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In re N.M.L.

Court of Appeals of Texas, Seventh District, Amarillo

January 19, 2018

IN THE INTEREST OF N.M.L. AND B.L.L., CHILDREN

         On Appeal from the 223rd District Court Gray County, Texas Trial Court No. 38, 555, Honorable Jack M. Graham, Presiding

          Before CAMPBELL and PIRTLE and PARKER, JJ.

          MEMORANDUM OPINION

          Judy C. Parker, Justice.

         Following a bench trial, the trial court signed a judgment terminating the parent-child relationship between J.L. (Father) and his two daughters, N.M.L. and B.L.L.[1] Raising four issues, J.L. contends that the evidence was not legally or factually sufficient to support termination of his parental rights. We affirm.

         Factual and Procedural Background

         The Pampa Police Department was called to the marital home of A.L.[2] and J.L. in the early morning hours of July 30 in response to an incident resulting in J.L. being stabbed by his wife, A.L. J.L. left the home before the police arrived. Officer Patrick Lambert "observed blood on the front side walk and on the front porch." A.L. related to Officer Lambert that she and J.L. had been drinking at a friend's, then she and J.L. engaged in a verbal argument that became physical after returning home. She reported that J.L. knocked her to the ground, held her down, and began to choke her. She claimed to have grabbed a knife to defend herself because she was in fear for her life. Officer Lambert noticed "finger shaped marks on the right side of her neck." He retrieved a broken knife from the trash can in the kitchen where A.L. told him she placed it. Officer Lambert observed several blood spots located in multiple places in the home. The couple's children, N.M.L. and B.L.L., were present at the home when A.L. stabbed J.L.

         Corporal Bider, who arrived at the scene with Officer Lambert, saw a "small female child standing near the screen door" after A.L. stepped outside to speak to the officers. A.L. told Corporal Bider that J.L. had impaled himself on the knife as he was attempting to choke her. A.L. told Corporal Bider that J.L. did not actually choke her, but was "going to choke her based on his behavior." Corporal Bider did not see any injuries on A.L. A.L.'s father came to the home and observed N.M.L. "walking around in the blood that was in the floor."

         J.L. provided a different account of the events leading up to A.L. stabbing him. J.L. stated that A.L. had been griping and complaining all day. He went to a friend's house because he was tired of listening to her. A.L. called J.L. and told him to come home and to bring some beer. When he arrived home with the beer, A.L. continued to gripe at him so he prepared to leave again. As he was attempting to leave, A.L. grabbed a bread knife and tried to stab him with it, but it broke. She stabbed him two times with the broken knife before he was able to escape. His sister took him to the emergency room. While in the emergency room, J.L. stated that he wanted to press charges because he was scared that the next time he might not make it out of the situation alive.

         Although A.L. and J.L. had different versions of the events leading up to the stabbing of J.L., they both agreed that A.L. had stabbed J.L. and that both of them had consumed an unknown quantity of beer before the physical altercation took place. A.L. was arrested for aggravated assault with a deadly weapon. The maternal grandparents, who were already caring for four of A.L.'s children, could not care for N.M.L. and B.L.L., resulting in the children entering the Department's care.

         The Department filed its petition seeking to terminate A.L.'s and J.L.'s parental rights to N.M.L. and B.L.L. on August 1, 2016. Following an adversary hearing on August 22, 2016, the Department was named temporary managing conservator of the children.

         Michael Haskins was assigned as the caseworker by the Department. The Department's investigation revealed that A.L. had a significant history with the Department, including previous validations for physical abuse and neglectful supervision. She had a history of domestic violence dating back to 2005. A.L. and J.L. reported to Haskins that domestic violence was "pretty consistent throughout the relationship." J.L.'s use of alcohol and A.L.'s history of drug abuse were documented. J.L. told Haskins there were prior incidents of domestic violence between himself and A.L. and that they were "co-combatant." J.L. agreed with Haskins that domestic violence was an issue that he needed to address. J.L. indicated that he had been the aggressor for some of their domestic violence incidents and admitted that, prior to being stabbed by A.L., he had been the aggressor.

