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In re K.A.C.

Court of Appeals of Texas, Eighth District, El Paso

June 4, 2019


          Appeal from 65th District Court of El Paso County, Texas (TC # 2017DCM2545)

          Before McClure, C.J., Rodriguez, and Palafox, JJ.



         S.C. appeals from a judgment terminating her parental rights to K.A.C., K.C., M.C., and E.C. [1] We affirm.


         Sherry is the mother of the four children who are the subject of this termination case, Kayla, Kim, Matt, and Edgar. J.L. ("Jack") is the father of Kayla, who was nearly five years of age at the time of the final hearing in November 2018. I.M. is the father of three-year-old Kim, two-and-a-half-year-old Matt, and one-and-a-half-year-old Edgar.[2] Sherry gave birth to another child, G.C., during the pendency of this case. G.C. tested positive for both amphetamine and methamphetamine when she was born in May 2018.[3]

         The Department first became involved with Sherry and the children in April 2017 when Sherry gave birth to Edgar, and both Sherry and the newborn tested positive for methamphetamine. Staff at the hospital made a report regarding the positive drug test results to the Texas Department of Family and Protective Services. Sherry denied using drugs and claimed that they had testified positive solely because she had been in a car with someone who smoked methamphetamine. Before going to the hospital, Sherry had left her other three children with H.M., the paternal grandmother of Kim and Matt.[4] The Department could not place the children with H.M. because H.M.'s daughter also lived in the home and had a felony record. I.M. was in jail in New Mexico as a result of a domestic violence incident with Sherry. Sherry left the hospital against medical advice and the Department caseworker could not locate her. Edgar, who had been born six weeks premature, remained in the hospital. On April 12, 2017, the Department filed a petition for protection of the children, for conservatorship, and seeking termination of Sherry's parental rights. That same day, the trial court signed an emergency order removing the children from Sherry's home and appointing the Department as the temporary sole managing conservator of the children. When the children were placed in foster care on April 12, 2017, they were dirty and none of them had shoes. Kayla, Kim, and Edgar were placed in one foster home, and Matt was placed in another foster home with C.C. and A.C. (the "Cooks"). Kim and Edgar[5] were placed with the Cooks on July 3, 2017, and G.C. was placed with them on June 1, 2018. The Cooks plan to adopt all four children if given the opportunity. Kayla was moved out of the first foster home due to behavioral issues and placed with foster parents L.R. and N.R. (the "Rogers") where she remained until the final hearing. Kayla's paternal grandmother, A.L. ("Angela"), intervened in the case and sought to be named permanent managing conservator of Kayla.

         Following removal of the children, the Department developed a Service Plan for Sherry, and on June 2, 2017, the trial court made the Service Plan an order of the court. The Service Plan required Sherry to: (1) complete an OSAR drug and alcohol assessment and follow all recommendations; (2) complete parenting classes; (3) complete domestic violence classes; and (4) submit to random drug testing as requested by the Department. The Department requested that Sherry submit to drug testing at least once a month, but Sherry submitted to testing only two times during the eighteen months that the case was pending. While Sherry completed the OSAR assessment, she did not complete outpatient services for drug addiction at Pinnacle. In March 2018, Sherry went to the initial assessment at Pinnacle and attended one session, but she did not attended any other sessions. As a result, she was unsuccessfully discharged. Sherry made a second attempt to attend outpatient services at Pinnacle in May 2018, but she was unsuccessfully discharged again. The evidence showed that Sherry was continuing to use drugs during this time period because G.C., who was born in late May 2018, tested positive for both amphetamine and methamphetamine. Pinnacle refused to allow Sherry a third opportunity to complete outpatient services because of the two prior unsuccessful discharges. In July 2018, the caseworker located another provider of outpatient drug addiction services, Aliviane, but Sherry failed to attend.

         Sherry provided the caseworker, Gloria Aguero, with a certificate that she had completed the parenting classes, but Aguero's investigation revealed that the provider did not offer parenting classes and was unfamiliar with the person who purportedly signed the certificate. Sherry also provided Aguero with a certificate from an online parenting class, but the Department does not accept certificates from online providers as it requires classroom participation. While Sherry claimed she had attended domestic violence classes, she did not provide a certificate of completion or a release so that Aguero could verify Sherry's attendance through the provider.

         The Department also developed a visitation plan for Sherry, and the trial court ordered Sherry to consistently attend and participate in scheduled visitations. Although Sherry attended some visitations with the children, she also missed scheduled visits. On some occasions, she provided an explanation, but other times she simply did not attend.

         The trial court also ordered Sherry to obtain and maintain appropriate housing and allow the CPS caseworker access to the home, to provide the Department with her contact information, and to maintain regular and consistent contact with the caseworker. Aguero testified that Sherry did not consistently maintain contact with her. In March 2018, Sherry had an apartment in Canutillo, Texas which Aguero visited six times. Aguero described the apartment as clean and appropriate for the children. At the time of the final hearing in November 2018, Sherry had moved and Aguero did not have an address for her. Aguero testified that Sherry had moved several times during the pendency of the case and she sometimes gave Aguero addresses which did not exist. Sherry did not attend the final hearing which took place in September and November of 2018.

         The Department sought termination based on the predicate termination grounds set forth in subsections D, E, N, O, P, and R of Section 161.001(b)(1). See Tex.Fam.Code Ann. § 161.001(b)(1)(D), (E), (N), (O), (P), and (R). The trial court found that the Department had proven by clear and convincing evidence that Sherry had: (1) engaged in conduct or knowingly placed the children with persons who engaged in conduct which endangers the physical or emotional well-being of the child, pursuant to § 161.00l(b)(1)(E); (2) failed to comply with the provisions of a court order that specifically established the actions necessary for Sherry to obtain the return of the children who have been in the permanent or temporary managing conservatorship of the Department of Family and Protective Services for not less than nine months as a result of the children's removal from the parent under Chapter 262 for the abuse or neglect of the child, pursuant to § 161.001(b)(1)(O), and (3) used a controlled substance in a manner that endangered the health or safety of the children, and (1) failed to complete a court-ordered substance abuse treatment program; or (2) after completion of a court-ordered substance abuse treatment program continued to abuse a controlled substance, pursuant § 161.001(b)(1)(P). The court also found by clear and convincing evidence that termination of Sherry's parental rights was in the children's best interest. The court appointed the Department as the permanent managing conservator of Kim, Matt, and Edgar, but it appointed Kayla's paternal grandmother as her permanent managing conservator.


         In Issues One through Three, Sherry challenges the legal and factual sufficiency of the evidence supporting the trial court's determination that her parental rights should be terminated based on subsections E, O, and P of Section 161.001(b)(1) of the Texas Family Code. Parental rights may be involuntarily terminated through proceedings brought under Section 161.001 of the Texas Family Code. See Tex.Fam.Code Ann. § 161.001. Under this provision, the petitioner must (1) establish one or more of the statutory acts or omissions enumerated as grounds for termination, and (2) prove that termination is in the best interest of the children. See id. Both elements must be established, and termination may not be based solely on the best interest of the child as determined by the trier of fact. Texas Department of Human Services v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987); In the Interest of A.B.B., 482 S.W.3d 135, 138 (Tex.App.--El Paso 2015, pet. dism'd w.o.j.). Only one predicate finding under Section 161.001(b)(1) is necessary to support a judgment of termination when there is also a finding that termination is in the child's best interest. In re A.V., 113 S.W.3d 355, 362 (Tex. 2003). However, when a parent's ...

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