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In re C.J.G.

Court of Appeals of Texas, Fourth District, San Antonio

October 30, 2019

IN THE INTEREST OF C.J.G., a Child

          From the 150th Judicial District Court, Bexar County, Texas Trial Court No. 2017PA01800 Honorable Richard Garcia, Judge Presiding

          Sitting: Sandee Bryan Marion, Chief Justice Luz Elena D. Chapa, Justice Irene Rios, Justice

          MEMORANDUM OPINION

          SANDEE BRYAN MARION, CHIEF JUSTICE

         J.K. appeals the trial court's order terminating his parental rights to C.J.G. On appeal, J.K. contends the trial court lacked jurisdiction to make findings on four of the five predicate statutory grounds for termination because those grounds were not supported by the pleadings. J.K. also challenges the sufficiency of the evidence to support the trial court's findings on the predicate statutory grounds and that termination is in C.J.G.'s best interest. Finally, J.K. contends trial counsel rendered ineffective assistance of counsel.

         Background

         On August 11, 2017, the Texas Department of Family and Protective Services filed a petition to terminate the parental rights of C.J.G.'s mother and another man, J.G., an alleged father. On August 30, 2018, the trial court signed an order for genetic testing to determine J.G.'s parentage of C.J.G. On August 31, 2018, the Department filed an amended petition also seeking to terminate J.K.'s rights as an alleged father. On October 26, 2018, the trial court signed an order rescinding its prior genetic testing order and ordered genetic testing to determine J.K.'s parentage of C.J.G.

         On November 14, 2018, the Department filed a motion to adjudicate J.K's parentage of C.J.G. and to dismiss J.G. from the suit based on the test results. On November 21, 2018, the trial court signed orders adjudicating J.K. to be C.J.G.'s biological father and dismissing J.G. from the suit. On December 1, 2018, J.K. signed his service plan.

         On December 3, 2018, the trial court called the case for trial. The trial court noted J.K.'s attorney was in the building but proceeded with trial announcing, "It's 8:48 on an 8:30 case." The Department called the Department's removing caseworker as its first witness. The removing caseworker identified herself, stated she received the case in July of 2017, and explained she received a first referral on July 27, 2017 for C.J.G.'s mother who was allegedly using and dealing drugs and a second referral on August 10, 2017, based on a physical altercation between C.J.G.'s mother and J.G. while C.J.G. was present. At that time, J.K. and his appointed attorney entered the courtroom. J.K.'s attorney announced not ready, explaining J.K. was brought into the case very late and was still working through his options and trying to make arrangements. The trial court granted a continuance to January 25, 2019.

         On January 17, 2019, retained counsel filed a notice of appearance for J.K. On January 25, 2019, trial resumed, and the trial court heard testimony on January 25, 2019, and February 6, 2019. The trial court took the matter under advisement and signed an order terminating J.K.'s parental rights on May 15, 2019. J.K. appeals.

         Statutory Requirements

         To terminate parental rights pursuant to section 161.001 of the Texas Family Code, the Department has the burden to prove by clear and convincing evidence: (1) one of the predicate grounds in subsection 161.001(b)(1); and (2) that termination is in the best interest of the child. See Tex. Fam. Code Ann. §§ 161.001, 161.206(a); In re A.V., 113 S.W.3d 355, 362 (Tex. 2003). In this case, the trial court found clear and convincing evidence of the following five predicate grounds under subsection 161.001(b)(1) to terminate J.K.'s parental rights: (1) knowingly placed or knowingly allowed C.J.G. to remain in conditions or surroundings which endangered his physical or emotional well-being; (2) engaged in conduct or knowingly placed C.J.G. with persons who engaged in conduct which endangered his physical or emotional well-being; (3) voluntarily, and with knowledge of the pregnancy, abandoned C.J.G.'s mother, failed to provide her adequate support or medical care, and remained apart from C.J.G. or failed to support C.J.G. since birth; (4) constructively abandoned C.J.G.; and (5) failed to comply with a court-ordered service plan. See Tex. Fam. Code Ann. §§ 161.001(b)(1)(D), (E, ) (H), (N), (O). The trial court also found clear and convincing evidence that terminating J.K.'s parental rights was in J.K.'s best interest.

         Legal and Factual Sufficiency

         In his second and third issues, J.K. challenges the sufficiency of the evidence to support the trial court's findings on the predicate statutory grounds and that termination is in the children's best interest.

         We evaluate the legal and factual sufficiency of the evidence to support the trial court's findings under the standards of review established by the Texas Supreme Court in In re J.F.C., 96 S.W.3d 256, 266-67 (Tex. 2002). Under these standards, "[t]he trial court is the sole judge of the weight and credibility of the evidence, including the testimony of the Department's witnesses." In re ...


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