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In re R.G.B.

Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg

August 31, 2017

IN THE INTEREST OF R.G.B., A CHILD

         On appeal from the 156th District Court of Bee County, Texas.

          Before Justices Rodriguez, Contreras, and Benavides

          MEMORANDUM OPINION

          DORI CONTRERAS, JUSTICE

         This is an accelerated appeal of an order terminating parental rights. See Tex. R. App. P. 28.4. Appellant D.B., [1] biological mother of the child R.G.B., contends by one issue that her due process rights were violated when the trial court rendered judgment reciting four specific grounds for termination, despite the jury having returned a broad-form verdict. We affirm the judgment as modified.

         I. Background

         The Department of Family and Protective Services (the Department) filed its petition to terminate the parental rights of D.B. on November 5, 2015.[2] At trial, D.B. testified that she moved with her three children aged eleven, eleven, and five, from Arkansas to Texas in January of 2015 to live with her sister and brother-in-law. At the time, D.B. was on probation in Arkansas after pleading to the felony offenses of breaking and entering and forgery, and she conceded that one of her probation conditions was that she was not supposed to leave Arkansas.

         D.B., who was 31 years of age at the time of trial, acknowledged that she has been addicted to methamphetamine since the age of 15 or 16. She stated she came to Texas after her husband died "[b]ecause I was trying to get clean because I was doing drugs during my probation." D.B. stated that she became aware she was pregnant with R.G.B. a few months after she arrived in Texas, but she admitted that she continued to use methamphetamine during the course of her pregnancy, though she denied using it around the children. D.B. agreed that her sister and brother-in-law, whom she lived with, were also addicted to drugs and had been involved in domestic violence. Around September of 2015, D.B. had her mother-in-law take the other three children back to Arkansas.

         A Department investigator testified that D.B. tested positive for methamphetamine on October 21, 2015 and again on October 28, 2015. When R.G.B. was born on November 1, 2015, his meconium tested positive for methamphetamine. The Department determined that, because D.B.'s sister had recently been arrested and jailed, there was no suitable caregiver for R.G.B., and the Department sought and obtained removal of the child from D.B. The investigator later determined that D.B. had several prior arrests in Arkansas and had three outstanding warrants from that state. D.B. was arrested on November 11, 2015 for other outstanding warrants in Bee County and jailed briefly. Later, in August of 2016, D.B. was arrested and jailed in Karnes County.

         The Department set up a family service plan which was signed by D.B. and approved by the trial court at a status hearing. The service plan required D.B. to refrain from drug use and to provide a stable home for R.G.B. The Department caseworker testified that D.B. was offered fifteen drug tests and that she appeared for seven of them- three of the tests were positive, three were negative, and one was pending. The caseworker stated that, on March 21, 2016, D.B. showed up for a visit with R.G.B. while under the influence of methamphetamine. The caseworker also stated that D.B. has been difficult to locate, would not allow Department workers in her home, and had been generally uncooperative.

         In the charge of the court, the jury was instructed that, for the parent-child relationship between D.B. and R.G.B. to be terminated, "it must be proven by clear and convincing evidence that at least one of the following events has occurred":

1. [D.B.] has knowingly placed or knowingly allowed the child to remain in conditions or surroundings which endanger the physical or emotional well-being of the child;
2. [D.B.] has engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangers the physical or emotional well-being of the child;
3. [D.B.] has constructively abandoned the child who has been in the permanent or temporary managing conservatorship of [the Department] or an authorized agency for not less than six months and: (1) the Department or authorized agency has made reasonable efforts to return the child to the mother; (2) the mother has not regularly visited or maintained significant contact with the child; and (3) the mother has demonstrated an inability to provide the child with a safe environment;
4. [D.B.] has failed to comply with the provisions of a court order that specifically established the actions necessary for the mother to obtain the return of the child who has been in the permanent or temporary managing conservatorship of the Department of Family and Protective Services for not less than nine months as a result of the child's removal from the parent under the Texas Family Code, Chapter 262, entitled "Procedures in Suit by Governmental Entity to Protect Health and Safety of Child, " for the abuse or neglect of the child[.]

         The charge also contained the following instruction:

In addition, it must also be proven by clear and convincing evidence that termination of the parent-child relationship would be in the best interest of the child. The same evidence may be probative of both the acts or omissions stated and the best interest of the child. Some ...

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