Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

In re F.L.H.

Court of Appeals of Texas, Fourth District, San Antonio

December 27, 2017

IN THE INTEREST OF F.L.H. IV and D.H., Minor Children

         From the 45th Judicial District Court, Bexar County, Texas Trial Court No. 2016PA01447 Honorable Stephani A. Walsh, Judge Presiding[1]

          Sitting: Sandee Bryan Marion, Chief Justice Karen Angelini, Justice Patricia O. Alvarez, Justice

          MEMORANDUM OPINION

          Patricia O. Alvarez, Justice

         This is an accelerated appeal of the trial court's order terminating Appellant Dad's and Appellant Mom's parental rights to their children, F.L.H. IV and D.H.

         In their appeals, both Mom and Dad contend the evidence is neither legally nor factually sufficient for the trial court to have found by clear and convincing evidence that terminating Dad's and Mom's parental rights was in F.L.H. IV's and D.H.'s best interests. See Tex. Fam. Code Ann. § 161.001(b)(2) (West Supp. 2016). In her appeal, Mom also contends that, pursuant to Strickland v. Washington, 466 U.S. 668 (1968), her trial counsel provided ineffective assistance that seriously prejudiced her case.

         Because we conclude the evidence is legally and factually sufficient to support the trial court's finding that termination of both Mom's and Dad's parental rights was in the children's best interests, and Mom failed to meet her burden under Strickland, we affirm the trial court's order terminating Mom's parental rights.

         Factual and Procedural Background

         On September 27, 2014, the Texas Department of Family and Protective Services received a referral alleging negligent supervision of newborn F.L.H. IV by Mom and Dad. F.L.H. IV was left in the care of Mom's cousins, ages twelve and four. The twelve-year-old was observed to be under the influence, Dad tested positive for methamphetamines and amphetamines, and Mom tested positive for benzodiazepines without a prescription.

         On December 19, 2014, after completion of services, the Department closed the case as "risk was reduced." Mom was pregnant; F.L.H. IV was placed in Dad's care. On July 31, 2015, the Department received a subsequent referral alleging negligent supervision of newborn D.H. After Mom tested positive for benzodiazepines at the time of D.H.'s birth, she admitted to taking a prescription that was not hers.

         On June 27, 2016, the Department received a new referral alleging negligent supervision of twenty-one-month-old F.L.H. IV. Dad and F.L.H. IV were living at Haven for Hope, a homeless shelter and transitional center, when Dad tested positive for amphetamines and methamphetamines on June 24, 2016; a subsequent referral was made to the Department following a second positive drug test on June 30, 2016. Dad acknowledged his drug use. On July 5, 2016, the Department filed its Original Petition for Protection of a Child, for Conservatorship, and for Termination in Suit Affecting the Parent-Child Relationship. Following an emergency order, the Department was named temporary managing conservator of F.L.H. IV.

         During the first week of August 2016, three additional referrals were received by the Department with allegations of neglectful supervision of D.H., by Mom and Dad. The reports alleged Mom was using unprescribed Xanax and methamphetamines. On August 6, 2016, Dad stopped a law enforcement officer. Dad reported he was high on methamphetamines while taking care of his one-year-old daughter, D.H. Dad told the officer that Mom left D.H. in his care and that he was not supposed to have contact with her due to his ongoing drug abuse. On August 15, 2016, the Department filed its First Amended Petition for Protection of a Child, for Conservatorship, and for Termination in Suit Affecting the Parent-Child Relationship. Following an emergency order, the Department was also named temporary managing conservator of D.H.[2]

         On June 26, 2017, the case was called to trial. Following an extensive hearing, and multiple witnesses, the trial court signed an Order of Termination terminating Mom's parental rights to F.L.H. IV and D.H. pursuant to Texas Family Code sections 161.001(b)(1)(D), (E), (F), (N), (O), and (P) and Dad's parental rights pursuant to sections 161.001(b)(1)(D), (F), and (O). See Tex. Fam. Code Ann. § 161.001(b)(1)(D), (E), (F), (N), (O), (P). The trial court made further findings that termination of both Mom's and Dad's parental rights was in the children's best interests. See id. § 161.001(b)(2). The trial court named the Department as the children's permanent managing conservator.

