Court of Appeals of Texas, Sixth District, Texarkana
IN THE INTEREST OF A.D.K., C.D.K., AND J.Z.K, CHILDREN
Submitted: May 15, 2019
Appeal from the 62nd District Court Lamar County, Texas Trial
Court No. 86752
Morriss, C.J., Burgess and Stevens, JJ.
K. Burgess Justice
County District Court terminated the parental rights of
Mother and Father to their three minor children, Aaron,
Charles, and Jeff. On appeal, Father contends that (1)
termination was not in the children's best interest and
(2) the trial court erred in admitting hearsay evidence
regarding the children's statements about where they
wanted to live. 
affirm the trial court's order because (1) the evidence
is legally and factually sufficient to support the trial
court's determination that termination of Father's
parental rights was in the children's best interest and
(2) Father failed to preserve the hearsay error raised on
Factual and Procedural Background
2017, the Texas Department of Family and Protective Services
(the Department) placed Mother and Father's three
children, Aaron, Charles and Jeff, in foster care and
initiated the present case seeking termination of
Mother's and Father's parental rights. The trial
court ordered Mother and Father to complete a family service
plan that included parenting classes, counseling, and drug
testing. In August 2017, Mother voluntarily relinquished her
parental rights to the three children. The Department then
proceeded with the termination case against Father.
though Mother had no further involvement in the case and did
not appear at trial, it is undisputed that Father completed
the court-ordered service plan, including all required
counseling, classes, and drug testing. Father also visited
the children six times during the pendency of the case,
having chosen to see them on a monthly, rather than weekly,
basis. However, Kelly Meredith, the Department case worker
assigned to this case, testified that the Department
continued to seek termination of his parental rights because
Father could not successfully take care of the children due
to his history of drug and alcohol abuse and dangerous and
neglectful parenting decisions.
and Father had a significant history with the Department. The
police and the Department had previously investigated Mother
and Father several times for physical and domestic abuse.
Meredith testified that Charles and Aaron described seeing
Mother and Father fight at various times and seeing Father
"take [Mother's] keys after hitting her and both of
them going to jail." Father admitted that the children
had seen them argue, but he denied that any domestic violence
occurred between them.
children were previously removed from the parents' care
and custody in October 2015, when Mother and Father were
found passed out in their car at a Burger King. At that time,
synthetic marihuana was found in the car, and the children
were running around the area unsupervised. Father claimed
that they "had stopped to take a nap," but he
admitted that the situation had been dangerous for the
children, who were all younger than four years old at the
time. Due to the incident, the Department took custody of the
children, and Mother and Father both were later convicted of
endangering a child. However, in June 2016, the
Department's case was dismissed, and the children were
returned to the care and custody of Mother and Father.
trial, Father admitted that he had a drug and alcohol problem
in the past, but he completed substance abuse counseling and
passed the approximately twenty drug and alcohol tests he was
given during the pendency of this case. He testified that he
went to a substance abuse felony punishment (SAFP) facility
in November 2017, and he completed the program in six months.
After completing his court-ordered services, Father continued
to attend counseling and Alcoholics Anonymous meetings.
also admitted to having a lengthy criminal history. His prior
convictions in Texas included (1) a 2016 state-jail felony
conviction for abandoning or endangering a child, (2) a 2017
third-degree felony conviction for tampering with or
fabricating evidence, and (3) four class B misdemeanor
convictions in 2017 for driving while intoxicated, resisting
arrest, striking a highway fixture, and possessing a
controlled substance. Father admitted that he had also been
previously convicted in Oklahoma for assault and battery,
driving under the influence, and assault on a pregnant woman.
He also admitted that he had made "a lot of
mistakes" and that it would not surprise him if the
children were disappointed in him.
children's attorney at litem, Deborah Wymore, testified
that the children were warm and loving when they were in
foster care in 2015, but they also "fought
constantly," smeared feces on the walls of the foster
home, spit on others, and tried to run away. They were
subsequently reunited with Mother and Father, but returned to
foster care in August 2017. After their return to foster
care, Wymore observed that "they just went
downhill" during the time they had spent with their
parents between removals. Specifically, Aaron had developed a
physical tic and was diagnosed with attention deficit
hyperactivity disorder (ADHD), Charles was diagnosed with
ADHD, psychosis, and was considered a slow learner, and Jeff
was diagnosed with a form of autism called Asperger Syndrome,
had dysregulation disorder, had a speech impediment, and was
also considered a slow learner. All three children received
counseling and therapy and, due to their behavioral and
disciplinary issues, were on behavior plans at school.
was prescribed medications to treat his autism, ADHD, and
anxiety. He was hospitalized for mental issues three or four
times after he attacked various men, severely bit a
teacher's finger, and hit other teachers in the face.
Charles heard voices, and once, the voices told him to attack
a girl on the playground and choke her to the ground. He also
talked about harming his brother and others, and his foster
parents locked away their household knives and sharp objects
so that Charles would not hurt himself or others.
testified that both Jeff and Charles told her that Father had
taught them how to fight. Charles told Meredith and Jeff told
Wymore that Father would invite his friends over and have the
children fight in front of them-an allegation that Father
denied. When Meredith told Charles that it would not be
appropriate for him to live with Jeff, the child asked if it
was because he and Jeff beat on each other all the time. When
Meredith responded in the affirmative, Charles "would
stress again that they were taught to do that and shown how
to fight with one another."
children had to be placed in separate foster homes because
Jeff was very aggressive and kept trying to beat up Charles.
Jeff would punch and kick Charles, and he would throw him to
the ground and put him in headlocks and chokeholds. Jeff
thought it was funny that he and Charles fought so much, and
Meredith testified that Jeff "still gets worked up when
he sees his brothers. He still talks about wanting to fight
his brothers." A sibling visit after they were placed
into foster care was terminated after ten minutes because
Charles and Jeff were swinging toys at each other's heads
and wanting to fight.
testified that, regardless of whether the children could be
adopted or not, termination was in the children's best
interest because Father could not meet the children's
needs. She also testified that the children had
"excelled since being in [Department] custody."
Wymore and Meredith testified that the children's foster
mother during the 2015 removal wanted to adopt all three
children once she got her foster license reestablished.
Jeff's former foster mother was interested in adopting
him if the option became available, and Charles' and
Aaron's current foster parents knew of a family member
who had expressed interest in adopting them.
trial court entered an order terminating Father's
parental rights to the children, because, (1) under
subsection (D) of Section 161.001(b)(1) of the Texas Family
Code, he knowingly placed or knowingly allowed the children
to remain in conditions or surroundings which endangered
their physical or emotional well-being; (2) under subsection
(E), he engaged in conduct or knowingly placed the children
with persons who engaged in conduct which endangered the
children's physical or emotional well-being; (3) under
subsection (L), he had been convicted of or placed on
community supervision for the death or serious injury of a
child; and (4) termination was in the children's best
interest. The trial ...