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In re K.J.B.

Court of Appeals of Texas, Fourteenth District

November 5, 2019

IN THE INTEREST OF K.J.B., AND K.J.B., CHILDREN

          On Appeal from the 314th District Court Harris County, Texas Trial Court Cause No. 2018-00508J

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

          MEMORANDUM OPINION

          MEAGAN HASSAN, JUSTICE

         Appellant 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").[1]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.

         Background

         I. Pretrial Proceedings

         Karl was born to T.J.W. ("Mother") and Father in 2016. Kevin was born to Mother and Father one year later.

         The 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.

         The 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.

         Another 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.

         That 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.

         Approximately 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 children's return.

         One of 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 case."

         II. Trial

         The 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.

         Approximately 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.

         When 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.

         Before 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 dismissal documents.

         Crystal 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.

         Father 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.

         Portis 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 these acts[.]"

         Portis 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 times."

         Portis 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.

         The 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.

         When 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 children.

         Grandmother 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.

         Grandmother 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.

         Michael 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 appropriately.

         Luna 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."

         At the 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 ...


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