Court of Appeals of Texas, Fourth District, San Antonio
the 150th Judicial District Court, Bexar County, Texas Trial
Court No. 2017PA01800 Honorable Richard Garcia, Judge
Sitting: Sandee Bryan Marion, Chief Justice Luz Elena D.
Chapa, Justice Irene Rios, Justice
BRYAN MARION, CHIEF JUSTICE
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.
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.
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.
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.
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.
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.
and Factual Sufficiency
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.
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