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In re A.H.

Court of Appeals of Texas, Ninth District, Beaumont

May 23, 2019

IN THE INTEREST OF A.H.

          Submitted on April 15, 2019

          On Appeal from the 88th District Court Hardin County, Texas Trial Cause No. 59009

          Before McKeithen, C.J., Kreger and Horton, JJ.

          MEMORANDUM OPINION

          CHARLES KREGER JUSTICE.

         Appellant, L.H. (Father), appeals the trial court's order terminating his parental rights to A.H.[1] Father argues that the trial court erred when it (1) initially ordered the removal of A.H. without, among other factors, showing an urgent need or that A.H.'s physical health was in danger; (2) when it terminated his parent-child relationship based on his failure to comply with the service plan, and (3) determined that terminating his parent-child relationship was in the best interest of A.H. We affirm the trial court's judgment.

         Burden of Proof and Standards of Review

         Parental rights can be terminated upon proof by clear and convincing evidence that the parent committed an act prohibited by section 161.001(b)(1) of the Family Code and termination is in the best interest of the child. Tex. Fam. Code Ann. § 161.001(b)(1), (2) (West Supp. 2018); In re J.O.A., 283 S.W.3d 336, 344 (Tex. 2009); In re J.L., 163 S.W.3d 79, 84 (Tex. 2005). Due to the severity and permanency of the termination of parental rights, the burden of proof is heightened to the clear and convincing evidence standard. See Tex. Fam. Code Ann. § 161.001(b) (West Supp. 2018); In re J.F.C., 96 S.W.3d 256, 265-66 (Tex. 2002). "'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 or conviction as to the truth of the allegations sought to be established." Tex. Fam. Code Ann. § 101.007 (West 2014). This is an intermediate standard and falls between the preponderance standard of ordinary civil proceedings and the reasonable doubt standard in criminal proceedings. State v. Addington, 588 S.W.2d 569, 570 (Tex. 1979); In re D.T., 34 S.W.3d 625, 630 (Tex. App.-Fort Worth 2000, pet. denied). Therefore, the proof must be more than merely the greater weight of the credible evidence but need not be unequivocal or undisputed. Addington, 588 S.W.2d at 570. This heightened burden of proof results in a heightened standard of review. In re J.F.C., 96 S.W.3d at 265-66.

         In reviewing the legal sufficiency of the evidence in a parental termination case, we must consider "all the evidence in the light most favorable to the finding to determine whether a reasonable trier of fact could have formed a firm belief or conviction that its finding was true." In re J.O.A., 283 S.W.3d at 344 (quoting In re J.F.C., 96 S.W.3d at 266). We assume the factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could do so, and we disregard all evidence that a reasonable factfinder could have disbelieved. Id. (quoting In re J.F.C., 96 S.W.3d at 266).

         In reviewing the factual sufficiency of the evidence in a parental termination case, we "give due consideration to evidence that the factfinder could reasonably have found to be clear and convincing." In re J.F.C., 96 S.W.3d at 266. We must determine "'whether the evidence is such that a factfinder could reasonably form a firm belief or conviction about the truth of the State's allegations.'" Id. (quoting In re C.H., 89 S.W.3d 17, 25 (Tex. 2002)). "If, in light of the entire record, the disputed evidence that a reasonable factfinder could not have credited in favor of the finding is so significant that a factfinder could not reasonably have formed a firm belief or conviction, then the evidence is factually insufficient." Id. We give due deference to the factfinder's findings, and we cannot substitute our own judgment for that of the factfinder. In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). The factfinder is "'the sole arbiter when assessing the credibility and demeanor of witnesses.'" Id. at 109 (quoting In re J.L., 163 S.W.3d at 86-87).

         Background

         The record shows that A.H. was eight years old and living with her mother[2](Mother), when the Department of Family and Protective Services (the Department) first became involved in this case. A.H. was removed from her mother's care in August 2018, due to Mother's drug use and erratic behavior. Father was not living with A.H. when the removal occurred. Department Caseworker Boyd testified that at the time of A.H.'s removal, Father was the non-offending parent and not the reason for the removal by the Department. After A.H. was removed from Mother's care, Father was contacted by the Department and was provided a service plan for reunification with the child. The service plan was created, in part, to address Father's mental health issues and drug usage. Father admitted he was aware of Mother's behavior and drug usage, and he was aware the child was living with Mother in that environment. The Department's conditions for reunification with the child required Father to complete a service plan. The record shows numerous violations of the service plan by Father, and Boyd testified that at the time of the trial in January 2019, Father was noncompliant with the service plan.

         Boyd detailed several areas of the service plan that Father failed to abide by or complete. Boyd stated that initially Father made significant contact with the Department and attempted to complete his service plan. Boyd testified that the Department was concerned about Father's drug addictions and set out requirements in the service plan for Father, including outpatient therapy and random drug testing, in an attempt to address his drug usage. Father did not complete outpatient services as required by the service plan to address his drug usage. In addition, Father's service plan required that he have a negative drug test to visit A.H. While Father had a few negative drug tests, Father tested positive more than once for illegal narcotics, including methamphetamine and cocaine, resulting in the suspension of his visitations. After Father tested positive for cocaine use in September 2018, the Department requested he submit to another drug test in October, and Father failed to appear for testing. Boyd stated that she had recently spoken to Father, and he admitted to using methamphetamines in November and failed to submit to a drug test before trial.

         Boyd stated that Father is bipolar, and the service plan required him to address his mental health. In a conversation with Boyd, Father admitted that he was not "taking care" of his mental health, including taking his medication. Boyd expressed concerns with Father's unstable home life and infrequent communication with the Department. During the pendency of this case, Father moved to Amarillo to live with Mother's sister-in-law, a person, according to Boyd, who had been accused of sexual abuse by Mother's other child. Boyd stated that in October 2018, contact with Father became very erratic, and it was difficult to maintain communication with him. Any contact was often hindered by the fact that Father changed phone numbers frequently. In November 2018, Father contacted a caseworker in Amarillo and started to work on his service plan when he was arrested and transferred to Jefferson County. According to Boyd, when Father was released from Jefferson County, he returned to Amarillo and was "unsuccessfully discharged for his drug counseling" while trying to complete his outpatient treatment.

         Boyd stated that Father loves A.H. and "does want his daughter back" even though he makes "bad decisions on his drug use[.]"Boyd testified that she believed Father's rights should be terminated because Father's nomadic lifestyle would not provide A.H. with a stable home life, Father failed to comply with his medications and treatment for his mental health, Father's poor decision making could place A.H. in potentially harmful relationships, and Father cannot "maintain a lifestyle that doesn't put [A.H.] in harm's way of drug use."

         Father did not appear at trial but was represented by trial counsel. Boyd told the trial court that she stressed to Father the importance of appearing for trial because his parental rights could be terminated, and Father told her he "works…odd end jobs and he just can't miss work[.]" After a bench trial, the trial court signed an ...


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