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In re R.R.C.

Court of Appeals of Texas, Fourth District, San Antonio

June 14, 2017

IN THE INTEREST OF R.R.C. and R.C., Children

         From the 408th Judicial District Court, Bexar County, Texas Trial Court No. 2016PA00336 Honorable Charles E. Montemayor, Judge Presiding

          Sitting: Karen Angelini, Justice Patricia O. Alvarez, Justice Irene Rios, Justice

          MEMORANDUM OPINION

          Karen Angelini, Justice

         This is an appeal from a judgment terminating appellant's parental rights to his two children.[1] On appeal, appellant asserts the trial court erred by denying his attorney's "not ready" announcement and continuing with trial in appellant's absence. Appellant also challenges the legal and factual sufficiency of the evidence to support the trial court's findings on the predicate statutory grounds and on whether termination of his parental rights was in the children's best interest. Because we conclude the trial court did not err in denying counsel's "not ready" announcement and that the evidence is legally and factually sufficient to support the trial court's findings, we affirm the trial court's judgment.

         BACKGROUND

         On February 16, 2016, the Department of Family and Protective Services ("the Department") filed its original petition for conservatorship of the two children who are the subject of this appeal and for termination of their parents' parental rights.[2] On April 5, 2016, the trial court held its sixty-day hearing and pre-trial conference at which both parents appeared in person and through their attorneys. After finding appellant had reviewed and understood the family service plan, the trial court approved the service plan and made it an order of the court. The trial court set the initial permanency hearing for August 9, 2016, and set trial on the merits for November 17, 2016. Appellant did not appear in person at the August 9 initial permanency hearing or at the November 17 trial on the merits. At the start of both hearings, the trial court denied appellant's attorney's announcement of "not ready."

         At the trial on the merits, the State first called the Department caseworker, Valerie Mendiola. Mendiola testified the children's mother told her that appellant had held her hostage under a bridge and the couple "had domestic violence issues." Mendiola said appellant has been "missing" throughout the case, she has had no contact with him, and the only information she had about him came from appellant's mother who said he was incarcerated. Appellant did not complete any of the following requirements of his service plan: a drug assessment, parenting classes, individual therapy, a psychological evaluation, a domestic violence class, or obtain stable housing. Appellant has been in and out of jail during the pendency of the case, and has not visited his children.

         The children currently live with a foster family who wishes to adopt them. Mendiola said the children are doing well, are involved in age-appropriate activities, attend church, take trips with their foster family, and engage in play therapy. According to Mendiola, the children's needs are being met. Mendiola believed termination of appellant's parental rights was in the children's best interest because the foster family would continue to meet the children's needs, and the children have a "tight bond" with their foster parents. The foster parents have consistently provided a safe home environment with guidance and supervision. Mendiola said that before the children were removed, the parents had left them in the care of the children's older half-sister, [3] and the parents did not intend to return. While with their sister, the children were exposed to sexual abuse and violence by the sister's boyfriend.

         The State next called the Department investigator and the person who removed the children from their home, Monica Montoya. Montoya said the children originally came to the Department's attention when the youngest child, R.C., was seen at a hospital and it was discovered she had a broken arm, as well as other healed fractures. At the time, R.C. was three years old and in the care of her older sister who was not aware of R.C.'s previous injuries. R.C. made no outcry, but R.R.C., who was then five years old, made a sexual abuse outcry.

         Montoya did not know if appellant had a drug history. Montoya said the Department had received prior domestic violence referrals on appellant and the mother. The mother admitted to Montoya a March 2015 incident of violence that happened in the children's presence while the family lived in a one-room hotel room. Both parents stayed occasionally at Haven for Hope.

         The next witness was the children's mother, S.M., who testified she met appellant in 2006 and they moved in together in 2009. She then became aware of appellant's "mental instabilities." S.M. said appellant controlled her by not letting her work, leave the house, or see friends and family. She stated appellant smoked synthetic marijuana. Appellant hurt her many times during their relationship, the latest by punching her in the mouth, which required hospitalization. Appellant never hurt the children but they witnessed his yelling and screaming, and his pushing her against the wall. S.M. did not believe appellant was unsafe around the children. She said, "He's not a problem with my children. Me and him were the problem, and we're no longer together." She did not want appellant's parental rights terminated.

         At the close of testimony, the trial court took judicial notice of the record, minus any hearsay, and the CASA report. According to the initial CASA report submitted before the August 9 hearing, neither parent had contact with the Department since the April 5, 2016 hearing; neither parent had attended any visits with their children or engaged in any services; the parents' whereabouts were unknown; and the children had stated they did not want to return home to the parents. R.R.C. calls her parents by their first names and does not call them mom and dad. R.C. stated she is "done with [appellant] and S.M.], " and she only refers to her parents by their first names. The CASA report stated appellant was homeless.

         DENIAL OF "NOT READY"

         In his first issue on appeal, appellant asserts the trial court erred by denying his trial counsel's "not ready" announcement. At the start of the trial on the ...


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