In re Interest of A.P.

• Decision Date: 19 November 2020
• Docket Number: NUMBER 13-20-00258-CV
• Parties: IN THE INTEREST OF A.P., H.L., B.L., AND G.Y., CHILDREN
• Court: Texas Court of Appeals

IN THE INTEREST OF A.P., H.L., B.L., AND G.Y., CHILDREN

NUMBER 13-20-00258-CV

COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG

November 19, 2020

On appeal from the County Court at Law of Aransas County, Texas.

MEMORANDUM OPINION

Before Chief Justice Contreras and Justices Longoria and Perkes

Memorandum Opinion by Chief Justice Contreras

The trial court terminated the parental rights of appellant J.L. (Father) to his daughters A.P., H.L., and B.L.¹ By four issues, Father argues there was legally and factually insufficient evidence to support termination under any of the four statutorygrounds for termination found by the trial court. See TEX. FAM. CODE ANN. § 161.001(b)(1)(D), (E), (N), (O). We affirm as modified.

I. BACKGROUND

On July 24, 2019, the Department of Family and Protective Services (the Department) filed an original petition for conservatorship of A.P., H.L., B.L., and G.Y. and for the termination of the parent-child relationship to A.P.-L. (Mother) and their respective fathers. Appellant is the father of A.P., H.L., and B.L.

In its petition, the Department alleged that termination of Father's parental rights was proper under seventeen separate statutory grounds and that termination was in the best interest of the children. See id. § 161.002(b)(1)(A)-(Q), (2). On May 19, 2020, the suit was tried to the bench. The court heard testimony from the initial caseworker for the Department (Mandy Lopez), the caseworker for the Department at the time of trial (Julia Escamilla), the children's caregiver and prospective adoptive parent (C.W.), Father, and the children's guardian ad litem (Rebecca Roark).

Lopez testified that the Department became involved after receiving an allegation in June 2019 that Mother was using heroin while pregnant and "engaging in domestic violence with her alleged boyfriend at the time Luis . . . ." According to Lopez, she interviewed the children, and A.P. told her that the children found "syringes in the home they were staying in with" Mother, as well as "pills." During its investigation, the Department discovered that the children were residing and being cared for by C.W.—a long-time friend of Mother to whom Mother had granted "a note for power of attorney for the children"—but were "staying the weekend with [Mother] or the couple of days or whatever it was" when the events leading to the Department's investigation took place.Lopez testified that Mother was incarcerated at the time of the investigation and refused to talk to Lopez and that she did not make contact with Father because he was incarcerated as well.² At that point, the Department began to prepare for the removal of the children.

Escamilla testified that she was the caseworker for the Department at the time of trial and that she had communicated with Father through letters by mail. She explained that, according to the website for the Texas Department of Criminal Justice, Father's projected release date is September 29, 2024, and his parole was denied on May 2, 2020. Escamilla confirmed that Father received a service plan and that Father was unable to comply with the drug testing requirements, as well as other educational requirements, until he was released. According to Escamilla, Father would send letters to the children "probably every other month or every few months[,] mainly on holidays and birthdays, things like that." Escamilla testified that, during the pendency of the case, the children had been placed back with C.W., who had passed a home study. Escamilla explained C.W. "has been caring for [the children] since they were babies"; C.W. "is able to meet all of their needs [and] follows all of our recommendations"; the children "are very well bonded to" C.W.; C.W. "is very protective" of the children; and C.W. "is currently working with the Department to become a foster home because she wants to adopt all four girls." She explained that the Department's concern was that the children "have not been provided a stable drug-free safe home environment their entire lives" and that C.W. is able to provide a safe, stable, and loving home environment.

C.W. testified she has had the children "since [A.P.] was born." C.W. was asked, "Were there ever any times that you had the children that [Mother] or either of the fathers had the children for an extended period of time?", and she answered "No." C.W. elaborated that "the longest [any of the parents] kept [the children] was when [Mother] took them two summers ago . . . for three months." According to C.W., Mother and Father "were both on drugs a lot when [A.P.] was little" and "had a lot of altercations; physical, verbal, all kinds" when all the girls were "little." When these altercations occurred in the presence of the children, C.W. and the children "would leave or we would go in another room or we would—we would just get in the car and go." C.W. explained that Father left when B.L., the youngest of his three children, was eight months old. In the decade that followed, according to C.W., Father "probably [came] down twice to visit them and both times he ended up staying with [Mother], hanging out with [Mother], barely spending time with them." C.W. testified that the children do not hear from Father "for any reason" but conceded that the children had received "the Christmas cards and a birthday card that was transmitted by [Father] since the case started."

