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In re A.T.

Court of Appeals of Texas, Fifth District, Dallas

August 30, 2019

IN THE INTEREST OF A.T., A CHILD

          On Appeal from the 256th Judicial District Court Dallas County, Texas Trial Court Cause No. DF-07-22153

          Before Justices Brown, Schenck, and Pedersen, III

          MEMORANDUM OPINION

          DAVID J. SCHENCK JUSTICE

         C.T. (Father) appeals the trial court's order terminating his parental rights to his son, A.T. In six issues, Father challenges the legal and factual sufficiency of the evidence to support findings of the trial court[1] and claims his fundamental rights were not adequately recognized and protected. Father asks that the Department of Family and Protective Services (the "Department") remain the managing conservator of A.T. and that he and Mother be named possessory conservators. We reverse two specific rulings in the trial court's Final Order in Suit Affecting the Parent-Child Relationship and Decree of Termination and, in the interest of justice, remand this case to the trial court for further proceedings. Because the dispositive issue in this case is settled in law, we issue this memorandum opinion. See Tex.R.App.P. 47.4.

         Background

         At trial, the Department sought to terminate all parental rights to three children: A.T. who was eleven years old at the time, and his half-brothers, K.F. and M.F., who are twins and were five years old at the time. A.T. and the twins share the same mother, A.C. (Mother), though they have different fathers.

         Beginning in May of 2016, the Department received referrals concerning Mother's treatment of the children that culminated in the Department seeking to remove them and initiate proceedings to terminate parental rights. In total, the Department received four or five referrals cumulatively asserting Mother was not following up on the twins' medical care, Mother and the children might be homeless, and there may have been instances of physical abuse by Mother against Mother's daughter, A.W.[2]

         Initially, the Department's plan was for reunification. After deciding reunification was not a viable option, the Department filed its Original Petitions for Protection of Children, for Conservatorship and for Termination, in the Suit Affecting the Parent-Child Relationship seeking to terminate the parental rights of both Mother and Father as to A.T. and the parental rights of both Mother and the father of K.F. and M.F. as to them. The Department took custody of the children, and the trial court named the Department temporary managing conservator. A.T. and the twins were placed into foster care.[3]

         At the time of these events, Father lived in a two bedroom apartment with his parents, his brother, and a friend of his brother. He was not involved in the circumstances giving rise to the referrals and the removal of A.T. from his mother. Upon removal, the Department contacted Father regarding the placement of A.T. Father expressed an interest in caring for A.T. but the Department refused to place the child with him due to the lack of adequate space in the two bedroom apartment, and because Father's brother had a criminal history involving sexual assault of a child. At the time of removal, Father was in contact with A.T., through Mother's maternal aunt, with whom Mother and the children had been living.

         On September 20, 2017, the trial court ordered Mother to complete a list of services, including parenting classes, psychological and psychiatric evaluations, individual counseling, and random drug and alcohol urinalysis/hair strand tests. More than six months later, on April 25, 2018, the trial court ordered Father to complete a list of services, including psychological evaluation, individual counseling, and initial drug tests with follow up drug tests as necessary. There is no indication in the record as to what precipitated the trial court's imposition of service obligations on Father.

         At a bench trial commencing on February 11, 2018, the Department presented four witnesses, Kristy Brukelman, Jeanee Thompson, the Court Appointed Special Advocate (CASA) assigned to the case, and the guardian ad litem for Mother. Father appeared and testified on his own behalf and the guardian ad litem for the children made a statement after the parties rested. The twins' father did not appear, but was represented by counsel.

         Brukelman is a Child Protective Services (CPS) Family Based Safety Services caseworker. She testified that although the case had been initially referred to the Department in May of 2016, the case was not referred to her until July or August of 2017. She explained the delay in the referral was due to difficulty in locating Mother during the investigation stage, and once she was located she was unwilling to cooperate with CPS caseworkers. Consequently, a Department investigator had to go through the court to get an order requiring Mother to participate. Brukelman's first contact with Mother was in August of 2017. At that time, Mother and the children were living with Mother's maternal aunt, who worked for the Dallas Independent School District and was away from the home during school hours. In total, Brukelman went to maternal aunt's house on three or four occasions. She learned the oldest child, A.W., often took care of the younger children and Mother was sometimes present in the home and sometimes not. She described Mother as being very uncooperative. She told Brukelman to get out of the house and that she was not going to work services. Brukelman testified Mother appeared to be suffering from mental health issues. A decision was made to stop family based services and request the removal of the children primarily because: (1) the oldest child, A.W., was administering medication to the twins without knowing how much she was giving and without being monitored by an adult; and (2) there was not an adult home at all times with two children who had medical needs, those being the twins, and one with behavioral issues, that being A.T. Maternal aunt did not want to be considered as a permanent placement option for the children and expressed a desire to formally evict Mother.

