In re Interest of A.F.R.

IN THE INTEREST OF A.F.R. AKA BABY BOY R

NO. 01-20-00355-CV

Court of Appeals For The First District of Texas

October 20, 2020

On Appeal from the 315th District Court Harris County, Texas

Trial Court Case No. 2018-04986J

MEMORANDUM OPINION

Appellants, A.Z.R. ("Mother") and D.R. ("Father"), appeal from the trial court's judgment that terminated their parental rights to their infant child, A.F.R. ("Alex").¹ In her sole issue, Mother argues that the trial court lost jurisdiction resulting in a void judgment. In five issues, Father argues that (1) the trial courtlost jurisdiction resulting in a void judgment; (2) the evidence is legally and factually insufficient to support termination under Texas Family Code section 161.001(b)(1)(E) and (O); (3) the evidence is legally and factually insufficient to support termination being in the best interest of the child; and (4) the evidence is legally and factually insufficient to support the appointment of the Department of Family and Protective Services ("DFPS") as the sole managing conservator of Alex.

We affirm.

Background

DFPS filed its original petition on October 16, 2018, after learning that Mother and Alex tested positive for cocaine upon his birth. On the same day, the trial court appointed DFPS as temporary sole managing conservator of Alex and that pursuant to section 263.401, October 21, 2019 was the statutory automatic dismissal date.² On September 23, 2019, the trial court signed an extension order, noting that (1) extraordinary circumstances exist to necessitate the child to remain in the temporary managing conservatorship of DFPS, (2) continuing appointment of DFPS as temporary managing conservator was in the child's best interests; and(3) suit would be automatically dismissed if trial on the merits had not commenced by April 18, 2020.³

The trial on the merits commenced on February 12, 2020. Jasmin Green, a DFPS caseworker, testified that Alex was a little over a year old at the time of trial, and the referral to DFPS occurred because Mother and Alex tested positive for cocaine upon his birth. Although the trial court ordered her to take a drug test on April 30, 2019, Mother did not take the drug test on the scheduled date. Green recalled that she last spoke to Mother in December 2019 when Mother said she was moving to a longer-term treatment facility, but, because she did not give an address, Green was unable to verify the information that Mother had given her. Green testified that despite her service plan, Mother did not do any of the services. She also testified that Mother did not visit Alex during the pendency of the case.

Green testified that Mother committed terroristic threats on June 7, 2018, while pregnant with Alex, and on February 5, 2019, when Alex was four-months-old. Green also noted that Mother had a conviction for possession of cocaine and a 2013 conviction for attempted injury to a child. Green testified that Mother's criminal history shows a "pattern of instability. She has not been able to show that she can actually parent as it's evident and there are other children that are not in her care; and the fact that mom continued—even up until giving birth—to engagein criminal acts as well as illegal drug use. That kind of speaks to her inability to look out for the wellbeing of her child."

Regarding Father, Green testified that he was served on October 23, 2018. Green testified that Father was ordered to take a drug test on January 30 and April 30, 2019, but he failed to show. Green admitted that Father did not have any criminal history involving illegal substances, but she agreed that it would have been important for Father to drug test to "assuage some of the department's concerns." Green testified that despite Father receiving a service plan, he "has not completed any [of the services] that were ordered by this Court." Green also testified to calling Father on multiple occasions and leaving contact information, but Father never returned her calls. When asked if Father had contacted DFPS to visit Alex, Green answered "[j]ust recently within the last two weeks." Green also recalled that Father had visited Alex one time, in February 2019. Other than the one visit, Father has not seen Alex.

In discussing Father's criminal history, Green agreed that Father was sentenced to five years for aggravated robbery in 2007. She also testified that Father had been convicted of an assault in 2017 and another assault on June 24, 2018 against Mother, who was pregnant with Alex at the time of the assault. Green testified that Father's criminal history was a concern to DFPS regarding endangering conduct toward the child. The trial court also admitted documentaryevidence reflecting Father's aggravated robbery conviction in 2007 and the two assaults. A report from Child Advocates also showed Father's lengthy criminal history, including offenses in addition to those testified to by Green.

