Court of Appeals of Texas, Third District, Austin
L. B., Appellant
Texas Department of Family and Protective Services, Appellee
THE DISTRICT COURT OF COMAL COUNTY, 22ND JUDICIAL DISTRICT
NO. C2016-1646A, HONORABLE MELISSA McCLENAHAN, JUDGE
Chief Justice Rose, Justices Goodwin and Field
ROSE, CHIEF JUSTICE.
L.B. appeals the district court's final order terminating
his parental rights to his child J.R.B. 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. 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
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)
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.
and E.M. each testified that the underlying case was their
third case with Child Protective Services (CPS) involving
this child. 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 . . .
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.
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
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.
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.
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."
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.
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, ...