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F. C. v. Texas Department of Family and Protective Services

Court of Appeals of Texas, Third District, Austin

January 9, 2020

F. C., Jr. and A. R., Appellants
v.
Texas Department of Family and Protective Services, Appellee

          FROM THE 146TH DISTRICT COURT OF BELL COUNTY NO. 295, 562-B, THE HONORABLE JACK WELDON JONES, JUDGE PRESIDING

          Before Justices Goodwin, Baker, and Kelly

          MEMORANDUM OPINION

          Thomas J. Baker, Justice.

         F.C., Jr. (Father) and A.R. (Mother) appeal the trial court's final decree terminating their parental rights to their triplets, who were almost two at the time of trial. Father and Mother each assert that the trial court made erroneous evidentiary rulings and improperly denied their motions for mistrial and that the evidence is legally and factually insufficient to support the jury's termination findings. For the following reasons, we will affirm the trial court's final termination decree.

         BACKGROUND

         The Department filed a petition to terminate Mother's and Father's parental rights to the children in September 2017. An associate judge conducted a bench trial on August 28, 2018, after which it rendered a decree terminating both parents' rights to the children. Mother and Father each filed requests for a de novo hearing and jury trial. See Tex. Fam. Code §§ 201.012 (providing for de novo hearing of associate judge's order), .015(i) (providing for jury trial in de novo hearing if jury trial did not occur in prior proceeding). The district court conducted a four-day jury trial in July 2019, after which it rendered a final decree terminating both parents' rights to the children. Mother and Father filed motions for new trial, which were denied by operation of law, and then notices of appeal.

         STANDARD OF REVIEW

         A trial court may terminate a parent's rights to his or her child if clear and convincing evidence shows: (1) the parent has committed conduct that amounts to a statutory ground for termination, and (2) termination of the parent's rights would be in the child's best interest. Id. § 161.001; In re S.M.R., 434 S.W.3d 576, 580 (Tex. 2014). In reviewing the legal sufficiency of the evidence in such a case, we look at all the evidence in the light most favorable to the finding to determine whether a reasonable factfinder could have formed a firm belief or conviction that the finding was true. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005). We assume that the factfinder resolved disputed facts in favor of the finding if a reasonable factfinder could do so, and we disregard all evidence that a reasonable factfinder could have disbelieved or found to be incredible. Id.; see In re K.M.L., 443 S.W.3d 101, 112-13 (Tex. 2014). We "should not disregard undisputed facts that do not support" the determination, and "even evidence that does more than raise surmise and suspicion will not suffice unless that evidence is capable of producing a firm belief or conviction that the allegation is true." K.M.L., 443 S.W.3d at 113.

         In evaluating factual sufficiency, we view the entire record and uphold the finding unless the disputed evidence that could not reasonably have been credited in favor of a finding is so significant that the factfinder could not reasonably have formed a firm belief or conviction that the Department's allegations are true. In re A.B., 437 S.W.3d 498, 502-03 (Tex. 2014). We defer to the factfinder's reasonable determination on issues of credibility that involve an evaluation of appearance or demeanor. J.P.B., 180 S.W.3d at 573; see A.B., 437 S.W.3d at 503 (requiring reviewing court to defer to "factfinder, who, having full opportunity to observe witness testimony first-hand, is the sole arbiter when assessing the credibility and demeanor of witnesses").

         We review a trial court's evidentiary rulings for abuse of discretion. Southwest Energy Prod. Co. v. Berry-Helfand, 491 S.W.3d 699, 727 (Tex. 2016). The appellate court may reverse a trial court's judgment based on an error in the admission or exclusion of evidence only if the appellate court concludes that the trial court made an error of law that probably caused the rendition of an improper judgment. Tex.R.App.P. 44.1(a)(1). Similarly, we review a trial court's ruling on a motion for mistrial for abuse of discretion, upholding the ruling if it is within the "zone of reasonable disagreement." S.A., Jr. v. Texas Dep't of Family & Protective Servs., No. 03-17-00790-CV, 2018 WL 1096012, at *2 (Tex. App.-Austin Mar. 1, 2018, no pet.) (mem. op.).

         SUMMARY OF THE EVIDENCE

         The testimony and other admitted evidence relevant to the jury's statutory-predicate and best-interest findings was as follows:

         Testimony of CPS investigator

         The CPS investigator testified that she became involved with this case in September 2017 after the Department received a report that Mother had been in a car accident while pregnant with triplets, left the hospital after the accident against doctor's orders, and had reported use of methamphetamine and marijuana while pregnant. The investigator testified that Mother told her at their initial meeting that she had used methamphetamine, marijuana, and Adderall during her pregnancy even after she knew that she was pregnant.

