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In re A.M.

Court of Appeals of Texas, Sixth District, Texarkana

June 22, 2018

IN THE INTEREST OF A.M., A CHILD

          Submitted Date: June 8, 2018

          On Appeal from the 307th District Court Gregg County, Texas Trial Court No. 2017-617-DR

          Before Morriss, C.J., Moseley and Burgess, JJ.

          MEMORANDUM OPINION

          Ralph K. Burgess Justice

         After a bench trial in Gregg County, Texas, the trial court terminated Jamie's parental rights to her child, Ava.[1] The trial court ordered rights terminated pursuant to Section 161.001(b)(1), subsections (E), (O), and (P), and found that termination of her rights was in the best interests of the child. See Tex. Fam. Code Ann. § 161.001(b)(1)(E), (O), (P), (b)(2) (West Supp. 2017). The Texas Department of Family and Protective Services (the Department) was appointed the permanent managing conservator of the child.

         On appeal, Jamie argues that (1) the trial court erred in denying her request to be present in court and participate in the trial and (2) there was factually insufficient evidence that termination was in the child's best interests.

         We affirm the trial court's judgment because error regarding Jamie's right to be present was not preserved and sufficient evidence supports the trial court's finding that termination was in the best interests of the child.

         I. Procedural and Factual Background

         Jamie and Tim are the biological parents of Ava. After Tim was confirmed as Ava's biological father, he executed a voluntary relinquishment of his parental rights to the Department. Yet, even though his parental rights to Ava were also terminated, he continued to participate in this case.

         When Ava was born in April 2017, she tested positive for amphetamine, methamphetamine, and marihuana, and Jamie tested positive for amphetamine. Jamie admitted to having used methamphetamine for the preceding ten years, but she denied using drugs during her pregnancy, though she had been "around friends that were using." Jamie confirmed to the Department's investigator, Janika Cooper, that due to her prior use of methamphetamine, Jamie's other five children "had been adopted by paternal relatives" or placed with their respective fathers. Accordingly, when the Department was unable to locate appropriate family members for possible placement of Ava, the child was removed from Jamie's care and placed in foster care. The trial court ordered Jamie to complete the Department's provided service plan, which included drug testing, counseling, parenting classes, psychological evaluation, maintaining safe housing, abstaining from drugs and alcohol, maintaining contact with her caseworker, and refraining from criminal activity.

         Alleging that reunification could not be achieved, the Department sought to terminate Jamie's and Tim's parental rights. The case was called for trial on February 26, 2018, and Jamie's counsel appeared, but she did not. Her counsel informed the court that Jamie was "incarcerated over in Harrison County" on allegations of drug possession, that he was not ready for trial, and that he requested a continuance. The trial court denied the motion and the trial proceeded without Jamie's presence.

         Sedelia Nelson, an investigator with the Gregg County District Attorney's Office, testified that on February 3, 2018, Jamie was incarcerated in the Harrison County Jail in Marshall, Texas, on a charge of felony possession of a controlled substance. Even though Jamie attended most of her visits with Ava, Department Caseworker Kemy Daniels testified that Jamie failed to appear for several drug tests, tested positive for methamphetamine in August 2017, did not successfully complete drug counseling, and failed to obtain and maintain housing or employment. Ava was eventually placed with one of Tim's relatives who wished to adopt the child. Both Daniels and the volunteer from Court Appointed Special Advocates (CASA), Debbie Lagrone, testified that Ava is safe, happy, and bonded in this new placement. Daniels also testified that she believed that Jamie's parental rights should be terminated and that termination was in the child's best interest. The State rested its case, and Jamie rested without calling any witnesses.

         After considering all the evidence and the arguments of counsel, the trial court terminated Jamie's parental rights to Ava pursuant to Section 161.001(b)(1), subsections (E), (O), and (P), and found that termination was in the best interests of the child. Tex. Fam. Code Ann. § 161.001(b)(1)(E), (O), (P), (b)(2). The Department was appointed the permanent managing conservator of the child. Jamie's motion for new trial was denied.

         II.Did the Trial Court Err in Denying Jamie's ...


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