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G. B. v. Texas Department of Family and Protective Services

Court of Appeals of Texas, Third District, Austin

October 23, 2019

G. B. and T. B., Appellants
v.
Texas Department of Family and Protective Services, Appellee

          FROM THE 274TH DISTRICT COURT OF HAYS COUNTY NO. 18-0782, THE HONORABLE DAVID JUNKIN, JUDGE PRESIDING

          Before Chief Justice Rose, Justices Triana and Smith

          MEMORANDUM OPINION

          Jeff Rose, Chief Justice

         Mother, T.B., and Father, G.B., filed notices of appeal from the trial court's final order terminating their parental rights to their children-daughter Cary, who was almost four at the time of the hearing, and son Greg, who was almost three.[1] Mother's attorney has since filed a brief concluding that her appeal is frivolous and without merit.[2] Father argues on appeal that the evidence is legally and factually insufficient to support the trial court's finding that termination is in the children's best interest. See Tex. Fam. Code. § 161.001(b)(2). We will affirm the trial court's order of termination.

         STANDARD OF REVIEW

         To terminate a parent's rights to their child, the Department must prove by clear and convincing evidence that the parent engaged in conduct that amounts to a statutory ground for termination and that termination is in the child's best interest. Id. § 161.001; In re S.M.R., 434 S.W.3d 576, 580 (Tex. 2014). Clear and convincing evidence is the level 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 § 101.007; In re K.M.L., 443 S.W.3d 101, 112 (Tex. 2014). In reviewing the sufficiency of the evidence, we must "provide due deference to the decisions of the factfinder, who, having full opportunity to observe witness testimony firsthand, is the sole arbiter when assessing the credibility and demeanor of witnesses." In re A.B., 437 S.W.3d 498, 503 (Tex. 2014); In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005).

         In evaluating the legal sufficiency of the evidence, 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.F.C., 96 S.W.3d 256, 266 (Tex. 2002); Williams v. Williams, 150 S.W.3d 436, 449 (Tex. App.-Austin 2004, pet. denied). We "assume that the factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could do so" and "disregard all evidence that a reasonable factfinder could have disbelieved or found to have been incredible." J.F.C., 96 S.W.3d at 266. Our review does not require that we disregard undisputed evidence contrary to the determination. K.M.L., 443 S.W.3d at 113. If after viewing the evidence in the proper light, including undisputed evidence that does not support the findings, we conclude that no reasonable factfinder could have formed a firm belief or conviction that the Department carried its evidentiary burden, we will hold that the evidence is legally insufficient. J.F.C., 96 S.W.3d at 266; Williams, 150 S.W.3d at 449. In considering factual sufficiency, we consider the entire record and ask whether the "disputed evidence is such that a reasonable factfinder could not have resolved that disputed evidence in favor of its finding." J.F.C., 96 S.W.3d at 266. If the disputed evidence that could not be credited in favor of the finding is so significant that a reasonable factfinder could not have formed a firm belief or conviction as to the truth of the Department's allegations, we will hold that the evidence is factually insufficient. Id.

         FACTUAL SUMMARY

         In April 2018, the Texas Department of Family and Protective Services filed its original petition seeking conservatorship of Cary and Greg, explaining in an affidavit that law enforcement was called to a motel for a domestic disturbance and that when the police arrived, a man identified as Father fled from the scene. The affidavit stated that Father was "the aggressor in the domestic violence" and that Mother was inside a motel room, "extremely high on methamphetamines" and unable to provide information about the incident or about her children. The children were outside unsupervised in a car, wearing "soiled diapers and smelling of sour milk." Greg was strapped into a car seat while Cary was "walking around in the car and was observed to be eating toothpaste." Greg had several scratches on his body and two bruised "knots" on his forehead. Cary also had small bruises on her body.

         The final hearing on the Department's petition started in March 2019 and resumed in May 2019. In March, Mother and Father testified that they were homeless and did not have a car. Father mostly criticized the Department, calling the proceeding a "witch hunt" and saying that the Department had interfered with his efforts to find employment and housing rather than helping reunite the family. He also testified that he and Mother:

have been hunted down from state to state, this is no lie, as soon as you get a job, same craziness, you are drugs, you're on drugs. And there was one time the day that I came to Court the guy had drugged me. . . . I thought it was nerves. It's been going on many, many years and it's so deep, I need the FBI, somebody, to investigate this stuff and if it's investigat[ed] I guarantee you will find what we are saying is true. It sounds like craziness. It's true. It's really happening.

         Mother was asked whether she had given birth to another baby while the case was pending. She answered, "No," but said that Department caseworker Brandi Schmidt "seems to think I did." At that point, the Department's attorney said, "Your Honor, I would ask to give [Mother] her 5th Amendment pleadings and a warning that perjury is punishable by a criminal act . . . ."[3] The trial court allowed Mother's attorney "to advise her as he deems appropriate on the issue."

         At the conclusion of the March hearing, the Department asked that the parents be ordered to take a hair follicle drug test. The trial court said, "So I'll make that an order that we do it on or before the end of this month," and Mother's and Father's attorneys agreed that such a deadline was acceptable.

         When the hearing reconvened in May, the trial court heard testimony by Mother, Father, Schmidt, San Marcos Police Officer Ashley Allen, counselor Erin Mendoza, CASA volunteer Melissa Moore, and Alexandru Apostol. Officer Allen testified that in April 2018, when she responded to the motel's report of domestic violence, she found that "[t]he male had fled the scene" and that there "was a female in the motel room and two children in the car outside"-Greg was in a car seat, and Cary was "kind of wandering around the car" and eating toothpaste. Officer Allen testified that she saw bruises on Mother; that Mother had said Father caused the bruises; that Mother was ...


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