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In re J.R.

Court of Appeals of Texas, Fifth District, Dallas

January 15, 2020


          On Appeal from the 305th Judicial District Court Dallas County, Texas Trial Court Cause No. JC-18-1023-X

          Before Justices Schenck, Osborne, and Reichek



         After a bench trial, the trial court signed an order appointing the Dallas County Child Protective Services Unit of the Texas Department of Family and Protective Services (the "Department") as permanent managing conservator of J.R. "for purposes of [J.R.'s maternal aunt] to complete the Fostering Connections Program." The trial court also appointed J.R.'s parents as joint permanent possessory conservators, and made a finding that Father "has engaged in a history or pattern of family violence" as defined in the family code. Father appeals, contending the trial court abused its discretion "in finding that the maternal aunt should be named the managing conservator." We affirm the trial court's order.


         J.R. was born in July 2018. The Department removed him from Mother's care when he was two months old after receiving and investigating a report of neglectful supervision. Mother had taken J.R. to the hospital, worried that he was having seizures. According to a subsequent Department report, however, Mother appeared to be "acting as if she was under the influence" and she admitted using methamphetamine, heroin, and marijuana in the two days prior to the Department's investigation. Father was out of town at the time. When contacted by the Department, Father explained that he had been giving Mother $200 per day to purchase food and supplies for the baby in his absence. Although Mother had called him requesting more money, Father was not alarmed by her request despite knowledge of her extensive drug history. The Department investigator told Father that until Father's return, J.R. must be placed with a family member, but Father "didn't have anybody."

         After a medical examination determined that J.R. was not having seizures, he was placed in foster care. The Department investigated Aunt, Mother's sister, as a possible placement, and after completing a home study, placed J.R. with Aunt. Meanwhile, Father tested positive for cocaine on September 9, 2018, shortly after the Department filed its original petition in this case.

         At trial, the Department offered evidence of Father's criminal history and evidence of domestic violence by Father against Mother. Father's criminal history included charges of assault, bodily injury, driving under the influence, criminal trespass, and unlawful use of a motor vehicle. Father admitted that he was continuing to drive without a license at the time of trial. Mary Capehart, the Department worker assigned to the case, testified that Mother and Father met when Father picked up Mother at a gas station convenience store. Father has provided Mother with drugs. Mother told Capehart that Father "had hit her and she showed me different bruises on her," including bruises on her forehead by her hairline and a bruise and scrape on her arm.

         Capehart testified that J.R.'s physical health or emotional development could be significantly impaired if he witnessed domestic violence between his parents. On cross-examination, she testified to her concerns about Father's parenting abilities:

I'm concerned that he doesn't have the actual parenting skills needed to provide for all of [J.R.'s] needs, his well-being, his nurturing. I'm concerned that he doesn't have a plan in place for child care. He doesn't have any idea what he's going to do. He is continuing to provide drugs to [Mother]. And he is also committing domestic violence on him [sic], which could affect [J.R.] since he is a vulnerable one year old. All of these things could affect his well-being. And physically, he could actually get hurt during these domestic violence episodes.

         Capehart also testified to her concern that Father controlled Mother, giving the example that Father had instructed Mother not to appear in court on certain occasions. She testified that controlling behavior "falls into the pattern of domestic violence," and she stated her concern that Father emotionally abused Mother. Although Mother told Capehart she was "tired of being hit" by Father and "tired of [Father] giving her drugs," Capehart believed that "based on [Father's] control over [Mother], she just couldn't leave him ultimately."

         Capehart also testified that Father has traveled to Missouri, Kentucky, Georgia, and Florida for his work and was often away. Father did not give Capehart any plan for J.R.'s care during the times he would be traveling for work.

         According to Aunt's testimony, Mother told Aunt that Father "was very aggressive towards her while she was pregnant" and "was buying her drugs while she was pregnant." Aunt came to stay with Mother and Father for a short period after J.R. was born. She said that Father "didn't allow us to hold the baby while he was there. He told us, 'if he cries, you just have to let him cry. He has to learn. Leave him in his crib.'" Aunt testified that J.R. now lives with her and they have "a pretty normal routine." Mother and Father visit J.R., although Father's visits depend on his travel for work.

         Aunt also explained that Mother "is not [in] a safe situation" living with Father "because of the domestic violence." She testified that Mother told her about Father hitting her. Mother sent Aunt pictures of her bruises. Aunt sent the pictures to J.R.'s guardian ad litem and the case worker. Aunt also testified that Father admitted "hold[ing] [Mother] down" when she used drugs, because "when she uses, she just goes crazy and sometimes I have to do what I have to do." Aunt testified that Father ...

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