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In re N.E.B.

Court of Appeals of Texas, Fourth District, San Antonio

May 23, 2018

IN THE INTEREST OF N.E.B., A.T.G., and N.V. G., Children

          From the 166th Judicial District Court, Bexar County, Texas Trial Court No. 2017-PA-00200 Honorable Charles E. Montemayor, Judge Presiding

          Sitting: Patricia O. Alvarez, Justice, Luz Elena D. Chapa, Justice, Irene Rios, Justice

          MEMORANDUM OPINION

          Patricia O. Alvarez, Justice

         Appellants J.B. (Mom) and J.G. (Dad) appeal the trial court's order terminating their parental rights to the children N.E.B., A.T.G., and N.V.G.[*] Each parent asserts the trial court could not have found by clear and convincing evidence that terminating their respective parental rights is in the children's best interests. Having reviewed the evidence, we conclude it is legally and factually sufficient to support the trial court's findings. We affirm the trial court's order.

         Background

         Mom is the mother of N.E.B., A.T.G., and N.V.G. Dad is the father of A.T.G. and N.V.G. In December 2016, the Department received a referral based on Mom and N.V.G. testing positive for marijuana at N.V.G.'s birth. The Department initiated a safety plan. In January 2017, the Department found Mom and Dad alone with the children, which violated the plan, Dad had physically assaulted Mom, and there was no electricity in the home. The Department removed the children from the home. After several status hearings, the Department moved to terminate the parents' rights. The case was tried, and the parents' rights to their children were terminated.

         Evidence Required, Standards of Review

         The evidentiary standards[1] the Department must meet and the statutory grounds[2] the trial court must find to terminate a parent's rights to a child are well known, as are the legal[3] and factual[4]sufficiency standards of review. We apply them here.

         Bases for Termination

         A. Courses of Parental Conduct

         The trial court found by clear and convincing evidence that (1) Mom's conduct met the grounds stated in paragraphs (D), (E), (N), (O), (P), and (R), and (2) Dad's conduct met the grounds in paragraphs (D), (E), (N), and (O). See Tex. Fam. Code Ann. § 161.001(b)(1) (West Supp. 2017). On appeal, neither Mom nor Dad challenges the trial court's statutory grounds findings.

         B. Best Interests of the Children

         Instead, Mom and Dad challenge the sufficiency of the evidence supporting the trial court's findings that terminating their respective parental rights is in the children's best interests. See id. § 161.001(b)(2). The Family Code[5] and Holley[6] factors for best interests of the children are also well known. With the statutory and common law factors in mind, we examine the evidence.

         C. Evidence of Best Interests of the Children

         The two-day bench trial on November 9 and 29, 2017, concerned Mom's and Dad's conduct and their rights to their respective children. The trial court heard testimony from three Department workers and Mom, and it received recommendations from the children's attorney ad litem. The trial court was the "sole judge[] of the credibility of the witnesses and the weight to give their testimony." See City of Keller v. Wilson, 168 S.W.3d 802, 819 (Tex. 2005); In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006).

         1. Domestic Violence in the Home

         One reason for the children's removal was domestic violence in the home. In one incident, Dad tried to hit Mom in the head with a hammer. The children were present in the home at the time of the incident, but there was conflicting testimony on whether the children saw it happen. Dad admitted that he and Mom hit each other, but he blamed Mom for causing the domestic violence. See Tex. Fam. Code Ann. § 263.307(b)(1), (3), (4), (7) (West Supp. 2017); Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976) (factors (C), (D), (H)).

         2. Mom's Plan Services

         Mom has bipolar disorder. After the children were removed in January 2017, she did not start taking medication to treat her bipolar disorder until June 2017, but she is taking it now. Under her plan, Mom's services included psychological evaluation, individual counseling, parenting, and domestic violence classes. Mom started the domestic violence class two months before trial and the parenting class a few weeks before trial. At the time of trial, she had not completed either course. She just started seeing a counselor once a week, but she acknowledged she did not complete the psychological examination, individual counseling, or parenting classes. See Tex. Fam. Code Ann. § 263.307(b)(1), (10), (11); Holley, 544 S.W.2d at 371-72 (factors (C), (D), (H)).

         3. Mom's Visit to the Children

         In the nine months from the time the children were removed, Mom saw her children only once-a few days before trial. She did not see her children because "she was lost. She was trying to get her life together. And having visits with [the children] was overwhelming." See Tex. Fam. Code Ann. § 263.307(b)(1), (6), (11), (12); Holley, 544 S.W.2d at 371-72 (factors (C), (D), (H)).

         4. Mom's Drug Use, Testing, Treatment

         Mom admitted using marijuana while she was pregnant with N.V.G. She knew N.V.G.'s meconium tested positive for marijuana; she denied knowing it tested positive for amphetamines. Mom repeatedly missed drug tests, including urinalyses and hair follicle tests. By skipping the drug tests and refusing to admit she was using drugs, Mom prevented the Department from getting her into a substance abuse treatment program. See Tex. ...


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