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In re S.L.

Court of Appeals of Texas, Ninth District, Beaumont

February 23, 2017

IN THE INTEREST OF S.L. JR. AND A.A.

          Submitted on December 28, 2016

         On Appeal from the 88th District Court Hardin County, Texas Trial Cause No. 56203

          Before McKeithen, C.J., Kreger and Horton, JJ.

          MEMORANDUM OPINION

          STEVE McKEITHEN Chief Justice

         We issued a memorandum opinion affirming the trial court's judgment in this cause on January 19, 2017. Appellant timely filed a motion for rehearing. We now withdraw our previous memorandum opinion and judgment issued on January 19, 2017, substitute the following memorandum opinion and judgment in their place, and overrule appellant's motion for rehearing. See Tex. R. App. P. 19.1(b) (stating that our plenary power over a judgment expires thirty days after all timely filed motions for rehearing are overruled).

         Appellant A.A.[1] appeals from an order terminating her parental rights to her minor children, S.L. Jr. and A.A. The trial court found, by clear and convincing evidence, that statutory grounds exist for termination of appellant's parental rights, and that termination of appellant's parental rights is in the best interest of the children. See Tex. Fam. Code Ann. § 161.001(b)(1)(N), (O), (2) (West Supp. 2016). In two appellate issues, appellant challenges the legal and factual sufficiency of the evidence. We affirm the trial court's order.

         BACKGROUND

         The Department of Family and Protective Services ("the Department") filed a petition which alleged that the children had been taken into its custody on June 29, 2015, "in compliance with § 262.104, Texas Family Code." In the petition, the Department requested a full adversary hearing and a temporary order appointing the Department temporary sole managing conservator of the children. The affidavit in support of removal alleged that appellant had abandoned the children at a gas station and had told someone she no longer wished to care for the children. The affiant averred that appellant's "inability to be a protective parent places her children at substantial risk of danger[.]"According to the affidavit, the Department was unable to ascertain where appellant was, and appellant has an extensive history with the Department, including the termination of her parental rights to two other children. The trial court entered an order for protection of the children in an emergency. In said emergency order, the trial court found that "there is a continuing danger to the physical health or safety of the children if the children are returned" and "[c]ontinuation of the children in the home would be contrary to the children's welfare[.]" The trial court named the Department temporary sole managing conservator of the children and stated that a full adversary hearing would be held on July 21, 2015. On July 21, 2015, the trial court signed an order extending the emergency orders, in which it found that the Department had shown good cause to extend the trial court's previous orders, and scheduled an adversary hearing for September 8, 2015.

         In its temporary order entered on January 5, 2016, after the adversary hearing had taken place, the trial court found that there was sufficient evidence to satisfy a person of ordinary prudence that the children were endangered "by an act or failure to act of the person entitled to possession." The trial court also found in its temporary order that although reasonable efforts had been made to enable the children to return home, "there is a substantial risk of a continuing danger if [the children] are returned home." The trial court noted in the temporary order that although appellant had been properly notified, she "did not appear and wholly made default."

         The family plan of service for appellant acknowledged that appellant had denied the allegation of abandonment, and that no evidence to support the abandonment allegation had been found. The family plan of service stated that appellant had offered inconsistent information regarding whether she knew that R.R. had taken the children. In addition, the plan stated that it appears appellant did not adequately supervise the children and allowed R.R., a reputed drug user, to leave with the children. In its permanency report filed with the trial court, the Department noted that abandonment had been ruled out and that it was unable to determine whether neglectful supervision had occurred. On May 17, 2016, the trial court signed a permanency hearing order, in which it noted that appellant did not appear despite having been duly and properly notified. In the permanency hearing order, the trial court found that appellant was not willing and able to provide the children with a safe environment. On August 16, 2016, the trial court again signed another permanency hearing order, in which it noted that appellant had failed to appear and determined that appellant was not willing and able to provide the children with a safe environment.

          At trial, Raymonica Scypion of the Department testified that after an adversary hearing, the trial court found that there was sufficient evidence for the children to be placed into the temporary managing conservatorship of the Department. Scypion explained that a family plan of service was developed for appellant, but appellant had not adequately and appropriately complied with the family plan of service. A copy of the family plan of service for appellant was admitted into evidence, and Scypion testified that the plan contained specific tasks appellant would be required to complete in order to obtain return of the children. According to Scypion, the family plan of service ordered appellant to undergo drug testing, but appellant never did so. Scypion also testified that appellant failed to sign a release of information as required by the family plan of service, and appellant failed to maintain contact with Scypion despite Scypion sending letters to appellant, trying to call appellant, and attempting to visit appellant's home.

         According to Scypion, appellant had only attended approximately three scheduled visits with the children. In addition, Scypion testified that she was unable to verify that appellant had maintained a safe, stable, and drug-free home environment, as required by the order. Scypion further explained that appellant had not done the services required of her under the order, such as attending NA or AA meetings, completing individual counseling, participating in and successfully completing a psychological evaluation, and completing a drug and alcohol assessment. Scypion testified that appellant is unable to provide the children with basic care and a safe and stable home environment, and she testified that she believes remaining in their current placement is in the best interest of the children. Scypion explained that the Department's goal for the children is adoption by their foster parents, who have cared for the children since they came into the Department's care.

         According to appellant, she did not attend family visits with the children because she "could tell . . . that they weren't okay, they were acting different, they were acting out of behavior, and they didn't understand why they were being taken from me[.]" Appellant testified that she feared that she would emotionally damage the children by coming in and out of their lives. In addition, appellant testified that she did contact Scypion, but Scypion did not answer.

         Appellant explained that while she was at the house of G.O., whose testimony we will discuss below, R.R. asked to take the children to McDonald's. Appellant testified that she strapped the children into R.R.'s car, but when R.R. backed up, she ran out of gas, so appellant took the children back into the house. Appellant explained that R.R. tried to get money from G.O. for gas so she could take the children to McDonald's, but appellant said no. Appellant testified that she was watching the children in the house, and she knew something was amiss "[w]ithin seconds[]" and began asking everyone where the children were. According to appellant, someone told her that the children were with R.R., and she began trying to ...


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