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In re M.S.

Court of Appeals of Texas, Eleventh District

October 4, 2019

IN THE INTEREST OF M.S., N.S., C.S., AND K.S., CHILDREN

          On Appeal from the 259th District Court Jones County, Texas, Trial Court Cause No. 024152

          Panel consists of: Bailey, C.J., Stretcher, J., and Wright, S.C.J. [1]

          MEMORANDUM OPINION

          KEITH STRETCHER JUSTICE.

         After a second termination trial, the trial court signed an order in which it terminated the parental rights of M.S., N.S., C.S., and K.S.'s mother and father. Only the father (hereinafter "Father") has appealed. We affirm.

         Termination Findings and Standards

         The termination of parental rights must be supported by clear and convincing evidence. Tex. Fam. Code Ann. § 161.001(b) (West Supp. 2018). Evidence is clear and convincing if it "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." Id. § 101.007 (West 2019). To terminate parental rights, it must be shown by clear and convincing evidence that the parent has committed one of the acts listed in Section 161.001(b)(1)(A)-(U) of the Family Code and that termination is in the best interest of the child. Id. § 161.001(b).

         In this case, the trial court found that Father committed three of the acts listed in Section 161.001(b)(1)-those found in subsections (D), (E), and (O). Specifically, the trial court found that Father (1) knowingly placed or knowingly allowed the children to remain in conditions or surroundings that endangered the children's physical or emotional well-being, see id. § 161.001(b)(1)(D); (2) engaged in conduct or knowingly placed the children with persons who engaged in conduct that endangered the children's physical or emotional well-being, see id. § 161.001(b)(1)(E); and (3) failed to comply with the provisions of a court order that specifically established the actions necessary for Father to obtain the return of the children who had been in the permanent or temporary conservatorship of the Department of Family and Protective Services (hereinafter "the Department") for not less than nine months as a result of the children's removal from Father for abuse or neglect, see id. § 161.001(b)(1)(O). The trial court also found, pursuant to Section 161.001(b)(2), that termination of Father's parental rights was in the best interest of the children.

         In two issues, Father challenges the legal sufficiency of the evidence to support the trial court's findings under subsections (D) and (E) that Father endangered the children. To determine if the evidence is legally sufficient in a parental termination case, we review all the evidence in the light most favorable to the finding and determine whether a rational trier of fact could have formed a firm belief or conviction that the finding was true. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005) (per curiam) (citing In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002)); In re M.G., No. 11-18-00351-CV, 2019 WL 2426775, at *1 (Tex. App.-Eastland June 11, 2019, no pet.). In conducting our review, we must consider all the evidence. In re J.P.B., 180 S.W.3d at 573. We assume that the factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could do so. Id. (citing In re J.F.C., 96 S.W.3d at 266). We cannot weigh witness-credibility issues that depend on the appearance and demeanor of the witnesses, and we must defer to the factfinder's determinations as long as they are reasonable. Id.

         Background

         On June 12, 2017, one of M.S., N.S., C.S., and K.S.'s siblings was removed from the home following an outcry of physical abuse by Father. On June 14, 2017, M.S., N.S., C.S., and K.S., along with three younger siblings, were also removed from the home. The following day, the Department filed a petition for protection of the children, for conservatorship, and for termination of the parental rights of the mother (hereinafter "Mother") and Father. In a first amended original petition filed on June 26, 2017, the Department sought to terminate Father's parental rights based on subsections (D), (E), (K), (N), and (O) of Section 161.001(b)(1). Attached to the first amended petition were three affidavits by representatives of the Department stating the factual bases for the removal of the children, including physical abuse of the children, domestic violence by Father, abandonment of the children by Mother, use of drugs by Mother and Father, and the condition of the house in which the children were living.

         The case was set for final hearing on June 18, 2018. Prior to trial, the parties represented to the trial court that they had reached an agreement, pursuant to which (1) Mother and Father would voluntarily relinquish their parental rights to the four youngest children; (2) the Department would be named the permanent managing conservator of all eight children; (3) Mother and Father would comply with service plans that, among other things, required them to successfully participate in classes and counseling and to submit to random drug tests; and (4) if Mother and Father successfully completed their service plans, M.S., N.S., C.S., and K.S. would be returned, one at a time, to Mother's and Father's possession. The agreed plan would take approximately one year to complete.

         The trial court signed an order reflecting the parties' agreement (the June 18 Order). The trial court appointed the Department as the permanent managing conservator and Mother and Father as possessory conservators of M.S., N.S., C.S. and K.S. The trial court specifically ordered (1) that Mother and Father were required to continue to "work" their respective service plans; (2) that Mother's and Father's failure to submit to random drug tests would be "considered a positive test"; (3) that, based on successfully completing the ordered services, Mother and Father would have "step-up" visitation and possession of the children; and (4) that, if Mother and Father failed to attend any scheduled therapeutic session or visitation with the children, visitation would cease and the parties would agree to a new schedule for the monitored return of the children. The trial court also ordered that, if Mother tested positive for any illegal substance:

[T]he visitation and/or monitored returns of [M.S., N.S., C.S., and K.S.] will be suspended and the children will be placed back into foster care, if they are no longer in care, and the Department will file for termination of the parental rights of both [Mother] and [Father], due to failure to comply with the family plans of service for reunification.

         The trial court denied all relief requested by the Department that was not expressly granted, terminated Mother's and Father's parental rights to the four youngest ...


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