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In re K.J.G.

Court of Appeals of Texas, Fourth District, San Antonio

August 21, 2019

IN THE INTEREST OF K.J.G., Jr., et al.

          From the 438th Judicial District Court, Bexar County, Texas Trial Court No. 2017-PA-01856 Honorable Charles E. Montemayor, Judge Presiding Opinion by: Liza A. Rodriguez, Justice

          Sitting: Luz Elena D. Chapa, Justice Irene Rios, Justice Liza A. Rodriguez, Justice




         Appellant mother J.J.[1] appeals the trial court's order terminating her parental rights to her four children, eight-year-old K.J.G., Jr., four-year-old L.L.M., two-year-old M.M.M., and I.W.M. who was less than one year old at the time the Texas Department of Family and Protective Services (Department) filed its petition. Parental rights may be terminated only upon proof of clear and convincing evidence that (1) the parent has committed an act prohibited by section 161.001(b)(1) of the Texas Family Code, and (2) termination is in the best interest of the child. See Tex. Fam. Code Ann. § 161.001(b)(1)-(2). After a bench trial, J.J.'s parental rights to the children were terminated pursuant to subsections 161.001(b)(1)(E), (O), and (P) and a finding of best interest. On appeal, J.J. challenges the legal and factual sufficiency of the evidence to support all of the trial court's findings and contends her trial counsel rendered ineffective assistance during trial. We affirm the trial court's order.


         Three witnesses testified during the portion of the January 23, 2019 bench trial devoted to termination of J.J.'s parental rights: appellant J.J.; April Musquiz, the first caseworker for the Department; and Alyssa Cordova, the second caseworker for the Department.[2] In its brief, the State refers to allegations listed in the family service plan, service plan evaluations, and CASA reports as evidence supporting the trial court's findings, arguing the trial court took judicial notice of its file. The trial court stated on the record that it was taking judicial notice of "the pleadings, the court orders, service plans, service of process documents, State's Exhibit 1 [father K.G.'s judgment of conviction], and CASA reports," but "no affidavits." A trial court may take judicial notice that a pleading has been filed or an order has been signed in the case, or the law of another jurisdiction; therefore, the court may properly take judicial notice that it signed an order adopting the family service plan and what the plan listed as the necessary requirements. See In re J.E.H., 384 S.W.3d 864, 870 (Tex. App.-San Antonio 2012, no pet.); see also In re B.R., 456 S.W.3d 612, 617 n.4 (Tex. App.-San Antonio 2015, no pet.). The trial court may not, however, take judicial notice of the truth of any allegations in its records, including allegations by the caseworker in the family service plan or evaluation, any affidavits, or CASA reports. In re J.E.H., 384 S.W.3d at 870; In re B.R., 456 S.W.3d at 617 n.4. In our appellate review, we are limited to the evidence admitted at trial. See In re J.C.R., No. 04-18-00949-CV, 2019 WL 2110109, at *2 n.2 (Tex. App.-San Antonio May 15, 2019, pet. denied) (mem. op.).

         Mother's Testimony

         The first witness was J.J., who testified her four children were removed from her care by the Department in August 2017 based on concerns of an unstable home and medical neglect of K.J.G., Jr., who has sickle cell anemia, asthma, and allergies. According to J.J., the case started off as a Family Based case due to issues concerning treatment of K.J.G., Jr.'s asthma. J.J. testified she went to a medical clinic seeking a prescription for her depression medication and that is when the CPS case started. J.J. stated K.J.G., Jr. was up to date on his medical treatment when the case began and she understands K.J.G., Jr.'s medical needs: he takes preventive medications for his sickle cell condition and allergies and has an "as needed" medication for asthma. She did not attend K.J.G., Jr.'s medical appointments during the case because she was not told about them.

         J.J. testified she completed all the services on her family service plan including parenting class, counseling, the psychosocial and psychological assessment, the drug assessment, OSAR[3], and Visitation Expectations, but then conceded she did not complete outpatient drug treatment because she needed a referral that she never received. She denied perming her hair to try to tamper with the results of hair follicle drug tests. J.J. testified her service plan was "changed repeatedly," but confirmed that Cordova made her aware of what she needed to do to finish her services. J.J. stated she engaged in counseling but did not believe her depression had been fully addressed.

         When asked whether she had stable housing, J.J. answered, "Yes," explaining that she had been staying with a friend for two weeks and the friend planned to seek a larger place for them to live if J.J. and the children were reunited. J.J. acknowledged staying at three or four different places during the course of the case and living with the children in a shelter in August 2017. She stated she understood the Department's concerns about stability and how it was harmful to the children to move around so often. J.J. testified she had a job as a warehouse laborer for the last two years, but admitted she worked "periodically;" she stated she maintained employment during the case "for the most part." She was not working at the time of trial because she gave birth a few weeks earlier; she hoped to return to work "next week." Finally, J.J. testified she was currently on probation for a September 2017 charge of possession of a weapon. J.J. denied any domestic violence incidents in her relationship with H.M., the father of the three youngest children, and testified the relationship ended shortly before the children's removal.

