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In re R.R.

Court of Appeals of Texas, Fourteenth District

January 16, 2020

IN THE INTEREST OF R.R., JR. A CHILD

          On Appeal from the 387th District Court Fort Bend County, Texas Trial Court Cause No. 18-DCV-253527

          Panel consists of Justices Wise, Jewell, and Poissant.

          MEMORANDUM OPINION

          Margaret "Meg" Poissant, Justice

         Appellant R.R. ("Father") appeals the trial court's final decree terminating parental rights to his son, R.R., Jr. ("Ryan")[1] and appointing the Texas Department of Family and Protective Services (the Department) as sole managing conservator of Ryan. The trial court terminated Father's parental rights on predicate grounds of endangerment, failure to complete a family service plan, and conduct that resulted in conviction and imprisonment for not less than two years and an inability to care for the child. See Tex. Fam. Code § 161.001(b)(1)(D), (E), (O), and (Q). The trial court further found that the termination of Father's rights was in the child's best interest. Tex. Fam. Code § 161.001(b)(2). The Father challenges the legal and factual sufficiency of the evidence to support the trial court's findings on all predicate grounds and that termination is in the child's best interest. Because we conclude the evidence is legally and factually sufficient to support the trial court's judgment, we affirm.

         I. BACKGROUND

         A. The Department's Pretrial Removal Affidavit

         In July 2018, when Ryan was twenty-two months old, the Department received a referral alleging Ryan's mother ("Mother") was neglectful in supervising Ryan. Specifically, the referral stated that Mother and another woman, Father's cousin, were selling drugs, including crack, cocaine, hydrocodone, and marijuana out of their home. The two women were also alleged to have been conducting a prostitution business out of their home. These activities were allegedly occurring in the presence of Ryan and the cousin's children. It was further alleged that Mother hit Ryan with her open hand and a belt, causing him injuries. The report also stated Ryan was left outside unsupervised and that there was no food in the home.

         Upon receipt of this referral, a Department investigator met with Mother. Mother said she had three other children of whom she lost custody. Mother explained that she was charged with child endangerment in 2013 and that she was diagnosed with bipolar disorder, depression, post-traumatic stress disorder, psychosis, and insomnia. Mother said Father was incarcerated. Mother agreed to submit to drug tests. The drug test returned positive for marijuana and phencyclidine (PCP). In her affidavit, the caseworker averred that the Department could not locate any family members or contacts who were willing to care for Ryan-this was later disputed at trial by Father's cousin and his girlfriend. The trial court appointed the Department temporary sole managing conservator of Ryan. The Department placed Ryan with his current foster family shortly after he was removed from Mother's home.

         B. Trial Testimony

         Trial commenced eleven months after the Department removed Ryan from Mother's care.

         1. Father

         Father testified that he had been incarcerated for over two years at the time of trial. Ryan was eight months old when Father went into prison. Father further testified that he was incarcerated as the result of pleading guilty to two separate charges. He entered a plea of guilty to a family violence assault charge against Mother. This charge stemmed from an incident alleged to have occurred in April 2016, at which time Mother was pregnant with Ryan. Father admitted he pled guilty to assaulting Mother but denied the assault happened. Father claimed he entered the guilty plea to the charge of assaulting Mother in order to reduce his sentence on his guilty plea to evading arrest, which was allegedly committed after Ryan was born.

         When asked how many times he had been charged with domestic assault, Father responded that he could not remember, but said he had been to prison for domestic assault three times. Father confirmed that he had prior domestic assault charges from: (1) 2004, against his sister, (2) 2006, two counts against an ex-girlfriend, and (3) 2009, against another ex-girlfriend.

         Father also confirmed that he had been charged with evading arrest, drug possession, burglary, criminal mischief, and assault causing bodily injury. Father testified that he has been in and out of jail for the last twenty-one years and estimated he had been incarcerated for "a little over fourteen years" cumulatively.

         Father testified that he was "hurt" when he found out that Ryan had been taken into Department custody. According to Father, he has been doing everything he can from prison to comply with the trial court's orders to get his son back and was not notified until March or April regarding the possibility of family member placement for Ryan. Father explained that if he is not paroled, then he has twenty months left on his sentence.

