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In re J.M.L.

Court of Appeals of Texas, Fourth District, San Antonio

August 2, 2017

IN THE INTEREST OF J.M.L., J.L.B., E.L., R.M.B., and M.E.L., Children

         From the 285th Judicial District Court, Bexar County, Texas Trial Court No. 2014-PA-02870 Honorable Charles E. Montemayor, Judge Presiding

          Sitting: Sandee Bryan Marion, Chief Justice Marialyn Barnard, Justice Luz Elena D. Chapa, Justice.

          MEMORANDUM OPINION

          Sandee Bryan Marion, Chief Justice

         S.B., the mother of J.M.L, J.L.B., E.L., R.M.B., and M.E.L., and J.T., the father of E.L. and R.M.B., appeal the trial court's order terminating their parental rights.[1] S.B. and J.T. both contend the evidence is insufficient to support the trial court's finding that termination of their parental rights was in the best interest of the children. We affirm the trial court's order.

         Background

         The children were removed from the care of S.B. and J.L. in December of 2014. Although the children were returned to their mother and J.L. in August of 2015, the children were removed for a second time in December of 2015. A bench trial was started on May 19, 2016; however, after the trial court called the case for trial, the attorney representing J.L. and J.T. requested to withdraw because of a conflict in representing both fathers. The trial court granted the request and appointed new attorneys to represent J.L. and J.T. The trial court then recessed the case to allow the new attorneys to familiarize themselves with the case.

         Trial resumed on December 9, 2016. At that time, J.M.L. was ten, J.L.B. was nine, E.L. was seven, R.B.M. was six, and M.E.L. was almost four. When trial resumed, J.T. was present; however, neither S.B. nor J.L. appeared at trial. At the conclusion of the evidence, the trial court terminated the parents' rights and signed the order of termination on March 9, 2017.

         At trial, Penny Robertson, the children's therapist, testified she began working with the children in July of 2016. During a therapy session on October 13, 2016, the youngest child, M.E.L., made an outcry, stating J.L. hit her on her private parts and slapped her in the face. M.E.L. stated S.B. was in the room when this abuse occurred. When the children were asked to draw a picture of their family, the two oldest children drew the five siblings together, while the two youngest children included the five siblings and their foster mother and father. None of the children included any of their biological parents in their pictures. R.M.B. told Robertson his visits with J.T. were "good." Robertson had not observed any interaction between J.T. and R.M.B. or E.L. and was not in a position to make any recommendation regarding the termination of J.T.'s parental rights. Robertson also had not observed any interaction between S.B. and the children.

         Angelica Herrington, J.T.'s parole officer, testified J.T. was incarcerated in Colorado for robbery before being released on parole. Herrington did not remember when J.T. came to Texas. As a condition of parole, J.T. was required to submit to drug testing. Herrington testified J.T. tested positive for marijuana in July, August, and September of 2016. After the first positive test, J.T. was sent to a three-month treatment program. Herrington could not recall if J.T. completed that program. In response to whether Herrington sent J.T. to "anything else after he came up positive the second or third time, " Herrington testified J.T. was still under the initial treatment program when he tested positive the second and third time. In response to Herrington's questions, J.T. admitted to using marijuana one time but stated the other positive tests were from being around coworkers. Herrington told J.T. he needed to remove himself from the situation if his coworkers were using drugs around him; however, Herrington stated J.T. did not make any changes as far as she knew. Herrington stated J.T. complied with all of the other conditions of his parole. Herrington stopped monitoring J.T. in October of 2016. J.T. was scheduled to be released from parole on March 15, 2017.

         Leonor Delgado, an elementary school counselor, worked with the children from August of 2015 to November of 2015, and had concerns about their academic progress. Although J.M.L. should have been in the fourth or fifth grade, she was placed in the third grade and was behind in that grade. The children's parents never attended any parent-teacher conferences.

         Virginia Rodriguez, an investigator for the Department, testified she investigated an intake referral in December of 2015 after J.M.L. made an outcry stating J.L. sexually abused her. During the investigation, J.M.L. told Rodriguez that J.L. had been touching her for five years under her bra and panties and that he was also touching E.L. When Rodriguez interviewed S.B., S.B. stated she knew J.L. was touching J.M.L. but did not know he was touching E.L. At the conclusion of her investigation, Rodriguez validated the abuse.

         J.T. testified he was incarcerated for robbery in Colorado when the Department removed the children in December of 2014. J.T. was sentenced to three years' incarceration followed by three years' of parole. J.T. testified he was serving his last month of parole. J.T. acknowledged the Department had concerns about his drug use and admitted he tested positive for drugs in September of 2016 when he was tested by the Department. J.T. denied using marijuana in July but admitted using it in August because his girlfriend had suffered a miscarriage. J.T. asserted the other positive drug tests were due to secondhand smoke from being around his coworkers. J.T. was first incarcerated in 2011 and learned about E.L. being molested in October or November of 2015. At that time, J.T. was on the run but tried to get his children out of Texas. J.T. admitted he never made a report to the police regarding the abuse. J.T. had been living with his mother since being released on parole. After being released, J.T. planned to get a better job and move into a house behind a friend's house. When he was asked for the address of the house, J.T. responded, "I couldn't tell you that shit off of my head. I know it's on - off Finch, but I don't know the number." When asked to describe the house, J.T. stated it has water and two bedrooms. J.T. was planning to sleep in the living room so E.L. and R.M.B. would each have their own room. J.T. testified he took care of his children for six months "[l]ast year when [he] was on the run, " and bought them school supplies, school pictures, food, and everything else they needed. J.T. admitted the children were not in his care full time, and the last time the children were in his care full time was in 2010. J.T. stated he was on the run for the same robbery charges and also admitted he had a charge pending against him in 2011 for possession of cocaine. Although he was raised around drugs, J.T. testified he broke free of drug issues in 2002 when he joined the Marines and served for three years. Since May of 2016, J.T. had visited his children twice a month and said the visits went "really good." Acknowledging all of the children were bonded, J.T. testified he was willing to take all of the children.

         On cross-examination, J.T. stated he had not moved into the house on Finch Road because he only wanted a two-bedroom house if he received custody of the children. J.T. testified his former caseworker was aware he wanted custody of all of the children. J.T. stated his last drug test for parole was the day before the trial, and the test results were negative.

         Alyssa Cordova, the Department's current legal worker on the case, testified J.T. had not completed his service plan. When J.T. was released from incarceration and placed on parole, everything was in place to allow him to finish his service plan. J.T. had not finished his therapy, and the therapist had not seen J.T. for the past two months. J.T. told Cordova he had been unable to reach the therapist. J.T. also tested positive on his drug tests. J.T. told Cordova the positive tests were due to secondhand smoke, but Cordova did not believe him. Cordova testified J.T. was living with his mother, and her home would not be an appropriate placement for the children because his mother's parental rights were terminated based on her serious history with the Department. Although J.T. understood his mother's home was not appropriate, J.T. never provided Cordova with alternative living arrangements, and she first heard of the house on Finch during J.T.'s trial testimony. Cordova did not believe J.T. had a safe and stable home for the children and was not aware of any support system J.T. had for the children. ...


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