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In re J.S.

Court of Appeals of Texas, Second District, Fort Worth

October 31, 2019

In the Interest of J.S. and R.S., Children

          On Appeal from the 325th District Court Tarrant County, Texas Trial Court No. 325-645471-18

          Before Sudderth, C.J.; Womack and Wallach, JJ.

          MEMORANDUM OPINION

          MIKE WALLACH JUSTICE

         After a bench trial, the trial court terminated the parent-child relationships between T.S. (Mother) and J.S. (Father) and their teenaged daughters J.S. (Jackie) and R.S. (Rachel) (collectively, the girls).[1] Only Mother appeals. In two issues, she contends that the termination order was void because the girls were not before the court and that the evidence is legally and factually insufficient to support the constructive abandonment findings. Because we hold that the termination order is not void and that the evidence is legally and factually sufficient to support the constructive abandonment findings, we affirm the trial court's termination order.

         FACTS AND PROCEDURAL HISTORY

         Jackie and Rachel's paternal aunt (Aunt) filed a petition for sole managing conservatorship of the girls and their two younger siblings in April 2018. By June 2018, Aunt had decided that she no longer wanted custody of the girls and wanted them out of her home, and the girls alleged that they were being abused and also requested to be removed from Aunt's home. Aunt dropped the girls from her pleadings with an amended petition, and the Texas Department of Family and Protective Services (Department) filed a petition seeking conservatorship of the girls and termination of their parents' rights, followed by a motion to sever the suit involving the girls from the suit involving their siblings. The associate judge severed the suit involving the girls from the suit involving their siblings and ordered in writing "that the clerk shall assign a new cause number to the severed cause of action, and shall notify each party of the new cause number. All future filings relating to the suit affecting the [girls] shall be made in the new cause number." The severance order also ordered the clerk to place copies of the following documents into the new case file:

1. the live pleadings;
2. any interlocutory judgments of termination with respect to the above-named child[ren];
3. copies of documents relating to service of process on the parents of said child[ren];
4. and any other document requested by a party or attorney to be included in the severed file as relevant to an interlocutory decree of termination.

         Nevertheless, the parties and the trial court continued to use the cause number from the siblings' case (the old trial court cause number) on documents in the girls' termination case instead of the new cause number.

         The Department pursued termination of Mother's parental rights to the girls based on the girls' best interests and the constructive abandonment ground. Mother was in prison and did not personally appear at the termination trial, but her appointed counsel did appear.

         Only the caseworker testified. She stated:

• The girls had lived "with various friends and relatives and then wound up with . . . [A]unt in April of 2018";
• The girls had "significant behavioral problems" involving self-harm and aggression, and Aunt did not want them in the home with the younger children she was raising;
• The Department tried to find a family placement for the girls, reaching out to family members and family friends, to no avail;
• When the caseworker received the case in June 2018, Aunt and the girls did not know where Mother was;
• Aunt had not seen Mother in several years;
• Aunt told the caseworker that Mother was a drug addict and was "usually on and off homeless";
• Mother "had not been involved in the girls' lives very consistently for quite some time";
• The girls had not lived with Mother for about six years;
• A "pretty bare minimum" service plan was created for Mother; the Department planned to tailor it to meet her needs when she was located and met with the caseworker;
• Mother called the caseworker after she was released from Tarrant County Jail in August 2018;
• Mother and the caseworker set an appointment to meet about the service plan and ...

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