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In re A.R.E.

Court of Appeals of Texas, Fourteenth District

November 5, 2019

IN THE INTEREST OF A.R.E. AND Z.K.E., CHILDREN

          On Appeal from the 315th District Court Harris County, Texas Trial Court Cause No. 2017-02174J

          Panel consists of Chief Justice Frost and Justices Wise and Hassan.

          MEMORANDUM OPINION

          Kem Thompson Frost Chief Justice

         In this accelerated appeal a mother seeks reversal of the trial court's final decree terminating her parental rights to two young children. She challenges the legal and factual sufficiency of the evidence to support the trial court's findings on two predicate termination grounds and its finding that termination of her parental rights is in the best interest of the children. We affirm.

         I. Factual and Procedural Background

         S.F. ("Mother") is the natural parent of A.R.E. ("Adam") and Z.E. ("Zach"), the two young children at the center of this termination suit.[1] A.R.E. ("Father") is the natural parent of Zach. The trial court terminated both Mother's and Father's parental rights to Zach and Mother's parental rights to Adam. Father has not appealed. Adam's natural father relinquished his rights by an irrevocable affidavit of relinquishment and has not appealed.

         A. Pretrial Removal Affidavit

         In April 2017, the Department of Family and Protective Services ("the Department") received a referral stating that law enforcement had been called to Mother's and Father's apartment because Father allegedly had fired a gun at another individual. When law enforcement officers arrived, they could see one-year-old Adam peeking out of the blinds of the apartment. Upon entering the home, law enforcement officers saw Father and two others smoking marijuana. Mother was in the kitchen with one-month-old Zach. The officers saw cocaine, marijuana, and drug paraphernalia, including glass pipes, rolling paper, and scrapers used for heroine, on the kitchen counter. They found a gun in a trash can easily accessible by one-year-old Adam. Police immediately arrested Father for aggravated assault with a deadly weapon, possession of cocaine, and unlawful possession of a firearm. Law enforcement officers allowed Mother to leave with the two children because she denied using drugs and claimed to be trapped in the relationship with Father. Father's father retrieved Mother and the children and took them to stay at his home.

         A Department investigator met with Mother the next day. Mother insisted that she did not use drugs but she could not give the investigator an explanation for staying in the home with Father where drugs were being used and sold. Mother confirmed that she was aware that these activities were occuring in the home. Mother told the investigator that she was on probation for possession of a controlled substance and recently had passed a drug test. Mother said she was willing to take a hair follicle and urine test. The investigator found both children to be in good health and well-bonded with Mother.

         Mother explained to the investigator that she was afraid to leave Father because of the history of domestic abuse between the two of them. Yet, Mother said that after the latest incident, she was finally "done" with Father. Mother said that she did not abuse drugs or alcohol and that the possession charge stemmed from her "taking the charge" for Father's uncle ("Uncle"). Mother provided a list of contacts who potentially could care for the children. All of Mother's contacts either declined to care for the children or were unsuitable because of a criminal record. When the investigator determined an emergency placement would be necessary, Mother cooperated in surrendering the children to the Department.

         The Department earlier had investigated the family and "ruled out" the complaints. One of the prior reports contained allegations that Uncle and Mother had gotten into an argument and Uncle almost struck Mother and Adam with a metal flagpole. Another prior report contained allegations that drugs were being sold out of the home and that Father had used Mother's urine to falsify Father's results on a drug test. According to that report, Mother, Father, and Uncle would get into physical fights and during one of these fights, Father threw something and almost hit baby Adam.

         Aside from Mother's "guilty" plea to the possession charge, evidence showed no criminal history. Father has a lengthy criminal history, which includes multiple charges of assault causing bodily injury against a family member, theft, and burglary. At the time of the investigation, three felony charges were pending against Father from the gunshot incident that resulted in the Department's investigation.

         B. Trial

         Harris County Sherriff's Office

         Deputy Jimmy Satterfield of the Harris County Sherriff's Office testified that in April 2017, he was called out on a "weapon disturbance call." The caller reported that Father fired a gun at her after she attempted to get a refund on marijuana she had purchased from him. When Satterfield arrived at the residence, he noticed the odor of marijuana and saw, in plain view, a bag of marijuana and a bag filled with a white powdery substance that later tested positive for cocaine. Satterfield testified that Mother told him a firearm was located in the garbage can near Father. According to Satterfield, the scene presented a dangerous situation for the children due to their access to the gun and the drugs in plain view in the home.

         Father

         Father confirmed that he had been convicted of attempted possession of a firearm by a felon and possession of cocaine as a result of the April 2017 incident. Yet, Father denied that he had ever fired a firearm. He testified that he did not know who brought the cocaine into his home. During Father's testimony, the trial court admitted into evidence Father's 2013 conviction of criminal trespass and Father's 2017 conviction of assault against Mother. The assault conviction stemmed from an incident in September 2016. According to the indictment in that case, Father struck Mother in the face while they were arguing. At that time, Mother was pregnant with Zach and Adam was seven months old. Father entered a plea of "guilty" to that offense. At the time of trial, Father was facing another family assault charge in Fort Bend County. He testified he did not know the origin of this charge and would not confirm that the complainant was Mother.

         Father testified that he was not living with Mother at the time of trial and had not lived with her, nor seen her, since the middle of the prior year, or eight months before trial. Father explained that he and Mother were evicted from their apartment in August 2018, and have not lived together since that time. Father said he had never been to the apartment where Mother was living at the time of trial. According to Father, he did not know whether Mother still had custody of the two younger children born to the couple after this investigation began. Father claimed that he and Mother had no contact. He confirmed that Fort Bend County opened a second investigation as to the two younger children as a result of an alleged domestic violence dispute occurring in August 2018, but Father testified that the alleged incident never occurred and that he was not present at the couple's residence when it was alleged to have occurred.

         Father further testified that the last time he saw Adam and Zach was three months before trial, during a supervised visitation. Father said that the boys seemed to have "attitude problems" and were "acting out."

         Mother

         Mother denied using drugs and testified that she had been "clean" for six years. The Department introduced evidence showing Mother tested positive for cocaine and marijuana in May 2017. Mother testified that she had only ever used marijuana and had never used cocaine.

         Mother confirmed that the domestic dispute with Father occurred in August 2018. She explained that she and Father had gotten into an argument about a trip to Galveston beach. Mother said Father pushed her against a wall, then pushed her down, and kicked her in the stomach. Mother said she and Father were evicted from their apartment shortly after that incident. The Fort Bend County investigation regarding the couple's two younger children stemmed from the Galveston incident. Mother explained that she still has custody of her two younger children despite the Fort Bend investigation.

         Mother acknowledged the 2016 domestic dispute in which Father struck her. Following the abuse, Mother continued living with Father and the couple went on to have three more children.

         Mother confirmed that Father had hit or pushed her several times, both before and after the couple had children. Mother explained that she knew Father was a violent man before they began having children together. Mother denied that Father ever fired a gun during the 2017 incident and denied that she told Officer Satterfield that the gun was in the trash can.

         Mother testified that she and Father separated in August 2018. According to Mother, she never sees Father, other than when he "sometimes comes to the door" to drop off diapers. Mother testified that she believed Father's parental rights should be terminated ...


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