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In re J.R.H.

Court of Appeals of Texas, Fourth District, San Antonio

May 23, 2018

IN THE INTEREST OF J.R.H.

          From the 166th Judicial District Court, Bexar County, Texas Trial Court No. 2017-PA-00265 Honorable Charles E. Montemayor, Associate Judge Presiding

          Sitting: Karen Angelini, Justice, Rebeca C. Martinez, Justice, Patricia O. Alvarez, Justice

          MEMORANDUM OPINION

          Karen Angelini, Justice

         Rosemary S. appeals the trial court's order terminating her parental rights to her young daughter, J.R.H. Her parental rights were terminated based on (E), (N), (O), and (P) grounds. See Tex. Fam. Code Ann. § 161.001(b)(1)(E), (N), (O), (P) (West Supp. 2017). On appeal, Rosemary S. does not contest the statutory grounds for termination but argues only the evidence is legally and factually insufficient to support the trial court's finding that termination of her parental rights is in her child's best interest. See id. § 161.001(b)(2). We review the legal and factual sufficiency of the evidence to support the trial court's best-interest finding under the standards enunciated in In re J.O.A., 283 S.W.3d 336, 344 (Tex. 2009).

         Under Texas law, there is a strong presumption that the best interest of a child is served by keeping the child with a parent. In re R.R., 209 S.W.3d 112, 116 (Tex. 2006). And, in determining whether the child's parent is willing and able to provide the child with a safe environment, a court should consider the factors set out in section 263.307 of the Family Code. See Tex. Fam. Code Ann. § 263.307 (West Supp. 2017). In addition to these statutory factors, in considering the best interest of the child, a court may also consider the nonexclusive list of factors set forth by the Texas Supreme Court in Holley v. Adams, 544 S.W.2d 367, 372 (Tex. 1976). See In re C.H., 89 S.W.3d 17, 27 (Tex. 2002). Further, in determining whether termination of the parent-child relationship is in the best interest of a child, a court may judge a parent's future conduct by her past conduct. In re E.D., 419 S.W.3d 615, 620 (Tex. App.-San Antonio 2013, pet. denied).

         J.R.H. is Rosemary S.'s eleventh child. Her parental rights to her other ten children were previously terminated. After the Department of Family and Protective Services initially removed J.R.H., the trial court allowed J.R.H. to remain with her father and Rosemary S. However, J.R.H. was subsequently removed from the home a second time.

         The evidence at trial showed Rosemary S. engaged in substance abuse and had an extensive psychiatric history. She and J.R.H.'s father were involved in instances of domestic violence. Rosemary S. was not able to provide stable housing or obtain and maintain stable employment. She also failed to comply with the court-ordered service plan.

         The evidence at trial consisted of testimony from psychological professionals and therapists along with testimony from Department investigators and caseworkers.

         Dr. Augustin Sicard, a psychologist who did a psychological assessment and treatment plan for Rosemary S., testified to his concern about domestic violence, continued substance abuse, uncontrollable anger issues, and bipolar disorder. According to Dr. Sicard, Rosemary S. was willing to comply with services offered by the Department.

         Licensed psychologist Dr. Kirk Coverstone performed a psychological evaluation on Rosemary S. and testified about a number of risk factors being present in her case. According to Dr. Coverstone, there is extensive psychiatric history for which Rosemary S. needs treatment and medication. Dr. Coverstone testified Rosemary S. has a very limited employment history, questionable marketable skills, transportation issues, healthcare issues, substance abuse issues, and long-standing issues of conflict in the relationship with J.R.H.'s father. Rosemary S. did express a desire to have her child returned, and Dr. Coverstone testified it was apparent she loved and cared about her child.

         Lori Berkman, who provided therapeutic services for Rosemary S., testified that Rosemary S. attended a number of sessions, but made very little progress. According to Berkman, after Rosemary S. tested positive for drugs, she did not come in as consistently for her sessions. Berkman also testified that Rosemary S. was unable to obtain employment and stable housing. According to Berkman, Rosemary S. was slow to get started with her plan and was inconsistent toward the end. Berkman did not recommend reunification because Rosemary S. could not maintain stable housing or employment, and was not capable of caring for her child. Further, according to Beckman, Rosemary S. was living in a chaotic household with another woman. Berkman explained that Rosemary S. wanted to comply with the Department's service plan, but did not have a great track record with her prior terminations of being able to comply with service plans. According to Berkman, Rosemary S. seemed willing to work her treatment plan and expressed a desire to have her child returned. Berkman testified she helped Rosemary S. complete paperwork to apply for Social Security disability, which would allow Rosemary S. to obtain housing.

         Brian Kelly, Jr., an administrative coordinator at a substance abuse treatment center, testified that he scheduled three assessment appointments for Rosemary S. before she finally appeared at an appointment. According to Kelly, at the time of the termination hearing, Rosemary S. had only been in outpatient treatment for a week.

         Sarah Rodriguez, a Department investigator, prepared the removal affidavit in this case. She expressed concerns about the stability of the home, the child having access to the maternal grandmother who had her own history with the Department, and drug use and domestic violence in the home.

         Angelique Adams, another Department investigator, testified she received a report of domestic violence between Rosemary S. and J.R.H.'s father, which occurred while Rosemary S. was holding J.R.H. According to Adams, domestic violence was an ongoing issue with the parents. Adams also testified she was concerned about J.R.H. having contact with the ...


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