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In re K.D.

Court of Appeals of Texas, Sixth District, Texarkana

November 17, 2017


          Submitted Date: November 13, 2017

         On Appeal from the 115th District Court Marion County, Texas Trial Court No. 16-00038

          Before Morriss, C.J., Moseley and Burgess, JJ. Memorandum Opinion by Chief Justice Morriss



         After establishing a long-standing pattern of bad choices and drug and physical abuse, Mother[1] had her parental rights to K.D., C.D., and C.F., III, terminated in a jury trial in Marion County.[2] In this accelerated appeal, Mother argues that the evidence was factually insufficient to support termination on grounds D, E, N, and O under the Texas Family Code and that the evidence was legally and factually insufficient on grounds M and P. See Tex. Fam. Code. Ann. § 161.001(b)(1)(D), (E), (M), (N), (O), (P) (West Supp. 2017). She also complains that the evidence was legally and factually insufficient to support the jury's finding that termination of her parental rights was in the children's best interests and that, because the jury charge failed (a) to include an independent finding that termination was in the children's best interests and (b) to require the jury to identify the ground(s) on which termination was based, the jury charge was legally defective. Consequently, Mother claims that she was denied due process of law.

         We affirm the trial court's order because (1) sufficient evidence supports at least one predicate ground for termination, (2) sufficient evidence supports the best-interest finding, and (3) Mother's complaint regarding jury charge error was not preserved for review.

         (1) Sufficient Evidence Supports at Least One Predicate Ground for Termination

         Mother's relationship with C.F., Jr., her more recent husband and the father of one of the children involved here, was marred by domestic violence.[3] As a result, Mother filed assault charges against C.F., Jr., in mid-2015, but ultimately dropped those charges when C.F., Jr., who was on parole, agreed to counseling. In October 2015, C.F., Jr., choked Mother while he was holding C.D. Mother asked her daughter, K.D., to call 9-1-1 on that occasion. In December 2015, C.F., Jr., punched Mother in the face "a couple of times." Although the children were outside in the truck during this incident, K.D. again called 9-1-1 to report the assault.

         Sometime thereafter C.F., Jr., was jailed-for the reported incidents of domestic violence-and was released in February 2016. On his release from jail, C.F., Jr., returned to the family home with Mother, K.D., C.D., and C.F., III. In June 2016, after the children were in the Department's custody, Mother and C.F., Jr., "punched each other a few times" during a counseling session.[4] Although Mother acknowledged that her children would be emotionally disturbed by being in the presence of abusive conduct, Mother was not willing to give up on her marriage.

         C.F., Jr., also used drugs and had a history of criminal convictions. In the summer of 2016, C.F., Jr., tested positive for methamphetamine. During this same time frame, C.F., Jr., was involved in a theft scheme. When Mother discovered C.F., Jr.'s, involvement in the theft scheme and confronted him about it, C.F., Jr., became angry and hit Mother, breaking her nose and causing an orbital fracture. As a result of this incident, C.F., Jr., was again jailed and was released in September 2016.[5] The evidence showed that C.F., Jr., had a long-term methamphetamine addiction, dating back to the age of sixteen. Mother left the children in the care of C.F., Jr., when she was working.

         The Department initially made contact with Mother in December 2015, after reports of domestic violence in the home. After the Department investigator determined that C.F., Jr., was in jail, it took no further action. In January 2016, the Department was contacted with a report of Mother's physical abuse of her elderly father and a second report that Mother took C.F., III, to the emergency room because he had possibly swallowed four Alprazolam.[6] There were concerns at that time that Mother was using methamphetamine because she had sores all over her body. When the Department investigator contacted Mother, Mother refused drug testing. In February 2016, Mother told a Department investigator that C.F., Jr., was in jail for domestic violence, but she intended to reunite with him. Mother also indicated that she had gotten into an altercation with her sister-in-law and was injured as a result.[7]

         A few days later, Mother contacted the Department to advise that she had moved to Tyler, that she was going to turn herself in on a warrant for her arrest for abuse of her elderly father, and that the children would be with Shelacy Hebert.[8]

         On March 11, 2016, the Department received the results of Mother's drug test, indicating positive results for marihuana and methamphetamine. Mother admitted during counseling that, in addition to marihuana and methamphetamine, she had used cocaine in the past. On March 16, 2016, the children were removed from the home.[9] After the removal, drug tests were performed on the children. C.F., III, tested positive for methamphetamine, amphetamine, cocaine, and marihuana. The evidence indicates that one of the other two children tested positive as well, although the record is not clear regarding which child, in addition to C.F., III, was exposed.

