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In re R.P.

Court of Appeals of Texas, Fourth District, San Antonio

June 28, 2017

IN THE INTEREST OF R.P. JR., G.P., M.P., and R.M.A.P., Minor Children

         From the 131st Judicial District Court, Bexar County, Texas Trial Court No. 2015PA01825 Honorable Richard Garcia, Judge Presiding[1]

          Sitting: Marialyn Barnard, Justice Patricia O. Alvarez, Justice Irene Rios, Justice


          Patricia O. Alvarez, Justice

         This is an accelerated appeal of the trial court's order terminating Appellant Mom's and Appellant Dad's parental rights to their children, R.P. Jr., G.P., M.P, and R.M.A.P.[2] Neither Mom nor Dad contest that the evidence was sufficient to support the trial court's terminations based on statutory grounds. See Tex. Fam. Code Ann. § 161.001(b)(1)(D), (E), (O) (West Supp. 2016). On appeal, Mom and Dad individually assert the evidence is neither legally nor factually sufficient for the trial court to have found by clear and convincing evidence that terminating each of their parental rights was in the children's best interests. See Tex. Fam. Code Ann. § 161.001(b)(2). Because we conclude the evidence is legally and factually sufficient to support the trial court's findings in both cases, we affirm the trial court's order terminating Mom's and Dad's parental rights to R.P. Jr., G.P., M.P., and R.M.A.P.

         Factual and Procedural Background

         On August 12, 2015, the Texas Department of Family and Protective Services received a referral following Mom's suicide attempt. A follow-up investigation revealed domestic violence between Mom and Dad, an unstable living environment for the children, a failure to supervise the children, and a lack of viable relative options for placement.

         On August 28, 2015, the Department filed its Original Petition for Protection of Children, for Conservatorship, and for Termination in Suit Affecting the Parent-Child Relationship. Following an emergency order, the children were placed in the temporary managing conservatorship of the Department; Mom and Dad were granted temporary possessory conservatorship.

         The Department created individual family service plans for Mom and Dad; the plans set forth the services and classes required before the children could return home to either Mom or Dad. After several status and permanency hearings, on November 14, 2016, the trial court called the matter for trial. Following a hearing, the trial court terminated Mom's and Dad's parental rights pursuant to Texas Family Code Sections 161.001(b)(1) (D), (E), (O). See Tex. Fam. Code Ann. § 161.001(b)(1)(D), (E), (O).[3] The trial court further found termination of both Mom's and Dad's parental rights was in the children's best interests. See id. § 161.001(b)(2). This appeal ensued.

         Sufficiency of the Evidence

         A. Standards of Review

         "Involuntary termination of parental rights involves fundamental constitutional rights and divests the parent and child of all legal rights, privileges, duties, and powers normally existing between them, except for the child's right to inherit from the parent." In re L.J.N., 329 S.W.3d 667, 671 (Tex. App.-Corpus Christi 2010, no pet.) (citing Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985)). As a result, appellate courts must strictly scrutinize involuntary termination proceedings in favor of the parent. Id. (citing In re D.S.P., 210 S.W.3d 776, 778 (Tex. App.- Corpus Christi 2006, no pet.)).

         An order terminating parental rights must be supported by clear and convincing evidence that (1) the parent has committed one of the grounds for involuntary termination as listed in section 161.001(b)(1) of the Family Code, and (2) terminating the parent's rights is in the best interest of the child. See Tex. Fam. Code Ann. § 161.001; In re J.F.C., 96 S.W.3d 256, 261 (Tex. 2003). "'Clear and convincing evidence' means the measure or degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established." Tex. Fam. Code Ann. § 101.007; J.F.C., 96 S.W.3d at 264.

         "There is a strong presumption that the best interest of the child is served by keeping the child with its natural parent, and the burden is on [the Department] to rebut that presumption." In re D.R.A., 374 S.W.3d 528, 533 (Tex. App.-Houston [14th Dist.] 2012, no pet.). "The same evidence of acts or omissions used to establish grounds for termination under section 161.001[(b)](1) may be probative in determining the best interest[s] of the child[ren]." Id.

         1. Legal Sufficiency

         When a clear and convincing evidence standard applies, a legal sufficiency review requires a court to "look at all the evidence in the light most favorable to the finding to determine whether a reasonable trier of fact could have formed a firm belief or conviction that its finding was true." In re J.L., 163 S.W.3d 79, 85 (Tex. 2005) (quoting J.F.C., 96 S.W.3d at 266). If the court "determines that [a] reasonable factfinder could form a firm belief or conviction that the matter that must be proven is true, then that court must conclude that the evidence is legally [sufficient]." See id. (quoting J.F.C., 96 S.W.3d at 266). "[A] reviewing court must assume that the factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could do so." J.F.C., 96 S.W.3d at 266. "A corollary to this requirement is that a court should disregard all evidence that a reasonable factfinder could have disbelieved or found to have been incredible." Id.

