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In re K.L.M.

Court of Appeals of Texas, Fifth District, Dallas

March 3, 2017


         On Appeal from the 296th Judicial District Court Collin County, Texas Trial Court Cause No. 296-30084-2015

          Before Justices Francis, Stoddart, and Schenck



         Travis M. ("Father") appeals the trial court's decision to terminate his parental rights with respect to his child K.L.M. In two issues, Father argues there was legally and factually insufficient evidence to support a finding that termination of his parental rights was in the best interest of the child and to support termination pursuant to section 161.001(b)(1)(P) of the Texas Family Code. Tex. Fam. Code Ann. §§ 161.001(b)(1)(P) (West 2016).[1] For the reasons set forth in this opinion, we affirm the trial court's order terminating Father's parental rights. Because the dispositive issues in this case are settled in law, we issue this memorandum opinion. See Tex.R.App.P. 47.4.

         Factual & Procedural Background

         On June 19, 2015, the Child Protective Services Division ("CPS") of the Texas Department of Family Protective Services removed K.L.M. from the care of his parents following a report of child abuse of K.L.M.'s half sibling A.M. At the time, K.L.M. was six months old, and A.M. was almost three years old.

         On June 22, 2015, the Texas Department of Family and Protective Services (the "Department") filed an Original Petition for Protection of Child(ren), for Conservatorship, and for Termination in Suit Affecting the Parent-Child Relationship seeking to terminate the parent- child relationships between Father and K.L.M. and between K.L.M.'s mother ("Mother") and K.L.M. The Department asserted ten grounds for terminating Father's parental rights and nine grounds for terminating Mother's parental rights.

         On July 18, 2016, the case proceeded to trial before the court. At trial, the Department did not seek to terminate the parent-child relationship between Mother and K.L.M. because Mother had successfully completed her service plan and had been adequately caring for K.L.M. on monitored return since February 2016. The Department sought to terminate Father's parental rights on five of the grounds asserted in its petition, among them using a controlled substance, as defined by Chapter 481, Health and Safety Code, in a manner that endangered the health or safety of K.L.M., and failing to complete a court-ordered substance abuse treatment program. Tex. Fam. Code Ann. §§ 161.001(b)(1)(P).

         Father did not appear at trial but was represented by counsel. The record reflects Father had not communicated with the CPS conservatorship worker since September 2015, Father's attorney had not been able to contact him for several months, and there were outstanding warrants for his arrest. The Department called the investigating police officer, the CPS investigator, Mother, the CPS conservatorship worker, and the Court Appointed Special Advocate ("CASA") to testify.

         Testimony of Detective Foreman

         On July 19, 2015, Detective Corey Foreman was assigned a child-abuse case involving K.L.M.'s half-brother A.M. He was dispatched to Children's Medical Center on a report of a child having arrived at the hospital with multiple, severe blunt force injuries. After viewing the child and consulting with the attending physician, Detective Foreman concluded A.M. was the victim of child abuse. A couple of days later, Father admitted to having inflicted the injuries upon A.M. by hitting him multiple times with a belt. While Father did not appear to be under the influence of an intoxicant when Detective Foreman first spoke with him, Father admitted to having smoked marijuana on the day A.M. was injured. Detective Foreman obtained an arrest warrant for Father. He was arrested and charged with injury to a child causing serious bodily injury, a first degree felony.

         Testimony of the CPS Investigator

         In addition to the police being contacted about the abuse of A.M., CPS was contacted. The referral to CPS initially reported a near drowning incident and later a report of blunt-force trauma consistent with child abuse. CPS assigned investigator Rick Prado, Jr. to the case. When Prado arrived at the hospital, A.M. was on life support, in critical condition, and had a ruptured intestine, a bruised bladder, and some heart damage. The injuries did not appear to be accidental. Prado interviewed the caregivers and observed Father appeared to be detached from A.M. and did not exhibit the type of emotion one would expect with a child in A.M.'s condition. Prado learned K.L.M. was present when A.M. was injured. He testified witnessing such abuse can be detrimental to a child and explained that in evaluating the risk of child abuse, CPS looks at the treatment of the child's siblings.

         CPS removed K.L.M. from the home on June 19, 2015, due to the severity of the injuries inflicted on A.M. and concomitant concern that K.L.M. was at high risk for abuse. Prado believed that, by critically injuring A.M. while K.L.M. was present, Father knowingly placed K.L.M. in conditions that endangered his physical and emotional well-being.

         Testimony of Mother

         Mother acknowledged that K.L.M. was in the home when A.M. was injured. She believes Father got out of control and inflicted the injuries upon A.M. and that he did not intend to injure the child. She was concerned that Father could act the same way with K.L.M., especially since he had not addressed the problem and had not completed the services he was ordered to complete. Mother indicated that Father has a hard time accepting responsibility and that, with outstanding arrest warrants, he would let his fear of going to jail hold him back from doing what he had to do to see his son. She confirmed that Father used marijuana, that he had not paid any child support, and that he had physically abused her following the incident with A.M. While Mother admitted that it would be good for K.L.M. to have a father, she indicated Father is not the kind of parent she wants for K.L.M. Mother is currently employed as a claims adjuster for an insurance company and is in school studying accounting.

         Testimony of the CPS Conservatorship Worker

         Janelle Barber was the CPS conservatorship worker assigned to K.L.M.'s and A.M.'s cases. On July 14, 2015, she met with Father at the jail where he was incarcerated for the child endangerment involving A.M. She provided him with a Family Plan of Service to address the safety issues that caused the removal of K.L.M. from the care of Father and reviewed the plan with him. The plan set forth the services Father was to participate in, including parenting classes, writing letters to the caseworker inquiring about K.L.M.'s well-being and development, a drug-treatment program, a bonding assessment with K.L.M., individual counseling, anger- management counseling, a psychological evaluation, providing CPS with a list of all of his prescription medications, a batterer's intervention program, a drug-and-alcohol assessment, maintaining suitable housing, obtaining legal employment, and submitting to random drug testing. Father was to provide certifications of completion of services to CPS. CPS encouraged Father to participate in services while incarcerated and to notify the caseworker upon his release from jail. Father acknowledged in writing that he had received the plan.

         After Father was released from jail in August 2015, he arranged to meet with Barber to discuss his services, but he failed to show up for the meeting. In early September 2015, Barber sent an email to Father attaching a temporary order and explaining the court-ordered services he was to complete and providing him with a list of the people he was to contact to participate in the services. The temporary order set forth conditions for visitation with K.L.M. There would be no visitation while Father was incarcerated. Thereafter, upon approval of CPS, the visitations were to occur at the CPS office and would be monitored by CPS, or an adult designated by CPS. To initiate the process, Father had to contact CPS and set up an interview. Father did call Barber in September 2015 to discuss visitation. She told him he had to meet with her and requested that Father submit to a ...

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