Court of Appeals of Texas, Sixth District, Texarkana
IN THE INTEREST OF D.V. AND E.H., CHILDREN
Submitted: December 21, 2016
Appeal from the 307th District Court Gregg County, Texas
Trial Court No. 2015-1671-DR
Morriss, C.J., Moseley and Burgess, JJ.
K. Burgess Justice
bench trial in Gregg County, Texas, the trial court
terminated Becky's parental rights to her two minor
children, Erin and David, and also terminated the parental
rights of Erin's father, Roger. The trial court found that
the termination of Becky's rights was warranted pursuant
to Section 161.001(b)(1), grounds (D), (E), (N), (O), and
(P), that the termination of Roger's rights was warranted
pursuant to grounds (N) and (Q), and that the termination of
their rights was in the best interests of the children.
See Tex. Fam. Code Ann. § 161.001(b)(1)(D),
(E), (N), (O), (P), (Q), (2) (West Supp. 2016). The
Department of Family and Protective Services (the Department)
was appointed the permanent managing conservator of the
appeal, Becky argues that the evidence is legally and
factually insufficient to support the trial court's
finding that termination was in the children's best
interests. Roger contends that (1)the evidence is legally and
factually insufficient to support the trial court's
finding that he constructively abandoned the child under
ground (N) of Section 161.001(b)(1) of the Family Code; (2)
the evidence is legally and factually insufficient to support
the trial court's finding that he knowingly engaged in
criminal conduct under ground (Q) of Section 161.001(b)(1) of
the Family Code; (3) the evidence is legally and factually
insufficient to support the trial court's finding that
termination was in the child's best interest; and (4) the
trial court erred by denying his motion for a paternity test.
I. Procedural and Factual
and Terrance are the biological parents of David, age eight.
Becky and Roger are the biological parents of Erin, age
seven, and Ronnie, now deceased, who was five years old at
the time of his death. On or about August 30, 2015, the
Department received a report regarding the abuse or neglect
of Becky's three children, David, Erin and Ronnie. The
intake alleged that, on August 30, Ronnie had died as a
result of a hit and run accident when he and the other two
children were left in the care of an unprotective caregiver.
Department investigators Elizabeth Cibrian and Patrick Hill
located Becky and her boyfriend, Peter, in a Kilgore
residence, and when Cibrian questioned Becky about the
children and possible drug use, Becky told the investigators
that she had used methamphetamine about two weeks prior, that
Peter had used methamphetamine a day or two before, and that
the children were at their maternal grandmother's house.
spoke with the grandmother, and after meeting with the
children, Cibrian described Erin as very quiet, shy, and
passive and said that she did not communicate well. When she
spoke with David about the hit and run accident, David told
her that they were walking back from church with Melissa
Montana and that a vehicle was coming towards them, got up on
the curb, and ran over Ronnie. The next day Cibrian spoke
with Becky, who admitted that she would fail a drug test
because she had used methamphetamine a week earlier and, in
order to cope with the stress, had also used on the day
Ronnie passed away.
admitted that, on the day of the hit and run, she had dropped
the children and Montana off at church and that Montana was
supervising the children that day. She characterized Montana
as someone with "problems, " who was "more
like a 17-year-old than a 27-year-old." Montana started
dating one of Becky's friends, and as a result, Montana
eventually moved into Becky's house and began helping
with the children. Becky admitted that Montana smoked
marihuana, but denied that she had done so recently.
met with Montana and described her as "really passive
during [their] conversation" and "rather slow in
speaking." In Cibrian's opinion, Montana did not
seem competent to supervise children. She later received
intake reports regarding allegations that, while at
Becky's home, Montana had sexually abused David while he
was in her care, but the Department was unable to pursue
those claims because it was unable to locate Montana. Becky
was aware that David had told the Department that he and Erin
had been molested while in her home, but she did not believe
he was telling the truth.
children were subsequently removed from Becky's care and
placed into a temporary foster home. The court ordered Becky
and Roger to complete the Department's family service
plan, which included evaluations, classes, counseling, and
drug rehabilitation. Becky completed the psychological
evaluation, but did not complete the required parenting class
because she was incarcerated. She acknowledged that she had
been arrested five times since the termination case began and
that she failed to complete the ordered counseling because
she was in and out of jail. Roger testified that, due to his
incarceration, he was only able to complete one of the
ordered services from the family service plan.
the father of Erin and Ronnie, testified that he and Becky
were together from 2009 to 2013. He testified that he loved
his children and that he was always a part of their lives
except for the periods when he was incarcerated. In 2012, he
was paroled, and he moved back home with Becky and the
children. He subsequently found full-time employment and was
able to support his family. However, at the time of the
termination proceeding, Roger admitted that he was an inmate
of the Texas Department of Criminal Justice, serving a
fifteen-year sentence for aggravated assault with a deadly
weapon and evading arrest in a motor vehicle, stemming from a
confrontation between himself, Becky, and the man she was
with at the time. Because he and Becky had parted ways, he
was not living at the home when Ronnie was killed, and he had
no part in the circumstances or events that led to the
children being removed from Becky's care.
trial court found that it was in the children's best
interests to terminate Becky's parental rights to Erin
and David and Roger's parental rights to Erin. The trial
court found sufficient statutory grounds to terminate
Becky's parental rights because she knowingly endangered
the physical or emotional well-being of the children in
violation of Section 161.001(b)(1), grounds (D) and (E), of
the Family Code, constructively abandoned the children in
violation of ground (N), failed to comply with the
court's order to complete the Department's family
service plan in violation of ground (O), and used a
controlled substance in violation of ground (P). The trial
court terminated Roger's parental rights because he
constructively abandoned Erin in violation of ground (N) and
that he had knowingly engaged in qualifying criminal conduct
and was unable to care for Erin for not less than two years
from the date the Department filed its petition in violation
of ground (Q). The Department was appointed the permanent
managing conservator of the children.
Termination of Parental Rights
natural right existing between parents and their children is
of constitutional dimensions." Holick v. Smith,
685 S.W.2d 18, 20 (Tex. 1985). Indeed, parents have a
fundamental right to make decisions concerning "the
care, custody, and control of their children."
Troxel v. Granville, 530 U.S. 57, 65 (2000).
"Because the termination of parental rights implicates
fundamental interests, a higher standard of proof-clear and
convincing evidence-is required at trial." In re
A.B., 437 S.W.3d 498, 502 (Tex. 2014). This Court is
therefore required to "engage in an exacting review of
the entire record to determine if the evidence is . . .
sufficient to support the termination of parental
rights." Id. at 500. "[I]nvoluntary
termination statutes are strictly construed in favor of the
parent." In re S.K.A., 236 S.W.3d 875, 900
(Tex. App -Texarkana 2007, pet. denied) (quoting
Holick, 685 S.W.2d at 20).
order to terminate parental rights, the trial court must
find, by clear and convincing evidence, that the parent has
engaged in at least one statutory ground for termination and
that termination is in the child's best interest. Tex.
Fam. Code Ann. § 161.001 (West Supp. 2016); In re E.
N.C.,384 S.W.3d 796, 798 (Tex. 2012). "Clear and
convincing evidence" is that "degree of proof that
will produce in the mind of the trier of fact a firm belief
or conviction as to the truth of the allegations sought to ...