         Testimony of CPS conservator for the triplets

         The CPS conservator for the triplets testified that the court-ordered Family Service Plan required Mother and Father to take any kind of drug test the Department required, at any time. On several occasions Father refused to take the oral-swab drug tests that the conservator required of him as a condition of having visitations with the triplets; his refusal resulted in his being unable to have the corresponding visitation. The Department considers a refusal to take a drug test a "positive" test, and the Department switched to having Father submit to oral-swab tests because of its concerns about his continued drug use and his attempts to cheat on the tests, which information the conservator obtained from the triplets' caregivers. Father was unable to demonstrate that he had a safe, suitable home for the triplets because he would not allow the conservator to visit his home and did not complete his court-ordered counseling. Mother did not complete her court-ordered counseling and did not stop using drugs, as required by the Family Service Plan.

         At trial, it had been about a year since either Mother or Father had seen the triplets. In February 2018 the Department's permanency goal changed from family reunification with a concurrent goal of relative placement to adoption after Mother tested positive a few times for methamphetamine and Father had a methamphetamine-positive hair-follicle test. The change to the adoption goal was an effort to provide the triplets more permanency and stability.

         Testimony of the guardian ad litem

         The children's guardian ad litem testified that she believed it was in their best interest that the parental rights of Mother and Father be terminated. She explained that permanency and stability is of the utmost importance to these young children and that Mother had been unsuccessful after two attempts at outpatient drug rehabilitation during the pendency of this case. She explained that the alternative to termination-permanent managing conservatorship-was not a good option because it would not provide the triplets with the stability that they need because of the potential for Mother and Father to "come and go" in the children's lives.

         Testimony of triplets' maternal great-grandmother

         The triplets' maternal great-grandmother testified that she was concerned about Mother's and Father's drug use, an example being when she saw what she understood to be an attempt by Mother and Father to cheat on Father's drug test. She decided that because of their continuing drug use, Mother and Father could no longer have visits with the triplets at the foster parents' (her grandson and his wife's) house, where she spent much time caring for the triplets.

         Testimony of Mother

         Mother testified that she did not know that Father had been using methamphetamine except for a period "way back" before he was placed on probation in 2015. She said that she last used methamphetamine in October 2018. She explained that she was "clean" at the time of the triplets' birth but that the meconium[1] test-which was positive for methamphetamine-"goes back 6 months." She said she had used methamphetamine while pregnant only until she found out she was pregnant, at around three or four months along. However, she continued to use marijuana during her pregnancy because she informed her doctor about her use but the doctor did not tell her to stop. She admitted that the use of methamphetamine and marijuana during pregnancy endangered the well-being of the babies.

         She admitted to having taken two drug tests during the pendency of this case that were positive for methamphetamine. She testified that she went into rehab three times since this case began, the last time being inpatient treatment about a year after the triplets were removed. The Family Service Plan allowed her to have visits with her children, supervised by her grandmother, as long as she kept having clean drug tests; those visits ceased when she started using drugs again and refused to take oral-swab tests required by the Department. She testified that she has been continuing to submit to drug tests on her own initiative and at her own expense since the Department ceased requiring them of her and that the tests have shown she is "clean." The trial court admitted into evidence some of her recent clean tests.

         Mother testified that she has another child, age nine, of whom she lost custody to the child's father when the boy was two years old. She sees the boy a couple of times a year and does not pay any child support. She did not pay any child support for the triplets over the last year, claiming that she did not know how to reach their foster parents and did not know that she was obligated to provide for the children.

         Mother admitted that she stopped going to court-ordered therapy because she believed her therapist was too judgmental.

         Testimony of Father

         Father testified that he was currently serving a ten-year term of probation after he received a 2015 deferred adjudication for possession of methamphetamine and assault on a public servant. He explained that he stopped using methamphetamine when Mother found out she was pregnant, around mid-2017. He testified that he last used methamphetamine several months before February 13, 2018, when he tested positive for methamphetamine through a hair-follicle test. He explained that he stopped taking the oral-swab drug tests that the CPS conservator asked him to take because he did not trust her; he understood that his visitation with the triplets would cease due to his refusal to take the oral-swab tests. He said that he last paid child support about a year prior to the trial and that while he had offered to pay the foster parents child support, they refused to accept anything from him. He admitted that he had not tried to send money or any other form of support to the foster parents through his attorney. He also admitted that he had failed to pay child support regularly for his three children from a prior relationship and that their mother and the attorney general had filed an enforcement action against him to collect the arrears.

         Testimony of ...


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