In re Interest of D.A.V.J., 04-19-00379-CV

INTEREST OF D.A.V.J. and J.R., III, Children

No. 04-19-00379-CV

Fourth Court of Appeals San Antonio, Texas

November 27, 2019

MEMORANDUM OPINION

From the 150th Judicial District Court, Bexar County, Texas

Trial Court No. 2018-PA-01753

Honorable Charles E. Montemayor, Judge Presiding

Opinion by: Beth Watkins, Justice

Sitting: Sandee Bryan Marion, Chief Justice Rebeca C. Martinez, Justice Beth Watkins, Justice

AFFIRMED

This is a parental termination case in which appellants, E.V. and J.R., Jr., separately appeal the trial court's order terminating their parental rights. E.V. appeals the trial court's order terminating her parental rights to her two children D.A.V.J. and J.R., III. J.R., Jr. appeals the termination of his parental rights to his son J.R., III. On appeal, both E.V. and J.R., Jr. argue the evidence is legally and factually insufficient to support the trial court's findings under section 161.001(b)(1) and that termination was in the best interests of their children. We affirm the trial court's order.

BACKGROUND

On August 6, 2018, the Texas Department of Family and Protective Services ("the Department") removed the children from E.V. and J.R., Jr.'s care two days after E.V. gave birth to J.R., III, because the newborn tested positive for methamphetamines at birth. When asked about drug use, E.V. admitted to using methamphetamines while she was pregnant with J.R., III and caring for D.A.V.J. At the time of removal, D.A.V.J. was one year old.¹

The Department placed both children with the same foster family and filed a petition to terminate both E.V. and J.R., Jr.'s parental rights. The Department created a family service plan, requiring each parent to, inter alia, complete a psychological evaluation and receive treatment for drug use as a condition of reunification. The service plan also required the parents to attend scheduled visitations with the children. However, as a result of continued concerns regarding inconsistent visitations and ongoing drug use, the Department pursued termination of both E.V. and J.R., Jr.'s parental rights.

The trial court held a one-day bench trial at which both E.V. and J.R., Jr. appeared. The trial court heard testimony from a Department caseworker and both parents. At trial, the caseworker testified the Department removed the children after E.V. tested positive for methamphetamines after she delivered J.R., III, who also tested positive for methamphetamines. The caseworker testified that E.V. admitted to using methamphetamines while she was pregnant with J.R., III even though she knew she was pregnant. E.V. further admitted she used methamphetamines while she was the primary caregiver for D.A.V.J. According to the caseworker, the Department attempted to place the children with J.R., Jr., but he said he could not care for the children due to work.

The caseworker testified she prepared a family service plan for the parents and stressed to them the importance of complying with the plan. As indicated above, the service plan required each parent to undergo a psychological evaluation, receive treatment for drug use, and attendscheduled visitations with the children. The caseworker confirmed both E.V. and J.R., Jr. each completed a psychological evaluation and were seeing a therapist.

With regard to visitations, the caseworker testified both parents inconsistently visited the children. Specifically, E.V. attended 21 of the 35 scheduled visits, and J.R., Jr. attended 19. The caseworker testified J.R., Jr. did not consistently visit the children due to work. J.R., Jr. owned his own roofing business, and as proof of his employment, provided the caseworker with his business card and a deposit slip and Home Depot receipts from a recent roofing job. The caseworker also testified that when the parents visited, they showed a bond with the children and provided food and toys. However, when the parents missed visitations, the children acted out. On cross examination, the caseworker explained she scheduled visitations on Friday afternoons—a time the parents said was most convenient for them—but she was flexible and would allow them to reschedule due to work.

When asked about the parents' drug treatment, the caseworker testified E.V. completed outpatient treatment and was instructed to pursue aftercare treatment with Lifetime Recovery and participate in Narcotics Anonymous. The caseworker testified E.V. did not complete any of these aftercare treatment services. The caseworker further testified that E.V. did not complete all of her urinalysis and hair follicle drug tests. Specifically, she missed one test each in November, December, and March, and two tests in May. E.V. also tested positive for methamphetamines and marijuana in January and February. The caseworker testified that when she asked E.V. about the positive tests, E.V. stated she had relapsed. According to the caseworker, E.V. had a long history of drug use.

