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In re Z.N.M.

Court of Appeals of Texas, Fourteenth District

January 11, 2018


         On Appeal from the 311th District Court Harris County, Texas Trial Court Cause No. 2016-00770

          Panel consists of Justices Christopher, Donovan, and Jewell.



         Appellant R.J.M. ("Father") appeals the trial court's final decree terminating his parental rights and appointing the Department of Family and Protective Services as sole managing conservator of his child Z.N.M. ("Zoe").[1] The trial court terminated Father's parental rights on predicate grounds of endangerment. See Tex. Fam. Code Ann. § 161.001(b)(1)(D) and (E) (West Supp. 2017). The trial court further found that termination of Father's rights was in the child's best interest. In three issues, Father challenges the legal and factual sufficiency of the evidence to support the trial court's findings on each predicate ground, as well as the best-interest finding. Father also challenges the standard we must use to review sufficiency of the evidence. Because we conclude the evidence is legally and factually sufficient to support the trial court's findings, we affirm the judgment.

         I. Factual and Procedural Background

         A. Pretrial Proceedings

         Zoe is the oldest of four children who, at the time of removal by the Department, was six years old and living with her mother ("Mother") and mother's boyfriend, K.J. ("Kirk"). Kirk is the father of Zoe's three half-siblings, ages five, two, and one, at the time of removal.

         The Department received a referral that the children might be in danger due to inadequate supervision and accessible drugs and weapons in the home. Mother and Kirk admitted using marijuana while the children were in the home, and that the children were left unsupervised. Both tested positive for cocaine and marijuana. At the time of the removal, Zoe was not living full-time with Mother and Kirk, but spent most of her time with her maternal great-grandmother in Bryan, Texas.

         The Department investigator met with Zoe at school. Zoe observed Mother and Kirk engage in domestic violence, and Zoe told the investigator that the police have come to the home when Mother fought with Kirk's sister. Zoe appeared to be a happy, well-developed child, who was dressed in a clean school uniform. Zoe had no visible marks or bruises.

         After Zoe's removal, Zoe lived with her great-grandmother and the great- grandmother's adult niece in Bryan, Texas. After the removal of Zoe's siblings, the great-grandmother contacted the Department and asked what she needed to do to keep Zoe. The Department offered to visit the great-grandmother who said she had moved to Houston. The great-grandmother reported that she was living with a family member. When the great-grandmother, family member, and Zoe arrived at the Department office, they were asked whether a representative from the Department could visit the home to investigate whether it was safe for a child. The family member explained that she did not have a key to the home and would need to wait until it was opened for her. By the end of the business day after waiting several hours, the home could still not be accessed, and the family member, great-grandmother, and child had nowhere to go. At this time, it was determined that the great-grandmother did not have a stable residence or financial means of support, and had nowhere else to live. It was also determined that the family member had no financial means of support. There were no other suggested placements for Zoe. Because the great-grandmother did not have a stable residence, and no financial means to support Zoe, the Department asked to be named temporary managing conservator of Zoe. Following a full adversary hearing, the Department was appointed temporary managing conservator.

         The Department filed an original petition for termination on January 7, 2016. Father was in jail for a burglary conviction and was served by publication. Father was released from jail in January 2017. Father returned to jail in February 2017, was released again, then returned to jail for burglary of a building in May 2017. In March, Father submitted to one drug test, which was positive for marijuana, cocaine, and methamphetamine. At the end of March 2017, Father was personally served with notice of the termination suit. Father submitted to genetic testing, which confirmed his paternity.

         All four children were placed with fictive kin, that is, people known to the family but not related by blood or marriage. Mother voluntarily relinquished her parental rights to all four children. Kirk voluntarily relinquished his parental rights to Zoe's three siblings. The court-appointed Child Advocate filed a report in which she recommended that Zoe remain in her current placement. The recommendation was based on the fact that Zoe's needs were met by the caregiver, and that the four siblings were placed together. Zoe was struggling in school, but the caregiver sought disability services to assist her. The Child Advocate recommended termination of Father's parental rights, which would allow Zoe to be adopted with her siblings.

         B. Trial Testimony

         At the beginning of trial the court admitted without objection Mother's voluntary affidavit of relinquishment. The trial court took judicial notice that Father was served by publication on January 12, 2017, and personally served on March 31, 2017. An interlocutory order establishing paternity was signed April 26, 2017.

         The trial court granted Father's bench warrant request, which allowed Father to testify at trial. Father admitted that he was in jail for thirteen months on two theft charges in 2014 and 2015. He also acknowledged that he was in jail for the majority of 2017, including during trial, when he was incarcerated for a burglary conviction. Father estimated he had been out of jail only four or five months during the pendency of the parental termination proceeding.

         In March, he submitted to one drug test, which was positive for cocaine and marijuana. The Department introduced evidence of Father's positive drug test by offering a report from the drug screening lab. Father objected to the report's admissibility on the ground that no expert witness interpreted the report's findings. The court overruled Father's objection. Father denied using illegal drugs.

         When Zoe was an infant she lived with Father's mother because Father and Mother were too young to care for her. Father testified that his mother would be a suitable placement for Zoe. However, Father was in jail when the children were removed from Mother and, according to Father, Mother prevented him from seeing Zoe.

         Father first received a family service plan on April 26, 2017, approximately three months before trial. Father has been unable to complete any of the tasks required by the service plan due to his incarceration. Father testified that he would complete the service plan if given more time.

         The court-appointed Child Advocate testified that Zoe is currently placed with N.S. ("Nancy"), a woman with whom Zoe is familiar, but not a blood relative. At the time of trial Zoe had been living with Nancy for approximately seventeen months. When Zoe was first placed with Nancy she was struggling in school and did not pass the first grade. Nancy worked with Zoe on a "daily, consistent basis." Zoe passed the first grade and won an award for most improved student in her class. The Child Advocate attributes Zoe's improvement to Nancy's intervention and focus on Zoe and her schoolwork.

         Zoe's three siblings also live with Nancy, who plans to adopt them. The Child Advocate recommended that Father's parental rights be terminated to allow Zoe to be adopted with her siblings. The Child Advocate testified that Nancy has "gone above and beyond educationally, " and has "gone out of her way to become licensed" as a foster parent. Aside from Zoe's first year, and approximately six months in 2016, Zoe has always lived with her siblings. Zoe and her siblings enjoy a "lovely, happy" relationship and Zoe appears to be bonded with her siblings. The Child Advocate testified that it would be detrimental to Zoe if she were separated from her siblings.

         On cross-examination, the Child Advocate admitted she had not spoken with Zoe about her paternal grandmother and great-grandmother. At a previous hearing, the paternal grandmother told the Child Advocate she was interested in having Zoe placed with her. Child Advocates received information that the grandmother had a history with the Department, but the Child Advocate had not seen the grandmother's records with the Department. The Child Advocate has seen Zoe with Nancy on at least ten different occasions. The Child Advocate believed that Zoe is thriving in Nancy's home and that, under Nancy's care, Zoe is thriving in school.

         The Child Advocates' supervisor testified that she first received information about Father's mother and grandmother four months before trial at a permanency hearing, which was approximately one and a half years after the children were taken into the Department's care. The supervisor also testified that it would be detrimental to Zoe to remove her from her siblings.

         The Department's supervising caseworker testified that the Department recommended termination of Father's rights because he is unable to care for Zoe due to Father's continued illegal drug use and incarceration. The caseworker also testified that the paternal grandmother has a case history with the Department in that the Department received a referral several years earlier that the grandmother neglected the children by leaving them home unsupervised. The caseworker ...

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