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In re J.B.

Court of Appeals of Texas, Ninth District, Beaumont

May 18, 2017

IN THE INTEREST OF J.B. AND D.B.

          Submitted on March 14, 2017

         On Appeal from the 418th District Court Montgomery County, Texas Trial Cause No. 15-06-06310-CV

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

          MEMORANDUM OPINION

          LEANNE JOHNSON Justice.

         L.B. appeals from an order terminating his parental rights to his minor children, J.B. and D.B.[1] The jury found, by clear and convincing evidence, at least one of the alleged predicate statutory grounds for terminating L.B.'s parental rights and that termination of L.B.'s parental rights is in the best interest of each child. See Tex. Fam. Code Ann. §§ 161.001(b)(1)(D), (E), (O), (b)(2), 161.003(a) (West Supp. 2016).[2] In issues one through four, L.B. challenges the legal and factual sufficiency of the evidence supporting termination under section 161.001(b)(1)(D), (E), (O), and section 161.003(a) of the Texas Family Code. In issue five, L.B. challenges the legal and factual sufficiency of the evidence supporting the finding that termination was in the best interest of the children. We affirm the trial court's order terminating L.B.'s parental rights to J.B. and D.B.

         Background

         The Department of Family and Protective Services (the "Department") filed a petition "request[ing] emergency orders and/or attachments required to gain possession of the children as authorized by Chapter 262, Texas Family Code."[3] In the petition, the Department requested permission to remove the children, the appointment of the Department as temporary sole managing conservator of the children, and other temporary orders. In the affidavit attached to the petition, the Department alleged that on June 2, 2015, the Department received a report of the neglectful supervision and physical neglect of J.B. and D.B. by L.B. The affidavit included, in part, the following:

[L.B.] was arrested on June 2, 2015 for Possession of a Controlled Substance and Child Endangerment. At approximately 4:00pm on June 2, 2015, [L.B.] left his children, [J.B.] (age 4) and [D.B.] (age 1) in a vehicle with the windows rolled up and locked, with the vehicle running and the AC only blowing warm air. [D.B.] was found to be standing in the front seat and sucking on a Gillette razor handle and [J.B.] was in the middle of the front seat. When [ L.B.] arrived back to the vehicle he did not appear concerned about the children's safety. The children were observe[d] and did not appear to be in any distress and medical attention was not needed. Inside the vehicle scissors were found in the front seat with the children and open containers of Budlight were found in the car. The car seats were found to be under piles of clothing and trash. On the back seat there were feces from an old diaper. Also located in the vehicle were several bottles of prescription drugs with no labels, there were approximately 9-10 bottles found. The children were observed to be dirty and covered in bug bites. It appeared that one of the bites on [D.B.] was infected. The children were not wearing shoes at the time.
On call investigator, Brenda Snyder, responded to the San Jacinto Sheriff's Office and met with law enforcement, the children and the father. Investigator Snyder spoke with Deputy Atchley who was the officer on scene. Deputy Atchley stated that when he arrived he found the children in the vehicle with no adult supervision. He asked for a witness to watch the children so he could enter the store and locate the parent. When he came out of the store he found [L.B.] beside the vehicle. Deputy Atchley stated he spoke with [L.B.] and asked him to open the car so the children could be observed and he saw the scissors on the seat and felt that the AC was blowing warm. Deputy Atchley also located the prescription pills in the car. When Deputy Atchley notified [L.B.] that he was being arrested [L.B.] threw himself on the ground and acted as though he was having a seizure.
Investigator Snyder requested to speak with the father and when she did he stated that he stopped at the store to buy some bananas and he did not believe his children were at risk being in the vehicle as it was running.

         According to the affidavit, J.B.'s and D.B.'s mother, L.C., initially could not be located and the children were placed with a family member, Y.B. The affidavit states that L.C. was subsequently located but she had been recently released from jail for possession of a controlled substance charge, she was unemployed and living in Katy with a friend, and she approved of the children's placement with Y.B. Y.B. later notified the Department that she could no longer care for the children. The Department contacted L.C., and L.C. told the Department that she was not in a position to care for her children. The affiant concluded that the Department was requesting to be named temporary managing conservator of J.B. and D.B. as a result of L.B.'s current incarceration for leaving the children unattended in a vehicle with safety hazards, L.C.'s instability and inability to properly care for the children, and the inability of another family member to provide for the children.

         On June 9, 2015, the trial court signed an order of protection for the children and found that "there is an immediate danger to the physical health or safety of the children or the children have been the victims of neglect or sexual abuse and that continuation 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 gave L.B. and L.C. notice that a full adversary hearing would be held on June 15, 2015. On June 15, 2015, after a full adversary hearing, the trial court signed temporary orders and found "that appointment of the parent or parents as managing conservator of the children is not in the best interest of the children because the appointment would significantly impair the children's physical health or emotional development."

         The trial court held a termination hearing in October of 2016. Lieutenant Sonny Ray Atchley, a San Jacinto County Constable, testified that on June 2, 2015, he was dispatched regarding an unattended small child in a vehicle in a grocery store parking lot. Atchley explained that he arrived at the parking lot and the adult who had originally called dispatch was near a vehicle "crammed full of junk. . . . maybe an inch or two[]" below the roof of the passenger seat. According to Atchley, the adult who called dispatch reported to Atchley that he had waited a reasonable time before calling law enforcement about unattended children in the vehicle. Atchley testified that he initially saw one "toddler[-]age[d]" child in the vehicle and the child was standing behind the steering wheel with his hands on the wheel and the car engine was on. According to Atchley, the engine was "running hot[, ] . . . [and] [t]he air conditioner was blowing, but it was not blowing cold."

         Atchley testified that he began to look for a parent or guardian but "[t]here was no one reasonably in the proximity of the parking lot where . . . it would be reasonable that an adult would walk away from the vehicle, like a car, two cars over." Atchley went into the grocery store attempting to find the child's parent or guardian. After "pretty much giv[ing] up on finding an adult[, ]" Atchley returned to the vehicle and looked into the back window and saw another child in the backseat of the vehicle. According to Atchley, it was ...


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