         Shortly thereafter, the trial court issued a temporary order requiring Mother, among other things, to perform certain tasks in order to regain possession of her children. The temporary order required Mother to complete a psychological evaluation and drug and alcohol assessment, submit to drug testing as requested, [10] complete a parenting course, and participate in counseling, to include domestic violence counseling and anger management.

         Mother underwent a psychological evaluation and substance abuse assessment. The psychological evaluation indicated that Mother presented with a personality disorder, major depressive disorder, and post-traumatic stress. Mother was prescribed medications for some of her diagnoses, but she does not take the prescribed medications.

         As a result of the psychological evaluation, Mother was ordered to attend counseling. At that time, she was living in Magnolia, Arkansas, and counseled with Pastor Ron Owens. Mother completed an anger management course but was ordered to take the course again, after she and her husband engaged in a physical confrontation during a counseling session.[11] As a result of the substance abuse assessment, Mother was to receive outpatient drug treatment. Although she did not receive such treatment, Mother testified that she attended Celebrate Recovery in Magnolia, although she did not provide any documentation of her attendance.[12] Mother was also ordered to pay child support in the amount of $200.00 per month beginning July 1, 2016. Mother has failed to make any child support payments.

         The last time Mother visited with her children was in September 2016. Mother's visitation was terminated by court order in October 2016 after she moved to Magnolia.

         Before the commencement of this case, Mother's parental rights were terminated with respect to her first child, T.D.M., in Arkansas. Mother admitted that she did not complete her services in the Arkansas case and that she had a drug problem at that time. Mother testified that she no longer has a drug problem.[13] Hebert, a long-time friend of Mother's, testified that Mother has used methamphetamine. Between 2009 and 2014, Mother has been involved in fourteen Department interventions.

         "The natural right existing between parents and their children is of constitutional dimensions." Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985). Indeed, parents have a fundamental right to make decisions concerning "the care, the custody, and control of their children." Troxel v. Granville, 530 U.S. 57, 65 (2000). "Because the termination of parental rights implicates fundamental interests, a higher standard of proof-clear and convincing evidence-is required at trial." In re A.B., 437 S.W.3d 498, 502 (Tex. 2014). This Court is therefore required to "engage in an exacting review of the entire record to determine if the evidence is . . . sufficient to support the termination of parental rights." Id. at 500. "[I]nvoluntary termination statutes are strictly construed in favor of the parent." In re S.K.A., 236 S.W.3d 875, 900 (Tex. App.-Texarkana 2007, pet. denied) (quoting Holick, 685 S.W.2d at 20).

         In order to terminate parental rights, the trial court must find, by clear and convincing evidence, that the parent has engaged in at least one statutory ground for termination and that termination is in the child's best interest. Tex. Fam. Code Ann. § 161.001 (West Supp. 2017); In re E. N.C. , 384 S.W.3d 796, 798 (Tex. 2012). Clear and convincing evidence is that "degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established." Tex. Fam. Code Ann. § 101.007 (West 2014); see In re J.O.A., 283 S.W.3d 336, 344 (Tex. 2009). This standard of proof necessarily affects our review of the evidence.

         In our legal sufficiency review, we consider all the evidence in the light most favorable to the findings to determine whether the fact-finder could reasonably have formed a firm belief or conviction that the grounds for termination were proven. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005) (per curiam); In re J.L.B., 349 S.W.3d 836, 846 (Tex. App.-Texarkana 2011, no pet.). We assume the trial court, acting as fact-finder, resolved disputed facts in favor of the finding if a reasonable fact-finder could do so, and ...

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