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In re C.D.L.R.

Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg

June 26, 2019


          On appeal from the County Court at Law No. 5 of Nueces County, Texas.

          Before Chief Justice Contreras and Justices Benavides and Longoria



         The trial court terminated appellant Father's parental rights to his daughter E.M.[1] By two issues, Father argues that: (1) the evidence is legally and factually insufficient to support termination under both § 161.001(b)(1)(E) and § 161.001(b)(1)(Q) of the Texas Family Code, and (2) the evidence is insufficient to support a finding that termination was in the best interest of the child. Because we conclude the evidence was legally insufficient under both § 161.001(b)(1)(E) and § 161.001(b)(1)(Q), we affirm in part, reverse in part, and remand for further proceedings.

         I. Background

         On September 16, 2016, appellee the Department of Family and Protective Services (the Department) filed an amended petition to terminate the parental rights of Mother and the respective fathers of C.D.L.R., C.D.L.R., and E.M. Mother, however, passed away before trial began. After a bench trial on October 3, 2018, the trial court terminated the parental rights of the fathers of all three children. Father of E.M. appeals. E.M. was born in 2016 and was two years old at the time of trial; Father was twenty-eight years old and has been incarcerated since before E.M.'s birth.

         Before any witnesses were called, the trial court admitted into evidence multiple exhibits, including: (1) Father's 2008 judgment of conviction for injury to a child; (2) a 2008 motion to revoke Father's community supervision for injury to a child, alleging Father committed a new offense of burglary of a habitation and tested positive for marijuana in December 2007 and January 2008; (2) two 2016 judgments adjudicating guilt for two offenses for burglary of a habitation; (3) a July 2015 motion to revoke Father's community supervision for the burglary offenses, alleging Father smoked synthetic marijuana "several times" while at a transitional treatment center in April 2015[2]; (5) a July 2016 motion to revoke Father's community supervision for the burglary offenses, alleging Father committed the offense of "possession of a substance" and tested positive for marijuana and benzodiazepines in May 2016[3]; (6) an assault victim's statement made by

Mother in June 2016, before E.M. was born, where she accused Father of assaulting her by pushing her multiple times, causing swelling of Mother's right arm and pain in her neck; and (7) an incident/investigation report and supplemental notes concerning Mother's allegation of assault against Father. In the incident report regarding the assault allegation by Mother against Father, a detective wrote:
[Mother] stated that they argued in her car and [Father] pushed her. [Mother] stated she got out of the car and then [Father] tried pushing her back in the vehicle and she wound up getting in the driver[']s seat trying to leave [Father]. [Mother] stated that [Father] then reached in the vehicle and tried pushing her to get in. [Mother] stated her head hit the window. [Mother] stated she was able to drive away without [Father] and called the police using another person [sic] phone. [Mother] stated she had no injury but the assault caused her pain. [Mother] did not want to conduct a video interview but she did fill out an assault victim's statement form. [Mother] also stated [Father] would not try to kill her and she did not want to partake in the lethality assessment survey. [Father] was not on scene and not contacted at the time of this report.
I located the written assault victim[']s statement. [Mother] wrote that [Father] assaulted her. She marked that he hit her and pushed her, she wrote she was assaulted on her "left arm and right side of my head." She marked that it was painful and did causes [sic] bleeding, bruises or swelling. She described the injury as "swelling on her right arm and my neck is in pain." She wrote she was assaulted with "his hands." She wrote, "he kept pushing me while I was in [the] passenger seat, then as I got in the driver seat he was grabbing and pushing me. My head kept hitting the passenger seat."

         Rey Rangel, an investigator with the Department, was the first witness called at trial. Rangel testified regarding the circumstances that led to the Department's intervention into Mother and the three children. According to Rangel, the Department was informed that Mother was using illicit drugs. Rangel believed that Mother's drug addiction made it inappropriate for her to care for the children, and the children were taken into conservatorship by the Department. According to Rangel, Father was not available at the time of removal because he was and still is incarcerated. Rangel testified that, at the time of trial, the children were currently placed with the maternal grandparents, and he recommended they remain there.

