Court of Appeals of Texas, Fourth District, San Antonio
IN THE INTEREST OF J.M.L., J.L.B., E.L., R.M.B., and M.E.L., Children
the 285th Judicial District Court, Bexar County, Texas Trial
Court No. 2014-PA-02870 Honorable Charles E. Montemayor,
Sitting: Sandee Bryan Marion, Chief Justice Marialyn Barnard,
Justice Luz Elena D. Chapa, Justice.
Bryan Marion, Chief Justice
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. 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
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.
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.
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.
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.
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
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.
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.
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.
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