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In re M.S.

Court of Appeals of Texas, Second District, Fort Worth

January 4, 2018






         I. Introduction

         This is an ultra-accelerated appeal[2] in which Appellant appeals the termination of his parental rights to his son, Mark.[3] In four issues, Appellant challenges the sufficiency of the evidence to support the trial court's constructive-abandonment, prolonged-incarceration, and best-interest findings. Appellant also argues that he was not given proper notice regarding the trial court's court-ordered services finding. We will affirm.

         II. Background

         Brittney Newman, a conservatorship worker for the Texas Department of Family and Protective Services (Department), testified at the termination trial that Mark was born in March of 2015, and that the Department had been appointed permanent managing conservatorship of Mark since April 20, 2015. According to Newman, Mark was placed in foster care because he and his biological mother had tested positive for methamphetamine and because the mother was unable to provide appropriate placement with relatives. Newman averred that at the time of Mark's placement with the Department, there was an alleged father-not Appellant-and that DNA tests later revealed this man was not Mark's biological father. By Newman's account, Appellant and the original alleged father informed the Department that Appellant could be Mark's biological father. After failing to attend the first scheduled DNA test, later DNA testing revealed that Appellant is Mark's biological father.

         On July 12, 2016, Appellant signed a waiver of service acknowledging his paternity and visited Mark for the first and only time. Three days later, police arrested Appellant for DWI.

         Newman stated that on August 30, 2016, the trial court terminated Mark's mother's parental rights, and the final order included court-ordered services for Appellant. Newman averred that Appellant had been present at Mark's mother's termination trial with counsel and that he agreed to the court-ordered services. Part of the court-ordered services required Appellant to obtain safe, stable, and appropriate housing for Mark, but Newman averred that Appellant had not done so. Appellant was also ordered to obtain stable employment, which Newman said that he had not done. Because Appellant has a criminal history that includes numerous convictions for possession of controlled substances, Appellant was also ordered to submit to drug testing, but because he was jailed shortly after the court's order, according to Newman, Appellant had never submitted to the court-ordered drug testing-although Appellant did pass one drug test prior to the court-ordered services. Newman said that Appellant also failed to participate in and successfully complete court-ordered counseling and parenting classes.

         Newman averred that in addition to being jailed for the DWI, Appellant was eventually incarcerated for a separate charge of burglary. Newman further averred that even though Appellant had the ability to visit Mark twice weekly between the time he was in jail and his ultimate incarceration, he had only visited Mark the one initial time. Newman also said that Appellant had failed to maintain court-ordered contact with the Department.

         Newman stated that she had concerns about Appellant's decision making because despite knowing that he was Mark's biological father, he admittedly still chose to drive intoxicated. She also averred that she was concerned that Appellant could not provide a safe and stable environment for Mark due to Appellant's drug use, lack of employment, and the instability from consistently being in and out of confinement. Newman said that through his actions, including not visiting Mark when he had the opportunity, Appellant had never indicated that he wanted to maintain a relationship with Mark.

         Regarding a possible placement for Mark, Newman averred that Appellant provided her with two options: his parents or his cousin. But Newman said that Appellant's parents told her that they were too old to care for Mark and that they were unwilling to child-proof their home. Newman stated that the cousin initially indicated that she would be willing to care for Mark but that the cousin eventually stopped communicating with the Department.

         Newman said that Mark was currently placed in a foster home where he had been for over two years and that the foster father was in attendance at trial. By Newman's account, Mark was initially underweight because of being prematurely born and the effects of methamphetamine but that now under foster care, Mark is "doing very well, very healthy." Newman also said that Mark was initially developmentally delayed but that now he was at an appropriate developmental state. Newman further averred that Mark's foster parents had provided proper medical care for Mark and that they were meeting his emotional and developmental needs. She also said that the foster home was a loving home and that the foster parents had other children in the home whom Mark has bonded with. According to Newman, Mark has bonded with the foster parents and calls them "mommy and daddy." By Newman's account, the foster family is the only family Mark has ever known.

         Newman testified that it was the Department's view that Appellant's parental rights to Mark should be terminated and that it would be in Mark's best interest if the trial court did so. She also said that she believed it would be traumatic to Mark to now separate him from the foster family that he had bonded with and that Mark barely knows Appellant. Newman stated that it was the Department's plan that the trial court continue the ...

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