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In re J.Q.J.

Court of Appeals of Texas, First District

May 30, 2019


          On Appeal from the 315th District Court Harris County, Texas Trial Court Case No. 2018-00151J

          Panel consists of Justices Lloyd, Landau, and Countiss.



         A.J.B. (Mother) is appealing the trial court's decree terminating her parental rights to her son, J.Q.J. (Jerry). On appeal, Mother argues that there is legally and factually insufficient evidence supporting the trial court's findings that (1) she committed the predicate acts under Family Code subsections 161.001(b)(1)(N) and (O); (2) she did not prove her affirmative defense to termination under section 161.001(b)(1)(d); and (3) termination of her parental rights is in Jerry's best interest. See Tex. Fam. Code § 161.001(b)(1)(N) & (O), We modify the trial court's order and affirm as modified.


         Mother tested positive for marijuana when Jerry was born in August 2017. The Department received a referral of physical abuse around that time and gave it the disposition of "Reason to Believe-Active Case." The Department received another referral on December 5, 2017 for neglectful supervision of Jerry but that was "Ruled Out." On January 10, 2018, the Department received a second referral of neglectful supervision of Jerry. According to the referral, Mother and Jerry's presumed father, David, [1] were physically fighting while 5-month-old Jerry was present.

         On January 12, 2018, the Department filed its Original Petition for Protection of a Child for Conservatorship, and For Termination in Suit Affecting the Parent-Child Relationship. According to the removal affidavit filed in support of the petition, the Department made the following observations from a video recording of the January 10th altercation:

[David was] yelling, screaming profanities and throwing objects at [Mother] as he literally terrorized everyone in the household. It was observed on the video that [David] physically grabbed [Mother] by the neck and was dragging her down the hallway toward her bedroom. It was observed that several family members in the household attempted to restrain [David] but were unable to. It was also observed that eventually he cornered [Mother] in the bedroom and she was able to grab a hammer that was nearby and began to swing profusely at [David].
It was also reported that aggravated assault took place in the home, whereby [Mother] assaulted the father with a hammer.

         After a full adversary hearing on January 23, 2018, the trial court appointed the Department as Jerry's temporary managing conservator. The court also signed an order in which it found that there was a continuing danger to the child, that for the child to remain in his parents' care was contrary to his welfare, and that despite reasonable efforts made by the Department to avoid removing the child, allowing him to continue residing in their home was contrary to his welfare. See Tex. Fam. Code § 262.201. The court also included a warning in the order that Mother's failure to fully comply with the court's orders could result in restriction or termination of her parental rights.

         The trial court held a status hearing on March 12, 2018. After the hearing, the court signed an order stating that it had reviewed the family service plan created for Mother by the Department, found it reasonable, and made the plan a part of the court's orders. See Tex. Fam. Code § 263.106. The court also found that Mother had reviewed the terms of her plan and understood it. Moreover, both the court's order and Mother's plan contain the statutorily required admonishment that the purpose of the plan was to assist her in creating a safe environment for the child, and that should she fail to demonstrate the ability to do so, her parental rights could be restricted or terminated. See Tex. Fam. Code § 263.102(b).

         Mother's service plan outlines the reason for the Department's involvement with the child and the Department's initial concerns. Jerry came into the Department's care after a January 10, 2018 neglectful supervision referral due to domestic violence between Mother and David. The Department was initially concerned about Jerry's safety because he was less than one year old, very vulnerable, and unable to protect himself, and therefore, he needed appropriate caregivers to ensure that his basic needs were met. According to the Department, the parents' drug use and history of domestic violence posed a risk to Jerry's protection and safety.

         On July 25, 2018, the trial court held a permanency hearing and issued an order suspending Mother's visitations with Jerry "until such time that she can produce a clean drug result."

         A bench trial was held on October 22, 2018. Mother participated by phone because was not able to attend due to transportation issues.

         Jerry's Department caseworker, Allanti Ford, testified that Jerry came into the Department's care after they received a referral of neglectful supervision of Jerry in January 2018 alleging an instance of domestic violence between Mother and David. Jerry, who was five months old, was present in the home when the altercation occurred. According to Ford, Mother also tested positive for marijuana when Jerry was born.

         Jerry was placed with his maternal grandmother in September 2018. The grandmother resides in Georgia. Ford testified that the placement is going great. According to Ford, Jerry is a healthy one-year old who is being well taken care of and has adjusted well to the placement. Ford confirmed that the grandmother is meeting all of Jerry's physical and emotional needs and she plans to adopt him if the court terminated Mother's parental rights. Ford testified that Jerry's grandmother has her own home and has the means to support him, with or without financial assistance from Mother. According to Ford, Jerry is surrounded by extended family in his current placement, including an aunt, an uncle, and cousins, all of whom adore him and are excited and happy to have him in the home.

