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In re B.W.

Court of Appeals of Texas, Second District, Fort Worth

May 9, 2019

In the Interest of B.W., A Child

          On Appeal from the 235th District Court Cooke County, Texas Trial Court No. CV15-00769

          Before Birdwell, Bassel, and Womack, JJ.



         I. Introduction

         This is a private termination proceeding in which the parental rights of Appellant C.W. (Father)[1] to his son Blake[2] were terminated on the petition of Appellee D.S. (Mother) following a bench trial. In two issues, Father argues that the trial court abused its discretion by not appointing an ad litem to represent Blake and challenges the sufficiency of the evidence to support the termination of his parental rights to Blake. Because the record does not demonstrate that the trial court abused its discretion by not appointing an ad litem for Blake and because sufficient evidence supports an unchallenged predicate ground of termination, we affirm.

         II. Background

         During the termination trial, the trial court heard testimony from Mother, Paternal Grandmother, Paternal Grandfather, Paternal Great Aunt, and Paternal Uncle.

         A. Mother's Testimony

         Mother and Father never married. Mother testified that she and Father were together about two years and stayed together about six months after Blake was born in 2013.[3] At the time of the termination trial, Mother testified that Blake was five years old and was in kindergarten.

         Mother testified that when she and Father had dated, he had assaulted her, but she did not file charges. Mother testified that when she was pregnant with Blake, Father yelled at her, pushed her up against a wall, and then held her down in the front yard. Mother said that Father had been violent towards her while Blake was present by verbally abusing her when Blake was only a few months old to a year old.

         The record demonstrates that in 2015, Father was charged with aggravated assault with a deadly weapon and was placed on deferred-adjudication community supervision. Mother testified that Father's criminal charge was a result of his assaulting his then-girlfriend.

         Mother had concerns that Father was using drugs around the same time.[4]Mother testified that Father's drug usage created a situation that had endangered Blake's physical and emotional well-being. Mother explained that Father had anger issues and was very violent when he was on drugs. Mother said that Father had demonstrated violent tendencies toward his family, [5] his ex-girlfriend, and Mother. Mother testified that, to her knowledge, Father had not been violent towards Blake.

         Mother testified that her concerns about Father's drug use were confirmed when his community supervision was revoked due to failed drug tests and he was adjudicated guilty of aggravated assault with a deadly weapon. A copy of the judgment adjudicating Father's guilt was admitted into evidence. The judgment reflects that Father was placed on deferred-adjudication community supervision in 2015; that the State filed a motion to adjudicate, alleging that Father had violated multiple conditions of his community supervision;[6] that he pleaded true to the alleged violations; and that the trial court found the allegations to be true, adjudicated Father guilty of aggravated assault, and sentenced him to ten years' confinement. The record reflects that Father's parole eligibility date is January 13, 2023.[7]

         After Father tested positive for drugs, Mother filed her petition to terminate his parental rights in April 2018. In addition to Mother's concern that Father's drug usage might cause him to injure Blake, Mother testified that Father did not make any child support payments during 2017 and that he was not in prison and was able to make payments during that year.

         Mother testified that before Father went to prison, his involvement with Blake was "[v]ery little." Mother said that Blake would visit often with Paternal Grandparents but that Father never picked up Blake or brought him back to Mother. Mother explained that there were occasions when it was Father's visitation time, but Paternal Grandparents would visit with Blake while Father went out partying with his friends.

         Mother was not sure if Father loved Blake. Mother said that Father "had five years to see [Blake]. He could have c[o]me and seen him anytime he wanted, and he never did."

         Mother testified that by the time of the termination trial, she had been married to T.S. for almost a year, that they had dated for several years prior to marriage, that he had been in Blake's life for four years, and that T.S. was the only real father figure that Blake had known. Mother testified that T.S. planned to adopt Blake. Mother said that Blake had talked to her about changing his last name and wondered why his last name was different from hers. Mother requested that the trial court change Blake's last name to T.S.'s last name due to the poor reputation associated with Father's last name as a result of his criminal conviction.[8]

         Mother opined that it was in Blake's best interest for the trial court to terminate Father's parental rights. Mother also requested that the trial court appoint her as sole managing conservator of Blake.

