Appeal from the 314th District Court Harris County, Texas
Trial Court Cause No. 2018-00508J
consists of Chief Justice Frost and Justices Wise and Hassan.
J.B. ("Father") appeals the trial court's final
decree terminating his parental rights with respect to his
children K.J.B. ("Karl") and K.J.B.
("Kevin").The trial court terminated Father's
parental rights on predicate grounds of endangerment and
failure to comply with the service plan for reunification.
See generally Tex. Fam. Code Ann. §
161.001(b)(1)(D), (E), and (O). The trial court further found
that termination of Father's rights was in the
children's best interest and appointed the Department of
Family and Protective Services as the children's managing
conservator. In six issues, Father challenges the legal and
factual sufficiency of the evidence to support the trial
court's findings on each predicate ground, as well as the
best interest finding and the appointment of the Department
as managing conservator. Father further argues that he was
deprived of due process and equal protection under the law
because he did not receive actual notice of the trial
setting. Because we conclude the evidence is legally and
factually sufficient to support the trial court's
findings and the trial court did not abuse its discretion in
denying Father's motion for new trial, we affirm the
decree of termination.
was born to T.J.W. ("Mother") and Father in 2016.
Kevin was born to Mother and Father one year later.
Department filed an original petition in February 2018,
seeking the termination of Mother's and Father's
parental rights with respect to Karl, Kevin, and their older
half-sister. The Department attached to its original petition
the affidavit of Deneshun Graves, a Department investigator.
affidavit reflects that on the day Kevin was born the
Department received a referral alleging neglectful
supervision because Mother tested positive for cocaine six
months earlier while pregnant with Kevin. Kevin's
meconium test results were positive for cocaine at the time
of his birth.
Department investigator, Adrienne Moore, spoke with the
hospital social worker the day after the referral. Moore
interviewed Mother, who said she lived with S.W.
("Grandmother") and had two other children. Mother
identified Father as Karl's and Kevin's father and
another man as her daughter's father. After removal the
children were placed with Grandmother. Moore visited
Grandmother's home and observed that the home appeared
safe and appropriate. Grandmother's background check did
not present concerns. Grandmother agreed to be an in-home
safety monitor and further agreed to not allow unsupervised
contact between the children and Mother.
same day Moore met with Father at the hospital. Father
admitted paternity of both Karl and Kevin and admitted a
criminal history of sexual assault and possession of a
controlled substance. Both parents agreed to the safety plan
to allow the children to remain with Grandmother.
one month after the Department's petition was filed
Father appeared at an adversary hearing represented by
attorney Jerry Acosta. The trial court appointed the
Department temporary managing conservator and notified both
parents of certain actions required of them to obtain return
of their children. One of those requirements was that the
parents report to random drug screenings and test negative
for drugs. Father subsequently had two negative drug tests.
One month later the Department filed family service plans.
The trial court signed an order requiring the parents to
comply with certain services in order to obtain their
the services Father was required to complete was a
psychosocial assessment, which was done by Dr. Shilpa Trivedi
at Trivedi Psychological Services. Trivedi recommended that
appellant see a specialist due to his conviction for sexual
assault. Trivedi's notes reflect that Father was
defensive, evasive, slightly hostile, and argumentative in
sessions. Trivedi discharged Father from therapy due to his
"behaviors with [Trivedi] of arguing, defensiveness,
oppositionality and general hostile tone when encouraged to
reflect upon, process and discuss anything personal with the
goal of improving self." Trivedi noted that due to
Father's "continued hostility" toward the
therapist, Trivedi "will not be open to reopening his
parties proceeded to a bench trial. Father's attorney
orally moved for continuance. The trial court denied the
motion for continuance and granted the attorney's motion
to withdraw. The trial court began trial and accepted the
voluntary relinquishments of Mother and the oldest
child's father. The trial court then appointed a new
attorney (the fourth) for Father and recessed the trial to
permit the new attorney, Rodney Jones, time to prepare.
one month later Jones filed a motion to withdraw as
Father's counsel citing as his reason the inability to
effectively communicate with Father in a manner consistent
with good attorney-client relations. The trial court then
appointed a fifth and final attorney to represent Father.
trial resumed, approximately three months after it started,
and two months after the fifth attorney was appointed,
Father's attorney orally moved for continuance (based
upon Father's absence at the trial). The trial court
denied the continuance and proceeded to trial.
any testimony the Department introduced into evidence copies
of the family service plans, drug screening results,
psychological records from Dr. Trivedi, certified copies of
eleven criminal instruments on Father, a transcript of the
second permanency hearing, and records from Father's
anger management counselor. Father objected to admission of
an indictment for terroristic threat against Mother because
the charge was subsequently dismissed. The trial court
overruled the objection and admitted the indictment and the
Portis, the children's caseworker, testified that Karl
was two years old and Kevin was one year old at the time of
trial. According to Portis, the children came into the
Department's care because Mother tested positive for
cocaine when Kevin was born and there were allegations of
domestic violence between Mother and Father. Mother told
Portis that Father was "very violent" toward her
and that on several occasions while this case was pending
Father had physically assaulted Mother. One assault was so
severe Mother had to seek treatment in the emergency room.