         The Department developed service plans for J.L. and A.L., and the trial court ordered compliance with the plan requirements. The service plan required J.L. to participate in various services and counseling to address personal issues surrounding the removal of the children. J.L. satisfied the service plan's requirements that he participate in a psychological evaluation; a Batterer's Intervention Prevention Program (BIPP) and Outreach, Screening, Assessment, and Referral (OSAR) assessment; rational behavior training; and a parenting class. However, he did not complete individual counseling, couple's counseling, BIPP orientation, BIPP classes, or participate in AA. Haskins reviewed the service plan with J.L. "multiple times." J.L. agreed to work the service plan and indicated to Haskins that he knew what services he was required to complete.

         During the pendency of this case, J.L. and A.L. continued to live together after A.L. was released from jail. J.L. is employed as a construction worker. A.L. is not employed outside of the home and relies on J.L.'s work income. Two months prior to trial, on May 3, 2017, A.L. tested positive for methamphetamine. A.L. failed to complete the following services required by her service plan: individual therapy, couple's counseling, and the WAVE (Women Against Violence) program for domestic violence. A.L. also did not provide proof of participation in AA or maintain a drug-free lifestyle.

         The children were placed with a paternal relative in Houston two months before the trial, and are doing well. The placement is interested in adopting the children. During trial, Haskins testified that the placement is capable of meeting the emotional and physical needs of the children currently and in the future. J.L. has not had a face-to-face visit with the children since they were placed in Houston, but maintained his weekly visits before they were relocated. He has telephoned the children two to three times a week since they have been in Houston. In the twelve months that N.M.L. and B.L.L. have been in the Department's care, J.L. has not paid his court-ordered child support or sent birthday cards or Christmas gifts to the children.

         The trial court terminated J.L.'s and A.L.'s parental rights on the grounds of endangering conditions, endangerment, and failure to comply with a court order that established actions necessary to retain custody of the children. See Tex. Fam. Code Ann. § 161.001(b)(1)(D), (E), (O) (West Supp. 2017).[3] The trial court also found that termination was in the children's best interest. See § 161.001(b)(2). Only J.L. has appealed.

         APPLICABLE LAW

         A parent's rights to the "companionship, care, custody[, ] and management" of his or her child is a constitutional interest "far more precious than any property right." Santosky v. Kramer, 455 U.S. 745, 758-59, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982); see In re M.S., 115 S.W.3d 534, 547 (Tex. 2003). Consequently, we strictly scrutinize termination proceedings and strictly construe the involuntary termination statutes in favor of the parent. Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985). However, "the rights of natural parents are not absolute" and "[t]he rights of parenthood are accorded only to those fit to accept the accompanying responsibilities." In re A.V., 113 S.W.3d 355, 361 (Tex. 2003) (citing In re J.W.T., 872 S.W.2d 189, 195 (Tex. 1993)). Recognizing that a parent may forfeit his or her parental rights by his or her acts or omissions, the primary focus of a termination suit is protection of the child's best interests. See id.

         In a case to terminate parental rights by the Department under section 161.001 of the Family Code, the Department must establish, by clear and convincing evidence, that (1) the parent committed one or more of the enumerated acts or omissions justifying termination, and (2) termination is in the best interest of the child. § 161.001(b). Clear and convincing evidence is "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." § 101.007 (West 2014); In re J.F.C.,96 S.W.3d 256, 264 (Tex. 2002). Both elements must be established and termination may not be based solely on the best interest of the children as determined by the trier of fact. Tex. Dep't of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987); In re K.C.B.,280 S.W.3d 888, 894 (Tex. App.- Amarillo 2009, pet. denied). "Only one predicate finding under section 161.001[(b)](1) is necessary to support a judgment of termination when there is also a finding that termination is in the child's best interest." In re A.V., 113 S.W.3d at 362. We will affirm the termination order ...


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