         Father testified that Mother was sober while they were living together. Father confirmed that he was aware that Mother had a history with the Department, and that her three other children had been removed from her custody. Father knew Mother suffered from numerous mental health conditions, including bipolar disorder and depression, as well as seizure disorder, and testified that while they were together Mother did not consistently take the medication she was prescribed. Father testified that he was shocked to learn Mother tested positive for PCP, although he did know she had a history of using drugs. Father confirmed he has been unable to send his son financial support or gifts because of his incarceration. However, he sends cards, drawings, and letters to Ryan.

         Father took classes, obtained certifications, and completed parenting classes, and at time of trial was waiting to hear his scores on his testing to obtain his GED. He was asked, but refused, to sign an affidavit of relinquishment, and said he would never sign one. He testified he sent forms to CPS for placement of Ryan with his cousin, "Adam."

         Father further testified that he wants Ryan to be placed with Father's cousin Adam and his girlfriend of 14 years, until he is released from prison, which he testified could be as early as 2020 if he is granted parole. According to Father, he has already been denied parole twice. Father explained that after twenty-one years of crime, he is ready to make a change. He said that he will return to his previous job at a home repair company when he is released from prison and that he has family members with whom he and Ryan can stay.

         2. Erika Kinney

         Erika Kinney, an investigative supervisor for the Department, testified that she received a priority one referral alleging neglectful supervision of Ryan in July 2018 by Mother. Specifically, the referral stated Mother was selling drugs and prostituting out of the home where Ryan lived. Additionally, there were allegations of physical abuse. When Kinney met with Mother, she learned that Mother had three other children who had been removed from her care. Mother also had served previously a 180-day sentence for child endangerment. Kinney testified that Mother agreed to take a drug test after the investigation began. The test returned positive for PCP and marijuana. Kinney confirmed Father was incarcerated when this investigation began.

         3. Debra Lee

         Debra Lee, a conservatorship worker for the Department, testified that one of the first things she did when she received this case was to send Father a parenting packet explaining that his son was in the Department's custody and what would be required of Father. Lee testified that Father did not notify her of any potential placements for Ryan until December 2018. At that point, Father requested that his cousin, Adam, and Adam's girlfriend, "Amy," be considered as potential placements for Ryan. Lee testified that she called Adam seven times and never got a response. Four months later, in April 2019, Adam called Lee and told her that he was busy and would call her later. Lee said she never heard back from Adam. The first time Lee heard from Adam was at a hearing in this case two-and-half weeks before trial. Lee testified that she spoke with Adam, who said he was busy and did not get her messages.

         After that hearing, Lee conducted a preliminary home study on Adam and Amy for potential placement. The Department's program director denied Adam and Amy's home study based on a prior CPS history of Amy which occurred in 2009. According to Debra Lee, Amy was charged with abandonment of her child, was incarcerated for three days, and the charges were dismissed. Lee testified that her supervisor denied the home study because of the 2009 Department investigation of Amy but admitted there had been no other referrals since that time.

         The preliminary home study indicated that the couple had five other children in their home. The couple planned for Ryan to share a bedroom with one of his cousins. The family has an adequate number of bedrooms for all the children. The report indicated the couple was willing to become a permanent placement for Ryan.

         Lee further testified that when Ryan came into the Department's care, he was having temper tantrums, night terrors, and suffering from an intense fear of the dark. Additionally, Ryan had a severe lice infestation. Since Ryan has been in foster care, his temper tantrums have decreased, along with his fear of the dark and his night terrors. Ryan's lice problem was remedied after a three-week course of treatment. Ryan has been attending daycare and going to a "Little Gym" class that he enjoys. He has been learning how to count and knows his colors. Ryan appears bonded with his foster parents and loves his family pets. Ryan enjoys helping to feed the dogs. The foster parents have been helping Ryan with his emotional issues and have been researching to prepare themselves for any emotional issues he may suffer in the future as a result of the trauma he suffered in Mother's care. Lee testified that the foster parents are ready and willing to permanently adopt Ryan if given the opportunity.

         Lee testified that she was concerned about Father's extensive history of violence. Lee confirmed she does not ...


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