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L. B. v. Texas Department of Family and Protective Services

Court of Appeals of Texas, Third District, Austin

April 5, 2018

L. B., Appellant
v.
Texas Department of Family and Protective Services, Appellee

          FROM THE DISTRICT COURT OF COMAL COUNTY, 22ND JUDICIAL DISTRICT NO. C2016-1646A, HONORABLE MELISSA McCLENAHAN, JUDGE PRESIDING

          Before Chief Justice Rose, Justices Goodwin and Field

          MEMORANDUM OPINION

          JEFF ROSE, CHIEF JUSTICE.

         Appellant L.B. appeals the district court's final order terminating his parental rights to his child J.R.B.[1] The court found that Appellant engaged in conduct or knowingly placed the child with persons who engaged in conduct endangering the child's physical or emotional well-being, constructively abandoned the child, and failed to comply with the provisions of a court order that specifically established the actions necessary for him to obtain the return of the child. See Tex. Fam. Code § 161.001(b)(1)(E), (N), (O). The court further found that termination of Appellant's parental rights was in the child's best interest.[2] See id. § 161.001(2). On appeal, Appellant challenges the factual and legal sufficiency of the evidence supporting the court's best-interest finding. We will affirm the order of termination.

         BACKGROUND [3]

         The court heard testimony from several witnesses during a bench trial in 2017, including Appellant, his mother, his stepfather, the child's mother E.M., a Department caseworker, and a Court Appointed Special Advocate (CASA) supervisor.

         Appellant and E.M. testified that they are the parents of the child, who was born February 7, 2013. The child was four years old when the case was tried. Appellant and E.M. are a couple but were not living together at the time of trial because he was incarcerated. E.M. also has two children from a previous relationship with another man.

         Appellant and E.M. each testified that the underlying case was their third case with Child Protective Services (CPS) involving this child.[4] Appellant denied that he used drugs during the first CPS case, but admitted that he did not cooperate with CPS in that case because he "had gotten with another girl" and "wasn't around." He also admitted that he did not take custody of the child when CPS informed him that E.M. was using drugs because by that time, E.M. was already with a family member and getting help. Appellant testified that in the second CPS case he admitted to using marihuana while caring for the child. He said that he "finished CPS, " completing "all the classes and pass[ing] all the drug tests." He acknowledged that at the start of this third CPS case, he tested positive for opiates. He also acknowledged that he used drugs while the child was home, when he was supposed to be caring for the child. He stated that he and E.M. "didn't have a drug problem all our life. It was just this last year. . . . And then we had a hard time . . . getting help."

         Appellant testified that he completed an inpatient drug treatment program and then went to a halfway house. He acknowledged that he was ordered to complete random drug screens for the Department, but admitted that he did not submit to these requests, even after returning from drug treatment. Appellant testified that his last communication with the Department caseworker was about six months before trial.

         Appellant denied using drugs since he completed his drug rehabilitation in December 2016, but he and E.M. were indicted as co-defendants for possession of heroin in March 2017. Indictments for Appellant's charges of possession of heroin and aggravated robbery were admitted into evidence. Appellant had been incarcerated on those charges for three months at the time of trial. He testified that the charges resulted from a case of mistaken identity. He admitted that he did not know how long he would be in jail, that he had "no clue" whether he might be released on probation, that he did not know how long his current criminal situation would last, and that he cannot care for the child because of his incarceration. Appellant testified that he wants to retain his parental rights and for his mother and stepfather to care for the child until Appellant's release. Appellant stated that his mother and stepfather also want him to have the child, that they will take care of the child "as long as it takes" until Appellant gets out, and that they do not want to adopt the child. He also stated that if released, he would like to live with his mother and stepfather if allowed to and if the child was there.

         Appellant admitted that he saw the child just once during the entire case. He also admitted that he was homeless for two or three weeks during the case. He further admitted that he did not provide any child support for the child, although he thought he was employed during the entire case. Appellant stated that he pays child support for his four other children.

         E.M. testified that she admitted to using marihuana and heroin while she was pregnant with the child and admitted that she was "using with [Appellant]." She stated that she became involved in her first CPS case when the child was about one year old and went to live with Appellant's mother and stepfather ("the grandparents") for sometime between three to six months. The child was then returned to her. E.M. testified that she did not recall becoming involved with the Department again in 2014 and admitting to using marihuana while the child and his siblings were in her care. She did recall that the child and his siblings most recently came into the Department's care in October 2016, that she agreed to the Department becoming the temporary managing conservator, and that during this case the child was placed with the grandparents. E.M. acknowledged that she had a criminal case pending against her at the time of trial and that she had used illegal substances every other day since 2016, including when she was the child's primary caregiver. Nevertheless, Appellant testified that E.M. does not have a drug problem, that he was not concerned about her not completing any treatment program, and that he would be comfortable with the child being placed with her. E.M. testified that she planned to continue her relationship with Appellant after he is released from incarceration and that she wanted the child placed with Appellant's parents if her parental rights were terminated.

         Department caseworker Angela Calderon testified that she had worked on the case involving Appellant and E.M.'s family since October 2016, when E.M. and Appellant were living together with the child and his siblings. Calderon stated that CPS removed the child from his parents on December 23, 2016, because of the parents' substance abuse and concerns for the child's safety. Calderon testified that CPS placed the child with the grandparents, and just over six months later on June 29, 2017, removed the child from the grandparents' home and placed him in a foster-to-adopt home that could meet his needs for "permanency."

         Calderon stated that the child was removed from the grandparents' home because they doubted that he was their grandson and expressed some misgivings, such as "we weren't planning this, " "my husband is going to retire, " and "this just wasn't what our future was." Calderon also stated that the grandparents made excuses for Appellant's behavior and were not protective of the child from Appellant. Calderon testified that she asked Appellant's mother if she was willing to put the child's needs first, and Appellant's mother continued to discuss Appellant. Calderon told Appellant's mother that she wanted to offer all the services that the Department could for Appellant, but because he is an adult and the child is not, the child's needs come first if Appellant's mother wanted to take care of him. Calderon testified that a home study of the grandparents' home was conducted and denied based on concerns about their "protective capacity, " including Appellant's mother's statement that she was responsible for administering and controlling dosages of medications that Appellant was taking to keep him off of illegal drugs.[5]

         Calderon also testified about Appellant's illicit-drug use and noncompliance with his service plan. She stated that E.M. told her that she and Appellant used drugs together and that Appellant used drugs while he was around the children. Calderon also stated that Appellant's service plan required him to maintain contact with her, ...


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