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In re A.L.R.

Court of Appeals of Texas, Fourth District, San Antonio

November 6, 2019

IN THE INTEREST OF A.L.R., a Child

          From the County Court at Law, Val Verde County, Texas Trial Court No. 3688CCL Honorable Sergio J. Gonzalez, Judge Presiding.

          Sitting: Sandee Bryan Marion, Chief Justice Patricia O. Alvarez, Justice Luz Elena D. Chapa, Justice.

          MEMORANDUM OPINION

          Luz Elena D. Chapa, Justice.

         REVERSED AND RENDERED IN PART AND REMANDED IN PART

         J.R.[1] appeals the trial court's order that terminated his parental rights, arguing legally and factually insufficient evidence supports the trial court's order. We hold there is legally insufficient evidence to support the finding that termination of J.R.'s rights is in the child's best interest, and we therefore reverse the part of the trial court's order that terminated J.R.'s parental rights.

         Facts and Procedural Background

         A.L.R. was born February 27, 2018 to J.R. and E.B. A month later, the Department of Family and Protective Services filed an original petition for conservatorship of A.L.R. and for termination of her parents' rights. The affidavit filed in support of the petition asserted that removal of A.L.R. was sought because there was an open case in the Department involving E.B.'s three other children. That case arose out of the October 2017 death of another of E.B.'s children, K.A. The affidavit stated allegations of abuse and neglect had been made against E.B., J.R., and J.R.'s parents as a result of the child's death and that J.R. had been arrested and was in jail in connection with the child's death. The Department sought A.L.R.'s removal from E.B. because E.B. was living with J.R.'s parents, and the Department was concerned the child should not be in that home.

         After the adversary hearing held April 9, 2018, the trial court appointed the Department A.L.R.'s temporary managing conservator and the parents temporary possessory conservators. The court allowed E.B. to have twice-monthly supervised visitation with A.L.R.; however, the court ordered that J.R. have no access or possession of the child. The Department placed A.L.R. with E.B.'s mother and step-father, who also had possession of E.B.'s other three children, and A.L.R. remained in their care throughout the case. No child support was ordered.

         In the fall of 2018, the grand jury declined to indict J.R. on any charges related to the death of K.A. However, J.R. had been convicted in 2016 of burglary of a habitation and placed on probation. In January 2018, while J.R. was in custody in connection with K.A.'s death and before A.L.R. was born, J.R.'s probation was revoked, and he was sentenced to five years in prison. After J.R. was no-billed by the grand jury, he was moved from Val Verde County and taken into state custody to serve that sentence. J.R. was in prison at the time of this trial in May 2019, and the undisputed evidence was that he would be released by August 2019.

         The case was tried to the court on May 7, 2019. The only witnesses were the Department's case worker, a Department investigator, and J.R. The Department advised the court it was no longer seeking termination of E.B.'s rights and had reached a partial agreement with E.B. At the conclusion of the trial, the court found that appointment of a parent or both parents as A.L.R.'s managing conservator would not be in her best interest because such an appointment would significantly impair the child's physical and emotional development. See Tex. Fam. Code § 153.131. The court appointed E.B.'s mother as A.L.R.'s permanent sole managing conservator and appointed E.B. a possessory conservator. The court found by clear and convincing evidence that termination of J.R.'s parental rights was authorized by sections 161.001(b)(1) (C), (D), (E), (N), (O), and (Q) of the Texas Family Code and that termination of his rights is in A.L.R.'s best interest. See id. § 161.001. On appeal, J.R. challenges the legal and factual sufficiency of each of the trial court's findings under section 161.001(b)(1) and the trial court's finding that termination of J.R.'s rights is in A.L.R.'s best interest.

         The Evidence

         Carlissa Ramos testified she had been A.L.R.'s Department caseworker since April 2018, when the Department was appointed A.L.R.'s temporary managing conservator. At the time of trial, A.L.R. was fourteen months old and had lived with her maternal grandparents since shortly after she was born. Ramos testified that A.L.R.'s maternal grandmother is protective of A.L.R. and is meeting all her needs. She stated that A.L.R. is bonded to them and to her three half-siblings who are also placed in the home. E.B. is the possessory conservator of her three other children and she visits at the home several times a week.

         Ramos testified J.R., A.L.R.'s father, is in state prison, and the Department introduced a copy of the judgment revoking J.R.'s probation and sentencing him to five years in the Texas Department of Criminal Justice - Institutional Division. The judgment recites J.R. was placed on ten years' probation in February 2016 for committing burglary of a habitation in 2015, and that J.R. pled true to violating a condition of his probation. The judgment does not state what condition was violated. The January 18, 2018 judgment revoked J.R.'s probation and reduced his sentence to five years, with credit given for 197 days served. No further evidence was presented regarding the circumstances surrounding the original burglary offense or of the condition of probation that J.R. violated. Ramos testified that J.R. expected to be released from prison in August 2019.

         Rustee Flood is a conservatorship worker for the Department; she was previously an investigator and received the initial referral in this case. Flood testified the initial referral was made when A.L.R. was born because her mother, E.B., had an open case involving her other three children. That case was opened when another of E.B.'s children, K.A., died. When asked about the circumstances of K.A.'s death, Flood testified as follows:

A. That he essentially he died in the home where [J.R.] and his parents were present. He didn't die in the home. He sustained injuries that then caused him to have to go into the hospital and be admitted due to some extensive current and previous injuries and he ended up unfortunately passing due to those injuries sustained in that home while in the care of [J.R.] and his parents.
Q. And what was the severity level of the injuries to that particular child?
A. He had some rib injuries. He had some head trauma. There was some different level of bruising throughout his body. There was a big knot on his forehead, some bruising on the face, and at the end of all of that after trying to ...

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