         Yliana Carlisle, another investigator with the Department, testified she had been in charge of the case for two months at the time of trial. Carlisle stated that E.M. could not be placed with Father because he was incarcerated. Carlisle further stated that Father's projected release date was in 2020, but that his sentence could last until 2026. Carlisle explained that: she had made two home visits to the maternal grandparents' home; she believed the grandparents are wonderful caregivers to the kids; the kids are happy, close, and bonded with the grandparents; she had no concerns about the children's placement with their maternal grandparents; and she believed it would be in the best interest of the children to remain with the grandparents.[4] According to Carlisle, Grandmother speaks with Father's sister regularly and with Father sometimes by phone and the family "is getting along well." Carlisle testified there was no indication that Father was the cause of the removal; instead, he is a "non-offending parent." Carlisle testified there was nothing in the exhibits admitted that indicated the injury suffered by the fourteen-year-old victim of Father's offense for injury to a child was serious.

         Father testified he was seventeen years old at the time of his offense for injury to a child and that he was convicted for punching a fourteen-year-old boy in the face. Father stated: "Just to be completely honest, sir, it was just-to me, I was just fighting with another teenager. I was a teenager. I made the mistake of getting into a fight with another teenager." The Department asked Father about his two convictions for burglary of a habitation, and Father responded:

Well, at the time of those offenses, sir, I was 18 years old. And, you know, if you look at them, I was 18. They happened in 2008. I haven't gotten no new felonies since then. I was just young and I could say I was on drugs back then, but in today's times, I won't let that affect my relationship with my daughter.[5]

         Father was incarcerated in 2016, prior to E.M.'s birth, after his community supervision for the two burglary offenses was revoked. Father explained he spends his time reading, working out, and staying out of trouble. According to Father, he has taken peer education courses, was participating in Bible study through mail correspondence, had requested parenting courses through mail correspondence, and was on the wait list for a computer trade course. Father explained that E.M.'s birth changed his outlook on life and that Mother had taken E.M. to see Father a few times while he was incarcerated, including for E.M.'s first birthday.

         Father testified the maternal grandparents were "wonderful people" and that he was "very thankful for them taking responsibility of my little girl." Father stated that Grandmother sends him photos of E.M., that he looks at her pictures all the time, and that he writes Grandmother at least once a month to check up on E.M.'s wellbeing. Father stated he wanted to be a part of E.M.'s life and he asked the trial court not to terminate his parental rights.

         Grandmother testified she met Father approximately six months before Mother became pregnant with E.M. She testified Father previously worked a night job cleaning. Grandmother thought that Father had smoked marijuana with Mother in the past, but that she was unaware of any other drug use by Father, and she did not believe Father to be a violent man. The Department emphasized Father's conviction for injury to a child:

[Department]: I'm going to ask this Honorable Court to terminate the parental rights of [Father]. One, because he's serving a lengthy period of incarceration; and, two, because he injured a child. At 17, he punched a child. 14. In the face. That doesn't sound like much, but he was indicted for it . . . . What do you think of that?
[Grandmother]: My personal belief is he was still very young. He was a kid, too. I'm not real familiar with street fights, but, I mean, I don't hold it against him because I think he was a child at the time, too.

         Grandmother testified she would be okay with E.M. being around Father after he is released:

If he shows me he's a good person and he's not doing anything wrong[, then] I welcome him to be the father to her that she probably should have. I mean, I don't want to take her out of our home, but I would love and welcome him to be the father.

         According to Grandmother, she would not let Father visit E.M. unless he is sober and clean from drugs. Grandmother testified she loved all the children dearly, wanted them to be together, and that they seem very happy. Grandmother stated she was happy to have the children, and she confirmed Father wrote her a letter once a month and frequently asked about E.M.'s overall wellbeing. Grandmother believed Father loves E.M. She testified she and her husband would be willing to care for E.M. regardless of whether E.M. is adoptable or whether they were given permanent managing conservatorship. Grandmother testified she would be willing to care for E.M. on behalf of Father and that she understood that, even if Father's parental rights were not terminated, then Father would still have to prove it is in E.M.'s best interest ...

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