         On cross-examination, Mother testified that she loved Paternal Grandparents and that they got along well with Blake. Mother said that Paternal Grandparents had offered her money to help her out and that she had "kindly told them that [she] didn't need it." Mother testified that Blake was on her insurance at work, so she did not use the Medicaid that Paternal Grandparents had renewed on Father's behalf for the benefit of Blake.

         Mother testified that she had seen Father be verbally defiant towards Paternal Grandparents and refuse their instruction. As a result, Mother was concerned about Blake's going to visit Paternal Grandparents after Father gets out of prison. Mother had spoken to Paternal Grandparents about her concerns, but they would not agree to her request to not allow Father around Blake because they wanted Father to be allowed to be around Blake at family gatherings.

         The trial court asked Mother why it would be in Blake's best interest for Father's parental rights to be terminated, and she said,

[Father's] had violence, drug abuse, and anger issues. He hasn't been a father. He's had five years to be a father[, ] and he hasn't. I don't want [Blake] seeing the way he lives. It would be in [Blake's] best interest, his safety and well-being, for my current husband to raise him and teach him the way of life. [Father], I don't see him doing that.

         B. Paternal Grandmother's Testimony

         Paternal Grandmother testified that she and her husband have a very close relationship with Blake. Paternal Grandmother said that she called Mother whenever she wanted to see Blake and that Mother had been very cooperative in allowing Paternal Grandparents to see Blake. Paternal Grandmother admitted that Mother had been a great mother to Blake.

         Paternal Grandmother testified that when Father was not using drugs, he was "amazing." Paternal Grandmother said that Father began using drugs at the end of high school and had used drugs off and on for eight years. Paternal Grandmother knew that Father had used K2, but she did not know that he had used methamphetamine and Xanax. Paternal Grandmother admitted that when Father was doing drugs, he would push her, yell at her, and scream at her and Paternal Grandfather. Paternal Grandmother did not recall an incident in which Father had hit her with a broom.

         Paternal Grandmother testified that Father truly loves Blake and wants to see Blake even though Blake is too young to visit Father in prison. Paternal Grandmother said that Father had not been "influential the whole time" and that he had regretted not spending as much time with Blake as he could have. Paternal Grandmother testified that when Father had spent time with Blake, they had ridden four-wheelers, had gone fishing, and had hung out and enjoyed their time together. Paternal Grandmother testified that Father and Blake "truly have a bond" and that Blake asks about Father "all the time."

         Paternal Grandmother testified that it would not be in Blake's best interest for the trial court to terminate Father's parental rights because

[Father] loves [Blake] very much. He went through some real bad times, and we don't condone anything that he did. He made some bad choices. But I don't feel that terminating [Blake's] relationship [with Father] should be done because of that. He is in the penitentiary. He is -- once he gets to his permanent place, he is taking classes to work with his problem -- problems that he has.
He -- he's never hurt [Blake], never hit [Blake], never in any way showed any kind of hostility towards [Blake]. His -- when he had hostility with other people, I do blame it on the drugs he was doing. But he's going to be in there five years. He is going to be drug free when he comes out. He's going to church every Sunday. I just don't believe that terminating [Blake's] relationship with his father would do any justice for either one of them.

         Paternal Grandmother said that it would be in Blake's best interest to have contact with his family.

         On cross-examination, Paternal Grandmother admitted that someone who had abused drugs and had committed aggravated assault with a deadly weapon was not a good, stable parent. Paternal Grandmother could not guarantee that Father would stay clean after he is released from prison. Paternal Grandmother agreed that it concerned her that Father could not stay clean and follow the court's orders back when he was on community supervision and was facing up to twenty years in prison.

         C. Paternal Grandfather's Testimony

         Paternal Grandfather admitted that he and Father had engaged in verbal altercations but not physical altercations. Paternal Grandfather did not condone Father's "prior problems."

         Paternal Grandfather opined that Father loves Blake. Paternal Grandfather testified that before Father went to prison, he visited with Blake when they brought him to their house as long as it was not during Father's work hours. Paternal Grandfather said that Blake cried every time they took him home because he did not want to go home. Paternal Grandfather testified that taking Blake away from his family was not in Blake's best interest.

         On cross-examination, Paternal Grandfather testified that he was unaware of Father's drug use when Father was living in a small apartment behind Paternal Grandparents' home while he was on community supervision. Paternal Grandfather agreed that Father had been given numerous opportunities to get clean and to be a good father to Blake and that in spite of those opportunities, Father had not taken advantage of them and would be in prison until ...

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