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In re A.D.S.

Court of Appeals of Texas, Fourth District, San Antonio

August 2, 2017

IN THE INTEREST OF A.D.S. and J.P.S., Children

         From the 57th Judicial District Court, Bexar County, Texas Trial Court No. 2016PA00151 Honorable Richard Garcia, Judge Presiding

          Sitting: Sandee Bryan Marion, Chief Justice Karen Angelini, Justice Rebeca C. Martinez, Justice

          MEMORANDUM OPINION

          Rebeca C. Martinez, Justice.

         Appellant K.L.R. appeals the trial court's order terminating her parental rights to her children, A.D.S. and J.P.S. In four issues, Appellant contends the evidence was legally and factually insufficient to support the trial court's findings with regard to the three statutory grounds for termination and its finding that termination was in the children's best interest. We affirm the trial court's order.

         Background

         The Department of Family and Protective Services ("the Department") filed its original petition for conservatorship of the two children and for termination of their parents' parental rights on January 22, 2016. The termination hearing commenced on November 14, 2016.

         The State first called the Department caseworker, Jerred Moore, who had been assigned to the case since June 2016. Moore testified that A.D.S. was three years old and J.P.S. was a year old. The Department became involved with the family when a drug raid was conducted on the family home. At that time, Appellant and her boyfriend, the children's father, were arrested. Drugs and guns were found in the home, which Moore described as filthy with flies everywhere. He stated that the children were also very dirty. The children were also found to have dental cavities and were behind on their immunizations. Appellant tested positive for cocaine and marijuana and admitted to smoking marijuana as a coping mechanism.

         Moore stated that in order to regain custody of her children, Appellant was required to engage in drug treatment, parenting classes, and individual counseling, as well as undergo a psychological evaluation. Appellant did not complete out-patient drug treatment. She was asked to drug test multiple times; she tested positive on two occasions, but refused to test on many more occasions. Appellant also failed to attend Narcotics Anonymous classes as required. Appellant attended weekly counseling sessions, but according to Moore, she did not complete counseling and no progress was made. Appellant did complete the psychological evaluation; Moore did not know the outcome, except to say that continued therapy and parenting classes were recommended. Moore stated that the Department hoped Appellant would learn to stop the behavior that led to the children being removed in the first place, including her drug usage and her boyfriend's gang affiliation, and to be able to take care of her children on her own. Moore did not believe that Appellant came close to meeting that goal because she continues to test positive for drugs and blames the Department and family members for her actions. In addition, she is currently on probation and is not in compliance with the terms of her probation. Finally, she had not proven to Moore that she was living where she said she was living and had not provided a lease for him to see.

         Moore stated that Appellant had given him a notarized letter she wrote to the court indicating that she loved her children, but that she recognized she could no longer take care of them, and that she has tried to get her life together and has succeeded minimally on and off, but ultimately, her children have suffered from her actions. She also stated that she wanted her children to live in a safe and loving home and that she could not provide that for her children. During cross-examination, Appellant's attorney informed the court that the letter was written at a time when the parties were attempting to mediate and that Appellant intended to revoke the letter. Appellant's attorney also informed the court that Appellant was on deferred adjudication for a drug charge and that the State had filed a motion to adjudicate and that there was an active warrant for her arrest; he implied that Appellant would benefit from much needed in-patient drug treatment while in custody for six to nine months.

         According to Moore, Appellant often missed visits with her children; many times it was due to her refusal to drug test. The children were currently living with their paternal great-aunt, who was willing to adopt the children if parental rights were terminated. The children were very bonded to their great-aunt and she was able to meet their needs. On cross-examination, Moore stated that Appellant had threatened the great-aunt and her family via Facebook and phone calls, stating she would "shoot up the home" or "mess up their home." Moore stated it would be in the best interest of the children to have Appellant's parental rights terminated.

         The next witness was the original caseworker, Krystal Tipton. Tipton testified that Appellant failed drug treatment and tested positive for drugs after failing drug treatment. Tipton again referred Appellant to drug treatment services but Appellant did not follow through. Tipton explained that Appellant did not receive in-patient drug treatment because Appellant gave the providers lots of trouble, and was confrontational with them upon discharge from outpatient treatment; also, she refused to drug test. Tipton stated that Appellant missed several visits with the children during the case. Tipton did not believe Appellant made the changes she needed to make to regain custody of the children and she recommended Appellant's parental rights be terminated. Tipton believed the children were currently living in a good, safe, and appropriate home.

         Standard of Review

         To terminate parental rights pursuant to section 161.001 of the Code, the Department has the burden to prove: (1) one of the predicate grounds in subsection 161.001(b)(1); and (2) that termination is in the best interest of the child. See Tex. Fam. Code Ann. § 161.001 (West Supp. 2016); In re A.V., 113 S.W.3d 355, 362 (Tex. 2003). The applicable burden of proof is the clear and convincing standard. Tex. Fam. Code Ann. § 161.206(a) (West 2014); In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002). "'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 (West 2014).

         In reviewing the legal sufficiency of the evidence to support the termination of parental rights, the court must "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.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." Id. "A corollary to this requirement is that a court should ...


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