Turning to J.R., Jr., the caseworker testified he also completed a drug assessment test with Lifetime Recovery; however, he was unsuccessfully discharged from the program because of poor attendance. As a result, the Department placed J.R., Jr. on a zero-tolerance contract. However, hedid not adhere to it. He also did not complete six of his urinalysis drug tests and three of his hair follicle drug tests. The caseworker testified he completed his first urinalysis and hair follicle tests in May, and he tested positive for methamphetamines. When asked about the positive drug tests, J.R., Jr. admitted to using methamphetamines.

The caseworker also indicated she has been unable to set up a home visit or perform an unannounced visit with the parents because they were always working. In fact, the caseworker stated that during the pendency of this proceeding, she saw E.V. outside a home she happened to be driving by. She stopped to ask E.V. if she lived there, and E.V. stated no and explained that she was on a job. The caseworker added, however, she did not see J.R., Jr. or any building materials. The caseworker further stated she did not have any proof that J.R., Jr. worked besides his business card, the deposit slip, and Home Depot receipts. When asked for proof of income or a copy of a contract with a client, J.R., Jr. did not provide it; she added, however, that she did not know how he operated his business, so his inability to provide those items was not necessarily proof he did not have a job.

With regard to the children, the caseworker testified the children were currently placed together in a foster to adopt home. She testified J.R., III had some respiratory issues and was more vulnerable to getting sick when he was around other children who were sick, perhaps as a result of E.V.'s drug use while she was pregnant. J.R., III was nine months old at the time of trial and had already had RSV and other viruses. He required a nebulizer at times. He also wore a helmet 23 hours per day. When asked about the parents' ability to care for J.R., III, the caseworker expressed concern, stating it would be difficult for them, particularly when J.R., III is sick.

D.A.V.J. was almost two years old at the time of trial. He had some behavioral issues, and the foster family removed him from his first daycare facility and placed him in a daycare with a smaller class size so he could receive more individual attention. The caseworker testified D.A.V.J.was doing "much better" in his new daycare. D.A.V.J. also received speech therapy twice a week and was making progress. When asked about the bond the children had with the foster parents, the caseworker testified both children have lived with the foster family since removal and look to the foster parents for emotional support. The foster family was meeting the physical and emotional needs of both children. The foster parents are bilingual and were teaching the children—who are Hispanic—to speak both English and Spanish.

After the caseworker testified, the trial court heard testimony from E.V. E.V. testified she completed an outpatient drug treatment program, and after graduation, the program counselor told her she had the option to attend Alcoholics Anonymous meetings. E.V. testified she attended some Alcoholics Anonymous meetings but did not attend any Narcotics Anonymous meetings as requested by the program. E.V. also testified she missed some of her urinalysis and hair follicle drug tests due to transportation issues. E.V. added, however, she could test "clean" if the trial court ordered her to complete a drug test that day. E.V. testified she started using drugs—specifically, cocaine—when she was 19 years old. Since then, she has relapsed "on and off." E.V. stated she was "clean" during her pregnancy with D.A.V.J., however, she used methamphetamines and smoked marijuana "towards the end of [her] pregnancy" with J.R., III. She stated she used drugs alone, and she knew J.R., Jr. used drugs, but he never did it around her or the children. She further testified that the last time she used drugs was in February before she joined the Lifetime Recovery program. When asked about missed visitations, E.V. testified her work schedule sometimes prevented her from visiting the children. E.V. also testified she had a three-bedroom home for the children.

Finally, the trial court heard testimony from J.R., Jr., who testified he was J.R., III's biological father and has cared for D.A.V.J., who was not his biological son, since he was five months old. During direct examination, J.R., Jr. testified he was unable to attend all the scheduledvisitations due to work obligations. He stated that he tried his best to "fit it in," and when he could not make it, he would send E.V. He stated E.V. would take his truck to attend the visitation, and he would stay at a jobsite. He also stated that when he visited the children with E.V., they would take them diapers, clothes, and toys whenever they could. When asked about J.R., III's helmet and nebulizer, J.R., Jr. testified he was...