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In re E.M.

Court of Appeals of Texas, Fifth District, Dallas

September 15, 2017


         On Appeal from the 305th Judicial District Court Dallas County, Texas Trial Court Cause No. 15-00929-X

          Before Justices Francis, Brown, and Schenck



         Father appeals the trial court's order terminating his parental rights to his five-year-old daughter, E.M. In a single issue, Father asserts the evidence is legally and factually insufficient to support the finding that termination of his rights is in the child's best interest. We affirm.

         The Texas Department of Family and Protective Services filed a petition to terminate the parental rights of Mother and Father to E.M. Following a bench trial, the trial court terminated both parents' rights. Only Father appealed. Accordingly, the facts below generally focus on Father.

         Christine Fowler, the CPS caseworker assigned this case, testified E.M. was born April 6, 2011. Two years later, in April 2013, CPS received a referral that Mother was using drugs while caring for E.M. CPS opened an investigation and contacted Mother and Father. Both tested positive for drugs: Mother tested positive for methamphetamines and Father tested positive for amphetamines. The case was closed in June 2013 after both parents complied with Department recommendations and signed a safety plan stating that Father would not leave E.M. unsupervised with Mother.

         Seventeen months later, in October 2014, a relative reported both parents were using drugs around E.M. and moving around to different hotels. Despite the efforts of a special investigator, CPS could not locate E.M. or her parents, so a child safety alert was issued in January 2015. The alert remained in effect until E.M. was located seven months later after Mother was arrested for prostitution. When the police asked Mother about E.M.'s location, Mother claimed she was with the maternal grandfather. A welfare check was made, but the child was not at the location provided by Mother. E.M. was found two days later at an extended stay motel with "neighbors." E.M. was placed in foster care that day. The Department's first contact with Father was three days later.

         Temporary orders issued naming the Department temporary managing conservator and the parents as joint temporary possessory conservators with supervised access to E.M. Both parents were given service plans. Father's plan required him to participate in parenting classes, a psychological evaluation, a drug/alcohol assessment, individual counseling, and random drug testing. Fowler testified Father completed parenting classes and the psychological evaluation. He did not, however, complete the other services. In particular, he failed to submit to random drug testing as requested by CPS, except for three tests in September and November 2015 and May 2016. The September test was "concerning." Fowler acknowledged the November and May tests were negative, although Father waited for three weeks to take the May test.

         Also, while this case was pending, Father was arrested four times, twice on domestic violence charges involving Mother. In January 2016, Mother reported Father had choked her. Father was arrested and, in February, pleaded guilty to misdemeanor assault/family violence and was sentenced to ninety days in jail. That same month, Father was placed on deferred adjudication probation for three years for an April 2013 state jail felony theft. In May 2016, Father was arrested at a parent-child visitation on probation violations. The following month, Father was adjudicated guilty and sentenced to 360 days in county jail. Also in June 2016, Dallas police began investigating Father for a second family violence incident. In that case, Mother alleged Father punched her in the face, causing an injury to her eye and knocking her unconscious. Police charged Father with aggravated assault/family violence. The case was pending at the time of this trial, and Father was in jail and had been for nearly a month.

         Father's legal woes and transportation problems impacted his ability to visit E.M. He was late to several visits and missed several more. According to Fowler, Father saw E.M. once in January 2016, once in March, twice in April, four times in May, and twice in June. He had not seen E.M. since June at the time of trial in August 2016. Fowler acknowledged that when Father did visit with E.M., those visits were positive. She agreed E.M. was excited to see Father, she was "bonded" to him, had no "behavioral concerns, " and Father was able to manage her, address her emotional needs, and respond to her in encouraging ways.

         Fowler told the court she was never able to visit Father in his home because she did not know where he lived. She believed it was in E.M.'s best interest for Father's rights to be terminated based on "the dangerous environment, criminal activity and drug use" by both parents. When asked to identify the "danger" to E.M.'s "physical health" if left in Father's care, Fowler listed the drug use, domestic violence, criminal activity, and the instability of moving from motel to motel. Fowler said these factors also endanger E.M.'s emotional well-being.

         Dr. Myrna Dartson, a licensed psychologist, performed an evaluation of Father. She met with him on June 14, 2016. As part of her evaluation, she obtained a history from Father and then conducted an IQ test, achievement test, a personality test, a parent and stress index, and sentence completion test. The process took three to three-and-a-half hours.

         In her written report, she recommended E.M. remain in foster care indefinitely and said placement with either parent would be to the child's detriment and compromise her safety. She also recommended that Father participate in a batterer's intervention program and anger management counseling; participate in individual counseling to address family-relational concerns; and follow the service plan recommended to him by CPS.

         According to Dartson, Father denied any history of substance abuse or domestic violence in any romantic relationship although she had evidence to the contrary. As for criminal history, he said he was charged with theft when he failed to complete auto repair work on someone's car in a timely manner. He did not disclose his domestic violence charges. Father was also convicted of indecency with a child several years earlier, but he explained a former girlfriend falsely accused him of exposing himself to her child. As a result of the domestic violence incidents with Mother and the indecency with a child conviction, Dartson said she was concerned about E.M. being in Father's care. As she explained, a child living in an environment of domestic violence can suffer lasting emotional effects and also take on "learned ...

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