Green testified that Alex is currently living in a foster home where he has been living since his discharge from the hospital. The foster home is willing to adopt Alex, who is developmentally on target and well loved and cared for. Green also testified that the foster parents are meeting Alex's basic medical needs, and she has no concerns that the foster parents would continue to meet Alex's needs if he is permanently placed in their home. Green further testified that the foster parents have a biological child, between the ages of seven and eight, who has a relationship with Alex, the family is well bonded to Alex, and it would be in Alex's best interest to remain in the current home and for parental rights to be terminated. Green explained that since being discharged from the hospital, Alex has only been in this placement, the family has taken the child in and loved him as their own, he is very bonded, and she did not think Alex could have been placed in a better home. The foster family has even facilitated contact between Alex and his biological family, including his maternal aunt, uncle, and grandmother.

On cross-examination, Green admitted that she did not have a positive drug test for Father and that Father's 2007 robbery conviction occurred 11 years ago when Father was 17. Green testified that she was informed that Father has beenworking and that he has an apartment. Green was also aware that Father claimed to have completed his service plan, but she noted that he did not finish the service plan that DFPS offered. When asked what he has not completed, Green testified Father did not complete the following requirements: (1) parenting education classes, (2) a psychological assessment, (3) a substance-abuse assessment, (4) stable housing, (5) income, (6) remain crime-free, and (7) individual counseling. Green said Father has not provided proof that he completed any of those services. Green also testified that she was informed by someone other than Father that he had registered for a parenting class. Green supervised Father's first visit with Alex, and when asked if it was an appropriate visit, Green answered "for the most part, somewhat."

During questioning by Angela Phea, guardian ad litem for Alex, Green agreed that the services that DFPS gives to the parents needs to be completed and the parents must provide proof. Green agreed that a missed drug test is considered a positive drug screen according to DFPS's policy. Green agreed that Alex deserves stability and permanency, which he already has in the current placement.

On its redirect examination, DFPS asked Green to clarify what she meant when she said that Father's visit with Alex was "somewhat appropriate." Green clarified that Father did not really know how to hold Alex and "[h]e brought a female friend and she took over the visit in a way that I felt was not reallyappropriate, especially if this is the first time this Father[] [was] meeting his son." Green testified that Father said the woman was his girlfriend, that he had not been around small children, and that he did not "know how."

Joy Redding, a coordinator from Child Advocates, testified that she believed that termination of the parents' rights and adoption by the current foster family would be in Alex's best interest. She explained her position because "the child deserves to be in a safe and stable environment, one that is free of violence, even if the child is not—even if violence is not directed at the child. The current foster parents are taking care of all of his needs, and they're providing that stable, safe environment above and beyond a normal amount. They're absolutely fantastic and he is bonded with them. They are bonded with him. He's a great, happy child."

On cross-examination, Redding testified that Father showed her the lease for his home two weeks before the trial, but that she has not been able to physically examine his house. She said that he also showed her letters from Catholic Charities.

Father testified that he was there to have his child returned to him and that he has been providing for his son, taking care of him, and sending him clothes and papers that they asked for, from day one. Father explained that he moved to Colorado to find work because the crime he committed when he was seventeen was holding him back. He "opened up two Hobby Lobby stores" in Colorado, buthe is now living in Houston as a self-employed barber. He wants to see Alex, he set up a beautiful room for Alex, and that if Alex is returned, he will get food for him and have someone to babysit. When asked if the babysitter's name was Isabel Mata, Father stated, "she's not really a babysitter. That's just the woman that's staying in my house right now, and I just brought these⁴ to court just to show I'm not living with a maniac." Father testified that he participated in seven to eight parenting classes at Catholic Charities, he was ready to have the child placed in his home today, and he was willing to have cameras installed in his home for a period of six months.

During...