         Ford also testified that the Department prepared a family service plan that identified several requirements that Mother had to complete before Jerry could be returned to her care. Among other things, Mother was required to (1) attend all court hearings, permanency conferences, and family visits with Jerry; (2) submit to random urine analysis drug testing and test negative every time (failure to appear for the test is considered a positive test result); (3) cooperate in a psychological evaluation and follow all of the evaluation's recommendations; (4) participate and successfully complete parenting classes, the Batterers Intervention and Prevention Program (BIPP), and anger management classes; (5) provide the Department with a certificate of completion for each program and demonstrate skills that she learned from these programs during her visits with Jerry and conversations with his caseworker; (6) attend NA/AA meetings/12 step program, acquire a sponsor, and provide supporting documentation to the Department; (7) acquire and maintain employment and provide documentation to caseworker; and (8) acquire and maintain stable housing for more than six months. BIPP and anger management programs were required because of the domestic violence allegationthat resulted in Jerry coming into the Department's care.

         Ford testified that Mother did not complete any of her services other than finding employment, and Mother did not provide any certificates of completion. Ford believes that Mother can pay child support. According to Ford, the last time Mother visited with Jerry was in March or April 2018. The trial court suspended Mother's visitation on July 25, 2018, pending proof of a clean drug test. Ford testified that Mother did not attempt to contact or communicate through phone calls or cards or presents or anything else after her visitation was suspended. When asked if Mother was attending visits with Jerry before the suspension, Ford testified, "Yes, just a few of them." Ford also stated that Jerry is currently placed with his maternal grandmother, and that although the grandmother and Mother are in contact, she does not know if they discuss Jerry during these phone calls. Ford opined that Mother had failed to maintain significant contact with Jerry during the case.

         The permanency report, which was admitted into evidence without objection, details the various ways that Mother failed to comply with her court-ordered service plan, including that Mother failed to: (1) appear for thirteen court-ordered drug tests between February and September 2018; (2) attend four court hearings and two parent-child visits before her visitation rights were suspended in July 2018, tpending proof of a clean drug test result; (3) participate in, and provide certificates of completion for, parenting classes, [2] anger management classes, and the domestic violence prevention program; (4) attend NA/AA meetings, acquire a sponsor, and provide supporting documentation; and (5) participate in a psychological evaluation, and follow all recommendations from the evaluation. On June 3, 2018, Mother admitted to the Department that she used marijuana to relieve her stress.

         Danielle Dempster, Jerry's Child Advocates volunteer, testified that Child Advocates recommended that Mother's parental rights be terminated based on Jerry's young age, Mother's history of substance abuse, Mother's failure to complete services, and Mother's failure to show that she can provide Jerry with a safe and stable environment. Dempster further testified that Jerry was living with his maternal grandmother. According to Dempster, Jerry's grandmother is very happy to have Jerry living with her and Jerry is doing very well in his current placement.

         Mother did not testify at trial.

         On November 20, 2018, the trial court signed a decree naming the Department as Jerry's sole managing conservator and terminating Mother's parental rights to Jerry pursuant to Texas Family Code sections 161.001(b)(1)(N) and (O).

         Sufficiency of the Evidence

         In four issues, Mother argues on appeal that there is legally and factually insufficient evidence supporting the trial court's findings that: (1) she committed the predicate acts under sections 161.001(b)(1)(N) and (O); (2) she did not prove her affirmative defense to termination under section 161.001(d); and (3) termination of her parental rights is in Jerry's best interest. See Tex. Fam. Code § 161.001(b)(1)(N) & (O), 161.001(b)(2).

         A. Standard of Review and Applicable Law

         A parent's right to the care, custody, and control of her child is a liberty interest protected under the Constitution, and we strictly scrutinize termination proceedings on appeal. See Santosky v. Kramer, 455 U.S. 745, 758-59 (1982); see also Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985). Clear and convincing evidence must support an involuntary termination. Holick, 685 S.W.2d at 20 (citing Santosky, 455 U.S. at 747-48).

         Clear and convincing evidence is "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 § 101.007. "This standard guards the constitutional interests implicated by termination, while retaining the deference an appellate court must have for the factfinder's role." In re O.N.H., 401 S.W.3d 681, 683 (Tex. App.-San Antonio 2013, no pet.). Thus, we do not re-weigh issues of witness credibility but ...

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