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In re E.N.Q.

Court of Appeals of Texas, Fourth District, San Antonio

June 28, 2017

IN THE INTEREST OF E.N.Q., C.A.Q., A.C.Q., and K.C.Q., Children

         From the 45th Judicial District Court, Bexar County, Texas Trial Court No. 2016PA00761 Honorable Charles E. Montemayor, Judge Presiding

          Sitting: Sandee Bryan Marion, Chief Justice Karen Angelini, Justice Marialyn Barnard, Justice

          MEMORANDUM OPINION

          Sandee Bryan Marion, Chief Justice

         This is an accelerated appeal from the trial court's order terminating appellant's parental rights to his four children. In a single issue, appellant challenges the sufficiency of the evidence in support of the trial court's finding that termination of his parental rights was in the children's best interest. See Tex. Fam. Code Ann. § 161.001(b)(2) (West Supp. 2016). We affirm.

         BACKGROUND

         Appellant is the father of two of the children who are the subject of this appeal, and the alleged father of the other two children who also are the subject of this appeal. The Department of Family and Protective Services ("the Department") filed its original petition for conservatorship of the four children[1] and for termination of their parents' parental rights on April 12, 2016. The termination hearing commenced on February 2, 2017.

         The State first called the Department caseworker, Ashley Hurtado, who testified she had been the caseworker since April 20, 2016. Hurtado stated she believed termination of appellant's parental rights was in the children's best interest because appellant is currently incarcerated and had been incarcerated the entire time she was the caseworker. Hurtado said appellant provided certificates of completion for a domestic violence class, a marriage and parenting class, individual therapy, and "spiritual Bible-type classes." She conceded appellant had engaged in the services that were available to him during his incarceration. Nevertheless, Hurtado stated "these children need permanency, so [appellant is] not an option." Because of appellant's incarceration, he could not visit his children, and does not have stable housing or employment. Hurtado also stated that because appellant was incarcerated, he was unable to provide the children with food.

         Hurtado then testified about each of the children. Hurtado said all the children came into the Department's care because the mother left them alone, there was no food in the house, the children ate out of the trash, the mother could not maintain a sober lifestyle, and the children witnessed domestic violence. Even after being taken into care, C.A.Q. and K.C.Q. initially hoarded their food. The mother's boyfriend may have sexually molested A.C.Q.

         All the children originally were placed with fictive kin, the paternal grandfather's girlfriend. E.N.Q. was later moved to a foster-to-adopt placement in January 2017. E.N.Q. is not taking any medication, she is doing well, adjusted quickly to her placement, has "her days, " feels safe in her foster home, and has bonded with her foster parent's daughter who is about eighteen months older than E.N.Q. C.A.Q. also was moved to another foster-to-adopt placement in December 2016. Hurtado said she has worked with C.A.Q. since April 2016 and "this is the best [she has] ever seen him." C.A.Q. takes a medication for P.T.S.D. and anxiety, but he is now calmer and less anxious, no longer has behavioral issues at school, has integrated well into his foster family, and calls his foster parents mom and dad. Prior to his placement, C.A.Q. was aggressive and acted out to the extent the Department was concerned for the safety of other children.

         The other two children, A.C.Q. and K.C.Q., are still with the fictive kin who is in the process of becoming licensed for the purpose of adopting the two children. A.C.Q. and K.C.Q. are not taking any medication, they "go back and forth with their behaviors" and have good days and bad days, but they appear calmer now that they are the only two children in the household. However, recently A.C.Q. told a teacher, "No. I don't want to do this, " and she has been "emotional" and cries "a lot about things." K.C.Q., who is in daycare, gets into trouble and has some behavioral issues.

         Although the children are in different placements, the caregivers are willing to maintain contact among the siblings. Despite placing the children in other homes, Hurtado conceded the children's paternal grandmother wanted to keep all the children with her, and no final home study had been done on the grandmother to establish whether that was a possibility. However, Hurtado said a preliminary home study indicated other children had been removed from the paternal grandfather's care because of problems with the paternal grandfather (she did not elaborate), and the grandmother had a criminal history (resisting arrest, drug possession, and theft).

         As to appellant, he was already incarcerated when the Department removed the children from their mother. Hurtado stated, "there's been statements that when he was out [of incarceration], things were - were better." However, according to Hurtado, appellant made choices that did not put his children first. She did not explain what she meant by these "choices." Because of his incarceration, appellant has not been able to provide the children with stability or a different life. Hurtado and appellant have exchanged letters and, in his last letter, appellant told her he would be up for parole in six to eight months. According to Hurtado, E.N.Q. said she loves her father, "things were better when he was out, " and she worries about what terminating her father's parental rights will mean. Hurtado stated the children thought their mother was "bad, " but they had fond memories of their father.

         The next witness, the Department's removing investigator, Anita Chavarria, testified the children were initially referred to the Department in November 2015 because the children were left with multiple caregivers and the mother used drugs. Chavarria said the mother's home was "gutted, " some areas had no walls and wiring was exposed, there was no water, food, or electricity, and C.A.Q. and K.C.Q. were soiled with urine and feces. At the time, the other two children, E.N.Q. and A.C.Q., were with their paternal great-grandmother. When Chavarria spoke with E.N.Q. and A.C.Q., they told her they "were being hit with a paddle and with whips from the tree outside, " the family knew about the mother's drug use but allowed them to visit with their mother, and a live-in cousin smoked marijuana. Chavarria said she looked into the children's paternal family as possible placements, but none were appropriate.

         The State also admitted into evidence three judgments. The first judgment indicated appellant pled nolo contendere to a robbery that occurred on or about January 7, 2009-a date less than three months before his eldest child, E.N.Q., was born. During the course of the robbery, appellant hit the complainant with his hand. He was sentenced on July 10, 2009, and placed on community supervision for six years. The second judgment indicated appellant pled nolo contendere to possession of a controlled substance, an offense that occurred on or about September 17, 2014-a date by which time all four children were born. He was sentenced on March 17, 2015 to five years' confinement. The third judgment indicates that, ...


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