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In re K.K.B.

Court of Appeals of Texas, Fourteenth District

July 30, 2019


          On Appeal from the 313th District Court Harris County, Texas Trial Court Cause No. 2015-07296J

          Panel consists of Justices Wise, Jewell, and Hassan.



         Appellant A.G. ("Father") appeals the trial court's final decree terminating his parental rights and appointing the Department of Family and Protective Services as sole managing conservator of his child K.K.B. ("Kate").[1] The trial court terminated Father's parental rights on predicate grounds of failure to support, being criminally responsible for the death or serious injury of a child, constructive abandonment, and knowingly engaging in criminal conduct that resulted in confinement or imprisonment and inability to care for the child. See Tex. Fam. Code Ann. §§ 161.001(b)(1)(F), (L), (N) and (Q). The trial court further found that termination of Father's rights was in the child's best interest. Tex. Fam. Code Ann. § 161.001(b)(2). On appeal, Father challenges the legal and factual sufficiency of the evidence to support the trial court's findings on the predicate grounds and that termination was in Kate's best interest. Because we conclude the evidence is legally and factually sufficient to support the trial court's findings, we affirm the decree of termination.

         I. Factual and Procedural Background

         A. Pretrial Proceedings

         1. The initial referral and termination of Mother's parental rights

         Kate was born in 2009. She came into the Department's care in 2015 following an incident in which her youngest brother drowned in a bathtub while being supervised by Kate's maternal grandmother and uncle. At the time of the 2015 referral Kate's mother ("Mother") was involved in an ongoing Family Based Safety Services ("FBSS") case involving substance abuse and domestic violence. As part of that case Mother placed the children with the maternal grandmother. At the time of the referral Father had been in prison for five years, having been convicted of aggravated robbery in 2011 and sentenced to 25 years' incarceration.

         On June 7, 2017, the trial court terminated Mother's parental rights to Kate and her two younger siblings on grounds of endangerment, constructive abandonment, and failure to comply with a family service plan. Kate has a different father than her younger siblings. Appellant was determined to be Kate's biological father on February 16, 2016. The trial court did not terminate Father's rights at that time and named him possessory conservator of Kate. Kate lived with her siblings and their adoptive parents.

         2. Motion to modify and termination of Father's parental rights

         On September 18, 2017, the Department filed a motion to modify for conservatorship of Kate. The permanency report notes that modification was sought because Kate demonstrated a need for a stable home. Kate was described as a "very hyperactive and friendly 8 year old" who experienced serious behavioral issues. Kate had "trouble with telling the truth, stealing, following directions, and being outright defiant when she is redirected or told something she does not like."

         One year later, on September 27, 2018, the Department amended its motion to request termination of Father's parental rights. The trial court conducted a final hearing on the Department's motion and terminated Father's parental rights.

         B. Trial

         Before hearing testimony, the trial court admitted into evidence several documents including Kate's birth certificate, an adjudication of Father's parentage, a 2009 judgment of conviction for Father for evading arrest, a 2009 conviction for trespass to property, and Father's 2011 conviction for aggravated robbery with a deadly weapon, for which Father received a 25-year sentence. The documents were admitted without objection.

         Sherri Fielder, Kate's therapist, testified that she saw Kate one to two times a week for 45 minutes to an hour either in Kate's foster home or at daycare. Kate resided with the foster family for at least three years before trial. Kate's younger siblings also live with the foster family and have been adopted by them.

         In Fielder's initial assessment she testified that Kate suffered from bipolar disorder, Attention Deficit Hyperactivity Disorder ("ADHD"), and oppositional defiance disorder.[2] Fielder described Kate's behavior as "extreme" to the degree that Kate could become a flight risk. Kate has run away from home. Kate engaged in self-abusive behaviors and had physical alterations with adults and other children. Kate had been progressing in her behavior but began to regress when she started visiting her paternal grandmother ("Grandmother"). Kate regressed when she discovered that she could not "go with her grandmother and father." Kate's defiant behavior increased because Kate expressed a desire to live with her father and thought she no longer had to listen to the foster family and abide by their rules.