         Brukelman indicated she was able to make contact with the children's biological fathers. As to Father, Brukelman explained she met with him at his parents' two bedroom apartment. Father expressed to her his interest in caring for A.T. Father told her that he calls Mother's maternal aunt to arrange visits with A.T. and that he attempts to visit when Mother is not present. Brukelman confirmed with Mother's maternal aunt that she had no difficulty with Father and that he would contact her about visits. Brukelman advised Father CPS could not place A.T. with him because there was not enough room at the apartment and because of his brother's presence and criminal history. She explained that the only bar in placing A.T. with Father was his residing in a home with his brother, who had a criminal and CPS history. Father indicated to her that he was going to work on getting his own place so he could provide a safe environment for A.T.

         Thompson is a CPS caseworker in the conservatorship unit. Thompson testified she was assigned to this case in August of 2018. There were two caseworkers before her. She testified about the services Mother and Father were to complete. She indicated Mother started her individual counseling but her therapists discharged her for aggressive and uncooperative behavior. Mother passed her drug test. Thompson indicated Mother told her she was self-employed by an insurance company she owned and was residing with various people and had no stable housing or living environment. Regarding Father, she indicated he was to complete psychological evaluation, individual counseling, a drug test and depending on the results he would continue on with additional drug tests. Thompson indicated her records reflected that Father had not completed the services.

         Regarding A.T., Thompson testified he is in a foster home and behaviorally he has improved significantly. He is on target academically and developmentally. She explained that the foster parent is not willing to adopt A.T. but is willing to care for him until he is 18 years old. Thompson indicated Mother has visited A.T., although her visits have been inconsistent, meaning she visits once or twice a month, instead of once a week.

         Thompson stated the Department was asking to have both Mother and Father's parental rights terminated. As to Father, the Department was asking to have his rights terminated due to his failure to complete services. In addition, Thompson stated the Department had concerns about placing A.T. with Father because it does not know if he has a stable, drug free living environment, and does not know if Father's caring for A.T. is in the best interest of A.T., and because Father has not had any contact with A.T. and has not displayed any concerns about A.T. throughout the 18 month duration of the referral.

         Thompson testified that A.T. indicated he would like to be placed with family. She explained CPS explored family members as possible options for placements, but the parents did not provide names and the children were not helpful in this regard. When questioned about the best interest of the children, Thompson simply indicated the children are very bonded to each other and it would be in the best interest of the children to maintain contact with each other.

         The CASA volunteer testified she has not seen Father at any of the visits with A.T. A.T. has never mentioned his father to her. She indicated the children are thriving in foster care and that she has not seen anything that would warrant return of the children. She further stated there is no indication the parents can provide a safe environment for the children. When questioned by Father's attorney she stated that if Father could demonstrate that he could provide a safe, permanent environment for A.T. she would consider recommending that A.T. live with Father.

         Father testified that after the referral he was ordered to do three things: submit to a psychiatric evaluation, a drug test and counseling classes. He indicated he had just completed the psychiatric evaluation with Amanda Dartson. As to individual counseling, Father stated he was working two jobs and his work schedule prohibited him from attending counseling during the week and he called a couple of places, including the Family Place, but could not find a facility that offered counseling on Saturdays. Father also stated he suffers from health issues, including diabetes, anxiety, and high blood pressure, and claimed he had been hospitalized three times for a week at a time since this case started. Father pays child support for A.T. and two other children, although he is behind on payments. He was living with his mother and claimed he had been saving money and would be getting a home of his own on April 1. He indicated that, if A.T. were to live with him, his mother would help to look after him. He further stated his girlfriend, who was pregnant at the time of trial, might live with him as well. Father stated he loves A.T. and that, although his visitation schedule had been erratic, he did communicate with A.T. as Mother's aunt would let him video chat with A.T. and he would sometimes go to the house and throw a football.