Father testified that he loved the children, did not want his parental rights terminated, and believed granting permanent managing conservatorship of the children to C.W. would be in their best interest. On cross examination, Father conceded that he has "an extensive criminal history that has spanned the lifetime of all three of [the] children" and that his criminal activity has kept him "from being a supportive father." Father stated he is incarcerated for "possession of one to four with intent" and believes his expected release date is 2031. Father also explained that he had "tried on multipleoccasions to be in [the children's] life but you hit a brick wall every time. [Mother] would always want to fight and argue about that."

Roark recommended that C.W. receive custody of the children and later adopt them. She explained C.W. "has shown a great deal of compassion and care for these girls and has done everything in her power to provide them with their needs." Finally, the court heard from the children, and they testified that they did not know Father, did not want to live with him, and wanted to stay with C.W.

The trial court terminated Father's parental rights to all three children, finding that termination was proper under four statutory grounds and in the children's best interest.³ See id. § 161.001(b)(1)(D), (E), (N), (O), (2). This appeal followed.

II. DISCUSSION

Involuntary termination of parental rights involves fundamental constitutional rights and divests the parent and child of all legal rights, privileges, duties, and powers normally existing between them, except for the child's right to inherit from the parent. Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985); In re L.J.N., 329 S.W.3d 667, 671 (Tex. App.—Corpus Christi-Edinburg 2010, no pet.); see Stantosky v. Kramer, 455 U.S. 745, 753 (1982). "Termination of parental rights, the total and irrevocable dissolution of the parent-child relationship, constitutes the 'death penalty' of civil cases." In re K.M.L., 443 S.W.3d 101, 121 (Tex. 2014) (Lehrmann, J., concurring). Accordingly, termination proceedings must be strictly scrutinized. Id. at 112. In such cases, due process requires application of the "clear and convincing" standard of proof. Id. (citing Stantosky, 455 U.S. at 769; In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002)). This intermediate standard falls between thepreponderance of the evidence standard of civil proceedings and the beyond a reasonable doubt standard of criminal proceedings. In re G.M., 596 S.W.2d 846, 847 (Tex. 1980); In re L.J.N., 329 S.W.3d at 671. "'Clear and convincing evidence' means a 'measure of degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established.'" In re N.G., 577 S.W.3d 230, 235 (Tex. 2019) (per curiam) (quoting TEX. FAM. CODE ANN. § 101.007); see In re K.M.L., 443 S.W.3d at 112-13 ("In cases requiring clear and convincing evidence, even evidence that does more than raise surmise and suspicion will not suffice unless that evidence is capable of producing a firm belief or conviction that the allegation is true."). "When reviewing a finding made by clear and convincing evidence, we determine whether the evidence is sufficient to make the existence of a fact highly probable, not whether the evidence supporting the finding is sufficient to make the existence of the fact more probable than not, as in ordinary civil cases." In re D.M., 58 S.W.3d 801, 808 (Tex. App.—Fort Worth 2001, no pet.).

The trial court may order the termination of the parent-child relationship if the court finds by clear and convincing evidence that: (1) the parent committed an act or omission described in family code subsection 161.001(b)(1) and (2) termination is in the best interest of the child. TEX. FAM. CODE ANN. § 161.001(b); In re N.G., 577 S.W.3d at 232. "To affirm a termination judgment on appeal, a court need uphold only one termination ground—in addition to upholding a challenged best interest finding—even if the trial court based the termination on more than one ground." In re N.G., 577 S.W.3d at 232; see TEX. FAM. CODE ANN. § 161.001(b). However, we must always review any sufficiency challenge on appeal to a termination under subsection (D) and (E). See In re N.G., 577 S.W.3d at235 ("When a parent has presented the issue on appeal, an appellate court that denies review of a section 161.001(b)(1)(D) or (E) finding deprives the parent of a meaningful appeal and eliminates the parent's only chance for review of a finding that will...