         Fielder testified that Kate was most in need of a structured environment with consistency, boundaries, and consequences for breaking the rules or exceeding boundaries. The foster family was able to handle Kate's behavior. Kate related well to her siblings. Kate loved them, and had fun playing with them. Kate's siblings were adopted by the foster family and their last name was changed to that of the foster family. Kate expressed to Fielder that she also wants her name to be changed to be included with her siblings. Kate has lived with the foster family since she was three years old. Fielder testified that if Kate left the foster family she "would be starting from square one," which would lead to increased defiant behavior.

         Fielder clarified that Kate's behavior following visits with Father was not necessarily Father's fault, but Fielder agreed that when Father expressed how much he wanted to be with Kate when he gets out of prison, Kate "gets her hopes up," which caused Kate to act out when she learned she could not live with her father immediately. To illustrate Kate's aggression, Fielder explained that Kate had attacked "pretty much everyone in [the foster family]'s household physically at one point or another." Kate attacked her principal and a teacher at school. Kate's aggression was "aimed at anyone that's standing in between her and what she wants at the time[.]"

         Fielder testified that Kate's negative behavior was driven in part by the perceived possibility that she could live with Father instead of her foster family. In other words, when boundaries were placed on Kate she tried to leave the family where the boundaries were being set. Fielder believed it would be in Kate's best interest to understand that the foster family was her permanent family. Fielder said she spoke to Kate about being adopted and Kate shared that "she has been with [the foster family] since she was 3; so, this is the family that she knows." Fielder was not aware of any other family members who were available to take care of Kate.

         Fielder further explained that Kate had "gotten to know the family . . . gotten to know their expectations. She's gotten to know how they run a household and the things that they do. It's exciting for her to be involved in various activities." If Kate left that home, the transition would be difficult and Fielder expressed concern that Kate would need to learn new boundaries and limitations, and her negative behaviors were likely to recur.

         The foster mother is Kate's cousin and relative caregiver who has known Kate for most of Kate's life. Kate lived with her previously for a year, and most recently since 2016. The foster mother adopted both of Kate's younger siblings. Kate had special needs and received several services to address those needs, including social skills services to help Kate with her behavior and communication. Kate was receiving "intensive case management." The foster mother described "intensive case management" as "wrap around services, where someone has to come back into the home to help assist with her needs."

         Kate has tried to run away from the foster family's home. The foster mother described Kate's most severe behavior as an incident in which Kate attempted suicide. Kate placed a rope around her neck after receiving a letter from Father "with a bunch of promises." The foster parents immediately took Kate to a psychiatric hospital where she was admitted for several days.

         Although Kate's behavior has been difficult, the foster parents were not willing to "give up on her[.]" Kate was described as a very smart child whose behavior impeded her learning. The foster parents wanted Kate to be a part of their family, and they wished to adopt her.

         The foster parents have adjusted their lifestyle to care for Kate. When the family goes out they take two cars so that one parent can take Kate home if she creates "a problem or a scene," and the rest of the family can enjoy the outing. The foster family worked with the therapist on strategies to cope with Kate's behavior. The foster mother testified that the Department made the determination that Kate could no longer visit Father, not the foster parents.

         Kate's visit with her Grandmother was shortened because Grandmother could not cope with Kate's behavior. Grandmother worked very hard to spend time with Kate but did not have the experience or skills to cope with her behavior. The foster mother agreed that in the future, when Kate matured, visits with Grandmother and Father may be helpful. But, at the time of the final hearing Kate was using her situation to "play one against the other."

         Caseworker Courtney Pinnekins testified that she had worked on this case from the beginning. Pinnekins testified that the children came into the Department's care because their fifteen-month-old sibling was left unsupervised in the bathtub and drowned. All four children were living with the maternal grandmother at the time. At the time of the removal Father was serving a 25-year sentence for aggravated robbery. Father would be eligible for parole in 2022. Placement for ...

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