         Father testified he last saw A.T. around September or October of 2018, four or five months before trial. He explained he did not attend any of the scheduled visitations at the Department because they were scheduled during times he was working. Father claimed he was only contacted by the first caseworker and he did not have contact with the subsequent caseworkers. Father asked the court as a possible alternative to placement of A.T. with him to name the Department conservator and to retain his rights to A.T. so that he could receive information concerning A.T., visit A.T., and request modification once he got his living situation together. Father indicated that if A.T. were to live with him he would facilitate contact between A.T. and his siblings. On cross examination, Father admitted that he had been accused of family violence toward Mother in 2007. He was placed on probation in connection with that incident and had completed same before the removal of A.T. He also had an altercation with his daughter's grandfather in 2006.

         At the close of evidence, the guardian ad litem for the children argued against termination stating termination of both parents would have a devastating effect on the children. She further indicated that she had learned Father had been in touch with A.T. through the aunt and believed that the parents could be rehabilitated. She could not recommend termination based on the relationship she had seen between the children. She believed it would be in the best interest of the children to remain in their current placements, to continue sibling visits, and to name the Department managing conservator.

         The trial court found Mother knowingly placed or allowed A.T. to remain in conditions or surroundings which endangered the physical or emotional well-being of A.T., had engaged or knowingly placed A.T. with persons who engaged in conduct which endangered the physical or emotional well-being of A.T., had constructively abandoned A.T. and the Department had made reasonable efforts to return A.T. to Mother, Mother had not regularly visited or maintained significant contact with A.T., and mother had demonstrated an inability to provide A.T. with a safe environment, and had failed to comply with the provisions of a court order that specifically established the actions necessary for Mother to obtain the return of the child. Tex. Fam. Code Ann. § 161.001(b)(1)(D), (E), (N), (O). Nevertheless, the trial court found that termination of the parent-child relationship between Mother and A.T. is not in the best interest of A.T. The court appointed the Department sole managing conservator and Mother possessory conservator of A.T. The court further ordered that A.T. would remain in his current placement for at least 120 days and that the Department was to exhaust all possible maternal and paternal family placement options. The order provided Mother with visitation only at times that A.T. is not attending school. If Mother misses more than two consecutive visits, her possession and access shall be suspended until further court order. The order also provide for weekly sibling visits.

         The trial court found Father had constructively abandoned A.T. and the Department had made reasonable efforts to return the child to Father, Father had not regularly visited or maintained significant contact with A.T., Father had demonstrated an inability to provide A.T. with a safe environment, and has failed to comply with the provisions of a court order that specifically established the actions necessary for Father to obtain the return of the child. Id. § 161.001(b)(1)(N), (O). The court further found that termination of the parent-child relationship between Father and A.T. is in the best interest of A.T. The court ordered Father be terminated, foreclosed and divested of any rights as to A.T. Father appeals.

         Discussion

         We begin by stressing that neither the wisdom of the trial court's decision to maintain the parent-child relationship between Mother and the children nor the decision to appoint her possessory conservator is before us. Likewise, the question on appeal is not whether Father would be a superior custodial placement for A.T. at present. Rather, the issue before us is whether a termination of Father's parental rights over his protestation was proper on the record before us.

         The involuntary termination of parental rights involves fundamental constitutional rights. In re G.M., 596 S.W.2d 846 (Tex. 1980). The Supreme Court has stated that a natural parent's desire for-and his right to-the companionship, care, custody, and management of his child is an interest "far more precious than any property right." Santosky v. Kramer, 455 U.S. 745, 758-59 (1982). A termination decree is final and irrevocable, divesting for all time that natural right as well as all legal rights, privileges, duties, and powers between the parent and child except for the child's right to inherit. Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985). Courts have recognized that termination of a parent's rights to his child is "traumatic, permanent, and irrevocable." In re M.S., 115 S.W.3d 534, 549 (Tex. 2003). For these reasons, the Texas Family Code and the Due Process Clause of the United States Constitution require that grounds for termination of parental rights be proved ...


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