On
Appeal from the 303rd Judicial District Court Dallas County,
Texas Trial Court Cause No. DF-13-04823-V
Before
Justices Schenck, Osborne, and Reichek Opinion by Justice
Reichek
MEMORANDUM OPINION
AMANDA
L. REICHEK JUSTICE.
In this
appeal, Father challenges the termination of his parental
rights with respect to his biological son, R.H. Bringing
three issues, Father contends the evidence is legally and
factually insufficient to support (1) the ground for
termination, (2) the finding that termination was in
R.H.'s best interest, and (3) the appointment of the
Texas Department of Family and Protective Services (the
"Department") as R.H.'s sole managing
conservator. We affirm the trial court's judgment.
Factual
Background
R.H.
was born on December 15, 2005. At that time, Father and
Mother were not living together, but Father was aware that
R.H. had been born and knew that R.H. was his son. Father
testified he saw R.H. a few times between 2005 and 2009.
In
2009, Father was convicted of the offense of capital murder
and sentenced to death row. In 2013, the Texas Attorney
General filed suit to establish Father's parentage of
R.H. A blood test confirmed that Father was R.H.'s
biological parent. The trial court signed a default order
that established the parent-child relationship between R.H.
and Father, appointed Mother as R.H.'s managing
conservator, and appointed Father as possessory conservator.
In
November 2017, Dallas County Child Protective Services
("CPS") received a referral alleging physical abuse
of R.H. Reports by the office of Court Appointed Special
Advocates ("CASA") show that R.H. had cursed at his
teacher and Mother was notified. When Mother arrived at the
school, she was irate and hit R.H. in the face. Mother
threatened R.H. stating "when you return home you better
hope you make it out alive." Mother left R.H. at school
stating he could no longer live in her home, but she returned
later to retrieve him. When CPS interviewed R.H. the next
day, he had marks and bruises on his back and bottom and
scabs from previous whippings with an extension cord. R.H.
told CPS he did not feel safe at home and his step-father
slapped him and punched him in the face.
In
December, the Department filed a motion to modify the prior
order on the parent-child relationship and an original
petition for the protection of R.H., conservatorship, and
termination of both Mother's and Father's parental
rights. Over the course of the next year, R.H. was placed in
foster homes and a psychiatric hospital. He continued to
struggle with his behaviors and, at one point, was
hospitalized for putting a cord around his neck. Hospital
records indicated that R.H. was allergic to a variety of
foods and that he would intentionally eat these foods
requiring the use of an EpiPen on multiple occasions.
Although he was originally placed in a regular school while
in foster care, he was transferred to an alternative school
due to his behavior. R.H. was diagnosed with a depressive
disorder "characterized by a combination of sever[e] and
recurrent temper outbursts (verbal or physical) that are
grossly disproportionate to the situation."
In
October 2018, the trial court signed an order based on a
mediated settlement agreement that returned R.H. to live with
Mother on a monitored basis. The order stated that R.H.,
Mother, and R.H.'s step-father were required to
participate in family counseling and R.H. would continue
individual counseling. R.H. was not allowed to reside in a
room with any other minor children and Mother's younger
son was to have a lock placed on his bedroom door. According
to Wesley Hibbits, R.H.'s case worker, Mother installed a
security system with cameras in every room and alarms on all
the doors. R.H. was made to sleep in the living room.
Within
about a month after the monitored return began, Mother
brought R.H. back to CPS stating she feared for her life and
her younger son's life and she could no longer handle
R.H.'s behaviors. She said there were incidents at school
every day that caused her to leave work and she was afraid
she was going to lose her job. Mother requested R.H. be
placed back in foster care and signed a voluntary affidavit
relinquishing her parental rights. R.H. was placed in a
residential treatment facility.
On May
1, 2019, the trial court conducted a bench trial on the
Department's petition to terminate Mother's and
Father's parental rights and to be appointed sole
managing conservator of R.H. Mother did not appear at the
hearing, but the court acknowledged Mother had signed a
voluntary relinquishment of her parental rights. Hibbits
testified that Father had been incarcerated since 2009 and
there was no relationship or bond between Father and
R.H.[1]
As to
placement of R.H., Hibbits stated that R.H.'s maternal
grandmother had a criminal history including a murder charge.
Although Hibbits did not know if the Department had
considered R.H.'s paternal grandmother as a placement for
R.H., he stated that R.H. had accused the paternal
grandmother's husband of sexually abusing him. R.H. had
exhibited sexualized behavior against another foster child
that led the Department to believe the abuse had occurred and
reports stated R.H. was receiving therapy to address his
sexual abuse issues as both a victim and offender.
Reports
from the residential treatment program showed that R.H. had a
rough beginning, but was demonstrating improved behaviors. A
CASA representative visited R.H. in February and said he
appeared to be in good spirits and adjusting to his
placement. R.H. told the representative that he "feels
protected" at the facility. R.H. was receiving special
education services for his behavior issues and he told the
CASA representative he typically earned good grades in his
classes. Hibbits stated R.H. had bonded with some of his
caregivers and he respected them and treated them well. Both
Hibbits and the CASA supervisor assigned to R.H. testified
R.H. was doing well in his current ...