         2. Factual Sufficiency

         Under a clear and convincing standard, evidence is factually sufficient if "a factfinder could reasonably form a firm belief or conviction about the truth of the State's allegations." In re C.H., 89 S.W.3d 17, 25 (Tex. 2002); accord In re K.R.M., 147 S.W.3d 628, 630 (Tex. App.-San Antonio 2004, no pet.). We must consider "whether disputed evidence is such that a reasonable factfinder could not have resolved that disputed evidence in favor of its finding." J.F.C., 96 S.W.3d at 266; accord C.H., 89 S.W.3d at 25. "If, in light of the entire record, [unless] the disputed evidence that a reasonable factfinder could not have credited in favor of the finding is so significant that a factfinder could not reasonably have formed a firm belief or conviction, . . . the evidence is factually [sufficient]." J.F.C., 96 S.W.3d at 266.

         B. Testimony Before the Trial Court

         1. Valencia Wright

         Valencia Wright, the Department's caseworker, testified the Department removed the children following a suicide attempt by Mom in August of 2015; she overdosed on R.P. Jr's psychotropic medication. After Mom's admission to the hospital, Mom requested the Department care for her children; she "needed time to get herself together." At the time of the hearing, R.P. Jr. was nine-years-old, G.P. was seven-years-old, M.P. was four-years-old, and R.M.A.P. was three-years-old.

         Wright testified that Mom's service plan included domestic violence classes, parenting classes, and individual and family therapy. Mom initiated counseling, but was discharged following excessive absences. The service plan also required Mom to maintain stable housing and employment and to submit for random drug testing. At the time of the hearing, Mom did not have stable employment or housing.

         Wright averred that, although Mom completed both parenting and domestic abuse classes, she failed to demonstrate anything she learned from the class. Concerns remained regarding ongoing domestic violence. The main recommendation contained in Mom's psychological assessment was for her not to engage in a relationship with Dad. Wright discussed the recommendation with Mom on several occasions to no avail. Specifically, Wright relayed that in August of 2016, Mom "punched out [Dad]'s windows in his truck. [Dad], apparently, went to where [Mom] was staying and . . . busted out a mirror in the home." In addition to the physical abuse, Wright documented emotional abuse including text messages back and forth between the parents, threatening each other and each other's families. The last text messages documented by Wright, in October of 2016, occurred shortly before the termination hearing.

         Wright testified that Dad was likewise provided a safety plan upon the children entering the Department's custody. He failed to complete many of the services, including individual counseling and domestic violence classes. In fact, Wright relayed that Dad had to restart the family violence class three times because of missed classes. Dad did complete a parenting class and appeared to have a lease on an apartment.

         Wright outlined the Department's concerns regarding medical neglect of the children. Despite several attempts to explain how excessive sugars can cause harm to the children's teeth, both parents continued to bring snacks and inappropriate foods to the visits. For example, G.P.'s teeth were completely rotted and required surgery to place caps on all of his teeth. Yet, neither Mom's nor Dad's behavior changed throughout the pendency of the case.

         Both parents regularly attended visitations and were bonded with their children. Originally, the visitations were joint, with both parents. However, after Mom's outcry that Dad hit her when he was drunk, the Department separated the visits. Wright testified the parents' ongoing behavior continued to endanger both the physical and emotional well-being of the children. Wright opined she did not think either Mom or Dad could safely care for the children. The parents failed to project appropriate behaviors, continued to engage in domestic violence, remained untruthful with the caseworkers, and continued in a toxic, on-again, off-again relationship.

         Wright testified the children were doing very well in placement. R.P. Jr. struggles with reading, spelling, and math and is currently taking medication for Attention Deficit Hyperactivity Disorder. As the case has progressed, R.P. Jr. has relayed specific details about his mother's suicide attempt, the fighting between his parents immediately preceding the incident, and his attempt to stop the suicide. He is currently in therapy and is beginning to address these issues. Although only nine-years-old, R.P. Jr. appears to step into the parent role for his siblings. During visits, R.P. Jr. takes the children to the bathroom and generally cares for the children's needs. G.P. is also in therapy-predominantly addressing the domestic violence witnessed in the home. Although M.P. and R.M.A.P. both require speech therapy, neither child exhibits special needs.

         The children were thriving in their foster home and the Department was hopeful all four children would be adopted together. Wright explained that she had been unable to locate a relative for placement. Finally, Wright testified that ongoing cases with the Department, or failure to complete the necessary paperwork, excluded placement with the maternal grandmother, the maternal brother, the paternal sister, or the paternal grandmother.

         2. Jerry Allen

         Jerry Allen, the Department's investigator, testified that he received the initial report on August 12, 2015. After several visits, on August 24, 2015, Allen found the family living at a hotel. Although the original referral only included Mom's suicide attempt, other concerns materialized. Allen expressed concerns regarding domestic violence, the lack of a stable living environment, neglectful supervision, and drug use by Dad. Both of the older children discussed their mother's suicide attempt with Allen, and provided further details regarding the domestic abuse. Allen also testified regarding the children being outside late at night and roaming in-and-out of traffic.

         An emergency meeting was scheduled for the following day. When the maternal grandmother refused to take a drug screen and was uncooperative with the Department, she was excluded from placement. Allen testified that Mom was cooperative, acknowledging that she needed help, and requesting the ...

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