         On appeal, both Mom and Dad contend the trial court erred in determining termination of their parental rights was in the children's best interests. Additionally, Mom contends she received ineffective assistance of counsel.

          We turn first to Mom's and Dad's claims that termination of their parental rights was not in the children's best interests.

         Finding that Termination of Parental Rights in the Children's Best Interests

         A. Standard of Review

         "Involuntary termination of parental rights involves fundamental constitutional rights and divests the parent and child of all legal rights, privileges, duties, and powers normally existing between them, except for the child's right to inherit from the parent." In re L.J.N., 329 S.W.3d 667, 671 (Tex. App.-Corpus Christi 2010, no pet.) (citing Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985)). As a result, appellate courts must strictly scrutinize involuntary termination proceedings in favor of the parent. Id. (citing In re D.S.P., 210 S.W.3d 776, 778 (Tex. App.- Corpus Christi 2006, no pet.)).

         An order terminating parental rights must be supported by clear and convincing evidence that (1) the parent has committed one of the grounds for involuntary termination as listed in section 161.001(b)(1) of the Family Code, and (2) terminating the parent's rights is in the best interest of the child. See Tex. Fam. Code Ann. § 161.001; In re J.F.C., 96 S.W.3d 256, 261 (Tex. 2003). "'Clear and convincing evidence' means the measure or 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); J.F.C., 96 S.W.3d at 264.

         "There is a strong presumption that the best interest[s] of the child[ren] [are] served by keeping the child[ren] with [their] natural parent, and the burden is on [the Department] to rebut that presumption." In re D.R.A., 374 S.W.3d 528, 533 (Tex. App.-Houston [14th Dist.] 2012, no pet.). "The same evidence of acts or omissions used to establish grounds for termination under section 161.001[(b)](1) may be probative in determining the best interest of the child." Id.

          1. Legal Sufficiency

         When a clear and convincing evidence standard applies, a legal sufficiency review requires a court to "look at all the evidence in the light most favorable to the finding to determine whether a reasonable trier of fact could have formed a firm belief or conviction that its finding was true." In re J.L., 163 S.W.3d 79, 85 (Tex. 2005) (quoting J.F.C., 96 S.W.3d at 266). If the court "determines that [a] reasonable factfinder could form a firm belief or conviction that the matter that must be proven is true, then that court must conclude that the evidence is legally [sufficient]." See id. (quoting J.F.C., 96 S.W.3d at 266). This court must assume "the factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could do so. A corollary to this requirement is that a court should disregard all evidence that a reasonable factfinder could have disbelieved or found to have been incredible." J.F.C., 96 S.W.3d at 266.

         2. Factual Sufficiency

         Under a clear and convincing standard, evidence is factually sufficient if "a factfinder could reasonably form a firm belief or conviction about the truth of the State's allegations." In re C.H., 89 S.W.3d 17, 25 (Tex. 2002); accord In re K.R.M., 147 S.W.3d 628, 630 (Tex. App.-San Antonio 2004, no pet.). We must consider "whether disputed evidence is such that a reasonable factfinder could not have resolved that disputed evidence in favor of its finding." J.F.C., 96 S.W.3d at 266; accord C.H., 89 S.W.3d at 25. "If, in light of the entire record, [unless] the disputed evidence that a reasonable factfinder could not have credited in favor of the finding is so significant that a factfinder could not reasonably have formed a firm belief or conviction, . . . the evidence is factually [sufficient]." J.F.C., 96 S.W.3d at 266.

         B. Testimony Elicited during the Termination Hearing

         The trial court heard from several witnesses over a two day period. The relevant testimony is set forth below.

          1. Mom

         Mom described a very contentious, violent relationship between her and Dad. She contends she stopped dating Dad after F.L.H. IV was born. In September of 2014, Mom explained that Dad called the Department after she left newborn F.L.H. IV alone with her twelve-year-old cousin. Mom contended she completed the Department's service plan; she further denied using benzodiazepines at the time or that Dad was awarded custody of F.L.H. IV. She testified, "[Dad] kidnapped [F.L.H. IV]."

