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In re A.B.

Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg

January 30, 2014

IN THE INTEREST OF A.B., D.B. AND D.B., CHILDREN

On appeal from the 25th District Court of Lavaca County, Texas.

Before Chief Justice Valdez and Justices Benavides, and Longoria

MEMORANDUM OPINION

GINA BENAVIDES, Justice

By two issues, appellant Darrell B. ("Father")[1] claims the evidence used to terminate his parental rights over D.B. was insufficient to support termination. We affirm.

I. Factual Background

On June 16, 2012, the Polk County Sheriffs Department was called to Rachel B.'s ("Mother's") home on a report that there was a domestic dispute. Mother was the parent of daughter A.B. and sons D.B. and D.B. ("K.B."), [2] and she lived with her boyfriend, Chris W. ("Boyfriend"). The sheriffs office was also informed that D.B. may have been recently abused.

Deputy Terry Valka testified that when he arrived at the home, Boyfriend had left the home to go to a nearby Valero gas station. Deputy Valka located Boyfriend at the gas station and returned to the home with him to further question him and Mother. Deputy Valka deduced that both adults were intoxicated. Deputy Valka asked to examine D.B., Mother's seven-year-old son, but Mother refused. He then asked to search Mother's vehicle, and Mother agreed. Deputy Valka found methamphetamine in the car. After returning from the car, Deputy Valka again asked to examine D.B.; this time, Mother consented. Deputy Valka testified that he saw severe bruising on D.B.'s backside. He described the bruising as "pointing down like a handprint, with the five fingers, and it was already purple." He further testified that "there was another large bruise on top of [D.B.'s] buttocks and like a finger mark behind the child's ear where the child said his ear was ringing." The couple was arrested for possession of a controlled substance. See Tex. Health & Safety Code Ann. § 481.115 (West 2010). Boyfriend was taken to the Polk County jail, while Mother was allowed to accompany her sons D.B. and K.B. to the emergency room for further medical examination.[3]

The sheriffs office called the Texas Department of Family and Protective Services (the "Department") to the emergency room. Department investigator Rachel Drake went to the hospital and learned that Boyfriend had beaten D.B. because he and his four-year-old little brother K.B. "had stuck their fingers in the bag of meth and tasted it and said it was salty and they got in trouble for that." Investigator Drake also noted that D.B. had a rash on the back of his neck and on his stomach, and was unkempt, dirty, and covered in insect bites.

This was the fourth time the Department had received a referral for Mother. Mother had previously been investigated in 2007, 2009, and 2011. In 2007, the Department's investigation revealed that Mother had been arrested for possessing crack cocaine in her vehicle, and she did not have a stable residence for her children, A.B. and D.B., at the time. In 2009, the Department again discovered that Mother was abusing cocaine and that her husband, Father, was physically abusive to her. Mother was referred to Family-Based Safety Services at this time, which included counseling, drug treatment, and random drug testing. In 2011, Mother and Boyfriend were suspected of smoking marijuana in their apartment while D.B. and his little brother K.B. were playing in the apartment parking lot unattended. Because both Mother and Boyfriend tested negative for drugs, however, the Department closed this investigation.

Based on the 2012 incident, the Department began proceedings to terminate Mother's parental rights, as well as the parental rights of the children's fathers.[4] Father, the appellant in this case and the biological father of D.B., was incarcerated in the Lavaca County jail at this time. He had been convicted of burglary of a building and was serving a two-year jail sentence. See Tex. Penal Code Ann. § 30.02 (West 2011). He had a prior criminal history, as well.

At the termination hearing, Mother testified that Father had, at different times during their marriage, pulled her hair and hit or punched her. At one point he broke some of her ribs. Some of these instances of violence occurred in front of her children, including D.B. Mother also testified that she and Father used drugs "most of the time" they were together when "he wasn't incarcerated." Dawn S., Mother's sister ("Aunt"), testified that Mother and Father's relationship "has always been very abusive" and that Father "used to beat [Mother] repeatedly when they were together." Aunt also testified that Father had once ripped Mother's hair out of one side of her head, and that D.B. had seen Father smash in a car's windshield. Aunt stated that, despite the frequent beatings, Mother refused to press charges against Father. Although Father was present with his attorney throughout the termination proceedings, [5] he did not testify at trial.

The trial court terminated Mother's and Father's parental rights.[6] Father filed this appeal.

II. Standard of Review & Applicable Law

A court may order the termination of a parent-child relationship only if it is shown by clear and convincing evidence that a parent has met at least one of the statutory factors listed in the family code, coupled with an additional finding by clear and convincing evidence that termination is in the child's best interest. See Tex. Fam. Code Ann. § 161.001 (West 2008); In re J.F.C., 96 S.W.3d 256, 261 (Tex. 2002) (noting the two-prong test in deciding parental rights termination and that one act or ...


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