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In re A.M.T.

Court of Appeals of Texas, Fourteenth District

May 14, 2019


          On Appeal from the 313th District Court Harris County, Texas Trial Court Cause No. 2017-05757J

          Panel consists of Justices Wise, Jewell, and Hassan.


          Meagan Hassan, Justice

         Appellant A.T. ("Father") appeals the trial court's final decree terminating his parental rights with respect to his child A.M.T. ("Ana").[1] The trial court terminated Father's parental rights on predicate grounds of constructive abandonment and failure to comply with the service plan for reunification. See generally Tex. Fam. Code Ann. § 161.001(b)(1)(N) and (O). The trial court further found that termination of Father's rights was in Ana's best interest. In three issues, Father challenges the legal and factual sufficiency of the evidence to support the trial court's findings on each predicate ground, as well as the best interest finding. Father does not challenge the appointment of the Texas Department of Family and Protective Services as Ana's managing conservator. Because we conclude the evidence is legally and factually sufficient to support the trial court's findings, we affirm the judgment.


         I. Pretrial Proceedings

         Ana was born November 26, 2017. Two days later the Department received a referral of neglectful supervision because both Mother and the newborn Ana tested positive for opiates. Mother admitted to taking someone else's medication while pregnant with Ana. An anonymous caller spoke with the reporter, a social worker at the hospital, about Mother and her history of drug use in Ohio. The anonymous caller mentioned two other children in Ohio and possible heroin use by Mother. The referral noted that another intake referral was made to the Ohio Child Service Bureau reporting that Mother had an open case involving her three-year-old son.

         Ana experienced opiate withdrawal symptoms at birth. Mother's only support in Texas was the friend who gave her opiates. Ana's maternal grandmother was not a suitable placement alternative because the grandmother had no stable housing and a history of alcoholism. The maternal great-grandmother was contacted but refused placement because she already had two of Mother's children in her care. Mother provided Father's name but did not have contact information for him. Mother told investigators that Father lived in Ohio and Mother's only method of communication with Father was through Facebook Messenger. Mother was unwilling or unable to provide any alternate placement for Ana. Mother fled the hospital shortly after Ana's birth.

         The Department requested to be named temporary managing conservator of Ana based on its belief that there was a continuing danger to Ana's physical health or safety if she were returned to Mother and reasonable efforts had been made to prevent removal.

         Initially a family service plan was created for Father in which he was required to complete a DNA test to establish paternity. The trial court signed a status hearing order on February 1, 2018, which stated that Father had reviewed and understood the service plan and had been advised that "unless he is willing and able to provide the child with a safe environment, even with the assistance of a service plan, within the reasonable period of time specified in the plan, his parental and custodial duties and rights may be subject to restriction or to termination or the child may not be returned to him." Father completed DNA testing and the trial court signed an ordering establishing paternity. On February 28, 2018 Father was served with the petition for termination.

         On October 19, 2018, a permanency report was filed by the Department's caseworker. The report noted that DNA testing established that Father was Ana's father. The report further noted that Father's drug test conducted in May 2018 was positive for cocaine. The report contained an address for Father and Father's attorney and noted that the Department notified Father and Mother that the Department was named temporary managing conservator of the child. The report also noted that the caseworker mailed a new family service plan to Father in which Father was required to "complete parenting classes, maintain stable housing and income, random drug test, [and] substance abuse assessment." The caseworker requested that the family service plan be made an order of the court. At that time the Department had conducted a "due diligence" search for Mother but was unable to locate her.

         II. Trial

         The parties proceeded to a bench trial on November 8, 2018. Neither of Ana's parents appeared for trial. The returns of citation, family service plans, and Father's positive drug test results were admitted into evidence without objection.

         Jasmine Smith, the conservatorship caseworker, testified that Ana was ten or eleven months' old at the time of trial. Ana went through opiate withdrawal after birth but had not experienced developmental issues as a result of being born dependent on opiates. Ana has been with her foster family since leaving the hospital after birth.

         After the amended service plan was created Father participated in one random drug test, which yielded positive results for cocaine. Smith testified that whenever she spoke with Father he did not have stable housing for Ana. Father also told Smith he recently graduated from school and that he was unable to find a job because he was in school. Father lived in Ohio and was aware that Ana was living in the Department's care but never visited her. The Department ensured that both parents had contact information for service providers to aid in completion of the service plan. When the service plan was created Smith explained to Father that his rights could be restricted or terminated if he did not comply with the service plan. Smith testified that the Department made reasonable efforts to return Ana to Father.

         With regard to Ana's best interest, Smith testified that the foster parents are the only parents Ana has known. Ana is happy and giggling with her foster father and is bonded with him. The foster parents want to adopt Ana, have a safe, stable home, and are willing to provide for Ana in the future.

         On cross-examination Smith was asked whether Ana's paternal grandfather had been considered as a potential placement for Ana. Smith testified that Father asked that the grandfather be considered, and Father told Smith he would advise of a date on which a home study could be conducted. Smith explained to Father that Ana's paternal grandfather could be considered for placement if the Department could conduct a home study. Smith told Father that she needed to schedule the visit in advance because it would require flying to Ohio. The home visit was not conducted because Father did not follow up with Smith about a home visit.

         Sandra Nassif, the Child Advocates volunteer, recommended termination of the parents' rights due to "lack of proof to show a stable environment." Nassif had visited Ana and her foster parents. Ana was very happy and developmentally on track. If Ana were to develop any special needs due to her in utero drug exposure the foster parents would be able to access services to care for her.

         At the conclusion of testimony, the trial court terminated Father's rights based on the predicate grounds of constructive abandonment and failure to follow a service plan. See Tex. Fam. Code Ann. § 161.001(b)(1)(N) & (O).

         Standards of Review

         The involuntary termination of parental rights implicates fundamental constitutional rights. Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985); In re D.R.A., 374 S.W.3d 528, 531 (Tex. App.-Houston [14th Dist.] 2012, no pet.). Because of the severity and permanency of terminating the parental relationship, Texas requires clear and convincing evidence to support such an order. See generally Tex. Fam. Code Ann. § 161.001; In re J.F.C., 96 S.W.3d 256, 265-66 (Tex. 2002).

         Father challenges on appeal the legal and factual sufficiency of the evidence supporting the trial court's order terminating Father's parental rights pursuant to Texas Family Code section 161.001(b). Section 161.001(b) permits the termination of a parent-child relationship if the trial court finds by clear and convincing evidence that (1) one or more predicate acts enumerated in section 161.001(b)(1) was committed, and (2) termination is in the best interest of the child. "Clear and convincing evidence" means "the measure or degree of proof that will produce in the mind of the trier of fact a firm belief ...

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