         Mom suggested during her testimony that D.H. was the result of Dad raping her; she then clarified, "it wasn't really a rape thing. It just happened." In July of 2015, Mom tested positive for benzodiazepines at the time of D.H.'s birth. She admitted taking a prescription for benzodiazepines that was not hers. Dad was present at D.H.'s birth, but had not seen her since that time. Mom testified that when D.H. was seven or eight months old, Dad called and told Mom that he was admitting himself into a rehabilitation facility and asked if she would bring D.H. to see him. She agreed and met Dad at a hotel. Mom continued that the following morning, Dad told her that he was leaving with D.H. to pick up a bottle at the house. Instead, Dad gave the baby "to the cops and tells them a lie."

         Mom testified that when Dad did not come back to the hotel room, she tried to find him at several different stores. "I didn't see him at any of the stores, I already knew, like, he kidnapped her, my other baby again." She did not call the police and denied knowing that Dad was using drugs at the time. When the Department asked why she was not in the hotel room when the police came back to the room looking for her, she explained that she "must have been looking in the stores for D.H." Mom adamantly denied using methamphetamines, or other drugs, that day or the day before.

          During her testimony, Mom acknowledged two prior theft arrests, but denied a previous arrest for possession of a controlled substance. When pushed, Mom conceded, "I was at the wrong place at the wrong time." Mom was adamant that she did not have a drug problem and explained that her positive drug test on March 30, 2017, for amphetamines, methamphetamines, opiates, and benzodiazepines as, "I fell once." Mom also denied missing court-ordered drug tests. When asked why she failed to appear for the hair-follicle drug test, Mom testified that she lost her wallet and did not have the necessary identification. Additionally, Mom denied that her caseworker ever sent her for a drug evaluation because "she did not have a drug problem." During her testimony, Mom denied using methamphetamines, amphetamines, or benzodiazepines and agreed to be drug tested during the lunch break.

         Regarding her ability to provide for her children, Mom testified that she works part-time helping with the elderly. They are family friends; she works approximately three hours per week and they pay her $100.00. Through her counsel, Mom offered certificates for parenting classes, alcohol and substance abuse support group attendance verification, Alcoholics Anonymous attendance, and Narcotics Anonymous classes. Mom also testified that she never missed a visitation; on one occasion, however, she arrived five minutes late and they sent her home. As for living arrangements, Mom testified that the children would live with her at her mother's house. On cross-examination, Mom acknowledged her sister, who suffers from untreated bipolar disorder and schizophrenia, also lives with her mother.

         During the lunch period, Mom submitted to the court-ordered drug test. The results were positive for opiates. When asked about her positive drug test, Mom acknowledged taking a pain pill due to pain stemming from the epidural during her c-section with D.H. On cross-examination, the attorney inquired whether the pills were prescribed to her. Mom replied, "I don't remember going to the doctor, no."

          2. Dad

         Dad admitted to using methamphetamines beginning in 2002. Dad acknowledged it was a series of choices that put his children in danger. "I made a bad choice to use. And I'm accountable for that. I am a recovering addict." He also admitted using in a convenience store bathroom, while F.L.H. IV was in a stroller. He testified that he knowingly kept methamphetamines in his van, while driving F.L.H. IV. After being released from rehab, Dad acknowledged one relapse. He was adamant about his honesty. He did not test positive, but he told his probation officer that he had been using drugs. Dad explained that he is committed to recovery-"Recovery is a lifetime."

         In August of 2016, the Department removed F.L.H. IV from Dad's care and F.L.H. IV was placed with Dad's brother. Dad decided to return to the Victory Gospel, a spiritual recovery for people with drug and alcohol problems. But before he re-entered the ministry, he called Mom and asked to see D.H. Mom agreed and they met at a hotel. Dad testified that while they were together, he saw Mom use "heroin, narcos, [X]anax, footballs, and blue bars." Dad further testified that he and Mom used methamphetamines together on several occasions.

         The following morning, Mom told him that she had things to do and left. Dad recognized that he should not be alone with D.H. while he was under the influence of a controlled substance. He left to call his uncle, but no one answered. He walked out to the street and saw an officer. He decided to hand the baby to the officer.

