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In re Baby V.

Court of Appeals of Texas, Fourth District, San Antonio

March 29, 2017

IN THE INTEREST OF BABY V., a Child

         From the 408th Judicial District Court, Bexar County, Texas Trial Court No. 2016-PA-00239 Honorable Antonia Arteaga, Judge Presiding

          Sitting: Marialyn Barnard, Justice Rebeca C. Martinez, Justice Irene Rios, Justice

          MEMORANDUM OPINION

          IRENE RIOS, JUSTICE.

          REVERSED AND REMANDED

William H. appeals the trial court's order terminating his parental rights to his son, Baby V. In his first three issues, William contends the evidence is legally and factually insufficient to support the trial court's findings with regard to the two statutory grounds for termination and its finding that termination was in Baby V.'s best interest. In his fourth issue, William contends his trial counsel rendered ineffective assistance of counsel by failing to call his mother as a witness to testify at trial. We reverse the portion of the trial court's order terminating William's parental rights and remand the cause to the trial court for further proceedings.

         Background

         William was arrested in July 2015 for intent to distribute methamphetamines and remained incarcerated in a federal facility for that offense at the time of trial. Prior to his arrest, William testified he financially supported Baby V.'s mother, Amanda, and left Amanda his money when he was arrested. William testified he discovered Amanda was pregnant with Baby V. two months after he was arrested. At that time, William contacted a family friend, Karen. William and Karen both testified Karen allowed Amanda to live with her at William's request, and William testified Karen drove Amanda to doctor's appointments. Karen testified Amanda lived with her from July 2015 until November 2015, and Karen began to convert one of her bedrooms into a nursery for the baby. William testified Amanda lived with Karen until Amanda ran off.

         Miriam Marin, an adoption caseworker and birthparent counselor with Adoption Angels, Inc., testified Amanda contacted her in late September 2015, and decided to proceed with adoption. Marin testified Amanda previously worked with the agency in placing another child for adoption. Marin provided Amanda with paperwork to complete and testified Amanda returned the paperwork about one month later. Although Marin testified she was in "somewhat consistent communication" with Amanda by phone or email, Marin also testified the agency did not provide Amanda with much assistance while she was pregnant because Amanda bounced around from place to place, including living at a motel with friends and later living with her mother. Marin stated her testimony was based on information Amanda provided to her and also stated she had spoken with Amanda's mother. Marin testified Amanda contacted her at the end of December 2015, because she was ill and wanted to go to the hospital. The agency provided Amanda transportation to the hospital. At that time, Amanda was in her thirty-sixth week of her pregnancy. Baby V. was born approximately one week later, and Amanda tested positive for Xanax at Baby V.'s birth. Marin admitted William contacted her immediately after Baby V.'s birth and informed her that he did not consent to the adoption.

         Adoption Angels filed an original petition to terminate Amanda's and William's parental rights. Amanda previously executed an irrevocable affidavit to relinquish her parental rights.William filed an answer and several additional court filings expressing his desire to retain his parental rights.

         The trial court held a bench trial on October 27, 2016. At the conclusion of the trial, the trial court terminated Amanda's and William's parental rights. With regard to William, in addition to finding termination to be in the best interest of Baby V., the trial court also found William had:

[1] voluntarily, and with knowledge of the pregnancy, abandoned the child's mother beginning at a time during her pregnancy with the child and continuing through the birth, failed to provide adequate support of [sic] medical care for the mother during [the] period of abandonment before the birth of the child, and remained apart from the child or failed to support the child since the birth; [and]
[2] knowingly engaged in criminal conduct that will result in his conviction of an offense and confinement or imprisonment and inability to care for the child not less than two years from the date of filing this petition.

William appeals.

         Statutory ...


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