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In re R.S.C.

Court of Appeals of Texas, Ninth District, Beaumont

November 14, 2019


          Submitted on October 15, 2019

          On Appeal from the 356th District Court Hardin County, Texas Trial Cause No. 59344

          Before McKeithen, C.J., Kreger and Johnson, JJ.



         Following remand for appointment of new counsel and re-briefing, Appellant R.S.C. (Father) appeals the trial court's order terminating his parental rights to R.S.C. Jr.[1], [2] A jury found by clear and convincing evidence that Father violated subsections (D), (E), (M), (N), (O), and (P) of Texas Family Code section 161.001(b)(1) and that termination was in the child's best interest. See Tex. Fam. Code Ann. § 161.001(b)(1), (2). The trial court subsequently entered an order terminating Father's rights based on predicate grounds (D), (E), (M), (N), (O), and (P). He challenges the legal and factual sufficiency of the evidence for predicate grounds (D), (E), and (P). Father does not challenge the evidence supporting predicate grounds (M), (N) or (O) or that termination was in the child's best interest. We affirm the trial court's judgment terminating Father's rights.

         I. Background

         R.S.C. Jr. was born to Father and Mother in May 2018. The Texas Department of Family and Protective Services (the Department) removed R.S.C. Jr. shortly after his birth. At the time of trial, he was one year old.

         A. The Removal

         In May of 2018, Mother delivered R.S.C. Jr. at thirty-seven weeks gestational age in an ambulance in the driveway of their home. The day after delivery, the Department received the matter following allegations of neglectful supervision of multiple children ranging in age from infant to ten years. The allegations leading to the Department's intake included that when Mother delivered R.S.C. Jr., she tested positive for amphetamines and cocaine. Additionally, the baby's urine tested positive for amphetamines immediately after birth.

         B. Trial Testimony and Evidence

         1. The Department's Witnesses

         Department Investigator Trahan testified at trial. Trahan confirmed she received an intake involving R.S.C. Jr. on May 24, 2018. Trahan testified that at birth, R.S.C. Jr. and Mother's urine tested positive for methamphetamine, and they assigned her to investigate on that basis. Trahan spoke with the parents in the hospital the following day. Trahan testified that the parents had a prior CPS history, and Father expressed frustration about the Department's involvement and resisted speaking with her. Trahan explained that Father's behavior caused enough of a concern that a security guard was stationed outside the hospital room door while she spoke with the parents.

         The parents told Trahan they resided in Colorado, but they could not provide a zip code, and the Department could not confirm the address. Mother told the investigator that she was unemployed, and Father was self-employed working construction, which is why they came to Texas. Father told Trahan they were living with a relative in Hardin County.

         During their meeting, the investigator asked about two older children, one of Mother's sons from a previous relationship and a daughter of Mother and Father's. Mother told Trahan the older children were with her mother, and they would be taking the children with them when they returned to Colorado. Trahan testified that this alarmed her, because prior to meeting with the parents, she reviewed their CPS history and knew that the Department had already removed the two older children from Mother and Father, their rights had been terminated to those children, and the children were in foster care. Trahan testified regarding one of the Department's exhibits, an order of termination from a prior proceeding indicating that Father's rights to their older daughter were terminated on (D) and (E) grounds, which meant he "knowingly placed or allowed a child [to remain] in a situation that would endanger her physical welfare and that he engaged in conduct that would endanger her physical welfare."[3] See id. § 161.001(b)(1)(D), (E).

         Trahan testified that the parents initially denied any current or history of substance abuse. Trahan explained that she informed the parents she knew about their history and the prior termination due to substance abuse, at which point Father left the hospital room. Trahan said that when he left, Mother admitted she used methamphetamines and cocaine within the last three months of her pregnancy. In addition to this admission about her drug use, Mother told Trahan that she may have tested positive because the relative she and Father lived with also used methamphetamines. Trahan explained that Mother and Father lived with a relative that abused methamphetamines, and there was an additional concern about the child returning to a home where there was drug usage.

         Trahan testified that she asked Mother and Father to submit to drug testing the day of the meeting at the hospital, but they did not voluntarily submit to testing until five days later. Trahan did not know if they used that time "to clean out their systems" but she explained to the parents that because of the delay in testing, it would not give her an accurate understanding of their current drug use.

         Trahan testified Father contributed to the neglect of the child because of his history of substance abuse and his chosen living arrangement which made Father an inappropriate placement for R.S.C. Jr. Trahan also expressed concerns about Mother's drug use while she was pregnant, Father's failure to intervene, and a married couple with a newborn living in a home where drugs were being abused. Trahan opined that a father who allowed a ...

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