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In re D. V.

Court of Appeals of Texas, Sixth District, Texarkana

March 16, 2017

IN THE INTEREST OF D.V. AND E.H., CHILDREN

          Submitted: December 21, 2016

         On Appeal from the 307th District Court Gregg County, Texas Trial Court No. 2015-1671-DR

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

          MEMORANDUM OPINION

          Ralph K. Burgess Justice

         After a 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.[1] 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 children.

         On 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 Background

         Becky 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.[2] 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.

         Cibrian 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.

          Becky 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.

         Cibrian 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.

         The 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.

          Roger, 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.

         The 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.

         II. Termination of Parental Rights

         "The 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).

         In 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 ...


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