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In re J.H.

Court of Appeals of Texas, Fourth District, San Antonio

May 24, 2017

In the Interest of J.H., I.H., E.H., M.H., and L.H., Children

         From the 25th Judicial District Court, Guadalupe County, Texas Trial Court No. 15-0958-CV Honorable Dwight Peschel, Judge Presiding

          Sitting: Sandee Bryan Marion, Chief Justice Patricia O. Alvarez, Justice Irene Rios, Justice

          MEMORANDUM OPINION

          Irene Rios, Justice

         This is an accelerated appeal from an order terminating appellant-Father's parental rights to his five children, J.H., I.H., E.H., M.H., and L.H. Father contends the evidence is legally and factually insufficient to support the jury's finding that termination of his parental rights is in the best interests of the children. We affirm the trial court's termination order.

         Background

         On March 25, 2015, the Texas Department of Family and Protective Services ("Department") received a referral alleging neglectful supervision against Father and Mother for assaulting an elderly man outside their apartment while the children were present. The referral additionally alleged both Father and Mother were intoxicated and under the influence of drugs at the time, there was ongoing domestic violence between Father and Mother in the home, and all five children were left alone in the apartment. On March 27, 2015, the Department received an additional referral alleging neglectful supervision based on the parents' drug and alcohol use and frequent domestic violence. Upon validating the referrals and based upon the parents' history with the Department, the Department filed its Original Petition for Protection of a Child, for Conservatorship, and for Termination in Suit Affecting the Parent Child Relationship on May 11, 2015.

         Following an adversary hearing held on June 22, 2015, the trial court signed a temporary order assigning the Department as temporary managing conservator and ordering that Father have limited access to and possession of the children. The children remained in the care of a fictive kin placement with H.A. A status hearing was held on July 2, 2015, and the family services plan was subsequently made an order of the court. The trial court ordered that Father: complete a psychological assessment as well as any recommendations; participate in individual counseling; complete a drug assessment as well as any recommendations; attend anger management and domestic violence classes; attend supervised visitations; obtain and maintain appropriate housing and employment; submit to random drug testing; refrain from criminal activity, including the use of substances; and pay child support as ordered.

         Department caseworker Jessica Kathka met with Father in the Guadalupe County Jail on October 19, 2015, but Father could not yet begin services because his incarceration period at that time was indefinite. Father was released from jail on November 2, 2015, and Kathka met with Father on November 13, 2015. Kathka reviewed the service plan with Father and advised Father of the court's orders, including the need for anger management and domestic violence counseling. According to the record, Father disagreed with the need for domestic violence or anger management counseling and, therefore, refused to sign the service plan.

         Father voluntarily initiated services by undergoing a drug and alcohol assessment at Bluebonnet Trails Community MHMR Center, where he was also scheduled for bi-monthly counseling, a psychological appointment, and an intake interview at Teddy Buerger Center licensed treatment center. At Teddy Buerger, it was recommended Father complete an intensive outpatient counseling program, which he began attending. Father also began participating in supervised visits with the children.

         Kathka met with Father and Mother in December 2015. According to Kathka, Mother demonstrated evidence of abuse in the form of a black eye and a swollen forearm and hand, but Father stated he had not seen the injuries. Kathka administered a drug screen to Father, which tested positive for methamphetamine use. In March 2016, Father refused a drug screen and informed the caseworker he relapsed.

         In April, Kathka administered a hair follicle test to Father, which resulted in a negative result. Father was discharged from the Teddy Buerger counseling program in April 2016 prior to completion because of poor attendance. Further, Father attended fewer than five total of the scheduled bi-monthly counseling sessions, and he did not address the issues of domestic violence and anger management as directed by the trial court. Also in April 2016, Father stopped visiting or attempting to schedule visits with the children.

         Kathka discovered in June 2016 that Father had moved to Lampasas in April or May, but had not informed the Department. Upon obtaining contact information, Kathka arranged for a courtesy caseworker from the Lampasas region to meet with Father. The courtesy caseworker attempted to contact Father at the provided address and phone number, but was unable to do so. Kathka had no further contact with Father after June 2016. In October 2016, caseworker Tracy Fewell, who had previously been the secondary caseworker, took over the case. Fewell also attempted to obtain updated contact information for Father, but was still unable to make contact with Father.

         The trial court held the required status and permanency hearings, and on November 22, 2016, the Department filed an amended petition to terminate Father's parental rights. The parties tried the case to a jury November 28 through December 2, 2016. Father was present at trial, represented by court-appointed counsel, and testified on his own behalf. The jury also heard testimony from several witnesses, including former Department investigator Jeri Hudson; Department caseworkers Jessica Kathka and Tracy Fewell; Seguin Police Department ("SPD") Officers Suzanne Gonzalez and Cody Dean; SPD Detective Bradlee Flippin; counselors Amy Nelson and Leeland Cox; Mother; and foster care provider H.A.

         After receipt of evidence and testimony, the jury tendered judgment recommending termination of Father's parental rights to each child pursuant to Texas Family Code Sections 161.001(b)(1)(D), (E), (N), (O), and (P). The jury also found termination of Father's parental rights was in the best interest of the children, pursuant to Texas Family Code Section 161.002(2). Based upon ...


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