in November and thereafter could not be found. In the meantime, Doug completed his nine-month drug rehabilitation program at the D.E.A.R. unit[2] where he had been required to reside during his court-ordered drug rehabilitation program and was released March 12. Doug contacted DFPS representatives immediately to set up a plan. The problem confronting them was the short time frame remaining pursuant to the statute before the matter had to be resolved. See Tex. Fam. Code Ann. § 263.401 (West 2008). A caseworker with the DFPS confirmed that the drug rehabilitation entity at which Doug had been required to reside as part of his drug treatment program had not permitted Doug to be involved with any of the service plan requirements. Based upon these circumstances, the trial court found that extraordinary circumstances existed and extended the final hearing on the case by 180 days. See Tex. Fam. Code Ann. § 263.401(b).

At a subsequent hearing in May, it was determined that a potential placement family residing in White Oak had declined to be considered as a placement home for the child. It was then further discovered that although Doug had commenced with some of the services prescribed by the DFPS, he had then tested positive for present use of methamphetamines on two random drug screens during the six weeks that intervened between his release from the D.E.A.R. unit and the date of the hearing. The court thus ordered K.S. placed with a related couple in Mississippi (with Doug having some rights of visitation), and another hearing date was set.

A final permanency hearing was held July 10, 2013. At that time, Doug had tested positive for methamphetamine use and had been re-incarcerated. At that hearing, the court corrected some ambiguities in the timetable and corrected the dismissal date to comply with the statute (which would have been November 23, 2013, this being 180 days from the original dismissal date) and set a new trial date for October 16, 2013.

At the time of the October 16 trial, Doug was imprisoned, having been adjudicated guilty of ...


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