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In re B.H.R.

Court of Appeals of Texas, Sixth District, Texarkana

November 7, 2017

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

          Submitted: November 1, 2017

         On Appeal from the 402nd District Court Wood County, Texas Trial Court No. 2016-128

          Before Morriss, C.J., Moseley and Burgess, JJ.

          OPINION

          Bailey C. Moseley, Justice.

         The Texas Department of Family and Protective Services (the Department) brought suit in Wood County to terminate Della's parental rights to her daughter, Brie.[1] Following a jury trial, Della's parental rights were terminated.[2] In its order of termination, the trial court found, (1) under Section 161.001(b)(1)(D) of the Family Code, that Della placed or allowed the child to remain in conditions or surroundings that endangered the child's well-being; (2) under Section 161.001(b)(1)(E) of the Family Code, that Della engaged in conduct or placed the child with persons who engaged in conduct that endangered the child's well-being; (3) that, under Section 161.001(b)(1)(O) of the Family Code, Della failed to comply with a court-ordered service plan that established the actions necessary for her to obtain Brie's return; and (4) that termination was in the child's best interests. See Tex. Fam. Code Ann. § 161.001(b)(1)(D), (E), (O) (West Supp. 2016).

         In this accelerated appeal, Della argues that (1) the trial court erred in failing to dismiss the case under Section 263.401 of the Family Code; (2) the evidence was factually insufficient to support the statutory grounds for termination; and (3) the evidence was factually insufficient to support the court's finding that termination was in the best interest of the child.

         We affirm the trial court's judgment because (1) Della waived her right to object to the trial court's failure to dismiss the suit; (2) termination under Ground O was supported by factually sufficient evidence; and (3) there was factually sufficient evidence that termination was in the child's best interest.

         I. Procedural and Factual Background

         Della is the mother of one son, Henry, and one daughter, Brie. Brent is the father of Brie, but not Henry. At the time of trial in this case, Henry was eleven or twelve years old and Brie was sixteen months old.

         In December 2015, while Della was still pregnant with Brie, the Department received a report alleging domestic violence in the home of Della and Brent. Amber Moline, the Department caseworker assigned to the case, interviewed then ten-year-old Henry, who told her that he did not feel safe in the home because Della and Brent, whom Henry called dad, frequently fought and that when that happened, "it was scary because his mom would get hit. And when she would, she would try to either get a gun or a cell phone to call for help." The boy said that Brent would threaten to kill them, and Henry was afraid of him and "afraid that his dad was going to kill his mom and his [unborn] baby sister." Henry also said that Brent would retaliate by leaving him and his mother stranded without transportation.

         Della admitted that she and Brent "fought a little bit, " but claimed that it "never got physical." Della claimed that Henry was not afraid of Brent, but rather, that he did not "care for him" or his "structure." She also denied that Brent had ever stranded them on the side of the road, but she admitted that they had "taken off walking several times."

         Because Della refused to leave the house and go somewhere safe from abuse, the Department obtained temporary managing conservatorship of Henry and, after several attempts, located Henry and placed him with his maternal aunt, Kasey. Kasey testified that when Henry first arrived at her home, he was "very scared, " angry, and not sleeping very well at night. She indicated that if Henry believed Brent to be nearby or to be coming to visit, he became "real nervous and scared" and stated that when he saw a truck that resembled Brent's, he got down on "the ground real fast." After undergoing counseling and therapy at school, Henry had shown substantial improvement, appearing to be more calm, having fewer outbursts, and sleeping through the night. Kasey has since been named Henry's permanent managing conservator, with Della still retaining a role in Henry's life.

         In February 2016, Brent filed a petition for divorce from Della, seeking to have them appointed joint managing conservators of the as-yet-unborn Brie. Two days after Brie was born, the Department intervened in the divorce action, and due to the danger posed by Della's continuing relationship with Brent, the Department was appointed emergency temporary managing conservator of Brie.

         The Department also obtained a writ of attachment for Brie, but it took several days to find her. On April 19, 2016, Kyle Henson, an investigator with the Wood County Sheriff's Office, saw Della, Brent, and Brie driving away from a residence in a truck that was hauling a travel-trailer loaded with personal belongings. It appeared as if they were "leaving town, " so Henson stopped the truck. After a lengthy argument with Brent, the couple gave Brie to Kathy Thurman, the Department Investigator, and Brie was placed with her brother, Henry, at the home of Della's sister, Kasey.

         After further hearings, the trial court appointed the Department temporary managing conservator of Brie, granted Della visitation with the child, and ordered Della to complete a service plan if she was to have the child returned to her. On June 7, 2017, the Department filed an amended petition that sought to terminate the parental rights of Della and Brent as to Brie, alleging several grounds for termination as to each parent.

         At the conclusion of the resulting three-day trial, the jury returned a verdict wherein it found that the parent-child relationship existing between both Della and Brent with Brie should be terminated. Based on the verdict, the trial court entered an order of termination, finding that Della placed or allowed the child to remain in conditions or surroundings that endangered the child's well-being, that she had either engaged in conduct or placed the child with persons who engaged in conduct that endangered the child's well-being, that she had failed to comply with a court-ordered service plan that established the actions necessary for her to obtain Brie's return, and that ...


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