         At several points during his testimony, the trial court noted that Dad was crying one minute and laughing the next. Dad did not recall the Department asking him to see a psychiatrist. He does not think he has a psychiatric problem and denies being told by several people associated with the Department of his bipolar diagnosis. He acknowledges that he is overanxious and easily excited, but he contends that he has normal, rational thinking. Dad believes his recovery has provided clarity; he is just an emotional person. He hurts and he has pain, "but it's not all over the place. I'm actually a lot better." Dad explained that he has learned through his two-year spiritual background that "the Devil gets you in your mind, in your addiction." Dad also explained his lens-less glasses are a spiritual reference; "it's a characteristic that no one else does. And the spiritual significance behind that is I'm not of this world. I'm trying to find something, if I'm not of this world, that I do and normally from other people. I don't just do things to do them."

         With regard to the different services, Dad testified that the Department did not want him to take parenting classes; he was told "your protective skills are over the roof. So you don't need parenting skills." He believes that he has missed one or two visits with the children. He has worked at Age Industries for seven years and earns $10.00 per hour and typically works forty hours per week. He is attending Narcotics Anonymous and he is starting to enjoy his life and he misses "his babies." Dad explained the children have been in his brother's and sister-in-law's custody since the Department's removal in August of 2016. He acknowledges the children are doing very well, but he does not think that he should lose his parental rights.

         3. Stephanie Sanchez

         Stephanie Sanchez is the Department investigator that handled the removal of F.L.H. IV. She testified that she received a referral on June 27, 2016, for alleged neglectful supervision by Dad. Dad tested positive for methamphetamines on two occasions. She described Dad as hyper and displaying unusual behavior.

         Sanchez eventually made contact with Dad at the Haven for Hope shelter. He admitted snorting methamphetamines the previous weekend and every weekend for the past four months; he also described using methamphetamines in a gas station bathroom while F.L.H. IV was in a stroller. Dad also told Sanchez that he kept the drugs in a speaker in his van.

         When Sanchez asked Dad about his drug use, he told her that it was "okay for him to use." "He stated that the devil would whisper to him telling him it was okay to use as his child would be safe and wouldn't be harmed if he did use." Throughout the two hour interview, Dad's behaviors were very erratic; he would cry, then start laughing, he could not sit down; he would get angry, and then start laughing again. Sanchez testified that Dad made her uncomfortable to the point that she ensured staff members were able to hear what was happening in her office.

         4. Erica Lincoln

         Erica Lincoln, an investigative caseworker with the Department, removed D.H. The original referral was for neglectful supervision following Mom testing positive for benzodiazepines at the time of D.H.'s birth. Mom admitted taking prescription medication that was not prescribed to her.

         Following Dad's handing D.H. to the police officer, Lincoln contacted Mom. Mom was very upset and reported that Dad "had taken [D.H.] from her and then got her removed." Mom refused to submit to drug testing.

         Mom explained that, although she knew she was not supposed to be around Dad, she agreed to take D.H. to see Dad before he entered the rehabilitation facility. They met at the hotel and stayed that night. Mom acknowledged that she brought him a bag of "ice [methamphetamines], " but was adamant that she did not use drugs that night. Mom reported D.H. was at the hotel the entire time that Dad was using; Dad told her that he had used one week prior to that night.

         Lincoln testified Dad reported they woke the next morning and Mom told him that she was hungry. Dad tried to give her D.H., but Mom told him to take D.H. with him. "As he was walking out of the hotel room, [Mom] was laughing at him, but couldn't explain why." When he returned, Mom was gone, and so were all of his belongings. Dad also acknowledged knowing that he and Mom were not supposed to be around each other. Dad explained that he realized that he was still under the influence, so he flagged down a police officer. He handed D.H. to the officer, he told the officer that he was not supposed to have the baby, and that he was under the influence of methamphetamines.

         Lincoln described D.H. as "very dirty . . . her eyes, her ears. She appeared to have some kind of infection going on. She had a severe diaper rash."

         5. Latoya Lofton

         Latoya Lofton, the Department caseworker for both F.L.H. IV and D.H., testified that at the time of the hearing, F.L.H. IV was almost three-years-old and D.H. was almost two-years-old. Both children were living with Dad's brother and his wife and doing very well. F.L.H. IV was receiving behavioral therapy for acting out and his speech had improved significantly; D.H. was walking. Lofton further testified that the paternal uncle and aunt were willing to be a permanent home for both F.L.H. IV and D.H., but only if the trial court terminated Mom's and Dad's parental rights.

         Lofton testified that she personally reviewed the court-ordered service plans with both parents. Mom signed her service plan, but Dad refused to sign because his ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.