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In re J.D.

Court of Appeals of Texas, Seventh District, Amarillo

April 15, 2019

IN THE INTEREST OF J.D., JR., A CHILD

          On Appeal from the County Court at Law Number 1 Randall County, Texas Trial Court No. 72, 943-L1; Honorable Jack Graham, Presiding

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

          MEMORANDUM OPINION

          PATRICK A. PIRTLE JUSTICE

         Appellant, J.D., Sr. appeals the trial court's order terminating his parental rights to his child, J.D., Jr.[1] In presenting this appeal, appointed counsel has filed an Anders[2] brief in support of a motion to withdraw. We affirm.

         Background

         J.D., Jr. was born February 23, 2016. In September 2017, law enforcement officers were called to the residence where he was living with his mother, M.C. When they arrived, M.C. complained that she was being choked by J.D., Sr. During the incident, J.D., Jr. was in her arms. In the parents' three-year relationship, domestic violence was a recurring event in the home.

         In November 2017, officers were again called to the residence on a domestic violence complaint involving J.D., Sr. Relying on help from a friend, M.C. escaped from the residence with J.D., Jr. before the police arrived. Once they were away from the residence, M.C. asked her friend to stop and pull over. When she refused, M.C. threatened her with a tire iron. The friend complied with M.C.'s demand and pulled over. M.C. then removed J.D., Jr. from the car and ran down the street where she was apprehended by law enforcement officers. She was arrested for child endangerment, evading arrest, and possession of marijuana. Shortly thereafter, the Texas Department of Family and Protective Services filed its Original Petition for Protection of a Child, for Conservatorship, and for Termination in Suit Affecting the Parent-Child Relationship. Based upon that petition, the child was removed from his parents and placed in foster care. At the time of his removal, J.D., Jr. tested positive for marijuana and cocaine.

         The Department's evidence at the final hearing established that J.D., Sr. was uncooperative throughout the termination proceedings. He was ordered four times by the court to submit to drug tests and was a "no show" for all four tests. He was given a plan of service-compliance of which was incorporated into a court order. In April 2018, J.D., Sr. tested positive for methamphetamine, marijuana, and amphetamine. Although he did complete parenting classes, he failed to complete six sessions of counseling and quit because he was tired of hearing that marijuana was illegal. He also failed to (1) report regularly to the Department, (2) attend a batterer's intervention and prevention program, (3) complete a drug/alcohol assessment, (4) provide proof of stable employment, or (5) establish a safe environment for the child. He left the state for an extended period and only visited J.D., Jr. once during the entire proceedings.

         The Department's evidence further established that J.D., Jr. had bonded with his foster family and all his needs were being suitably met. In addition, his foster family expressed an intent to adopt J.D., Jr. if the trial court terminated the parental rights of his mother and father.

         Based upon the evidence that J.D., Sr. had no contact with J.D., Jr. for at least seven months; the Department had made reasonable efforts to return his child to him; he did not regularly visit or maintain significant contact with the child; and he failed to demonstrate any ability to provide the child with a safe environment, the trial court found by clear and convincing evidence that J.D., Sr. had constructively abandoned J.D., Jr. while he was in the Department's care. See Tex. Fam. Code Ann. § 161.001(b)(1)(N) (West Supp. 2018).[3]

         In addition, the trial court found by clear and convincing evidence that J.D., Sr. failed to comply with the provisions of a court order that specifically established the actions necessary for him to obtain the return of his child who had been under the Department's supervision for a period in excess of nine months as a result of the child's removal for neglect or abuse. § 161.001(b)(1)(O).

         The trial court also found that returning the child to J.D., Sr.'s care was not in the child's best interest due to his father's continued absence, ongoing drug use, and disinterest in taking steps or following a plan to mitigate the circumstances that necessitated his removal. See § 161.001(b)(1)(N), (O). Accordingly, the trial court issued its order of termination finding by clear and convincing evidence that termination was proper under section 161.001(b)(1)(N) and (O) and it was in the child's best interest. See § 161.001(b)(2). This appeal followed.

         Applicable Law

         The Texas Family Code permits a court to terminate the parent-child relationship if the Department establishes one or more acts or omissions enumerated under section 161.001(b)(1) and termination of that relationship is in the child's best interest. See § 161.001(b)(1), (2). See also Holley v. Adams, 544 S.W.2d 367, 370 (Tex. 1976). The burden of proof is clear and convincing evidence. ยง 161.206(a). "'Clear and convincing evidence' means the measure or degree of proof that will produce in the mind of ...


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