Portis further testified (over objection) that Father
assaulted Mother in April 2018, May 2018, and January 2019.
was asked by the Department to submit to at least twelve
random drug tests. Portis testified that Father missed two or
three tests. Four of the drug tests were ordered by the court
and Father was required to submit to the tests before leaving
the courthouse. One of those tests, on November 13, 2018, was
positive for cocaine. In August 2018, the trial court
requested that Father submit to a drug test immediately after
a hearing, but Father left the courthouse without being
tested. Father's participation in the court-ordered
services was sporadic. When Portis offered Father information
about completing his services, Father became combative toward
her and the service providers.
testified that Father's behavior was a danger to his
children's physical and emotional well-being. According
to Portis, Father was aggressive and combative with Portis as
well as service providers. Portis noted, "We have two
very young impressionable boys who sees [sic] their father in
further testified Father was allowed supervised visitation
with the children at the Department offices and during some
of the visits Father would stand in the hallway and try to
watch the caseworker as they took the children out of the
office. Father was asked several times not to follow the
person transporting the children. On one occasion Father
blocked the transporter from leaving with the children.
Father followed caseworkers in his car after visits. Portis
testified she was afraid of Father because of his
intimidating behavior and the violent acts he had committed
throughout the case. Portis had not been to Father's home
because she was afraid to go there alone. Portis tried to
coordinate times with the Child Advocate to accompany her,
but Father rescheduled their visits "a couple of
informed Father of the final hearing on the Monday before
trial. Father was discharged as unsuccessful from the
Batterer Intervention Protection Program, anger management,
and individual counseling. Father refused to participate in
substance-abuse treatment. In addition to the criminal
history listed on the removal affidavit, Father also was
incarcerated because he failed to register as a sex offender.
At the time of trial Father had registered as a sex offender
and registered his address as "transient," which
Portis testified meant he was homeless. Portis testified that
Father knew about Mother's drug use and did nothing to
report it or protect the children from it.
children were placed with Grandmother and were very attached
to her. According to Portis, the children "displayed
nothing but kindness and affection towards the grandmother.
The grandmother does the same in return." Portis
described Grandmother's home as very safe and described
the children as thriving.
asked whether Father could continue with supervised visits
with his children, Portis responded that it would not be safe
for Father to continue to be around his children. She
explained that the volatile nature of Father's behavior
and the unpredictability of what may trigger the noted
behaviors would not be safe for the children. Portis did not
recommend that Father be allowed to visit the children in
Grandmother's home because, unlike the Department
offices, Grandmother's home did not have a security
guard. Given Father's combativeness the Department was
not willing to risk creating an unsafe environment for the
testified that she had been taking care of the children for
two years, that Mother and Father's relationship was
violent, and that Grandmother had seen bruises on Mother
caused by Father's violence approximately eight times in
a four-year period. Grandmother further testified she was
certain that if Father's parental rights were not
terminated, he would be violent in front of the children.
was willing to adopt the children and protect them from
Mother and Father. Grandmother had the support of her brother
to help take care of the children. The children were bonded
with Grandmother and she was ensuring that their educational
and physical needs were being met. Grandmother testified she
would contact the authorities if Father came to her house.
Luna, the Child Advocate, testified that he had observed a
visit between Father and Kevin. Luna testified that Father
appeared distracted. In Luna's view, Father had not
demonstrated that he could monitor his children
also observed the children with Grandmother. He saw a good
bond between Grandmother and the children. The children
seemed happy and comfortable with Grandmother. Luna believed
that it would be detrimental to return the children to
Father. Luna's belief was based on Father's history
and "violent tendencies."
conclusion of the bench trial the trial court terminated
Mother's parental rights on the predicate ground that she
executed a voluntary affidavit of relinquishment.
See Tex. Fam. Code Ann. § 161.001(b)(1)(K). The
trial court also terminated Father's parental rights on
the predicate grounds of endangerment and failure to follow
the service plan. See Tex. Fam. Code Ann. §
161.001(b)(1)(D), (E), and (O). The trial court further found
that termination was in the best interest of the children and
the Department should be appointed sole managing conservator
of both children.
III.Motion for ...