         Testimony of the Department Caseworkers

         April Musquiz, a caseworker for the Department, testified she received the case in August 2017 and was the caseworker for only four months. According to Musquiz, the initial allegations were for "physical neglect" based on the children being exposed to drugs in the home, "medical neglect" of K.J.G., Jr.'s condition, and "physical abuse." Musquiz testified she believed K.J.G., Jr. was not "getting the right medical attention" for his sickle cell and asthma conditions - however, she did not speak to J.J. about it at the time. When asked on cross-examination how J.J. would know "what brought the case into play," Musquiz stated she "didn't go into detail about medical neglect" with J.J. Musquiz stated she did talk to J.J. in detail about her service plan. J.J. signed her service plan and understood what she had to do when Musquiz discussed it with her in September 2017. Musquiz stated J.J. did not have stable housing during the four months she was the caseworker and did not engage in services during that period. J.J. tested positive in August 2017 for cocaine and marijuana. Musquiz did not recall whether that drug test was a hair follicle test or a urinalysis.

         The current caseworker, Alyssa Cordova, testified that she received the case in January 2018. Cordova requested several drug tests from J.J. during the case and recalled having some refusals from J.J., but she could not recall how many. J.J. had positive drug test results during the case, most recently in August 2018 for cocaine. Cordova stated she had a concern that J.J. was getting her hair permed to tamper with the hair follicle drug tests; however, she did not specify what caused her to draw that conclusion. Part of J.J.'s service plan was to follow any recommendations made by OSAR. Cordova testified J.J. did not complete the outpatient drug treatment and psychiatric treatment recommended after the OSAR assessment, and thus failed to fully comply with her service plan. In Cordova's opinion, drug treatment was one of the most important services for J.J. Cordova testified OSAR gave J.J. a referral for the outpatient drug treatment and she took the necessary steps on her end to facilitate the recommended treatment. Cordova testified she did not believe J.J. had addressed her substance abuse issues and was concerned drug use might be an ongoing issue in the future. The other most important service for J.J. was psychiatric treatment. Her psychological assessment led to a diagnosis that J.J. suffered from post-traumatic stress disorder (PTSD) and mixed personality disorder in addition to depression. Cordova testified that, to her knowledge, J.J. did not engage in psychiatric treatment for those mental health issues; the record is silent on whether a referral was made for psychiatric treatment. Because J.J. failed to complete the recommended drug and psychiatric treatment and also failed to accept responsibility for the reasons for removal, Cordova did not believe J.J. had addressed the issues that led to the Department's involvement.

         Cordova also testified that J.J. lived at several different places during the case and told her she worked at a warehouse; however, J.J. never provided Cordova with any pay slips or other documentation. In addition, Cordova stated J.J. was the victim of two domestic violence incidents with H.M., father of the three youngest children, during the case. Cordova did not believe either J.J. or H.M. had addressed the domestic violence issue but stated that, to her knowledge, they were not currently living together. Cordova testified she does not believe J.J. can meet the children's needs because "[d]espite attending the parenting classes, the counseling, the drug assessment, and the psychological, [J.J.] has failed to address her psychiatric mental health needs, she has failed to address the substance abuse issues, and she has failed to demonstrate stability or the ability to parent."

         Sufficiency of the Evidence

         A trial court may terminate an individual's parental rights, severing the parent-child relationship, only upon a showing, by clear and convincing evidence, that one or more statutory grounds for termination exists, and the termination is in the best interest of the child. Tex. Fam. Code Ann. § 161.001(b)(1), (2); In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002). "'Clear and convincing evidence' means 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 Ann. § 101.007. This heightened standard stems from the permanency and unalterable changes that termination of a parent-child relationship causes both the parent and child. In re D.M., 452 S.W.3d 462, 469 (Tex. App.-San Antonio 2014, no pet.).

         In reviewing the legal sufficiency of the evidence to support the trial court's findings, we look "at all the evidence in the light most favorable to the finding to determine whether a reasonable trier of fact could have formed a firm belief or conviction that its finding was true." In re J.O.A., 283 S.W.3d 336, 344 (Tex. 2009) (quoting In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002)). We give "appropriate deference to the factfinder's conclusions and the role of a court conducting a legal sufficiency review," by "assum[ing] that the factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could do so." Id. "A corollary to this requirement is that [we] should disregard all evidence that a reasonable factfinder could have disbelieved or found to have been incredible." Id. "This does not mean that [we] must disregard all evidence that does not support the finding." Id. (emphasis in original). "Disregarding undisputed facts that do not support the finding could skew the analysis of whether there is clear and convincing evidence." Id. "If, after conducting [our] legal sufficiency review of the record evidence, [we] determine[] that no reasonable factfinder could form a firm belief or conviction that the matter that must be proven is true, then [we] must conclude that the evidence is legally insufficient." Id. at 344-45.

         In reviewing the factual sufficiency of the evidence, we give deference to the factfinder's findings, but also consider and weigh the disputed or conflicting evidence. Id. at 345. "If, in light of the entire record, the disputed evidence that a reasonable factfinder could not have credited in favor of the finding is so significant that a factfinder could not reasonably have formed a firm belief or conviction, then the evidence is factually insufficient." In re J.F.C., 96 S.W.3d at 266. In conducting a factual sufficiency review, we cannot ...

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