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In re E.X.H.

Court of Appeals of Texas, Seventh District, Amarillo

April 4, 2019

IN THE INTEREST OF E.X.H. AND S.M.H., CHILDREN

          On Appeal from the 100th District Court Carson County, Texas Trial Court No. 11978, Honorable Stuart Messer, Presiding

          Before QUINN, C.J., and CAMPBELL and PARKER, JJ.

          MEMORANDUM OPINION

          PER CURIAM

         J.H., father of E.X.H. (E.) and S.M.H. (S.), appeals the order terminating his rights to his children.[1] Through four issues, J.H. contends the evidence is legally and factually insufficient to support grounds (D), (E), and (O) of § 161.001 of the Texas Family Code, and that termination is in the best interest of the children. We affirm.

         Background

         The children were removed from M.H., the children's mother, after local authorities arrested her for money laundering and abandoning and endangering the children. The charges related to her apparent participation in a scheme to transport drugs or money to purchase drugs between Arizona and Kentucky. E. (born in 2013) and S. (born in 2016) were in the vehicle as their mother drove across country as part of the scheme and at the time of the arrest. Though M.H. denied having specific knowledge of the details of the scheme, she knew it was "bad" and received $3, 500 in cash as payment for her participation. Furthermore, a sum of money exceeding $10, 000 was found hidden within the vehicle she drove. J.H. was incarcerated in an Arizona jail at the time of M.H.'s arrest, resulting in the children being placed in foster care.

         The Department's caseworker assigned to investigate the allegations of neglectful supervision of the children confirmed that she had attempted to locate J.H. in the Arizona prison system, specifically Florence, Arizona, but was unable to locate him. Furthermore, she never received any phone calls or letters from J.H. nor any other communication regarding the children, nor did he contact or attempt to contact the children. She also confirmed that M.H. had reported a history of abusive and assaultive conduct between her and J.H. This abuse came in the form of J.H. beating her up which resulted in her leaving him. This information was given to the arresting officer at the time of her arrest when asked about why she committed the charged offenses. According to the officer, M.H. stated she needed the money due to a domestic situation she had recently been in where "her significant other had assaulted her, and she was now needing the money very bad and had been offered this line of work."

         The temporary orders after the adversary hearing, which were also made part of a service plan, ordered J.H. to participate in a psychological evaluation and all recommendations made through it (which evaluation was to be scheduled within 10 days from his release from incarceration), maintain regular contact with the caseworker including providing contact information and any changes in same, complete parenting classes, submit to a substance abuse assessment and follow all recommendations, participate in random drug testing, obtain and maintain safe, stable housing and employment and provide the caseworker with employment verification, and attend individual counseling sessions until released by the therapist. According to the caseworker, the service plan was mailed to J.H.

         The caseworker stated that J.H. had been incarcerated at the beginning of the case and she did send letters, orders and the service plan to him; however, she never was contacted by him in return. At one point during the life of the case, he was released from custody. Again, he failed to contact the Department regarding his living situation, his address or whether he desired to have contact with his children. Nor did he contact the Department or the caseworker to advise he had completed, participated or started any of the court-ordered services. Therefore, she believed J.H. had not completed any court-ordered services. Furthermore, J.H's counsel advised the court that he had not had any contact with his client from inception through the final hearing.

         The caseworker also opined that J.H.'s parental rights should be terminated because he knowingly allowed the children to remain in conditions or surroundings that endangered their physical or emotional well-being and engaged in conduct that allowed the children to be with persons who engaged in conduct that endangered their physical or emotional well-being. The circumstances underlying this opinion included 1) J.H.'s physical violence towards their mother; 2) the presence of the children while their mother engaged in drug trafficking, 3) J.H.'s failure to complete services designed to mitigate the reasons for removing the children; and, 4) his inability to provide the children a safe environment. So, from the witness' perspective, J.H. posed an emotional and physical danger to the children and was unable to meet their emotional and physical needs.

         The CASA representative advised the court that the children were doing well in their placement with an aunt in Arizona. E. had successfully completed speech therapy and was shown to learn very quickly. S. also was doing well. Furthermore, their aunt represented that "she would do whatever it takes . . . she wants those kids." Other evidence indicated that she was gainfully employed as a branch manager of an institution that cares for disabled children and was certified to care for such children.

         The trial court terminated J.H.'s rights based on Sections 161.001(b)(1)(D), 161.001(b)(1)(E), 161.001(b)(1)(F), and 161.001(b)(1)(O) of the Family Code and found termination to be in the best interests of the children.

         The Law

         Termination of parental rights requires proof by clear and convincing evidence. This heightened standard of review is mandated not only by the Family Code, see Tex. Fam. Code Ann. § 161.001, but also the Due Process Clause of the United States Constitution. See In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002) (stating the due process requires the application of the clear and convincing evidence standard of proof in parental termination cases); see also Santosky v. Kramer,455 U.S. 745, 769-70, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982) (recognizing the same). The Family Code defines clear and convincing evidence as "the measure or degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established." Tex. Fam. Code Ann. ...


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