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In re J.L.B.

Court of Appeals of Texas, Fourth District, San Antonio

November 1, 2017

IN THE INTEREST OF J.L.B., ET AL.

         From the 73rd Judicial District Court, Bexar County, Texas Trial Court No. 2016PA00174 Honorable Richard Garcia, Judge Presiding.

          Sitting: Karen Angelini, Justice, Rebeca C. Martinez, Justice Irene Rios, Justice.

          MEMORANDUM OPINION

          IRENE RIOS, JUSTICE.

         AFFIRMED

         This is an accelerated appeal from an order terminating appellant-Mother's and appellant-Father's parental rights to their two children, J.L.B. and K.R.B. Mother presents two issues, and Father presents one issue, challenging the legal and factual sufficiency of the evidence to support the trial court's termination findings under Chapter 161 of the Texas Family Code. We affirm the trial court's termination order.

         Background

         On January 15, 2016, the Texas Department of Family and Protective Services ("the Department") received a referral alleging neglectful supervision against Mother because Mother tested positive for cocaine and marijuana at the time of J.L.B.'s birth. The referral indicated J.L.B is the youngest of Mother's four children and noted Mother did not have custody of the other three children. Upon validating the referral and based upon the parents' history with the Department, the Department filed its original petition on January 26, 2016.

         Following an adversary hearing held on March 1, 2016, the trial court signed a temporary order assigning the Department as temporary managing conservator of J.L.B. The trial court ordered Mother to comply with the requirements of the service plan, and Mother was allowed twice-monthly supervised visitation with J.L.B., which was contingent upon negative drug testing results. The trial court also ordered that Mother and Father complete a domestic violence course. The Department placed J.L.B. in foster care. The record indicates the March 1, 2016 temporary order did not address K.R.B. because she was already in the custody of her paternal grandmother as the result of the parents' previous Department involvement.

         On June 10, 2016, the Department received a referral alleging neglectful supervision of K.R.B. against Father because Father was arrested during a traffic stop for possessing "a pound" of heroin. The referral alleged K.R.B. was living in the same residence as Father that was "raided" subsequent to Father's arrest, and in which law enforcement officers discovered evidence of drug packaging and distribution. Upon validating the referral, the Department filed an amended petition to terminate Mother's and Father's parental rights to both J.L.B. and K.R.B on June 15, 2016.

         Following an adversary hearing held on June 28, 2016 regarding K.R.B., the trial court signed a temporary order assigning the Department as temporary managing conservator of K.R.B. and assigning Mother and Father as temporary possessory conservators with limited access. J.L.B. remained in foster care. The Department removed K.R.B. from the paternal grandmother's custody and initially placed K.R.B. in emergency care. The Department subsequently placed the siblings in foster care together with fictive kin recommended by Mother. The fictive kin placement was unsuccessful, and the Department moved the children into foster care.

         Following status and permanency hearings, the parties tried the case to the bench on March 10, 2017, March 23, 2017, and April 12, 2017. Mother and Father were both present at trial via teleconference. Both Mother and Father were represented by court-appointed counsel and testified on their own behalf. The trial court also heard testimony from Department investigator Jacqueline Jones and Department caseworkers Belinda Miller and Isaiah Crowe, IV.

         After the receipt of evidence and testimony, the trial court rendered judgment terminating Mother's parental rights to each child pursuant to Texas Family Code sections 161.001(b)(1)(D), (E), (N), (O), (P), and (R) and Father's parental rights to each child pursuant to Texas Family Code sections 161.001(b)(1)(D), (E), (N), (O), and (Q). The trial court also found termination of Mother's and Father's parental rights to be in the best interest of the children, pursuant to Texas Family Code section 161.001(2).

         Mother and Father appeal separately.

         Analysis

         Mother contends the evidence is legally and factually insufficient to support the trial court's finding of statutory grounds for termination of her parental rights to J.L.B. and K.R.B. pursuant to Texas Family Code sections 161.001(b)(1)(D), (E), (N), (O), (P), and (R). Mother additionally contends the evidence is legally and factually insufficient to support the trial court's finding that termination of her parental rights is in the best interest of the children. See Tex. Fam. Code Ann. §§ 161.001(b) (2) (West Supp. 2016). Father contends the evidence is legally and factually insufficient to support the trial court's finding that termination of his parental rights is in the best interest of the children. See id.

         Standard of Review

         To terminate parental rights pursuant to section 161.001 of the Code, the Department has the burden to prove: (1) one of the predicate grounds in subsection 161.001(b)(1); and (2) that termination is in the best interest of the child. See Tex. Fam. Code Ann. § 161.001 (West Supp. 2016); In re A.V., 113 S.W.3d 355, 362 (Tex. 2003). The applicable burden of proof is the clear and convincing standard. Tex. Fam. Code Ann. § 161.206(a) (West 2014); In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002). "'Clear and convincing evidence' means the measure or degree of proof that will produce in the ...


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