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In re M.V.

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

August 31, 2017


         On appeal from the 36th District Court of Bee County, Texas.

          Before Justices Rodriguez, Contreras, and Benavides.


          GINA M. BENAVIDES, Justice.

         This appeal follows a jury verdict and subsequent judgment terminating appellant K.V.'s (Mother) parental rights to her two minor children, M.V. (Child M) and N.V. (Child N) (collectively the Children).[1] By two issues, Mother asserts that: (1) the trial court improperly entered an order of termination that failed to state specific grounds for termination; and (2) the evidence is insufficient to support a finding that termination of Mother's rights were in the Children's best interest. We affirm.

         I. Background

         On December 7, 2015, the Texas Department of Family and Protective Services (the Department) filed a petition seeking protection and conservatorship of Child M, age 5 at the time, and Child N, age 3 at the time. By its petition, the Department also sought termination of Mother's and father, B.V.'s (Father)[2] parental rights to the Children. According to an affidavit attached to its petition, the Department received information alleging that Mother and Father had neglectfully supervised the Children by using drugs and possessing drug paraphernalia in the Children's presence. Additionally, the Department received information that the Children had been used by Mother's sister, D.B., who lived with Mother and Father to commit a theft at a local Wal-Mart store. The Department's affidavit further states that on December 4, 2015, Beeville police arrested Mother for outstanding warrants stemming from theft charges out of Victoria County and Father for violating a protective order in place prohibiting contact with Mother. Also on that day, the Department received an order of emergency removal from the trial court to take custody of the Children.

         The record shows that at the time of the Department's involvement in this case, Mother was on probation for five years for two separate criminal offenses in Bee County: (1) burglary, a state-jail felony, see Tex. Penal Code Ann. § 30.02 (West, Westlaw through 2017 R.S.); and (2) theft in an amount greater than $1, 500 but less than $20, 000, a state-jail felony. See Acts 2011, 82d Leg., ch. 1234 (S.B. 694), § 21 (amended 2015) (current version at Tex. Penal Code Ann. § 31.03 (West, Westlaw through 2017 R.S.). In March 2016, the State filed a motion to revoke Mother's probation for a variety of reasons, including: failure to report, failure to attend and complete an intensive outpatient substance-abuse program, failure to report a change of address, and failure to submit to urinalysis two times per month as directed. Eventually, Mother was incarcerated on May 27, 2016 and was later transferred to an inpatient substance-abuse treatment facility until February 15, 2017. After her discharge from the inpatient substance abuse treatment facility, Mother transferred her probation from Bee County, Texas to the State of Arkansas in order to live with her father, T.C. (Maternal Grandfather).

         Mother, who was age 33 at the time of trial, testified that she started using methamphetamines at age 18, stopped using at age 20, and began using again when she turned "around 28 or 29." Mother admitted to using and being under the influence of methamphetamines when she was with Father and around the Children. Mother agreed that using methamphetamines around her children was dangerous. Mother also admitted that Father would physically assault her in front of the children, and agreed that her lifestyle of drug use and physical confrontations with Father in front of the Children was not good. Mother also admitted that the underlying criminal offenses for which she was on probation were the result of her being under the influence of drugs.

         While she was in custody as a result of the motion to revoke, Mother testified that she did not have any visitation with the Children. After her discharge from the inpatient substance-abuse treatment facility in February 2017, Mother moved to Arkansas to live with her father and her 19-year-old son. Mother told jurors that she recently gained employment cleaning houses and earns $200 per week. Mother also testified that she had recently filed for divorce from Father. Mother testified that she completed several programs, required by the Family Service Plan that the Department issued, including: cognitive therapy, individual counseling, and courses concerning life-healing choices, theft awareness, health, and work place skills. Mother denied using any drugs since leaving the inpatient substance-abuse treatment facility and stated that she is not the same person as when her children were removed by the Department.

         Department caseworker Jennifer Knapp testified that Mother failed to complete some aspects of her Family Service Plan, including individual counseling and couple's counseling to address her previous drug use and family violence. Knapp also testified that Mother was uncooperative with the Department, including failing to submit to six separate drug tests. Knapp has visited with the Children once a month since their immediate placement with their foster parents. Knapp described the Children's relationship with their foster parents as a "parent/child relationship" as compared to "more of a friend-type relationship" that they share with Mother. Knapp testified that the Children have thrived in their foster home, have built a "very strong" bond with their foster parents, and the Children told Knapp that they did not want to go back to living with Mother. Knapp stated that the Children told her that they had witnessed Mother and Father fighting, including "mom and dad stabbing one another." Knapp further testified that the Department was unable to conduct a home study on Maternal Grandfather's home in Arkansas because Maternal Grandfather had a padlock on a room in his home, and he would not unlock it for the home inspectors. Finally, Knapp opined that if the Children were removed from their current foster-home placement, the Children would be "traumatized."

         Court-appointed special advocate (CASA) volunteer Janet Kern testified that she spends approximately ten hours per week with the Children. According to Kern, Child M "is an A student" in school, and Child N is enrolled in a Head Start program and is doing "very well." Kern also testified that the children have built a "very strong bond" with their foster parents and have told her that "they don't want to go back" to their Mother. Kern stated that the Children appear to have a better relationship with their foster parents than with Mother and opined that Mother's parental rights should be terminated.

         Foster mother, P.L. (Foster Mother), testified that the Children began living with her and her husband (Foster Father) on December 4, 2015. According to Foster Mother, when the Children initially arrived, they were "nervous, scared, [and] terrified." Specifically, Foster Mother testified that Child M is "smart" and thriving in school and now brings home higher marks in class than he did when he first started. Foster Mother told jurors that the Children call her "mommy" and her husband "daddy." Foster Mother described the daily structure that she and her husband have built for the Children from the time that they wake up every morning, until they go to sleep. Foster Mother stated that she currently works for the local school district, while her husband works for an energy company. Foster Mother stated that she and Foster Father have plans to adopt the Children, but were advised to wait to begin the process until the current case is resolved. Finally, Foster Mother opined that if the Children were removed from their foster placement, they would go "downhill."

         Following the close of evidence at trial, a Bee County jury rendered a verdict terminating Mother's parental rights, after finding by clear and convincing evidence that Mother "has done at least one of the following":

(1) knowingly placed or knowingly allowed the Children to remain in conditions or surroundings which endangered the physical or emotional well-being of the children, see Tex. Fam. Code Ann. § 161.001(b)(1)(D) (West, Westlaw through 2017 R.S.);
(2) engaged in conduct or knowingly placed the Children with persons who engaged in conduct which endangers the physical or emotional well-being of the Children, see id. § 161.001(b)(1)(E) (West, Westlaw through 2017 R.S.);
(3) constructively abandoned the Children who have been in the permanent or temporary managing conservatorship of the Department for not less than six months, and: (i) the Department has made reasonable efforts to return the children to Mother, (ii) Mother has not regularly visited or maintained significant contact with the Children, and (iii) Mother has demonstrated an inability to provide the Children with a safe environment, see id. § 161.001(b)(1)(N) (West, Westlaw through 2017 R.S.); and
(4) failed to comply with the provisions of a court order that specifically established the actions necessary for 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 Chapter 262 for the abuse or neglect of the child. See id. § 161.001(b)(1)(O) (West, Westlaw through 2017 R.S.).

         Furthermore, the jury also found by clear and convincing evidence that termination of Mother's parental rights to Child M and ...

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