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In re A.D.K.

Court of Appeals of Texas, Sixth District, Texarkana

June 26, 2019


          Date Submitted: May 15, 2019

          On Appeal from the 62nd District Court Lamar County, Texas Trial Court No. 86752

          Before Morriss, C.J., Burgess and Stevens, JJ.


          Ralph K. Burgess Justice

         A Lamar County District Court terminated the parental rights of Mother and Father to their three minor children, Aaron, Charles, and Jeff.[1] 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. [2]

         We 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 appeal.

         I. Factual and Procedural Background

         In 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.

         Even 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.

         Mother 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.

         The 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.

         At 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.

         Father 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.

         The 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.

         Jeff 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.

         Meredith 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."

         The 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.

         Wymore 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.

         The 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 ...

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