Appeal from the 311th District Court Harris County, Texas
Trial Court Cause No. 2016-00770
consists of Justices Christopher, Donovan, and Jewell.
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"). 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
Factual and Procedural Background
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
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.
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.
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
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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